Park Place Manor, DAB CR6978 (2026)

DECISION

Petitioner, Park Place Manor, is a skilled nursing facility, located in Belton, Texas, that participates in the Medicare program.  The facility did not provide the required gait belt to one of its residents, an 88-year-old woman with a significant history of falls.  She fell and fractured her wrist. 

Based on a complaint investigation, completed on May 18, 2023, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with the quality-of-care regulation, 42 C.F.R. § 483.25(d), and that its deficiency posed immediate jeopardy to resident health and safety.  For that deficiency, CMS imposed a civil money penalty (CMP) of $10,440 per day for 18 days of immediate jeopardy and $245 per day for one day of substantial noncompliance that did not pose immediate jeopardy. 

For the reasons set forth below, I find that the facility was not in substantial compliance with 42 C.F.R. § 483.25(d) and that the penalties imposed are reasonable. 

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Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301. 

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys.  Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4). 

Here, after learning that a facility resident had fallen and was seriously injured, surveyors from the Texas Health and Human Services Commission (state agency) conducted a complaint investigation survey of the facility, which they completed on May 18, 2023.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1) and (2) (Tag F689 – quality of care:  accident prevention), cited at scope-and-severity level J (isolated instance of substantial noncompliance that poses immediate jeopardy to resident health and safety).  CMS Exs. 1, 2.  CMS also determined that, as of May 18, 2023, the facility’s deficiencies no longer posed immediate jeopardy, but its substantial noncompliance continued.  The facility returned to substantial compliance on May 19, 2023.  CMS Ex. 2. 

Based on these determinations, CMS imposed a CMP of $10,440 per day for 18 days of immediate jeopardy (April 30 through May 17, 2023) and $245 per day for one day of substantial noncompliance that did not pose immediate jeopardy (May 18, 2023) (Total:  $188,165).  CMS Ex. 2 at 2. 

In a letter dated July 18, 2023, CMS advised the facility of its findings and the remedies imposed.  CMS Ex. 2. 

Petitioner appealed. 

The matter was initially assigned to a different administrative law judge (ALJ), who convened a hearing on March 25 and 26, 2025.  Following that judge’s departure from the Civil Remedies Division, the case was reassigned to me for decision.  The parties

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were advised of the transfer, and neither objected nor requested a second in-person hearing. 

Submissions and Exhibits.  CMS filed its prehearing exchange, consisting of a brief (CMS Br.) and 15 exhibits (CMS Exs. 1-15).  Petitioner objected to three of them:  CMS Ex. 1, the statement of deficiencies; CMS Ex. 5, surveyor notes; and CMS Ex. 15, the state surveyor’s written declaration.  At the onset of the hearing, the (then) presiding ALJ overruled Petitioner’s objections and admitted into evidence CMS Ex. 1-15.  Transcript (Tr.) 12-13. 

Petitioner submitted a prehearing exchange that included a prehearing brief (P. Br.) and 17 exhibits (P. Exs. 1-17).  In the absence of any objections, the ALJ admitted into evidence P. Exs. 1-17.  Tr. 13-4. 

After the hearing, CMS filed a post-hearing brief (CMS Post-hr’g Br.), and Petitioner filed its post-hearing brief (P. Post-hr’g Br.) and a post-hearing reply brief (P. Post-hr’g Reply). 

Issues

The issues before me are: 

• From April 30 through May 18, 2023, was the facility in substantial compliance with 42 C.F.R. § 483.25(d);
• If, from April 30 through May 17, 2023, the facility was not in substantial compliance, did its deficiency then pose immediate jeopardy to resident health and safety; and
• If the facility was not in substantial compliance, are the penalties imposed – $10,440 per day for 18 days of immediate jeopardy and $245 per day for one day of substantial noncompliance that did not pose immediate jeopardy – reasonable? 

Discussion

In reaching this decision, I have considered the opinions expressed by Petitioner’s witnesses, including Nurse Pearl Merrit.  Because those opinions are not consistent with the underlying evidence, I reject them. 

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1. The facility was not in substantial compliance with 42 C.F.R. § 483.25(d) because it did not ensure that a vulnerable resident was adequately supervised and provided the assistance device she needed to prevent accidents.1 

Program requirement:  42 C.F.R. § 483.25(d) (Tag F689).  The Medicare statute mandates that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b)(2). 

The quality-of-care regulation characterizes quality of care as a “fundamental principle that applies to all treatment and care provided to facility residents.”  42 C.F.R § 483.25.  Based on the resident’s comprehensive assessment, the facility must ensure that the resident receives treatment and care in accordance with professional standards of practice, the resident’s comprehensive, person-centered care plan, and the resident’s choices.  42 C.F.R. § 483.25.  To this end, the “quality-of-care” regulation mandates, among other requirements, that each resident’s environment remain as free of accident hazards as possible and that each resident receive adequate supervision and assistance devices to prevent accidents.  42 C.F.R. § 483.25(d).  Del Rosa Villa, DAB No. 2458 at 7 (2012); Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 9-10 (2004), aff’d sub nom. Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x. 900 (6th Cir. 2005); accord, Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007) (holding that the facility must “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.”). 

The regulation “imposes on facilities an affirmative duty designed to achieve favorable outcomes to the highest practicable degree.”  Sheridan Health Care Ctr., DAB No. 2178 at 14 (2008) (quoting Windsor Health Care Ctr., DAB No. 1902 at 16-17 (2003)); Woodstock Care Ctr., DAB No. 1726 at 3-4 (2000), aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).  “The regulation focuses not on whether an accident occurs[,] but, rather, on whether the facility has provided supervision and assistance devices adequate to prevent an accident.”  Kenton Healthcare, LLC, DAB No. 2186 at 13 (2008). 

