Elmbrook of Hugo, DAB CR6999 (2026)

DECISION

In February 2023, Resident 1 (R1) was admitted to Elmbrook of Hugo (Petitioner or facility), a skilled nursing facility (SNF) participating in the Medicare program, to receive physical and occupational therapy due to muscle weakness.  R1 was 94 years old and was diagnosed with multiple medical conditions, including congestive heart failure.  The physical and occupational therapy resulted in R1 gaining the ability to propel a wheelchair by using her feet. 

One day, a facility staff member offered to push R1 in her wheelchair from R1’s room to the dining area.  The staff member started to attached footrests to the wheelchair, but R1 asked the staff member not to attach them because R1 would not be able to use her feet to propel the wheelchair back to her room after eating.  The staff person agreed not to attach the footrests.  As a result, R1 would need to lift and keep her feet off the ground for the duration of the trip.  However, they only made it to the doorway of R1’s room when R1’s left foot dropped and ran into the left front wheel of the wheelchair.  This produced significant pain for R1 and R1’s left ankle looked injured.  A physician ordered R1 to be sent to the hospital.  At the hospital R1 learned that her left ankle was fractured. 

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The Oklahoma State Department of Health (state agency) investigated this incident on behalf of the Centers for Medicare & Medicaid Services (CMS) and found that Petitioner had not been in substantial compliance with the Medicare program participation requirement concerning accident prevention (i.e., 42 C.F.R. § 483.25(d)).  CMS agreed that the deficiency resulted in actual harm to one of the facility’s residents and imposed a $19,460 per-instance civil money penalty (CMP) on Petitioner. 

Petitioner appealed, arguing that its staff member properly pushed R1 in her wheelchair without footrests and that R1’s injury was a simple accident.  Petitioner provided expert witness testimony to support its position.  CMS moved for summary judgment. 

I grant CMS’s summary judgment motion.  The undisputed facts show that Petitioner was noncompliant with 42 C.F.R. § 483.25(d) because Petitioner’s staff failed to provide necessary assistive devices and supervision to prevent an accident.  Petitioner’s expert witness testified that a resident must meet certain criteria to be safely pushed in a wheelchair without footrests.  However, Petitioner failed to follow its policy on assistive devices that required an assessment as to whether R1 met those or similar criteria.  Further, Petitioner did not specifically dispute the reasonableness of the amount of the CMP imposed.  Therefore, I affirm the imposition of the $19,460 per-instance CMP. 

I.  Legal Framework

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

For Medicare program purposes, an SNF is an institution that is primarily engaged in providing skilled nursing care and/or rehabilitation services for its residents but is not primarily engaged in the care and treatment of mental diseases.  42 U.S.C. §§ 1395x(j), 1395i-3(a)(1).  If an SNF wants to participate in the Medicare program, it must enroll in that program.  42 U.S.C. § 1395cc(j).  Because an SNF is a “provider of services” for Medicare program purposes, each facility participating in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u). 

A Medicare participating SNF must meet a variety of ongoing statutory requirements as to how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d).  Congress created this “litany of statutory requirements” due to “a longstanding national commitment to provide safe and dignified

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care for the elderly.”1  Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 180-81 (2023). Further, Congress stated that “[i]t is the duty and responsibility of the Secretary to assure that requirements which govern the provision of care in skilled nursing facilities . . . are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public moneys.”  42 U.S.C. § 1395i-3(f)(1).  Therefore, each SNF must comply with “such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”  42 U.S.C. § 1395i-3(d)(4)(B); see 42 U.S.C. § 1395i-3(c)(1)(xi), (f).  The Secretary promulgated regulations to implement this statutory obligation.  See 42 C.F.R. pt. 483, subpt. B.2

If an SNF fails to meet a statutory or regulatory participation requirement, then the SNF has a “deficiency.”  42 C.F.R. § 488.301; see also 42 U.S.C. § 1395i-3(h)(1).  “Noncompliance” means “any deficiency that causes an SNF to not be in substantial compliance.”  42 C.F.R. § 488.301; see also 42 U.S.C. § 1395i-3(h)(3).  To maintain “substantial compliance,” an SNF’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. 

When an SNF has a deficiency, CMS must decide the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) of the deficiency.  See 42 C.F.R. § 488.404(a)-(b).  The highest level of severity occurs when the deficiency immediately jeopardizes the health or safety of facility residents.  See 42 U.S.C. § 1395i-3(h)(1)(A).  “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301. 

