River Crossing of Edwardsville, 2026-26 (HHS-CRD June 1, 2026)

ORDER GRANTING PARTIAL SUMMARY JUDGMENT

River Crossing of Edwardsville (Petitioner or facility) is a long-term-care facility that participates in the Medicare program.  Based on a complaint investigation survey completed on November 4, 2022, the Centers for Medicare & Medicaid Services (CMS or Respondent) determined that the facility was not in substantial compliance with the program participation requirements set forth in 42 C.F.R. §§ 483.25, and 483.25(k) (Tags F684 and F697).  Following another complaint investigation survey completed on November 23, 2022, CMS found the facility to be out of substantial compliance with 42 C.F.R. § 483.10(i)(1)-(7) (Tag F584).  CMS imposed a $1,985.00 per-day civil money penalty (CMP) for 36 days, beginning October 27, 2022, through December 1, 2022.  Petitioner timely filed a request for hearing, and Respondent moved for summary judgment which Petitioner opposes. 

For the reasons explained below, I conclude that there is no genuine dispute as to any material fact with respect to the November 4, 2022 survey, and CMS is entitled to summary judgment as a matter of law.  However, I conclude that material facts are in

Page 2

dispute with respect to the November 23, 2022 survey.  Accordingly, I grant CMS’s summary judgment motion in part and deny in part. 

I.  Background and Procedural History

Petitioner is a skilled nursing facility located in Edwardsville, Illinois.  On November 4, 2022, surveyors from the Illinois Department of Public Health (state agency) conducted a complaint investigation survey of Petitioner’s facility.  CMS Ex. 1 at 1.  Based on the state agency’s findings,1 CMS determined that the facility was not in substantial compliance with 42 C.F.R. § 483.25 (Tag F684 – quality of care), cited at scope and severity (S/S) level G (isolated instance of actual harm that is not immediate jeopardy), and 42 C.F.R. § 483.25(k) (Tag F697 – pain management), cited at S/S level G.  CMS Ex. 7 at 1, 4. 

On November 23, 2022,2 surveyors returned to the facility and determined that the facility was not in substantial compliance with 42 C.F.R. § 483.10(i)(1)-(7) (Tag F584 – safe environment), cited at S/S level D (isolated instance of no actual harm with the potential to cause more than minimal harm).  CMS Ex. 8.  The facility was found to have returned to substantial compliance on December 2, 2022.  CMS Ex. 5.  Based on the deficiencies, CMS imposed a per-day CMP of $1,985.00 for 36 days, from October 27, 2022, through December 1, 2022, for a total of $71,460.00.  CMS Ex. 6 at 2. 

Petitioner timely appealed and the matter was assigned to Administrative Law Judge (ALJ) Tannisha D. Bell and reassigned to the undersigned on March 24, 2026.  Consistent with ALJ Bell’s Standing Order, CMS filed a Prehearing Brief and Motion for Summary Judgment (CMS Br.) with 39 exhibits (CMS Exs. 1-39), which included the written declarations of two proposed witnesses, submitted as CMS Ex. 34, Declaration of Surveyor D.B., and CMS Ex. 36, Declaration of Surveyor G.S.  Petitioner filed its Prehearing Brief and Response in Opposition to Respondent’s Motion for Summary Judgment (P. Br.), along with 2 exhibits (P. Exs. 1-2), including the written declaration of one proposed witness, submitted as P. Ex. 2, Affidavit of S.K., Administrator (unsigned). 

Page 3

Petitioner did not object to any of CMS’s proposed exhibits but filed a Notice of Request for Cross-Examination (P. Request for Cross-Examination), requesting to cross-examine both CMS’s witnesses.  CMS filed its Reply (CMS Reply) as well an Objection to Petitioner’s Proposed Exhibit and Witness (CMS Objection). 

II.  Admissions into the Record

Absent objection from Petitioner, I admit CMS’s proposed exhibits 1 – 32, 35, and 37 – 39 into the record.  Because CMS exhibit 36 is the written direct testimony of G.S., the surveyor who conducted the November 23, 2022 survey, and Petitioner has requested to cross-examine G.S., I provisionally admit CMS exhibit 36.  Should CMS’s witness fail to appear at the hearing to be cross-examined, then CMS exhibit 36 is subject to exclusion.  And although Petitioner has also requested to cross-examine D.B., the surveyor who conducted the November 4, 2022 survey, I need not consider the admission of her written direct testimony into the record because I do not rely on it in finding that CMS is entitled to summary judgment as a matter of law; therefore, cross-examination of D.B. would serve no purpose. 