Facility Policies.  CMS “may reasonably rely on a facility’s policy relating to the care and treatment of its residents as evidencing the facility’s understanding of what must be done to attain or maintain its residents’ highest practicable physical, mental, and psychosocial well-being, as required by section 483.25.”  Green Valley Healthcare & Rehab. Ctr., DAB No. 2947 at 6 (2019) (quoting The Laurels at Forest Glen, DAB No.

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2182 at 18 (2008)); N. Las Vegas Care Ctr., DAB No. 2946 at 6 (2019); Hanover Hills Health Care Ctr., DAB No. 2507 at 6 (2013) (observing that “the Board has long held that a facility’s own policy may be sufficient evidence . . . of what the facility has determined is needed to meet the quality-of-care requirements in section 483.25.”); see Oxford Manor, DAB No. 2167 at 5 (2008) (holding that a nurse who disregards facility policy must document and justify her actions). 

A facility violates (what is now) section 483.25(d) if it fails, without justifiable reason, to implement the accident precautions its own staff have determined are necessary to mitigate foreseeable accident risks.  Good Shepherd Home for the Aged, Inc., DAB No. 2858 at 14 (2018) (citing Del Rosa Villa, DAB No. 2458 at 9 (2012), aff’d, Del Rosa Villa v. Sebelius, 546 F. App’x. 666 (9th Cir. 2013)); NHC Healthcare, Athens, DAB No. 2258 at 13 (2009); Burton Health Care Ctr., DAB No. 2051 at 9 (2006). 

Facility policy:  fall and post-fall management.  On admission, quarterly, and whenever a resident’s condition changes, the facility’s policy requires staff to assess for a potential fall risk and “to take a preventive approach” for the safety of the resident and staff.  CMS Ex. 10 at 1.  The “acceptable level of risk” must be based on an individual assessment with input from the resident (or substitute decision-maker) and the interdisciplinary team, with notes documented in the resident’s medical record and care plan.  Id. 

The policy lists five goals:  1) to identify residents at risk for falls during activities of daily living, individually, or with staff assistance; 2) to initiate preventive approaches; 3) to provide appropriate strategies and interventions directed at the resident, environmental factors, and staff; 4) to provide learning opportunities; and 5) to monitor and evaluate resident outcomes.  Id.  Among the procedures described in the policy, the interdisciplinary team completes the fall risk assessment and develops interventions and implements a plan of care.  The plan must be updated, as necessary.  Id. 

Facility policy:  general safety.  Among other instructions, the facility’s general safety policy cautions staff to “be cautious when walking or pushing carts around corners.”  CMS Ex. 11; P. Ex. 14. 

Facility policy:  ambulation.  The facility’s ambulation policy assigns “basic responsibility” to the licensed nurse, nursing assistant, restorative nursing assistant, physical therapist, and occupational therapist.  CMS Ex. 12 at 1.  Among the list of its purposes are:  to provide assistance to a resident identified as requiring such assistance; to supervise and assess resident function in order to care plan “to maintain optimum ambulation function as long as possible”; and to reduce the risk of falls and injury.  Id. The policy directs staff to “[m]ove behind and slightly to one side of the resident.”  Id. at 4.  During ambulation, it directs the staff member to “[p]osition [him or herself] on the resident’s strong side” and to walk with the resident, “matching the resident’s gait.”  Id. 

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Based on the resident’s assessed needs, staff must provide appropriate assistive devices.  Id.  For residents that require assistance with ambulation, staff are instructed to check the resident’s care plan for specific instructions.  CMS Ex. 12 at 2.  Care plans should, among other approaches, indicate the assistive devices to be used.  CMS Ex. 12 at 3. 

The policy includes an ambulation check list that does not distinguish between levels of assistance.  It directs staff to:  first, check the resident’s medical record for an ambulation order and note equipment ordered; second, check the resident's care plan for specific instructions.  CMS Ex. 12 at 4.  After assuring that the resident is properly dressed, with appropriate footwear, staff should apply the gait belt.  Moving behind and slightly to the side of the resident, staff should grasp the belt at the resident’s back or side with one hand and support the resident as needed with the other hand.  “Do not let go of the gait belt.”  CMS Ex. 12 at 4 (emphasis added). 

In contrast, the facility’s “gait belt policy” indicates that, for “contact-guard assistance,” staff should “[g]rasp the gait belt from behind and underneath”; for “stand-by assistance,” staff should “simply walk next to the resident” without holding on to the gait belt, indicating that the resident would nevertheless be wearing the gait belt.  CMS Ex. 14. 

Facility policy:  ambulation with or without gait belt.  A nursing KARDEX is a centralized quick-reference tool – maintained on a folded index card or electronically – that summarizes the resident’s daily care needs, orders, and medical status.  The facility had in place a policy that addresses ambulation with a gait belt and directs staff to review the resident’s KARDEX for mobility status and, among other factors, the use of a gait belt.  CMS Ex. 13 at 2; see P. Ex. 15. 

In his testimony, Facility Administrator Cody Campbell agreed that an entry on the KARDEX reflects a care plan entry: 

Q. [(referring to CMS Ex. 8 at 2)]  And does this [KARDEX entry] require a gait belt is used or not?

A.  According to that care plan entry, yes. 

Tr. 146-147. 

Again, the policy directs staff to move behind and “slightly” to one side of the resident, and, during ambulation, to position him or herself on the resident’s strong side, and to walk with the resident, matching her gait.  CMS Ex. 13 at 2. 

Resident 1 (R1).  R1 was an 88-year-old woman, admitted to the facility on January 19, 2023.  She suffered from a long list of impairments, including Parkinson’s disease, mild

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asthma, atherosclerotic heart disease, syncope and collapse, chronic (congestive) systolic heart failure, muscle weakness, and difficulty in walking.  CMS Ex. 8 at 27-28.  She had a history of repeated falls.  CMS Ex. 8 at 28.  At the time of her admission, R1 scored 12 on her fall risk assessment, which put her at high risk.  CMS Ex. 8 at 50-52. 