The Secretary must ensure that the “enforcement” of participation requirements is “adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public moneys.”  42 U.S.C. § 1395i-3(f)(1).  To do so, the Secretary contracts with state agencies to survey participating SNFs.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  Standard surveys are unannounced and occur at least once every 15 months.  42 U.S.C. § 1395i-3(g)(2)(A)(i), (iii)(I).  State agencies also investigate complaints against SNFs.  42 U.S.C. § 1395i-3(g)(1)(C), (4). 

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When the results of a survey or investigation show that an SNF is noncompliant with the participation requirements, the Secretary may impose remedies on the SNF, including:  a CMP; a denial of payment for Medicare beneficiaries admitted to the SNF; a denial of payment for new admissions (DPNA) to the SNF; and/or termination of the SNF’s Medicare provider agreement.  42 U.S.C. §§ 1395i-3(h), 1395cc(b); 42 C.F.R. § 488.406.  The purpose of imposing remedies is to “ensure prompt compliance with program requirements.”  42 C.F.R. § 488.402(a); NMS Healthcare of Hagerstown, DAB No. 2603 at 8 n.6 (2014) (the regulations “make it clear that a CMP is not a punitive mechanism.”); see also Talevski, 599 U.S. at 232-33 (Alito, J., dissenting) (describing nursing facility enforcement as a “reticulated remedial regime” that is comprised of “certain limited remedies . . . , such as withdrawing federal funding and imposing civil penalties.”).

If CMS imposes a CMP, then CMS may either impose a CMP for each instance of noncompliance or a CMP for each day the SNF is noncompliant.  42 U.S.C. § 1395i-3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after March 17, 2022, and for deficiencies that occurred after November 2, 2015, the CMP amounts range as follows:  $2,400 to $23,989 for per-instance CMPs; $120 to $7,195 per day for less serious noncompliance; or $7,317 to $23,989 per day for noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2022); 87 Fed. Reg. 15100, 15111-12, 15119-20 (Mar. 17, 2022); see also 42 C.F.R. § 488.438(a) (CMP ranges before statutory adjustments). 

An SNF may request a hearing before an administrative law judge (ALJ) to dispute the findings of noncompliance leading to the imposition of a remedy.  42 U.S.C. §§ 405(b), 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii), 1395cc(h)(1); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.402(f)(1)(iv), 488.408(g)(1), 488.434(a)(2)(viii), 498.3(b)(8), (13), 498.40; see Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 21 (2000) (holding that SNFs are entitled to review when termination or “some other remedy is imposed.”); see also 5 U.S.C. §§ 554, 556, 557.  However, an ALJ may not review CMS’s choice of remedies.  42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13).  Further, an ALJ may only review CMS’s determination of the level of noncompliance when a successful challenge to the level would change the range of CMP amounts that could be imposed on the SNF or the SNF lost its approval to conduct a nurse aide training program due to a finding of substandard quality of care.  42 C.F.R. § 498.3(b)(14), (d)(10).  Finally, an SNF may dispute the amount of a CMP by challenging one or more of the statutory or regulatory factors used for setting the CMP amount.  42 C.F.R. § 488.438(e)(3); see 42  U.S.C. §§ 1320a-7a(d), 1395i-3(h)(2)(B)(ii)(I); 42 C.F.R. § 488.438(f).  An ALJ may not reduce a CMP to zero.  42 C.F.R. § 488.438(e)(1). 

In an ALJ proceeding, CMS has the burden of making a prima facie showing of noncompliance and, if CMS meets this burden, the SNF must prove that it was in substantial compliance by a preponderance of the evidence.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Hum. Servs.,

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No. Civ.A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001).  If the level of noncompliance is an issue in a case, the SNF has the burden of show that the level of noncompliance found by CMS was clearly erroneous.  42 C.F.R. § 498.60(c)(2). 

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

II.  Background and Procedural History

Petitioner is an SNF located in Hugo, Oklahoma.  On April 21, 2023, state agency surveyors completed a complaint investigation at Petitioner’s facility.  The state agency found that Petitioner immediately jeopardized the health and safety of residents based on Petitioner’s noncompliance with 42 C.F.R. § 483.25(d).  CMS Ex. 2 

In a May 12, 2023 notice of initial determination, CMS accepted the state agency’s findings of noncompliance and imposed a $19,460 per-instance CMP on Petitioner.  CMS Ex. 1 at 1-2.  In a July 31, 2023 notice, CMS stated that Petitioner returned to substantial compliance with Medicare requirements on April 25, 2023.  CMS Ex. 1 at 6. 

