Alta Skilled Nursing & Rehabilitation Center, DAB CR6957 (2026)

DECISION

Alta Skilled Nursing & Rehabilitation Center (Petitioner), a skilled nursing facility (SNF) that participates in the Medicare program, failed to remain in substantial compliance with the regulation requiring treatment and care in accordance with professional standards of care. 

Based on the results of a complaint survey completed on November 23, 2022, by the Nevada Department of Health and Human Services (state agency), the Centers for Medicare & Medicaid Services (CMS) found that Petitioner was not in substantial compliance with Medicare program participation requirement for SNFs at 42 C.F.R. § 483.25 (relating to quality of care) at a scope and severity level J.  CMS imposed a $14,330 per-instance civil money penalty (CMP). 

Petitioner disputes that it was not in substantial compliance and argues that it ensured that the treatment and care provided to Resident 10 was in accordance with her care plan and the professional standards of practice.  Petitioner asserts that nothing it did or failed to do caused Resident 10’s hospitalization or death.  Petitioner further argues that the CMP imposed was not reasonable. 

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As explained below, I sustain CMS’s determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25 because it failed to ensure that Resident 10 received treatment and care in accordance with professional standards of practice and Petitioner’s policy.  These failures at least posed a potential for more than minimal harm.  Additionally, I conclude that the CMP imposed in this matter is appropriate under relevant statutory and regulatory factors. 

I. Background and Procedural History

Petitioner is a SNF that operates in Reno, Nevada.  On November 23, 2022, the state agency completed a Medicare complaint survey.  Joint Stipulated Facts ¶ 1.  The state agency subsequently issued a Statement of Deficiencies (SOD).  CMS Ex. 1.  The SOD indicated that the survey yielded evidence of substantial noncompliance with 42 C.F.R. § 483.25 (Tag F684) (Quality of Care) at a scope and severity level “J”1 (i.e., isolated deficiency constituting immediate jeopardy to resident health or safety) related to Resident 10.  Id. 

On January 12, 2023, CMS issued an initial determination that Petitioner was not in substantial compliance with Medicare participation requirements with the cited deficiency.2  CMS Ex. 2.  CMS imposed a $14,330 per-instance CMP for the described deficiency Tag F684.  Id. 

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On December 28, 2022,3 Petitioner timely requested a hearing before an administrative law judge (ALJ).  On December 29, 2022, ALJ Jacinta Alves was designated to hear and decide this case.  On March 29, 2023, CMS filed its brief (CMS Br.) and 23 exhibits (CMS Exs. 1-23).  On May 1, 2023, Petitioner filed its brief (P. Br.) and five exhibits (P. Exs. 1-5).  On May 31, 2023, CMS subsequently filed an additional exhibit (CMS Ex. 24).  The parties filed motions for summary judgment.  On January 14, 2026, a Ruling was issued denying cross-motions for summary judgment, denying Petitioner’s motion to compel discovery, and order for submission of written direct testimony.  Following the order, the parties submitted requests to cross-examine witnesses and, eventually, this matter was scheduled for a hearing on November 3, 2026.  On July 3, 2026, the parties filed a joint motion to waive live hearing.  As a result, this matter is now ripe for decision on the written record.

Effective May 5, 2026, this case was reassigned to me. 

II. Evidentiary Rulings

The parties exhibits were previously admitted into evidence by way of the January 14, 2026 Ruling denying cross-motions for summary judgment, denying Petitioner’s motion to compel discovery, and order for submission of written direct testimony.  The witnesses’ statements were not previously admitted as a hearing for cross-examination was pending.  However, now that the hearing has been waived, the testimony of Dr. Magboo and the testimony of Jennifer Marshall are admitted into evidence.

III.   Issues

1) Whether Petitioner was in substantial compliance with the requirements of 42 C.F.R. § 483.25 (Tag F684) (scope and severity level “J”), relating to quality of care; and

2) If Petitioner was not in substantial compliance with 42 C.F.R. § 483.25, whether the $14,330 per-instance CMP is appropriate and reasonable under applicable statutory and regulatory factors. 