CMS does not object to Petitioner’s proposed exhibit 1, which I admit into the record as P. Ex. 1.  However, CMS objects to Petitioner’s proposed witness, S.K., and its proposed exhibit 2, S.K.’s affidavit.  CMS Objection.  More specifically, CMS objects to S.K. as a proposed witness because her affidavit contains no substantive statements of fact or actual testimony, but only generally states that the facility was in substantial compliance with program requirements at the time of the surveys and is unsigned, in violation of ALJ Bell’s Standing Order.  Id. at 2.  Moreover, CMS objects to allowing S.K. to substantively revise her affidavit.  Id.  Finally, CMS states that if S.K. is permitted to appear as a witness, CMS waives its right to cross-examine her. 

After CMS filed its objection, Petitioner, without leave or explanation, filed an amended exhibit 2.  The substance of the amended affidavit is unchanged but includes S.K.’s signature.  Although CMS’s objections have merit, I admit Petitioner’s amended exhibit 2 into the record as P. Ex. 2.  However, S.K. is not required to appear at a hearing because CMS has waived its right to cross-examine her.  Standing Order ¶ 11.  S.K.’s testimony is limited what is included in her written affidavit. 

III.  Issues

I consider whether summary judgment is appropriate. 

On the merits the issues are: 

Page 4

1. Whether Petitioner substantially complied with Medicare participation requirements at 42 C.F.R. § 483.25 (Tag F684), 42 C.F.R. § 483.25(k) (Tag F697), and 42 C.F.R. § 483.10(i)(1)-(7) (Tag 584); and
2. If Petitioner was not in substantial compliance, is the per-day CMP imposed by CMS reasonable? 

IV.  Discussion

1. Statutory and Regulatory Background

The Social Security Act (Act) sets forth requirements for skilled nursing facilities (SNFs) 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. Parts 483 and 488.  To participate in the Medicare program, an 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 and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.  A deficiency is a violation of a participation requirement established at sections 1819(b), (c), and (d) of the Act, 42 U.S.C. § 1395i-3(b), (c), and (d), or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301. 

The Act and the quality-of-care regulation mandate that a facility ensure that each resident receives, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b)(2), 42 U.S.C. § 1395i-3(b)(2); 42 C.F.R. § 483.25.  Subsection (k) imposes a specific obligation to provide pain management to residents who require such services, consistent with professional standards of practice, the resident’s person-centered care plan, and the resident’s goals and preferences.  42 C.F.R. § 483.25(k). 

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, which include imposing a CMP.  Act § 1819(h)(2), 42 U.S.C. § 1395i-3(h)(2).  CMS may impose a CMP for the number of days that the facility is not in substantial compliance with one or more program requirements or for each instance that a facility is not in substantial compliance.  42 U.S.C. § 1395i-3(h)(1)(1), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a). 

1. CMS is entitled to summary judgment as to the noncompliance findings at 42 C.F.R. §§ 483.25 and 483.25(k) (Tags F684 and F697). 

Page 5

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 and 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), and cases cited therein. 

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. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).  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 and Rehabilitation 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.”  West Texas LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d., West Texas LTC Partners, Inc. v. U.S. Dep’t. of Health & Human Services, No. 15-60763 (5th Cir., 2016); 1866ICPayday.com L.L.C., DAB No. 2289 at 3 (2009), quoting Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. at 587. 

Denials in pleadings or briefs are not sufficient to overcome a well-supported motion.  Nor is a mere scintilla of supporting evidence sufficient.  “If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.”  Livingston, at 4 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). 

In examining the evidence for purposes of determining the appropriateness of summary judgment, I must draw all reasonable inferences in the light most favorable to the non-moving party.  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); but see 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.  West Texas LTC Partners, Inc., DAB No. 2652 at 6-7, 14-15 (2015); Cf. Guardian Health Care Ctr.,  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.”).

Page 6 

In this case, CMS alleges and has come forward with evidence to establish that the facility’s delay in sending Resident 2 (R2) to the hospital following a fall violated professional standards of practice, physician orders and the facility’s own policy.  CMS Br. at 8.  CMS also alleges and has come forward with evidence to establish that the facility failed to act in response to R2’s severe pain after her fall, prior to her transfer to the hospital.  Id. at 11.  For its part, Petitioner does not dispute the material facts but instead proffers that these facts, when viewed in a light most favorable to the facility, demonstrate it was in substantial compliance with program requirements.  P. Br. at 7-8. 

