Park Place Manor, DAB CR6992 (2026)

DECISION

Petitioner, Park Place Manor, is a skilled nursing facility, located in Belton, Texas, that participates in the Medicare program.  Based on a survey, completed on August 18, 2023, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with multiple Medicare requirements and that its deficiencies posed immediate jeopardy to resident health and safety.  Specifically, CMS found that the facility failed to administer prescribed medications; it did not advise a resident’s physician of significant changes in her status; it did not provide its residents with required nourishment; and it did not label and store food safely.

CMS imposed civil money penalties (CMPs) of $9,675 per day for four days of immediate jeopardy and $360 per day for 13 days of substantial noncompliance that did not pose immediate jeopardy.

Petitioner has appealed, and the parties agree that this case may be decided based on the written record.

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For the reasons discussed below, I find that the facility was not in substantial compliance with Medicare program requirements, that its deficiencies posed immediate jeopardy to resident health and safety, and that the penalties imposed are reasonable.

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).

In this case, from August 15-18, 2023, surveyors from the Texas Health and Human Services Commission (state agency) surveyed the facility.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with the following program requirements:

• 42 C.F.R. § 483.10(e)(3) (Tag F558 – resident rights:  reasonable accommodation), cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.10(g)(14)(i)-(iv) (Tag F580 – resident rights:  notification of changes), cited at scope and severity level K (pattern of substantial noncompliance that poses immediate jeopardy to resident health and safety);
• 42 C.F.R. § 483.45(f)(2) (Tag F760 – pharmacy services:  medication errors), cited at scope-and-severity level K;
• 42 C.F.R. § 483.60(f)(1)-(3) (Tag F809 – food and nutrition services:  frequency of meals), cited at scope-and-severity level F (widespread substantial

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• noncompliance that causes no actual harm with the potential for more than minimal harm); and
• 42 C.F.R. § 483.60(i)(1)(2) (Tag F812 – food and nutrition services:  food safety) cited at scope and severity level F.

CMS Exs. 1, 2.

CMS determined that the facility achieved substantial compliance on August 19, 2023.  CMS Ex. 1 at 1.

As enforcement remedies, CMS imposed CMPs of:

• $9,675 per day for two days of immediate jeopardy (August 2-3, 2023) (subtotal:  $19,350);
• $360 per day for one day of substantial noncompliance that did not pose immediate jeopardy (August 4, 2023);
• $9,675 per day for two additional days of immediate jeopardy (August 5-6, 2023) (subtotal:  $19,350); and
• $360 per day for 12 additional days of substantial noncompliance that did not pose immediate jeopardy (August 7 through 18, 2023) (subtotal:  $4,320).

(Total:  $43,380).  CMS Ex. 1 at 1.

The parties’ submissions.  CMS has filed a prehearing brief (CMS Br.) with 15 exhibits (CMS Exs. 1-15).  Petitioner filed its own prehearing brief (P. Br.) with 19 exhibits (P. Exs. 1-16 and 18-20).  Petitioner did not proffer P. Ex. 17.

Petitioner objected to six of CMS’s exhibits (CMS Exs. 1, 2, 11, 12, 13, and 15).  CMS objected to one of Petitioner’s exhibits (P. Ex. 16).  In a ruling, dated November 21, 2025, I overruled these objections and admitted into evidence CMS Exs. 1-15 and P. Exs. 1-20.  Park Place Manor, ALJ Ruling No. 2026-3 (Nov. 21, 2025).

The parties have agreed that this matter should be decided based on the written record, without an in-person hearing.1

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Issues

This case presents the following issues:

1. From August 2 through 18, 2023, was the facility in substantial compliance with Medicare program requirements;
2. If, from August 2 through 3, 2023, and August 5 through 6, 2023, the facility was not in substantial compliance with Medicare program requirements, did its deficiencies then pose immediate jeopardy to resident health and safety; and
3. If the facility was not in substantial compliance, are the penalties imposed – $9,675 per day for four days of immediate jeopardy, and $360 per day for 13 days of substantial noncompliance that did not pose immediate jeopardy – reasonable?

Discussion

1. The facility was not in substantial compliance with 42 C.F.R. § 483.45(f)(2) because staff did not administer a resident’s diuretic medication, as ordered; and the facility was not in substantial compliance with 42 C.F.R. § 483.10(g)(14) because staff did not immediately consult a resident’s physician when that resident missed multiple doses of her ordered medication, which represented a significant change in her status and indicated a need to change her treatment or commence a new form of treatment.2

Program Requirement:  42 C.F.R. § 483.45(f)(2) (Tag F760).  The facility must provide routine and emergency drugs to its residents and must ensure that its residents are free of any significant medication errors.  A single medication error can be significant.  The Departmental Appeals Board has listed three factors to consider in determining whether a medication error is significant:  1) did the error involve a drug that could result in serious consequences for the resident; 2) was the resident compromised in such a way that she could not easily recover from the error; and 3) is there evidence that the error

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occurred more than once?  Franklin Care Ctr., DAB No. 1900 (2003), citing 6 Fed. Reg. 48,826, 48,853 (Sept. 26, 1991).

