Forest Hills Center for Rehabilitation and Healing, DAB CR6996 (2026)

DECISION

Following a recertification survey completed by the New Jersey Department of Health (state agency) on December 12, 2023, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner, Forest Hills Center for Rehabilitation and Healing, was not in substantial compliance with Medicare participation requirements.  CMS imposed a per-day civil money penalty (CMP) of $13,820 for one-day of immediate jeopardy on December 4, 2023, and a $360 per-day CMP from December 5, 2023 through February 8, 2024, for a total of $37,580.  For the reasons set forth below, I find that Petitioner was not in substantial compliance with Medicare requirements, and that the CMPs are reasonable. 

I.  Background and Procedural History

On December 12, 2023, the state agency completed a recertification survey of Petitioner’s facility.  Based on the survey, CMS, in a letter dated January 22, 2024, notified Petitioner that the state agency had identified deficiencies with the Medicare

Page 2

requirement at 42 C.F.R. § 483.25(d) (Tag F689), scope and severity level K.1  CMS Ex. 2. 

As a result of these findings of noncompliance, in a notice dated March 25, 2024, CMS imposed a federal CMP of $13,820 per day for one day, December 4, 2023, and a per-day CMP of $360 beginning December 5, 2023, and continuing through February 8, 2024.  CMS Ex. 57. 

On March 25, 2024, Petitioner filed a request for hearing.  On March 27, 2024, Administrative Law Judge (ALJ) Jacinta Alves issued an Acknowledgment Letter and her Standing Prehearing Order (SPO).  CMS then filed its prehearing exchange on June 21, 2024, which included a prehearing brief (CMS Br.) along with fifty-seven exhibits (CMS Exs. 1-57), and four proposed witnesses.  On July 30, 2024, Petitioner filed its pre-hearing brief (P. Br.) along with twenty-four exhibits (P. Exs. 1-24) and three proposed witnesses. 

On September 19, 2024, the parties filed a joint statement of issues, joint statement of undisputed facts (Jt. Stip.), and a joint settlement status report in which the parties requested an oral hearing.  This case was transferred to me on December 30, 2025.  On January 5, 2026, an order was issued requesting that the parties provide written direct testimony and requests for cross-examination. 

On January 12, 2026, a notice of rescheduled hearing was issued setting the hearing to commence on March 17, 2026.  The notice admitted CMS exhibits 1-48, 50, 52, 54, and 56-57 into evidence.  It also admitted Petitioner’s exhibits 1-20 into the record. 

A hearing was held beginning on March 17, 2026 and ending on March 18, 2026.  During the hearing, I admitted the remaining exhibits into evidence as the witnesses appeared to testify.  CMS called Alicia Cartwright, Edward Rucki, Adele Cordasco, and Susan Izzo.  Petitioner called Gail Rader, Susan Suria and Elizabeth Torres. 

Page 3

Following the conclusion of the hearing, CMS filed its post-hearing brief (CMS Post-Hr’g Br.) on June 30, 2026.  Petitioner filed its post-hearing brief (P. Post-Hr’g Br.) on July 13, 2026.  CMS waived its reply brief (CMS Reply).  As a result, this case is now ripe for decision. 

II.  Issues

The issues in this case are: 

1) Whether Petitioner failed to be in substantial compliance with the Medicare program participation requirements at 42 C.F.R. § 483.25(d)(1)-(2);

2) If the facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2), whether CMS’s determination that the noncompliance immediately jeopardized the health and safety of the facility’s residents was clearly erroneous; and

3) If Petitioner was not in substantial compliance, whether the amount of the CMPs imposed on Petitioner are reasonable under the factors in 42 U.S.C. § 1320a-7a(d) and 42 C.F.R. § 488.438(f). 

III.  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)-(14). 

IV.  Discussion

1. Applicable Legal Authority

The Act sets requirements for skilled nursing facilities (SNF) to participate in the Medicare program and authorizes the Secretary of Health and 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. pts. 483 and 488. 