On June 21, 2023, Petitioner requested a hearing to dispute the initial determination.  On June 23, 2023, the Civil Remedies Division acknowledged the hearing request and issued my Standing Order.  On October 23, 2023, CMS filed a prehearing brief/motion for summary judgment and 12 proposed exhibits.  One of the proposed exhibits (CMS Ex. 10) contained written direct testimony from two state surveyors, which CMS later resubmitted as two exhibits (CMS Exs. 10, 13). 

On November 27, 2023, Petitioner submitted a prehearing brief/reply to motion for summary judgment and 22 proposed exhibits.  Six of the proposed exhibits were written direct testimony from witnesses.  Petitioner also moved to strike the written direct testimony from one of the surveyors (CMS Exhibit 13), and to cross-examine both surveyors.  On December 14, 2023, CMS opposed Petitioner’s motion to strike. 

On July 3, 2024, Petitioner moved for remand of this case to CMS, and on July 12, 2024, CMS opposed that motion.

III.  Issues

1. Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.25(d). 

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2. If Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d), whether the $19,460 per-instance civil money penalty is reasonable under applicable statutory and regulatory factors. 

Petitioner seeks review of CMS’s immediate jeopardy determination in this case.  P. Br. at 19.  However, the regulations state that “[t]he finding that the [SNF’s] deficiencies pose immediate jeopardy to the health and safety of residents” is not an initial determination “and therefore [is] not subject to appeal.”  42 C.F.R. § 498.3(d)(10)(i).  An exception to this prohibition occurs “only if a successful challenge [to the level of noncompliance] would affect . . . [t]he range of civil money penalty amounts that CMS could collect . . . or . . . [there is a] finding of substandard quality of care that results in the loss of approval for a SNF . . . of its nurse aide training program.”  42 C.F.R. § 498.3(b)(14)(emphasis added). 

CMS imposed a per-instance CMP in this case.  CMS Ex. 1 at 2, 6.  Based on the regulations above, the DAB has decided that an SNF has no right to appeal the immediate jeopardy determination because there is only one range of penalties for a per-instance CMP.  Fort Madison Health Ctr., DAB No. 2403 at 12 (2011) (“[T]he net effect of all these regulations is that challenges to the scope and severity are limited to only situations where the determination of immediate jeopardy results in a higher range of CMP . . . .”).  In addition, there is no evidence that CMS found substandard quality of care that resulted in the loss of approval of a nurse aide training program.  See CMS Ex. 1.  Therefore, I cannot review CMS’s determination that Petitioner immediately jeopardized the health and safety of residents in this case. 

IV.  Remand Request

In this proceeding, Petitioner asserts that it has a right to a jury trial based on Securities and Exchange Commission v. Jarkesy, 144 S. Ct. 2117 (2024).  Petitioner requests that I remand this case to CMS with instructions to refund the CMP it collected and placed in escrow.  I deny Petitioner’s motion.  See Oak Ridge Ctr., DAB No. 3195 at 31-32 (2025); The Oaks, DAB No. 3160 at 27-28 (2024).  Petitioner’s appeal is properly adjudicated in a formal administrative proceeding.  Sligo Creek Ctr. v. U.S. Dep’t of Halth & Hum. Srvs., 177 F. 4th 556, 560-62 (4th Cir. 2026)

V.  Summary Judgment

CMS moves for summary judgment, and Petitioner opposes that motion.  I grant CMS’s motion because the undisputed material facts are sufficient to show that Petitioner was noncompliant with 42 C.F.R. § 483.25(d).  Further, Petitioner did not challenge any of the statutory or regulatory factors related to the amount of the CMP imposed. 

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Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009). 

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, No. 1939 (2004); Lebanon Nursing & Rehab. Ctr.,  No. 1918 (2004).  The non-moving party may not simply rely on denials but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d sub nom. 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587).  In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Heritage House of Marshall Health & Rehab., DAB No. 3035 at 8 (2021); Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr., No. 1943 at 8 (2004); see also Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  W. Tex. LTC Partners, DAB No. 2652 at 6-7; cf. Guardian,  No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”); see Green Valley Healthcare & Rehab. Ctr., DAB No. 2947 at 8 (2019), quoting Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”). 

Specifically, in relation to administrative proceedings involving Medicare, it is well-established that an ALJ is empowered to decide a case on summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir.

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2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added). 

