Simi Valley Care Center, DAB CR6815 (2026)

DECISION

On November 17, 2019, a single Certified Nursing Assistant (CNA) employed by Simi Valley Care Center (Petitioner or Facility), a skilled nursing facility (SNF), attempted to transfer a resident (Resident 1) from her bed to a wheelchair using a mechanical lift.  Resident 1 was elderly and suffered from acute respiratory failure that required a tracheostomy, nontraumatic intracranial hemorrhage with left hemiparesis, encephalopathy, and several other medical conditions.  Resident 1’s care plan required Petitioner’s staff to provide “maximum assistance” for activities of daily living (ADL), including two staff members to assist Resident 1 with transfers from her bed to a wheelchair when using a mechanical lift.  Resident 1 fell during the attempt by a single CNA to transfer Resident 1 from her bed to a wheelchair using a Hoyer lift.  Resident 1 sustained grievous injuries, fracturing multiple ribs and her shoulder blade.  Based on the results of a survey conducted by the California Department of Public Health (State Agency), the Centers for Medicare & Medicaid Services (CMS) found that Petitioner was not in substantial compliance with the Medicare program participation requirements for SNFs at 42 C.F.R. § 483.25(d), relating to accident hazards and adequate supervision.  CMS agreed with the State Agency that the deficiency resulted in actual harm to Resident 1.  CMS imposed a $10,205.00 per-instance civil money penalty (CMP) on Petitioner.  

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Petitioner sought review of CMS’s determination.  CMS moves for summary judgment, asserting that Petitioner was not in substantial compliance with the Medicare participation requirements at 42 C.F.R. § 483.25(d)(1)(2) and that the per-instance CMP imposed as a remedy for Petitioner’s alleged noncompliance is reasonable in amount.  Petitioner contests these assertions and opposes summary judgment, arguing that there are genuine disputes of material fact regarding whether Resident 1 required a two-person assist for transfers and whether Resident 1’s fall was foreseeable.  

I conclude that summary judgment is appropriate in this case because the undisputed evidence, viewed in the light most favorable to Petitioner, establishes that Petitioner did not substantially comply with the Medicare participation requirements found at 42 C.F.R. § 483.25(d)(1)(2) when Petitioner’s CNA transferred Resident 1 from her bed to a wheelchair without the assistance of an additional person, as required by Resident 1’s care plan and Petitioner’s policies.  I also conclude that the imposed CMP is reasonable in amount.  I therefore grant CMS’s motion for summary judgment.  

I.  Background and Procedural History

Petitioner is a SNF located in Simi Valley, California.  CMS Ex. 14 at 1-2.  The State Agency completed an abbreviated survey at the Facility on February 4, 2020.  CMS Ex. 2 at 1.  Based on the survey, the State Agency subsequently issued a Statement of Deficiencies indicating the Facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)(2) (Tag F689) (i.e., accident prevention and adequate supervision) at a scope and severity level of “G” (i.e., isolated deficiency posing actual harm that is not immediate jeopardy).  CMS Ex. 1.  On May 14, 2021, CMS imposed a $10,205 per-instance CMP on Petitioner.  CMS Ex. 2.  

Petitioner timely requested a hearing before an administrative law judge (ALJ) to dispute CMS’s imposition of remedies.  The Civil Remedies Division acknowledged receipt of the hearing request and issued a Standing Prehearing Order (SPO).1   In the SPO, the parties were directed to file a prehearing exchange and were permitted to file motions for summary judgment in lieu of or in addition to their exchanges.  SPO ¶ 8.  In compliance with the SPO, CMS submitted a prehearing exchange that includes a prehearing brief and motion for summary judgment (CMS Br.) as well as 14 proposed exhibits (CMS Exs. 1-14).  One of CMS’s proposed exhibits is written direct testimony from a witness, Neil Y. Cunanan, M.S.N., R.N., HFEN, a Health Facilities Evaluator Nurse for the State Agency.  CMS Ex. 13.  Petitioner filed a prehearing exchange that includes a prehearing brief and opposition to CMS’s motion for summary judgment (P. Br.) as well as 8 proposed exhibits (P. Exs. 1-8), one of which is written direct testimony from a witness,

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Karen Josephson, M.D., a doctor licensed in California and certified in internal and geriatric medicine.  P. Ex. 4.  CMS filed a reply brief (CMS Reply) and a request to cross-examine Petitioner’s sole witness.  Petitioner also filed a request to cross-examine CMS’s sole witness.  As neither party objected to any of the proposed exhibits, I admit CMS Exs. 1-14 and P. Exs. 1-8 into the record.  

II.  Issues

The issues in this case are: 

1.  Whether summary judgment is appropriate;

2.  Whether Petitioner failed to substantially comply with Medicare participation requirements; and

3.  If Petitioner was not in substantial compliance, whether the remedies imposed are reasonable. 

III.  Jurisdiction

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13). 

IV.  Discussion

A.  Statutory and Regulatory Framework

The Social Security Act (the Act) sets requirements for SNF participation in the Medicare program.  Pursuant to the Act, the Secretary of Health and Human Services (Secretary) may promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. Part 483. 