To participate in the Medicare program, a SNF must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.  Id. 

Page 4

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every twelve months and more often if necessary to ensure that identified deficiencies are corrected. Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4) (42 U.S.C. § 1395i-3(g)(4)). 

The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance with Medicare requirements.  42 C.F.R. § 488.406.  Among other remedies, CMS is authorized to impose a per-day CMP for the number of days a facility is not in substantial compliance or a per-instance CMP for each instance of the facility’s noncompliance.  42 C.F.R. § 488.430(a).  In this case, CMS imposed a per-day CMP.  The regulations specify that a per-day CMP will fall into one of two ranges of penalties.  42 C.F.R. §§ 488.408, 488.438.  The upper range, $7,317 to $23,989 per day, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents, and, in some circumstances, for repeated deficiencies.2  42 C.F.R. § 488.438(a)(1)(i), (d)(2); 45 C.F.R. § 102.3 (Table) (2022).  The lower range, $120 to $7,195 per day, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3 (Table). 

Petitioner was also notified that it would be ineligible to conduct a Nurse Aide Training and Competency Evaluation Program (NATCEP).  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 $11,995 (45 C.F.R. § 102.3 (Table) (2022)); or (3) subject to termination of its participation agreement, a denial of payment for new admissions (DPNA), or the appointment of temporary management.  Ineligibility or withdrawal of approval to conduct a NATCEP is mandatory if the conditions are satisfied.  See 42 C.F.R. § 488.406. 

If CMS imposes a remedy based on a noncompliance determination, such as a CMP, then the facility may request a hearing before an ALJ 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), 1819(h)(2)(B)(ii) (42 U.S.C. §§ 1320a-

Page 5

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).  However, the facility may not appeal CMS’s choice of remedies or the factors CMS considered in selecting 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 pursuant to a finding of substandard quality of care.  42 C.F.R. § 498.3(b)(14), (d)(10)(i).  The CMS determination as to the level of noncompliance, 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, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).  The Board has 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., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000).  ALJ review of a CMP is subject to the parameters set forth in 42 C.F.R. § 488.438(e). 

2. Findings of Fact, Conclusions of Law, and Analysis
   1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689), because Petitioner failed to ensure residents were free of accident hazards.3

Petitioner was cited for not substantially complying with 42 C.F.R. § 483.25(d).  Under section 483.25(d), facilities must ensure, based on a resident’s comprehensive assessment, that: 

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

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

42 C.F.R. § 483.25(d). 

The facility must therefore eliminate or reduce a known or foreseeable risk of accidents “to the greatest degree practicable.”  Del Rosa Villa, DAB No. 2458 at 7 (2012); Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 9-10, aff’d, Clermont Nursing

Page 6

& Convalescent Ctr. v. Leavitt, 142 F. App’x 900 (6th Cir. 2005); accord, Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007) (holding that the facility must “take all reasonable steps to ensure that a resident receives supervision and assistive devices designed to meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”). 

A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an “adequate” level of supervision under all the circumstances.  Briarwood, DAB No. 2115 at 5; Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d, Windsor Health Care Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005); 42 C.F.R. § 483.25(d).4  The issue is not whether the facility took “some steps” to mitigate an assessed risk; the issue is whether the facility took “all reasonable steps.”  Logan Healthcare Leasing, LLC, DAB No. 3036 at 15 (2021). 

2. Background

On December 4, 2023, at 12:20 p.m., the survey team observed the pureed lunch meal, which was served by the facility’s kitchen, for all of the residents who were prescribed a pureed diet.  CMS Ex. 48 at 6. 

1. Resident 61

Resident # 61 scored a 6 out of 15 on the brief interview for mental status exam on October 20, 2023, which indicated moderate cognitive impairment.  Jt. Stip. at 5.  Resident # 61 also had a speech therapy evaluation and plan of treatment from March 9, 2023, indicating that the resident exhibited oral stage dysphagia with solids including difficulty chewing; a diet of pureed foods and thin liquids was recommended.  Id.; CMS Ex. 6 at 2-3. 

