Crestview Retirement Community, ALJ Ruling 2026-37 (HHS-CRD September, 16 2026)

RULE 56(f) ORDER

Petitioner, Crestview Retirement Community, is a skilled nursing facility, located in Bryan, Texas, that participates in the Medicare program.  Following an annual recertification survey and incident investigation, completed on June 2, 2023, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety.  CMS imposed per-day civil money penalties (CMPs) of $10,440 for six days of immediate jeopardy and $245 per day for one day of substantial noncompliance that did not pose immediate jeopardy. 

Petitioner appealed. 

Summary Judgment.  The parties have filed their prehearing briefs and proposed exhibits, and I have reviewed their submissions.  It appears that no material facts are in dispute and that summary judgment (or partial summary judgment) may be appropriate.  In considering summary judgment, I am procedurally and substantively guided by Rule 56 of the Federal Rules of Civil Procedure.  Civil Remedies Division Procedures § 19; see also Livingston Care Ctr v. U.S. Dep’t of Health and Human Services, 388 F.3d 168, 172 (6th Cir. 2004).  Under paragraph (f) of Rule 56, I may consider summary judgment on my own motion if I identify material facts not in dispute and give the parties notice and an opportunity to respond. 

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Based on the June 2, 2023 survey, CMS determined that the facility was not in substantial compliance with: 

• 42 C.F.R. § 483.25(d)(1), (2) (Tag F689 – quality of care:  accident prevention), cited at scope-and-severity level J (isolated instance of substantial noncompliance that poses immediate jeopardy to resident health and safety);
• 42 C.F.R. § 483.25(c)(1)-(3) (Tag F688—quality of care:  mobility), cited at scope-and-severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm); and
• 42 C.F.R. § 483.60(i)(1)-(2) (Tag F812 – food and nutrition services:  food safety), cited at scope and severity level F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm). 

CMS Exs. 1, 2. 

Based on the deficiencies cited, CMS imposed per-day CMPs of $10,440.00 for six days of immediate jeopardy (May 27 through June 1, 2023) and $245 for one day of substantial noncompliance that did not pose immediate jeopardy (June 2, 2023) (Total: $62,640.00 + $245 = $62,885).  CMS Ex. 2 at 3. 

I have identified the following material facts that are not in dispute: 

• The facility’s policies and procedures for “resident mobility and range of motion,” “safety of hot liquids,” and “storage of food and supplies” are found at CMS Ex. 6.
• Prior to May 27, 2023, a community self-service coffee station was located in the facility dining room, adjacent to the facility’s satellite kitchen. CMS Ex.1 at 8; CMS Ex. 11 at 7.
• A photograph of the coffee pot used at the self-service coffee station is found at P. Ex. 5 at 2.
• A photograph of the coffee cup used by residents at the self-service coffee station is found at P. Ex. 5 at 3.
• Resident 17 (R1) was an 88-year-old man, admitted to the facility on December 2, 2022, suffering from a long list of impairments, including:  congestive heart failure, dementia, psychotic disorder with delusions, heart disease, muscle weakness, abnormalities of gait and mobility, other lack of coordination, cognitive communication deficit, other fatigue, need for assistance with personal care, and a

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• history of transient ischemic attack and cerebral infarction without residual deficits.  CMS Ex. 13.
• R17’s care plan is found at CMS Ex. 12 and P. Ex. 6.
• R17’s hospital records, dated May 27, 2023, are found at CMS Ex. 14.
• A “Hot Liquids Evaluation,” effective May 31, 2023, is found at CMS Ex. 15.
• R17’s Minimum Data Set (MDS), dated May 17, 2023, is found at CMS Ex. 16.
• An evaluation of R17’s wound, dated May 31, 2023, is found at CMS Ex. 17.
• At least “several times” prior to May 27, 2023, R17 poured himself a cup of coffee from the community self-service coffee pot, without incident.  P. Ex. 1.
• At about 7:15 a.m. on May 27, 2023, while attempting to pour himself a cup of coffee, R17 dropped the coffee pot onto his lap and then onto the floor.  P. Ex. 3 includes the facility’s incident report.
• The facility’s investigation summary, with witness statements, is found at P. Ex. 4 and P. Ex. 7.
• Resident 2 (R2) was an 88-year-old woman, admitted to the facility on October 23, 2019, suffering from a long list of impairments, including multiple sclerosis, cognitive impairment, cognitive communication deficit, muscle weakness, and contractures in both her right and left hands.  R2’s medical records, including her MDS, care plan, and summary of orders, are found at CMS Ex. 4.
• CMS has come forward with evidence that R2’s fingers were curled into her palms and that her fingernails were long and unclipped.  Nothing in her treatment records, including her care plan, indicates that the facility was monitoring the contractures or providing treatment for them.  Petitioner has tendered no evidence (no documents or testimony) of specific facts showing that a dispute exists regarding any of these facts.
• CMS has come forward with evidence that the facility did not follow its policy requiring that stored food be covered, labeled, and dated.  Petitioner has tendered no evidence of specific facts showing that a dispute exists regarding any of these facts. 

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Decisions on the written records.  In lieu of summary judgment, the parties may agree to have these cases decided based on the written record.  When a decision is based on the written record, the parties agree to submit the case based on written submissions even though there may be disputed issues of material fact. 

Not later than October 15, 2026, the parties should respond to this order, addressing the following issues: 

1. Whether summary judgment is appropriate;
2. In the alternative, whether the matter should be decided based on the written record. 

CMS has listed two witnesses and provided their written declarations.  Petitioner has listed three witnesses and provided their written declarations.  Unless this matter is decided based on summary judgment or the written record, a party has the right to cross-examine the witness(s) for the opposing party.  Each party has asked to cross-examine all opposing witnesses.  Assuming that the matter should not be decided on summary judgment or on the written record, I direct each party to indicate, no later than October 15, whether it still intends to cross-examine an opposing witness.  In determining whether cross-examination is required, the parties should consider the following: 

• CMS’s decision-making process is irrelevant.
• Legal arguments and responses to legal arguments are appropriately presented in the parties’ briefs, not through cross-examination.  I am not interested in the witnesses’ legal opinions and will not allow counsel to argue with witnesses.
• Cross-examination must be within the parameters of the witness’s direct testimony. 

If a party wishes to reply to the other party’s submissions, it must request leave to do so. 

Served by DAB E-File.