Program requirement:  42 C.F.R. § 483.10(g)(14) (Tag F580).  A facility must protect and promote the rights of each resident.  In this regard, it must, among other requirements, immediately inform the resident; consult with the resident’s physician; and notify, consistent with his or her authority, the resident’s representative(s) when there is a significant change in the resident's physical, mental, or psychosocial status (i.e., a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications), or a need to alter treatment significantly (i.e., a need to discontinue an existing form of treatment due to adverse consequences or to commence a new form of treatment).  42 C.F.R. § 483.10(g)(14)(i)(B), (C).

When notifying the physician, facility staff must ensure that all pertinent information (as specified in § 483.15(c)(2)) is available and provided to the physician upon request.  42 C.F.R. § 483.10(g)(14)(ii).  Section 483.15(c)(2) provides that the resident’s needs and services available must be included in the resident’s medical record.

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. 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).

Facility policy:  administering medication.  The facility had in place a policy for administering medication.  Among other provisions, the medication aide was required to follow the “SIX RIGHTS” of medication administration:  1) Right Patient; 2) Right Drug; 3) Right Dose; 4) Right Route; 5) Right Time; and 6) Right Documentation.  CMS Ex. 10 at 1.

Prior to preparing medications, staff must:  1) check the resident’s medication card against the physician’s orders or the medication Kardex;3 2) check for the “SIX RIGHTS”; 3) review knowledge of medications and look up needed information, such as

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drug actions, therapeutic effects, side effects, usual dosage/routes, contraindications, and nursing implications; and 4) review the resident data and observe and assess residents on an on-going basis to determine the therapeutic effects, side effects, drug allergies, contraindications, and nursing implications.  CMS Ex. 10 at 1-2.

The policy also directs staff to document the medications given and to chart and/or report pertinent observations.  If the resident refuses the medication more than twice, “the physician should be made aware so adjustments can be made, if necessary.”  CMS Ex. 10 at 3.4 

At some point, following the survey, the facility apparently added a section to its written medication administration policy.  The added section (which is not dated) directs staff to “notify the charge nurse if a medication is unavailable or missing.”  If unavailable, the charge nurse checks the eKit to see if a dose is available.  If not, the charge nurse must “reach out” to the facility pharmacy “to initiate [an] emergency refill” if the cutoff time has passed for the next scheduled delivery.  P. Ex. 15 at 1.  Although the provision is not dated, it must have been added sometime after the survey.  Compare CMS Ex. 10 (which the facility provided to the surveyors at the time of the survey) with P. Ex. 15.  See CMS Ex. 13 at 1-2 (Blaylock Decl. ¶ 5) (explaining that, during the survey, the surveyor collected relevant documents).

This provision differs from either of the facility’s unwritten policies described by the facility’s Assistant Director of Nursing (ADON) and Director of Nursing (DON).  CMS Ex. 3 at 3, 4 (Blaylock Decl. ¶¶ 9, 13).  In any event, the evidence establishes that staff were not following any identifiable facility policy prior to the survey.

Facility policy:  notification to physician, family, and others.  The facility had in place a policy that directed staff to comply with “reporting guidelines as outlined by state and federal regulations.”  CMS Ex. 10 at 5.  The policy generally mirrored the federal regulation and required staff to inform the resident; consult with the resident’s physician; and notify, consistent with his or her authority, the resident’s representative(s) when there is, among other events, a significant change in the resident's physical, mental, or psychosocial status (i.e., a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications); or a need to alter treatment significantly (i.e., a need to discontinue an existing form of treatment due to adverse consequences or to commence a new form of treatment).  Id.

According to the policy, notification of non-life-threatening issues are considered timely if “made within the context of the respective staff members regularly scheduled shift and as early as practicable.  The closest time to the event is considered ideal.”  CMS Ex. 10 at

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5.  The somewhat flexible reporting deadline may not comport with the plain language of the regulation.  See Maysville Nursing and Rehab., DAB No. 2874 at 9 (2018) (reiterating that “immediate” consultation “means exactly that” and noting that CMS explicitly rejected an initial proposal to require consultation within 24 hours); Magnolia Estates Skilled Care, DAB No. 228 at 8 (2009) (holding that “immediately” means “as soon as the change . . . is detected, without any intervening interval of time.”); The Laurels at Forest Glen, DAB No. 2182 at 13; 56 Fed. Reg. 48,826, 48,833 (Sept. 26, 1991).

Resident 18 (R18).  R18 was a 74-year-old woman, admitted to the facility on May 24, 2022.  CMS Ex. 4 at 33.  She suffered from a long list of impairments, including congestive heart failure, chronic respiratory failure with hypercapnia (too much carbon dioxide in the blood), morbid obesity; Type 2 diabetes with other circulatory complications; gout, gastro-esophageal reflux disease, atherosclerotic heart disease, and chronic kidney disease.  CMS Ex. 4 at 30, 34, 96-97.