Congress mandates that SNFs “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.”  42 U.S.C. § 1395i-3(b)(2) (Emphasis added).  As mentioned above, the Secretary promulgated 42 C.F.R. § 483.25 in furtherance of this requirement.  The prefatory language of § 483.25 explains that SNFs “must ensure that residents receive treatment and care in accordance with professional standards of practice,” based on a comprehensive resident assessment, a comprehensive care plan, and resident choice.  Specifically, Paragraph (d) of § 483.25 imposes obligations on a facility related to accident hazards and accidents, as follows:  The facility must ensure that –

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(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents. 

To participate in Medicare, a SNF must maintain substantial compliance with program requirements.  When a SNF fails to meet a statutory or regulatory participation requirement, the SNF has a “deficiency.”  42 C.F.R. § 488.301; see 42 U.S.C. § 1395i-3(h)(1).  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301. 

The Secretary has the duty to enforce participation requirements for SNFs.  42 U.S.C. § 1395i-3(f)(1).  To do so, the Secretary contracts with state agencies to conduct surveys to determine whether SNFs are in substantial compliance with program requirements.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  State agencies may, as here, conduct an "abbreviated standard survey," which is a survey that gathers information of SNF compliance with Medicare requirements primarily through resident-centered techniques.  Abbreviated surveys may be premised on a complaint that the state agency received.  42 C.F.R. § 488.301 (definition of Abbreviated survey).  Apart from standard surveys, state agencies are also tasked with investigating complaints that SNFs have violated Medicare participation requirements.  42 U.S.C. § 1395i-3(g)(4); 42 C.F.R. § 488.332. 

The Secretary may impose enforcement remedies when the results of a survey show that a SNF is not in substantial compliance with the requirements for program participation.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  “Substantial compliance means a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301. 

When CMS selects an enforcement remedy to impose, it also determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  See 42 C.F.R. § 488.404(a)-(b).  CMS may impose a CMP as a remedy.  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  Furthermore, CMS may impose a per-instance CMP for each instance of the SNF’s noncompliance or a per-day CMP for the number of days an SNF is not in substantial compliance.  42 U.S.C. § 1395i-3(h)(2)(A), (h)(2)(B)(ii)(1); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after January 17, 2020, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows:  $2,233 to $22,320 for per-instance CMPs.  45 C.F.R. § 102.3 (2020); 85 Fed. Reg. 2869, 2870, 2880 (Jan. 17, 2020); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments).  

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The Act and regulations provide SNFs against which CMS has imposed an enforcement remedy the right to a hearing before an ALJ.  Act §§ 1128A(c)(2), 1866(h); 42 C.F.R. §§ 488.408(g), 498.3(b)(13).  A SNF has a right to appeal a finding of noncompliance that has led to an enforcement remedy, but CMS’s choice of remedies and the factors CMS considered when choosing remedies are not subject to review.  42 C.F.R. §§ 488.408(g)(1), 488.330(e), 498.3(b)(13); 488.408(g)(2).  A SNF may only challenge the scope and severity of noncompliance if a successful challenge would affect the range of the CMP that may be imposed, or impact the SNF’s authority to conduct a nurse aide training and competency evaluation program.  42 C.F.R. § 498.3(b)(14), (d)(10)(i). The CMS determination as to the level of noncompliance, including a finding of immediate jeopardy, “must be upheld unless it is clearly erroneous.”  42 C.F.R. § 498.60(c)(2); Woodstock Care Ctr., DAB No. 1726 at 9, 39 (2000), aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003). 

If a SNF challenges the existence of a deficiency, CMS must make a prima facie case that the SNF failed to substantially comply with federal participation requirements and, if such a showing is made, the SNF must then prove substantial compliance by a preponderance of the evidence.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson,129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001).  

If an ALJ concludes that there was a basis for imposing a CMP on an SNF, then the SNF may dispute the amount of the CMP.  The ALJ’s review of the CMP amount is limited to considering the statutory and regulatory factors for setting a CMP amount.  42 C.F.R. § 488.438(e)(3); see 42 U.S.C. §§ 1320a-7a(d), 1395i-3(h)(2)(B)(ii)(I); 42 C.F.R. § 488.438(f). 

B.  Findings of Fact, Conclusions of Law, and Analysis

i.  Summary judgment is appropriate. 

Summary judgment is appropriate if there is “no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”  Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (citations omitted), aff’d on other grounds, Mission Hosp. Reg’l Med. Ctr. v. Burwell, 819 F.3d 1112 (9th Cir. 2016).  To prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law.  Id.If the moving party meets this initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial . . . .’”  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. Pro. 56(e)).  “To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must

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furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.”  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010), aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App’x 820 (5th Cir. 2010). 

In evaluating a motion for summary judgment, an administrative law judge does not address credibility or evaluate the weight of conflicting evidence.  Holy Cross Village at Notre Dame, Inc.,DAB No. 2291 at 5 (2009).  Rather, in examining the evidence to determine the appropriateness of summary judgment, an administrative law judge must draw all reasonable inferences in the light most favorable to the non-moving party.  See Brightview Care Ctr., DAB No. 2132 at 9-10 (2007) (upholding summary judgment where inferences and views of non-moving party are not reasonable).  

