Northeast Center for Rehabilitation and Brain Injury, DAB CR6876 (2026)

DECISION

Petitioner, Northeast Center for Rehabilitation and Brain Injury (Petitioner or facility), challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with the requirements at 42 C.F.R. § 483.25(d)(1), (2).  Petitioner also challenges the imposition of a per-instance civil money penalty (CMP) of $25,435.  For the reasons set forth below, I find that Petitioner failed to substantially comply with the Medicare participation requirements found at 42 C.F.R. § 483.25(d)(1), (2), and that the per-instance CMP imposed for that deficiency is reasonable.

I.  BACKGROUND AND PROCEDURAL HISTORY

Petitioner is a skilled nursing facility located in Lake Katrine, New York.  On November 13, 2024, surveyors from the New York Department of Health (state agency) conducted a complaint investigation and recertification survey of Petitioner’s facility that ended on November 21, 2024.  CMS Ex. 1 at 1; CMS Ex. 2 at 1.

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Based on the state agency’s findings, CMS determined that the facility was not in substantial compliance with, among other requirements, 42 C.F.R. § 483.25(d)(1), (2) (Tag F689 (Free of Accident Hazards/Supervision/Devices), cited at scope and severity (S/S) level G, (isolated instance of actual harm that is not immediate jeopardy).  CMS Ex. 2 at 1.  CMS imposed a per-instance CMP of $25,435 for this deficiency.  Id.1

Petitioner timely requested a hearing before an administrative law judge (ALJ).  Consistent with my Standing Prehearing Order (Prehearing Order), CMS timely filed a Pre-Hearing Brief and Motion for Summary Judgment (CMS Br.) with 21 exhibits (CMS Exs. 1-21), which included the written declaration of one proposed witness.  Petitioner timely filed it Pre-Hearing Brief in Opposition to Respondent’s Motion for Summary Judgment (P. Br.), along with three exhibits, which included the written declaration of one proposed witness.  CMS filed a Rebuttal to Petitioner’s Pre-Hearing Brief (CMS Rebuttal).

Neither party objected to the other’s proposed exhibits.  In the absence of any objections, I admit into evidence CMS’s Exs. 1-21 and Petitioner’s Exs. 1-3.  Prehearing Order ¶ 9; Civ. Remedies Div. P. § 14(e).  Nor did either party request to cross-examine the other’s proposed witness.  Prehearing Order ¶ 11.  Because neither party seeks to cross-examine any witness, and the witnesses’ direct testimonies are already part of the record, an in-person hearing is unnecessary.  Prehearing Order ¶ 12.  I decide this case on the written record, meaning the parties’ written submissions and arguments, and without considering whether the standard for summary judgment is met.  Prehearing Order ¶ 13; Civ. Remedies Div. P. § 19(d).  I deny the CMS’s motion for summary judgment as moot.

II.  ISSUES

1. Whether Petitioner was in substantial compliance with the Medicare participation requirements at 42 C.F.R. § 483.25(d)(1), (2) (Tag F689).
2. If Petitioner was not in substantial compliance, whether the $25,435 per-instance CMP imposed on Petitioner is reasonable.

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III.  JURISDICTION

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii), 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).

Petitioner disagrees and argues that pursuant to the Seventh Amendment and as a regulated entity on which the federal government seeks to impose a CMP, this matter should be adjudicated by an Article III court.  P. Br. at 6-8.  In support, Petitioner states that the Supreme Court’s decision in SEC v. Jarkesy, 603 U.S. 109 (2024), held that when an agency imposes a CMP for regulatory noncompliance, the CMP functions as a common law remedy.  Petitioner contends that in this case the codified claim of action closely resembles a common law claim for negligence.  Therefore, according to Petitioner, it falls outside the narrow public‑rights exception set forth in Jarkesy and must be adjudicated in an Article III court.  Id.

CMS argues that neither the Seventh Amendment nor Jarkesy limit review in this administrative forum.  CMS Br. at 11.  CMS explains that the Board has consistently held that neither the Board nor ALJs may invalidate statutes or regulations based on Supreme Court decisions such as Jarkesy and otherwise lack authority to consider constitutional challenges and, as such, Petitioner’s arguments are meritless in the context of this administrative hearing.  Moreover, CMS argues that Petitioner’s Jarkesy‑based objections were already addressed by a district court when it denied Petitioner’s motion for a preliminary injunction.  Id.  According to CMS, the court explained that Petitioner’s constitutional challenges may be raised before the U.S. Court of Appeals for the Second Circuit after the Departmental Appeals Board resolves this matter, consistent with the Board’s interpretation.  CMS Rebuttal at 5-6.