She required “substantial/maximal assistance” (helper lifts or holds trunk or limbs and provides more than half the effort) to walk at least ten feet in a room, corridor, or similar space, and to walk 50 feet, making two turns.  CMS Ex. 8 at 67. 

A physician order, dated January 19, 2023, directs the physical therapy department to “evaluate and treat as indicated and ordered.”  CMS Ex. 8 at 104 (emphasis added); P. Ex. 3 at 5. 

R1’s quarterly assessment, dated March 11, 2023, indicated that she had a BIMS (Brief Interview of Mental Status) score of 11, moderately impaired cognition.  It also indicated that she required a one-person physical assist walking in the corridor.  CMS Ex. 5 at 5. 

A second BIMS, dated March 24, 2023, reached the same result, a score of 11.  CMS Ex. 8 at 58. 

R1’s care plan.  Based on a comprehensive resident assessment, the facility develops the resident’s comprehensive care plan.  42 C.F.R. § 483.20(d).  It is well-settled that a resident’s care plan represents the facility’s judgment about what care and services are needed to keep the resident safe.  If facility staff fail to provide care and services in accordance with the resident’s comprehensive assessment and plan of care, it violates section 483.25.  White Sulphur Springs Ctr., DAB No. 2520 at 7 (2013); Deltona Health Care, DAB No. 2511 at 7-8 (2013); Venetian Gardens, DAB No. 2286 at 5 (2009). 

A care plan entry, dated January 24, 2023 (within days of R1’s admission to the facility), identifies, as a problem, R1’s risk for falls.  P. Ex. 2.  Like the physician order (CMS Ex. 8 at 104), the plan directs the physical therapy department to “evaluate and treat as ordered and appropriate.”  P. Ex. 2.  Having instructed the physical therapy department to devise a strategy for keeping the resident safe while she was ambulating, facility staff – particularly its unlicensed staff – were not then free to ignore the therapy department’s directives.  See Oxford Manor, DAB No. 2167 at 5. 

The physical therapy department complied with the physician order and the care plan instructions.  See, e.g., CMS Ex. 8 at 88 (indicating that R1 received physical therapy from January 26 through March 24, 2023, and, in the preceding seven days, she received physical therapy every day). 

In a February 17, 2023 “Patient Status Form,” signed by the Physical Therapy Assistant – who is identified as “PTA D” (CMS Ex. 7) – and addressed to “Nursing,” the therapist

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advised that R1 was “to perform walk to dine to all meals.”  P. Ex. 1.  The hand-written directive plainly required a rolling walker (RW) and “gait belt donned.”  P. Ex. 1. However, it is impossible to tell whether the directive called for “stand-by assistance” (SBA) or “contact-guard assistance” (CGA) because the original initials are written over.  Based solely on the document itself, the therapy assistant might initially have written “CGA” and then amended it to “SBA,” or she might initially have written “SBA” and amended it to “CGA.”  P. Ex. 1. 

Contact-guard assistance v. stand-by assistance.  “Contact-guard assistance” and “stand-by assistance” are physical therapy terms.  With contact-guard assistance, the physical therapist “needs to merely have one or two hands on [the resident’s] body but provides no other assistance to perform the functional task.  The contact is made to help steady [the resident’s] body or help with balance.”  P. Ex. 4 at 2.  For contact-guard assistance, the facility policy directs staff to “[g]rasp the gait belt from behind and underneath to provide safe ambulation.”  CMS Ex. 14. 

In contrast, during “stand-by assistance,” the physical therapist does not touch the resident, but the therapist “may need to be close by for safety in case [the resident loses her] balance or need[s] help to maintain safety during the task being performed.”  P. Ex. 4 at 2.  For stand-by assistance, the facility’s policy instructs staff not to hold on to the gait belt but walk next to the resident.  CMS Ex. 14. 

In a conversation with Surveyor Dowli Sonpon-Toeh, the physical therapy assistant who wrote the directive explained her department’s evaluation and resolved the question as to the level of assistance the physical therapy department recommended.  She said that when a resident “is stand[-]by assist with me, I downgrade them to contact-guard with [n]ursing because I do not expect [nursing] to watch more closely like I do.”  CMS Ex. 5 at 12.  According to the therapy assistant, R1 was on “contact-guard,” which means that you touch the resident’s gait belt, not her clothes.  Depending on the resident’s clothes, “you cannot hold them in balance,” so the gait belt is required.  Id.  R1 was supposed to use a walker and gait belt when she walked.  The gait belt was required for safety.  Id. at 13. 

Petitioner has not denied that the physical therapy assistant made this statement.  The therapy assistant herself presented no written declaration and did not testify at the hearing.  Her statement may therefore be considered reliable and may constitute substantial evidence.  See Beatrice State Developmental Ctr., DAB No. 2311 at 17, 18 (2010) (pointing out that the facility could have, but did not, present employee testimony that refuted the statements that surveyors claimed they made); Omni Manor Nursing Home, DAB No. 1920 at 11 (2004) (holding that statements of facility employees to the surveyors may constitute substantial evidence). 

The physical therapy department’s instructions, requiring a gait belt, are also consistent with the facility’s policies.  See CMS Ex. 12 at 4; CMS Ex. 14. 

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The nursing staff did not clarify the ambiguity in the therapy directive.  See Cedar Lake Nursing Home, DAB No. 2390 at 13-14 (2011); Oaks of Mid City Nursing & Rehab. Ctr., DAB No 2375 at 7, 9 (2011) (finding that the obligation to provide “necessary care and services” imposed by section 483.25, includes the duty to clarify ambiguous treatment orders); Emerald Oaks, DAB No. 1800 (2001).  Nor did they interpret the directive as the therapist said she intended.  Instead, on February 20, 2023, R1 was placed in the facility’s “walk-to-dine” program.  The resident’s care plan – which Petitioner characterizes as a “nurse aide ‘care plan’” – directed nurse aides to assist her in walking to and from the dining room for all meals with a rolling walker (referred to as “RW”), stand-by assistance (referred to as SBA), and a gait belt.  CMS Ex. 8 at 2, 26; see CMS Ex. 1 at 3; CMS Ex. 5 at 5, 32; CMS Ex. 15 at 3 (Sonpon-Toeh Decl. ¶ 7); Tr. 22; see P. Post-hr’g Br. at 4 n.2. 

