Skyline Nursing Center, DAB CR6988 (2026)

DECISION

Skyline Nursing Center (hereinafter referred to as “Skyline” or “Petitioner”) challenges the Centers for Medicare & Medicaid Services (CMS) determination of substantial noncompliance with Medicare participation requirements and the determination that the noncompliance posed immediate jeopardy to resident health and safety.  Petitioner also challenges the imposition of a Civil Monetary Penalty (CMP) of $23,989 per day for one day on June 19, 2022; a CMP of $13,695 per day for three days from June 20, 2022 through June 22, 2022; and a CMP of $470 per day for six days from June 23, 2022 through June 28, 2022. 

As explained below, the record supports the facility’s noncompliance with Medicare requirements and supports the immediate jeopardy determination.  Based on the evidence, there is a legal basis for the imposition of enforcement remedies, and the per-day CMPs imposed by CMS are reasonable. 

I. Background and Procedural History

Skyline is a long-term care facility located in Dallas, Texas that participates in the Medicare program.  On June 2, 2022 and June 23, 2022, the Texas Health and Human

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Services Commission conducted two complaint surveys1 at Petitioner’s facility and determined that the facility was not in substantial compliance with the following Medicare participation requirements: 

Regarding the June 2, 2022, survey: 

• Tag F842, 42 C.F.R. §§ 483.20(f)(5), 483.70(i)(1)-(5) – Resident Records - Identifiable Information, cited at a scope and severity level “D”

For the June 23, 2022, survey: 

• Tag F684, 42 C.F.R. § 483.25 – Quality of Care, cited at a scope and severity level of “K”

• Tag F686, 42 C.F.R. § 483.25(b)(1)(i)-(ii) – Treatment/Services to Prevent/Heal Pressure Ulcer, cited at a scope and severity level “E”

• Tag F689, 42 C.F.R. § 483.25(d)(1)-(2) – Free of Accident Hazards/Supervision/Devices, cited at a scope and severity level “J”

CMS Ex. 1.  The most serious deficiency is cited at an immediate jeopardy scope and severity of “K.”  As a result of the alleged deficiencies, CMS imposed per-day CMPs of $23,989, effective June 19, 2022, $13,695, effective June 20 through 22, 2022, and $470, effective June 23 through 28, 2022.  CMS Exs. 1, 2. 

CMS initially imposed a denial of payment for new admissions and termination of Petitioner’s provider agreement; however, both were subsequently rescinded.  CMS Ex. 2. 

Petitioner timely requested a hearing on August 15, 2022, and the case was assigned to me for hearing and decision. 

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On December 14, 2022, CMS filed a combined motion for summary judgment and pre-hearing brief (CMS Br.), along with 34 exhibits (CMS Exs. 1-34).  CMS proposed two witnesses. 

On January 18, 2023, Petitioner submitted a response in opposition to CMS’s motion for summary judgment and, alternatively, Petitioner’s pre-hearing brief (P. Br.), along with 15 exhibits (P. Exs. 1-15).  Petitioner proposed two witnesses and requested to cross-examine CMS’s witnesses.  CMS also requested to cross-examine Petitioner’s witnesses. 

On April 24, 2024, I denied CMS’s motion for summary judgment and scheduled a pre-hearing conference, which was held on May 16, 2024.  At the prehearing conference, I advised the parties that I would reserve ruling on Petitioner’s evidentiary objections until the issuance of the Order Summarizing Prehearing Conference and Notice of Hearing.  I requested the parties submit case law supporting their evidentiary objections or responses to the assigned Attorney Advisor by May 30, 2024. 

A hearing was held via teleconference on November 12, 2024. 

Both CMS and Petitioner filed their post-hearing briefs (CMS Post-hrg. Br. and P. Post-hrg. Br.) on March 3, 2025. 

Both parties filed Post-Hearing Reply Briefs (CMS Reply Br. and P. Reply Br.) on March 17, 2025. 

II. Evidentiary Rulings

Under applicable regulations, I may admit documents and testimony that are relevant and material to the issues in the case.  Because this is an administrative hearing, I may admit evidence into the record even if it is inadmissible under the rules of evidence used in the courts.  42 C.F.R. §§ 498.60(b)(1), 498.61. 

Petitioner objected to CMS Exs. 3, 8, 7, 27, 26, 32, 33, and 34.  At the pre-hearing conference, Petitioner clarified that it would only object to CMS Exs. 7, 27, 26, 32, and 33 if the witnesses did not appear at the hearing for cross-examination. 

On November 5, 2024, CMS filed a Motion to Withdraw CMS Ex. 32, the declaration of Investigator Michael Porter, as he was no longer employed by the Texas Health & Human Services Commission and was unavailable for cross-examination.  CMS’s Motion to Withdraw is granted. 

Absent objections, CMS Exs. 1-2, 4-6, 9-25, and 28-31 and P. Exs. 3-15 were admitted into the record prior to the hearing.  CMS Exs. 3, 8, and 34 were admitted into the record over Petitioner’s objections. 

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P. Exs. 1, 2 and CMS Exs. 26, 33 were provisionally admitted pending the testimony of witnesses.  All witnesses appeared and testified, therefore, P. Exs. 1-2 and CMS Exs. 26 and 33 are admitted into the record. 

