Park Terrace Care Center, DAB CR6967 (2026)

DECISION

In 2021, Resident 1 (R1) was a resident at Park Terrace Care Center (Petitioner), a skilled nursing facility participating in the Medicare program.  Petitioner’s staff assessed R1 as severely impaired, both physically and cognitively, and totally dependent on assistance from staff for bed mobility and transfers.  R1’s care plan required two staff members to assist turning R1 in bed.  R1’s care plan also required two staff members to use a mechanical lift to transfer R1 between surfaces.  Only one staff member was needed to dress R1. 

One morning, certified nursing assistant 1 (CNA1) was dressing R1 in bed.  While CNA1 turned R1 to complete dressing him, R1 fell from the bed to the floor.  R1 suffered a wound to his head from which he had moderate bleeding.  CNA1 obtained the assistance of certified nursing assistant 2 (CNA2), and the two of them lifted R1 back into bed without using a mechanical lift.  CNA1 then told a registered nurse (RN) that R1 hit his head on the bed railing, causing the laceration.  CNA1 did not tell the RN that R1 fell to the floor.  A physician ordered R1 transferred to a hospital’s emergency department (ED), where they sutured R1’s wound and confirmed that he did not have bleeding or injuries within his head.  R1 returned to the facility later in the evening.  The next

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morning, Petitioner’s staff noticed that R1’s right knee was swollen and discolored.  An X-ray revealed that R1 had an acute right distal femoral impaction fracture.  Petitioner again sent R1 to the ED.  The hospital admitted R1, and R1 did not return to the facility for two weeks. 

During an investigation conducted by one of Petitioner’s RNs, CNA1 admitted that R1 had fallen to the floor and had not hit his head on a bed rail.  Petitioner’s investigation concluded that CNA1 failed to comply with the requirements in R1’s care plan when she turned R1 in bed without the assistance of another staff member and when CNA1 and CNA2 lifted R1 from the ground to the bed without using a mechanical lift.  The investigation also concluded that CNA1 delayed proper medical treatment for R1 when she concealed that R1 fell to the floor.  Petitioner suspended both CNA1 and CNA2. 

The New York Department of Health (state agency) investigated this incident on behalf of the Centers for Medicare & Medicaid Services (CMS) and found that Petitioner had not been in substantial compliance with Medicare program participation requirements concerning quality of care and accidents (i.e., 42 C.F.R. § 483.25(d)).  CMS agreed with the state agency that the deficiency resulted in actual harm to one of the facility’s residents.  CMS imposed a $12,155 per-instance civil money penalty (CMP) on Petitioner. 

Petitioner sought review of CMS’s determination and the imposition of the CMP.  Petitioner argues that CNA1 conducted herself properly because the care plan only required a single person to assist R1 with dressing.  Further, Petitioner argues that after R1 fell, none of the other events, such as failing to use a lift to return R1 to the bed, can serve as a basis for an accident deficiency because R1 was already injured. 

As I explain below, I conclude that CMS met its burden to show that Petitioner was noncompliant with 42 C.F.R. § 483.25(d) because Petitioner failed to provide care to R1 in accordance with R1’s care plan when it was foreseeable that R1 could be injured if a single staff member turned R1 in bed without the assistance of a second staff member.  Further, R1 suffered actual harm when he fell to the floor and hit his head with sufficient force that he required sutures to close the laceration.  In addition, I conclude that Petitioner violated 42 C.F.R. § 483.25(d) when CNA1 failed to use a mechanical lift to return R1 to his bed, as required by R1’s care plan.  Although there is no evidence that the failure to use the lift caused actual harm, the lift was required for R1’s safety and Petitioner needed to use appropriate assistive devices to avoid accidents.  Finally, CNA1 failed to report that R1 had when falling to the floor, which impeded R1’s ability to receive proper medical care for a leg fracture that was only later discovered.  Petitioner did not meet its burden to show compliance with 42 C.F.R. § 483.25(d).  Therefore, I affirm CMS’s findings of noncompliance.  Further, because Petitioner did not specifically dispute the reasonableness of the amount of the CMP imposed, I affirm the imposition of the $12,155 per-instance CMP. 

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I.  Legal Framework

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

For Medicare program purposes, a facility 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).  If a facility wants to participate in the Medicare program, it must enroll in that program.  42 U.S.C. § 1395cc(j).  Because a facility is a “provider of services” for Medicare program purposes, each facility participating in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u). 

A Medicare participating facility must meet a variety of ongoing statutory requirements as to how it provides services, maintains the rights of its residents, and administers its facility.1  42 U.S.C. § 1395i-3(a)(3), (b)-(d).  Further, each facility must comply with “such other requirements relating to the health, safety, and well-being of residents or

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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 implement the statutory requirements and to establish those “other requirements relating to health, safety, and well-being of residents.”  See 42 C.F.R. pt. 483, subpt. B.2 

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

“It is the duty and responsibility of the Secretary to assure that requirements which govern the provision of care in skilled nursing facilities . . . are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public moneys.”  42 U.S.C. § 1395i-3(f)(1).  To do so, the Secretary contracts with state agencies to survey participating facilities.  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 investigate complaints made against facilities.  42 U.S.C. § 1395i-3(g)(1)(C), (4). 