On December 4, 2023, at 12:15 p.m., during the lunch meal, the surveyor observed Resident # 61’s meal.  Jt. Stip. at 2.  Resident # 61 was prescribed a pureed diet and that was indicated on the resident’s tray ticket which was provided with the meal.  Id.; CMS Ex. 5.  Resident # 61’s order summary report contained an order for a regular, puree texture, thin consistency diet.  Id. at 5; CMS Ex. 5. 

Page 7

The resident was served pureed mashed potatoes.  The surveyor observed the mashed potatoes to contain 14 ¼- to ½-inch-sized chunks of potatoes in the pureed mashed potatoes.  Id. at 2. 

2. Resident 28

Resident # 28 was admitted to the facility with diagnoses that included Parkinson’s disease.  Jt. Stip. at 6; CMS Ex. 36.  The resident’s speech therapy evaluation and plan of treatment dated June 12, 2023, showed that the resident required treatment for swallowing dysfunction and/or oral function for feeding and that treatment was needed based on dysphagia, oropharyngeal phase.  Jt. Stip. at 6; CMS Ex. 39.  Resident # 28 scored a 3 out of 15 on his brief interview for mental status test, indicating a severe cognitive impairment.  Jt. Stip. at 6; CMS Ex. 37 at 3. 

Resident # 28’s order summary report included an order for a regular, pureed-texture, nectar-liquid-consistency diet.  Jt. Stip. at 6; CMS Ex. 38 at 1.  The surveyors observed the lunch tray for Resident # 28, which included pureed mashed potatoes instead of boiled rice.  Jt. Stip. at 2; CMS Ex. 48 at 7 (The lunch ticket indicated that Resident # 28 was to receive boiled rice).  The survey team observed that the resident’s lunch meal contained several ¼- to ½-inch-sized chunks of potatoes within the mashed potatoes.  Id.  The mashed potatoes were served to Resident # 28.  Id. 

Nurse Suria, the director of nursing, testified at the hearing that the certified nursing assistant (CNA) serving Resident # 28 removed the lumps prior to feeding the resident.  March 18, 2026 Hr’g. Tr. at 48. 

3. Resident 31

Resident # 31 was admitted to the facility with diagnoses that included altered mental status, dementia, and encephalopathy.  Jt. Stip. at 6; CMS Ex. 23 at 1.  A nurse progress note from November 20, 2023, indicated that Resident # 31 did not swallow during feedings and needed cuing to swallow and that the resident also pocketed food in the mouth.  Jt. Stip. at 6; CMS Ex. 30 at 1.  The speech language pathologist who evaluated Resident # 31 on June 11, 2020, showed that the resident treatment for dysphagia and recommended a pureed diet.  Jt. Stip. at 6; CMS Ex. 31.  Resident # 31 scored a 0 out of 15 on a brief interview for mental status test performed on October 15, 2023, indicating a severe cognitive impairment.  Jt. Stip. at 7; CMS Ex. 24 at 3. 

Resident # 31’s order summary report included an order for a regular, pureed-texture, thin consistency diet.  Jt. Stip. at 6; CMS Ex. 25 at 1.  The survey team also observed the meal ticket for Resident # 31 showed that the resident was to receive pureed boiled rice but the resident received pureed mashed potatoes instead.  Jt. Stip. at 2-3.  The surveyors

Page 8

also viewed Resident # 31’s lunch tray and identified several ¼- to ½-inch-sized chunks of potatoes within in the pureed mashed potatoes.  Id. 