At the hearing and in its post-hearing brief, Petitioner renewed its objections to CMS Exs. 7 and 27, which are surveyor notes from Michael Porter.  Petitioner argues that Mr. Porter was not qualified to conduct the survey at Petitioner’s facility because he was not employed by the state agency at the time of the survey, but he was employed by a staffing agency contracted by the state agency.  P. Post-hrg. Br. at 4.  Petitioner argues that there is no evidence that he was supervised by the State Agency or CMS or a registered nurse.  Id.  In support of its argument, Petitioner references Villa Rancho Bernardo Care Center, DAB No. CR6568 (2024), which involves a COVID-19 focused infection control survey, not a complaint survey.  In Villa, the ALJ ruled that Congress did not authorize the use of private contractors by CMS or the state to conduct surveys to determine compliance or noncompliance.  As Petitioner notes, the case is not analogous to the facts in this case, nor is it controlling.  P. Post-hrg. Br. at 4.  Petitioner admits that Karen Cameron, RN participated in the June 23, 2022 survey in which the immediate jeopardy determination was made.  Id. at 4-5; Tr. at 53 ln 17.  Petitioner has not identified a regulation or statute which prohibits a state agency, that is authorized to conduct surveys, from employing contractors to assist in conducting complaint surveys. 

Petitioner also argues that Section 1819(g)(2) of the Act requires that a registered nurse participate in the survey.  Petitioner requests that the June 2, 2022 survey be deemed invalid because no nurse was present.  I do not find it necessary to determine whether a registered nurse was required to be a part of the complaint survey team.  Even if there were deficiencies in the way that the survey was conducted, the remedy is not to invalidate the survey.  A state agency’s survey findings serve as recommendations to CMS.  42 C.F.R. §§ 488.11, 488.12.  After receiving the recommendation from the state agency, CMS makes its own determination of noncompliance, and decides what enforcement action to take, based on the survey’s findings. Avon Nursing Home, DAB No. 2830 (2017).  Similarly in Avon, the Board declined to decide whether Section 1819(g)(2) requires a registered nurse to be a member of a complaint survey team.  Id.  The Board also noted that “nothing in subsection (h)(2) [of the Act] itself even implies that an enforcement action ‘pursuant to’ a state agency’s ‘recommendation’ is unlawful (and therefore invalid) if the recommendation was the product of a survey that failed to meet subsection (g)(2)’s survey performance requirements.”  Id. at 10.  In addition, the Board has consistently held that allegations of inadequate survey performance are irrelevant to ALJ or Board review of CMS’s noncompliance and remedy determinations.  Id. 

The Board has ruled that ALJs have considerable discretion in deciding whether to admit or exclude evidence in hearings governed by 42 C.F.R. Part 498.  Oak Ridge Center,

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DAB No. 3195 (2025).  I find that CMS Exs. 7 and 27 are relevant and material and will be admitted into evidence over Petitioner’s objections.  All evidence will be given the proper weight and consideration. 

In sum, CMS Exs.1-31, 33, and 34 and P. Exs. 1-15 are admitted into evidence. 

III. Issues

The issues are as follows: 

1. Whether Petitioner failed to substantially comply with the requirements of 42 C.F.R. §§ 483.25(d)(1)-(2) (Tag F689) (scope and severity “J”), relating to accident hazards and supervision; 483.25 (Tag F684) (scope and severity “K”), relating to quality of care; 483.25(b)(1)(i)-(ii) (scope and severity “E”), relating to treatment and services to prevent or heal pressure ulcers; and 483.20(f)(5) and 483.70(i)(1)-(5) (Tag F842) (scope and severity “D”), relating to resident records and identifiable information;
2. If Petitioner was not in substantial compliance with Medicare regulations, whether CMS’s immediate jeopardy determination was clearly erroneous; and
3. If Petitioner was not in substantial compliance with Medicare regulations, whether the $23,989 per-day CMP, effective June 19, 2022, the $13,695 per-day CMP, effective June 20 through 22, 2022, and the $470 per day CMP, effective June 23 through 28, 2022, are appropriate under applicable statutory and regulatory factors. 

IV. Jurisdiction

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13). 

V. Legal Authorities

The Act sets requirements for SNFs to participate in the Medicare program and authorizes the Secretary of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. part 483 and 488. 

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

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the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  See 42 C.F.R. § 488.404(a)-(b); see also 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(III)(bb). 

CMS may impose a per-day CMP for the number of days a SNF is not in substantial compliance.  42 U.S.C. § 1395i-3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after March 17, 2022, and for deficiencies that occurred on or after November 2, 2015, the CMP amounts may range as follows:  $120 to $7,195 per day for less serious noncompliance; or $7,317 to $23,989 per day for noncompliance that poses immediate jeopardy to the health and safety of residents.2  45 C.F.R. § 102.3 (2022); 87 Fed. Reg. 15,100, 15,112 (Mar. 17, 2022); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments). 

Depending on the nature of a facility’s noncompliance and the type of remedy imposed by CMS, a facility may also, by operation of law, lose its ability to offer or conduct a nurse aide training and competency evaluation program (NATCEP) for two years.  42 C.F.R. § 483.151(b)(2).  Pursuant to 42 C.F.R. § 483.151(b)(2) and (f), a state may not approve and must withdraw any prior approval of a NATCEP offered by a SNF or nursing facility that has been:  (1) subject to an extended or partial extended survey under sections 1819(g)(2)(B)(i) or 1919(g)(2)(B)(i) of the Act; (2) assessed a CMP of not less than $11,160 (45 C.F.R. § 102.3 (Table) (2020)); or (3) subject to termination of its participation agreement, a DPNA, or the appointment of temporary management.  Ineligibility or withdrawal of approval to conduct a NATCEP is mandatory if the conditions are satisfied; it is not a remedy that the state agency or CMS may decline to impose.  See 42 C.F.R. § 488.406. 

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable.  Act §§ 1128A(c)(2) (42 C.F.R. § 1320a-7a(c)(2)), 1819(h)(2)(B)(ii) (42 U.S.C. § 1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, the facility may not appeal CMS’s choice of remedies.  42 C.F.R. § 488.408(g)(2). 