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IV. Legal Framework

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

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

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

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

Broadly, noncompliance that subjects a SNF to enforcement remedies is divided into two levels.  One level comprises deficiencies that immediately jeopardize the health or safety of residents and the other level is composed of deficiencies that do not.  42 U.S.C. § 1395i-3(h)(1).  “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301. 

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The Secretary has the duty to enforce the statutory and regulatory participation requirements for SNFs.  42 U.S.C. § 1395i-3(f)(1).  To do so, the Secretary contracts with state agencies to conduct surveys to determine whether SNFs are in substantial compliance.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  Standard surveys are unannounced and occur at least once every 15 months.  42 U.S.C. § 1395i-3(g)(2)(A)(i), (iii)(I).  State agencies also conduct investigations into complaints against SNFs.  42 U.S.C. § 1395i-3(g)(1)(C), (4).  When the results of a survey show that a SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies on the SNF.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  When CMS selects an enforcement remedy to impose on an SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  See 42 C.F.R. § 488.404(a)-(b). 

One such remedy is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  CMS may impose a per-instance CMP for each instance of the SNF’s noncompliance.  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 after November 2, 2015, the per-instance CMP amounts may range from $2,400 to $23,989.  45 C.F.R. § 102.3 (2022); 87 Fed. Reg. 15,100, 15,111, 15,120 (Mar. 17, 2022); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments). 

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

If an SNF challenges the finding of a deficiency, CMS must make a prima facie case that the SNF failed to substantially comply with federal participation requirements and, if such a showing is made, the SNF must then prove substantial compliance by a preponderance of the evidence.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001).  If a SNF challenges CMS’s determination as to the level of noncompliance, CMS’s determination must be upheld unless it is clearly erroneous.  42 C.F.R. § 498.60(c)(2). 

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If an ALJ concludes that there was a basis for imposing a CMP on a SNF, then the SNF may dispute the amount of the CMP.  The ALJ’s review of the CMP amount is limited to considering the statutory and regulatory factors for setting a CMP amount.  42 C.F.R. § 488.438(e)(3); see 42 U.S.C. §§ 1320a-7a(d), 1395i-3(h)(2)(B)(ii)(I); 42 C.F.R. § 488.438(f).  The ALJ may not reduce a CMP to zero or review CMS’s exercise of discretion in imposing a CMP.  42 C.F.R. § 488.438(e)(1)-(2). 

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

V. Findings of Fact and Conclusions of Law5

1. Parties’ joint stipulation of facts6

Resident 10 was admitted to Alta on March 11, 2022.  CMS Ex. 4 at 1.  Licensed practical nurse (LPN) 2 documented that Resident 10 reported not feeling well and had been vomiting in the early morning of August 8, 2022, beginning at 1:00 a.m.  CMS Ex. 6 at 6.  Resident 10 reported that she thought she had eaten a “bad egg salad.”  Id. 

LPN2 gave Resident 10 Zofran between 1:00 a.m. and 2:00 a.m. on August 8, 2022.  CMS Ex. 6 at 6.  Resident 10 had a headache at 3:00 a.m. and was given Tylenol at 3:51 a.m.  Id.  Resident 10 reported being nauseated and was offered ice chips and saltine crackers.  At 4:32 a.m., Resident 10 reported her pain at a level 2.  Id. 

LPN2 called Resident 10’s physician, Dr. Magboo, at 5:32 a.m., 5:33 a.m., and 5:47 a.m.  Id.  LPN2 left a message for Dr. Magboo after she was unable to reach him.  Id. 