Staff failing to provide even stand-by assistance.  In any event, staff were not providing even stand-by assistance.  According to an entry in R1’s chart, dated April 30, 2023, at 10:57 a.m., staff offered “oversight, encouragement, and cueing” when the resident walked in the corridor.  The support provided was limited to “setup help only.”  P. Ex. 5. 

Petitioner identifies P. Ex. 5 as R1’s KARDEX, suggesting that, like the requirements for a rolling walker and a gait belt, it was part of R1’s care plan.  P. Post-hr’g Br. at 4, 5.  In fact, P. Ex. 5 appears to be a routine entry in the resident’s medical record describing R1’s performance on one shift.  In its List of Exhibits, Petitioner describes it as a “description of how Resident 1 moved on 4/30/23.”  E-File #10a at 1.  If, in fact, it was intended to be care plan instructions, it violates the regulation because it is not supported by any physical therapy assessment or instructions, as called for in R1’s care plan and physician order. 

Thus, as of 10:57 a.m., when R1 walked in the corridor, staff provided her with limited supervision – “oversight, encouragement, and cueing.”  Approximately one-half hour later, as R1 was walking to the dining room, with staff providing her that minimal level of supervision, she fell.  See below. 

Effectively conceding that staff were not providing R1 with the level of assistance called for by the physical therapy department (neither contact-guard nor stand-by), Petitioner cites P. Ex. 6 for the proposition that, in fact, R1 required minimal supervision.  P. Ex. 6 is a portion of R1’s March 24, 2023 Minimum Data Set (MDS).  The complete MDS is in the record at CMS Ex. 8 at 53-97.  The document is signed by the facility’s MDS coordinator and by a registered nurse.  CMS Ex. 8 at 97. 

Petitioner’s assertion that the MDS dictated the level of supervision that R1 required is wrong for two reasons:  1) an MDS does not substitute for the resident’s care plan in

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determining the level of services required; and 2) the document does not exactly say what Petitioner claims it says. 

First, an MDS is a tool that “forms the foundation of the comprehensive assessment.”  Maine Veterans’ Home – Scarborough, DAB No. 1975 (2005); see 42 C.F.R. § 483.20 (b)(xvii) (requiring the resident’s comprehensive assessment to include, among other factors, “[d]ocumentation of summary information regarding the additional assessment performed on the care areas triggered by the completion of the [MDS].”).  In assessing the resident, the facility considers the MDS, along with other factors.  Based on the assessment, the facility develops the care plan.  42 C.F.R. § 483.20(d).  (MDS → Assessment → Care Plan).  The care plan describes the level of services the resident needs to stay safe. 

Here, both the physician order and the resident’s care plan deferred to the physical therapy department to assess the resident’s fall risk and develop a treatment plan to keep her safe.  A partial MDS did not change this, the facility’s assessment, or its care plan for R1.  In fact, the care plan doubled down on involving the physical therapy department in R1’s care.  An entry dated March 24, 2023, repeats the instruction:  the physical therapy department was to evaluate and treat the resident, as appropriate.  CMS Ex. 8 at 23-24. 

Second, the section of R1’s MDS that Petitioner relies on describes levels of functional status, including: 

1. Supervision – oversight, encouragement, or cueing;
2. Limited assistance – resident highly involved in activity; staff provide guided maneuvering of limbs or other non-weight-bearing assistance; and
3. Extensive assistance – resident involved in activity, staff provide weight-bearing support. 

CMS Ex. 8 at 63; P. Ex. 6 at 1. 

The form codes the nursing home resident’s self-performance in various activities of daily living over a seven-day lookback period.  If an activity occurs at least three times at a specific level of support, it is coded at that level.  The relevant activities here are: 

1. Walk in corridor – how resident walks in corridor on unit.
2. Locomotion on unit – how resident moves between locations in his/her room and adjacent corridor on same floor.  If in wheelchair, self-sufficiency once in chair. 

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3. Locomotion off unit – how resident moves to and returns from off-unit location (e.g. areas set aside for dining activities or treatments).  If facility has only one floor, how resident moves to and from distant areas on the floor.  If in wheelchair, self-sufficiency once in chair. 

CMS Ex. 8 at 63; P. Ex. 6 at 1.  For all three of these activities, R1 was provided one-person physical assist.  Id. 

For walking in the corridor, according to the form, staff provided “supervision” (level 1:  “oversight, encouragement or cueing”).  It is puzzling that R1 was offered such limited assistance while she was walking in the corridor.  Not only was this contrary to the physical therapy department’s explicit instructions, but, according to the fall risk assessment completed immediately after her fall, she had balance problems while standing or walking; staff noted “jerking movements” and decreased muscular coordination; and a change in gait when she was walking, such as shuffling gait, change in gait walking through doorways, jerking or instability when making turns.  CMS Ex. 8 at 31, 49; CMS Ex. 9 at 2 (identifying “gait imbalance” as a factor contributing to the fall); see P. Ex. 10 (describing R1’s “impaired physical balance, gait, and endurance”). 

R1’s March 24, 2023 MDS also describes R1 as “not steady, but able to stabilize without staff assistance” while walking and turning around.  CMS Ex. 8 at 64; P. Ex. 6 at 2. 

Moreover, R1 was rounding a corner at the time of her fall, which indicates, at a minimum, that she was moving to an adjacent corridor or even to an off-unit location. 

For locomotion on and off the unit, the March 24, 2023 MDS indicates that staff provided “limited assistance,” which means “guided maneuvering of limbs or other non-weight-bearing assistance.”  CMS Ex. 8 at 63; P. Ex. 6 at 1. 

