Bastrop Lost Pines Nursing and Rehabilitation Center, DAB CR6942 (2026)

DECISION

Bastrop Lost Pines Nursing and Rehabilitation Center (hereinafter referred to as “Bastrop” or “Petitioner”) challenges the Centers for Medicare & Medicaid Services’ (CMS) determination of substantial noncompliance with Medicare participation requirements and the determination that the noncompliance posed immediate jeopardy to resident health and safety.  Petitioner also challenges the imposition of a civil monetary penalty (CMP) of $7,320 per day for 33 days from March 31, 2022 through May 2, 2022, and a CMP of $360 per day for 23 days from May 3, 2022 through May 25, 2022.

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

I.       Background and Procedural History

Bastrop is a skilled nursing facility located in Bastrop, Texas that participates in the Medicare program.  On May 3, 2022, the Texas Health and Human Services Commission

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(state agency) completed a complaint investigation at Bastrop.  The state surveyors found, and CMS later agreed, that the facility was not in substantial compliance with the Medicare participation requirement at 42 C.F.R. § 483.25(b)(1)(i)-(ii), Treatment/Services to Prevent/Heal Pressure Ulcer, Tag F686, cited at scope and severity (s/s) level J1, and other Medicare participation requirements found at 42 C.F.R. pt. 483.

The state agency informed Petitioner of the results of the survey by letter dated May 17, 2022.  Departmental Appeals Board Electronic Filing System (DAB E-File) Doc. No. 1b.  CMS later notified Petitioner of the noncompliance determination and the imposition of remedies and explained that the immediate jeopardy violation was abated prior to the May 3, 2022 survey.  CMS Ex. 1.  However, the facility remained out of compliance with the following Medicare participation requirements:   42 C.F.R. § 483.21(a)(1)-(3), Baseline Care plan, Tag F655, cited at s/s level D; 42 C.F.R. § 483.24(a)(2), ADL Care Provided for Dependent Residents, Tag F677, cited at s/s level E; and 42 C.F.R. § 483.25(g)(1)-(3) Nutrition/Hydration Status Maintenance, Tag F692, cited at s/s H.  CMS Ex. 1.  As a result of the deficiencies, CMS imposed a CMP of $7,320 per day for 33 days from March 31, 2022 through May 2, 2022, in addition to a CMP of $360 per day for 23 days from May 3, 2022 through May 25, 2022.  CMS Ex. 1 at 2.  The total amount of the CMP is $249,840.

Bastrop achieved substantial compliance on May 26, 2022.  CMS Ex. 1.

Petitioner filed a request for hearing on July 11, 2022.  The case was assigned to me for hearing and decision.

On October 21, 2022, CMS timely filed a prehearing exchange that included a prehearing brief and motion for summary judgment (CMS Br.), in addition to 23 exhibits (CMS Exs. 1-23).  CMS identified two proposed witnesses.

On November 22, 2022, Petitioner timely filed a Response to Respondent’s Motion for Summary Judgment and Prehearing Brief (P. Br.), along with 11 exhibits (P. Exs. 1-11).  Petitioner identified one proposed witness.  In addition, Petitioner filed a request to cross-examine CMS’s proposed witnesses along with objections to CMS’s proposed exhibits.

On December 7, 2022, CMS filed a reply to Petitioner’s response to CMS’s motion for summary judgment (CMS Reply), objections to Petitioner’s proposed exhibits, and a request to cross-examine Petitioner’s proposed witness.

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II.       Admission of Exhibits

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

Petitioner made the following objections to CMS’ Exs.: 

Petitioner objected to CMS Ex. 2, Statement of Deficiencies, pages 4-5, 14-15, 18-20, 22-24, 28-30, 47-49, 54-55, 57-60 primarily due to hearsay.   Petitioner’s objections are overruled.   Hearsay may be permitted in administrative proceedings, and I find that the statements in question are relevant and material to this case.

Petitioner also objects to pages 1-19, 22-24 of CMS Ex. 15 due to hearsay.  Petitioner’s objections are overruled.  CMS Ex. 15 will be admitted into evidence in its entirety.

Petitioner questions the relevance of CMS Ex. 16, a complaint-grievance follow-up report.  The incident investigated in this exhibit does not pertain to the allegations set forth against Petitioner in this case.  Therefore, Petitioner’s objection to CMS Ex. 16 is sustained.

Petitioner objects to the relevance of CMS Ex. 18, pages 3-21 because the policy relates to abuse and there was no abuse alleged in this investigation.   Petitioner’s objection is sustained.  CMS Ex. 18, pages 1-2 will be admitted into evidence, and the remainder of the exhibit is excluded.

Petitioner objects to pages 1-4, 5-10, 11-17, 20-22, 32, 34-57, and 58-69 of CMS Ex. 19.  Petitioner’s objections are overruled.  CMS Ex. 19 will be admitted into evidence in its entirety.