When the results of a survey or investigation show that a facility is not in substantial compliance with Medicare program participation requirements, the Secretary may impose remedies on the facility, which include the following:  denial of payment for Medicare beneficiaries admitted to the facility; denial of payment for new admissions (DPNA) to the facility; and termination of the facility’s Medicare provider agreement.  42 U.S.C. §§ 1395i-3(h), 1395cc(b); 42 C.F.R. § 488.406. 

Another enforcement 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 facility’s noncompliance or a per-day CMP for the number of days a facility 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 after November 2, 2015, the CMP amounts range as follows:  $2,400 to $23,989 for per-instance CMPs; $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.  45 C.F.R. § 102.3 (2020); 87 Fed. Reg. 15100, 15111-12, 15119-20 (Mar. 17, 2022); see also 42 C.F.R. § 488.438(a) (CMP ranges before statutory adjustments). 

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All remedies imposed on facilities are remedial in nature because they “ensure prompt compliance with [Medicare] program requirements” and “are applied on the basis of noncompliance found during surveys conducted by CMS or by the survey agency.”3  42 C.F.R. § 488.402(a)-(b); NMS Healthcare of Hagerstown, DAB No. 2603 at 8 n.6 (2014) (holding that, although the regulations use the term “civil money penalty,” the regulations also “make it clear that a CMP is not a punitive mechanism.”).  To assist a facility in returning to substantial compliance quickly, facilities must file a plan of correction with the state agency/CMS.  42 C.F.R. § 488.402(d). 

When CMS selects a remedy to impose on a facility, 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).  The highest level of severity occurs when the noncompliance immediately jeopardizes the health or safety of facility residents.  See 42 U.S.C. § 1395i-3(h)(1)(A).  “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. 

A facility may request a hearing before an administrative law judge to dispute the finding of noncompliance leading to the imposition of an enforcement remedy.  42 U.S.C. §§ 405(b), 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii), 1395cc(h)(1); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.402(f)(1)(iv), 488.408(g)(1), 488.434(a)(2)(viii), 498.3(b)(8), (13), 498.40; see Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 21 (2000) (holding that facilities are entitled to review of any determination of substantial noncompliance with Medicare participation requirements whether termination or “some other remedy is imposed.”); 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). 

When challenging the imposition of a CMP, a facility may also challenge the level of noncompliance if:  1) a successful challenge would affect the range of CMP amounts imposed on the facility; or 2) a finding of substandard quality of care results in the loss of approval of a nurse aide training program.  42 C.F.R. § 498.3(b)(14), (d)(10).  If a facility challenges CMS’s determination as to the level of noncompliance, then the facility must show that CMS’s determination was clearly erroneous.  42 C.F.R. § 498.60(c)(2). 

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A facility may also dispute the amount of the CMP.  The review of the CMP amount is limited to considering the statutory and regulatory factors for setting the 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).  A CMP may not be reduced to zero.  42 C.F.R. § 488.438(e)(1). 

When a facility challenges CMS’s determination that there was a deficiency, CMS must make a prima facie case that the facility failed to substantially comply with Medicare participation requirements and, if such a showing is made, the facility must then prove substantial compliance by a preponderance of the evidence.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Hum. Servs., No. Civ.A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); 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). 

Either party may request Departmental Appeals Board (DAB) review of an administrative law judge’s decision.  42 C.F.R. § 498.80; see also 5 U.S.C. § 557. 

II.  Background and Procedural History

Petitioner is a facility located in Corona, New York.  From May 12, 2022 through June 27, 2022, a state agency surveyor conducted a complaint investigation survey at Petitioner’s facility.  CMS Exs. 1-2.  The state agency found Petitioner noncompliant with 42 C.F.R. § 483.25(d) and that actual harm to a resident resulted.  CMS Ex. 1 at 1. 

In a July 22, 2022 notice of initial determination, CMS accepted the state agency’s findings of noncompliance and imposed the following on Petitioner:  a per-instance $12,155 CMP; a DPNA effective June 30, 2022; and a prohibition on a nurse aide training and competency evaluation program (NATCEP) effective June 27, 2022.  CMS Ex. 2 at 1-2, 4.  In a September 8, 2022 notice, CMS stated that Petitioner returned to compliance on August 19, 2022, the DPNA was rescinded, and the $12,155 CMP was imposed and due.  H’rg Req. Ex. C at 2, 4. 

On September 20, 2022, Petitioner requested a hearing to dispute the findings of noncompliance as well as the imposition of a CMP and the prohibition on conducting a NATCEP.  On September 22, 2022, the Civil Remedies Division acknowledged the hearing request and issued my Standing Prehearing Order and the Civil Remedies Division Procedures (CRDP).  On January 10, 2023, CMS filed a prehearing brief/motion for summary judgment (CMS Br.) and 18 proposed exhibits.  One of the proposed exhibits was the written direct testimony of the state agency surveyor.  See CMS Ex. 16.  On February 15, 2023, Petitioner submitted a prehearing brief/opposition to summary judgment (P. Br.) and 4 proposed exhibits.  Two of the proposed exhibits were the written

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direct testimony from Petitioner’s Regional Director of Rehabilitation and an RN who works at Petitioner’s facility.  See P. Exs. 2, 4. 

III.  Admission of Evidence and Decision on the Written Record

Neither party objected to any of the proposed exhibits; therefore, I admit all of them into the record.  See Standing Prehearing Order ¶ 9; CRDP § 14(e). 