Finally, deciding a case on summary judgment does not mean that it is decided without a hearing.  In reviewing administrative appeals decided on summary judgment, courts describe the case as having been decided without an “oral hearing” or without an “evidentiary hearing.”  They recognize that, by considering the evidence and applying the law, the ALJ has granted the petitioner a hearing.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”). 

The primary factual basis for the deficiency in this case is that R1 sustained a facture of the left ankle when Petitioner’s staff was pushing R1 in a wheelchair without foot pedals attached.  CMS Ex. 2 at 1-2.  Specifically, the state agency’s Statement of Deficiencies alleged that R1 was being pushed in a wheelchair without footrests (i.e., R1 had to keep her feet raised off the ground without resting them on anything); however, R1’s left foot dropped while the wheelchair was moving, causing it to twist under the wheelchair’s front left wheel, resulting in a complaint of pain in the left ankle and transport to a hospital.  CMS Ex. 2 at 3-4.  As explained in detail below, the undisputed facts support this basis for the deficiency, and I grant summary judgment.  I note that Petitioner objected to the written direct testimony for one of CMS’s witnesses; however, I do not rely on the testimony of either CMS witness when rendering this decision.  Neither party objected to any of the other proposed exhibits in this case, and I make use of them consistent with the constraints of summary judgment as explained above. 

I do not grant summary judgment as to the other factual allegations in the Statement of Deficiencies.  Petitioner disputes a surveyor’s observation that, on April 11, 2023, R1 was in a transport van for a medical appointment in a wheelchair without footrests.  Petitioner submitted written direct testimony from the activities aide and van driver who were present for the trip to the medical appointment, and each testified that R1’s wheelchair had footrests attached.  P. Ex. 20; P. Ex. 21.  Therefore, there is a dispute of material fact concerning these allegations.  Petitioner also disputes alleged facts related to Resident 2.  Therefore, I do not grant summary judgment based on Resident 2 either. 

VI.  Undisputed Facts

1. R1 is female who was 94 years old in early to mid-2023.  P. Ex. 1 at 1.
2. Petitioner admitted R1 to its facility on February 3, 2023.  P. Ex. 1 at 1; P. Ex. 2. 

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3. R1’s medical diagnoses included:  pulmonary hypertension; chronic systolic (congestive) heart failure; peripheral vascular disease; type 2 diabetes mellitus with diabetic nephropathy; cardiac arrhythmia, unilateral primary osteoarthritis (left knee); left ankle and foot osteopenia; body mass index 38.0-38.9; shortness of breath; muscle weakness; and cognitive communication deficit.  P. Ex. 1 at 2; P. Ex. 2.
4. On February 6, 2023, R1 was evaluated for physical therapy, and on February 8, 2023, R1 was evaluated for occupational therapy.  See P. Ex. 4.
5. On February 7, 2023, a physician ordered R1 to receive physical therapy five to seven times per week for 35 days.  The order specified that the therapy include gait/transfer training, balance/coordination training, and exercises/activities to strengthen the lower extremities and trunk.  The physician identified muscle weakness as the diagnosis justifying the physical therapy.  P. Ex. 2.
6. On February 8, 2023, a physician ordered occupational therapy for three to five times per week for six weeks.  The physician identified muscle weakness as the diagnosis justifying occupational therapy.  P. Ex. 2.
7. A physical therapist discharged R1 from physical therapy on March 7, 2023, because R1 “reached maximum potential with skilled services.”  P. Ex. 4 at 3.  The physical therapy discharge summary indicated limited improvement for certain functions.  P. Ex. 4 at 1-2.
8. One physical therapy goal was for R1 to self-propel her wheelchair 150 feet with stand-by assistance; however, by discharge, R1 could only propel herself 30 feet with stand-by assistance.  This was an improvement over her initial baseline on February 6, 2023, when she required maximum assistance.  P. Ex. 4 at 2.
9. The physical therapist assessed R1 at discharge as having total dependence for bed mobility and transfers.  P. Ex. 4 at 3.
10. An occupational therapist discharged R1 from occupational therapy on March 6, 2023, because R1 had “reached maximum potential with skilled [occupational therapy].”  P. Ex. 4 at 5.  The occupational discharge summary recommended that R1 continue to receive 24 hour care and that R1’s prognosis was “[g]ood with consistent staff follow-up.”  P. Ex. 4 at 5-6.
11. The occupational therapy discharge summary indicated that R1’s ability to perform activities of daily living (ADL) improved.  P. Ex. 4 at 4-5.  However, it also noted that R1 continued to have total dependence for toileting.  P. Ex. 4 at 5.