Petitioner objects to portions of CMS Ex. 20, which is the Declaration of Angela May, RD, LD, based on hearsay and purports that the witness is offering opinions on the care, treatment, and development of pressure ulcers.  Petitioner’s objections are overruled.  CMS Ex. 20 is admitted into evidence.

CMS objected to P. Exs. 2, 4, 5, 6, 7, 8, 9, 10, and 11: 

CMS argues that P. Exs. 2, 4, 5, 6, 7, 8, and 9 lack relevance and a proper foundation.  These exhibits are printouts from a Mercer Health website which allowed Petitioner to input height and weight to determine the BMI of its residents.  I find that the exhibits are relevant to Petitioner’s argument regarding the weight of the residents.  CMS’s objections are overruled.

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CMS argues that the witness who provided a declaration for P. Ex. 10 lacks personal knowledge as she serves as the regional director.2  CMS’s objection is overruled.

CMS argues that P. Ex. 11 is not relevant.  However, the document is relevant and material to an argument that Petitioner makes regarding care provided to Resident 2.  Therefore, CMS’s objection is overruled.

P. Exs. 1-11 are admitted into evidence.

CMS Exs. 1-15, 17 and 19-23 are admitted into evidence.  CMS Ex. 18, pgs. 1 and 2 are also admitted into evidence. CMS Ex. 16 is excluded from the record.

III.     Issues

As a threshold matter, I consider whether summary judgment is appropriate.

The issues are as follows: 

1. Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.25(b)(1)(i)-(ii) (Tag F686, s/s level J);
2. Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.25(g)(1)-(3) (Tag F692, s/s/ level H);
3. Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.21(a)(1)-(3) (Tag F655, s/s/ level D);
4. Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.24(a)(2) (Tag F677, s/s/ level E);If it is determined that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(b)(1)(i)-(ii) (Tag F686, s/s level J), whether CMS’s immediate jeopardy determination was clearly erroneous; and
5. If Petitioner was not in substantial compliance, whether a $7,320 per-day CMP beginning March 31, 2022 through May 2, 2022, and a CMP of $360 per day for 23 days beginning May 3, 2022 through May 25, 2022, are reasonable.

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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).

V.     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).

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 & Hum. 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., Ltd. 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.  Illinois Knights Templar Home, DAB No. 2274 at 4 (2011); 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. W. Tex. LTC Partners, Inc. v. Dep’t of Health & Hum. Servs., 843 F.3d 1043 (5th Cir. 2016); 18661CPayday.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 7 (“A dispute over the conclusion to be drawn from applying relevant

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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 administrative law judge (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 & Hum. Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Hum. 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 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.”).

After reviewing the record and all arguments, and in viewing the evidence in the light most favorable to Petitioner,  I have determined that there are no disputes of material fact in this case and that summary judgment is appropriate.

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.  “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,” a SNF’s deficiency may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.

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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; 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, 15,112 (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 ALJ 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)), 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 and competency evaluation program (NATCEP).  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, Woodstock Care Ctr. v. Thompson, 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

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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.

Resident 1 (R1)

R1 was an 85-year-old woman admitted to Bastrop on March 11, 2022.  CMS Ex. 5 at 1.  R1 had several diagnoses including cerebral infarction due to thrombosis of right anterior cerebral artery, other seizures, essential hypertension, nonrheumatic mitral valve insufficiency, dysphagia, chronic atrial fibrillation, vascular dementia, and anemia.  CMS Ex. 5 at 1, 45; P. Ex. 1.  Upon admission, Petitioner noted that R1 was at risk for infection and skin breakdown secondary to bladder incontinence, and she had dry, scaly feet and lower legs.  CMS Ex. 5 at 44, 239.  It was recommended that barrier cream be applied with each brief change.  CMS Ex. 5 at 239.  R1 depended upon staff for repositioning and required a two-person assist for bed mobility.  CMS Ex. 5 at 24, 82.   R1 also required assistance with activities of daily living (ADLs) due to deficits with eating, grooming, bathing, dressing, toileting, and transfers. CMS Ex. at 56, 82, 131.   R1’s suffered from episodes of bowel incontinence and her care plan required two-hour checks and assistance with toileting as needed. CMS Ex. 5 at 33.

On March 28, 2022, staff noticed an area of moisture associated skin damage (MASD) measuring 10 cm x 2.5 cm x utd on the right side of R1’s buttocks and denuded skin on the left buttocks.  CMS Ex. 5 at 137.  The areas were cleaned and a barrier cream was applied.  Id. 

On March 30, 2022, a member of Petitioner’s staff noticed a fluid filled blister on the plantar portion of Resident 1’s left foot.  CMS Ex. 5 at 3, 136.  The blister measured 5 cm x 8 cm and the depth was unknown. CMS Ex. 5 at 136.  A physician ordered that the area be cleaned with wound cleanser, gently petted dry, apply betadine, and leave open to air every day shift.  CMS Ex. 5 at 3, 10.

On April 13, 2022, it was again noted that Resident 1 is at risk for developing pressure ulcers and that she had MASD.  CMs Ex. 5 at 100, 102.  A pressure reducing device was recommended for R1’s bed.  CMs Ex. 5 at 102.