I directed the parties to submit written direct testimony for all witnesses that they wanted to testify in this proceeding, and I stated that an in-person hearing would only be necessary if a party requested to cross-examine at least one witness from whom written direct testimony was submitted.  Standing Prehearing Order ¶¶ 10-12; see also CRDP §§ 16(b), 19(b).  To request to cross-examine a witness, I required Petitioner to make “an explicit request for cross-examination of a particular witness” by filing “a document naming the witnesses who Petitioner wants to cross-examine,” and “the request to cross-examine must be a separate document from Petitioner’s brief.”  Standing Prehearing Order ¶ 11 (emphasis in original); see also CRDP § 16(b) (“An ALJ may order that parties affirmatively state in writing their intent to cross-examine a specific witness.”).  I required CMS to make a similar request “within 15 days of receiving Petitioner’s exchange” if CMS wanted to cross-examine a witness.  Standing Prehearing Order ¶ 11 (emphasis in original).  Finally, I stated that a hearing to cross-examine witnesses will be necessary only if a party files admissible written direct testimony, and the opposing party requests to cross-examine the witness.  Standing Prehearing Order ¶ 12; CRDP § 19(b). 

The requirements I established for requesting cross-examination are necessary to ensure that cases can be efficiently reviewed to determine whether an in-person hearing is necessary or a decision may be rendered on the written record.  Further, vague requests to cross-examine all witnesses do not reflect the considered judgment of the parties that cross-examination is necessary but merely serve to reserve cross-examination should the party later decide it wants to cross-examine one or more witnesses. 

In the present case, CMS submitted written direct testimony from one witness and Petitioner submitted written direct testimony from two.  CMS did not file a request to cross-examine any specific witness or witnesses within 15 days of receiving Petitioner’s prehearing exchange.  CMS only made a generic request in its brief, before knowing whether Petitioner would have any witnesses, to “reserve the opportunity to cross-examine one or more of Petitioner’s witnesses if a hearing is deemed to be necessary in this case.”  CMS Br. at 18.  Similarly, Petitioner made a generic request in its brief that “reserves the opportunity to cross-examine CMS’ witness(es) if this matter proceeds to a hearing.”  P. Br. at 13.  CMS had already provided written direct testimony for a single witness, yet Petitioner’s request does not acknowledge that in its request to cross-examine “witness(es).” 

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CMS violated my order when it failed to specifically identify the witness or witnesses for cross-examination after receiving Petitioner’s prehearing exchange (i.e., after Petitioner identified witnesses and submitted written direct testimony).  Petitioner violated my order when it failed to specifically identify CMS’s witness and to make the cross-examination request in a separately filed document rather than its brief. 

The DAB held that an ALJ properly rejected requests to cross-exam witnesses that failed to meet requirements in a prehearing order. 

The ALJ ruled that “[n]either party has requested a hearing for the purpose of cross-examination of any witnesses, and a hearing is therefore unnecessary.”  The ALJ informed the parties by pre-hearing order that each party “has the right to cross-examine any witness for the opposing party,” but, “[a]bsent an explicit request for cross-examination of a particular witness, I will not afford an opportunity for cross-examination.”  In conspicuous type, the ALJ directed that “A request for cross-examination must be in the form of a notice that is filed separately from a brief,” and “must list the specific witness(es) and must indicate the anticipated amount of time that will be required for cross-examination of each witness.”  Neither party submitted a request in the required format. 

* * * * *

Even if CMS had intended to file an unconditional cross-examination request, the ALJ permissibly disregarded it for not being filed separately from a brief and not listing the anticipated amount of time required for cross-examination, as the ALJ had ordered. 

* * * * *

Accordingly, we find no error in the ALJ’s determination that an in-person hearing was unnecessary because neither party requested cross-examination of a witness. 

El Medical, Inc., DAB No. 3117 at 14-15 (2023) (emphasis in original) (internal citation omitted); see also HeartFlow, Inc., DAB No. 2781, at 16 (2017). 

I have authority over the conduct of the hearing, which includes deciding how evidence and argument from the parties is presented and received.  42 C.F.R. § 498.60(b)(3); see

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also 5 U.S.C. § 556(c)(5).  Further, I can impose sanctions on a party for failing to comply with an order.  42 U.S.C. § 1320a-7a(c)(4) (made applicable to this proceeding by 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I)); see also Chit-Chat Inc., DAB No. 2936, at 9 (2019) (“Compliance with ALJ orders is not optional.”).  I conclude that the parties have each violated my Standing Prehearing Order concerning requests to cross-examine witnesses.  Therefore, I strike those defective requests.  As a result, I render this decision based on the written record.  CRDP § 19(d). 

IV.  Issues

1. Whether Petitioner was in substantial compliance with the requirements of 42 C.F.R. § 483.25(d).
2. If Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d), whether the $12,155 per-instance CMP is reasonable under applicable statutory and regulatory factors. 

