Goldthwaite Health & Rehabilitation Center, DAB, CR6915 (2026)

DECISION

Goldthwaite Health & Rehabilitation Center (hereinafter referred to as “Goldthwaite” or “Petitioner”) challenges the Centers for Medicare & Medicaid Services (CMS) determination of substantial noncompliance with Medicare participation requirements.  Petitioner also challenges the imposition of a per instance civil money penalty (CMP) of $14,355. 

As explained below, the record supports the facility’s noncompliance with Medicare requirements.  Based on the evidence, I find that there are no disputes of material facts. Therefore, CMS’s motion for summary judgment is granted.  There is a legal basis for the imposition of enforcement remedies, and the per-instance CMP imposed by CMS is upheld. 

I. Background and Procedural History

Goldthwaite is a skilled nursing facility (SNF) located in Goldthwaite, Texas that participates in the Medicare program.  On January 24 and February 10, 2023, the Texas Health and Human Services Commission (state agency) completed surveys at Goldthwaite.  The January 24, 2023 survey found, and CMS later agreed, that the facility 

Page 2

was not in substantial compliance with the Medicare participation requirements at F0583 483.10(h)(1)-(3)(i)(ii) Personal Privacy/ Confidentiality of Records Tag F0583 and  F0880 -- S/S: D -- 483.80(a)(1)(2)(4)(e)(f) -- Infection Prevention & Control.  Both cited at scope and severity (s/s) level D.1  As a result of the February 10, 2023 survey, the state agency determined that Petitioner was not in substantial compliance with the Medicare participation requirements at 42 C.F.R. 483.25 Quality of Care Tag F684, also cited at S/S: D.  

CMS notified Petitioner of the noncompliance determination and the imposition of remedies by letter dated June 7, 2023.  CMS Ex. 1.  CMS imposed a per instance $14,355 CMP for the Tag F684 quality-of-care deficiency.  No remedies were imposed for the deficiencies cited during the January 24, 2023 survey.  

Petitioner filed a request for hearing on May 26, 2023 to contest the deficiency and penalty imposed as a result of the February 10, 2023 survey.  The case was assigned to me for hearing and decision. 

On August 30, 2023, CMS timely filed a prehearing exchange that included a combined prehearing brief and motion for summary judgment (CMS Br.) and 13 exhibits (CMS Exs. 1-13).  CMS identified three proposed witnesses. 

On November 3, 2023, Petitioner timely filed a Response to Respondent’s Motion for Summary Judgment and Prehearing Brief (P. Br.), along with 11 exhibits (P. Exs. 1-7, 9, 11-13).2  Petitioner identified four proposed witnesses.  In addition, Petitioner filed a request to cross-examine CMS’s proposed witnesses along with objections to CMS’s proposed exhibits. 

CMS filed a response to Petitioner’s objections on November 17, 2023. 

II. Admission of Exhibits

Because this is an administrative proceeding, evidence will generally be admitted if it is deemed relevant and material.  All evidence will be given the proper weight and consideration.  

Page 3

Petitioner made the following objections to CMS’s Exs.: 

Petitioner objected to CMS Exs. 2, 3, 4, 5, and 6, arguing that the documents are not relevant to this case because they pertain to the January 2023 survey which did not result in enforcement actions or remedies.  Petitioner’s objections to CMS Exs. 2, 3, 4, 5, and 6 are sustained. 

Petitioner also objected to CMS Exs. 7, 9, 10, 11, 12, and portions of 13.  

Petitioner’s objection to CMS. Ex. 7, the Statement of Deficiencies (SOD), commonly referred to as “the 2567”, is overruled.  Petitioner’s objections to CMS Exs. 9, 10, 11, and 13 are overruled, the exhibits are both relevant and material to the issues to be decided. 

Petitioner’s objection to CMS Ex. 12 is sustained based on relevance.  

CMS Exs. 1, 7, 8, 9, 10, 11, and 13 are admitted into evidence. 

Absent objections, Petitioner’s exhibits 1-7, 9, and 11-13 are admitted into evidence. 

III. Issues

The issues are as follows: 

1. Whether Petitioner was in substantial compliance with 42 C.F.R. 483.25 (Tag F684, s/s/ level D);
2. If Petitioner was not in substantial compliance, whether the CMP imposed is reasonable.