The CNA, Nurse Torres, responsible for feeding Resident # 31 testified at the hearing.  March 18, 2026 Hr’g. Tr. 91-94.  Nurse Torres testified that she identified chunks in Resident # 31’s mashed potatoes.  Id.  She also testified that she knew the food served to Resident # 31 should be smooth, without chunks, and that she did not request a new tray for the resident.  Id.  Instead, Nurse Torres mashed the lumps herself.  Id.  Nurse Torres testified that there was no facility policy instructing or authorizing her to mash food with lumps served to residents on a pureed diet.  Id.  Nurse Torres also acknowledged that she did not inform the kitchen about the chunks.  Id.  The testimony of Nurse Suria supports Nurse Torres’ statements.  Id. at 48-49. 

4. Resident 69

Resident # 69 was admitted to the facility with a diagnosis that included dementia.  Jt. Stip. at 5; CMS Ex. 11 at 1.  On January 27, 2022, the speech language pathologist diagnosed Resident # 69 with oropharyngeal dysphagia and found that a diet with a puree consistency was needed.  Jt. Stip. at 5; CMS Exs. 14, 15.  The speech language pathologist also noted that Resident # 69 had a risk of aspiration.  Jt. Stip. at 5; CMS Ex. 17.  Resident # 69 was found to have severe cognitive impairment based on the resident’s inability to complete the brief interview for mental status test.  Jt. Stip. at 6; CMS Ex. 12 at 3. 

Resident # 69’s order summary report revealed an order for a regular, pureed-texture, thin consistency diet.  Jt. Stip. at 5; CMS Ex. 13.  CNA # 1 fed Resident # 69 on December 4, 2023.  CMS Ex. 48 at 1, 7.  CNA # 1 told the surveyors that she did not feed the pureed mashed potatoes to Resident # 69 because it did not look like a pureed consistency.  Id.  The CNA did not report her concerns to anyone else at the facility.  Id.  Nurse Suria also testified that the CNA did not feed the potatoes to Resident # 69.  March 18, 2026 Hr’g. Tr. at 49. 

5. Petitioner’s Policies

Food and Nutrition Services Policy. 

The policy states that staff will inspect food, the food trays, ensure that the meal is correct and that the food appears palatable and attractive.  CMS Ex. 47 at 1.  The food is also to be served at a safe and appetizing temperature.  Id.  Additionally, the policy states that if an incorrect meal is served to a resident or a meal does not appear palatable, the staff will report it to the food services manager, and a new tray will be served.  Id. 

Page 9

Nurse Suria, the director of nursing, testified that none of the staff who observed the chunks in the food of the residents with pureed diets reported the chunks. March 18, 2026 Hr’g Tr. at 49.  She also testified that the staff did not follow the policy requiring an incorrect or unpalatable meal to be reported for replacement.  Id. at 50. 

Nurse Suria testified that there is nothing in the facility’s food and nutrition services policy authorizing the staff to mash or add liquid to correct a bad puree.  March 18, 2026 Hr’g Tr. at 43, 51. 

Puree Diet Consistency Policy

The puree diet consistency policy defines a puree as food that “has been ground, pressed, and/or strained to a consistency of a soft, smooth thick paste similar to thick pudding.”  CMS Ex. 46.  The policy requires pureed food to be prepared in a matter that prevents lumps or chunks and achieves a smooth, soft, homogenous consistency.  CMS Ex. 46.  Food items that require chewing would not be part of a puree diet.  CMS Ex. 46. 

Nurse Suria testified that there is nothing in the facility’s puree diet policy authorizing the staff to mash or add liquid to correct a bad puree.  March 18, 2026 Hr’g Tr. at 43, 51. 

6. Petitioner’s Noncompliance

Here, CMS has established its prima facie case that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) because the evidence shows the risk of harm posed by serving residents with a pureed diet food with chunks was unquestionably foreseeable.  None of Petitioner’s arguments or witnesses dispute that residents with a pureed diet were served food with chunks. 

Petitioner argues that it substantially complied with 42 C.F.R. § 483.25 and did not deviate from the professional standards of practice.  Petitioner asserts that there was no harm or the likelihood of harm to the residents because they were fed by staff who understood their diets and that they did not consume the chunks.  P. Post-Hr’g Br. 