CMS is correct that “[t]he Board has consistently held that ALJs may not declare a statute or regulation to be unconstitutional and refuse to apply or follow the statute or regulation on that basis.”  Fady Fayad, M.D., DAB No. 2266, at 14 (2009), aff’d, Fayad v. Sebelius, 803 F. Supp. 2d 699 (E.D. Mich. 2011).  And, even more specifically to Petitioner’s arguments, the Board explained in Oak Ridge Center, DAB No. 3195 (2025) that the Jarkesy Court did not hold that every agency’s attempt to impose and enforce CMPs is “a common law suit in all but name” requiring adjudication in Article III courts.  Oak Ridge Center, DAB No. 3195 at 32.  “On the contrary, the Court acknowledged the long-established ‘public rights exception,’ under which ‘Congress may assign [a] matter for decision to an agency without a jury, consistent with the Seventh Amendment.”  Id.  The Board highlighted that the Court did not decide whether that exception applies or does not apply to CMPs imposed for noncompliance with Medicare participation requirements.  Id.

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Because the Jarkesy Court did not decide the applicability of its decision to this statutory and regulatory scheme, and consistent with the Board’s long line of cases that limit an ALJ’s review of constitutional issues in these administrative proceedings, I do not have the authority to address Petitioner’s constitutional challenges to my jurisdiction in this matter.2

IV.  DISCUSSION

1. Statutory and Regulatory Background

The Act sets forth requirements for skilled nursing facilities (SNFs) to participate in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to 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. Parts 483 and 488.  To participate in the Medicare program, an SNF must maintain substantial compliance with program requirements.  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.  A deficiency is a violation of a participation requirement established at sections 1819(b), (c), and (d) of the Act, 42

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U.S.C. § 1395i-3(b), (c), and (d), or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B.  Noncompliance means any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301.  A facility that violates a statutory or regulatory requirement is not subject to enforcement remedies if the violation does not pose a risk for more than minimal harm.  42 C.F.R. §§ 488.402(b), 488.301.

The Secretary contracts with state survey agencies to survey SNFs to determine whether they are in substantial compliance.  Act § 1864(a), 42 U.S.C. § 1395aa(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than 15 months elapsing between surveys, and must be surveyed more often, if necessary to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A), 42 U.S.C. § 1395i-3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4), 42 U.S.C. § 1395i-3(g)(4).

The Act also authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with program participation requirements.  Act § 1819(h)(2), 42 U.S.C. § 1395i-3(h)(2).  The regulations specify the enforcement remedies that CMS may impose.  42 C.F.R. § 488.406.  Among other enforcement remedies, CMS may impose a per-instance CMP for each instance of the SNF’s noncompliance.  42 C.F.R. § 488.430(a).  Relevant here, the authorized range for a per-instance CMP is $2,670 to $26,685.  42 C.F.R. §§ 488.408(d), (e), 488.438; 45 C.F.R. § 102.3; 89 Fed. Reg. 64,815, 64,824 (Aug. 8, 2024).

If CMS imposes an enforcement remedy based on a noncompliance determination, then the facility may request a hearing before an ALJ to challenge the noncompliance finding and enforcement remedy.  Act § 1128A(c)(2), 42 U.S.C. § 1320a-7a(c)(2); Act § 1819(h)(2)(B)(ii), 42 U.S.C. § 1395i(h)(2)(B)(ii); Act § 1866(h)(1), 42 U.S.C. § 1395cc(h)(1); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  The hearing before an ALJ is a de novo proceeding.  CarePlex of Silver Spring, DAB No. 1683 (1999) (holding that ALJs hold de novo hearings based on issues permitted under the regulations and ALJ review is not a quasi-appellate review).  A facility has a right to appeal a “certification of noncompliance leading to an enforcement remedy.”  42 C.F.R. § 488.408(g)(1); see also id. §§ 488.330(e)(3), 498.3(b)(13).  However, CMS’s choice of remedies and the factors CMS considered when choosing remedies are not subject to review.  Id. § 488.408(g)(2).

In regard to burden of proof, CMS must make a prima facie case that the SNF failed to comply substantially with federal participation requirements and, if this occurs, the SNF must, in order to prevail, prove substantial compliance by a preponderance of the evidence.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997), aff’d sub nom. Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. Civ. A-98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); Batavia Nursing & Convalescent Ctr., DAB No.

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1904 (2004), aff’d sub nom. Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001).

2. Findings of Fact, Conclusions of Law and Analysis

My findings of facts and conclusions of law are in bold.