V.  Findings of Fact and Conclusions of Law

1. R1 was a non-ambulatory resident at Petitioner’s facility who was diagnosed with cerebrovascular disease, ataxia, aphasia, vascular dementia, seizure, and hypertension.  In June 2020, Petitioner instituted a care plan that identified R1 as a fall risk and was totally dependent on staff for activities of daily living (ADL).  As a result, the care plan required two facility staff members to assist R1 with bed mobility and one staff member to assist with dressing.  Further, the care plan required that transfers for R1 needed to be done by two staff members using a mechanical lift.  A Minimum Data Set (MDS) assessment in March 2021 provided findings consistent with the June 2020 care plan’s requirements.  The MDS assessment found that all four of R1’s limbs were impaired and that R1 was severely cognitively impaired. 

R1 is male born in 1965 who was admitted to Petitioner’s facility in 2010.  CMS Ex. 5 at 1; CMS Ex. 6 at 2.  R1’s diagnoses included:  cerebrovascular disease; ataxia; aphasia; vascular dementia without behavioral disturbance; seizures; hypertension; and gastro-esophageal reflux disease without esophagitis.  CMS Ex. 5 at 1. 

On June 8, 2020, Petitioner made “Falls” a “Focus” in R1’s care plan, identifying it as a potential for injury due to R1’s “tendency to lean on Right side when in bed and [wheelchair],” decreased safety awareness, “impaired judgment and insight,” and “unsteady gait.”  CMS Ex. 7 at 1.  Petitioner’s interventions for R1 concerning falls included: 

• R1’s expected self-performance is “total dependence”;

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• Two+ person physical assist is needed;
• Transfers are to be done by lifting mechanically with two people. 

CMS Ex. 7 at 2. 

Also on June 8, 2020, Petitioner made “ADL Function/Rehabilitation Potential” a “Focus” in R1’s care plan, identifying R1’s “[m]obility severely impaired, with no ability to make decisions, Totally dependent with ADLs,” and requiring “transfer – [totally dependent] x 2 via mech. lift.”  CMS Ex. 8 at 1.  Petitioner’s interventions included: 

• R1 required Two+ person physical assist for bed mobility because he was totally dependent on staff assistance; and
• R1 required One person physical assist for dressing because he was totally dependent on staff assistance. 

CMS Ex. 8 at 2; see also P. Ex. 2 ¶¶ 8-9. 

On March 30, 2021, Petitioner’s staff conducted a quarterly MDS assessment of R1.  CMS Ex. 6 at 1.  The assessment concluded that: 

• R1 was impaired on both sides in R1’s upper and lower extremities;
• R1 had “Total dependence” on staff and needed “Two+ persons physical assist” for bed mobility (i.e., “how resident moves to and from lying position, turns side to side, and positions body while in bed or alternative sleep furniture”);
• R1 had “Total Dependence” on staff and needed “Two+ persons physical assist” for transfers (i.e., “how resident moves between surfaces including to and from:  bed, chair, wheelchair, standing position (excludes to/from bath/toilet)”);
• R1 had “Total Dependence” on staff and needed “one person physical assist” for dressing (i.e., “how resident puts on, fastens and takes off all items of clothing, including donning/removing a prosthesis or TED hose.  Dressing includes putting on and changing pajamas and housedresses”);
• R1 used a wheelchair as a mobility device;
• R1 had highly impaired vision; and

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• R1 had severe cognitive impairment based on the Brief Interview for Mental Status (BIMS) score of 3. 

P. Ex. 1; CMS Ex. 6 at 3-4, 6. 

2. On May 5, 2021, CNA1 reported to an RN that R1 received an injury to his head while CNA1 turned R1 in bed to finish dressing him.  CNA1 told the RN that the left side of R1’s head hit the bed rail.  The RN assessed R1 and noted that R1 was bleeding moderately from a laceration near the outer corner of R1’s left eye.  The RN bandaged R1, and R1 went to a hospital ED.  Testing results showed R1 did not have any internal head injuries, but the results were unclear if there was a fracture in the right pelvic area/femoral head.  R1 received three sutures to close the laceration and returned to Petitioner’s facility on the night of May 5, 2021. 

On May 5, 2021, R1 was involved in an incident that resulted in injury.  CNA1 was present and described the incident in a written statement as follows: 

Around 6:10 a.m., I was giving care to resident room 515B.  While dressing him I turn [sic] him on the left side and he hit his head on the bed rail.  I pull [sic] the other rail up and call the nurse.4

CMS Ex. 10 at 6. 

The RN to whom CNA1 reported the injury also provided a written statement, which details the next relevant events: 

Approximately at 6:10 a.m., was called by CNA and reported that [R1] hit siderail delivering care.  Responded at once and found [R1] lying on bed dressed with laceration on the left outer corner of eye and bleeding moderately.  Pressure dressing applied and bleeding stopped.  Initial neuro check done with no significant findings. 

CMS Ex. 10 at 3; see also CMS Ex. 10 at 1. 

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A supervisory RN completing the transfer paperwork for R1 to go to the ED, which summarized the incident involving R1 as follows: 

6:10 AM During routine morning care while CNA was turning resident to his left side while dressing him up, resident hit his outer corner of left eye on left siderail of his bed and sustained approximately 2cm laceration . . . [with] moderate amount of bleeding.  Area cleansed and dry.  [Dressing] applied.  [Physician] notified and ordered transfer to [ED] for possible suturing & further evaluation. 

CMS Ex. 12 at 2.  The supervisory RN testified in this proceeding that she and another RN “performed a full body check of Resident #1 following his fall from his bed,” which included his knees and hip, and, to the best of her knowledge, no leg injuries or fractures were sustain by R1.  P. Ex. 4 ¶ 4.  The state agency surveyor testified that there is no documentation to corroborate that a full body check of R1 was completed prior to R1 being sent to the ED.  See CMS Ex. 16 ¶ 29. 