Petitioner opposes summary judgment arguing that there are disputes of material fact because Resident 1’s fall was unavoidable and caused by a malfunction of the Hoyer lift and that the use of the Hoyer lift on Resident 1 did not require a second person.  P. Br.  Petitioner’s arguments and assertions fail to establish grounds to deny summary judgment.  The facts raised by Petitioner are not material and thus irrelevant to the determination of this case.  Furthermore, several of Petitioner’s assertions are legal conclusions that cannot be mischaracterized as disputes of material fact to avoid summary judgment.  I therefore find that these so-called factual disputes are not material to my decision.  Because Petitioner’s asserts nonmaterial facts and opinion, I find that there are no genuine disputes of material fact and that this case can be resolved on summary judgment. 

ii.  I find that the following facts are undisputed. 

The evidence in the record establishes the following undisputed facts:  

Resident 1 was an 87-year-old2  woman and was admitted to the Facility on January 5, 2016.  CMS Ex. 4 at 1; P. Ex. 1 at 1.  

Upon admission, Resident 1 was diagnosed with nontraumatic intracranial hemorrhage with left hemiparesis, acute respiratory failure requiring the use of tracheostomy tube, encephalopathy, pulmonary embolism, hyperlipidemia, anemia, and other medical issues.  CMS Ex. 4 at 1-2; P. Ex. 1 at 1-2.  According to her Minimum Data Set (MDS) Resident 1 did not speak, could not be understood, and was sometimes able to understand others.

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CMS Ex. 4 at 3.  Her vision was highly impaired, and she was overweight.  Id. at 4; CMS Ex. 10 at 6. 

A September 2019 assessment of Resident 1 indicated that she was totally dependent for her activities of daily living (ADL) and required two persons for assistance with bed mobility and transfer.  CMS Ex. 4 at 9.  

A distinct September 2019 assessment of Resident 1’s fall risk, indicated that she was a high risk for falls, scoring 14 where scores of 10 or greater indicate a high risk for falls.  CMS Ex. 4 at 12.  Resident 1’s score took into account her disoriented mental status, poor vision, diagnoses with 1-2 of predisposing diseases, medication intake that included 3-4 of the listed medications, as well as her chair bound status and complete inability to perform the gait/balance portion of the assessment.  Id.  Resident 1 had previously been assessed as a high fall risk on four occasions between December 2018 and September 2019.  Id.  

Resident 1’s care plan, as of April 5, 2018, indicated that she was at risk for falls due to her diagnoses of respiratory failure with tracheostomy, Parkinson’s disease, seizure, hypertension, major depressive disorder requiring anti-depression medication, in addition to her need for total assistance for ADL and nonambulatory status.  Id. at 13.  Resident 1’s care plan also stated that she required the assistance of two persons for bed mobility as well as a two-person assist for transfer with the use of a mechanical lift.  Id. at 14.  Resident 1’s care plan was reevaluated six times between July 2018 and September 2019.  Id. at 14.  Each reevaluation confirmed that Resident 1’s required assistance with ADL’s and required the assistance of two persons for transfers using the mechanical lift.  Id.  

Resident 1’s ADL Flow Sheet for November 2019 shows documentation for bed mobility and transfer, with total dependence and two or more persons supporting for all transfers between surfaces.  Id. at 16.  

On November 17, 2019, a single CNA attempted to transfer Resident 1 from her bed to a wheelchair using a mechanical lift, known as a Hoyer lift.  P. Ex. 2 at 1.  The CNA was aware that Resident 1 required the use of a Hoyer lift as well as the assistance of two persons with the transfer.  CMS Ex. 11 at 3.  Nevertheless, the CNA attempted the transfer alone and did not ask for help.  Id.  Resident 1 fell to the floor during the transfer and struck her head on the base of the lift.  P. Ex. 2 at 1; CMS Ex. 5 at 1. 

After the fall, Petitioner’s physician ordered the transfer of Resident 1 to the emergency room (ER).  CMS Ex. 6 at 1.  Resident 1 presented to the ER with severe hypoxia and was placed on a ventilator.  CMS Ex. 7 at 3.  Resident 1 was sent to the Intensive Care Unit (ICU) for further workup.  Id.  In the ICU, Resident 1 was determined to be critically ill, and diagnostic testing noted small right lower lung infiltrate and a small

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right effusion, right fourth through eighth rib fractures, right scapula fracture, and right posterior parietal scalp hematoma.  Id. at 5, 7-8, 10.  

Resident 1 passed away at 9:21 pm on November 17, 2019.  CMS Ex. 10 at 1.  The medical examiner’s autopsy report notes the cause of death as multiple blunt force injuries with contributing causes of old strokes and osteoporosis.3  CMS Ex. 10 at 4.  The report also noted that Resident 1’s family requested she be extubated and that she died a short time later, approximately 12 hours after she fell.  Id. at 5.  