A facility may only challenge CMS’s determination as to the scope and severity of noncompliance if a successful challenge would affect the range of the CMP that may be imposed or impact the facility’s authority to conduct a NATCEP.  42 C.F.R. § 498.3(b)(14), (d)(10)(i).  CMS’s determination as to the level of noncompliance,

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including the finding of immediate jeopardy, “must be upheld unless it is clearly erroneous.”  42 C.F.R. § 498.60(c)(2); Woodstock Care Ctr., DAB No. 1726 at 9, 39 (2000), aff’d, 363 F.3d 583 (6th Cir. 2003).  Appellate decisions of the DAB have long held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination.  See, e.g., Koester Pavilion, DAB No. 1750 (2000). 

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

VI. Findings of Fact

Elopement of R7

It is uncontroverted that Resident 7 (R7) eloped from the facility on June 22, 2022.  As a result of the elopement, CMS determined that Petitioner was not in substantial compliance with 42 C.F.R.§ 483.25(d) and that the noncompliance resulted in immediate jeopardy. 

At the time of the events in question, R7 was a 69-year-old man who was admitted to the facility on November 28, 2021.  CMS Ex. 11.  R7 had several diagnoses including: encephalopathy, hypokalemia, anemia, alcohol abuse with withdrawal, alcohol dependence with withdrawal, alcoholic liver disease, Parkinson’s disease, dysphasia, and unsteadiness on feet.  Id. at 1-2. 

Upon admission, Petitioner conducted a risk assessment and determined that R7 was a moderate risk for elopement, identified as a wanderer, and suffered from confusion at times.  CMS Ex. 11 at 14; CMS Ex. 22 at 9.  R7 had a BIMS score of 12, indicating mild cognitive impairment.  CMS Ex. 8 at 21. 

On December 2, 2021, R7 attempted to use the exit door, but was redirected back to his room and educated to use the call light if he needed anything.  P. Ex. 11 at 196. 

In response to R7’s behavior, Petitioner developed a care plan on December 3, 2021, which noted that R7 was at risk for elopement and wandering.  CMS Ex. 27 at 10; P. Ex. 11 at 211; Tr. at 83 ln 10-14.  The plan noted that R7 had exit-seeking behaviors and was confused at times, though alert and oriented to self.  Id.  The interventions identified for

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R7 included: assess for fall risk; disguise exits; cover doorknobs and handles; tape floor; and monitor every location every 15, 30, or 60 minutes.  CMS Ex. 27 at 10. 

R7 continued to be identified as a moderate risk for elopement on February 28, 2022.  P. Ex. 11 at 94. 

On March 9, 2022, records show that R7 had an unsteady gate that required supervision,  had impaired balance, used a wheelchair, and required staff assistance when ambulating.  Id. at 87. 

R7 was again noted to be a moderate risk for elopement on May 19, 2022.  Id. at 59. 

On June 19, 2022, RN L gave R7 his medication between 8:00-9:00 p.m. and noted that the facility was understaffed.  CMS Ex. 8 at 23.  On the same night, R7’s vital signs were entered at 9:42 p.m.  P. Ex. 11 at 50. 

On June 19, 2022, CNA A worked the nightshift from 10:30 p.m. to 7:00 a.m.  CNA A completed rounds alone, and he was not familiar with the hallway where he was assigned.  CMS Ex. 8 at 24.  CNA A entered R7’s room at 10:37 p.m. and noticed that R7’s bed was made and it looked as if the resident had been discharged.  Id.  CNA A did not see R7 for the entirety of his shift.  Id.  CNA A was unaware that R7 required 15-, 30-, or 60-minute monitoring.  Id. 

On June 20, 2022, at 7:30 a.m., staff members noticed that R7 was missing from his room.  CMS Ex. 11 at 24; P. Ex. 11 at 50.  Staff members searched the facility and could not locate R7.  Staff members found R7’s window “messed” and the net of the window “fallen outside” of  his room. CMS Ex. 11 at 24; P. Ex. 11 at 50. 

R7 remained missing until he was located by the local police department on June 20, 2022, around 11:40 p.m.  CMS Ex. 8 at 23.  When found by police, R7 was intoxicated and taken to the local police station to detox.  Id.  The police department returned R7 to Petitioner’s facility on June 21, 2022 at 3:30 a.m.  P. Ex. 11 at 49.  R7 stated that he left the nursing home because he wanted to see his friend, so he took his medication, then  left through the window.  Id.  R7 stated that he was not going to leave again because it was “too hot outside yesterday.”  CMS Ex. 11 at 24. 

On June 21, 2022, Petitioner upgraded R7’s elopement assessment to “imminent risk”. CMS Ex. 22 at 9; P. Ex. 11 at 49.3  Social services filed an Adult Protective Services report.  CMS Ex. 11 at 24. 

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R7 was discharged from the facility on July 11, 2022.  P. Ex. 11. 

Quality of Care and Missed Medications

On June 19, 2022, Petitioner was short staffed, due to two nurses failing to appear for shifts.  As a result, the facility did not have a nurse to cover hallways 600 and 800 from 7:00 a.m. – 3:00 p.m.  Due to the nursing shortage, 39 residents did not receive their morning medications.  Tr. at 135 ln 19; CMS Ex. 8.  Petitioner’s staff alerted Dr. Brown, the Medical Director of Skyline, of the missed medications at 2:15 p.m. on the day of the incident.  P. Ex. 2 at 1; Tr. at 171.  In response, Dr. Brown instructed staff members to monitor the patients for any issues that may occur due to the missed medications.  Tr. at 182.  Dr. Brown did not deny that there was not a nurse covering those hallways, nor did he deny that several residents missed their medications due to the staffing shortage.  See P. Post-hrg. Br.; Tr. at 135, 157-158, 171. 

Eight residents with diabetes missed their medications on June 19, 2022.  Tr. at 146. 