On June 8, 2023, facility staff completed a quarterly Minimum Data Set (MDS) assessment and care screening.  Among other findings, R18 scored 15 on her Brief Interview of Mental Status (BIMS) exam, indicating that she was cognitively intact.  CMS Ex. 4 at 80.  Her functional status assessment found that she required extensive assistance – at least one-person physical assist – in performing most activities of daily living and locomotion on and off the unit.  CMS Ex. 4 at 85.  She was totally dependent on staff for bathing.  She used a wheelchair.  CMS Ex. 4 at 86.

Among other medications, R18’s physician prescribed the diuretic, Torsemide, 100 mg. twice a day, to treat edema related to her congestive heart failure.  CMS Ex. 4 at 3, 27, 50-51, 67, 74, 106; see CMS Ex. 2 at 8, 34.

R18’s care plan indicated that she was on diuretic therapy, Torsemide, related to her edema and hypertension.  It identified as a potential problem that she had “bouts of refusal of diuretic medication.”  She complained that she didn’t want to be up all night in the restroom.  She refused to take diuretics while out on a pass with her family because she didn’t want them to worry about taking her to the restroom.  CMS Ex. 4 at 16.5 

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As an intervention, the plan instructed staff to monitor R18’s dose of the medication, noting that it might require modification “to achieve desired effects while minimizing adverse consequences.”  If discontinuing the medication, the plan cautioned that tapering might be required to avoid adverse consequences.  Id.

Effective April 11, 2023 – with no end date – R18’s physician ordered that she be weighed every day.  CMS Ex. 4 at 23.

The missed medication.  The evidence establishes that staff were not administering R18’s Torsemide, as ordered.  On August 1, 2023, staff administered the two doses as ordered – at 8:00 a.m. and 1:00 p.m.  On August 2, however, they did not administer the 1:00 p.m. dose.  On August 3, 4, 5, 6, and 7, they did not administer the medication at all.  CMS Ex. 4 at 51; P. Ex. 1 at 2-6; P. Ex. 2 at 58.  In those seven days, staff should have administered 14 doses; they administered three; R18 missed 11 doses of Torsemide.

The facility had a coding system to explain why an ordered medication was not administered:

• The numeral “2” means that the resident refused the medication.
• The numeral “3” means “absent from home [without] meds.”  It appears once, for the 1:00 p.m. dose on August 4, 2023.
• The numeral “9” means “other/see nurse notes.”  CMS Ex. 4 at 54.  A “9” appears to explain ten out of the 11 missed doses.

CMS Ex. 4 at 51, 54.6

The reason for the ten missed doses (“9”) is explained in a progress note, entered at 1:36 p.m. on August 7, 2023 (a Monday).  According to the note, R18 told the nurse that she “had not received her [T]orsemide since last Tuesday.”  CMS Ex. 4 at 121; P. Ex. 1 at 6.   The nurse checked R18’s medication administration and saw that the medication had been ordered but not delivered.  The nurse contacted the pharmacy.  Staff there told her that the prescription would not be refillable until August 11.  The nurse responded that the resident needed the medication now, since she had already been without it.  The nurse learned that the pharmacy’s information was incorrect, showing that the medication was administered once a day, instead of twice.  The nurse faxed the accurate order to the pharmacy which promised to send the medication the same day.  CMS Ex. 4 at 121; P.

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Ex. 1 at 6.  The entry is signed by the ADON.  P. Ex. 1 at 6; see P. Ex. 11 at 1 (Medication Error Form blaming the pharmacy for not delivering the medication).

Staff had disregarded the order that R18 be weighed every day.  She was not weighed during the five days between July 27 and August 2.  CMS Ex. 4 at 123.  She was not weighed on August 3, August 5, and August 6.  CMS Ex. 4 at 123.  On August 7, when the nurse learned that R18 had not been administered her diuretic, she asked that R18 be weighed.  She had gained 14 pounds (from 314 to 328) since the previous Friday, August 4, just three days earlier.

The nurse paged the on-call physician, who prescribed Lasix.  The resident refused the medication and asked to be sent to the hospital “so they could take the fluid off quickly.”  CMS Ex. 4 at 121.  Petitioner cites this as evidence of R18’s persistent refusal to follow her physician’s orders for a diuretic.  P. Br. at 9.  This seems unjustified.  Although Petitioner attempts to trivialize its significance, R18 had been gaining weight rapidly and was carrying an additional 14 pounds of fluid.  I see no reason to question her own explanation that she wanted that excess fluid removed as quickly as possible.

Throughout the time that R18 was not administered her diuretic – which represented a change in her status calling for a physician’s intervention – no one from the facility notified her physician.  CMS Ex. 13 at 5 (Blaylock Decl. ¶ 22).