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12. Progress notes from February 27, 2023, indicated that R1 used a Hoyer lift for transfers and that R1 “likes to sit in . . . wheelchair and is able to wheel herself around.”  P. Ex. 5.
13. Facility records for March 2023 show that R1 consistently used a wheelchair for locomotion.  P. Ex. 3 at 3, 6.  However, facility records also show that R1 did not move around her unit at the facility very often.  P. Ex. 3 at 1-2, 4-5.  When R1 moved around her unit, the amount of assistance from staff varied from setup help to one and two staff person assistance.  P. Ex. 3 at 3, 5.
14. On April 9, 2023, facility staff completed a Minimum Data Set (MDS) assessment indicating that R1 only needed supervision (i.e., oversight, encouragement or cueing) when locomoting on and off her unit at the facility.  P. Ex. 6 at 2.  R1 was assessed as needing extensive assistance for bed mobility and transfers between surfaces.  P. Ex. 6 at 2.
15. According to a facility Event Report, on April 9, 2023, R1 “[c]aught foot under [wheelchair].”  CMS Ex. 5 at 1.  The Event Report noted that:
    1. The incident occurred in a hallway (CMS Ex. 5 at 1);
    2. Donna Trapp witnessed the incident (CMS Ex. 5 at 1);
    3. The injury type was “[p]ain, deformity of left ankle” (CMS Ex. 5 at 1);
    4. The range of motion in R1’s lower extremity was “Painful/Limited” (CMS Ex. 5 at 1);
    5. R1’s current pain was ten based on a scale of zero to ten (CMS Ex. 5 at 2);
    6. A physician was notified and the physician ordered R1 to be transported to the emergency room of a hospital (CMS Ex. 5 at 3); and
    7. The treatment provided was an assessment, ice/elevation, and transport to the hospital (CMS Ex. 5 at 2).
16. An April 9, 2023 progress note stated:  “[R1] up in wheelchair being pushed per staff member when [R1] let foot drop and foot twisted under wheelchair with [complaint of] pain to left ankle with edema and outward deformity, tender to touch.  Elevated and ice pack applied.  [Physician] notified with order to send [R1] to ER for eva[luation] of left ankle.  Notified son . . . of injury and sending her to ER.”  CMS Ex. 5 at 3.
17. According to a hospital transfer form, on April 9, 2023, Petitioner transferred R1 to a hospital due to “Left ankle pain/edmea/deformity.”  CMS Ex. 12 at 1.  The hospital transfer form stated that, prior to the incident, R1 was not ambulatory and was dependent on facility staff for bathing, dressing, toileting, and transfers.  CMS Ex. 12 at 1.  The hospital transfer form also recorded that R1’s pain level was ten,

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with the pain localized in the left ankle.  CMS Ex. 12 at 1.  Finally, the transfer form indicated that R1 used a Hoyer lift.  CMS Ex. 12 at 2.

18. According to an April 11, 2023 orthopedic physician’s report, R1 had been to the hospital for an evaluation of an injury to R1’s left ankle.  The physician wrote the following:  “[R1] and her daughter report that she was being pushed in a wheelchair in her nursing home without footrests and her left foot got caught under the chair and pulled backwards.  She had immediate pain.  She was seen in the emergency room . . . and this was discussed with me on the phone.  I recommended clinical followup.”  CMS Ex. 6 at 1.  The orthopedist also noted that R1 was 67 inches tall and 245 pounds.  CMS Ex. 6 at 1.   
19. The orthopedist diagnosed R1 with displaced bimalleolar fracture of left lower leg.  CMS Ex. 6 at 2. 

VII.  Conclusions of Law and Analysis

1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(Tag F-689) because Petitioner did not provide sufficient supervision and assistive devices to prevent accidents.  A facility staff member failed to properly attach footrests to R1’s wheelchair before pushing R1 from her room to the dining area.  The staff member was going to attach the footrests, but R1 did not want them.  This meant that R1 needed to keep her feet raised off the ground the entire time the wheelchair was being pushed.  The staff member complied with R1’s wishes; however, by the time R1 was being pushed out of her room, R1’s left leg dropped and was injured by the wheelchair’s front left wheel, resulting in a fractured ankle.  Petitioner’s expert witness testified that the standard of care does not prohibit staff from pushing residents in wheelchairs without footrests so long as the residents meet four criteria.  The expert witness also testified that assistive devices may cause injuries, and the considered judgment of professionals is needed to determine when and how they are used.  This is consistent with Petitioner’s policy on assistive devices, which requires that residents be assessed for the safest use of an assistive device.  The record does not include a facility assessment indicating that R1 met the four criteria, as established by Petitioner’s expert witness, that would permit staff to safely push R1 in a wheelchair without footrests.  R1 was elderly, had muscle weakness and congestive heart failure, and needed to use a Hoyer lift for transfers.  R1 did not obviously meet the four criteria that would allow her to be safely pushed in a wheelchair without footrests.  Therefore, Petitioner’s staff both failed to provide supervision and assistive devices meant to prevent accidents when staff pushed R1 in a wheelchair without footrests. 