The ED physician examined R1 at approximately 9:51 a.m.  The physician stated in his notes that the chief complaint was a head injury and laceration.  The physician noted a small 1 cm laceration to the left orbital region and that R1 denied other injuries.  The physician also observed “no signs of external trauma on upper and lower extremities. . . . Patient is contracted in the upper and lower limbs.”  CMS Ex. 14 at 1-2. 

The ED completed various tests on May 5, 2021, including a computed tomography (CT) scan of R1’s head, which found no evidence of injury.  CMS Ex. 14 at 9.  An X-ray of R1’s pelvis was interpreted as follows: 

In the clinical setting of fall, an acute fracture is not excluded.  There is advanced right hip degenerative joint disease with acetabular marginal sclerosis and spurring and over coverage of the femoral head.  The femur is internally rotated distorting the anatomy particularly the head, neck and greater trochanter bilaterally. 

CMS Ex. 14 at 6. 

On May 5, 2021 at 1:55 p.m., a physician sutured R1’s laceration with three sutures.  CMS Ex. 14 at 4-5. 

At 8:30 p.m. on May 5, 2021, R1 returned to Petitioner’s facility from the ED with three sutures in the left lateral orbital area.  The ED’s discharge instructions indicated daily

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cleaning of the wound, monitoring for infection, and sutures should be removed on May 10, 2021.  CMS Ex. 12 at 3. 

3. On the morning of May 6, 2021, Petitioner’s staff noticed that R1 had swelling and discoloration around R1’s right knee and a bump on R1’s right upper thigh.  Petitioner’s staff took an X-ray, which revealed that R1 had an acute distal femoral impaction fracture identified with joint effusion.  Petitioner transferred R1 to the ED.  R1 did not return to Petitioner’s facility until May 20, 2021. 

After R1 returned to Petitioner’s facility on night of May 5, 2021, Petitioner commenced neurological checks of R1 every two hours.  CMS Ex. 12 at 3-4.  In the late morning of May 6, 2021, Petitioner’s staff noted a bump on R1’s right upper thigh as well as swelling, redness, a small open area, and discoloration around R1’s right knee.  CMS Ex. 12 at 5.  Petitioner’s staff took an X-ray, which showed that R1 had an acute distal femoral impaction fracture identified with joint effusion.  CMS Ex. 12 at 6; see also CMS Ex. 13.  A physician ordered R1 transferred to the ED, which occurred a little after 7:00 p.m.  CMS Ex. 12 at 6; see also CMS Ex. 13.  R1 did not return to Petitioner’s facility from the hospital until May 20, 2021.  CMS Ex. 7 at 3. 

4. Following the X-ray taken on May 6, 2021, showing a right leg femoral impaction fracture, an RN further investigated the May 5, 2021, incident leading to R1’s injuries.  During the investigation, CNA1 admitted that R1’s head did not hit a bed rail but that R1 had fallen from the bed to the floor while she turned him.  CNA1 stated that she then asked CNA2 for assistance, and they returned R1 to his bed from the floor.  CNA1 admitted that she reported R1 was injured when his head hit the bed rail.  The investigating RN concluded that CNA1 violated R1’s care plan when she turned R1 in bed, while changing his clothes, without a second person assisting.  The investigating RN also found that CNA1 and CNA2 improperly transferred R1 from the floor to the bed because they did not use a mechanical lift.  Finally, the investigating RN concluded that CNA1’s failure to truthfully report that R1 fell to the floor delayed R1’s medical treatment for that fall.  On May 7, 2026, Petitioner suspended both CNA1 and CNA2 and reported the incident to the state agency. 

Following the laceration to R1’s head on May 5, 2021, an RN from Petitioner’s facility investigated the incident and took statements from CNA1 and the RN who aided R1.  CMS Ex. 10 at 1-3, 6; CMS Ex. 11 at 1-2.  On May 6, 2021, after Petitioner’s staff noticed that R1’s right knee had swelling and discoloration, and an X-ray indicated that R1 had a femoral impaction fracture, CNA1 was interviewed again.  CMS Ex. 11 at 2.  CNA1 admitted that she did not correctly state what happened on May 5, 2021.  CMS Ex. 11 at 2.  CNA1’s second statement is as follows: 

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On [May 5, 2021] at around 6:10 am I was giving care to patient Room 515B as I was dressing him I turned him on his side and he fell to the floor.  A co-worker came and she assisted me to put him in the bed and I call [sic] the nurse.

I was scared to tell the nurse after he fell and myself and [another CNA] picked him up and put him on the bed.  I went and call [sic] the nurse and tell [sic] her he hit his head on the rail. 

CMS Ex. 10 at 5.  CNA2 provided a statement admitting that she helped CNA1 lift R1 from the floor to the bed without a mechanical lift.  CMS Ex. 10 at 4. 

The investigating RN completed an investigation report that concluded that CNA1 made the following errors: 

1. Did not utilize 2-person assist for bed mobility.
2. Lifted resident from floor to bed without utilizing mechanical lifter.
3. Did not inform RN Charge Nurse about resident’s fall from bed thereby causing a delay in treatment, instead lied and fabricated the story that resident hit his head on the side rail. 