Resident 1 was treated by a wound care doctor at Skilled Wound Care on April 27, 2022.  CMS Ex. 5 at 225.  The doctor noted wounds on R1’s sacrococcyx extending to her left buttock and left plantar foot.  Id.  The sacrococcyx wound was deemed unstageable and

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measured 4 cm x 3 cm.  CMS Ex. 5 at 225; CMS Ex. 15 at 3.  The left plantar wound was measured at 8 cm x 7 cm and the edges were necrotic.  CMS Ex. 5 at 226.  A low air loss mattress was recommended to prevent further deterioration of R1’s gluteal wound.  CMS Ex. 5 at 227.  The wound care doctor noted that weekly debridement would be necessary and that R1’s poor nutritional intake, chronic comorbidities, restricted mobility, and thinning skin might exacerbate the worsening of the pressure injury.  Lastly, the doctor noted that R1 suffered from malnutrition and noted poor nutritional intake as a risk factor.  Id. at 226.

On March 23, 2022, Petitioner revised R1’s care plan.  The newly revised care plan stated that R1 “needs pressure relieving/reducing mattress, pillows to protect the skin while” in bed to address the identified skin issue.  CMS Ex. 5 at 283.

An order from April 27, 2022 addressed wound care stating, “Cleanse wound on gluteal cleft with wound cleanser/NS.  Pat dry.  Apply skin prep to peri-wound area.  Apply medihoney to wound bed followed by small amount of dry gauze and covered with bordered gauze or foam dressing [ ] as needed for soiled or dislodged dressing.”  CMS Ex. 5 at 4.  Another order dated April 27, 2022, required Petitioner to provide an “[a]ir mattress for prevention of further deterioration of gluteal wound.”  CMS Ex. 5 at 8.  The end date of the order was May 4, 2022.

Surveyors from the State Agency visited Bastrop on April 28, 2022, and found Resident 1 in bed with her feet pressed against the footboard.  CMS Ex. 2 at 19; CMS Ex. 15 at 5.  R1 indicated that she was unable to reposition herself.  R1 was on a regular mattress with cranks for elevating her head and feet.  CMS Ex. 2 at 19.

R1’s Unplanned Weight Loss

R1 weighed 223.2 pounds upon admission to Bastrop on March 11, 2022.  CMS Ex. 5 at 211.  On March 31, 2022, it was noted that R1 was at risk for imbalanced nutrition and unintended weight loss.  CMS Ex. 5 at 38.  Goals were set for R1 to maintain stable weight “+/- 5% through review date” and to consume 50% or more of her meals.  CMS Ex. 5 at 38, 165.  On April 5, 2022, R1 weighed 216.8 pounds, showing a six-pound weight loss since admission to the facility.  CMS Ex. 5 at 164.  Even with the six-pound weight loss, R1’s care plan was not updated.  CMS Ex. 5 at 165.  On April 30, 2022, the dietician and doctor were notified of R1’s “significant weight loss”.  CMS Ex. 5 at 241. On May 1, 2022, R1 weighed 197 pounds.  CMS Ex. 5 at 237.  A nutritional assessment determined that Resident 1 was at risk for malnutrition.  CMS Ex. 5 at 247- 48.

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Resident 2 (R2)

R2 was admitted to Bastrop on April 14, 2022.  CMS Ex. 6 at 1.  At the time of admission, Petitioner conducted an initial nursing evaluation.  CMS Ex. 6, at 1-2. R2 had several diagnoses including acute respiratory failure with hypoxia, chronic obstructive pulmonary disease, dependence on supplemental oxygen, hypothyroidism, unsteadiness on feet, need for assistance with personal care, cognitive communication deficit, and wounds on her sacrum/coccyx area.  CMS Ex. 6 at 4, 5.  During her time in Bastrop, R2’s physician issued orders that Petitioner transcribed to R2’s treatment record.  P. Ex. 11.  R2 was discharged on April 20, 2022.  See CMS Ex. 6; P. Ex. 11.  The facility did not complete a care plan for R2 during her time at the facility.

Resident Weight Loss

Resident 3 (R3)

R3 was initially admitted to Bastrop on May 18, 2017, and was readmitted on January 30, 2022.  CMS Ex. 7 at 1.  On January 31, 2022, R3 weighed in at 147.3 pounds.  P. Ex. 3 at 2.  On March 5, 2022, R3 weighed 132.2 pounds and on March 16, 2022, had a BMI of 23.4.  CMS Ex. 7 at 198; P. Ex. 3 at 2.   By April 5, 2022, R3 weighed 131.4 pounds and was on a regular/mechanical soft/regular with chopped meat diet.  CMS Ex. 7 at 1.

On April 5, 2022, it was noted that R3 was at risk for unintended weight loss.  CMS Ex. 7 at 49.

The physician was informed about R3’s significant weight loss on April 30, 2022.  CMS Ex. 7 at 164.  On May 1, 2022, a goal was established for R2 to maintain adequate nutritional status evidenced by maintaining weight and consuming meals daily.  CMS Ex. 7 at 51.