Resident 10 reported her pain level at 0 at 7:50 a.m.  P. Ex. 2 at 3.  At 8:00 a.m., Resident 10 received doses of Baclofen per standing orders. P. Ex. 1.  Resident 10 ate 51-75% of her breakfast at 8:34 a.m., 51-75% of her lunch at 1:06 p.m., and 76-100% of her dinner at 6:15 p.m.  CMS Ex. 17. 

A progress note at 12:34 p.m. stated that Resident 10 complained of nausea and vomiting with two episodes of yellowish vomit.  CMS Ex. 6 at 6.  It was noted that

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the doctor was informed and provided orders to start Zofran every six hours as needed.  At 2:39 p.m., Resident 10 reported her pain level at 0.  CMS Ex. 15 at 3. 

At 8:00 p.m., Resident 10 was given a dose of hydrocodone-acetaminophen for pain management related to multiple sclerosis.  CMS Ex. 7 at 21.  At 9:43 p.m., Resident 10 reported a pain level of 6 and a pain level of 7 at 10:51 p.m.  CMS Ex. 15 at 3. 

At 11:10 p.m., Resident 10 reported a pain level of 10 and LPN2 recorded that Resident 10 had an altered mental state.  CMS Ex. 15 at 3; CMS Ex. 6 at 1.  Resident 10’s physician was notified at 11:41 p.m.  CMS Ex. 6 at 1.  The doctor gave a phone order for Tramadol, one time dose.  Id. 

After leaving the facility, Resident 10 died in the emergency room at 1:47 a.m. on August 9, 2022. 

2. Additional Relevant Facts. 

Resident 10 was 49 years old and admitted to the facility with diagnoses that included multiple sclerosis, adult failure to thrive, muscle weakness, and repeated falls.  CMS Ex. 4 at 1-2.  A nursing note from August 8, 2022 documented that Resident 10 was vomiting and given Zofran at 1:00 a.m. with a blood pressure reading of 149/83 mm Hg.  CMS Ex. 6 at 6.  The note further documented that Resident 10 vomited again at 2:00 a.m. and 3:00 a.m.  Id.  Resident 10 also reported dizziness and a headache.  Id.  There was no record of a physician’s order for the Zofran that was administered to Resident 10.  Id. 

The Assistant Director of Nursing (ADON) was notified of Resident 10’s change in condition at 5:35 a.m. on August 8, 2022.  CMS Ex. 6 at 6.  The ADON instructed the nurse to offer ice chips and saltines, notify Resident 10’s physician, ensure the incoming nurse followed up with the physician, and let the other nurses know of Resident 10’s symptoms.  Id. 

On August 8, 2022, at approximately 12:00 p.m., LPN1 contacted Resident 10’s physician to obtain an order for Zofran.  CMS Ex. 1 at 10.  LPN1 informed the surveyors that medical records lacked evidence that the Zofran was administered after the physician’s order was received.  Id. at 10-11.  Similarly, there is no evidence documenting that Resident 10’s vitals were checked during LPN1’s shift from 6:00 a.m. to 6:00 p.m.  Id. at 11. 

A nursing note dated August 9, 2022, at 12:40 a.m. stated that Resident 10 had an altered mental state and abnormal vital signs.  CMS Ex. 6 at 1.  At 11:10 p.m. on August 9, 2022, Resident 10 complained of pain at 10 out of 10.  Id.; CMS Ex. 15 at 3.  The physician was notified of Resident 10’s status at 11:41 p.m. and her blood pressure was 179/120

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mm Hg.  CMS Ex. 6 at 1.  An order was made by Resident 10’s physician for tramadol.  Id.  Resident 10 vomited again at 11:45 p.m. on August 8, 2022.  Id.  The physician was contacted again at 12:25 a.m. on August 9, 2022, after Resident 10’s blood pressure was measured at 181/129 mm Hg, and the physician ordered that she be sent to the hospital.  Id. 

A nursing note dated August 9, 2022, at 2:38 a.m. documented that the hospital called and informed the facility that Petitioner had died.  CMS Ex. 6 at 1. 

