Generations Oakton Pavillion, DAB CR6834 (2026)

DECISION

Generations Oakton Pavillion (Petitioner or facility) is a skilled nursing facility (SNF) that participates in the Medicare program.  Based on the findings of multiple complaint investigations conducted by the Illinois Department of Public Health (state agency), the Centers for Medicare & Medicaid Services (CMS) found that Petitioner had not been in substantial compliance with 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 two of the facility’s residents.  CMS imposed a $2,140 per-day civil money penalty (CMP) from May 17, 2024 through June 27, 2024 and a discretionary denial of payment for new Medicare/Medicaid admissions (DPNA) from June 12, 2024 through June 27, 2024. 

Petitioner disputes there was a deficiency and argues that Resident 1’s (R1) fall was unavoidable.  Petitioner asserts that it provided adequate supervision and interventions to prevent accidents, as supported by clinical records and staff statements.  Petitioner argues that any additional deficiencies cited are not adequate to support the CMP amount.  

As I explain below, I conclude that Petitioner was noncompliant with 42 C.F.R. § 483.25(d) because Petitioner failed to provide both R1 and Resident 2 (R2) with

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adequate supervision to prevent an accident.  Therefore, I affirm CMS’s determination that Petitioner was not in substantial compliance with Medicare participation requirements when it failed to properly supervise R1 and R2, which resulted in injuries.  Further, I conclude that the CMP amount imposed was appropriate and reasonable under relevant statutory and regulatory factors.

I. Legal Framework

The Medicare program “provides basic protection against the costs of . . . related post-hospital . . . care” for individuals over the age of 65 who are eligible for Social Security retirement benefits and for individuals under 65 who meet other criteria.  42 U.S.C. § 1395c.  Post-hospital care includes extended care services provided at an SNF.  42 U.S.C. §§ 1395f(a)(2)(B), 1395x(h)-(i). 

For Medicare program purposes, an SNF is an institution that is primarily engaged in providing skilled nursing care and/or rehabilitation services for its residents but is not primarily engaged in the care and treatment of mental diseases.  42 U.S.C. §§ 1395x(j), 1395i-3(a)(1).  Because an SNF is a “provider of services” in the Medicare program, each SNF that participates in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u). 

A participating SNF must meet a variety of ongoing statutory requirements regarding how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d).  Further, SNFs must comply with “such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”  42 U.S.C. § 1395i-3(d)(4)(B); see 42 U.S.C. § 1395i-3(c)(1)(xi), (f).  The Secretary has promulgated regulations to establish those additional requirements.  See 42 C.F.R. pt. 483, subpt. B.1 

When an SNF fails to meet a statutory or regulatory participation requirement, then the SNF has a “deficiency.”  42 C.F.R. § 488.301; see 42 U.S.C. § 1395i-3(h)(1).  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301; see also 42 U.S.C. § 1395i-3(h)(3).  To maintain “substantial compliance,” an SNF’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301. 

“It is the duty and responsibility of the Secretary to assure that requirements which govern the provision of care in skilled nursing facilities . . . are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public monies.”  42 U.S.C. § 1395i-3(f)(1).  To do so, the Secretary contracts with

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state agencies to conduct surveys to determine whether SNFs are in substantial compliance.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  Standard surveys are unannounced and occur at least once every 15 months.  42 U.S.C. § 1395i-3(g)(2)(A)(i), (iii)(I).  State agencies also conduct investigations into complaints against SNFs.  42 U.S.C. § 1395i-3(g)(1)(C), (4). 

When the results of a survey show that an SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies on the SNF.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  All enforcement remedies imposed on SNFs are remedial in nature because they “ensure prompt compliance with [Medicare] program requirements” and “are applied on the basis of noncompliance found during surveys conducted by CMS or by the survey agency.”  42 C.F.R. § 488.402(a)-(b).  In order to assist a facility in returning to substantial compliance quickly, SNFs must file a plan of correction with the state agency/CMS.  42 C.F.R. § 488.402(d). 

When CMS selects an enforcement remedy to impose on an SNF, it 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.2   See 42 C.F.R. § 488.404(a)-(b).  The highest level of severity occurs when the noncompliance immediately jeopardizes the health or safety of SNF residents.  See 42 U.S.C. § 1395i-3(h)(1).  “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301. 

