Aloha Nursing and Rehab Centre, ALJ Ruling 2026-9 (HHS CRD February 11, 2026)

RULING GRANTING PARTIAL SUMMARY JUDGMENT

This matter has recently been reassigned to me.

Petitioner, Aloha Nursing and Rehab Centre, is a long-term-care facility, located in Kaneohe, Hawaii, that participates in the Medicare program.  Based on surveys conducted between August 12, 2021, and January 25, 2022, the Centers for Medicare & Medicaid Services (CMS) determined that, from August 12, 2021, through January 16, 2022, the facility was not in substantial compliance with Medicare program requirements and that three of its deficiencies posed immediate jeopardy to resident health and safety.  The facility has appealed just one of the multiple deficiencies cited during these surveys – an infection control deficiency cited at the immediate jeopardy level during a September 22, 2021 federal monitoring survey.

Based on the deficiencies the facility did not appeal, CMS has moved for partial summary judgment.  I grant CMS's motion.  As explained below, the cited deficiencies that Petitioner did not appeal are final and binding and establish that, beginning August 12, 2021, the facility was not in substantial compliance with Medicare program requirements.  Because the facility was not in substantial compliance, CMS could impose remedies, including civil money penalties (CMPs) and a denial of payment for new

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admissions (DPNA).  The CMPs imposed for the un-appealed deficiencies are reasonable.  I have no authority to review CMS's determination to impose a DPNA.

With respect to the remaining period of substantial noncompliance, CMS is entitled to summary judgment because Petitioner has tendered no evidence of specific facts showing that a dispute exists as to whether it corrected its deficiencies and achieved substantial compliance prior to January 17, 2022.  In fact, the evidence Petitioner tendered establishes that the facility itself identified January 17 as the day it corrected its deficiencies.

Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary's regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility's deficiencies may pose no greater risk to resident health and safety than "the potential for causing minimal harm."  42 C.F.R. § 488.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  As a general rule, each facility must be surveyed annually, with no more than fifteen months elapsing between surveys.  Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).  Federal surveyors may also conduct monitoring surveys.  Act § 1819(g)(3).

When cited deficiencies are not appealed.  A finding of substantial noncompliance that results in the imposition of a remedy is an initial determination that the facility may appeal.  42 C.F.R. §§ 488.408(g), 498.3(b)(13).  Unless reversed or modified by a hearing decision, that initial determination is binding.  42 C.F.R. § 498.20(b); Rockcastle Health & Rehab. Ctr., DAB No. 2891 at 22 n.22 (2018) (explaining that the deficiencies and CMPs that Petitioner did not appeal are final); Taos Living Ctr., DAB No. 2292 at 10 (2009).  Here, because, following the August 12, 2021 survey, the facility did not appeal deficiency findings, it was not in substantial compliance with Medicare program requirements.  This finding of substantial noncompliance has a significant impact on how I assess this appeal.

Once a facility has been found to be out of substantial compliance, it remains so until it affirmatively demonstrates that it has returned to substantial compliance.  The burden is

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on the facility to prove that it is back in compliance, not on CMS to prove that deficiencies continue to exist.  W. Tex. LTC Partners, Inc., DAB No. 2652 at 18 (2015).  The facility must show that the incidents of noncompliance have ceased and that it has implemented appropriate measures to ensure that similar incidents will not recur.  A facility's return to substantial compliance usually must be established through a resurvey.  See discussion below.

Issues

I consider first whether partial summary judgment is appropriate.

Based on the deficiencies Petitioner did not appeal, the facility was not in substantial compliance with Medicare program requirements effective August 12, 2021.

To resolve CMS's motion, the sole issue before me is whether Petitioner has established that it returned to in substantial compliance prior to January 17, 2022.

Discussion

Summary judgment.  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.  Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 5 (2016); W. Tex. LTC Partners, Inc., DAB No. 2652 at 5 (2015), aff'd, 843 F.3d 1043 (5th Cir. 2016); 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), 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. U.S. Dep't of Health & Hum. 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, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB 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).  Where, for example, in support of its summary judgment motion, CMS submitted a statement of deficiencies, which included its factual findings, the Departmental Appeals Board determined that CMS's

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motion was adequately supported and that Petitioner needed to submit relevant counter-evidence in order to create disputes and defeat the motion (which Petitioner failed to do).  Southpark Meadows, DAB No. 2307 at 6.