1. R2 was diagnosed with multiple conditions and taking multiple medications, including Eliquis for anticoagulation and acetaminophen for pain.  On October 19, 2022, at approximately 2:44 a.m., R2 fell and hit her head.  R2 was given acetaminophen but her pain persisted.  At around 10:07 a.m., a facility nurse reported to a nurse practitioner that R2’s pain was unrelieved and that R2’s leg was turned outwards.  R2 was ordered to be transferred to the hospital.  R2 was transferred to the hospital at 3:00 p.m.  The facility did not provide R2 with any additional pain management while awaiting transfer to the hospital.  R2 was diagnosed with a hip fracture and admitted to the hospital for pain control. 

R2 was admitted to the facility on July 14, 2022.  CMS Ex. 14 at 5.  Her diagnoses included, among others, chronic diastolic (congestive) heart failure, Alzheimer’s disease with late onset, chronic kidney disease, stage 3 unspecified, dementia in diseases classified else elsewhere, paroxysmal atrial fibrillation, muscle weakness (generalized), unsteadiness on feet, and other abnormalities of gait and mobility.  Id. at 6.  Among other medications, R2 was prescribed Eliquis two times a day, for anticoagulation.  Id. at 16.  R2 was also prescribed acetaminophen 650 mg for pain, every six hours as needed.  Id. at 23, 35-36. 

According to the undisputed information in the statement of deficiencies, R2 fell on October 19, 2022, at about 2:44 a.m.  CMS Ex. 7 at 2; see also CMS Ex. 14 at 2-3, CMS Ex. 16.  No injuries were noted, R2’s daughter was called and a message left for general medicine.  CMS Ex. 7 at 2.  The next chart note at 10:07 a.m., documents: 

Resident continues to complain of pain Tylenol not effective.  Dr. notified.  Vital sign monitoring continues from being observed on the floor.  Neuro checks continue and remain WNL (within normal limits).  Afebrile Resident has loss of appetite due to increased pain.  Small hematoma noted behind right ear.  Unable to move without yelling out.  New order received to send to the hospital for evaluation and treatment.  POA (Power of Attorney) notified and gave verbal consent to send to hospital.  (local) EMS (emergency medical services) notified of order for Resident pick up. 

Page 7

Id.  The final chart note states that EMS arrived at 3:00 p.m. and transported R2 to the emergency room.  Id. at 2-3. 

Interview notes with V4, a licensed practical nurse, state that he received a report from the night shift nurse on October 19 that R2 had fallen around 2:00-3:00 a.m., no injuries were noted and that the doctor and POA were aware.  Id. at 3.  At around breakfast time he was asked by a certified nursing assistant (CNA) to check on R2 because when the CNA tried to raise her bed, R2 was in pain.  Id.  V4 checked on R2, and she explained her fall and reported that her knee, head and shoulder hurt.  Id.  V4 gave R2 acetaminophen for pain but did not do a physical assessment.  Id.  At around 10:00 a.m., V4 called V5, a nurse practitioner, reported that R2 fell, hit her head, and was on blood thinners.  Id.  V4 also reported R2’s pain was unrelieved by acetaminophen, and her leg was turned outwards.  Id.  V5 ordered R2 to be sent to the hospital.  Id.  V4 called the local ambulance transportation who stated that they would be at the facility around 12:30-1:00 p.m., but transport did not arrive until 3:00 p.m.  Id.  V4 stated he did not make any additional calls for transport, did not notify V5 of the delay and did not request additional pain medication for R2.  Id. at 3-4.  V4 opined that R2 should have been sent to the hospital by the night shift.  Id. 

Interview notes with V5 state that she would have expected the facility to transfer R2 to the hospital immediately following her fall because R2 was taking blood thinners and hit her head during the fall.  Id. at 4.  In addition, V5 stated she was not aware of the delay in R2’s transfer and would have ordered something more for her pain because it was not being relieved with acetaminophen.  Id. 

Finally, notes from the hospital records review state that R2 received 4mg of morphine for pain and R2’s right lower extremity was noted to be externally rotated and shortened.  Id.  R2 was documented as having a nondisplaced periprosthetic right femoral fracture and admitted to the hospital for pain control.  Id. 

Petitioner does not dispute these material facts and offers no evidence to the contrary.3  Rather, Petitioner asserts that these very facts demonstrate its compliance with program requirements.  P. Br. at 2-5, 7-9. 