R1’s April 30, 2023 fall.  The therapy assistant was apparently correct when she said that nursing staff did not watch the resident as closely as physical therapy staff did.  At about 11:31 a.m., on April 30, 2023, almost immediately after staff reported that they provided R1 with limited assistance, the resident was ambulating in the hall, on her way to the dining room for lunch, using a walker and accompanied by a nurse aide.  CMS Ex. 9 at 1; P. Ex. 7.  She was not wearing a gait belt.  CMS Ex. 5 at 5.  They were rounding a corner by the dining hall, when the walker hit the wall, and the resident fell.  Id.; CMS Ex. 9 at 1. 

The nurse aide appears to have disregarded the facility policy “to be cautious when walking or pushing carts around corners.”  CMS Ex. 11; P. Ex. 14. 

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The facility’s incident report is vague: 

This nurse was at the nurse’s station and heard commotion and saw resident on ground outside of main dining hall.  As recommended by therapy, resident was on way to lunch using walker while being followed by an [aide] behind.  Resident fell to ground quickly and [aide] was not able to prevent fall. 

CMS Ex. 9; P. Ex. 7.2  The nurse who wrote the report did not witness the fall, and the report includes no statement from the nurse aide who was involved. 

The surveyor, however, interviewed the nurse aide, and her account differed from the incident report’s account.  She told the surveyor that she and the resident were “walking side by side.”  CMS Ex. 5 at 10.  She was “halfway to the side and halfway in front.”  Id.3  She “held the back of the resident’s pants for balance.”  Id.  Although she grabbed the back of the resident’s pants, she was unable to prevent the fall.  Id. at 5, 10.  The nurse aide also admitted that the resident should have been wearing a gait belt but, because the aide was in a hurry, she did not use it.  CMS Ex. 5 at 5, 10; CMS Ex. 9 at 1; CMS Ex. 15 at 4 (Sonpon-Toeh Decl. ¶ 10); Tr. 23.4 

The resident was taken, by ambulance, to the emergency room and diagnosed with a fractured wrist.  CMS Ex. 8 at 12, 20-21, 45, 120. 

When interviewed by the surveyor, facility staff – including the Director of Nursing (DON), the Physical Therapy Director, a physical therapy assistant, and a Licensed Vocational Nurse – all confirmed that R1 should have been wearing a gait belt.  CMS Ex. 1 at 5-7; CMS Ex. 5 at 10, 12 (“I don’t understand why she fell[;] that’s why we have the gait belt for support”); CMS Ex. 5 at 13 (“[I]f you are walking down the hall with a resident[,] you should have a gait belt.”); CMS Ex. 15 at 4-5 (Sonpon-Toeh Decl. ¶ 11). 

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Because none of these employees testified nor submitted a written declaration denying that they made these statements, I may consider them reliable.  See Beatrice., DAB No. 2311 at 17, 18; Omni Manor, DAB No. 1920 at 11. 

In what may be an effort to counter the surveyor claim that the facility’s DON agreed that R1 should have been wearing a gait belt, Petitioner submits a typed statement, dated June 14, 2023 – a month after the survey – ostensibly from the DON.  P. Ex. 13.  The statement is not even signed, much less signed under oath, so it is entitled to very little, if any, weight.  According to the statement, the DON told the surveyor that “the resident did not have a gait belt order” but “had a suggestion from the therapy communication listed on the [nurse aide] task list.”  P. Ex. 13.  Also, according to the statement, someone reading the “task/suggestion” might have concluded that a gait belt should have been used, but “it could be dependent on the interpretation of the individual reading the task.”  Id. 

As already discussed, both the physician order and the care plan deferred to the physical therapy department as to the level of supervision and the assistance devices R1 required.  And the physical therapy department did not merely “suggest” that a gait belt might be a good idea; it directed nursing staff to provide one.  “Gait belt donned” is hardly subject to multiple interpretations.  Moreover, if I accepted the DON’s purported assertion as true (which I do not), it means that the facility improperly provided its nurse aides with confusing and ambiguous instructions regarding the level of supervision and the assistive devices R1 required, leaving resident safety to the discretion of the individual nurse aides, who are not qualified to make that judgment. 

Thus, facility staff disregarded the facility’s policies and the resident’s care plan, both requiring that staff employ a gait belt when assisting R1 with ambulation.  Because staff failed to follow the resident’s care plan and the facility’s policies, it was not in substantial compliance with section 483.25(d).  White Sulphur Springs Ctr., DAB No.2520 at 7 (2013); Deltona Health Care, DAB No. 2511 at 7-8 (2013); Venetian Gardens, DAB No. 2286 at 5 (2009).  By disregarding the physical therapy recommendation, the facility was not taking “all reasonable steps to ensure that a resident receives supervision and assistance devices designed to meet [her] assessed needs and mitigate foreseeable risks of harm from accidents.”  Briarwood, DAB No. 2115 at 5. 

By itself, this incident establishes that the facility was not in substantial compliance with section 483.25(d).  Golden Oaks Med. Care Facility, DAB No. 2470 at 6-7 (2012) (sustaining CMS’s finding that the facility was not in substantial compliance with (then) section 483.25(h) based on a single incident, which established that the facility failed to provide the requisite care to prevent falls). 

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Petitioner’s defense:  using a gait belt is futile and even dangerous.  Petitioner argues that falls are inevitable, and that, because R1 suffered from osteoporosis, her bones were extremely weak and bound to fracture.  I agree that many nursing home residents – including R1 – are at high risk for falls and that R1’s bones were fragile, making her susceptible to fractures.  P. Post-hr’g Br. at 3.  But these realities do not justify the facility’s disregard for its own policies and the physical therapy department’s explicit instructions to staff.  To the contrary, these factors made it all the more crucial that staff “take all reasonable steps” to prevent falls, especially those steps that the facility itself identified as necessary. 