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Congress requires SNFs to “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.”  42 U.S.C. § 1395i-3(b)(2).  To implement this statute, the Secretary promulgated the general quality of care regulation at 42 C.F.R. § 483.25.  Paragraph (d) of section 483.25 imposes the following obligations on facilities concerning accident prevention:3

The facility must ensure that ˗

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

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

The first provision in this regulation requires facilities to address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Maine Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)).  The provisions of § 483.25(d) “come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.”  Meridian Nursing Ctr., DAB No. 2265 at 9 (2009), aff’d sub. nom. Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445 (7th Cir. 2010).  The second provision in this regulation requires facilities to take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”), aff’g Woodstock Care Ctr., DAB No. 1726 (2000)).  Facilities are given “the flexibility to choose the methods” they use to provide supervision or assistive devices to prevent accidents, so long as the chosen methods “constitute an ‘adequate’ level of supervision” for a particular resident’s needs.  Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d sub. nom. Windsor Health Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005)

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As explained earlier, the undisputed facts show that R1 was a 94-year-old woman who relied on a wheelchair for her mobility.  She entered Petitioner’s facility two months before the April 9, 2023 incident and received physical and occupational therapy for muscle weakness.  The therapy produced some improvement, including R1’s ability to propel a wheelchair with her feet.  However, R1 had many medical conditions, including congestive heart failure, and required a Hoyer lift to transfer.  On April 9, 2023, a facility staff member pushed R1 in her wheelchair, intending to take R1 from her room to the dining area.  Because the staff member did not attach the footrests to the wheelchair, R1 needed to hold her feet above the ground for the entire trip to the dining area.  Shortly after getting started, R1’s left foot dropped, resulting in contact with the left front wheel of the wheelchair and a fracture of R1’s left ankle. 

Petitioner argues that R1 was assessed and provided therapy to propel the wheelchair with her feet, making use of the wheelchair without footrests safe and legitimate.  P. Br. at 4.  Petitioner posits that the staff member who pushed R1 in her wheelchair on April 9, 2023, stated that R1 specifically requested that the staff member not attach the footrests to the wheelchair so that R1 could self-propel the wheelchair back to her room after lunch.  P. Br. at 4. 

Petitioner asserts, based on documentation and witness testimony, that R1 made significant progress while at the facility in her ability to self-propel her wheelchair.  P. Br. at 10.  Petitioner also relies on expert witness testimony, from a physical therapist, that residents who have sufficient upper body strength to propel a wheelchair use footrests; however, residents who need to use their feet to propel the wheelchair cannot use footrests.  P. Br. at 12-13.  Further, Petitioner argues that its expert witness testified that staff may push a resident in a wheelchair that does not have footrests so long as certain criteria are met.  P. Br. at 13.  Petitioner also argues, based on expert testimony, that wheelchairs have an inherent risk of injury; therefore, just because R1 was injured does not mean Petitioner was at fault.  P. Br. at 13-14.  Rather, the incident involving R1 was an “unintended and unanticipated accident.”  P. Br. at 15-16. 

For purposes of rendering summary judgment, I accept the testimony of Petitioner’s fact witness concerning the April 9, 2023 incident and the testimony of Petitioner’s expert witness on safe wheelchair use. 

Donna Trapp, the facility’s Director of Social Services and Activities, testified that she interacts with residents daily and knew R1 very well.  She stated that R1’s initial care plan called for intensive daily therapy and R1 consistently was assessed as being fully cognitively intact (i.e., BIMS score of 15/15).  Ms. Trapp also testified that R1 was very verbal and direct with her demands and instructions.  Ms. Trapp stated that, by the time of R1’s accident on April 9, 2023, R1’s status had improved from almost totally bed-bound to being able to propel herself in her wheelchair without staff assistance.  Ms.

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Trapp indicated that she observed R1 propelling herself in the wheelchair many times with her feet.  P. Ex. 18 at 1-2. 