One enforcement remedy CMS may impose is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  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)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after August 8, 2024, for deficiencies that occurred on or after November 2, 2015, the CMP amounts may range as follows:  $2,670 to $26,685 for per-instance CMPs; $133 to $8,003 per day for less serious noncompliance; or $8,140 to $26,685 per day for noncompliance that immediately jeopardizes the health and safety of residents.  45 C.F.R.

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§ 102.3 (2024); 89 Fed. Reg. 64,815, 64,829 (Aug. 8, 2024); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments). 

If CMS imposes a CMP based on a finding of noncompliance, then the SNF may request a hearing before an administrative law judge (ALJ) to challenge CMS’s initial determination of noncompliance that led to the imposition of an enforcement remedy and/or the level of noncompliance if a successful challenge to the level would affect the range of CMP amounts imposed on the SNF or if a finding of substandard quality of care results in the loss of approval for an SNF of its nurse aide training program.  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.408(g)(1), 488.434(a)(2)(viii), 498.3(b)(13)-(14), (d)(10); see also 5 U.S.C. §§ 554, 556.  However, CMS’s choice of remedies is not reviewable.  42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13). 

If an 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 SNF challenges CMS’s determination as to the level of noncompliance, CMS’s determination must be upheld unless it is clearly erroneous.  42 C.F.R. § 498.60(c)(2). 

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).  The ALJ may not reduce a CMP to zero.  42 C.F.R. § 488.438(e)(1). 

Either the SNF or CMS may request administrative review of an ALJ’s decision.  42 C.F.R. § 498.80. 

II. Background and Procedural History

Petitioner is an SNF that is located in Des Plaines, Illinois.  The state agency conducted multiple surveys at the facility in the summer of 2024, including surveys on May 20, June 3, and June 23, 2024.  Joint Stipulation of Undisputed Facts (Joint Stip. at 1).  Based on the May 20, 2024 survey, CMS alleged the facility was out of compliance with the federal participation requirements at 42 C.F.R. § 483.25(d)(1)-(2)

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(Tag F689) (Free of Accident Hazards/Supervision/Devices ), cited at scope and severity level G.  Joint Stip. at 2.  Based on the June 23, 2024 survey, CMS alleged that the facility was again out of compliance with the federal participation requirements at 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689) (Free of Accident Hazards/Supervision/Devices ), cited at scope and severity level G .3   Id. 

On February 25, 2025, CMS issued a notice of an initial determination.  CMS Ex. 16.  The notice stated that Petitioner had returned to substantial compliance as of June 28, 2024.  Id.; CMS Ex. 14.  CMS imposed a DPNA from June 12, 2024 through June 27, 2024 and a $2,140 per-day CMP from May 17, 2024 through June 27, 2024.  Id.  Finally, CMS stated that Petitioner would be prohibited from operating a Nurse Aide Training and Competency Evaluation Program (NATCEP) because a DPNA was imposed and the CMP imposed was more than $12,924.  Id. 

On April 25, 2025, Petitioner timely filed a hearing request.  An Acknowledgement Letter and Standing Order were issued on April 30, 2025.4   On May 29, 2025, CMS filed a partial motion to dismiss and Petitioner responded on June 18, 2025.  On July 29, 2025, CMS filed a prehearing exchange consisting of a prehearing brief (CMS Br.) and 41 proposed exhibits (CMS Exs. 1-41).  On September 2, 2025, Petitioner submitted a prehearing brief (P. Br.) and five proposed exhibits (P. Exs. 1-5). 

CMS did not object to Petitioner’s exhibits.  As result, I admit all of the Petitioner’s proposed exhibits into the record. 

Petitioner objected to CMS Exhibits 27, 32, and 40.  Petitioner objects on the ground of hearsay.  I am generally required to admit all evidence that is relevant and material.  42 C.F.R. § 498.60(b)(1).  I find that the surveyor’s notes are relevant and material to the matter at hand.  I will decide what weight to give to any hearsay evidence.  Therefore, I overrule Petitioner’s objections.  CMS Exhibits 1-41 are admitted into evidence. 

The parties agreed to have this case decided on the written record.  42 C.F.R. § 498.66. 