Notwithstanding the physical therapy department’s assessment and written instructions, Petitioner claims that a gait belt “would have served no useful purpose.”  P. Post-hr’g Br. at 2.  Because R1 required “stand-by-assist,” the nurse aide “would never have been physically holding the gait belt.”  P. Post-hrg Br. at 6 (citing P. Ex. 4 at 2; P. Ex. 15 at 4); but see CMS Ex. 12 at 4 (instructing staff to grasp the gait belt). 

[G]ait belts are almost never used for [stand-by-assistance] due to the fact that this level of functionality does not involve touching the resident or anything on the resident’s person, including a gait belt, if used. 

P. Post-hr’g Br. at 5 (citing Tr. at 123). 

In fact, the nurse aide who was with R1 told the surveyor that, while they were walking, she “held the back of [R1’s] pants for balance.”  CMS Ex. 5 at 10.  She admitted that she “was supposed to be holding a gait belt” but had not attached it.  CMS Ex. 5 at 10.  Based on the physical therapy instructions, the nurse aide was correct. 

Petitioner also suggests that gait belts are dangerous.  Citing a 2012 decision by an ALJ, Petitioner suggests that the elastic waist of a resident’s pants “is no less safe than using a gait belt” and that gait belts “can be detrimental and frightening to residents with dementia.”  P. Br. at 7-8 (citing Mabee Health Care Ctr., DAB CR2525 (2012)).  Putting aside the factual dissimilarities between Mabee and this case (for example, unlike the resident in Mabee, R1 was not severely cognitively impaired; and, in Mabee, staff were not specifically instructed to use a gait belt), an ALJ decision is entitled to no deference.  The Mabee case was apparently not appealed, and, as the Board has repeatedly pointed out, ALJ decisions are not precedential and do not bind other ALJs or the Board.  Illini Heritage Rehab & Health Care, DAB No. 3125 at 10 (2023); Diagnostic Imaging Network Med. Grp., Inc., DAB No. 3100 at 10 (2023); Donald W. Hayes, D.P.M., DAB No. 2862 at 6 n.8 (2018); Avalon Place Trinity, DAB No. 2819 at 12 (2017); Robert Hadley Gross, DAB 2807 at 7 (2017), aff’d, No. 1:17-cv-01801, 2023 WL 5094912 (D.D.C. Aug. 9, 2023); Green Oaks Health & Rehab. Ctr., DAB No. 2567 at 9 (2014).

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I do not accept the assertion that a properly-applied gait belt is dangerous.  If I did, that conclusion would not help the facility.  I would also have to conclude that the facility’s own policies – which repeatedly call for the application of a gait belt – were putting its residents at risk. 

It was the facility’s responsibility to devise appropriate and effective means of protecting its residents, based on the individual resident’s condition, the facility environment, and the viable and preferred methods available to the facility.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 14 (2017).  Here, the facility did so, but then its staff disregarded those appropriate and effective means of keeping the resident safe.  Because the facility did not provide the level of supervision and assistance devices that R1 required, it was not in substantial compliance with section 483.25(d). 

2. CMS’s determination that the facility’s substantial noncompliance posed immediate jeopardy to resident health and safety is not clearly erroneous. 

Immediate jeopardy.  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.  CMS’s determination as to the level of a facility’s noncompliance (which would include an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The Departmental Appeals Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  Barbourville Nursing Home, DAB No. 1962 at 27-28 (2005) (citing Florence Park Care Ctr., DAB No. 1931 (2004)); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007). 

Once CMS presents evidence supporting a finding of substantial noncompliance, it need not offer evidence to support its immediate jeopardy determination.  The burden is on the facility to show that CMS’s determination is clearly erroneous.  Grace Healthcare of Benton, DAB No. 2189 at 13 (2008) (citing Liberty Commons Nursing & Rehab Ctr.- Johnston, DAB No. 2031 at 17-18 (2006), aff’d, Liberty Commons Nursing & Rehab Ctr. – Johnston v. Leavitt, 241 F. App’x 76 (4th Cir. 2007).  The harm or threatened harm is presumed to be serious, and the facility has the burden of establishing that the harm or threatened harm “did not meet any reasonable definition of ‘serious.’”  Maysville Nursing & Rehab., DAB No. 2874 at 21 (2018) (quoting Libertywood Nursing Ctr., DAB No. 2433 at 18 (2011), aff’d, Libertywood Nursing Ctr. v. Sebelius, 512 F. App’x 285 (4th Cir. 2013)). 

With respect to the standard for determining whether immediate jeopardy exists, I need not find that the facility’s noncompliance caused actual harm or injury to a resident.  So long as the deficiencies are likely to cause serious injury or harm, they pose immediate

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jeopardy.  Life Care Ctr. of Tullahoma, DAB No. 2304 at 58 (2010), aff’d, Life Care Ctr. of Tullahoma v. Sec’y of U.S. Dep’t of Helath & Hum. Servs., 453 F. App’x 610 (6th Cir. 2011); Stone Cnty. Nursing & Rehab. Ctr., DAB No. 2276 at 19 (2009). 

But here, the resident suffered actual harm.  Pointing to provisions from the State Operations Manual (SOM), Petitioner maintains that one resident’s broken wrist is insufficient to justify a finding of immediate jeopardy.  P. Post-hr’g Br. at 14-15 (citing SOM Appendix Q).  In fact, the criteria listed in the SOM are met in this case:  the facility did not comply with a regulation; a resident suffered a serious adverse outcome; and the facility needed to act (e.g., train staff to follow physical therapy directives) to prevent a recurring serious adverse outcome.  SOM, CMS Pub. 100-07, Appendix Q. 