2. Petitioner’s Acute Condition Changes Policy and Petitioner’s Change in a Resident’s Condition or Status Policy. 

The Acute Condition Changes policy required the nursing staff to contact the attending healthcare provider based on the urgency of the situation.  CMS Ex. 11 at 1.  The policy further states that the attending provider or a practitioner providing backup coverage will respond in a timely manner to notifications of problems or changes in condition and status.  Id.  The nursing staff was additionally instructed by the policy to contact the medical director for additional guidance and consultation if they do not receive a timely or appropriate response.  Id.  The policy also states that when a phone call is made to the attending physician or on-call provider, the nurse should have collected pertinent information including the resident’s current symptoms and status.  Id. 

The Change in a Resident’s Condition or Status policy requires the facility to promptly notify the attending physician and the resident’s representative of changes in the resident’s medical or mental condition and/or status.  CMS Ex. 12 at 1.  The policy further states that the nursing staff will notify the physician or physician on call if there is a significant change in condition which is defined as a change in the resident’s status that will not normally resolve itself without intervention by staff or impacts more than one area of the resident’s health.  Id. 

3. Petitioner’s Emergency and/or Alternative Physician Care Policy

Petitioner’s policy regarding Emergency and/or Alternative Physician Care states that each attending physician will provide the facility with names and contact information for designated alternate contacts and emergency coverage.  CMS Ex. 13 at 1.  The policy further states that should an emergency arise and the attending physician is not available, the emergency on-call physician must be contacted.  Id. 

4. Blood Pressure Range

The survey notes indicate that a normal range of blood pressure was 120/80 mm Hg.  CMS Ex. 1 at 9.  It appears from Resident 10’s vitals summary that the facility

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considered any reading over 139 systolic or any reading over 89 diastolic as out of normal range.  CMS Ex. 15. 

5. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25 (Tag F684) because Petitioner did not ensure that Resident 10 received treatment and care in accordance with professional standards of practice and Petitioner’s policy

The Social Security Act requires SNFs to “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.”  42 U.S.C. § 1395i-3(b)(2).  In furtherance of this mandate, the Secretary promulgated the general quality of care regulation at 42 C.F.R. § 483.25, which states that the SNF “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.”7 

“A SNF also would need to furnish the care and services in the resident’s care plan, implement doctors’ orders, monitor and document the resident’s condition, and follow the SNF’s resident care policies.” Lutheran Home, DAB No. 3146 at 4 (2024); Venetian Gardens, DAB No 2286 at 5 (2009) (“The Board has repeatedly stated that a facility’s failure to follow its care plan or a doctor’s order may be grounds for concluding that the facility is not in substantial compliance with section 483.25 quality of care standards.”).  A facility’s policy “may reflect that facility’s own judgment about how best to achieve compliance and hence failure to comply with its own policies can support a finding” that the facility was not in substantial compliance with the regulations.  Bivins Mem’l Nursing Home, DAB No. 2771 at 9 (2017). 

However, “the statute and regulations hold facilities to meeting their commitments to provide care and services in accordance with the high standards to which they agreed but do not impose strict liability, i.e., they do not punish facilities for unavoidable negative outcomes or untoward events that could not reasonably have been foreseen and forestalled.”  Tri-County Extended Care Ctr., DAB No. 1936 (2004).   

CMS argues that Petitioner was not in substantial compliance with the quality-of-care requirements at 42 C.F.R. § 483.25 because Petitioner failed to provide the necessary care to Resident 10 and failed to ensure the resident received treatment and care in accordance with professional standards of practice and the facility’s policies.  Specifically, CMS contends that the facility failed to monitor, accurately document, and respond to Resident 10’s change in condition.  CMS Br. 