1. Resident 234 (R234) was diagnosed with multiple conditions that limited R234’s physical and cognitive abilities.  R234’s care plan required a two-person assist with all transfers.  On June 27, 2024, Certified Nursing Assistant (CNA) 25 attempted to transfer R234 from a shower trolley to bed without assistance.  During the transfer R234 rolled to the floor between the bed and trolley, struck the back of her head and sustained a scalp laceration.  R234 was transferred to the hospital for further treatment, including stapling of the laceration, and returned to the facility the same day.

The basic facts are not in dispute.  R234 was admitted to the facility on January 12, 2024.  CMS Ex. 3 at 1.  Her diagnoses included traumatic subdural hemorrhage with loss of consciousness of unspecified duration subsequent encounter; restlessness and agitation, other personality and behavioral disorders due to known physiological condition; muscle weakness; aphasia; dysarthria and anarthria; apraxia; cognitive communication deficit; difficulty in walking; and other lack of coordination.  Id. at 2.

R234’s care plan required “2 assist with all cares/transfers due to agitation.”  CMS Ex. 10 at 1.  R234 was identified as a risk for fall and interventions included placing the call bell within reach, floor mats when in bed, and “low low bed; may go from bed to floor mat[] without injury.”  Id.; see also CMS Ex. 6 at 7, 9 (Fall Risk Assessments).  In regard to bathing, R234 was dependent on staff.  CMS Ex. 10 at 2.  She required a one-person assist to shower, and a two-person assist for tub/shower transfer.  Id.  R234 also required bed repositioning, requiring one person to roll her left and right every 2-3 hours, and a two-person assist with chair to bed and bed to chair transfers.  Id. at 4-5.  R234 required a two-person assist with all toileting due to agitation.  Id. at 5.  Attempts to walk, toilet transfers, sit to stand transfers, and lying to sit transfers were not attempted due to safety concerns.  Id. at 4-5.

On June 27, 2024, after showering R234, CNA 25 used a shower trolley to transfer R234 back to her room.  CMS Ex. 14 at 10.  CNA 25 called for help, initially reporting the resident had rolled herself over the trolley’s railings, fallen on the floor, and struck her head.  Id. at 3, 8.  CNA 25 observed bleeding from the back of the resident’s head.  Id. at 3, 10.  A nursing supervisor responded, initiated a code, and assessed the resident.  Id. at 3.  The resident’s physician was notified and ordered her transfer to a hospital for evaluation and treatment.  Id.  R234 required staples for the head injury, but no other significant findings were noted.  CMS Ex. 15 at 9.  Following an investigation, it was

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determined that the resident fell while CNA 25 was attempting to transfer the resident from the trolley to the bed without assistance.  CMS Ex. 14 at 4, 10.

CNA 25 stated she was aware of R234’s current plan of care, which required a “mechanical lift/two assist,” but did not follow it and did not request help.  Id. at 4.  CNA 25 stated she believed she could safely transfer R234 from the trolley to the bed on her own.  Id.  CNA 25 was suspended pending the investigation and ultimately terminated based on the investigative findings.  Id.

2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2) (Tag F689) because it did not take all reasonable steps to provide the supervision and assistance necessary, including following R234’s care plan and the facility’s policy, to prevent a foreseeable accident, and, as a result of the facility’s non-compliance, R234 suffered actual harm.

Medicare program requirements for SNFs include 42 C.F.R. § 483.25, which states that quality of care “is a fundamental principle that applies to all treatment and care provided to facility residents” and that a facility “must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices . . . .”  Subsection 483.25(d) imposes specific obligations upon a facility related to accident hazards and accidents, as follows:

(d) Accidents.  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.

The quality-of-care regulations require that a facility 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.”  Maine Veterans’ Home – Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care with respect to preventing accidents).  The provisions of § 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 10 (2009), aff’d, Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445 (7th Cir. 2010).

The quality-of-care regulation 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.,

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DAB No. 2115 at 5 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”)).  Although a facility has the flexibility to choose the methods of supervision and assistance used to prevent accidents, it must also “provide supervision and assistance devices that reduce known or foreseeable accident risks to the highest practicable degree, consistent with accepted standards of nursing practice.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017) (Citing Century Care of Crystal Coast, DAB No. 2076 at 6-7 (2007), aff’d, Century Care of Crystal Coast v. Leavitt, 281 F. App’x 180 (4th Cir. 2008)).