Ultimately, however, the issue of whether CMS correctly applied provisions from the SOM is irrelevant.  For more than two decades, the Board has flatly refused to use the sub-regulatory guidance provided to surveyors in the SOM (and elsewhere) to alter the plain language of the regulations.  The provisions of the SOM may be “instructive,” but they are not binding.  Consulate Healthcare of Jacksonville, DAB No. 3119 at 17 (2023); Countryside Rehab. & Health Ctr., DAB No. 2853 at 25 (2018); Kindred Transitional Care & Rehab. – Greenfield, DAB No. 2792 at 20 (2017); Miss. Care Ctr. of Greenville, DAB No. 2450 at 15-16 (2012); Foxwood Springs Living Ctr., DAB No. 2294 at 9 (2009); Oakwood Cmty. Ctr., DAB No. 2214 at 16 (2008); Aase Haugen Homes, Inc., DAB No. 2013 at 15 (2006); Alden-Princeton Rehab. & Health Care Ctr., DAB No. 1873 (2003); Beverly Health & Rehab. Ctr. – Williamsburg, DAB No. 1748 at 8 (2000), aff’d, Beverly Health & Rehab. Servs., Inc. v. Thompson, 223 F. Supp. 2d 73, 99-106 (D.D.C. 2002). 

This approach comports with the Supreme Court’s comments as to the value of sub-regulatory guidance.  See Azar v. Allina Health Servs., 587 U.S. 566 (2019). 

Petitioner also maintains that nurse aides were free to ignore the opinion of the facility’s physical therapy department because the resident would have suffered the same injury even if she had been wearing the required gait belt.  According to Petitioner, “[t]he treating physician, charge nurse, and DON all make it clear that that this incident (including Resident 1’s wrist fracture) would have occurred even if Resident 1 had been donning a gait belt.”  P. Post-hr’g Br. at 12.  None of these individuals testified nor submitted a written declaration, so I need not afford these statements much weight.  But even if I did, the statements, such as they are, are far from definitive. 

Treating physician letter.  In a short letter, dated June 13, 2023, the resident’s treating physician, Tran Cassandra Huynh, M.D., writes that R1 has “a history of osteoporosis, Lewy body dementia, and impaired gait.”  P. Ex. 10.  R1’s osteoporosis and impaired gait are well-documented.  However, Lewy body dementia is not mentioned among R1’s long list of diagnoses (CMS Ex. 8 at 27-28, 101) or anywhere else in the resident’s medical

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record.  Her dementia is described as “unspecified dementia, unspecified severity, without behavioral disturbance, psychotic disturbance, mood disturbance, and anxiety.”  CMS Ex. 8 at 28. 

The physician also wrote: 

It is my professional opinion that, due to her impulsivity,5 memory impairment, and impaired physical balance, gait and endurance, it is possible that even with using a gait belt that if she had fallen, she may still have sustained a fracture. 

P. Ex. 10.  “It is possible” and “may have sustained” can hardly be considered decisive statements.  But more significant, the physician does not claim that the resident would have fallen if using a gait belt; she opines only that, if the resident fell, she might have sustained a fracture even if she had worn a gait belt. 

Moreover, the physician describes a resident who requires significant assistance while walking, which further supports the proposition that, in order to walk safely, R1 required substantially more assistance than “oversight, encouragement, and cueing.”

Charge nurse “statement.”  Petitioner submits a typed, undated, unsigned statement, ostensibly from the charge nurse.  Like the DON’s unsigned statement, it is entitled to very little weight.  P. Ex. 8.  In any event, the statement includes no opinion as to the efficacy of a gait belt.  It says that the nurse aide told the charge nurse that the resident “fell to the floor instantly and there was no way to prevent her from hitting the floor.”  Id.  If anything, this supports CMS’s position that the absence of the assistive device likely caused the resident serious injury.  The nurse aide could not prevent the fall by holding on to the resident’s pants.  Pants are not designed to prevent falls; gait belts are. 

DON “statement.”  Only the DON, in her unsigned statement, claims that the gait belt “would not have prevented R1’s fall due to the quick nature of the event.”  P. Ex. 13.  She also writes that “if the [nurse aide] did attempt to stop R1’s fall, she could have harmed herself or caused additional injury to R1.”  Id.  The DON offers no support for this opinion.  In fact, the nurse aide told the surveyor that she had attempted to prevent R1’s fall by holding on to the resident’s pants.  CMS Ex. 5 at 5.  Again, I reject the proposition that grabbing the resident’s pants was safer and more effective than using the assistive device that physical therapists recommended. 

Nurse aides are not free to disregard the facility’s policies and physical therapy directives that are designed to keep residents safe.  Allowing them to do so is reckless and likely to cause “serious injury, harm, impairment or death to a resident.”  In the case of R1, it

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resulted in a serious injury.  I reject Petitioner’s after-the-fact efforts to justify its allowing a nurse aide to disregard a clear directive.  I find that CMS’s determination that the section 483.25(d) deficiency posed immediate jeopardy to resident health and safety is not clearly erroneous. 

3. CMS’s determinations as to the duration of the facility’s substantial noncompliance and immediate jeopardy are consistent with statutory and regulatory requirements. 

Petitioner complains that “no evidence” justifies extending the period of substantial noncompliance beyond one day.  P. Post-hr’g Br. at 17.  Petitioner misapprehends the relative burdens after a facility has been found in substantial noncompliance. 

Once a facility has been found to be out of substantial compliance (as Petitioner was here), it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  Ridgecrest Healthcare Ctr., DAB No. 2493 at 2-3 (2013); Taos Living Ctr., DAB No. 2293 at 20 (2009); Premier Living & Rehab Ctr., DAB No. 2146 at 3 (2008); Lake City Extended Care, DAB No. 1658 at 12-15 (1998).  The burden is on the facility to prove that it is back in compliance, not on CMS to prove that the deficiency and the immediate jeopardy continued to exist.  W. Texas LTC Partners, Inc. v. Dep’t of Health & Hum. Servs., 843 F.3d 1043, 1049 (5th Cir. 2016); Asbury Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002). 