IV. 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). 

VI. Summary Judgment

Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009). 

Page 4

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs.,388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d sub nom.843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587). 

In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Heritage House of Marshall Health & Rehab., DAB No. 3035 at 8 (2021); Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); see also Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, 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.  W. Tex. LTC Partners, DAB No. 2652 at 6-7; cf. Guardian, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”); see Green Valley Healthcare & Rehab. Ctr., DAB No. 2947 at 8 (2019), quoting Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”). 

In relation to administrative proceedings involving Medicare, it is well-established that an ALJ is empowered to decide a case on summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).  “All it means for a decision to be based on a grant of summary judgment is that 

Page 5

there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added). 

Finally, deciding a case on summary judgment does not mean that it is decided without a hearing.  In reviewing administrative appeals decided on summary judgment, courts describe the case as having been decided without an “oral hearing” or without an “evidentiary hearing.”  They recognize that, by considering the evidence and applying the law, the ALJ has granted the petitioner a hearing.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”). 

VI. Legal Authorities

The Act sets requirements for SNFs to participate in the Medicare program and authorizes the Secretary of Health & 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. part 483 and 488. 

To participate in the Medicare program, a SNF must maintain substantial compliance with program requirements.  42 U.S.C. § 1395i-3(a)(3), (b)-(d); 42 C.F.R. pt. 483, subpt. B.  When CMS selects an enforcement remedy to impose on a 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.  See 42 C.F.R. § 488.404(a)-(b); see also 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(III)(bb). 

CMS may impose a per-day CMP for the number of days a 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 March 17, 2022 and for deficiencies that occurred on or after November 2, 2015, the CMP amounts may range as follows:  $120 to $7,195 per day for less serious noncompliance; $2,400 to $23,989 for per-instance CMPs; or $7,317 to $23,989 per day for noncompliance that poses immediate jeopardy to the health and safety of residents.3  45 C.F.R. § 102.3 (2022); 87 Fed. Reg. 15,100, 15,111 (Mar. 17, 2022); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments). 

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable.  Act §§ 1128A(c)(2) (42 C.F.R. § 1320a-7a(c)(2)), 

Page 6

1819(h)(2)(B)(ii) (42 U.S.C. § 1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, the facility may not appeal CMS’s choice of remedies.  42 C.F.R. § 488.408(g)(2). 

A facility may only challenge CMS’s determination as to the scope and severity of noncompliance if a successful challenge would affect the range of the CMP that may be imposed or impact the facility’s authority to conduct a nurse aide training program.  42 C.F.R. § 498.3(b)(14), (d)(10)(i).  CMS’s determination as to the level of noncompliance, including the 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, 363 F.3d 583 (6th Cir. 2003).  Appellate decisions of the DAB have long held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination.  See, e.g., Koester Pavilion, DAB No. 1750 (2000). 

CMS must make a prima facie showing that the facility failed to comply substantially with federal participation requirements.  If this occurs, the facility must prove substantial compliance by a preponderance of the evidence in order to rebut CMS’s showing and to prevail.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997), aff’d, No. Civ. A 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998). 

VII. Undisputed Facts

The following facts are undisputed:

R1 was a 58-year-old woman initially admitted to Petitioner’s facility on March 30, 2011.  CMS Ex. 9 at 1.    R1 had several diagnoses including type 2 diabetes, anemia, anxiety disorder, and chronic obstructive pulmonary disease.  CMS Ex. 9 at 2. 

On January 31, 2023, at approximately 1:45 a.m., R1 called the nurses station stating that she had fallen and was unable to get up.  Id at 16; P. Ex. 1 at 3.  Nurses found R1 on the floor close to the bathroom and noticed a bump rising on the top, back side of her head.  At that time, R1 denied pain or discomfort.  The nursing staff immediately implemented neurological (neuro) assessments.  Id. 

The first neuro assessment was conducted at 1:47 a.m.  P. Ex. 2 at 1.  R1’s blood pressure and vitals were within a normal range, and she was oriented and able to obey commands. 

The second neuro assessment was conducted at 2:30 a.m.  Id. at 3.  

Page 7

A third neuro assessment was conducted at 3:15 a.m.  Id. at 5. 

A fourth neuro assessment was conducted at 4:40 a.m.  Id. at 7.  