Resident 10 (R10) 

R10 was a 53-year-old man admitted to Petitioner’s facility on July 7, 2020, and readmitted on August 7, 2020.  CMS Ex. 13 at 1.  R10 had several diagnoses including:  Type 2 diabetes, unspecified dementia with behavioral disturbance, major depressive disorder, tachycardia, hypertension, and a cognitive communication deficit.  Id. at 3.  R10 used insulin to manage diabetes and had increased risk for complications.  Id. at 16.  On June 19, 2022, R10 was not provided doses of the following medications: Metoprolol Tartrate for hypertension, Lexapro for major depressive disorder, Baclofen for neuropathy, Finasteride for urinary retention, Famotidine for ulcers; Levemir insulin injection for diabetes, and Januvia for diabetes management.  Id. at 29-31.  R10 also missed the 9:00 a.m. and 1:00 p.m. doses of Gabapentin, a medication given for anxiety/mood lability/impulsivity.  Id. at 32.  R10 was to be observed closely for significant side effects of anti-depressant medication use.  Id. at 35.  According to a progress note from June 21, 2022 at 2:05 p.m., the physician was notified of the missed medications, no adverse effects were noted and there were no new orders.  Id. at 44. 

Resident 12 (R12)

R12 was 62 years old and admitted to Petitioner’s facility on February 26, 2021 with several diagnoses including: dysphagia, Type 2 diabetes, hypertension, major depressive disorder, and chronic obstructive pulmonary disease.  CMS Ex. 14 at 1-2.  On Sunday,

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June 19, 2022, R12 was not provided with 9:00 a.m. medication doses of amlodipine for cerebral infarction, Cymbalta for depression, Famotidine for gastroesophageal reflux disease (GERD), Gabapentin for pain, Hydralazine for hypertension, and Metformin for diabetes management.  Id. at 28-30.  Dr. Brown was notified of the missed medications.  Id. at 42.  No adverse effects were noted and there were no new orders.  Id. 

Resident 14 (R14)

R14 was 64 years old and admitted to Petitioner’s facility on December 27, 2020 with diagnoses including:  Type 2 diabetes, schizoaffective disorder, Parkinson’s disease, and difficulty walking.  CMS Ex. 15 at 1.  On June 19, 2022, R14 was not provided with the morning medication doses of Amlodipine for blood pressure; Benztropine Mesylate for Parkinson’s; Cetirizine for allergies, Depakote for schizoaffective disorder, Levemir insulin injection for diabetes, and Citalopram Hydrobromide for depression.  See id. at 11-14. 

Resident 18 (R18)

R18 was an 80-year-old woman admitted to Skyline on April 18, 2022.  CMS Ex. 16 at 1.  R18’s diagnoses included, but were not limited to:  hypothyroidism, hyperlipidemia, hypertension, Type 2 diabetes, and vascular dementia.  Id. at 3.  On June 19^th, R18 did not receive the morning doses of the following medications: Apixaban, a blood thinner; Fluoxetine for depression; Levetiracetam (Keppra) for seizures; Metoprolol Tartrate for elevated blood pressure; Insulin Glargine Solution, an injection for hyperglycemia; and Humalog Solution (insulin Lispro) for Type 2 diabetes.  Id. at 3-6; Tr. at 154-166.  Two medications, Humalog and Metoprolol, are given on an as needed basis per Dr. Brown based on blood sugar and blood pressure readings.  Tr. at 154, 165-166.  On June 19, 2022, R18 did not receive her scheduled blood sugar and blood pressure checks.  CMS Ex. 16 at 5-6; Tr. at 154-155. 

Resident 19 (R19)

R19 was a 77-year-old woman admitted to Skyline on November 19, 2020.  CMS Ex. 17 at 1.  R19’s diagnoses included but were not limited to:  major depressive disorder; hypertension; anemia; long term use of insulin; Type 2 diabetes; unspecified dementia; and cognitive communication deficit.  Id. at 3.  On June 19, 2022, R19 was not provided with the morning doses of the following medications:  Norvasc Tablet for hypertension; Namenda tablet for dementia; Humalog Solution for Type 2 diabetes.  CMS Ex. 17 at 7, 9-10; CMS Ex. 8 at 8. 

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Resident 20 (R20)

R20 was 60 years old, admitted to Skyline on July 12, 2018.  CMS Ex. 18 at 1.  R20’s diagnoses include, but are not limited to:  diabetes, hypertension, lack of coordination, anxiety disorder, encephalopathy, and hyperlipidemia.  Id. at 3.  On June 19, 2022, R20 was not provided the morning doses of aspirin for cerebrovascular accident, Lisinopril for elevated blood pressure, Metformin for diabetes, Multilex for wound healing, Insulin Lispro Solution injection, and acetaminophen for pain.  Id. at 9-12. 

Resident 21 (R21)

R21, a 74-year-old man, was admitted to Skyline on January 31, 2022.  CMS Ex. 19 at 1.  R21’s diagnoses include, but are not limited to dysphagia, hypertension, unspecified dementia, Type 2 diabetes, major depressive disorder, difficulty walking, heart failure, and cognitive communication deficit.  Id. at 3.  On June 19, 2022, R21 missed the following morning medication doses: Norvasc tablet for hypertension, Omeprazole for GERD, Metformin for diabetes, Senna capsule for constipation, and two doses of a 2.0 supplement for nutritional support.  Id. at 11-12. 

Resident 22 (R22)

R22 was an 80-year-old woman admitted to Skyline on June 15, 2021.  CMS Ex. 20 at 1.  R22’s diagnoses include anemia, Crohn’s disease, chronic kidney disease, fibromyalgia, dysphagia, and cognitive communication deficit.  Id. at 3.  On June 19, 2022, R22 missed doses of Amlodipine for hypertension, Febuxostat for gout, Losartan for hypertension, Baclofen for muscle spasm and pain management, Memantine for Alzheimer’s, Diclofenac for pain management, two doses of Gabapentin for pain and burning of the hands, and three doses of Tramadol for pain.  Id. at 10-13; Tr. at 167, 168. 