CMS Ex. 11 at 3.  The facility investigation report also found that CNA2 “failed to ensure that she was assisting in a safe transfer of resident.”  CMS Ex. 11 at 3.  The report indicated that Petitioner suspended CNA1 and CNA2 and that Petitioner reported the incident to the state agency.  CMS Ex. 11 at 3. 

5. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(Tag F-689) because facility staff did not comply with the safety requirements in R1’s care plan to avoid accidents.  CNA1 turned R1 alone while dressing him in bed, when the care plan required two staff members to turn R1 in bed.  This failure to comply with the care plan’s requirement meant that R1 did not receive sufficient staff supervision/assistance to reasonably prevent an accident while being turned.  Further, after R1 fell to the floor, Petitioner’s staff failed to follow the care plan’s requirement that R1 be transferred using a mechanical lift.  Therefore, R1 did not receive a necessary assistive device to prevent accidents.  R1 suffered a laceration to the head from the fall that required sutures.  Further, CNA1’s failure to report that R1 had fallen from the bed to the floor prevented appropriate medical evaluation and care.  Finally, a day after R1 fell to the floor, Petitioner found that R1 had a right femur impaction fracture. 

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Congress requires facilities 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) (emphasis added).  In furtherance of this mandate, the Secretary promulgated the general quality of care regulation at 42 C.F.R. § 483.25, which states in that section’s prefatory text that the facility “must ensure that residents receive treatment and care in accordance with professional standards of practice,” based on a comprehensive resident assessment, a comprehensive care plan, and resident choice.  Paragraph (d) of section 483.25 imposes specific obligations on a facility related to accident hazards and accidents, as follows: 5

The facility must ensure that ˗

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

Therefore, section 483.25(d)(1) requires that a facility address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Maine Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)).  The provisions of § 483.25(d) “come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.”  Meridian Nursing Ctr., DAB No. 2265 at 9 (2009), aff’d sub. nom. Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445 (7th Cir. 2010).  Further, § 483.25(d)(2) requires that a facility take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”), aff’g Woodstock Care Ctr., DAB No. 1726 (2000)).  Facilities are given “the flexibility to choose the methods” they use to provide supervision or assistive devices to prevent accidents, so long as the chosen methods “constitute an ‘adequate’ level of supervision” for a particular resident’s needs. 

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Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d sub. nom. Windsor Health Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005). 

In the present case, Petitioner asserts that the incident involving R1 on May 5, 2021, does not show noncompliance with 42 C.F.R. § 483.25(d).  Petitioner generally summarized this position as follows: 

CMS focuses almost entirely on events that occurred after the accident and have no bearing on the Facility’s substantial compliance with [42 C.F.R. § 483.25(d)], which requires only that the Facility keep its environment “as free of accident hazards as is possible” and provide “supervision and assistance devices to prevent accidents.”  In other words, in order to prove that the Facility was not in substantial compliance with [42 C.F.R. § 483.25(d)], CMS must demonstrate that the Facility’s actions before the accident – not after – were not in substantial compliance with 42 CFR §§ 483.25(d)(1) or (2), which CMS simply cannot do. 

P. Br. at 2.  Based on this proposition, Petitioner then identifies that CMS only raises one allegation concerning an event that precedes R1’s fall and dismisses it as a mischaracterization of the true events.  Specifically, Petitioner states that CMS considers CNA1 to be “turning and positioning” R1 while dressing him “in an attempt to support its false allegation that CNA #1 violated the care plan and the [MDS] assessment by ‘turning and positioning’ Resident #1 (for which two person assistance was required), instead of dressing Resident #1 (for which only one person assistance was required.).”  P. Br. at 2.  As a result, Petitioner posits that CNA1 complied with the care plan when she merely dressed R1 rather than violated it by turning and positioning R1.  P. Br. at 2-3. 

Petitioner identifies two factual disputes that it has with CMS’s allegations.  The first, just alluded to above, is that CNA1 was not repositioning R1 when he fell from the bed but only dressing him.  P. Br. at 3.  To make this point, that CNA1 acted within the requirements of the care plan by dressing R1 alone, Petitioner cites the testimony of its Regional Director for Rehabilitation.  Petitioner argued: 

The use of the words “turning” and “positioning” is a mischaracterization and implies that CNA #1 turned Resident #1 from a supine position onto his side, which is simply not the case – CNA #1 simply made minor adjustments to Resident #1’s body position to put clothes on and take clothes off in bed.  This was easily done by one person, as evidenced by (i) the Declaration of Ms. Getsios (see P. Ex. 2) and (ii) the more than ten year history of one person safely

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performing this same exact activity, in the same exact manner, without incident on a daily basis.  As a result, it is clear that the Facility at all times complied with . . . 42 C.F.R. §§ 483.25(d)(1) and (2), and that there is no basis for any deficiency. 

P. Br. at 11-12. 

The second factual dispute Petitioner identifies is that R1’s acute distal femoral impaction fracture did not occur because of the fall from his bed but likely occurred later while R1 was at the hospital.  Petitioner relies on the testimony of the supervisory RN who stated that she, along with another RN, completed a full body check of R1 after the fall and did not detect the fracture, and because the hospital itself did not detect the fracture.  P. Br. at 3-4; P. Ex. 4 ¶ 4; CMS Ex. 1 at 8. 