1. CMS is entitled to summary judgment because, as a matter of law, the facility was not in substantial compliance with the cited deficiencies that it did not appeal, and the corresponding CMPs imposed are reasonable.1

Here, as explained in the following discussion, with one exception, Petitioner did not appeal any of the deficiencies cited during the surveys conducted from August 12 through December 2, 2021.2  Therefore, as a matter of law, those deficiency findings are final, the facility was not in substantial compliance with program requirements, and the CMPs imposed based on them are reasonable.  42 C.F.R. § 498.20(b).  Because the facility was not in substantial compliance, CMS may impose remedies – including a DPNA – and CMS's choice of remedies is not reviewable.  42 C.F.R. § 488.408(g).

The August 12, 2021 state survey (health).  On August 12, 2021, surveyors from the Hawaii Department of Health (state agency) completed a recertification/complaint investigation survey of the facility.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with Medicare program requirements, including the regulation governing infection control, 42 C.F.R. § 483.80(a)(1) (Tag F880).  CMS Ex. 2 at 1, 5; CMS Ex. 3 at 3; CMS Ex. 42 at 1.3

CMS did not immediately send the facility a notice letter but, in a notice letter dated October 22, 2021, it set forth the August and September survey results and the remedies imposed.  CMS Ex. 2.  See discussion below.

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The September 22, 2021 federal monitoring survey (health).  Following the August survey, CMS sent a team of federal surveyors to the facility to perform a "comparative federal monitoring survey."  The purpose of such a survey is to evaluate the performance of the state surveyors, as well as the performance of the facility, in meeting Medicare participation requirements.  Lopatcong Ctr., DAB No. 2443 at 3 (2012); see Act § 1819(g)(3).  The federal surveyors completed their survey on September 22, 2021.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with:

• 42 C.F.R. § 483.10(h)(1)-(3) (Tag F583 – resident rights:  privacy and confidentiality) cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.21(b)(1) (Tag F656 – comprehensive care plans) cited at scope and severity level D;
• 42 C.F.R. § 483.25(b)(1) (Tag F686 – quality of care:  skin integrity) cited at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety);
• 42 C.F.R. § 483.25(c) (Tag F688 – quality of care:  mobility) cited at scope and severity level D;
• 42 C.F.R. § 483.25 (d)(1)-(2) (Tag F689 – quality of care:  accident prevention) cited at scope and severity level G;
• 42 C.F.R. § 483.45(d)(1)-(6) (Tag F757 – pharmacy services:  restricting unnecessary drugs) cited at scope and severity level D;
• 42 C.F.R. § 483.45(c)(3), (e) (Tag F758 – pharmacy services:  psychotropic drugs) cited at scope and severity level E (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.45(g), (h)(1)-(2) (Tag F761 – pharmacy services:  labeling of drugs and biologicals) cited at scope and severity level D;
• 42 C.F.R. § 483.60(i)(1)-(2) (Tag F812 – food and nutrition services:  food safety) cited at scope and severity level D;

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• 42 C.F.R. § 483.75(g)(2)(ii) (Tag F867 – quality assurance and performance improvement:  quality assessment and assurance) cited at scope and severity level D;
• 42 C.F.R. § 483.80(a)(1)-(2), (4), (e), (f) (Tag F880 – infection control – prevention and control program) cited at scope and severity level F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm) (repeat deficiency);
• 42 C.F.R. § 483.80(b)(1)-(4), (c) (Tag F882 – infection control:  infection preventionist) cited at scope and severity level D;
• 42 C.F.R. § 483.80(g) (Tag F884 – infection control:  COVID-19 reporting) cited at scope and severity level F;
• 42 C.F.R. § 483.80(g)(3)(i)-(iii) (Tag F885 – infection control: COVID-19 reporting to residents, representatives, and families) cited at scope and severity level F; and
• 42 C.F.R. § 483.80(h)(1)-(6) (Tag F886 – infection control:  COVID-19 testing) cited at scope and severity level L (widespread substantial noncompliance that poses immediate jeopardy to resident health and safety).4

CMS Ex. 1.

The October 22, 2021 notice letter.  An October 22, 2021 notice letter reminded the facility that the state agency had already provided it with a copy of the August survey report form.  CMS Ex. 2 at 1.  For the deficiency cited under section 483.80(a)(1) during that survey, CMS imposed a $15,000 per-instance CMP.  CMS Ex. 2 at 4; see Act §§ 1819(h)(2)(D), 1919(h)(2)(C); 42 C.F.R. § 488.417(a)-(b).