Petitioner’s policies regarding use of a mechanical lift for transferring and lifting require two people to operate the lift.  Specifically, the policy states “always [two] person [sic] when using mechanical lift; Hoyer or sit to stand.”  CMS Ex. 8 at 1.  Furthermore, the Facility’s policy on using a portable lifting machine states that “the portable lift can be used by one nursing assistant if the resident can participate in the lifting procedures.  If not, two (2) nursing assistant will be required to perform the procedure.”  Id. at 2.  

Petitioner’ s fall prevention policy requires residents’ care plans to “state the goals, interventions and approaches for every resident who is identified as being at risk for falls.”  Id. at 4.  Additionally, it requires direct care providers to “be instructed regarding approaches and goals for the management of the resident’s fall risk.”  Id.  

After Resident 1’s fall, Petitioner conducted training for staff about the proper procedures for use of a mechanical lift.  See CMS Ex. 9.  On January 31, 2020, Petitioner conducted a training specifically about staff compliance with transfer assistance.  The noted goal was “staff follow[ing] the plan of care Re: transfer assistance.”  Id. at 12.  Additionally, the “root cause” identified for the training was “C.N.A. did not follow the transfer assistance as indicated in the ADL profile and care plan.  C.N.A. did not ask for help and did the transfer alone.”  Id.  Petitioner trained staff using the same policies that require two or more staff to assist for transfers of non-weight-bearing residents.  See CMS Ex. 8 at 2-3; CMS Ex. 9 at 5, 7-10, 12, 21, 31, 37-41. 

On November 21, 2019, and January 8, 2020, Neil Y. Cunanan, a health facilities evaluator nurse for the State Agency, conducted on-site visits at Petitioner’s facility as

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part of an abbreviated survey.  CMS Ex. 13 at ¶ 3.  The survey was completed on February 4, 2020.  Id.  

iii.  Petitioner was not in substantial compliance with Medicare participation requirements because Petitioner failed to take all reasonable steps to avoid a foreseeable accident and, as a result, Resident 1 was injured when she fell while being transferred from her bed to a wheelchair. 

Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) (Tag F-689) because the Facility did not take all reasonable steps to provide the supervision and assistance necessary to prevent or mitigate Resident 1’s fall.  Due to the Facility’s failure to provide a two-person assist during the attempted transfer, as required by Resident 1’s care plan and Petitioner’s policies, Petitioner unreasonably placed Resident 1 at risk of suffering more than minimal harm. 

As noted above, Section 483.25(d) requires that facilities “ensure that (1) the resident environment remains as free of accident hazards as is possible; and (2) each resident receives adequate supervision and assistance devices to prevent accidents.”  Specifically, the Board has held that 42 C.F.R. § 483.25(d)(2) requires a facility to take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents' accidents”)). 

Facilities are given “the flexibility to choose the methods” they use to provide supervision or assistive devices to prevent accidents, so long as the chosen methods “constitute an ‘adequate’ level of supervision” for a particular resident's needs.  Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff'd sub. nom. Windsor Health Ctr. v. Leavitt, 127 F. App'x 843 (6th Cir. 2005). 

Furthermore, SNFs are required to develop a comprehensive care plan for each resident within seven days of a comprehensive assessment following admission.  42 C.F.R. §§ 483.21(b)(1), (b)(2)(i).  Each resident's medical, nursing, and mental needs must be addressed with identified measurable objectives and with determined timeframes.  Id. at § 483.21(b)(1).  SNFs must also identify the services that will be provided to the resident, any services declined by the resident, and include consultation with the resident or his or her representative regarding the resident's goals and needs.  Id. at §§ 483.21(b)(1)(i), (ii), (iv).  A resident's care plan thus documents and memorializes the services the SNF has determined are necessary to meet the resident's needs based on the comprehensive assessment.  The assessment and care plan must be revised as often as is needed to ensure that the services and care provided to a resident are accurate and properly effectuated.

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42 C.F.R. § 483.21(b)(2)(iii) (“A comprehensive care plan must be . . . [r]eviewed and revised by the interdisciplinary team after each assessment . . .”). 

It is not disputed that Petitioner assessed Resident 1’s risk for falls and determined certain measures were necessary to reduce this risk.  Specifically, Petitioner identified factors that put Resident 1 at a high risk of falling, including her medications, mental status, poor vision, and her other health conditions.  To address these risks, Petitioner determined that Resident 1 required two people to assist her in her daily activities, including bed mobility and transfer.  These requirements are documented in her MDS and her care plan. 

Resident 1’s care plan clearly and unambiguously required a two-person assist for transfers from her bed to a wheelchair when using a Hoyer lift.  Subsequent to the facility’s assessment of Resident 1’s fall risk, she fell and broke several ribs and her shoulder blade while receiving the assistance of only one person during a transfer from her bed to a wheelchair.  Petitioner did not follow the care plan that it had deemed necessary for Resident 1 and therefore was not in compliance with the supervision she required to prevent or minimize the impact of her fall.  Petitioner’s failure to provide Resident 1 the supervision mandated by her care plan supports the finding that Petitioner did not take all reasonable steps to protect Resident 1 from a foreseeable risk of harm.  