Staff explanations.  Surveyor Mandy Blaylock, R.N., questioned facility staff (ADON, DON, Medical Director) about the missed medications.  The facility’s ADON, DON, and Medical Director agreed that failing to administer medication could present serious problems:

• The ADON told surveyor Blaylock that she considered a “couple of days” to be a long period of time to be without an ordered medication, and it could harm a resident.  CMS Ex. 13 at 3 (Blaylock Decl. ¶ 9).
• The DON told the surveyor that a missed diuretic medication could “cause fluid level to fluctuate, swelling or edema, and respiratory distress.”  CMS Ex. 13 at 4 (Blaylock Decl. ¶ 13).
• The Medical Director agreed that, if a resident missed multiple doses of a diuretic, it could cause fluid overload, resulting in symptoms such as shortness of breath, pain (if a significant amount of edema), heart or kidney failure exacerbation.  CMS Ex. 3 at 5 (Blaylock Decl. ¶ 16).

Although their explanations were not completely consistent, the ADON and the DON each described the actions she thought staff should take if a resident’s medications were not available:

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• The ADON told Surveyor Blaylock that staff should be ordering a week prior to the resident running out of a medication.  CMS Ex. 13 at 4 (Blaylock Decl. ¶ 12).  She said that staff should check the E-kit to ensure the resident did not miss a dose of the medication.  If a resident was out of an ordered medication, staff should “order the medication immediately, call the physician, and call the pharmacy to find out why the medication had not been sent.”  CMS Ex. 13 at 3 (Blaylock Decl. ¶ 9) (emphasis added).
• The DON told Surveyor Blaylock that, if the resident was out of an ordered medication, staff should call the pharmacy to see if it could be “expedited over.”  If not, staff should call a local pharmacy, where the medication could be picked up.  CMS Ex. 13 at 4 (Blaylock Decl. ¶ 13).

The staff members acknowledged that R18’s medication was not administered as ordered but they had varying descriptions of the incident, not wholly consistent with the ADON’s contemporaneous note nor with each other.  CMS Ex. 13 at 3, 4 (Blaylock Decl. ¶¶ 10, 11, 14).

• The ADON told Surveyor Blaylock that, when the pharmacy delivered medications on August 2, R18’s medication was not included.  On August 3, the medication aide asked the nurse to get the medication out of the E-kit.  But, when the nurse went to get the medication, none was there.  The nurse called the pharmacy again, and the pharmacy agreed to send the medication that night.  CMS Ex. 13 at 3 (Blaylock Decl. ¶ 10).

  The ADON also claimed that, on August 3, 2023, when R18 told her that she hadn’t received her diuretic “in a few days,” the ADON called the pharmacy and learned that the pharmacy misunderstood the order, thinking it was to be given once a day, instead of twice.  CMS Ex. 13 at 3 (Blaylock Decl. ¶ 11).  In saying this, the ADON must have been mistaken.  Her progress note indicates that these events occurred on August 7, which explains why the medication was not administered until August 8.

• The DON claimed that “the pharmacy had been reached out to a few times” and pharmacy staff told the facility that “the medication was being sent on the days requested, but the medication was not received.”  CMS Ex. 13 at 4 (Blaylock Decl.¶ 14).
• The Medical Director told Surveyor Blaylock that, had she been advised of the missing medication, she would have substituted something else or arranged for the medication to be picked up by family or staff at a local pharmacy.  Until August 7, 2023, she was not aware of the medication not being administered.  CMS Ex. 13 at

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• 5 (Blaylock Decl. ¶ 17).  This is consistent with the nurse’s August 7 progress note.

Petitioner has not presented any evidence suggesting that these staff members did not make these statements.  They are not listed as witnesses; they submitted no written declarations or otherwise suggest that they did not make the statements that Surveyor Blaylock attributes to them.  I may, therefore, reliably conclude that they made those statements (although, as discussed below, some of their claims were verifiably inaccurate).  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).

Petitioner maintains that R18 “had a pattern of refusing medications and being noncompliant with recommended treatments, particularly when it came to her diuretics (Torsemide).”  P. Br. at 4, citing P. Ex. 19 at 1 (Oman Decl.).  I reject this red herring of an argument.7   In fact, R18’s medication administration record (MAR) establishes that she usually took the Torsemide when it was administered; her refusals were uncommon:

• From May 1 through 18, her physician ordered Torsemide once a day.  During that period, she refused just twice, on May 12 and 15 (as indicated by a “2”).  Otherwise, she accepted every dose.  P. Ex. 2 at 7.
• On May 18, her physician increased the order to Torsemide twice a day.  Between May 18 and May 27, she refused only one dose (a.m. dose on May 27).  She was out of the facility without the medication (indicated by a “3”) on May 28 and 29, a weekend.  P. Ex. 2 at 10.
• In June, she refused the medication twice (a.m. dose on June 29 and p.m. dose on June 30).  The a.m. dose of the medication was not administered on June 25 (indicated by a “9”), although the record does not include a progress note explaining why the medication was not administered (but it seems that it was not because she refused the medication).  P. Ex. 2 at 22.
• In July, R18 refused the medication twice (a.m. dose on July 2 and p.m. dose on July 8).  On July 2, she was out of the facility without medication, so missed the p.m. dose that day.  She was not administered the medication on July 13, July 17, or the morning of July 18 (indicated by a “9”).  Again, the record does not include

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• progress notes indicating why the medication was not administered on those days.  P. Ex. 2 at 35.