Additionally, Petitioner points to places in the record where residents were found to not have swallowing disorders.  P. Post-Hr’g Br.  However, at no point does Petitioner show that any of the residents discussed above were ordered a diet that was not a pureed diet. 

Petitioner relies on the expert testimony of Nurse Gail Rader.  Nurse Rader testified that she performed a records review, including facility documents and the survey materials.  Hr’g Tr. at 103.  Nurse Rader testified that she is not a speech language pathologist nor a dietician and that she was not present at the time the survey was conducted.  Id. at 108.  Nurse Rader also testified that the chunks in the mashed potatoes were caught prior to the food being fed to the residents and that such actions were consistent with the facility’s

Page 10

policies.  Id. at 132.  This argument is refuted by the language contained in the policy itself as well as the testimony of the director of nursing, Nurse Suria, who admitted that the policies do not authorize the staff to add liquids or mash food for the residents.  She also testified that she did not find a likelihood for serious harm because staff understood the diets, identified the chunks, the residents were not fed the chunks, and there were no other meal time issues.  Id. 

However, Petitioner does not dispute that the residents with a pureed diet were served a meal tray that contained mashed potatoes with chunks.  Petitioner argues that because the residents were fed by staff that knew and understood their dietary needs, the residents were not at risk of choking or aspirating or otherwise being unable to process their food.  However, Petitioner fails to point out where this is supported by the regulations and/or the facility’s own policies.  The residents were prescribed a pureed diet which they did not receive on December 4, 2023.  The staff feeding the residents did not send the meals back as required by the facility’s policy.  Some of the staff mashed the chunks themselves, which is also not supported by the facility’s policies.  Additionally, the mashed potatoes were not pureed according to the facility’s policies.  The staff’s actions are inconsistent with the policies and could have caused serious harm to the residents if the chunks were consumed. 

By allowing the chunks in the mashed potatoes to be served to the residents on a pureed diet, Petitioner failed to ensure that the residents received treatment and care in accordance with standards of practice and the comprehensive person-centered orders in place for its residents, as required by 42 C.F.R. § 483.25.  As previously discussed, each resident discussed above was prescribed a pureed diet and was given a meal tray with instructions for a pureed diet.  By allowing the chunks to be served to residents, and failing to report and return the trays, Petitioner placed the residents at risk for choking and aspiration and disregarded its own policies. 

Therefore, I find that Petitioner was not in substantial compliance with section 483.25, and its noncompliance posed a risk to resident health and safety. 

3. Petitioner failed to prove that CMS’s immediate jeopardy determination was 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.  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 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

Page 11

Home, DAB No. 1962 at 27-28 (2005) (citing Koester Pavilion, DAB No. 1750 (2000)); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007). 

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

As discussed in detail above, the evidence in this case establishes that residents on a pureed diet were served a meal tray that included mashed potatoes with chunks.  The chunks could have led to aspirating or choking if they had been fed to the residents. 

While Petitioner argues that the immediate jeopardy finding should be reversed, it has failed to make any substantive argument showing that the finding was clearly erroneous.  Moreover, having reviewed the evidence, I conclude that the finding of immediate jeopardy must be sustained because it was not clearly erroneous. 

As discussed above, Petitioner’s deficient food safety practices placed residents on a pureed diet at more than minimal risk of harm.  Accordingly, I find that CMS did not clearly err in concluding Petitioner’s noncompliance with 42 C.F.R. § 483.25(d)(1)-(2) posed immediate jeopardy to the health and safety of the residents. 

4. The penalties imposed are reasonable in amount and duration.

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

Page 12

The regulations leave the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at 42 C.F.R. §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2), 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2), (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).  The Board has explained that “there is a presumption that CMS has considered the regulatory factors in setting the amount of the CMP and that those factors support the CMP amount imposed by CMS.  Unless a facility contends that a particular regulatory factor does not support that CMP amount, the ALJ must sustain it.”  Coquina Ctr., DAB No. 1860 at 32 (2002).  The burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 22 (2017). 