I reject Petitioner’s arguments.  Petitioner interprets its obligations under 42 C.F.R. § 483.25(d) too narrowly and fails to recognize the conclusions of its own investigatory report that shows CNA1 failed to comply with R1’s care plan. 

As discussed more fully below, 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.  While CMS concluded that Petitioner’s deficiency constituted actual harm to R1 (see 42 C.F.R. § 488.404(b)(1)(iii)), I cannot review the level of noncompliance found by CMS unless a successful challenge to that level could affect the range of CMP amounts that CMS could collect based on the deficiency.  42 C.F.R. § 498.3(b)(14)(i).  In this case, CMS imposed a per-instance CMP, which only has one range of CMP amounts.  42 C.F.R. § 488.438(a)(2).  Therefore, to prevail, CMS only needs to make a prima face showing that a violation of Medicare program requirements posed the potential for more than minimal harm to a resident. 

As an initial matter, I conclude that R1’s fall from the bed on May 5, 2021, was a foreseeable accident.  Indeed, Petitioner created a care plan entry for “Falls” and provided a list of Petitioner’s diagnosed conditions as the reason.  CMS Ex. 7 at 1.  Petitioner also identified several reasons a fall may occur, such as R1’s “tendency to lean on Right side when in bed and [wheelchair],” impaired mobility, and impaired judgment.  CMS Ex. 7 at 1.  The MDS assessment from March 2021, is clear that R1 was severely impaired, both cognitively and physically, which demonstrates why R1 was at a great risk for falling.  CMS Ex. 6; P. Ex. 1.  Significantly, R1’s limbs were all impaired.  CMS Ex. 6 at 6; P. Ex. 1 at 2; see also CMS Ex. 14 at 3 (“Patient is contracted in the upper and lower limbs”). 

In addition, Petitioner knew that R1 was totally dependent on two+ person assistance for bed mobility and transferring between surfaces.  P. Ex. 1 at 1.  As a result, R1’s care plan

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included an entry for ADL that required a two+ person assist for bed mobility.  CMS Ex. 8 at 2.  For dressing R1, only one staff member was required to assist.  CMS Ex. 8 at 2. 

The MDS assessment defines bed mobility as including “turns side to side, and positions body while in bed,” while it defines dressing as “how resident puts on, fastens and takes off all items of clothing.”  P. Ex. 1 at 1. 

Petitioner’s Regional Director of Rehabilitation testified that dressing R1 could be safely done “by adjusting or ‘scooching’ the resident in ways that do not require full turns or shifts of the body from supine . . . position to the ‘side-lying position” such as “by making certain adjustments to [R1’s] position – for example, elevating [R1’s] glutes to allow for pants to be slid up to his lower back or vice versa.”  P. Ex. 2 ¶¶ 12-13. 

While I credit this testimony, it only provides a theoretical approach to dressing R1 safely with a single individual.  It does not establish that CNA1 used the methods that the Regional Director described.  Petitioner could have submitted testimony from CNA1 to establish that; however, Petitioner did not. 

Instead, the record is clear that CNA1 turned R1 alone while trying to dress him.  CNA1 consistently stated that she turned R1 on his left side while dressing him just before he fell.  CMS Ex. 10 at 5 (“I was dressing him.  I turned him on his left side and he fell to the floor.”), 6 (“while dressing him I turn him on the left side and he hit his head . . . .).  The RN who completed the document transferring R1 to the ED on May 5, 2021, also used that term:  “CNA was turning resident to his left side while dressing him up.”  CMS Ex. 12 at 2.  A care plan entry concerning the fall on May 5, 2021, also stated that “CNA was doing care to resident and while turning resident to his left side while CNA was pulling his pants up, resident hit the outer corner of his left eye . . . .”  CMS Ex. 7 at 3. 

Consistent with all of this documentation that shows CNA1 and others at the facility identified CNA1 as turning R1 while dressing him (as opposed to the more minimalist technique discussed by the Regional Director for Rehabilitation), Petitioner’s investigative report also identifies the May 5 fall to have occurred “while turning and dressing the resident.”  CMS Ex. 11 at 1.  The report summarizes CNA1’s oral description of events on May 5 to be that “when she was performing ADL care and turning the resident he fell out of the bed.”  CMS Ex. 11 at 2.  Significantly, from this admission the investigation report concluded that CNA1 acted improperly because she “[d]id not utilize 2-person assist for bed mobility.”  CMS Ex. 11 at 3.  Therefore, CNA1’s actions violated the requirements of R1’s care plan to use a two-person assist for turning in bed, and R1 was injured when he hit the floor due to CNA1’s failure to follow the care plan. 

Although R1’s head was already injured once he hit the floor, this does not preclude CMS from considering other improper actions by CNA1.  In fact, CNA1 immediately

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violated R1’s care plan again after he fell.  CNA1 obtained the assistance of CNA2 and the two of them lifted R1 from the floor without using a mechanical lift.  CMS Ex. 10 at 4, 5.  Petitioner’s investigation found that CNA1 and CNA2 “didn’t utilize the lifter” when “they both lifted him into the bed from the floor.”  CMS Ex. 11 at 2.  This is significant because each of the entries in the care plan for falls and ADL care required a mechanical lift with two staff persons for transfers.  CMS Ex. 7 at 2; CMS Ex. 8 at 1.  As a result, the investigative report identified CNA1’s improper conduct to include:  “Lifted resident from floor to bed without utilizing a mechanical lifter.”  CMS Ex. 11 at 3.  The investigative report also identified CNA2’s improper conduct as “failed to ensure she was assisting in a safe transfer of a resident.”  CMS Ex. 11 at 3. 