• Finally, in August, aside from the ten or eleven doses she missed because the facility did not have the medication, she was generally compliant with the physician order.  She accepted both doses of the medication on August 1 and the morning dose on August 2.  When the facility finally began again to administer the drug on August 8, she accepted both doses then and on the following day.  She refused the morning dose on August 10 but accepted the afternoon dose.  P. Ex. 2 at 58.

  Between August 11 and August 31, she refused three times (p.m. dose August 13, a.m. dose August 20, and a.m. dose August 26).  P. Ex. 2 at 57.  She was out of the facility without the medication on the afternoon of August 31.  P. Ex. 2 at 58.

• Even after August 14, when R18 signed an “informal refusal form” (P. Ex. 4 at 1), she almost always complied with the medication order, refusing only twice (the a.m. dose on August 20 and the a.m. dose on August 26).  P. Ex. 2 at 57.

The facility failed to administer the Torsemide as ordered because it ran out of the medication and did not have an effective means of refilling the prescription in a timely manner, not because R18 refused to take it.  That the resident herself reported that she hadn’t been receiving the drug further undercuts Petitioner’s efforts to blame her for the missed doses.

Nor am I persuaded that the resident’s refusal to adhere to the dietary guidelines recommended by her physician somehow justifies the facility’s failing to administer the ordered diuretics.  If anything, R18’s diet made it all the more important for the facility to administer the medications she required to treat her edema.

Because, on multiple occasions, the facility did not administer the resident’s medication as ordered, and its failing to do so was likely to cause her (and, in fact, did cause her) significant harm, it was not in substantial compliance with section 483.45(f)(2).  Even though missing the prescribed medication represented a significant change in R18’s status that called for physician intervention, facility staff did not immediately consult her physician, which puts the facility out of substantial compliance with section 483.10(g)(14).

2. The facility was not in substantial compliance with 42 C.F.R. § 483.10(e)(3) because staff did not ensure that a resident’s call light was within her reach.

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Program requirement:  42 C.F.R. § 483.10(e)(3) (Tag F558).  Among the residents’ rights is the right to be treated with respect and dignity, which includes the right to reside and receive services in the facility “with reasonable accommodation of resident needs and preferences.”

Facility policy:  call lights.  The stated purpose of the facility’s call light policy was “to respond to the resident’s requests and needs.”  CMS Ex. 14.  Among other instructions, staff must be sure that the call light is plugged in at all times; when the resident is in bed or confined to a chair, “be sure the call light is within easy reach of the resident”; and answer the resident’s call as soon as possible.  Id. (emphasis added).

Resident 32 (R32).  R32 was a 72-year-old woman, admitted to the facility on July 6, 2023.  CMS Ex. 5 at 6, 8, 58.  She suffered from a long list of impairments, including nonalcoholic steatohepatitis (advanced fatty liver disease), type 2 diabetes, portal hypertension, cirrhosis of the liver, chronic respiratory failure, morbid obesity, and thrombocytopenia (low number of blood platelets).  CMS Ex. 5 at 31.

On July 13, 2023, the facility performed an initial Minimum Data Set (MDS) assessment and care screening.  Among other findings, she scored 10 on her Brief Interview of Mental Status (BIMS) exam, indicating a moderate cognitive impairment.  CMS Ex. 5 at 11.  Her functional status assessment found that she required limited assistance with bed mobility, transfers, and walking in her room, with staff providing a one-person physical assist.  She required extensive assistance for locomotion on and off the unit, with staff providing a one-person physical assist.  CMS Ex. 5 at 19.  She was totally dependent on staff for bathing.  She used a wheelchair.  CMS Ex. 5 at 20.

R32 was at risk for falls due to her unsteady gait, decreased balance, medications, and poor safety awareness.  Among other interventions, her care plan directed staff to keep her call light in reach, to encourage and remind her to use it, and to answer it promptly.  CMS Ex. 5 at 1.

On August 15, 2023, Surveyor Glendon Carter observed that R32’s call light was out of reach at 9:00 a.m., 2:45 p.m., and 6:15 p.m.  R32 told Surveyor Carter that the call light was often out of reach and behind her bed.  When she needed assistance, she waited for someone to come to her room or yelled for assistance.  CMS Ex. 11 at 3 (Carter Decl. ¶ 8).  Petitioner has not challenged any of this.