The record, even when viewed in the light most favorable to Petitioner, shows that Petitioner did not provide the legally requisite supervision to Resident 1 in accordance with her care plan and Petitioner’s own policies when only one staff member attempted to transfer Resident 1 from her bed to the wheelchair.  42 C.F.R. § 483.25; Azalea Ct., DAB No. 2352 at 12 (2010), aff'd, Azalea Ct. v. United States Dep't of Health & Human Servs., 482 F. App'x 460 (11th Cir. 2012) (“[A] facility's care plan indicates the facility's assessment of what the resident needs, and that failure to follow the care plan may be grounds for concluding that the facility is not in substantial compliance with section 483.25 quality of care standards.”).  Petitioner failed to take “all reasonable steps” to ensure that Resident 1 received the supervision that it had assessed she needed to mitigate a foreseeable risk of harm from falling.  As a SNF subject to these Medicare requirements, Petitioner was required to “reduce known or foreseeable accident risks to the highest practicable degree.”  Century Care of Crystal Coast, DAB No. 2076, at 7 (2007), aff’d, Century Care of Crystal Coast v. Leavitt, 281 F. App’x 180 (4th Cir. 2008).  The Board has long held that a facility’s policies provide sufficient evidence of the “standard of care the facility expected its staff to provide” to its residents.  Oxford Manor, DAB No. 2167, at 5; Hanover Hill Health Care Ctr., DAB No. 2507, at 6 (2013).  Here, it is undisputed that Petitioner failed to comply with Resident 1’s care plan and its own mechanical lift and fall risk policies when the CNA attempted to transfer Resident 1 via Hoyer Lift with one person rather than two.  As such, the record demonstrates that Petitioner failed to take all reasonable steps to mitigate the risk of Resident 1 falling.

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The next pertinent inquiry is whether this failure caused Resident 1 to be at risk for more than minimal harm.  Considering Resident 1’s condition and care plan, I conclude that it did.  In failing to ask for assistance and performing a one-person assist to transfer Resident 1 from her bed to a wheelchair using a Hoyer lift, Petitioner failed to take all reasonable steps to ensure that Resident 1 received the appropriate weight-bearing support from a two-person assist and prevent an accident that was foreseeable.  Not only did this cause Resident 1 to be at risk for more than minimal harm, but Resident 1 was, in fact, seriously harmed by the use of a one-person assist.  The failure to use a second person to transfer a bedbound, obese, elderly person who could not assist with her own transfer caused Resident 1 to suffer a fall and she was gravely injured as a result.  Because only one person was present, in direct contradiction to Resident 1’s care plan and Petitioner’s policies, there was no one to assist with the transfer, break her fall or assist in any way to potentially mitigate the impact of the accident.  Resident 1 sustained serious injuries from her fall, including  right fourth through eighth rib fractures, right scapula fracture, and right posterior parietal scalp hematoma.  

As discussed further below, I conclude that CMS has met its burden by producing sufficient evidence to show a prima facie case for a deficiency (i.e., the potential for causing more than minimal harm).  While CMS determined that the scope and severity of the deficiency that Petitioner's constituted actual harm to Resident 1 (see 42 C.F.R. § 488.404(b)(1)(iii)), I cannot review the level of noncompliance determined by CMS unless a successful challenge to that level would affect the range of CMP amounts collected by CMS based on the deficiency.  42 C.F.R. § 498.3(b)(14)(i).  In the instant case, the per-instance CMP imposed by CMS only has one range of CMP amounts. 42 C.F.R. § 488.438(a)(2).  Consequently, CMS is only required to make a prima facie showing that a violation of Medicare program requirements posed a potential for more than minimal harm to a resident to prevail.  

iv.  Petitioner failed to provide supervision that would have reduced known or foreseeable accident risks.  

Petitioner disputes that it failed to comply with the cited regulation and argues that summary judgment is inappropriate because there are material facts in dispute.  In support, Petitioner relies on the testimony of Dr. Karen Josephson and other evidence to assert that: 

1.  Resident 1’s fall was caused by a “malfunction” of the Hoyer lift and was, therefore unavoidable and not foreseeable.  
2.  A two-person assist was not necessary or required to operate the Hoyer lift, and Petitioner was in compliance with its relevant policies and procedures.  P. Br. 

All of the Petitioner’s alleged disputed facts are immaterial or are incorrectly characterized as factual disputes when they are unsupported legal conclusions or baseless

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allegations.  Because Petitioner’s arguments fail to raise any legally sufficient disputes of material fact and Petitioner has failed to produce any relevant evidence to challenge CMS’s motion, Petitioner has not met the legal standard to overcome summary judgment, and I find that a preponderance of the evidence supports that Petitioner did not substantially comply with 42 C.F.R. § 483.25(d). 

a.  Petitioner did not reasonably take steps to ensure that Resident 1 received the proper supervision required by her care plan and Petitioner’s policies and did not mitigate a foreseeable fall risk.  