According to Petitioner: 

Page 8

Immediately following the October 19, 2022 incident at issue . . ., [facility] staff evaluated  R2 and determined that she had no notable injuries, but administered Tylenol pain relief medication nonetheless.  Furthermore, the following morning, [the facility] immediately notified R2’s physician of R2’s change in condition when she complained of pain despite the Tylenol administration.  Once R2’s physician placed an order for R2 to be sent to the emergency room, [the facility] contacted emergency services, and R2 was transferred to the hospital when emergency services arrived. 

Id. at 8.  I accept all these facts as true but disagree with Petitioner’s legal conclusions that they demonstrate substantial compliance with the regulatory requirements. 

42 C.F.R. § 483.25 (Tag F684).  Medicare program requirements for SNFs include 42 C.F.R. § 483.25, which states that quality of care “is a fundamental principle that applies to all treatment and care provided to facility residents” and that a facility “must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices . . . .”  In interpreting these requirements, the Board has held that section 483.25 obligates a facility to provide care and services that meet, at a minimum, accepted professional standards of quality.  Spring Meadows, DAB No. 1966 at 17 (2005) (citing 42 C.F.R. § 483.25). 

CMS has offered evidence that the standard of practice required the facility to transfer R2 to the hospital immediately following her fall because she was taking blood thinners.  CMS Br. at 8-9.  CMS cites the Agency for Healthcare Research and Quality’s (AHRQ) guidance, which provides that individuals taking blood thinners should go to the hospital immediately if they fall or hit their head.  Id. (citing Blood Thinner Pills:  Your Guide to Using Them Safely, available at https://www.ahrq.gov/patients-consumers/diagnosis-treatment/treatments/… (last visited April 2, 2026)).  The guidance explains that an individual taking blood thinners may experience internal bleeding even without visible signs.  Petitioner does not dispute that the AHRQ guidance applies or offer any alternative standard.  P. Br.

Accordingly, I find that the undisputed evidence establishes that accepted professional standards required an immediate hospital transfer because R2 was taking Eliquis for anticoagulation.  Instead, the undisputed facts show that the transfer order was not issued until 10:07 a.m., more than seven hours after the fall, and R2 was not actually transported until 3:00 p.m., over twelve hours after the fall, in violation of the accepted standards of practice.

Moreover, after R2 was ordered transferred to the hospital, the ambulance transport was delayed for several hours, and the facility took no additional action during the wait, contrary to its policy.  The Board has held that when a facility’s policies require staff to

Page 9

take specific actions, those requirements reflect the facility’s own determination of what is necessary to attain or maintain a resident’s “highest practicable physical, mental, and psychosocial well-being.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017).  Indeed, “[t]he Board has held that the quality-of-care requirements in section 483.25 obligate the SNF . . . to follow the SNF’s own policies.” Pennsylvania Nursing and Rehabilitation Ctr., DAB No. 3185 at 29 (2025). 

Here, CMS has presented evidence that the facility’s policy required staff to follow up with the ambulance service if transport was delayed.  CMS Ex. 17 at 2.  The policy also required nursing staff to contact an alternate ambulance service if timely transport could not be arranged, and to call 911 if a patient had a serious injury, unrelieved pain, or there was a significant delay in ambulance arrival.  Id.  Petitioner does not dispute that this policy was in effect during the relevant period.  P. Br.  Yet, instead of following up when the ambulance did not arrive by the estimated time, contacting another transport provider, or calling 911, the undisputed facts show that the facility took no further action to ensure a timely transfer while R2 remained at heightened risk due to blood‑thinner use, in violation of its policy. 

Because Petitioner did not ensure that R2 was timely transferred to the hospital following her fall, despite her use of anticoagulation medication, R2 experienced a delay in receiving treatment for fall‑related injuries and pain, resulting in actual harm.  Accordingly, I find Petitioner’s failure to immediately transfer R2 to the hospital and its failure to take any action while ambulance transport was delayed did not meet accepted professional standards of practice or its own policy, and is sufficient to establish substantial noncompliance with 42 C.F.R. § 483.25.