Resident 67 (R67)

At the time relevant to this matter, R67 was 52 years old.  He was initially admitted to Skyline on October 12, 2021, and readmitted on April 5, 2022.  CMS Ex. 21 at 1.  R67’s diagnoses include unspecified atrial fibrillation; primary hypertension, Type 2 diabetes mellitus, heart failure, difficulty walking, and unsteadiness on feet.  Id. at 3.  On Sunday, June 19, 2022, R67 was not provided several doses of medication including Metoprolol Succinate for high blood pressure; Methocarbamol for muscle spasms/pain; and aspirin for pain.  Id. at 9-10, 12.  Additionally, a pain assessment was not conducted for R67 during the day shift on June 19, 2022.  Id. at 19. 

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Failure to Provide Wound Care

R67 also had a surgical wound located on his left buttocks which required pain management.  CMS Ex. 21 at 22, 32.  An order from April 14, 2022 stated, “cleanse area to left buttocks with normal saline or wound cleanser, pat dry and apply calcium alginate with silver and cover with dry dressing daily and pm until healed.”  Id.  Records show that wound care was not provided on June 3, 7, 9, 14, 15, and 19^th.  On June 21, 2022, R67 was admitted to the emergency room after it was determined that his wound needed specialized care.  Id. at 46. 

Another resident, identified as Resident 54 (R54), had an order from May 5, 2022 and May 9, 2022 to cleanse the areas on his left buttocks and right scrotum with wound cleanser or normal saline; pat dry; apply medi-honey impregnated gauze to wound bed and cover with dry dressing daily.  CMS Ex. 26 at 6.  R54 did not receive wound care for the left buttocks and scrotum wound on June 4, 6, 12, 14, 15, 17, 19, or 20^th.  Id. 

VII. Analysis and Conclusions of Law

1. Skyline was not in substantial compliance with 42 C.F.R. § 483.25(d)(2) (Tag F689) because it failed to ensure that a resident who was assessed as an elopement risk was provided with adequate supervision and assistive devices to prevent elopement from the facility. 

A facility must ensure that residents receive treatment and care in accordance with professional standards of practice, a comprehensive person-centered care plan, and the resident’s choices.  42 C.F.R. § 483.25.  A facility must also ensure that: 

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

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.  42 C.F.R. § 483.25(d). 

The Board has stated that “[t]o provide a resident ‘adequate supervision’ consistent with section 483.25(d)(2), a facility has flexibility to choose how to supervise a resident ‘as appropriate to its circumstances and to employ reasonably necessary measures to comply with the regulation’; however, ‘the measures chosen must be able to reduce known or foreseeable accident risks to the highest practicable degree.’”  Morris View Healthcare Center, DAB No. 3149, at 11 (2024).

It is undisputed that R7 eloped from Petitioner’s facility at an undetermined time on June 19, 2022.  See, e.g., P. Post-hrg. Br.  CMS argues that Petitioner failed to adequately supervise R7 to prevent his elopement.  CMS Post-hrg. Br. at 22.  However, Petitioner

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argues that no reasonable person could have anticipated R7’s departure and that the elopement was not foreseeable.  P. Post-hrg. Br. at 18. 

Dr. Ogundu, the Chief Nursing Officer for OPCO Skilled Management, the organization that operates Skyline Nursing Center, testified regarding R7’s elopement.  P. Ex. 1.  Dr. Ogundu testified that R7 was at risk for elopement and was a wanderer as evidenced by leaving the facility without notifying staff and he was also confused at times.  Tr. at 83; CMS Ex. 27 at 10; P. Ex. 11 at 211.  Records from May 11, 2022 show that R7 had not exhibited wandering behavior, but R7’s care plan continued to identify him as a moderate risk for elopement on May 19, 2022.  P. Ex. 11 at 10; CMS Ex. 22 at 9.  Dr. Ogundu testified that prior to the June 19, 2022 incident, R7’s care plan should have been updated to reflect that he was no longer at risk for elopement.  P. Ex. 1 at 5; CMS Ex. 22 at 9; Tr. at 110. 

Despite not providing direct care to R7, Dr. Ogundu testified that R7 was not “severely” cognitively impaired, because he was smart enough to open a window and navigate to see his friends.  P. Ex. 1 at 5-6 ¶ 17, 21; see also Tr. at 110-11.  However, records show that R7 had impaired decision-making ability, short-term memory impairment, and alcoholic liver disease.  P. Ex. 11 at 196.  Dr. Ogundu testified that R7 had improvements in his memory, as evidenced by his ability to open a locked window, leave the facility, and take a bus to see his friend.  Tr. at 110-11.  Despite Dr. Ogundu’s testimony, there is nothing in R7’s care plan that documents improvements in his condition or his ability to leave the facility on his own.  Dr. Ogundu testified that the facility uses charting by exception which means, “we document based on what happens if there are any major change in condition, if there’s anything that requires special documentation, that’s when we check by exception.”  Tr. at 113.  If R7 showed a major change in memory, then according to Dr. Ogundu, that would have been documented in the record.  There were no indications of improvements in R7’s conditions listed in his medical records. 

Dr. Ogundu also testified that, “[R7] was not exposed to dangerous conditions posed by traffic or weather and did not sustain any harm as a result of traveling to his destination.”  P. Ex. 1 at 6.  I find this to be quite concerning.  As CMS notes, R7 was found over 10 miles away from Petitioner’s facility.  CMS Ex. 8.  Dr. Ogundu has no way of knowing what risks R7 faced when he eloped from the facility, especially since he was intoxicated when found by the police.  I am not convinced by Dr. Ogundu’s testimony. 