Petitioner asserts that when Resident 1’s care plan was implemented in April 2018, a two-person assist was not required.  See P. Br. at 10.  Rather, the care plan implemented interventions such as positioning the bed at the lowest position with the breaks on, having the call light and personal items within reach of the resident, and frequent visual checks, and “use of mechanical lift for transfer,” among other protocols.  Id. (citing P. Ex. 1 at 1-7.  As such, Petitioner asserts that it did take all precautions to properly address Resident 1’s fall risk.  Id. at 12.  However, though Petitioner mentions that Resident 1’s fall risk was reassessed on September 12, 2019 (referencing P. Ex 1 at 7-8), it does not address the September 2019 assessment of Resident 1 that indicated that she required a two-person assist for transfers.  CMS Ex. 4 at 14.  By failing to address the version of the care plan that was in effect at the time of Resident 1’s fall, Petitioner has not met its burden of proof and shown that it took all reasonable steps to mitigate a foreseeable accident. 

Additionally, Petitioner argues that the CNA's decision to operate the Hoyer lift and transfer Resident 1 by herself was reasonable and was based upon her assessment of the situation and ultimate determination that she could safely transfer Resident 1 without the assistance of a second person – essentially modifying the care plan that had been determined by Resident 1’s interdisciplinary team.4  P. Br. at 8.  The Board has held that when a facility’s failure to provide “without justifiable reason,” the precautions that its own interdisciplinary teams have determined to be necessary to “mitigate foreseeable accident risks,” the facility violates CMS’s requirements for adequate supervision.  Good Shepherd Home for the Aged, DAB No. 2858, at 14 (2018).5  While a facility is permitted

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flexibility to select the methods and devices to prevent accidents, the chosen interventions must provide a level of supervision that is “adequate” under the circumstances.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 14 (2017) (citing Woodstock Care Ctr., DAB No. 1726 at 28-35 (2000) (“What is “adequate” depends in each case on the resident's condition, the facility environment and the viable and preferred methods available to the facility.”)).  Resident 1 was obese, bedbound, and elderly with right-sided paralysis; required a Hoyer lift for any and all transfers; and, critically, was assessed by Petitioner on September 15, 2019, as requiring a two-person assist with transfers.  At no point in time after this was Resident 1 reassessed as no longer requiring a two-person assist for transfers.  On November 17, 2019, the CNA made an independent decision without authority to attempt to transfer Resident 1 by herself, despite the unambiguous directives in Resident 1’s care plan.  Petitioner assessed Resident 1 to be at high risk for falls, such that she required the assistance of two people for transfers and activities of daily living.  Its employee’s decision to deviate from this created a risk of foreseeable harm and resulted in Resident 1’s serious injuries.  

b.  Whether a Hoyer lift can be safely operated by a single person is not a material fact in dispute. 

Petitioner claims a genuine dispute of material fact exists regarding whether a Hoyer lift can safely be operated by a single person.  In the instant case, the legal inquiry rests on whether Petitioner’s CNA’s choice to operate the lift individually created a foreseeable risk of harm to Resident 1.  Petitioner cannot manufacture a factual dispute based on what is, in essence a legal inquiry.  Here, it is undisputed that the lift was operated by one person.  Conclusions drawn regarding the legal significance of these facts are reserved for the arbiter of this case.  Cedar Lake Nursing Home, DAB No. 2344 at 7 (2010).  Petitioner’s assertions are not facts, but its own opinions regarding its legal compliance. 

c.  I do not need to determine how and if the Hoyer lift malfunctioned. 

Petitioner argues that the ultimate cause of Resident 1’s fall was an unavoidable and unpredictable malfunction of the Hoyer lift, not the level of assistance.  The record contains differing accounts of how the Hoyer lift functioned prior to Resident 1’s fall.  It is not necessary for me to resolve this issue to grant summary judgment.  The specific condition of the lift or how the loops may not have been attached for the transfer are irrelevant.  It is not essential that the exact manner that Resident 1 was harmed be determined for a finding that Petitioner failed to comply with the applicable regulation.  What is pertinent are the facts related to the appropriate supervision Petitioner determined

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was necessary to adequately address Resident 1’s risk for falling.  The undisputed facts show that Petitioner determined that Resident 1 required a two-person assist and that on the date of the incident, Resident 1’s transfer from her bed to a wheelchair was not provided in accordance with her care plan and the Facility’s policies.  

To the extent that Petitioner disputes the cause of Resident 1’s fall, or specifically asserts that the fall was caused by a malfunction of the Hoyer lift, Petitioner does not raise a dispute of material fact supported by the evidence in the record.  Furthermore, Petitioner’s inferences regarding the malfunction as the unavoidable cause of her fall are speculative, and I therefore reject them as unreasonable.  Dumas Nursing and Rehabilitation, DAB, No. 2347, at 18 (2010).  