Thus, contrary to the facility policy and R32’s care plan, facility staff did not ensure that her call light was within easy reach.  As her care plan recognized, failing to do so put the resident at risk of falls.  The facility was therefore not providing her with services that accommodated her needs, which put it out of substantial compliance with section 483.10(e)(3).

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3. The facility was not in substantial compliance with 42 C.F.R. § 483.60(f)(1)-(3) because more than 14 hours elapsed between the evening meal and breakfast the following day, and the facility did not provide its residents with nourishing snacks at bedtime.

Program requirement:  42 C.F.R. 483.60(f)(1)-(3) (Tag F809).  The facility must provide at least three meals daily “at regular times comparable to normal mealtime in the community” or according to resident needs, preferences, requests, and plan of care.  There must be “no more than 14 hours between a substantial evening meal and breakfast the following day, except when a nourishing snack is served at bedtime.”  The facility must also accommodate residents who want to eat at non-traditional times or outside the scheduled meal service times.

Here, the facility’s scheduled dinner hour was 4:45 p.m.  Breakfast was scheduled for 7:45 a.m. the following morning.  Fifteen hours elapsed between the two meals.  CMS Ex. 2 at 57; CMS Ex. 12 at 2 (Foil Decl. ¶ 7).

Multiple residents complained that they did not receive adequate nutrition between dinner and breakfast and that staff did not consult them about extending the time between meals and snacks.  CMS Ex. 2 at 57.  Specifically:

• Notwithstanding her diabetes, R18 was not given a snack at night or on a frequent basis.  Id.
• R35 was a 90-year-old woman, diagnosed with Parkinson’s Disease.  She told surveyors that staff did not provide her with a nourishing snack each night, so she kept her own snacks in her room.  CMS Ex. 2 at 57-58; CMS Ex. 6.
• R62 was an 85-year-old woman suffering from senile degeneration of the brain, chronic kidney disease, Parkinson’s disease, obesity, Vitamin D deficiency, and other impairments.  CMS Ex. 7.  She told the surveyors that the facility did not provide a nourishing snack each night but, if she asked, staff would bring her one.  CMS Ex. 2 at 58.
• R52 was an 88-yer-old woman, diagnosed with unspecified dementia, atherosclerotic heart disease, major depressive disorder, anemia, and other impairments.  CMS Ex. 8.  She told surveyors that she kept snacks in her room because facility staff did not provide them.  CMS Ex. 2 at 58.
• R222 was an 82-year-old woman, diagnosed with Alzheimer’s disease, anxiety disorder, gastroesophageal reflux disease, disorders of bone density, Vitamin D deficiency, and other disorders.  CMS Ex. 9.  She told surveyors that residents

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• were not provided a nourishing snack each night but staff would get her one if she wanted.  CMS Ex. 2 at 58.

Surveyor Foil spoke to the Regional Dietary Manager, who admitted that she was unaware of the 14-hour limitation.  She could not justify the facility’s excessive number of hours between meals.  CMS Ex. 12 at 4 (Foil Decl. ¶ 13).  The facility administrator also conceded that the facility did not comply with the regulation.  Id.

Conceding that the facility was not providing a nourishing snack at bedtime, on August 16, the Regional Dietary Manager moved the facility’s dinner hour from 4:45 p.m. to 5:30 p.m. and changed its breakfast time from 7:45 a.m. to 7:30 a.m.  CMS Ex. 12 at 3 (Foil Decl. ¶ 8).

Nevertheless, Petitioner now claims that CMS’s allegations are false; in fact, the facility offered each resident a snack between meals, especially in the evening after dinner and before bedtime.  P. Br. at 2.  Instead of offering testimony from an employee with direct knowledge of the facility’s practices, however, Petitioner relies on vague testimony from the facility’s administrator, Sandra Burnon, LNFA.  At the time of the survey, Administrator Burnon had just been hired, beginning her tenure “in July 2023.”  P. Ex. 6 at 1 (Burnon Decl.).  From this, I conclude that she had been at the facility for only a few weeks before the surveyors arrived.

Administrator Burnon’s declaration is dated June 25, 2024, more than ten months after the survey was completed.  P. Ex. 6 at 14.  Significant problems damage her credibility with respect to these claims:

• She does not deny or otherwise explain why she admitted to Surveyor Foil that the facility did not comply with the regulation.
• Although she claims that she is “personally aware,” she does not explain how she knows that snacks were provided.  Was she physically present in the facility at the time snacks were provided?  Did she review menus that described the snacks?  Did she discuss the snacks with dietary or nursing staff?  She does not claim any of this.
• Her statement is written in the present tense (“each resident is offered”).  She does not describe the facility’s practices in August 2023.  At best, Administrator Burnon may have established that the facility is currently (i.e., in June 2024) providing snacks; she does not claim that it was doing so at the time of the survey.
• Petitioner provides no documentary evidence to support Administrator Burnon’s claims that residents are offered input “through resident council and resident interviews”; that snacks are approved by the dietary staff and the facility’s dietary

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• consultant/dietician.”  Petitioner submits no minutes of resident council meetings, no notes of resident interviews, no reports of dietary staff reviews, nor any other documents that should have been created to establish that these events occurred.  Menus are supposed to be prepared in advance and reviewed by the facility’s dietician or other qualified professional.  42 C.F.R. § 483.60(c)(2), (6).  Petitioner submits no evidence of them.