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Petitioner disputes CMS’s allegations.  Petitioner argues that the evidence shows that Petitioner properly monitored Resident 10, properly followed the facility’s procedures and policies, and that Resident 10’s death was unrelated to the episodes of vomiting.  P. Br. at 3; P. Ex. 5.  Petitioner alleges that it properly monitored Resident 10 throughout the day, that there was no requirement to perform additional assessments, and that its staff properly communicated with Resident 10’s physician.  Petitioner also asserts that any medication provided to Resident 10 was properly dispensed. 

Contrary to what is alleged by Petitioner, Petitioner was not in substantial compliance with 42 C.F.R. § 483.25 because it failed to provide the required treatment and care to Resident 10 in accordance with the professional standards of practice and Petitioner’s own policies.  These failures clearly posed a potential for more than minimal harm. 

Petitioner failed to ensure that Resident 10 received the care required by its change in condition and acute care policies.  Resident 10 vomited three times at the facility on the morning of August 8, 2022.  CMS Ex. 6 at 1, 6.  Resident 10 also told the staff when she returned to the facility after a day out with her family that she was not feeling well and had been vomiting.  Id.  In response to the vomiting, LPN2 gave Resident 10 Zofran.  Id. at 6.  Resident 10 was given Tylenol after she complained of a headache.  Id.  After her morning treatments, Resident 10 vomited two more times according to a 12:34 p.m. nursing note.  Id.  The note also indicates that there were complaints of nausea and yellow vomit.  Id. 

Petitioner’s policies required the physician to be notified immediately if there is a change in a resident’s condition that will not resolve without staff intervention.  CMS Exs. 11, 12.  Despite reaching out to the attending physician three times around 5:30 a.m. on August 8, 2022, the attending physician did not communicate with staff about Resident 10 until LPN1 reached out again approximately seven hours later.  CMS Ex. 6 at 1, 6.    This is inconsistent with Petitioner’s policies because the facility had clearly determined that the vomiting situation would not resolve itself on its own when the LPN administered Zofran. 

Additionally, the record does not support that the nurse followed Petitioner’s policy requiring staff to provide the resident’s current symptoms and status.  Neither the nursing notes or Dr. Magboo’s testimony indicate that nursing staff provided information on Resident 10’s temperature or blood pressure when they reached out to the attending physician.  The record also does not show that LPN, or any other staff member, provided the Zofran to Resident 10 despite the doctor’s order. 

Petitioner’s assertion and suggestions that it provided proper care in accordance with the regulations and its polices are not supported by the record.  After noticing Resident 10’s multiple episodes of vomiting and complaints of a headache, LPN2 tried to reach out to the attending physician.  CMS Ex. 6 at 6.  However, she was unable to reach him.  Id. 

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Petitioner’s policy requires that the staff then reach out to a backup or covering provider.  However, the record does not suggest that any such action was taken.  In fact, the record shows that no additional action was taken until 7 hours later when Resident 10 had additional episodes of vomiting and the attending physician was again reached out to for medical orders.  As a result, Petitioner’s staff failed to follow their own policy. 

The record also shows that the facility failed to timely react to Resident 10’s change in condition.  Despite the LPN who treated Resident 10 early in the morning making a note that monitoring of the resident should occur while awaiting a call back from the physician, no monitoring was done.  CMS Ex. 6 at 6.  The Director of Nursing stated that the protocol for a vomiting resident is to notify the physician and monitor the resident’s vital signs, reporting any changes.  CMS Ex. 1 at 12; CMS Ex. 5 at 2.  Resident 10 had vomiting instances throughout the day on August 8, 2022, and her vitals were not taken again until she began to complain of high levels of pain with an altered mental state, at least 15 hours after the last time her vitals were taken.  The record also shows that at no point did any staff besides an LPN assess Resident 10 despite the resident having ongoing episodes of vomiting, complaints of a headache, and a high blood pressure reading in the morning that skyrocketed in the evening. 