Ms. Trapp testified that she was the facility staff person who was pushing R1 in her wheelchair at the time R1 was injured on April 9, 2023.  Therefore, I quote her testimony about the incident in its entirety: 

[R1’s] accident occurred after I went to tell [R1] it was time for lunch.  [R1’s] room was near the dining room, and I offered to push her there.  She initially declined and said she would go by herself, but then changed her mind and asked me to push her.  I went to get the pedals for her wheelchair, which were next to her bed, but she told me not to put them on the wheelchair because she wanted to be able to push herself back to her room after lunch, and if I installed the pedals she would not be able to do so.  We did not even get out of her room before [R1] cried out “ow” and said she had dropped her foot.  I apologized, but [R1] insisted that it was an accident. 

P. Ex. 18 at 1 (emphasis added).  This testimony is significant because it shows that Ms. Trapp’s inclination was to use the footrests when pushing R1 but only relented when R1 asked her not to use them.  If the footrests were attached to the wheelchair, R1 could not use her feet to propel the wheelchair back to her room following the meal.  It also shows that R1 could not hold her left foot off the ground for more than a few seconds before she dropped the foot.  Finally, despite the close proximity of the dining area to R1’s room, Ms. Trapp does not appear to have considered pushing R1 to the dining area with the footrests attached and then removing and returning the footrests to R1’s room so that R1 could self-propel the wheelchair back to her room after lunch.  Given this factual scenario, Ms. Trapp only acted properly if it was safe for R1 to be pushed in a wheelchair without footrests.  It is important to note that Ms. Trapp was not a trained or licensed health care provider who could make medical assessments. 

Petitioner submitted written direct testimony from physical therapist Shane Stovall,4 who testified in support of the decision not to use footrests on R1’s wheelchair.5  P. Ex. 22. 

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Mr. Stovall testified that he understood the basic factual allegations concerning the incident leading to R1’s injury but that his testimony would not be about the incident.  P. Ex. 22 at 2.  Mr. Stovall generally testified that it is incorrect to say that wheelchair footrests must always be used when a resident is being pushed by a staff member.  P. Ex. 22 at 2.  If residents have been assessed as lacking the upper body strength to propel a wheelchair with their arms and hands, and, if those residents have the ability to propel the wheelchair with their feet, then it would not be appropriate to install footrests during times when the individual is up and about and could self-propel with their feet.  P. Ex. 22 at 3-4; see also P. Ex. 14 at 2; P. Ex. 16 at 4.  In Mr. Stovall’s opinion, requiring footrests in such a situation would “create a (prohibited) mobility restraint” for the residents.  P. Ex. 22 at 4. 

Mr. Stovall also testified that there was no standard of care that prohibited staff from pushing residents in wheelchairs without footrests being attached to the wheelchairs.  P. Ex. 22 at 4.  He said that, even when a resident may have the strength and dexterity to propel his or her own wheelchair, “[t]here are circumstances where staff might choose to assist a resident who ordinarily can self-propel a wheelchair, including resident fatigue, moving a resident away from a hazard or obstruction, resident request, or simply helping the resident get somewhere quicker than she could get there by herself.”  P. Ex. 22 at 4.  Mr. Stovall then provided the following four-part test to determine when staff could push a resident in a wheelchair without the footrests attached:  “So long as the resident has the cognitive ability to understand an instruction to lift her feet, the strength to do so, and the ability to advise the staff person if her foot is falling, and the staff person sees no contraindication, I see no necessity for the staff person to first install foot rests before initiating any such move.”  P. Ex. 22 at 4-5. 

Mr. Stovall also testified that the “[u]se of any assistive device carries with it some inherent risk of injury. . . . The point of any professional evaluation and judgment to use an assistance device is to balance the potential benefit against such risks.  Unfortunately, foot injuries are an inherent risk of using a wheelchair.”  P. Ex. 22 at 5 (emphasis added). 

This testimony provided Petitioner with an opportunity to show that it properly assessed R1 as physically and cognitively adequate to be pushed in her wheelchair without footrests.  Mr. Stovall was clear that the use of assistive devices inherently involves the

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risk of injury, but that is why there must be professional evaluation and judgment to balance the risks and benefits. 

Consistent with Mr. Stovall’s testimony, Petitioner’s Assistive Devices and Equipment policy states that “the resident is assessed for lower extremity strength, range of motion, balance and cognitive abilities when determining the safest use of devices and equipment.”  P. Ex. 12 at 1 (emphasis added).  This policy expressly applies to wheelchairs.  P. Ex. 12 at 1.  In addition, under the policy “staff are required to demonstrate competency on the use of devices and equipment and are available to assist and supervise residents as needed.”  P. Ex. 12 at 1.