The facility has a lock on every window in the facility, which allows the window to open no more than six inches.  P. Post-hrg. Br. at 18; P. Ex. 12.  According to Petitioner, R7 was a construction worker and due to his knowledge of construction he was able to maneuver the window from above the window locks and disengage it from the window tracts.  P. Post-hrg. Br. at 18.  Dr. Ogundu testified that only a construction worker would be able to open the window due to the angle of the screw in the window.  Tr. at 119.  According to Dr. Ogundu, “you have to kind of have an angular vision to unscrew it.”  Id.   

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Dr. Ogundu later clarified that the windows can only be open to a certain level and that level is not big enough for a person to pass through.  Id. at 122.  Petitioner also argues that R7 had the legal right to drink alcohol and that “he was an adult” and “his own responsible party.”  P. Post-hrg. Br. at 19.  R7 is of legal drinking age and is identified as an adult, as he was 69-years old at the time of this incident.  However, that does not absolve Petitioner of its responsibility to keep R7 safe.  The purpose of Petitioner’s elopement policy is “to enhance the safety of residents of the Facility.”  Here, R7 was a resident of the Facility and despite having identified R7 as an elopement risk, Petitioner now says that he did not pose such a risk09.  However, the records do not show that R7’s condition improved, nor do the records show that R7 was no longer considered an elopement risk.  Petitioner may not avoid responsibility for the elopement of one of its residents by arguing that the resident left using his free will. R7’s care plan called for his location to be monitored every 15, 30, or 60 minutes.  CMS Ex. 27 at 10.  However, the monitoring was not implemented.  CNA A, who noticed that R7 was not in his bed, was unaware of R7’s care plan that included monitoring.  CMS Ex. 8 at 23-24. 

Petitioner relies solely on R7’s statements to determine that he left in the morning of June 20^th.  R7 could not recall if he left “after he awoke” but said that the “sun was shining.”  P. Ex. 13.  Petitioner has offered no evidence showing what time R7 left the facility but simply surmises that he could have only been missing for 40 minutes based on information provided by R7 and from its own “investigation.”  P. Ex. 1 at 5; Tr. at 93.  Specifically, Dr. Ogundu declared that the sun rose around 6:19 a.m. on the morning of the June 20, 2022, since he was discovered missing at 7:00 a.m. “he could not have been gone for more than 40 minutes.”  P. Ex. 1 at 5.  I find Petitioner’s estimate of R7’s timing to be unreliable and improbable.  However, even if R7 was outside the facility for approximately 40 minutes, does not mean he was not exposed to serious harm or even death.  See Britthaven, Inc., d/b/a Britthaven of Smithfield, DAB No. 2018 (2006) (2006 WL 786659 at *21).  CMS notes that the location where Petitioner was located was over 10 miles away from the facility and the temperature reached as high as 101.  CMS Ex. 8; CMS Post-hrg Br. at 7, 23.  Based on the evidence, I find it improbable that R7 was away from the facility for only 40 minutes before his absence was noticed.  The evidence shows that R7 was not seen at the facility after his vitals were taken at 9:47 p.m. on June 19, 2022, until he was returned to the facility by police at 4:00 a.m. on June 21, 2022.  CMS Ex. 8 at 23; CMS Ex. 11 at 23-24. 

Additionally, Petitioner argues that R7 left after he received his medications in the morning, but this does not align with the evidence.  Dr. Ogundu testified that R7 received a folic acid supplement which is usually passed by 8:00 a.m., with a window of opportunity an hour before and after.  Tr. at 121.  Dr. Ogundu also testified that R7 was administered medications at 8:00 a.m., 12:00 p.m., 4:00 p.m., 5:00 p.m., and 8:00 p.m. Tr. at 121.  R7 was reported missing at 7:30 a.m., which makes it impossible for him to have left Skyline after taking his 8:00 a.m. medications on June 20, 2022.  If R7 left the facility after sunrise as declared by Dr. Ogundu, he would not have been administered the

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folic acid supplement by that time.  Additionally, Petitioner states, “Resident #7 left the facility to see some friends after he took his evening medications.”  P. Post-hrg. Br. at 18.  I find this to be a more plausible explanation than the one set forth by Dr. Ogundu. 

Petitioner argues that because R7 did not have any evidence of wandering or exit seeking behavior prior to the elopement, his care plan should have been updated to reflect that he was no longer at risk for elopement.  P. Post-hrg. Br. at 17.  However, the care plan was updated on May 19, 2022, and R7 continued to be identified as an elopement risk.  P. Ex. 11 at 59; CMS Ex. 22 at 9. 

Petitioner’s Wandering and Elopement policy states that “the resident’s risk for elopement and preventative interventions will be documented in the resident’s medical record and will be reviewed and re-evaluated by the Interdisciplinary Team upon admission, readmission, quarterly, and upon change in condition.”  CMS Ex. 25 at 22. 

In this case, Petitioner did not provide supervision in accordance with the care plan set forth for R7 despite knowing that he was at risk for elopement.  R7 was a known elopement risk and therefore, I find that it was foreseeable that he would attempt to elope from the facility.  The facility did not follow the procedures in place to monitor R7 or to deter his elopement, despite knowing that he was an elopement risk.  The evidence establishes that Petitioner did not adequately supervise R7 and did not take reasonable steps to prevent his elopement.  Therefore, Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2). 

2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25 (Tag F689) because it failed to provide medications to several residents. 

Under the Act and the “quality of care” regulation, each resident must receive, and the facility must provide, the necessary care and services to allow a resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  42 U.S.C. § 1395i-3(b); 42 C.F.R. § 483.25.  CMS alleges that Petitioner failed to satisfy the requirements of this regulation on June 19, 2022, by failing to provide medication to 39 residents on hallways 600 and 800, due to a nurse not being present to provide medications.  CMS Post-hrg. Br. at 27; Tr. at 135.  Petitioner does not dispute that there was not a nurse on hallways 600 and 800 during the hours of 7:00 am – 3:00 am on June 19, 2022.  P. Reply Br. at 2. 