All of these failures at least posed a potential for more than minimal harm because it prevents prompt identification of a potential cause for the change in condition and prevents implementation of an adequate and prompt response to that change in condition.  The result in this case does not change because Petitioner’s actions did not cause the initial vomiting or that vomiting may not have caused Resident 10’s death.  Causation is not a requirement for a finding of substantial noncompliance in this case.  The potential for more than minimal harm posed by Petitioner’s noncompliance emanates from the previously mentioned failures to provide the necessary care in accordance with regulatory requirements and professional standards of practice.  Petitioner suggests that any alleged noncompliance did not cause Resident 10’s death.  However, had the facility reacted to Resident 10’s change in condition by providing assessments and monitoring, the facility may have been able to treat Resident 10 timely or identify any underlying causes of her pain and vomiting.  If Petitioner had provided care in accordance with professional standards of practice and its own policies, Petitioner may have been able to respond to those changes, monitored her vitals, and provided additional care planning. 

I conclude that CMS provided sufficient evidence to meet its burden of showing a prima facie case for a deficiency (i.e., the potential for causing more than minimal harm).  Hillman, DAB No. 1611 at 8.  Moreover, Petitioner’s assertions are unpersuasive.  I conclude that Petitioner did not comply substantially with 42 C.F.R. § 483.25. 

Petitioner also argues that Plott Nursing Home v. Burwell, 779 F.3d 975 (2013) requires that all deficiencies be reviewed.  However, such a contention is misplaced because CMS only found that Petitioner was not in compliance with 42 C.F.R. § 483.25 and imposed a

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per instance CMP for that finding of noncompliance.  As a result, there are no other deficiencies to review.  Additionally, the parties agreed in the July 11, 2023 status report that the issue before me was related only to whether or not Petitioner was in substantial compliance with the one deficiency cited at 42 C.F.R. § 483.25. 

VI. The level of noncompliance is unreviewable in this case

CMS determined Petitioner’s noncompliance with 42 C.F.R. § 483.25 constituted immediate jeopardy.  Petitioner’s arguments may be construed as a challenge to the level of noncompliance based on Petitioner’s claim that Resident 1’s change in condition was caused by his medical condition, not by Petitioner’s actions or omissions.  See P. Br at 11-13.  A facility has a right to appeal a “certification of noncompliance leading to an enforcement remedy.”  42 C.F.R. §§ 488.408(g)(1), 488.330(e), 498.3(b)(13).  However, a facility may only challenge the scope and severity level of noncompliance determined by CMS if a successful challenge would affect the range of the CMP that may be imposed or would impact the facility’s authority to conduct a NATCEP due to a finding of substandard quality of care.  42 C.F.R. § 498.3(b)(14), (d)(10)(i).  If reviewable, the CMS determination as to the level of noncompliance “must be upheld unless it is clearly erroneous.”  42 C.F.R. § 498.60(c)(2); Woodstock Care Ctr., DAB No. 1726 at 9 (2000), aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003). 

Neither of the circumstances that permit Petitioner to challenge the level of noncompliance exists in this case. 

A successful challenge would not affect the range of the CMP that CMS may impose.  The scope and severity determination does not affect the CMP range CMS may choose when imposing a per-instance penalty.  In the case of a per-instance CMP, the regulations provide for a single penalty range without regard to the level of noncompliance.  42 C.F.R. § 488.438(a)(2).  Thus, if CMS decides to impose a per-instance CMP, the amount selected must fall within the single range.  There is no separate, lower range CMS could choose.  “The Board has long held that because a per-instance CMP has a single range, a successful challenge to a per-instance CMP could not affect the range of the CMP.”  Pearsall Nursing & Rehab. Ctr. – N., DAB No. 2692 at 10 (2016). 