In assessing the reasonableness of a CMP amount, an ALJ considers the per-day amount, rather than the total accrued CMP.  See Kenton, DAB No. 2186 at 28.  Pursuant to 42 C.F.R. § 488.408(g)(2), a facility cannot appeal CMS’s choice of a remedy, and an appeal of a CMP is limited to review based on the regulatory factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404.  See, e.g., Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 19-20 (2010).  Because I sustained the finding of noncompliance at the immediate jeopardy level, the penalty amount for the first day of the period of noncompliance must be from the higher range of penalties.  42 C.F.R. § 488.438(a)(1)(i).  For the year in question, that range is $7,317 to $23,989 per day.  45 C.F.R. § 102.3 (2022); 87 Fed. Reg. at 15,100, 15,112 (March 17, 2022).  The lower per-day CMP range of $120 to $7,195, as adjusted annually, is also applicable to this case, because this range applies to deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3 (2022). 

Here, CMS imposed a CMP of $13,820 for one-day of immediate jeopardy on December 4, 2023, and a $360 per-day CMP from December 5, 2023 through February 8, 2024, for a total of $37,580, which are reasonable.  The $13,820 amount, as well as the $360 amount, are at the lower end of the penalty ranges.  The evidence shows that CMS “considered [Petitioner’s] history of noncompliance, including any repeated deficiencies; its financial condition; and the factors specified in . . . 42 C.F.R. § 488.404.”  CMS Ex. 2 at 1, 3. 

Petitioner argues that the total amount of the CMP is unreasonable because the facts fail to demonstrate any noncompliance and that it did not demonstrate culpable conduct.  However, I have determined that the facts before me support a finding of substantial noncompliance.  Thus, the issue before me is whether the regulatory factors were considered in setting the CMP amounts and whether those factors support the CMP amounts.  42 C.F.R. §§ 488.438(f), 488.404.  I do not assess the reasonableness of the total accrued CMP. 

Page 13

Considering the factors, Petitioner’s noncompliance was very serious.  Petitioner has not offered any argument that it cannot pay the per-day CMP.  I thus find no basis to reduce the CMPs.  As a result, considering the regulatory factors here, I conclude that the CMP amounts imposed are reasonable. 

Petitioner also contests the duration of the CMP.  P. Post Hrg’ Br. at 24.  Petitioner notes that the first notice related to an imposition of remedies it received calculated the remedies through January 22, 2024 and the second notice stated that substantial noncompliance ended on February 8, 2026.  DAB E-File # 10-b.  However, once a facility has been found to be out of substantial compliance (as Petitioner was here), it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again. Ridgecrest Healthcare Ctr., DAB No. 2493 at 2-3 (2013); Taos Living Ctr., DAB No. 2293 at 20 (2009); Premier Living & Rehab Ctr., DAB No. 2146 at 3 (2008); Lake City Extended Care, DAB No. 1658 at 12-15 (1998).  The burden is on the facility to prove that it is back in compliance, not on CMS to prove that the deficiency continued to exist. W. Texas LTC Partners, Inc. v. Dep’t of Health & Hum. Servs., 843 F.3d 1043, 1049 (5th Cir. 2016); Asbury Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002). 

Ultimately, to show that it achieved substantial compliance at an earlier date, the facility must come forward with evidence establishing that it was taking all reasonable steps to prevent the accidents.  Here, Petitioner has not produced that evidence showing that it was in substantial compliance before February 8, 2024.  Instead, it references a letter dated January 22, 2024 that indicates the CMP was ongoing until substantial compliance was achieved. 

V.  Conclusion

For the reasons discussed above, I conclude that Petitioner was not in substantial compliance with the Medicare participation requirements at 42 C.F.R. § 483.25(d)(1)-(2).  A CMP of $13,820 for one-day of immediate jeopardy on December 4, 2023, and a $360 per-day CMP from December 5, 2023 through February 8, 2024, for a total of $37,580, are reasonable.