CMS has thus come forward with credible evidence that too much time elapsed between the evening meal and breakfast, and the facility did not supplement by providing nourishing snacks at bedtime.  Had the facility been doing so, it should have been able to produce documentary evidence and credible, specific testimony from staff with direct involvement with the facility’s food and nutrition services.  It did not.

More than 14 hours elapsed between the evening meal and breakfast, and the facility did not provide residents with a nourishing snack at bedtime.  The facility was therefore not in substantial compliance with 42 C.F.R. § 483.60(f).

4. Because the facility did not store food in accordance with professional standards for food safety, it was not in substantial compliance with 42 C.F.R. § 483.60(i)(2).

Program requirement:  42 C.F.R. § 483.60(i)(2) (Tag F812).  Among other requirements for food safety, the facility must store, prepare, distribute, and serve food in accordance with professional standards for food service safety.

Facility policy:  food storage.  Neither party produced a copy of any written policy for food storage.  However, in her written declaration, Administrator Burnon claims that the facility “has policies and systems in place, implemented by the facility’s dietary and food service staff, to ensure that expired food items are not served to residents.”  She also claims that the facility “had policies in place and storage areas available so that food containers are not stored directly on the floor.”  She does not further describe those “policies and systems.”  Nor does she say that they were in effect at the time of the survey.  P. Ex. 6 at 3.  In any event, the existence of a policy (particularly an unwritten one) does not establish that staff followed it.

The surveyors observed that the facility did not store food in accordance with professional standards for food safety.  Foods stored in the kitchen pantry, refrigerator, and freezer did not identify when the product was opened or when the product expired.  Food was stored directly on the floor.  CMS Ex. 2 at 61, CMS Ex. 12 at 3 (Foil Decl. ¶¶ 9-12).  Specifically:

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• Five large bags of pasta had been opened.  They were closed with a tie but had no label identified the date opened or the expiration date.  CMS Ex. 2 at 61; see CMS Ex. 12 at 3 (Foil Decl. ¶ 10).
• Six large bags of cereal had no label identifying the date received or the expiration date.  Id.
• A 25-pound bag of jumbo onions was stored directly on the floor.  Id.
• A 50-pound bag of classic grains rice was stored directly on the floor.  CMS Ex. 2 at 62; see CMS Ex. 12 at 3 (Foil Decl. ¶ 10).
• In the refrigerator, a plastic tub of tomatoes was not sealed or wrapped.  No label identified the expiration date.  Id.
• In the refrigerator, a medium-size bag of carrots had no label to identify its expiration date.  Id.
• In the refrigerator, a low-moisture bag of mozzarella cheese had no label to identify the date it was opened or its expiration date.  Id.
• In the freezer, the surveyor observed two bags of unidentified “brown stick-like items.”  No labels identified the product, the dates the bags were opened, or the expiration dates.  Id.

Surveyor Scott Michael Foil spoke to a kitchen employee (identified as KE A), who conceded that the facility had not properly labeled and dated each product with the open date and the expiration date.  CMS Ex. 12 at 3, 4 (Foil Decl. ¶¶ 11, 14).  Again, the facility’s administrator agreed.  CMS Ex. 12 at 4 (Foil Decl. ¶ 14).  In her written declaration, Administrator Burnon does not deny making the statement to the surveyor.

Ultimately, Petitioner submits no evidence that refutes the surveyor observations but suggests that an employee’s “lapse” in judgment “does not equate to an overall system failure.”  P. Br. at 3.  In fact, the circumstances observed by the surveyors were more significant than a single employee’s “lapse.”  They evidenced a significant disregard for food safety and put the facility out of substantial compliance with section 483.60(i)(2).

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

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CMS determined that two of the cited deficiencies – notification of changes (483.10(g)(14)) and medication errors (483.45(f)(2)) – posed immediate jeopardy to resident health and safety.

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 Center, 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 Center- Johnston, DAB No. 2031 at 17-18 (2006), aff’d, Liberty Commons Nursing & Rehab Ctr. – Johnston v. Leavitt, 241 F. App’x 76 (4^th 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 jeopardy.  Life Care Ctr. of Tullahoma, DAB No. 2304 at 58 (2010), aff’d, Life Care Ctr. of Tullahoma v. Secretary of Health & Human Servs., 453 F. App’x 610 (6th Cir. 2011); Stone Cnty. Nursing & Rehab. Ctr., DAB No. 2276 at 19 (2009).