On May 1, 2022, R3 weighed 127.4 pounds, losing almost 20 pounds in three months.  P. Ex. 3 at 2.

Resident 4 (R4)

Resident 4 was admitted to Bastrop on April 19, 2022, weighing 213 pounds.  CMS Ex. 8 at 28, 47.  Resident 4 had several diagnoses including, but not limited to: depression, aphasia, diabetes, hypertension, and hyperlipidemia.  CMS Ex. 8 at 22, 23.  Resident 4 did not have difficulty swallowing and had no history of weight changes.  CMS Ex. 8 at 67, 68.  Resident 4 weighed 172 pounds on August 5, 2020.  CMS Ex. 8 at 70.

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Resident 5 (R5)

R5 was admitted to Bastrop on April 14, 2022, with a history of falling, gastro-esophageal reflux disease, cognitive communication deficit, and dysphagia.  CMS Ex. 9 at 2.  On April 22, 2022, Resident 5 was on a “regular” diet and weighed 195.4 pounds.  CMS Ex. 9 at 10, 65.  R5 required set-up assistance by one staff member to eat and was identified as being at risk for dehydration, imbalanced nutrition, and unintended weight loss.  CMS Ex. 9 at 21, 25, 33.  On May 1, 2022, R5 weighed 169.4 pounds.  CMS Ex. 9 at 79.

Resident 6 (R6)

R6 was admitted to Petitioner’s facility on March 31, 2016.  CMS Ex. 10 at 7.  R6 diagnoses included anemia, heart failure, hyperlipidemia, cerebral palsy, and hypertension.  CMS Ex. 10 at 72.  R6 had a mild allergy to dairy/eggs/lactose but still chose to consume those items.  CMS Ex. 10 at 98.  R6 did not have any additional dietary restrictions listed in her care plan and one of the listed goals was to maintain her current weight “+/- 5% through next review date.”  CMS Ex. 10 at 135.  From July 6, 2020 to April 5, 2022, R6’s weight remained rather steady, typically between 233 and 244 pounds.  CMS Ex. 10 at 9.  On April 5, 2022, R6 weighed 233.2 pounds.  However, on May 1, 2022, R6’s weighed 209 pounds.  CMS Ex. 10 at 9.

Resident 8 (R8)

R8 was admitted to Bastrop on April 9, 2022 with the following diagnoses:  hypertension, congestive heart failure, depressive disorder, chronic kidney disease, and Type 2 diabetes.  CMS Ex. 11 at 1, 3.  On December 5, 2021, R8 weighed 264.8 pounds.  CMS Ex. 11 at 66.  Exactly four months later, R8 weighed 241.8 pounds.  Id.  On April 30, 2022, the nurse practitioner and the dietitian were notified of R8’s significant weight loss.  CMS Ex. 11 at 100.

VIII. Analysis and Conclusions of Law

1. Bastrop was not in substantial compliance with 42 C.F.R. § 483.25(b)(1)(i), (ii) (Tag F686) because it failed to ensure that R1 received appropriate care to prevent pressure ulcers and, after she developed two pressure ulcers, failed to provide necessary treatment and services to promote healing consistent with professional standards.

Under the Act and the “quality of care” regulation, each resident must receive, and the facility must provide, the necessary care and services to allow a resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in

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accordance with the resident’s comprehensive assessment and plan of care.  42 U.S.C. § 1395i-3(b); 42 C.F.R. § 483.25.  To this end, the facility must (among other requirements) ensure that a resident who enters the facility without pressure ulcers receives care to prevent pressure ulcers and does not develop them unless their clinical condition shows that they were unavoidable, based on the resident’s comprehensive assessment.  42 C.F.R. § 483.25(b)(1)(i).  If the resident already has pressure ulcers, the facility must ensure that they receive the treatment and services necessary to promote healing, prevent infection, and prevent new ulcers from developing.  42 C.F.R. § 483.25(b)(1)(ii).

In assessing the facility’s compliance with this requirement, the relevant question is:  did the facility “take all necessary precautions” to promote healing, prevent infection, and prevent new sores from developing?  If so, and the resident still develops ulcers, then there is no deficiency.  But, if the evidence establishes that the facility fell short of taking all necessary precautions, it has violated the regulation.  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 13-14, 19 (2010), aff’d, 405 Fed. App’x 820 (5th Cir. 2010); Koester Pavilion, DAB No. 1750 at 32 (2000).

According to SOM guidelines, “unavoidable” means that “the resident developed a pressure ulcer/injury even though the facility had evaluated the resident’s clinical condition and risk factors; defined and implemented interventions that are consistent with resident needs, goals, and professional standards of practice; monitored and evaluated the impact of the interventions; and revised the approaches as appropriate.”4  See Harmony Court, DAB No. 1968 at 11 (2005).  The Board has ruled that a facility “cannot claim unavoidability unless it first shows that it furnished all necessary treatment and services.”  Heritage House of Marshall Health & Rehab., DAB No. 3035 at 12 (2021).