More importantly, the inquiry for whether a facility has violated section 483.25(d) does not depend on the occurrence of an accident, but whether the facility took all reasonable steps to protect its resident from foreseeable risks of harm.  See, e.g. Wester Care Mgmt. Corp., DAB 1921, at 15 (2004).  Thus, Petitioner’s arguments regarding the lift malfunctioning are inapposite.  It was reasonably foreseeable that an accident could have occurred when Resident 1’s care plan, implemented to minimize her fall risk, was ignored.  Petitioner asserts that the accident was caused by a malfunction of the Hoyer lift and was completely unforeseeable.  Even if the lift malfunctioned, attempting the transfer of a bedbound resident, who is unable to assist in her transfer, without a second person as required by the resident’s care plan is exposing the resident to unnecessary risk.  Moreover, a second person would not only provide the necessary assistance to transfer the resident, but would also provide a second pair of hands and eyes to provide the resident with additional protection and safeguarding had the Hoyer lift malfunctioned.  Construing the evidence regarding the Hoyer lift in the light most favorable to Petitioner, does not change this result.  A malfunction of the lift may have been unforeseeable.  However, the absence of a second person to assist, when Petitioner assessed Resident 1 as requiring this assistance, creates an unacceptable and completely foreseeable risk of harm to Resident 1, even if the lift was malfunctioning. 

Petitioner asserts that even if a second person was present, Resident 1 would still have fallen because her weight would have prevented either person from catching her.  Request for Hearing (RFH) at 4; P. Br. at 11.  While this argument is speculative and irrelevant to the legal inquiry in this case, I note that CMS’s witness, Neil Y. Cunanan, testified as to how a two-person assist could help avoid the danger that befell Resident 1.  He describes the role of the second person during operation of a mechanical lift on a person who cannot assist with the transfer.  CMS Ex. 13 at 6.  He states that “when two staff members are present, one can focus on operating the lift, while the other concentrates on guiding the resident’s body during the transfer.”  Id.  The combined effort of two people ensures the safety of the person who cannot assist with their transfer by steadying themselves or breaking their own fall.  Id.  A single-person assist would and did threaten Resident 1’s safety because there was no one to assume the tasks of the

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second person.  Mr. Cunanan’s testimony explains how a two-person assist could have avoided the danger that resulted in Resident 1’s fall and injuries.  Resident 1’s safety would have been greatly enhanced by an additional person assisting with her transfer.  However, the facts of this case show that a one-person assist greatly and actually threatened Resident 1’s safety. 

I conclude that the undisputed facts show that the risk of Resident 1 falling was foreseeable, and that Petitioner did not reasonably provide Resident 1 with the appropriate supervision to prevent or mitigate her fall.  Petitioner’s failure to provide Resident 1 with the supervision it had determined she required had the potential to cause more than minimal harm, regardless of whether the Hoyer lift used was functioning properly.  

d.  Petitioner’s reliance on the reasonableness of its conduct is misguided.  

Petitioner argues, based in part on expert testimony, that a two-person assist was unnecessary because the CNA determined that she could “safely operate the Hoyer lift without a second person.”  P. Br. at 8; P. Ex. 4 at 5.  Petitioner’s assertions of reasonableness are contradicted by its own policies and the testimony of Mr. Cunanan.  Petitioner provides no evidence to counter his testimony regarding the importance of a second staff member assisting with a Hoyer lift, particularly in cases where the resident requires assistance for all daily living activities.  

The regulations require that a facility do what is “practicable” and “possible” to remove accident hazards and ensure adequate supervision.  Josephine Sunset Home, DAB No. 1908, at 10 (2004).  Furthermore, the Board has held that a facility’s failure to follow its own policies supports a finding that it did not comply with the applicable regulatory standards.  Good Shepherd at 12. Complying with its own assessment of what Resident 1 required is reasonable and clearly possible, as Resident 1’s records indicate all other transfers were accomplished with two people.  Petitioner’s own records produced during the survey support the finding that Petitioner’s employee knowingly ignored or disregarded Resident 1’s care plan.  I am unpersuaded by Petitioner’s arguments.  Petitioner has provided no legal justification for a member of its staff to ignore Resident 1’s care plan. 

Furthermore, Petitioner’s assertions regarding reasonableness are in essence a legal conclusion about the actual cause of the harm to Resident 1 and the reasonableness of the supervision provided to Resident 1.  I reject Petitioner’s legal conclusions and its arguments regarding the legal significance of certain facts.  See Morris View Healthcare Center, DAB No. 3149 at 3 (2024). 

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Petitioner asserts that the manufacturer’s guidelines permit the operation of the lift by one assistant if “based on the evaluation of the health care professional for each individual case.”  RFH at 3 (quoting P. Ex. 3 at 8).  Petitioner neither addresses nor offers legal support for the fact that this would allow the manufacturer’s user manual to supersede Resident 1’s care plan and Petitioner’ own policies.  Furthermore, a complete reading of the 53-page manual contradicts Petitioner’s interpretation.  Considering the document in its entirety, it supports CMS’s assertion that a two-person assist for Resident 1’s transfer was required for her safety.  

Additionally, Petitioner asserts, based on testimony provided by expert witness Dr. Josephson, that the one person transferring Resident 1 was “reasonable” and that the Hoyer lift was “designed to be operated by one person.”  P. Ex. 4.  Consistent with the summary judgment posture of this case,  I do not weigh or evaluate the credibility of Dr. Josephson’s testimony.  However, I note that her testimony lacks material facts that would make the granting of summary judgment improper.  Petitioner expert’s testimony raises no genuine dispute of material fact and is irreconcilable with the record evidence.  In her affidavit, Dr. Josephson relies on speculation and there is no evidence to support the inferences that she asserts. Specifically, she makes several unsupported allegations regarding what would have happened if a second person was present to assist with Resident 1’s transfer. 