On May 29, 2025, CMS filed a partial motion to dismiss to the extent Petitioner is appealing issues that are not initial determinations such as the recalculation of Petitioner’s Star Rating and posting Petitioner’s deficiencies on the Nursing Home Compare website.  Petitioner argues in its pre-hearing brief that these actions violate the facility’s due process rights.  CMS asserts that initial determinations subject to appeal include findings of noncompliance that lead to the imposition of an enforcement remedy specified in 42 C.F.R. § 488.406, but that the Star Rating and the posting of deficiencies

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are not listed as an enforcement remedy in that regulation. See Generations at Regency Ctr., DAB No. 2950 (2019).  I grant CMS’s motion for the reasons CMS stated in its brief.  The only enforcement remedy imposed on Petitioner for which Congress provided the right to a formal Administrative Procedure Act (APA) hearing is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I); see 5 U.S.C. §§ 554(a), 556(a)-(b); 42 U.S.C. § 1320a-7a(c)(2). The requirement that CMS provide SNF survey information, including Statements of Deficiencies, to the public contains no similar right to a hearing.  See 42 U.S.C. § 1395i-3(g)(5). 

III. Issues

1) Whether Petitioner was in substantial compliance with the Medicare program requirements for SNFs at 42 C.F.R. § 483.25(d); and

2) If Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d), whether the $2,140 per-day CMP is reasonable and appropriate under the statutory and regulatory factors for setting a penalty amount.  

IV. Findings of Fact and Conclusions of Law

My findings of fact and conclusions of law are in bold and italics. 

1. On November 20, 2023, R2 fell out of his wheelchair and sustained a laceration to the bridge of his nose.  As a result of his fall, R2 was transferred to a local hospital and received two sutures.  This fall occurred after R2 had fallen on 12 previous occasions at the facility within 10 weeks.  It also happened in spite of the facility being aware that R2 required heightened supervision. 

R2, a 78-year-old man, had multiple diagnoses including muscle weakness, dementia, tremors, and severe cognitive impairment.  CMS Ex. 26.  R2 was admitted to the facility following multiple falls at home.  CMS Ex. 1 at 6; CMS Ex. 18 at 4. 

Petitioner implemented a fall plan for R2.  CMS Ex. 26.  R2’s care plan stated that the resident is at risk for falls related to muscle weakness, impaired cognition, and history of falling and diagnosis of tremors, dementia, anxiety, visual impairment and psychotropic medication, poor safety awareness and spontaneous.  CMS Ex. 1 at 6; CMS Ex. 26 at 52.  The plan provided for an approach that included 1 or more staff assistance.  CMS Ex. 1 at 6; CMS Ex. 26 at 57.  An update on March 9, 2024, noted that R2 was impulsive and noted that due to cognitive impairment, R2 doesn’t remember not to get up without assistance.  CMS Ex. 1 at 7; CMS Ex. 26 at 52.  The note further states that staff have exhausted all interventions and monitor the resident frequently.  CMS Ex. 1 at 7; CMS

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Ex. 26 at 52.  A November 3, 2023 fall risk assessment for R2 showed a score of 20, high risk for falls.  CMS Ex. 1 at 7; CMS Ex. 26 at 1-2.  

The facility’s Fall Prevention and Management Policy states that the “purpose of the policy is to support the prevention of falls by implementation of a preventative program that promotes the safety of residents based on care processes that represent the best ways we currently know of preventing falls.”  CMS Ex. 21 at 1.  Among other things, the policy stated that if current interventions are ineffective, the facility shall re-evaluate as needed to promote safety.  CMS Ex. 21 at 2. 

R2 had 20 documented falls from August 27, 2023 through April 17, 2024.  CMS Ex. 24.  Twelve of those falls were documented prior to the fall on November 20, 2023.  Id. 

On November 20, 2023, R2 was sitting in a wheelchair at the nurse’s station and fell asleep.  CMS Ex. 1 at 1; CMS Ex. 25 at 1.  R2 leaned forward while asleep and fell from his wheelchair.  CMS Ex. 1 at 1-2; CMS Ex. 25 at 1.  The nurse on duty evaluated R2 and noted a small laceration on his nose and a complaint of head pain.  CMS Ex. 1 at 2; CMS Ex. 25 at 1.  R2 was transferred to a hospital and received two sutures on the bridge of his nose.  CMS Ex. 25 at 1. 