As stated above, Petitioner was obligated 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); see 42 C.F.R. § 483.25.  The introductory language to section 483.25 applies to each of the subsections in that section, including the accident prevention provisions in section 483.25(d).  Buena Vista Care Center, DAB No. 2498 at 15-16 (2013).  Therefore, violations of the care plan can serve as the basis for deficiencies concerning accidents. 

Based on the evidence of record, I conclude that Petitioner failed to provide services and adequate supervision to R1 in accordance with the care plan when only one staff member was moving and dressing R1 in bed.  42 C.F.R. § 483.25; Azalea Ct., DAB No. 2352 at 12 (2010) (2010) aff’d, Azalea Ct. v. United States Dep’t of Health & Human Servs., 482 F. App’x 460 (11th Cir. 2012) (“[A] facility's care plan indicates the facility’s assessment of what the resident needs, and that failure to follow the care plan may be grounds for concluding that the facility is not in substantial compliance with section 483.25 quality of care standards.”).  This resulted in R1 falling from the bed and hitting the floor with sufficient force that R1 needed sutures at the hospital to close the wound to his head.  There is no doubt R1 suffered actual harm.  The lack of proper personnel and supervision to prevent accidents in accordance with the care plan shows noncompliance with 42 C.F.R. § 483.25(d)(2). 

In addition, Petitioner also failed to provide services in accordance with the care plan when CNA1 and CNA2 lifted R1 from the floor to the bed without using a mechanical lift.  While there is no direct evidence of actual harm concerning this aspect of the case, there is no doubt that Petitioner failed to provide “assistive devices to prevent accidents” as required by 42 C.F.R. § 483.25(d)(2).  I note that CNA1’s action to lift R1 back to his bed without a lifter also violated Petitioner’s policy concerning accident prevention, which requires staff to inform the nurse who is in charge when a resident falls.  CMS Ex. 3 at 2.  As explained in the investigation report, CNA1’s decision not to inform the RN about R1’s fall caused a delay in R1’s treatment.  CMS Ex. 11 at 3. 

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I interpret this final finding from the investigative report to allude to R1’s right femoral fracture.  Because CNA1 only reported that R1’s head hit a bed rail while R1 was in bed, it is likely that individuals assessing R1 would not focus on potential injuries to R1’s legs.  Even though an X-ray taken on May 5, 2021, could not rule out a fracture on R1’s pelvic and femur head, no one at the ED pursued this possibility.  See CMS Ex. 14 at 6.  While it is not clear why R1’s fracture did not manifest itself until May 6, 2021, it is likely that no one was looking for such an injury. 

Petitioner’s employee, CNA1, lied to cover up the fall and, in doing so, obscured the etiology of R1’s fracture.  Dishonesty and misconduct by CNA1 should not provide Petitioner with an opportunity to blame the hospital for the fracture.  I find that, based on the record in this case, it is more likely than not that R1’s right femoral fracture occurred due to R1’s fall from bed on May 5, 2021.  Even if this is not the case, the rest of the record and findings fully support the conclusion that Petitioner was noncompliant with 42 C.F.R. § 483.25(d) and that a modest CMP, like the one CMS imposed, was justified. 

6. The $12,155 per-instance CMP that CMS imposed is reasonable under applicable statutory and regulatory factors. 

When determining whether a CMP amount is reasonable and appropriate, 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).  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 administrative law judge, requiring only that the regulatory factors at §§ 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).  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an administrative law judge must sustain it.  Coquina Ctr., DAB No. 1860 (2002). 

Although Petitioner contends that the CMP in this case must be removed because Petitioner was in substantial compliance with Medicare requirements, Petitioner did not

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dispute the amount of the CMP as unreasonable.  P. Br. at 13.  Because Petitioner did not contend that a particular regulatory factor does not support the CMP amount, I must sustain the imposed CMP.  Coquina Ctr., DAB No. 1860 (2002). 

7. Petitioner was properly prohibited from administering its own NATCEP. 

A NATCEP may not be approved for a facility if the facility was assessed a CMP under 42 U.S.C. § 1395i-3(h)(2)(B)(ii) of not less than $5,000, as adjusted annually.  42 U.S.C. § 1395i-3(f)(2)(B)(iii)(I)(c); 42 C.F.R. § 483.151(b)(2)(iv).  Relevant to this case, the CMP amount was adjusted to $11,995.  87 Fed. Reg. 15100, 15120 (Mar. 17, 2022).  Approval of a NATCEP must be withdrawn when the facility no longer meets the requirements in 42 C.F.R. § 483.151(b)(2).  42 C.F.R. § 483.151(f)(1).  Because CMS imposed a CMP in excess of $11,995 in this case, Petitioner’s approval to conduct its own NATCEP was properly withdrawn. 

VII.  Conclusion

I sustain CMS’s initial determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d).  I also uphold the $12,155 per-instance CMP that CMS imposed on Petitioner as well as the prohibition on Petitioner administering its own NATCEP for two years.