Residents 10, 12, 18, 19, 20, and 21 were diagnosed with hypertension and all missed medications related to their hypertension.  Tr. at 141-43.  In addition, Residents 12, 18, 19, and 21 had a history of cerebral infarction, also known as strokes.  Tr. at 139-141.  These residents did not receive at least one dose of medication on June 19, 2022.  Dr. Brown testified that complications of hypertension include headaches, heart attack, or

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stroke.  Tr. at 143.  According to Nurse Cameron, missing medication for hypertension increases the risk of headaches, nausea, vomiting, and signs and symptoms of a stroke or heart attack.  CMS Ex. 33 at 4. 

Residents 10, 12, 14, 18, 19, 20, 21, and 22 were all diagnosed with diabetes.  Tr. at 144-46.  Possible complications with diabetes include hypoglycemia and hyperglycemia which may result in liver and kidney damage, brain damage, nerve damage, and seizures.  Tr. at 146-48.  Nurse Cameron declared that missing diabetic medication increases the risk of confusion, nausea, and vomiting secondary to the elevation of sugar circulating in the body.  CMS Ex. 33 at 4. 

Levemir, Humalog, and Humulin are all insulins used to treat people with Type 2 diabetes.  P. Exs. 3, 4, 5.  Petitioner argues, and Dr. Brown testified, that missing one dose of the medication is not life threatening, nor does it result in harm.  P. Post-hrg. Br. at 7; Tr. at 174-75, 181-82.  Humalog instructions state that if a dose is missed, then the next dose should be taken as soon as possible.  P. Ex. 4.  Levemir advises that patients contact their doctor in the event of a missed dose.  P. Ex. 3.  As noted, many of the residents impacted by the missed medications, were diagnosed with Type 2 diabetes and were treated using one of the aforementioned drugs. 

In this case, Petitioner failed to meet quality of care standards when it failed to provide medications to 39 residents.  Several elderly and sickly patients were at the mercy of the facility to provide them with medication as prescribed, and many of the impacted residents had communication deficits and difficulty walking.  I have no reason to doubt Dr. Brown’s testimony that no “actual harm” was caused due to the missed medications, but I cannot disregard the impact to the patients.  Particularly the patients who were in pain and unable to get relief. 

CNA W stated that several residents were requesting medication and many were beating on the nurse’s station demanding their medicine.  CMS Ex. 8 at 10.  One resident was in severe pain due to recently having a tooth pulled.  Id.  CNA W informed a nurse on a different hallway about the situation, but the nurse refused to help. No medication was provided to the impacted patients until 3:00 p.m. when a nurse arrived for the next shift.  Id.  In addition, R22 missed four doses of pain medication that morning.  Tr. at 169-70.  Petitioner argues that R22 did not report any pain during the evening or night of June 19^th.  P. Post-hrg. Br. at 7.  However, there was no pain assessment conducted during the morning of June 19^th.  While we do not know whether she was in pain that morning, we know that she was on a series of medications for pain management that were not administered until 5:00 p.m. on June 19, 2022.  CMS Ex. 20 at 13.  Though the record does not show that there were any serious medical emergencies due to the missed medications, it does show that residents were affected.  I also find it quite troubling that Dr. Brown was not notified until 2:15 p.m., hours after the nurse failed to show for the morning shift, and hours after the first medication pass was scheduled. 

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Petitioner’s policy on the administration of medication states that medications should be administered using the five rights: the right resident, right drug, right dose, right route, and the right time.  CMS Ex. 25 at 5.  According to Petitioner’s policy, medications are administered without unnecessary interruptions.  Id. at 8.  It is undisputed that 39 residents did not receive their medications at the right time due to Petitioner’s lack of staffing.  CMS Ex. 8 at 11.  The Board has ruled that “compliance with the regulation also means that a facility must furnish the care and services set forth in its residents’ care plans, implement physicians orders, monitor and document residents’ conditions and follow its own policies.”  Pearsall Nursing and Rehabilitation Center-North DAB No. 2692 (2016) citing Life Care Ctr. of Bardstown, DAB No. 2479, at 22 (2012), aff’d, Life Care Ctr. of Bardstown v. U.S. Dept. of Health & Human Servs., 535 F. App’x 468 (6th Cir. 2013). 

Here, Petitioner did not adhere to its own policy or residents’ care plans.  Based on the evidence presented, I find that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25. 

3. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(b) because it failed to provide wound care to two residents. 

Under the Act and the “quality of care” regulation, each resident must receive, and the facility must provide, the necessary care and services to allow a resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  42 U.S.C. § 1395i-3(b); 42 C.F.R. § 483.25.  To this end, the facility must (among other requirements) ensure that a resident who enters the facility without pressure sores does not develop them unless their clinical condition shows that they were unavoidable, based on the resident’s comprehensive assessment.  42 C.F.R. § 483.25(b)(1)(i).  If the resident already has pressure sores, the facility must ensure that they receive the treatment and services necessary to promote healing, prevent infection, and prevent new sores from developing.  42 C.F.R. § 483.25(b)(1)(ii). 

Records show that R54 had a physician’s order from May 5 and 9, 2022 which required daily cleansing of pressure ulcers on his left buttocks and right scrotum.  CMS Ex. 26 at 6.  R54 did not receive wound care on the following dates June 4, 2022; June 6, 2022; June 12, 2022; June 15, 2022; June 17, 2022; June 19, 2022.  Id. 

R67 had a surgical wound on his left buttocks which required daily wound care.  CMS Ex. 21 at 22, 32.  R67 did not receive wound care on the following dates: June 3, 2022; June 7, 2022; June 9, 2022; June 14, 2022; and June 15, 2022.  Id.  On June 21, 2022, R67 was sent to the emergency room to receive specialized care for his wound.  Id. at 46.  Petitioner has not disputed this deficiency.  See P. Post-hrg. Br. 