V9, a certified nursing assistant (CNA), stated that R2 was trying to get out of bed between 5:30 a.m. and 6:00 a.m. on November 20, 2023.  CMS Ex. 1 at 2; CMS Ex. 25 at 1; CMS Ex. 27 at 4.  V9 said they were bringing R2 from room to room with them and left R2 in his wheelchair at the nursing station to go help another resident.  CMS Ex. 1 at 2; CMS Ex. 25 at 1.  V9 said R2 fell asleep at the nurse’s station and fell forward out of the wheelchair onto the floor.  CMS Ex. 1 at 2; CMS Ex. 25 at 1.  V10, a licensed practical nurse (LPN), described the incident similarly to the surveyor and to V9, saying that R2 was at the nurse’s station in his wheelchair when he fell asleep and fell forward to the floor.  CMS Ex. 1 at 2; CMS Ex. 25 at 2. 

When the surveyor visited the facility on May 17, 2024, R2 was unable to recall the fall from November.  CMS Ex. 1 at 3.  V7, a registered nurse (RN), stated that R2 is at a high risk for falls and that he needs one person assist for ambulating.  Id.  V7 stated that R2 will fall if he walks by himself.  Id.  V7 also stated that she would not leave R2 by himself at the nurse’s station without watching him.  Id.  She also stated that someone needs to be visually supervising him because he wants to get up and can’t ambulate alone.  Id. 

The surveyor also spoke with the Director of Nursing (DON) about the report stating that R2’s fall was witnessed.  CMS Ex. 1 at 3; CMS Ex. 27 at 5.  The DON said she thought V9 saw R2 fall since V9 “and V10 said they saw R2 fall.”  CMS Ex. 1 at 5; CMS Ex. 27 at 5.  However, V9 explained that she had taken R2 on her rounds with her until she had to attend to another resident.  CMS Ex. 1 at 4; CMS Ex. 25 at 1.  As a result, she left R2

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at the nurse’s station with V10.  CMS Ex. 27 at 4.  V9 said she was in the dining room when she heard a loud noise and when she went back to R2, he was on the floor.  CMS Ex. 1 at 4; CMS Ex. 25 at 1.  V9 told the surveyor she did not see R2 fall.  CMS Ex. 1 at 4; CMS Ex. 27 at 4.  V10 said she and V9 rotated on and off watching R2.  CMS Ex. 1 at 4; CMS Ex. 27 at 6.  She also said that on November 20, 2023, V9 left R2 at the edge of the nursing station to check on another patient in the dining room.  CMS Ex. 1 at 4; CMS Ex. 27 at 6.  V10 said she was at the other end of the nursing station and that she turned to ask V8 a question and they heard a boom.  CMS Ex 27 at .  They turned around and saw R2 on the floor.  CMS Ex. 1 at 4; CMS Ex. 27 at 6.  V10 told the surveyor she did not see R2 fall.  CMS Ex. 1 at 4; CMS Ex. 27 at 6. 

The surveyor spoke again with the DON who said she thought both V9 and V10 saw R2 fall.  CMS Ex. 1 at 5; CMS Ex.27 at 5.  The DON said she believed R2 fell because neither V9 nor V10 was close enough to R2 to prevent the fall.  CMS Ex. 1 at 5; CMS Ex. 27 at 5.  She explained that the nurse that was by him was on the other side of the nursing station desk.  CMS Ex. 1 at 5; CMS Ex. 27 at 5.  The DON also explained to the surveyor that the facility does not have a policy on high fall risk residents or a policy on monitoring residents.  CMS Ex. 1 at 6; CMS Ex. 27 at 6.  She explained that supervision is embedded in everything the facility does.  Id. 

2. On May 31, 2024, R1 fell out of her wheelchair and sustained a laceration over her left eyebrow.  As a result of her fall, R1 was transferred to a local hospital and received four sutures. 

R1 was a 94-year-old woman who was admitted to the facility with diagnoses that included dementia and severe cognitive impairment, osteoporosis, weakness, and a history of falling.  CMS Ex. 38 at 2, 102.  R1 was reliant on a wheelchair for mobility.  Id. at 5.  R1 was also of short stature and was to be seated at a lower dining table.  CMS Ex. 3; CMS Ex. 19 ¶ 23. 