Also, “[A] failure to comply with physician orders or to provide services in accordance with a plan of care . . . can constitute a deficiency under section 483.25.”  Cedar Lake Nursing Home, DAB No. 2390 at 3 (2011).

It is undisputed that Resident 1 was admitted to the facility on March 11, 2022, without pressure wounds and with healed areas on her bilateral glutes which appeared to be from pressure injuries or MASD.  P. Ex. 1 at 1.  The evidence shows that R1 developed an unstageable pressure ulcer on her sacro-coccyx and a necrotic pressure ulcer on the bottom of her left foot within a few weeks of entering Petitioner’s facility.

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Despite knowing that R1 was at risk for developing pressure wounds, the record does not show that Petitioner followed R1’s care plan nor took any actions to prevent R1 from developing pressure wounds.  The Director of Nursing confirmed that a skin assessment was not completed for R1 until March 30, 2022, 19 days after admission.  CMS Ex. 15 at 4.  On April 27, 2022, R1’s physician issued an order for an “[a]ir mattress for prevention of further deterioration of gluteal wound.”  CMS Ex. 5 at 8.  R1’s care plan also called for the use of pressure relieving/reducing cushion to protect the skin while using a chair and a pressure relieving/reducing mattress, pillows to protect the skin while in bed.  CMS Ex. 5 at 43.

Petitioner argues that R1 was provided with an air mattress upon admission, but there is no evidence to support this argument.  One note in R1’s record is inconsistent as to whether there was an air mattress, with two staff members checking “yes” and another checking “no”.  Petitioner admits that the charting is “spotty” and that there was only one aide who consistently charted “no” when asked whether a pressure mattress was in place in March 2022.  P. Br. at 13, 18.  A March 28, 2022, a nursing weekly skin evaluation stated that R1 “needs pressure relieving/reducing mattress, pillows to protect the skin while in bed.” CMS Ex. 5 at 43.  Additionally, the evidence shows that an air mattress was ordered on April 27, 2022, to prevent further deterioration of the gluteal wound.  CMS Ex. 5 at 1.  A licensed vocational nurse confirmed that R1 was previously on a regular mattress and bed with a crank.  CMS Ex. 15 at 5.  Petitioner has not provided evidence to show that R1 was provided with an air mattress upon admission.  Additionally, R1 remained on a regular mattress one day after the wound care doctor ordered that R1 be placed on an air mattress.  On April 28, 2022, Petitioner’s staff members were observed repositioning R1 so that her feet were no longer pressed against the foot board. CMS Ex. 15 at 3.  Petitioner failed to comply with R1’s care plan and the doctor’s orders.

CMS argues that Petitioner failed to stop the progression of R1’s pressure wound by not frequently repositioning R1.  CMS Br. at 8, 20.  In response, Petitioner argues that Resident 1 often wanted to stay in bed and was not always compliant with her plan of care.  P. Ex. 1 at 2, 3; P. Br. at 13.  However, the example highlighted by Petitioner took place on April 22, 2022, well after the pressure wound was formed.  P. Ex. 1 at 2 (highlighting R1 not wanting to get out of bed).  Petitioner’s witness, Tammy Barnett, RN declares that R1 was “frequently resistive to care such as showers and getting up in her wheelchair.” P. Ex. 10 at 1.  However, assuming that the testimonial evidence is true, as I must when ruling on summary judgment, Petitioner only references one such incident and infrequent resistance does not excuse a failure to provide the necessary care.  Petitioner has not provided evidence showing that R1 rejected the care needed to be provided.

The wound care doctor stated that the wound on R1’s foot was likely caused by pressure from R1’s foot pressing against the foot board and could have been avoided if R1 had

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been repositioned every two hours to ensure that there was not constant pressure on the foot.  CMS Ex. 15 at 4.  Additionally, a registered nurse (RN) at Bastrop stated that R1 had to be moved up in bed prior to treatment so that she could treat the blister on the bottom of R1’s foot.  CMS Ex. 15 at 3.  The RN did not realize that the likely cause of the wound was from R1’s footboard.  Id.  Resident 1’s Responsible Party participated in a telephone interview with the surveyor and noted that when she visited, almost daily, R1’s foot was pressed against the footboard.  CMS Ex. 2 at 20.  Additionally, the surveyor observed Resident 1’s foot pressed against the footboard when visiting the facility.  CMS Ex. 2 at 21; CMS Ex. 15 at 3.  Again, R1 was unable to reposition herself without assistance.

Petitioner argues that there is a question of material fact regarding R1’s degree of cognitive impairment.  P. Br. at 9.  While there is no dispute that R1 had a BIMS score of 7, Petitioner notes that it is an indication of severe cognitive impairment as opposed to moderate cognitive impairment as indicated by CMS.  P. Br. at 9.  However, this is not a material fact.   Even in viewing the evidence in a light most favorable to Petitioner, this fact does not impact the outcome of this decision.