Despite this policy, there is no evidence in the record that Petitioner formally assessed R1, under the criteria Mr. Stovall provided and any other criteria, to push R1 in a wheelchair without footrests.  Petitioner’s policy requires the assessment of the resident to determine the safest use of a wheelchair to “decrease the risk of avoidable accidents associated with devices and equipment.”  P. Ex. 12 at 1.  R1, an elderly and weak woman, needed to be assessed to determine if she could keep both of her feet raised above the floor for a prolonged amount of time while being pushed in a wheelchair.6

Rather than provide evidence of an assessment, Petitioner provided testimony from staff members who said that R1 had received intensive physical and occupational therapy, had regained strength to self-propel herself in a wheelchair, was completely cognitively intact, and could verbalize what she wanted.  P. Ex. 17 at 1; P. Ex. 19 at 1.  For purposes of summary judgment, I accept this testimony as true.  However, these observations do not constitute an assessment as to whether it was safe for R1 to be pushed in a wheelchair without footrests. 

The DAB has long held that a facility’s policies relating to care and treatment of its residents is evidence of the facility’s understanding as to what it must do to remain in compliance with Medicare requirements.  Green Valley Healthcare & Rehab. Ctr., DAB No. 2947 at 6 (2019) (citing The Laurels at Forest Glenn, DAB No. 2182 at 18 (2008)); North Las Vegas Care Ctr., DAB No. 2946 at 6 (2019); Hanover Hill Health Care Ctr., DAB No. 2507 at 6 (2013) (observing that “the [DAB] 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.”).  A resident care policy intended to ensure compliance with Medicare participation requirements “may reflect

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[the] facility’s own judgment about how best to achieve compliance [with Medicare requirements] and hence failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard.”  Bivins Memorial Nursing Home, DAB No. 2771, at 9 (2017).  Relevant to this case, the DAB explicitly applied this reasoning to the accidents prevention requirement when a facility policy required an assessment and approval for a resident to use a motorized wheelchair.  Good Shepherd Home for the Aged, Inc., DAB No. 2858 at 12-15 (2018) (“Because the [occupational therapist] issued the recommendation in order to implement a resident care policy whose evident purpose was to prevent accidents involving motorized wheelchairs, Petitioner’s unexplained failure to follow the recommendation violated its obligation under section 483.25(h)(2) to provide ‘adequate supervision.’”). 

Ms. Trapp was attempting to help R1 get to lunch.  Without a formal assessment that R1 could be pushed in a wheelchair without footrests, Ms. Trapp’s first instinct was to attach footrests to R1’s wheelchair.  R1, understandably concerned that Ms. Trapp would leave R1 at the dining area with the footrests still attached, did not want the footrests.  R1 wanted to be able to use her feet to self-propel the wheelchair back to R1’s room after lunch.  To prevent an accident, Ms. Trapp ought to have attached the footrests, pushed R1 safely to the dining area, detached the footrests, and returned the short distance to R1’s room and returned the footrests.  Instead, Ms. Trapp took the chance that R1 was strong enough to keep her feet elevated off the ground for the trip between R1’s room and the dining area.  R1’s left leg was too weak and dropped before even fully making it out of R1’s room.  Ms. Trapp did not provide R1 with the assistive device she needed to prevent accidents (i.e., a wheelchair with footrests) and did not supervise the use of the assistive device in a manner that prevented accidents.  Therefore, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d). 

2. The amount of the $19,460 per-instance CMP that CMS imposed was not challenged and is, therefore, reasonable. 

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

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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 §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002). 

CMS imposed a $19,460 per-instance CMP on Petitioner.  Petitioner did not challenge the penalty amount.  See P. Br.  Therefore, I must sustain the imposed CMP.  Coquina Ctr., DAB No. 1860 (2002).  Although I granted summary judgment based on only one allegation of noncompliance in the Statement of Deficiencies (i.e., the allegation involving R1’s injury), that allegation was the most serious one that CMS made because it included a significant resident injury.  Upholding the section 483.25(d) noncompliance based on that allegation easily justifies the modest CMP that CMS imposed. 

VIII.  Conclusion

I sustain CMS’s initial determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d).  I also uphold the $19,460 per-instance CMP that CMS imposed on Petitioner.