In each neuro assessment, R1’s respirations were normal, her eyes opened spontaneously, she was oriented, obeyed commands, her pupil sizes were noted as 3 mm and pupil reactions were noted as brisk.  Id. 

Around 4:55 a.m., R1 reported that she was nauseous and was provided with nausea medication.  P. Ex. 1 at 2. 

At approximately 5:08 a.m., R1 went into the dining room unassisted.  CMS Ex. 7 at 2; CMS Ex. 10 at 19.  A nurse observed that R1’s gait was steady, and there were no obvious signs of pain or discomfort.  CMS Ex. 10 at 19.  

At 5:11 a.m. a nurse questioned R1 about her knee pain and conducted a pain assessment. 

At approximately 7:00 a.m., a nurse noticed that R1 was not sitting up straight and was trying to get up from her chair.  Id.  R1’s pupils were slow to react, her speech was slurred, and her blood sugar was 285.  A nurse called 911 and R1 was sent to the hospital via ambulance.  Id. 

Petitioner’s Neuro Checks Policy

Petitioner has a neuro check policy dated February 13, 2007.  P. Ex. 4.  After the initial neuro check, Petitioner’s policy requires a neuro check four times every 15 minutes, then twice every 30 minutes, twice every hour, decreasing to twice every two hours, then every shift for 48 hours.  Id. at 2.  Any deteriorations in neurologic status must be immediately reported to a physician.  Id. 

VIII. Analysis and Conclusions of Law

1. 1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(b)(1)(i), (ii) (Tag F684) because it failed to ensure that R1 received the appropriate number of neurological checks after a fall consistent with Petitioner’s policy and professional standards.

Under the Act and the “quality of care” regulation, the 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.  42 U.S.C. § 1395i-3(b); 42 C.F.R. § 483.25. 

Page 8

CMS argues that Petitioner failed to comply with the quality of care regulation because it failed to ensure that R1 received the properly timed neurological checks as required by Petitioner’s policy.  CMS Br. at 7-8.  Petitioner argues that tag F684 is not a policy violation and that the facility’s policy is not the standard to be applied in determining “professional standards of care”.  P. Br. at 2.  

According to Petitioner’s neurologic check policy, R1 should have been checked every 15 minutes for the first hour after the fall.  However, the record shows that after the initial assessment at 1:47 a.m., the next two neuro checks were performed in 45-minute increments at 2:30 a.m. and 3:15 a.m.  The last neuro check was performed at 4:40 a.m., almost 1.5 hours later.  It is undisputed that the checks were not performed pursuant to Petitioner’s policy.  RN #1, who performed the checks, did so in accordance with the reminders in Petitioner’s Electronic Medical Record (EMR).  However, it was later determined that the reminders in the EMR were not in sync with Petitioner’s neurologic policy.  CMS Ex. 9 at 30; CMS Ex. 7 at 5; CMS Ex. 10. 

Petitioner argues that there is no set professional standard for conducting neuro checks and supports its argument by citing an article4 stating that neuro checks are a “critical component of medical care for patients with neurological conditions.”  P. Ex. 13 at 7.  According to the article, the “frequency of neuro checks varies depending on the patient’s condition and healthcare facility protocols” and states “there is no universal due date or specific time frame for neuro checks…they are individualized based on the patient’s condition, medical history, and healthcare provider’s discretion.”  Id. at 7.  Petitioner’s witness, Nurse Stewart also declares that there is no set frequency for performing neuro checks.  P. Ex. 7.  Even accepting Petitioner’s statement as true, the articles fail to address the importance or frequency of neurological checks for a patient with numerous comorbidities who experiences a fall or for a patient that has fallen and experiences a head injury and  nausea due to the fall.  More importantly, in line with the articles, Petitioner’s facility had protocols in place which were not followed.  The Board has ruled that “compliance with the regulation also means that a facility must furnish the care and services set forth in its residents’ care plans, implement physicians orders, monitor and document residents’ conditions and follow its own policies.”  Pearsall Nursing and Rehabilitation Center-North DAB No. 2692 (2016) citing Life Care Ctr. of Bardstown, DAB No. 2479, at 22 (2012), aff’d, Life Care Ctr. of Bardstown v. U.S. Dept. of Health & Human Servs., 535 F. App’x 468 (6th Cir. 2013).  