On May 31, 2024, R1 participated in a group activity and was then transported by the activity aid (V10)5  to the dining room.  CMS Ex. 3 at 2.  V10 stated that they placed R1 at the dining table but could not remember if they locked both wheels of her wheelchair.  Id.; CMS Ex. 37 at 2.  V10 stated that when she returned to the dining room, R1 had already fallen.  CMS Ex. 3 at 2; CMS Ex. 37 at 2.  V12, an RN, heard R1 shout and observed her lying on the floor.  CMS Ex. 3 at 2; CMS Ex. 37 at 2.  V12 said he moved the wheelchair and repositioned R1.  CMS Ex. 3 at 2; CMS Ex. 37 at 2.  V12 noted that the wheelchair was locked only on one side and that R1 had a small cut above her left eyebrow.  Id. 

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R1’s fall assessment was documented at score of 15, a high risk for falls.  CMS Ex. 3 at 3; CMS Ex. 38 at 6.  Her care plan stated that R1 was at a risk for falls related to impaired judgment, confusion, history of falling, muscle weakness, dementia, anxiety, dermatitis, back pain, HTN, GERD, glaucoma, and vertigo.  CMS Ex. 38 at 102.  The care plan stated that R1’s wheelchair was to be locked at all times, that she should be observed frequently, and that she should be in a supervised area when out of bed.  CMS Ex. 38 at 102, 104; CMS Ex. 3. 

The surveyor spoke with R1 about the incident, but she was not able to communicate well and did not remember the event.  CMS Ex. 3 at 4; CMS Ex. 40 at 14.  The surveyor also spoke with V4, an LPN, who was aware of the incident on May 31, 2024.  CMS Ex. 3 at 4-5; CMS 40 at 14.  She stated that on that date, the activity aide forgot to lock the wheelchair and R1 fell.  CMS Ex. 3 at 4-5; CMS 40 at 14.  V4 said R1 moves around a lot and can fall when her wheelchair is not locked.  CMS Ex. 3 at 4-5; CMS 40 at 14.  V4 also said that there should be supervision in the dining room but that no one was supervising R1 in the dining room on May 31, 2024.  CMS Ex. 3 at 5; CMS 40 at 14.  

The activity aide explained to the surveyor that it was not until after R1’s fall that she was shown how to properly lock the wheelchair wheels.  CMS Ex. 3 at 5-6; CMS Ex. 40 at 16-17.  The surveyor asked the activity aide if anyone was supervising the residents in the dining room and she said no.  CMS Ex. 3 at 6; CMS Ex. 40 at 16.  She explained that she was bringing the residents into the dining room from their activity but did not stay in the dining room.  CMS Ex. 3 at 6; CMS Ex. 40 at 16.  

The surveyor also spoke with V11 who said she takes care of R1 every day.  CMS Ex. 3 at 6; CMS Ex. 40 at 17.  She said on May 31, 2024, she instructed the activity aide to seat R1 at the special, lower table.  CMS Ex. 3 at 6-7; CMS Ex. 40 at 17.  V11 said shortly after she gave that instruction, R1 fell.  CMS Ex. 3 at 7; CMS Ex. 40 at 17.  She said the nurses noted that R1 was at the wrong table and did not have her wheels locked.  CMS Ex. 3 at 6; CMS Ex. 40 at 17.  V12, an RN who responded to R1 after the fall, confirmed that R1’s wheelchair should have been locked and she should have been seated at the small table.  CMS Ex. 3 at 7-8; CMS Ex. 40 at 18.  When the surveyor spoke with V13, a CNA, she stated that she did not believe anyone was in the dining room supervising R1 when she fell.  CMS Ex. 3 at 9; CMS Ex. 40 at 18.  

3. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) because it did not take all reasonable steps to provide the supervision and assistance necessary to prevent a foreseeable accident and, as a result, both R1 and R2 fell and were injured. 

The Social Security Act requires SNFs to “care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident” and “provide services to attain or maintain the highest practicable

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physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.”  42 U.S.C. § 1395i-3(b)(1)(A), (2).  The services provided to residents “must meet professional standards of quality.”  42 U.S.C. § 1395i-3(b)(4). 

In furtherance of these stated requirements, the Secretary promulgated the “quality of care” requirements at 42 C.F.R. § 483.25.  One requirement imposes specific obligations on a facility related to supervision and accident prevention as follows:6 

The facility must 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. 