1. Petitioner failed to ensure implementation of R234’s care plan and its Shower Trolley Transfer Policy.

It was a foreseeable risk that R234 could fall or experience a similar accident if she was not transferred from the shower trolley to bed by two staff members.  R234 was identified as a fall risk, and her care plan expressly required “2 assist with all cares/transfers due to agitation.”  CMS Ex. 10 at 1; see also id. at 4-6.  More specifically, with respect to tub and shower transfers, R234’s care plan noted she was dependent on helpers to perform the function and required a “[t]wo person” transfer.  Id. at 2.

In addition, at the time of the incident, the facility had a “Shower Trolley Transfer” policy in place.  P. Ex. 2.  The policy stated that “[t]o assure the safety of the resident neighbor, this transfer requires a two person transfer from bed to shower trolley or shower trolley to bed at all times.”  Id. at 1.  The procedure requires one person to stand on one side of the bed, and another to stand on the side of the shower trolley, then using a draw sheet, transfer the resident to the opposite surface.  Id.

There is no dispute that CNA 25 failed to follow the resident’s care plan as well as the facility’s policy when she attempted to transfer R234 without assistance.  As the Board has repeatedly explained, when a facility’s policy or a resident’s care plan requires staff to take specific actions, those requirements reflect the facility’s own determination of what is necessary to attain or maintain the resident’s “highest practicable physical, mental, and psychosocial well-being” under the overarching quality of care requirement.  Heritage Plaza, DAB No. 2829 at 6 (citing Azalea Court, DAB No. 2352 at 9 (2010), aff’d, Azalea Court v. U.S. Dep’t of Health & Human Servs., 482 F. App’x 460 (11th Cir. 2012); see also Bivins Memorial Nursing Home, DAB No. 2771 at 9 (2017) (citing Life Care Ctr. of Bardstown, DAB No. 2233 at 21-22 (2009)); Sheridan Health Care Ctr., DAB No. 2178 at 32 (2008) (observing that a facility’s adoption of a resident care policy supports an inference that the policy was “necessary to attain or maintain resident well-being”).  Accordingly, the facility’s failure to follow its own policy and the resident’s care plan supports a finding of noncompliance with 42 C.F.R. § 483.25(d)(1), (2).

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Petitioner argues that, these undisputed facts notwithstanding, it was not in violation of 42 C.F.R. § 483.25(d) because the regulation requires only that a facility take the steps necessary to reduce the foreseeable risk of an accident to the highest degree practicable, which Petitioner asserts it did.  P. Br. at 3 (quoting CMS Br. at 7).  Petitioner states that R234’s care plan requiring two-person assistance was in place and appropriate, as was its shower trolley policy.  Id. at 4.  Petitioner further states that it was adequately staffed at the time of accident.  Id.  Regarding CNA 25, Petitioner states she was background-checked, properly trained, and, as result of her failure to follow the resident’s care plan and facility policy, was immediately terminated.  Id.  Petitioner emphasizes that CMS has not stated “what [it] failed to do in terms of taking the necessary preventative steps to avoid the accident[.]”  Id.  In simple terms, Petitioner proffers that it did everything right to prevent the accident and places the blame on the CNA alone.  Thus, according to Petitioner, CMS’s attempt to punish the facility, despite the facility having done nothing wrong, is tantamount to inappropriately imposing strict liability.  Id. at 5; see also id. at 3 (asserting CMS advocates an outcome-determinative approach, regardless of the precautions a facility has taken).

Petitioner is responsible for its employee’s actions.  This is the standard set by the Act itself and Petitioner’s attempt to malign the standard as impermissibly imposing “strict liability” is thus unavailing.  Section 1128A(l) of the Act, made applicable by § 1819(h)(2)(B)(ii)(I) of the Act to cases like this one, provides, “[a] principal is liable for penalties . . . under this section for the actions of the principal’s agent acting within the scope of the agency.”  42 U.S.C. § 1320a-7a(l); see also 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I).  Consistent with this statutory framework, the Board has long held that a facility cannot disavow responsibility for the actions of its employees as Petitioner attempts to do here.  Royal Manor, DAB No. 1990, at 12 (2005) (stating that a facility acts through its staff, and is correspondingly responsible for their actions as employees); Emerald Oaks, DAB No. 1800, at 7 n.3 (2001) (employees are the agents of their employers, “empowered to make and carry out daily care decisions”).  Accordingly, Petitioner’s attempt to establish substantial compliance by shifting blame to the CNA is unpersuasive.

Nor is the burden on CMS to show what more Petitioner could have done to prevent the accident that occurred here.  Instead, CMS having established its prima facie case, the burden shifts to Petitioner to show that it was in substantial compliance, which it has failed to do.  See, e.g., Hillman Rehab Ctr., DAB No 1611 at 8.