42 C.F.R. § 483.25(k) (Tag F697).  The allegations of Petitioner’s non-compliance with 42 C.F.R. § 483.25(k) are based on the same facts as above.  42 C.F.R. § 483.25(k) requires that a facility “ensure that pain management is provided to residents who require such services, consistent with professional standards of practice, the comprehensive person-centered care plan, and the residents’ goals and preferences.”  The facility’s Pain policy requires residents to monitored for pain every shift; to have a pain management regimen appropriate for their needs; that all pain medication that is administered is followed up to determine if effective; and to notify the physician immediately if there is change in pain or noted increase not relieved by the current regimen.  CMS Ex. 17 at 2.  R2’s pain regimen required administration of acetaminophen every six hours as needed and she was to be monitored for pain every shift.  CMS Ex. 14 at 34-35. 

I accept as true Petitioner’s assertion that R2 was evaluated for injury following her fall, that no injuries were identified at that time, and that she was given acetaminophen for pain.  P. Br. at 8.  The record, however, is unclear as to when acetaminophen was actually administered.  Petitioner maintains that it was given immediately after the fall despite the absence of noted injuries, but the contemporaneous chart notes do not document the

Page 10

administration of any medication at that time.  Compare id. at 9, with CMS Ex. 7 at 2.  V4 states that he administered acetaminophen around breakfast in response to R2’s complaints of pain.  Id. at 3.  The medication administration record provides no clarification, as it reflects that R2 did not receive acetaminophen on October 19.  Id. at 23.  I resolve this factual ambiguity in Petitioner’s favor and find, notwithstanding the lack of documentation in the medication administration record, for purposes of summary judgment that R2 received acetaminophen at least once – and possibly twice – between her fall at 2:44 a.m. and 10:00 a.m.  I also accept as true that a nurse practitioner or physician was contacted due to R2’s continued complaints of pain, and that upon receiving the orders, facility staff promptly contacted emergency services for transport. 

However, the undisputed evidence shows that R2 was ordered to be transferred to the hospital at approximately 10:07 a.m., and the actual transport did not occur until 3:00 p.m., five hours later.  CMS has also come forward with evidence, in the form of facility staff interview notes and facility records, that no additional pain management was provided during this time.  Petitioner does not contend otherwise.  Rather, Petitioner proffers that its administration of Tylenol and contacting emergency transport services upon receipt of physician orders fulfilled its regulatory duty.  It did not. 

Assuming R2 was given acetaminophen immediately following her fall, when she continued to complain of pain at breakfast time, the facility’s policy required immediate notification to a nurse practitioner or physician.  CMS Ex. 17 at 2.  However, instead of immediately notifying a nurse practitioner or physician, V4 administered additional acetaminophen and reported R2’s continued pain later, at approximately 10:07 a.m.  CMS Ex. 7 at 3.  Accordingly, V4’s failure to immediately notify a nurse practitioner or physician of R2’s continued pain despite the administration of acetaminophen violated its policy, and is sufficient to support a finding of noncompliance.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017). 

On the other hand, assuming R2 was given only one dose of acetaminophen by V4 at breakfast, V4’s actions were compliant with facility policy because he timely reported R2’s continued pain to a nurse practitioner upon evaluation at approximately 10:07 a.m.  Even under this scenario, however, the undisputed facts establish Petitioner failed to ensure pain management was provided to R2. 

By 10:07 a.m., R2’s pain was significant; chart notes state that she had lost her appetite due to increased pain and could not move without yelling out.  CMS Ex. 7 at 2.  This level of pain is unsurprising given that “her leg was turned outwards,” a condition first observed at 10:07 a.m. – seven hours after her fall and despite an immediate post‑fall evaluation.  Id. at 3.  Although V4 notified the nurse practitioner and R2 was ordered transferred to the hospital, no additional pain management was provided to R2 while she awaited transport, which did not occur until 3:00 p.m.  Id. at 2. 

Page 11

R2’s medical records contain no documentation that further pain management was administered or that staff followed up with her during the five‑hour wait for transport, despite knowing by this time that she had sustained an injury, as evidenced by her outward‑turning leg.  Petitioner offers no evidence or argument otherwise.  See also CMS Ex. 7 at 4 (V5 stating that she would have ordered something more for R2’s pain is she were aware of the delay in transport).  Accordingly, I find the undisputed material facts demonstrate that no pain management was provided to R2 after the call for transport and before her eventual transfer five hours later, in violation of the facility’s responsibility under 42 C.F.R. § 483.25(k). 

Finally, there is no dispute that R2 suffered actual harm as a result of the facility’s failure to provide pain management.  As noted, by 10:07 a.m., R2 had lost her appetite and was unable to move without yelling due to pain.  For at least five hours, her pain continued unabated and without any intervention while she awaited transport to the hospital.  The severity of R2’s pain is further confirmed by her receiving 4 mg of morphine upon arrival and subsequent admission for pain control.  The undisputed evidence therefore establishes that the facility failed to provide R2 with necessary pain management and that R2 suffered actual harm.  Accordingly, I find that the undisputed facts support the facility was not in substantial compliance with 42 C.F.R. § 483.25(k). 