Citing Appendix Q of the State Operations Manual, Petitioner argues that, in addition to its regulatory definition (noncompliance has caused or is likely to cause serious injury, harm, impairment, or death to a resident), immediate jeopardy “should be reserved for the most serious incidents occurring in a nursing home, such as incidents [that] lead to a resident’s death or incidents [that,] if not immediately corrected[,] could cause serious bodily injury to a resident.”  P. Br. at 19.

The Departmental Appeals Board has repeatedly and explicitly rejected this argument.

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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. and Health Care, DAB No. 2853 at 25 (2018); Kindred Transitional Care and 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 Community 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; Beverly Health and Rehab. Ctr. – Williamsburg, DAB No. 1748 at 8 (2000), aff’d Beverly Health and Rehabilitation Services 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., 139 S. Ct. 1804 (2019).

With respect to Appendix Q, the Board has specifically rejected the notion that immediate jeopardy requires the level of threat that Petitioner describes, pointing out that it is not found in the regulatory definition of immediate jeopardy, 42 C.F.R. § 488.301, by which we are bound.  Countryside Rehab. and Health Care, DAB No. 2853 at 25 (2018) (“The imminence of resident harm is not an element of the regulatory definition of immediate jeopardy”); Kindred, DAB No. 2792 at 20; Miss. Care Ctr. of Greenville, DAB No. 2450 at 15-16 (2012); Foxwood Springs Living Ctr., DAB No. 2294 at 9 (2009).  That definition “neither defines the term ‘likelihood’ nor sets any parameters as to the timing of potential harm.”  Miss. Care Ctr., DAB No. 2450 at 16 (quoting Agape Rehab. of Rock Hill, DAB No. 2411 at 19 (2011)).  Thus, the Board has concluded that a facility’s deficiencies may pose immediate jeopardy even though they do not create a “crisis situation.”  Miss. Care Ctr., DAB No. 2450 at 16.

Petitioner has not met its burden of establishing that the immediate jeopardy finding is clearly erroneous.  In fact, the evidence supports CMS’s position.  It establishes that, because the facility staff did not administer prescribed medications and did not inform the resident’s physician that they were no longer administering the medication, R18 suffered serious actual harm and was in danger of suffering even greater harm.  CMS Ex. 13 at 3-5 (Blaylock Decl ¶¶ 9, 13, 16).

6. The penalties imposed – $9,675 per day for four days of immediate jeopardy and $360 per day for 13 days 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

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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.  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.

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 Hospital at Charleston, DAB No. 3094 at 30; Crawford Healthcare and Rehabilitation, 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, September 19, 2023.  CMS Ex. 1 at 3-4; 87 Fed. Reg. 15,100, 15,111 (Mar. 17, 2022).  CMS imposed a per-day CMP of $9,640 per day for each day of immediate jeopardy, which is in the very-low range for immediate jeopardy deficiencies ($7,317 to $23,989) and $360 per day for the days of substantial noncompliance that did not pose immediate jeopardy, also 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; 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 Hospital of Charleston – TCU, DAB No. 3094 at 30 (2023); Brian Ctr. Health & Rehab., DAB No. 2336 at 12 (2010).

Petitioner asserts, without support, that CMS did not consider the applicable factors.  P. Br. at 20.   In fact, CMS is not required to submit evidence or explain its reasoning as to the factors it considered in determining the amount of the CMP.  Alden Town Manor Rehab. & HCC, DAB No. 2054 at 31 (2006).

Petitioner also argues that the State IDR (Independent Review) process recommended reducing the penalty.  But CMS ultimately determines whether a facility is in substantial compliance, and I am not bound by IDR recommendations.  See Britthaven of Chapel Hill, DAB No. 2284 at 7-9 (2009).

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Petitioner also asserts that its compliance history could not have been considered in setting the amounts of the CMPs, suggesting that it has an unblemished history of compliance.  P. Br. at 20.  In fact, Petitioner has a less than stellar history.  As recently as May 2023, a few months before the survey upon which this matter is based, CMS determined that the facility was not in substantial compliance with the quality-of-care regulation and that its noncompliance posed immediate jeopardy to resident health and safety.  Park Place Manor, CR6978 (2026).

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

I have discussed in some detail the facility’s significant failure to obtain and administer the medication R18 required and its failure to notify her physician that she was no longer receiving the medication.  For this the facility is culpable.

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 deficiencies, and the facility’s culpability), I find that these relatively low CMPs are reasonable.

Conclusion

From August 2 through 18, 2023, the facility was not in substantial compliance with Medicare program requirements, and, from August 2-3, and August 5-6, two of its deficiencies (42 C.F.R. §§ 483.45(f)(2), 483.10(g)(14)) posed immediate jeopardy to resident health and safety.  The penalties imposed – $9,675 per day for four days of immediate jeopardy, and $360 per day for 13 days of substantial noncompliance that did not pose immediate jeopardy – are reasonable.