Moreover, I find the record belies Petitioner’s contentions that there were no other reasonable steps it could have taken to prevent the accident that occurred here.  At the very minimum, Petitioner has not proffered any measures it had in place to ensure its shower trolley transfer policy was being followed by its staff.  For example, does the facility have a formal process to ensure that two staff members are available to operate a shower trolley at the time of transfer, or does it simply leave staff to search for someone

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who happens to be free?  See CMS Ex. 20 ¶ 24 (unrebutted testimony that the Administrator reported CNA 25 stated other staff were busy).  Furthermore, according to Petitioner, the accident occurred at a time when it was adequately staffed with four CNAs and three licensed practical nurses, for 37 residents.  P. Br. at 4; P. Ex. 3; P. Ex. 1 ¶ 8.  Yet, despite having sufficient staff on duty, the CNA was able to transfer the resident from the shower to her room on a shower trolley without any staff member intervening.  This occurred even though the facility’s policy (of which all staff were presumably aware) required two staff members for all shower‑trolley transfers.  This demonstrates a failure in the Petitioner’s implementation of its own policy.  Therefore, I disagree with Petitioner that it took all the reasonable measures necessary to provide supervision and assistive devices to minimize the risk of accident to which R234 was exposed.

Finally, the record supports Petitioner’s failure to implement its own policy and care-planned interventions put R234 at risk for more than minimal harm and, in fact, resulted in actual harm to the resident.  CMS Ex. 15 at 9.  Thus, I find Petitioner was not in substantial compliance with the requirements of 42 C.F.R. § 483.25(d)(1), (2).

3. A per-instance CMP of $25,435 is a reasonable CMP amount for Petitioner’s substantial noncompliance with 42 C.F.R. § 483.25(d)(1), (2).

To determine whether a CMP is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance, including repeat deficiencies; 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, but is not limited to, 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.

The Board has consistently held that there is a presumption “that CMS considered the regulatory factors [in 42 C.F.R. § 488.438(f)] in choosing a CMP amount and that those factors support the penalty imposed.”  Crawford Healthcare & Rehab., DAB No. 2738, at 19 (2016).  CMS has no responsibility to produce evidence concerning a particular factor unless the facility contends the factor does not support the CMP amount.  Liberty Commons Nursing & Rehab - Alamance, DAB No. 2070, at 18 n.16 (2007), aff’d, 285 F. App’x 37 (4th Cir. 2008) (per curiam).  Therefore, “the burden is on Petitioner to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.”  Copperas Cove LTC Partners, Inc., DAB No. 3049, at 43 (2021) (citing Good Shepherd Home for the Aged, Inc., DAB No. 2858, at 23 (2018).

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Except to assert that the facility was in substantial compliance, so no CMP should be imposed, Petitioner presents no argument or evidence to establish that a reduction is necessary to make the CMP amount reasonable.  RFH; P. Br.

Having considered the regulatory factors, I conclude that the CMP imposed in this case is reasonable.  The Petitioner’s non-compliance sustaining the per-instance CMP violation was serious and caused actual harm to a resident.  R234 was a vulnerable resident and was completely dependent on Petitioner’s staff for mobility and transfers.  Yet, despite the facility being adequately staffed at the time of the accident, CNA 25 attempted to transfer the resident without any assistance and, as a result, the resident suffered a head injury, which required sutures.  Moreover, Petitioner’s insistence that it was not responsible for the actions of its staff, and that there was nothing the facility could have done to prevent the accident that occurred here demonstrates a troubling lack of accountability and reflects an indifference to its overarching responsibility to protect its residents.  For these reasons, I find Petitioner culpable.  Petitioner has not offered any argument or evidence that the other regulatory factors, such as its history or financial condition, warrant a reduction to make the CMP reasonable.  Consequently, I find that the per-instance CMP imposed is reasonable.

Petitioner also challenged the imposition of the DPNA and termination, which did not go into effect, as well as the prohibition from offering a NATCEP for two years in its request for hearing.  RFH at 2; but see P. Br. (failing to mention the NATCEP prohibition).  To the extent Petitioner continues to challenge the prohibition, because I sustain the CMP, which is over the $13,343 threshold amount to trigger the NATCEP prohibition, I must also sustain the prohibition against conducting a NATCEP for two years.  Act § 1819(f)(2)(B), 42 U.S.C. § 1395i-3(f)(2)(B); 42 C.F.R. § 483.15(b), (f); 89 Fed. Reg. at 64,829.

V.  CONCLUSION

For the reasons set forth above, I sustain CMS’s initial determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2), and that a $25,435 per-instance CMP is reasonable.  CMS is required by law to prohibit Petitioner from having a NATCEP for two years.