A facility’s return to substantial compliance usually must be established through a resurvey (in this case, the May 18, 2023 survey also determined the facility’s return to substantial compliance).  42 C.F.R. § 488.454(a); Ridgecrest, DAB No. 2493 at 2-3.  The facility must show that the incidents of noncompliance have ceased and that it has implemented appropriate measures to ensure that similar incidents will not recur.  Libertywood Nursing Ctr., DAB No. 2433 at 15 (citing Life Care Ctr. of Elizabethton, DAB No. 2367 at 16 (2011)); accord, 42 C.F.R. § 488.454(a), (e); Hermina Traeye Mem’l Nursing Home, DAB No. 1810 at 12 (2002) (holding that, to be found in substantial compliance earlier than the date of the resurvey, the facility must supply documentation “acceptable to CMS” showing that it was in substantial compliance and was capable of remaining in substantial compliance on the earlier date); Cross Creek Health Care Ctr., DAB No. 1665 (1998). 

There is no requirement that a remedy’s duration coincide with particular adverse events.  Consulate Healthcare of Jacksonvillle, DAB No. 3119 at 33.  A facility’s allegation that it reduced the threat to one resident, without establishing that it completed actions to ensure the protection of all residents, does not show that CMS erred in determining the duration of immediate jeopardy.  Id. at 22. 

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Here, the facility has not met its burden of establishing that it returned to substantial compliance any earlier than May 19, 2023.  Citing only the testimony of Administrator Cody Campbell, Petitioner asserts that, by the time of the survey, the facility “had already re-in[-]serviced its staff on ambulation . . . .”  P. Post-hr’g Br. at 17.  But Administrator Campbell did not say that.  When asked if staff were “immediately in-serviced in fall prevention,” he answered, “I can’t speak to that immediately.”  Tr. 144 (emphasis added). 

Petitioner submits no underlying evidence of in-service training following the April 30 incident.  Further, the cited deficiency is not the type (like a leaky roof or a broken dishwasher) that lends itself to a quick fix.  After all, the nurse aide involved in the incident had presumably already been trained to keep residents safe when walking with them.  See P. Ex. 11. 

While training might, if properly implemented, help the facility achieve substantial compliance, by itself, training does not establish substantial compliance.  Until the facility can demonstrate that its training and other interventions are effective, i.e., that staff capably followed the training, that management put effective monitoring tools in place, and that those interventions resolved the problem, the facility has not met its significant burden of demonstrating that it has alleviated the level of threat to resident health and safety.  Oceanside Nursing & Rehab. Ctr., DAB No. 2382 at 19 (2011); Premier Living & Rehab. Ctr., DAB CR1602 (2007), aff’d, DAB No. 2146 (2008). 

Ultimately, to show that it achieved substantial compliance at an earlier date, the facility must come forward with evidence establishing that it was taking all reasonable steps to prevent the accidents.  Petitioner has not produced that evidence (e.g., no witness testimony, no accident investigation reports). 

4. The penalties imposed – $10,440 per day for 18 days of immediate jeopardy and $245 per day for one day of substantial noncompliance that did not pose immediate jeopardy – are reasonable. 

To determine whether the CMP is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f)(4).  The factors in 42 C.F.R. § 488.404 include:  (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies. 

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

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imposed by CMS.  Unless the facility contends that a particular regulatory factor does not support the CMP amount, the ALJ must sustain it. 

Coquina Ctr., DAB No. 1860 at 32 (2002). 

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the section 488.438(f) factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1638 at 8 (1999). 

I determine whether a penalty is reasonable based on the per-day penalty, not the total accrued penalty.  Vibra Hosp. at Charleston – TCU, DAB No. 3094 at 30 (2023); Crawford Healthcare & Rehab., DAB No. 2738 at 20 (2016). 

Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, July 18, 2023.  CMS Ex. 2; 87 Fed. Reg. 15,100, 15,111 (Mar. 17, 2022).  Here, CMS imposed a per-day CMP of $10,440 per day for each day of immediate jeopardy, which is in the low to very-low range for an immediate jeopardy deficiency ($7,317 to $23,989) and $245 per day for the day of substantial noncompliance, which is in the very-low range for per-day CMPs ($120 to $7,195).  42 C.F.R. §§ 488.408(e), 488.438; 45 C.F.R. § 102.3 (2022); 87 Fed. Reg. at 15,111 (Mar. 17, 2022). 

The burden is on the facility to demonstrate, through argument and submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP reasonable.  Vibra Hosp. of Charleston – TCU, DAB No. 3094 at 30; Brian Ctr. Health & Rehab./Goldsboro, DAB No. 2336 at 12 (2010)

Except to argue that the facility returned to substantial compliance in one day and that the state IDR process (which does not bind CMS) recommended reducing the penalty, Petitioner has come forward with no evidence or argument to demonstrate that a reduction is necessary.  See Britthaven of Chapel Hill, DAB No. 2284 at 7-9 (2009) (holding that CMS ultimately determines whether a facility is in substantial compliance).

Petitioner does not claim that it is unable to pay the penalty. 

I have discussed in some detail the facility’s significant failure to provide R1 with the supervision and assistance devices she needed to prevent physical harm.  Despite her multiple falls, facility staff did not adequately supervise her nor provide her with the assistance device necessary to keep her safe.  For this, the facility is culpable. 

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Thus, because Petitioner has not shown that a reduction is necessary to make the CMP amount reasonable and, based on the relevant factors (facility history, lack of evidence regarding the facility’s financial condition, the severity of the deficiency, and the facility’s culpability), I find that these relatively low CMPs are reasonable. 

Conclusion

From April 30 through May 18, 2023, the facility was not in substantial compliance with the quality-of-care regulation, 42 C.F.R. § 483.25(d). and, from April 30 through May 17, this deficiency posed immediate jeopardy to resident health and safety.  The penalties imposed – $10,440 per day for 18 days of immediate jeopardy, and $245 per day for one day of substantial noncompliance that did not pose immediate jeopardy – are reasonable.