The evidence shows that R1’s pressure injury was avoidable and that Petitioner failed to comply with physician orders and the care plan.  Despite knowing that R1 was susceptible to pressure wounds, Petitioner did not take all necessary precautions to prevent the pressure wounds from forming.  The evidence establishes that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(b)(1)(ii) (Tag F686) because it failed to provide care to R1 consistent with professional standards, R1’s plan of care, and the physician’s order.

2. Bastrop was not in substantial compliance with 42 C.F.R. § 483.25(g)(1)-(3) (F-692) because it failed to maintain acceptable parameters of nutritional status as evidenced by several residents experiencing unplanned weight loss

A facility must ensure that, based on a comprehensive assessment, a resident:  1) maintains acceptable parameters of nutritional status, such as usual body weight or desirable body weight range and electrolyte balance, unless the resident’s clinical condition demonstrates that this is not possible, or the resident preferences indicate otherwise; 2) is offered sufficient fluid intake to maintain proper hydration and health; and 3) is offered a therapeutic diet when there is a nutritional problem, and the health care provider orders a therapeutic diet.  42 C.F.R. § 483.25(g)(1)-(3).

The Departmental Appeals Board has repeatedly held that “the facility is responsible for taking all reasonable steps to ensure that the resident receives nutrition adequate to his or her needs.”  Carrington Place of Muscatine, DAB No. 2321 at 5 (2010) (quoting The Windsor House, DAB No. 1942 at 17, 18 (2004)) (emphasis added); Carehouse Convalescent Hosp., DAB No. 1799 at 22 (2001).  The question is not whether a

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resident’s weight falls below a particular threshold; the question is whether the facility takes reasonable and timely steps to help ensure that the resident maintains acceptable parameters of nutritional status.  Carrington Place, DAB No. 2321 at 9-10.

The clinical condition exception is a narrow one and applies only when the facility can demonstrate that it cannot provide nutrition adequate for the resident’s overall needs, so the weight loss was unavoidable.  Texan Nursing & Rehab. of Amarillo, LLC, DAB No. 2323 at 11 (2010); The Windsor House, DAB No. 1942 at 18.

CMS alleges that Petitioner failed to provide adequate care and maintain acceptable parameters of nutritional status for Residents 1, 3, 4, 5, 6, and 8.  CMS Br. at 21.  Petitioner does not dispute the weight loss of the aforementioned Residents and merely submitted generic online BMI charts from Mercy Health to support assertions about each resident’s weight.  Petitioner claims that CMS failed to prove that the weight loss caused actual harm.  However, several residents experienced unexplained weight loss within a short period of time.  Petitioner has offered no explanation for the weight loss, nor has it provided any evidence to prove that it took measures to ensure that the residents maintained acceptable parameters of nutritional status to maintain their usual body weight.  Despite Petitioner’s claims that the residents remained in “overweight”, “obese”, or “morbidly obese” categories, there is no indication that weight loss was intended or part of the Residents care plans.  Petitioner’s witness, Tammy Barnett, a Registered Nurse and the Regional Clinical Specialist for the Facility, states that the facility provided adequate nutritional offerings to Residents 1, 2, 4, 5, 6, and 8 without offering any details as to what the nutritional offerings were.  P. Ex. 10.  Nor are the nutritional offerings mentioned in Petitioner’s brief.  Petitioner also claims that the variances in weight were caused by how the weight was obtained each time.  Id. at 2.  However, there is no evidence to support variances in how the weight was obtained and why the weight would vary so greatly amongst the scales used.

Resident 1.  Petitioner does not dispute R1’s weight loss and argues that despite the weight loss, R1 remained severely obese, with associated high weight related health risk. P. Ex. 2; P. Br. at 14.  Despite noting that R1 was at risk for imbalanced nutrition and unintended weight loss, Petitioner did not implement any plan to prevent weight loss.  CMS Ex. 5 at 38.  Contrary to R1’s care plan goal that R1 “maintain stable weight +/- 5% through review date[,]” Id., R1 lost more than 5% of her body weight in 30 days.  The record does not show that loss in weight was unavoidable, even when viewing the evidence in a light most favorable to Petitioner.

Resident 3.  From January 31, 2022 – May 9, 2022, R3 lost 18.3 pounds.  P. Ex. 3 at 2. Petitioner does not dispute R3’s weight loss but argues that from February 5 – May 1, 2022, R3 experienced a weight loss of six percent.  P. Br. at 14.  Petitioner argues that even with the weight loss, R3’s BMI was 22.57, placing her in the ‘normal weight’ category.  Id.  Petitioner argues that R3 was readmitted to the facility on January 31,

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2022, after experiencing a seizure and a fall that resulted in a facial injury.  According to Petitioner, the facial and mouth pain and nausea resulting from the fall contributed to R3’s decline in food intake.  Id.  However, Petitioner has not provided any evidence regarding R3’s nutrition during this time, such as the refusal of meals or transition into a soft diet to accommodate the facial and mouth pain.  Upon readmission, R3 denied being in pain and was placed on a regular diet with thin liquids.  P. Ex. 3 at 1.