A witness cannot make the ultimate determination of whether Petitioner is in substantial compliance, as it is a legal conclusion.  Kingsville Nursing & Rehabilitation Ctr., DAB No. 2234 (2009) at 10; NMS Healthcare of Hagerstown LLC, DAB No. 2803 (2017), at 40.  Also, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions as true.  Cedar Lake Nursing Home, DAB No. 2344 at 7 (2010).  The testimony offered by Dr. Josephson does not change that Resident 1’s care plan in place at the time of the fall required a two-person assist.  Petitioner’s deviation from Resident 1’s care plan cannot be ameliorated by expert testimony.  

v.  Petitioner failed to present sufficient evidence that the Facility corrected the noncompliance at the time of the survey.  

Petitioner claims that the noncompliance in this matter occurred before the subject survey and that the evidence shows that Petitioner was in substantial compliance at the time of the survey.  RFH at 4.  Past noncompliance requires more than an acknowledgment that a facility’s noncompliance began before a survey was conducted.  “Uncorrected noncompliance is not past,” but “‘[p]ast noncompliance,’ instead, means a period of noncompliance which not only began but also was corrected by the facility itself before the survey.”  Donelson Place Care & Rehab. Ctr., DAB No. 3046 at 23 (2021) (citing Green Valley Healthcare & Rehab. Ctr., DAB No. 2947 at 3 (2019)).  To be cited as past noncompliance at the time of the survey, three elements must be met: 

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1.  The facility was not in compliance with the specific regulatory requirement(s) at the time the situation occurred; 
2.  The noncompliance occurred after the exit date of the last standard (recertification) survey and before the survey (standard, complaint, or revisit) currently being conducted; and 
3.  There is sufficient evidence that the facility corrected the noncompliance and is in  substantial compliance at the time of the current survey for the specific regulatory requirement(s), as referenced by the specific F-tag or K-tag. 

State Operations Manual (SOM) § 7510.1 (Emphasis supplied).  A facility “does not provide a [plan of correction] for a deficiency cited as past noncompliance because the deficiency is already corrected,” but the plan of correction column on the CMS 2567 form will print “Past noncompliance-no plan of correction required” for tags identified as past noncompliance.  SOM §§ 7510.1-.2.  Surveyors will also specifically document the facility’s actions to correct the past noncompliance on the CMS 2567 form.  SOM § 7510.2. 

While Petitioner has abandoned this argument, I will address it for thoroughness. Petitioner has proffered no evidence that it corrected the noncompliance and was in substantial compliance at the time of the survey for Tag F689.  Petitioner’s assertions made in its Request for Hearing were not addressed in its brief and Petitioner has neither cited to nor produced any evidence to support this assertion.  Therefore, the third requirement of past noncompliance was not satisfied.  As a result, Petitioner’s noncompliance with 42 C.F.R. § 483.25(d)(1)(2) (Tag F689) was ongoing, not past. 

vi.  The remedy proposed is reasonable in amount. 

CMS imposed a per-instance civil money penalty of $10,205.00 against Petitioner as a remedy for its noncompliance.  This penalty falls within the permissible range of per-instance penalties.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. Part 102.  To determine whether the CMP is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors.  

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The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002). 

CMS imposed a per-instance penalty of $10,205.00, which is in the middle range for per-instance penalties.  42 C.F.R. §§ 488.408(d), 488.438(a)(2); 45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).  Given the seriousness of the injuries suffered by Resident 1 and the failure of Petitioner’s staff to follow its own policies and adhere to Resident 1’s care plan to keep Resident 1 safe, the CMP could have been higher.  

Applying the relevant factors here, the $10,205.00 per-instance penalty is reasonable.  CMS has presented evidence showing that the Facility has had four prior violations related to resident health and safety at the “D” to “F” level.  CMS Ex. 14 at 2-5.  Petitioner has not challenged this evidence.  Also, Petitioner does not claim that its financial condition affects its ability to pay the penalty.  Rather, Petitioner argues that there was no regulatory noncompliance, and even if there were, the CMP was not reasonable.  P. Br. at 13.  Applying the remaining factors, the CNA knew that Resident 1 required a two-person assist for transfers with the Hoyer lift and completely ignored Resident 1’s care plan and the Facility’s policies.  The CNA actions showed a complete disregard for Resident 1’s care and safety.  This disregard resulted in grave injuries to Resident 1 who was fragile and had significant health challenges.  For these failures the Facility is culpable.  As discussed above, the Board has repeatedly determined that staff’s failure to comply with a resident’s care plan constitutes a serious deficiency.  Petitioner has thus not met its burden of establishing that the penalty imposed is unreasonable. 

I find that the undisputed facts strongly support CMS’s remedy determination. 

CMS’s choice of remedy is not reviewable.  42 C.F.R. § 488.438(e)(2). 

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V.  Conclusion

For the reasons explained above, I conclude that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. § 483.25(d)(1)(2) (Tag F689) and that a $10,205.00 per-instance CMP is reasonable.  Finally, in light of the foregoing, I grant CMS’s motion for summary judgment.