42 C.F.R. § 483.25(d). 

Section 483.25(d)(1) requires a facility to address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Me. Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)).  The provisions of section 483.25(d) “come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.”  Meridian Nursing Ctr., DAB No. 2265 at 9 (2009), aff’d sub. nom. Fal‑Meridian, Inc. v. U.S. Dep’t of Health & Hum. Servs., 604 F.3d 445 (7th Cir. 2010).  Further, section 483.25(d)(2) requires that a facility 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”), aff’g Woodstock Care Ctr., DAB No. 1726 (2000)).  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.

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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). 

In the present case, R2 had an unwitnessed fall on November 20, 2023, which caused injuries to R2 resulting in a trip to the hospital and two sutures.  CMS Ex. 1; CMS Ex. 25; Joint Stip. at 2.  At the time of the fall, R2 was a 78-year-old male.  R2 had many diagnosed conditions, including muscle weakness, dementia, and severe cognitive impairment. 

R1 had an unwitnessed fall on May 31, 2024, which caused injuries to R1 resulting in a trip to the hospital and four sutures.  CMS Ex. 3; CMS Ex. 37; Joint Stip. at 3.  At the time, R1 was a 94-year-old female.  R1 had many diagnosed conditions, including dementia and severe cognitive impairment, osteoporosis, weakness, and a history of falling.  

These basic facts are not in dispute.  

However, the following are disputed matters that I must decide in this case: 

1) Whether it was foreseeable that R1 and R2 were at risk for falls; and

2) Did Petitioner provide adequate supervision to prevent R1’s and R2’s accidents.

A. Foreseeability of R2’s Fall

The record is clear that Petitioner knew that R2 was at extreme risk for falls.  R2 fell twelve times at the facility in the ten weeks prior to the November 20, 2023 fall.  CMS Ex. 24.  R2 fell again 10 days after his fall that required sutures.  Id. 

Along with R2’s condition, Petitioner’s acknowledgment of R2’s significant risk of falling from the outset of his stay at the facility, coupled with twelve falls that occurred within ten weeks, is sufficient to find that it was foreseeable that R2 would fall again if left alone.  

It is significant that Petitioner did not submit any written direct testimony from the facility staff interviewed by the surveyor to refute the surveyor’s testimony.  Therefore, I credit the surveyor’s statements as to what staff conveyed to the surveyor.  See Beatrice State Developmental Ctr., DAB No. 2311 at 17, 18 (2010) (pointing out that the facility could have but did not present employee testimony that refuted the statements the surveyors claimed they made); Omni Manor Nursing Home, DAB No. 1920 at 11 (2004) (statements of facility employees to the surveyors may be admitted in an administrative proceeding and may constitute substantial evidence).

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Based on the record evidence, it was clearly foreseeable that R2 would fall again if no one was around to prevent him from falling. 

B. Adequate Supervision of R2

Petitioner primarily disputes that the lack of supervision that occurred during the November 20, 2023 fall is sufficient for there to be a deficiency in this case.  P. Br. 9-12.  Petitioner argues that its staff provided the required supervision and that placing R2 at the nurse’s station ensured that he had the best possible chance of avoiding a fall.  P. Br. at 10-12. 

R2 fell on November 20, 2023.  The fall occurred when R2 was left at the nursing station, so the nurse who had been assisting him could help another resident.  However, the nurses at the station attended to other tasks behind the desk and at the other end of the station.  CMS Ex. 1; CMS Ex. 25; CMS Ex. 27. 

R2 had a care plan that had 15 different revisions in response to his multiple falls and yet he continued to fall.  CMS Ex. 18 at 5.  The facility’s falls prevention policy stated that if current interventions are ineffective, the facility shall re-evaluate as needed to promote safety.  Id. at 4; CMS Ex. 21 at 2; see Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017).  The surveyor testified that a high fall risk resident should be subject to supervision by staff.  CMS Ex. 18 at 4.  She further noted that if other interventions fail, a facility should provide one-on-one staff care to a resident who has a high fall risk to ensure their safety.  Id. 

Whatever the care plan may have stated, R2 was left unsupervised at the nurse’s station.  The facility was aware that  R2 had a history of falling, and there was a high likelihood of R2 falling again. 