Petitioner does not argue that the second basis that authorizes review is present in this case.  Petitioner does not allege that it had a NATCEP when CMS issued its notice of noncompliance nor that it lost such a program because of a substandard quality of care finding.  Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2378 at 24 (2011).  “The loss of approval for a NATCEP program would not be affected by a successful challenge to the level of noncompliance because, by operation of law, the imposition of a CMP of $5,000 or more results in NATCEP loss whether or not immediate jeopardy is present.”  Fort Madison Health Ctr., DAB No. 2403 at 13 (2011) (citing Act 1819(f)(2)(B)(iii)(I)).   CMS’s level-of-noncompliance finding does not affect approval of the facility’s

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NATCEP when I uphold a penalty of $22,584 or more.  Under the statute and regulations, the state agency cannot approve a NATCEP if CMS imposes a penalty of $11,995 or more.  42 C.F.R. § 483.151(b)(2)(iv); 45 C.F.R. § 102.3 (2022).  Thus, the facility loses its approval without regard to the level noncompliance finding. 

VII. The $14,330 per-instance CMP imposed by CMS is reasonable. 

CMS imposed a per-instance CMP in the amount of $14,330 on Petitioner.  CMS Ex. 2.  The CMP was imposed for the instance on November 23, 2022.  Id.  When determining whether the CMP amount is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance, including repeated deficiencies; 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 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), (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).  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. 2829 at 22 (2017). 

Pursuant to 42 C.F.R. § 488.408(g)(2), a facility cannot appeal CMS’s choice of a remedy, and an appeal of a CMP is limited to review based on the regulatory factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404.  See, e.g., Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 19-20 (2010).  The per-instance CMP range of $2,400 to $23,989, as adjusted for inflation, is applicable to this case.  42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3 (2022); 87 Fed. Reg. 15,100, 15,111, 15,120. 

Petitioner did not provide any arguments to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Therefore, I uphold the $14,330 per-instance CMP. 

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Petitioner’s brief only argues that the CMP should not be imposed because the facility was in compliance with the conditions of participation and that CMS did not offer any evidence to support the assertion that the CMP is reasonable.  See P. Br.  Petitioner argues that the total amount of the CMP is unreasonable because CMS failed to establish its prima facie case.  However, as stated above, I have determined that the facts before me support a finding of substantial noncompliance.  Thus, the issue before me is whether the regulatory factors were considered in setting the CMP amount and whether those factors support the CMP amount.  42 C.F.R. §§ 488.438(f), 488.404.  Petitioner does not allege that a particular regulatory factor does not support the CMP amount.  See P. Br.  Nonetheless, I will briefly discuss the relevant factors. 

Scope and Severity of Deficiencies and Relationship Between Deficiencies: Considering the factors, Petitioner’s noncompliance was very serious.  Petitioner’s failure to ensure that Resident 10 received care in accordance with professional standards of practice prevented the staff and physician from acting promptly to Resident 10’s change in condition. 

Culpability:  Petitioner’s culpability is also significant as Petitioner’s failures show a disregard for Resident 10’s care and safety. 

Facility’s History of Non-Compliance:  CMS has not presented evidence of Petitioner’s noncompliance history. 

Financial Condition of the Facility:  “In weighing evidence on financial condition, the Board has consistently held that the ‘correct inquiry is ‘whether the facility has adequate assets to pay the CMP without having to go out of business or compromise resident health and safety.’”.  Van Duyn Home & Hosp., DAB No. 2368 at 18 (2011) (quoting Gilman Care Ctr., DAB No. 2362, at 6 (2010)).  “It is the responsibility of the facility to furnish the information it believes appropriately represents its financial status.”  Gilman, DAB No 2362 at 7.  Petitioner presents no evidence of its financial condition.  Therefore, this is not a factor that impacts the CMP amount in this case. 

CMP Amount:  I find no basis to reduce the CMP.  Therefore, based on the factors above and in consideration of the amount imposed, the CMP imposed is supported by the record and is appropriate. 

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VIII. Conclusion

For the reasons set forth above, I sustain CMS’s determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25 and that the $14,330 per-instance CMP is fully supported by the relevant statutory and regulatory factors in this case.