Petitioner also argues that its policy is more stringent than the professional standards.  Petitioner cites an administrative penalty case and an appellate case from Texas to support its arguments.  In a medical malpractice case, a court of appeals in El Paso, Texas ruled that the hospital rules did not reflect the community standard of medical care 

Page 9

because an institution might maintain a higher standard of care than the prevailing community standard.  Hicks v. Canessa, 825 S.W.2d 542 (1992).  The facts and circumstances of this case are remarkably different than the circumstances in Hicks.  It is unnecessary to look to another jurisdiction when the Board has addressed this exact issue, ruling that it is reasonable to presume that the facility’s policy reflects the professional standards of quality, absent convincing evidence to the contrary.  Spring Meadows Health Care Center v. Centers for Medicare and Medicaid Services, DAB 1966 (2005). Petitioner has not provided convincing evidence to show that its neurological check policy is more stringent than professional standards of care.  Each article that Petitioner provided indicated that while there is no set frequency for neuro checks, it is dependent on the healthcare provider’s protocol and discretion.  It is undisputed that Petitioner failed to follow its own policy.  

Petitioner correctly notes that subdural hematoma presentation can be delayed by hours or even days following a fall.  P. Br. at 7; P. Ex. 11 at 1, 5.  This emphasizes why it was important for staff to conduct the continued neuro checks as outlined in Petitioner’s policy, particularly for a resident who had fallen, had a bump on her head because of said fall, and experienced nausea shortly thereafter.  The evidence indicates that nausea after a fall can be a sign of subdural hematoma or a traumatic brain injury.  P. Ex. 11 at 4; P. Ex. 12 at 1.  If conducted in accordance with Petitioner’s policy, the neuro checks would have provided R1 with consistent monitoring for 48 hours after her fall.  

Here, it is undisputed that neurological checks were not performed in compliance with Petitioner’s own policy.  In creating its policies, it is presumed that Petitioner considered what was necessary to meet quality of care standards and the needs of its residents.  The evidence provided, even when viewed in the light most favorable to Petitioner, shows that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25.  Because there are no disputes of material facts, CMS’s motion for summary judgment is granted. 

IX. Reasonableness of the CMP

As mentioned, CMS imposed a per-instance CMP of $14,355.  Petitioner argues that a factual issue remains as to whether the imposed CMP is reasonable.  P. Br. at 9-10.  However, whether the penalty amount imposed is reasonable is a legal issue, not factual.  To overcome a summary judgment motion regarding the reasonableness of the penalties, the facility must present sufficient evidence to create a genuine dispute about facts affecting how the regulatory factors should be assessed.  Vibra Hospital of Charleston, DAB No. 3094 at 30 (2023); Crawford Healthcare, DAB No. 2738 at 19 (2016). 

To determine whether a CMP is reasonable, I apply the following factors which are 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

Page 10

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)(4).  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 42 C.F.R. §§ 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).  

The Board has explained that “there is a presumption that CMS has considered the regulatory factors in setting the amount of the CMP and that those factors support the CMP amount imposed by CMS.  Unless a facility contends that a particular regulatory factor does not support that CMP amount, the ALJ must sustain it.”  Coquina Ctr., DAB No. 1860 at 32 (2002) (emphasis added).  Thus, the burden is not on CMS to explain its decision-making process or to explain the relative weights assigned to each deficiency to support the CMP amounts imposed.  If a facility contends that a regulatory factor does not support the CMP amount, CMS must then produce evidence as to that factor.  Id.  However, the burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2017 at 22 (2017). 

Petitioner argues that the CMP amount is unreasonable because the deficiency did not result in resident harm and it is just a “few thousand dollars” below the maximum allowed by law.  However, I find that the imposed CMP is reasonable based on the facts of this case.  Here, Petitioner failed to follow its own policy and provide consistent, timely neuro checks to a resident who had a head injury and nausea due to the fall.  

X. Conclusion

Petitioner was not in substantial compliance with the Medicare participation requirement at 42 C.F.R. 483.25 (Tag F684).   Therefore, CMS’s Motion for Summary Judgment is granted.  There is a basis for the imposed remedy and the per instance CMP of $14,355 is reasonable.