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

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

CMS alleges that Petitioner was aware of R7’s elopement risk but failed to supervise him.  CMS Post-hrg. Br. at 30.  CMS argues that during the elopement, R7 was vulnerable to dangers that could have presented a likelihood of serious harm.  Id.  Petitioner argues that R7 used his free will to elope from the facility.  However, this does not absolve Petitioner of all responsibility.  Regardless of R7’s desire to leave the facility, Petitioner had a responsibility to provide supervision in accordance with the resident’s assessment and care plan.  Upon admission, R7 was identified as a moderate risk for elopement.  That risk continued approximately 30 days before R7 eloped from the facility when he was again determined to be at moderate risk for elopement on May 19, 2022.  CMS Ex. 22 at 9.  The likelihood that R7 would suffer harm from his elopement was very high.  R7 left the facility, went unnoticed for several hours, traveled at least 10 miles in extreme heat, and was found intoxicated several hours later.  See CMS Ex. 8.  Based on the evidence presented, I have determined that CMS’s finding of immediate jeopardy regarding the elopement of R7 is not clearly erroneous. 

Relating to the missed medications that occurred on June 19, 2022, I have given much consideration and weight to the testimony of Dr. Brown, who testified that there was no harm suffered, nor did the residents experience any changes in conditions, due to the missed medications. P. Ex. 2.  However, a finding of actual harm is not a prerequisite for a finding of immediate jeopardy.  Stone County Nursing & Rehab Center, DAB No. 2276 (2009).  Dr. Brown testified that failing to administer a single dose of insulin would not result in harm.  Tr. 172, 174.  Notwithstanding, the weight of the evidence shows that there was a risk of substantial harm in this case.  Dr. Brown was not informed of the missing medications until approximately 2:00 p.m. on the day that it occurred.  CMS Ex. 27 at 22.  Residents complained about not receiving medication on time or not at all.  CMS Ex. 27 at 27.  R14 stated that she did not get her medication and her head was

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hurting.  CMS Ex. 8 at 12.  R9 stated that he was in pain because he did not receive his pain medication. Id. 

Here, 39 patients were impacted by Skyline’s failure to provide medications.  CMS provided evidence indicating that some residents were in actual pain due to not receiving pain medication.  In addition, many of the impacted residents suffered from serious health conditions and relied on Petitioner to provide medication at the right time and in the right dosage.  Failure to provide the medications to multiple residents, with some residents missing multiple doses, placed the residents at risk.  Based on the facts and the evidence set forth in this case, I cannot determine that CMS’s determination of immediate jeopardy is clearly erroneous. 

5. The CMP amounts imposed are reasonable. 

In this case, CMS imposed a CMP of $23,989 per day for one day of June 19, 2022; a CMP of $13,695 per day for 3 days from June 20, 2022 through June 22, 2022; and a CMP of $470 per day for six days from June 23, 2022 through June 28, 2022. 

In determining whether the amounts of CMPs are reasonable, I must apply the following factors which are listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f).  The factors listed in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  See 42 U.S.C. §§ 1320a-7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I). 

The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at 42 C.F.R. §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).  The Board has explained that “there is a presumption that CMS has considered the regulatory factors in setting the amount of the CMP and that those factors support the CMP amount imposed by CMS.  Unless a facility contends that a particular regulatory factor does not support that CMP amount, the ALJ must sustain it.”  Coquina Ctr., DAB No. 1860 at 32 (2002) (emphasis added).  Thus, the burden is not on CMS to explain its decision-making process or to explain the relative weights assigned to each deficiency to support the CMP amounts

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imposed.  Once the facility contends that a regulatory factor does not support the CMP amount, CMS must then produce evidence as to that factor.  Id. 

CMS argues that Petitioner’s noncompliance and culpability justifies the amount of the CMP.  CMS Post-hrg. Br. at 33.  CMS also argues that Petitioner has a history of deficiencies.  The evidence shows that Petitioner was cited for noncompliance in the following survey cycles:  July 5, 2018, January 18, 2019 (highest s/s level cited was G), May 22, 2020 (highest s/s levels cited were E and L), and July 16, 2020 (highest s/s level cited was J).  CMS Ex. 34.  Petitioner has not disputed this evidence.  Therefore, CMS has proven that Petitioner has a history of noncompliance. 

Petitioner has not provided information regarding the facility’s financial condition and did not argue that its financial condition necessitates a reduction of the CMP.  Therefore, this factor does not require further consideration. 

In determining whether a CMP amount is reasonable, I must also consider culpability, which the applicable regulation defines to include “neglect, indifference, or disregard for resident care, comfort, or safety.”  42 C.F.R. § 488.438(f)(4).  Here, Petitioner’s culpability is significant.  As stated, Petitioner failed to follow a care plan for R7 who was identified as an elopement risk, failed to timely provide medications to 39 residents, and failed to provide wound care to two residents.  Based on the seriousness of Petitioner’s noncompliance, I find that the imposed CMPs are reasonable. 

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

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

As seen from the detailed findings for those citations, those deficiencies involved situations where several residents were impacted.  The record shows that Petitioner failed to follow its own policies and failed to follow the care plans of several residents.  The CMPs imposed in this case are more than supported based on the deficiencies at 42 C.F.R. §§ 483.25(d)(2), 483.25, and 483.25(b). 

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VIII. Conclusion H

Skyline was not in substantial compliance with the participation requirements at 42 C.F.R. § 483.25(d)(1), (2) (Tag F689), 42 C.F.R. § 483.25(b) (Tag 686).  CMS’s determination that Petitioner’s noncompliance posed immediate jeopardy to resident health and safety was not clearly erroneous.  Therefore, there is a basis for the imposed remedies and the penalty amounts imposed are reasonable.