Therefore, I sustain CMS’s determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d).  R2’s fall was foreseeable, and Petitioner failed to provide adequate supervision for R2 to prevent accidents.  The noncompliance posed more than a minimal risk to resident health and safety. 

C. Foreseeability of R1’s Fall

The record is clear that R1 was at risk for falls.  It was known that R1 used a wheelchair and that she was required to be seated at a low table.  CMS Ex. 19.  It is also clear that a resident using a wheelchair should have their wheels locked.  CMS Ex. 34; CMS Ex. 37. 

Petitioner does not dispute any of the evidence presented by CMS with regard to R1’s fall in its briefs or its filings.  See P. Br.  R1 was placed in the dining room without her

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wheelchair wheels locked and not at the low table.  As a result, it is clear that Petitioner failed to ensure that environment remained as free of accident hazards as possible and the fall was, therefore, foreseeable. 

D. Adequate Supervision of R1

Petitioner does not make any dispute about the adequate supervision of R1 in its briefing.  P. Br.  The parties’ joint stipulation agrees that R1 fell while unsupervised.  Joint Stip. at 3. 

R1 fell on May 31, 2024.  The fall occurred when R1 was left at the incorrect dining table with her wheelchair improperly locked, contrary to Petitioner’s wheelchair policy.  CMS Ex. 34.  Further, the R1 was unsupervised at the time she fell out of her wheelchair.  As a result, it is clear that R1 was not provided with adequate supervision at the time of her fall. 

Therefore, I sustain CMS’s determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d).  R1’s fall was foreseeable, and Petitioner failed to provide an environment free of hazards and adequate supervision for R1 to prevent accidents.  The noncompliance at least posed a risk for more than minimal harm. 

4. The $2,140 per-day CMP is appropriate and reasonable under applicable statutory and regulatory factors. 

CMS imposed a per-day CMP in the amount of $2,140 on Petitioner.  CMS Ex. 16.  The CMP was imposed from May 17, 2024 through June 27, 2024.  Id.  When determining whether a CMP amount is appropriate, 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) the 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.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i‑3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f).  The factors listed 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.  See 42 U.S.C. §§ 1320a‑7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I). 

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 sections 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), (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).  However, unless a facility contends

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that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002). 

In the present matter, Petitioner did not provide any arguments as to the amount of the CMP that was imposed.  Petitioner’s brief only argues that the CMP should not be imposed because the facility was in compliance with the conditions of participation.  Therefore, I uphold the $2,140 per-day CMP from May 17, 2024 through June 27, 2024.  However, I will briefly discuss the factors below. 

Facility’s History of Non-Compliance:  CMS does not specifically argue that Petitioner’s history of noncompliance supports the CMP imposed.  However, Petitioner was noncompliant with program requirements for surveys conducted in 2021, 2022 and 2023.  CMS Ex. 9.  This history supports the CMP imposed. 

Scope and Severity of Deficiencies and Relationship Between Deficiencies:  CMS argues that the seriousness of the offense supports the CMP.  CMS Br. at 15-16.  I conclude that the record supports a finding that the deficiency resulted in harm to R1 and R2.  This provides strong support for the CMP amount imposed. 

Culpability:  Petitioner is culpable in this case, and this factor supports the CMP amount.  Petitioner was aware that R2 had a long history of falls and failed to take actions that could have prevented the fall on November 20, 2023.  The same is true for R1.  The facility knew she needed to be placed at a lower table with her wheelchair wheels locked and provided adequate supervision.  As a result, harm was suffered by both R1 and R2.  

Financial Condition of the Facility:  Petitioner presents no evidence of its financial condition.  Therefore, this is not a factor requiring further consideration. 

CMP Amount:  A per-day CMP of $2,140 is in the lower middle of the penalty range for a per-day CMP (i.e., $133 to $8,033).  See 45 C.F.R. § 102.3 (2024); 89 Fed. Reg. 64,815, 64,824 (Aug. 8, 2024).  Such a penalty is appropriate based on the factors considered above. 

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V. Conclusion

For the reasons set forth above, I sustain CMS’s determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) and that a $2,140 per‑day CMP from May 17, 2024 through June 27, 2024 is fully supported by the relevant statutory and regulatory factors in this case.  I further conclude that the enforcement remedies imposed are reasonable.