Resident 4.  Between August 5, 2020 and April 20, 2022, R4 lost 41.4 pounds.  CMS Ex. 8 at 70, 82.  Petitioner does not dispute R4’s weight loss but simply argues that R4 remained in the “obese” category and that CMS failed to show that the weight loss caused actual harm.  P. Br. at 15.  However, there is no indication that R4’s weight loss was intentional or a part of her care plan.

Resident 5. On April 19, 2022, R5 weighed 195.4 pounds.  On May 1, 2022, R5 weighed 169.4 pounds, a 26-pound loss in approximately six weeks. CMS Ex. 9 at 79.  Petitioner does not dispute R5’s weight loss and argues that the resident remained in the “overweight” category with a high health risk.  P. Br. at 15.

Resident 6.  R6 lost approximately 24 pounds from April 5 to May 1.  CMS Ex. 10 at 9.   Petitioner does not dispute R6’s weight loss and argues that the resident remained in the “morbidly obese” category with “extremely high” weight related health risk.  P. Br. at 15.

Resident 8.  Between November 5, 2021 and April 5, 2022, R8 lost 24 pounds.  CMS Ex. 11 at 66.  Petitioner does not dispute R8’s weight loss and argues that the resident remained in the “morbidly obese” category with “extremely high” weight related health risk.  P. Br. at 15.

There are no disputes of material facts regarding the weight loss of Residents 1, 3, 4, 5, 6, and 8.  Petitioner has not provided any clinical reasons for the weight loss of the six residents and merely argues that because the residents at issue remained in “overweight”, “obese”, or “morbidly obese” weight ranges, there was no actual harm.  Petitioner has not provided any evidence that the weight loss was the result of a significant clinical condition or that it was planned.  The unplanned weight loss of several residents during the same time frame is quite significant and concerning.  Here, there is no dispute of material fact, and the record clearly shows that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(g)(1)-(3) because it failed to maintain the usual body weight of its residents.

3. Petitioner was not in substantial compliance with 42 C.F.R. § 483.21(a)(1)-(3) because it failed to implement a care plan within 48 hours of R2’s admission.

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Within 48 hours of admission, a facility must develop and implement a baseline care plan for each resident that includes the instructions needed to provide effective and person-centered care of the resident that meet professional standards of quality care.  It must include the minimum information necessary to properly care for a resident.  42 C.F.R. § 483.21.  It is undisputed that R2 was admitted to Petitioner’s facility on April 14, 2022.  Petitioner does not dispute that a care plan was not implemented within 48 hours of R2’s admission but argues that R2 received a detailed Nursing Evaluation, which included identification of a pressure ulcer and orders for wound care.  P. Br. at 16.  Petitioner argues that the information was transcribed into the treatment record, thereby creating a quasi-care plan. Id.  However, the information does not contain the minimum information required by the regulation. The regulation requires an initial care plan to include, at a minimum, initial goals based upon admission orders, physician and dietary orders, and therapy and social services.  42 C.F.R. § 483.21(a)(1)-(3).  Petitioner also noted that as early as April 18, 2022, R2’s family was planning to move her to another facility.  P. Br. at 16.   However, the plan to move R2 was in place four days after her admission to the facility, and two days after Petitioner was required to implement a care plan.  Petitioner does not have the authority to disregard a regulation and argue that it is justified because it took other measures and because the patient was a short-term admission.  Thus, Petitioner was not in substantial compliance with 42 C.F.R. § 483.21(a)(1)-(3).

4. CMS’s finding of immediate jeopardy is not clearly erroneous.

Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.  42 C.F.R. § 488.301.  The regulation does not require that a resident actually be harmed.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012).  CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The “clearly erroneous” standard imposes on facilities a heavy burden to overcome a finding of immediate jeopardy.  Appellate panels of the DAB have sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)), aff’d, 174 F. App’x 932 (6th Cir. 2006).

The state agency determined that immediate jeopardy existed from March 31, 2022 to May 3, 2022, when the Plan of Removal was accepted.  CMS Exs. 1; 2 at 33.  The state agency informed Petitioner of the immediate jeopardy on April 29, 2022. CMS Ex. 2 at 33.

CMS argues that the deficiency involving R1 constituted immediate jeopardy given the evidence of the likelihood of serious harm and actual serious harm suffered by R1.  The

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undisputed facts show that R1’s pressure wound was preventable, and that CMS’s immediate jeopardy determination is not clearly erroneous.

VIII. Reasonableness of the CMPs

In response to Petitioner’s noncompliance, CMS imposed a per day CMP of $7,320 from March 31, 2022 through May 2, 2022, and a per day CMP of $360 from May 3, 2022 through May 25, 2022.  CMX Ex. 1 at 2.

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 Hosp. of Charleston, DAB No. 3094 at 30 (2023); Crawford Healthcare & Rehab., DAB No. 2738 at 19 (2016).