2. Summary judgment is not appropriate concerning the November 23 survey because there are material facts in dispute. 

A facility must protect and promote the rights of each resident.  42 C.F.R. § 483.10.  In doing so, the facility must ensure each resident, inter alia, a safe environment: 

(i) Safe environment.  The resident has a right to a safe, clean, comfortable and homelike environment, including but not limited to receiving treatment and supports for daily living safely.  The facility must provide—

(1) A safe, clean, comfortable, and homelike environment, allowing the resident to use his or her personal belongings to the extent possible. 

(i) This includes ensuring that the resident can receive care and services safely and that the physical layout of the facility maximizes resident independence and does not pose a safety risk. 

(ii) The facility shall exercise reasonable care for the protection of the resident's property from loss or theft. 

(2) Housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior;

Page 12

(3) Clean bed and bath linens that are in good condition;

(4) Private closet space in each resident room, as specified in § 483.90(e)(2)(iv);

(5) Adequate and comfortable lighting levels in all areas;

(6) Comfortable and safe temperature levels. Facilities initially certified after October 1, 1990 must maintain a temperature range of 71 to 81 °F; and

(7) For the maintenance of comfortable sound levels. 

For its part, CMS has come forward with evidence – primarily in the form of the surveyor’s observations as recorded in the statement of deficiencies and his written direct testimony – showing that the facility was not in substantial compliance with program requirements.  For example, Surveyor G.S. testified that R1’s room, a double room, was so full of R1’s personal belongings that a new resident, when assigned to that room, did not have closet access, or personal space on the sink.  CMS 36 ¶ 5.  Surveyor G.S. also testified he observed R3 surrounded by blankets and was told by the resident that the heat in her room had not been working for several days and she was cold.  Id. ¶ 6.  When checked by the Maintenance Director, the surveyor testifies the temperature was 69 degrees but that CMS’s State Operations Manual requires temperatures between 71 and 81 degrees.  Id. 

On the other hand, Petitioner has not come forward with any evidence to rebut the surveyor’s observations.  Nevertheless, Petitioner “vehemently denie[s]” the surveyor’s alleged observations and has requested to cross-examine the surveyor.  P. Request for Cross-Examination. 

Because “[t]he November 23 findings were based primarily on Surveyor [G.S.’s] observations[,]” and Petitioner disputes those observations and requests to cross-examine the surveyor, I find that there are genuine issues of material fact that must be resolved at a hearing.  See Morris View Healthcare Center, DAB No. 3149 at 29-30 (2024).  Resolution of these facts is necessary to determine whether Petitioner was in substantial compliance at the November 23 complaint investigation. 

3. A hearing is required to determine whether the per-day CMP is reasonable. 

If a facility is not in substantial compliance with Medicare program participation requirements, CMS has authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, including a per-day CMP.  Although I have determined that Petitioner was not in substantial compliance based on the undisputed facts of the November 4 complaint investigation survey, and CMS therefore had a basis to impose a remedy, I am unable to determine at this time whether the imposed remedy is reasonable. 

Page 13

I must first determine whether Petitioner was in substantial compliance with Medicare participation requirements during the November 23 complaint investigation survey, as well as identify the date on which the facility ultimately returned to substantial compliance.  See CMS Ex. 9 at 1 (Post-Certification Revisit Report to November 4 survey showing corrective actions completed on November 28, 2022).  This determination is necessary because the date on which Petitioner achieved substantial compliance directly affects whether CMS had a basis to continue the remedies imposed for the deficiencies cited during the November 23 survey and whether the CMP amount is reasonable. 

V.  Conclusion

For the reasons discussed above, I grant CMS’s motion for summary judgment, in part, as it relates to CMS’s finding that Petitioner was not in substantial compliance with Medicare program participation requirements based on the survey completed on November 4, 2022.  Accordingly, I affirm CMS’s determination that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.25, and 483.25(k) (Tags F684 and F697). 

A hearing is required to resolve the outstanding issues of whether Petitioner was in substantial compliance regarding the November 23, 2022 complaint investigation survey and whether the enforcement remedy imposed by CMS is reasonable.  A Notice of Hearing is forthcoming.