I determine whether a penalty is reasonable based on the per-day penalty, not the total accrued penalty.  Vibra Hosp. of Charleston, DAB No. 3094 at 30; Crawford Healthcare & Rehab., DAB No. 2738 at 20.  In doing so, 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 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).

Petitioner argues that CMS has not addressed the factors as required.  P. Br. at 19.  However, 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).  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

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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).

Here, Petitioner argues that the CMP is unreasonable relative to the scope and severity of the non-compliance but has not disputed the duration of the CMP.  CMS has not presented evidence of Petitioner’s noncompliance history and Petitioner does not argue that it is unable to pay the CMPs.  CMS argues that Petitioner’s noncompliance is serious enough to support the imposed CMPs.

I find that the seriousness of Petitioner’s noncompliance and culpability are sufficient to justify the amount of the CMPs.  Petitioner failed to provide proper care to prevent pressure wounds in R1, which posed immediate jeopardy to R1’s health or safety.  R1 entered Petitioner’s facility with no pressure wounds but developed two within mere weeks of residing in Petitioner’s facility.  One of the pressure wounds progressed into an unstageable injury.  In addition, Petitioner is culpable for its failure to provide its residents with adequate nutrition to maintain their usual body weight, and failed to take steps to prevent continued, unplanned weight loss amongst those same residents.  In addition, Petitioner failed to create a care plan for one resident who was admitted with several comorbidities including acute respiratory failure and chronic obstructive pulmonary disease. CMS Ex. 6.

The $7,320 per-day CMP amount imposed for the immediate jeopardy level noncompliance with Tags F686 falls in the low to mid-range of the possible CMP amounts, and is justified.5  Likewise, the $360 per-day CMP amount imposed for the continued noncompliance with Tags F692 and F655 at the non-immediate jeopardy level, is within the lower range of the possible CMP amounts and is justified by the facts and evidence presented.

5. It is unnecessary to determine whether Petitioner was in substantial compliance with the remaining deficiency alleged in the statement of deficiencies because the deficiencies adjudicated above are more than sufficient to justify the remedy imposed by CMS.

The statement of deficiencies contained an additional deficiency involving residents at Bastrop.  However, CMS identified a deficiency at the immediate jeopardy level and other deficiencies, which I fully considered and upheld.

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As seen from the detailed findings for those citations, those deficiencies involved situations where four residents were subjected to both actual and likely significant harm, injury, impairment, and death.  R41 was placed on hospice upon her return from hip surgery following a fall, and R94 was sufficiently close to death that the ER physician certified that he would die unless transported to the ICU in an ambulance where his airway could be monitored and suctioned and he was provided with continuous oxygen.  Further, a pattern was established where Petitioner’s staff either would not follow the interventions in the residents’ care plans or would not initially complete or later update care plans.  There is no doubt that the modest CMPs imposed in this case are more than supported based on the deficiencies at 42 C.F.R. §§ 483.25(d)(2) and 483.60(d)(3).

I note that the $7,320 per-day CMP for 33 days is in the lower end of the applicable penalty range ($7,317 to $23,989) for immediate jeopardy deficiencies. 45 C.F.R. § 102.3 (2022).  Therefore, this amount is far from the maximum that could have been imposed.  Further, the $360 per-day CMP for 23 days of non-immediate jeopardy level deficiencies is on the lower end of the penalty range ($120 to $7,195).6  45 C.F.R. § 102.3 (2022).

An ALJ need not consider all of the deficiencies cited, so long as the deficiencies he or she affirms support the penalties imposed.  Perry Cnty. Nursing Ctr. v. U.S. Dep’t of Health & Hum. Servs., 603 F. App’x 265, 271 (5th Cir. 2015) (agreeing that the regulations require ALJs to review only those findings that are material to the outcome of a case); Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 847 (6th Cir. 2010); Rockcastle Health and Rehab. Ctr., DAB No. 2891 at 23-24 (2018); Carrington Place of Muscatine, DAB No. 2321 at 20-21 (2010); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 6 n.5 (2010), aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Hum. Servs., 405 F. App’x 820 (5th Cir. 2010).  Therefore, I do not need to adjudicate the additional lower-level deficiency alleged in this case. 

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IX.   Conclusion

CMS’s Motion for Summary Judgment is GRANTED.   For 33 days from March 31, 2022, through May 2, 2022, the facility was not in substantial compliance with Medicare program requirements at 42 C.F.R. § 483.25(b)(1)(i)(ii), (2) (Tag F686), arising at the immediate jeopardy level.  From May 3, 2022 through May 25, 2022, Bastrop was not in substantial compliance with the program requirements at 42 C.F.R. § 483.21(a)(1)-(3), Baseline Care plan, Tag F655, cited at s/s level D and 42 C.F.R. § 483.25(g)(1)-(3) Nutrition/Hydration Status Maintenance, Tag F692, cited at s/s H, resulting in a $360 per day CMP for 23 days.  The penalties imposed – $7,320 per day for 33 days of immediate jeopardy and $360 per day for 23 days of substantial noncompliance that did not pose immediate jeopardy – are reasonable.