The notice letter also advised the facility that, based on the September survey, its substantial noncompliance continued.  The letter highlighted two of the deficiencies cited:

• 42 C.F.R. § 483.80(a)(1)-(2), (4), (e), (f) (Tag F880 – infection control – prevention and control program) cited at scope and severity level F; and

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• 42 C.F.R. § 483.80(h)(1)-(6) (Tag F886 – infection control:  COVID-19 testing) cited at scope and severity level L.

CMS Ex. 2 at 2.  For the repeat deficiency, cited at Tag F880 (42 C.F.R. § 483.80(a)), CMS imposed a directed plan of correction.  In addition to continuing the potential DPNA, CMS also imposed the following CMPs:

• $11,500 per day for four days of immediate jeopardy (September 13-16, 2021); and
• $540 per day for 73 days of substantial noncompliance that did not pose immediate jeopardy (September 17 through November 28, 2021).

CMS Ex. 2 at 2-5; CMS Ex. 42 at 1; CMS Ex. 43 at 2.  CMS also imposed a Discretionary DPNA, effective November 6, 2021, continuing until "the day before [the] facility achieves substantial compliance or [its] provider agreement is terminated."  CMS Ex. 2 at 4-5; see Act §§ 1819(h)(2)(D), 1919(h)(2)(C); 42 C.F.R. § 488.417(a)-(b).

The notice letter directed the facility to submit, within ten days of receiving the notice, a plan of correction, which, if acceptable, would serve as an allegation of compliance.  Among other requirements, an acceptable plan of correction must include the date that each deficiency would be corrected.  CMS Ex. 2 at 2.

The Appeal.  In a letter dated December 17, 2021, Petitioner waived its right to appeal the August 12 survey finding, opting to take a 35% reduction in the CMP amount, as authorized by 42 C.F.R. § 488.436(b).  CMS Ex. 43 at 3; Hearing Request (E-file # 1) at 1; see CMS Ex. 2 at 5.

CMS's determination that the facility was not in substantial compliance with 42 C.F.R. § 483.80(a)(1) – infection prevention and control program – is therefore final and binding.  42 C.F.R. § 498.20(b).

With respect to the September survey, Petitioner appealed "only the single alleged 'immediate jeopardy' deficiency CMS cited following its September 22, 2021 survey":

The basis for Petitioner's appeal is that there is no factual or legal basis for CMS' finding of noncompliance or "immediate jeopardy" relating to Section 483.80(h)/F886, nor for the CMP CMS imposed as the result of those findings.  Petitioner will show that it was in compliance with that regulatory requirement at all times, or, if there was any noncompliance at all, that it did not pose "immediate jeopardy" or even the potential for more than minimal harm to any resident; and/or that [the facility] corrected such

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noncompliance before CMS alleges.  Petitioner challenges the amount and duration of the "immediate jeopardy" CMP.

Hearing Request at 2.5

Petitioner now claims that this limited appeal preserved its right to challenge the duration of the DPNA.  P. Reply to CMS's Motion for Partial Summary Judgment (E-file # 18).  Putting aside the fact that Petitioner's hearing request did not challenge the duration of the DPNA, this position is incompatible with the Medicare statute and regulations.  See, e.g., Hearing Request at 6 ("Petitioner specifically challenges the reasonableness of the amount and duration of the CMP."  ) (Emphasis added).

The statute is explicit:  if the facility does not meet a program requirement, CMS (acting on behalf of the Secretary) may deny payment for "individuals admitted to the facility after the effective date of the [noncompliance] finding."  Act § 1819(h)(2)(B)(i).  If the facility has not brought itself into compliance within three months, CMS must impose a DPNA.  Act § 1819(h)(2)(D); 42 C.F.R. § 488.417(b)(1).  To challenge successfully the duration of a DPNA, the facility must establish that it achieved substantial compliance at an earlier date.  Act § 1819(h)(3); 42 C.F.R. § 488.417(c).

But here, Petitioner cannot establish that it achieved substantial compliance any earlier than January 17, 2022, because it did not even appeal multiple deficiencies that were cited for the September and subsequent surveys.  Those un-appealed deficiency findings are final, demonstrate that the facility remained out of substantial compliance, and justify continuing the DPNA.

The October 12, 2021 Life Safety Code (LSC) survey.  In addition to meeting the health requirements set forth in 42 C.F.R. Part 483, a facility must meet the provisions of the LSC of the National Fire Protection Association (NFPA).  42 C.F.R. § 483.90(a)(1).  On October 12, 2021, state agency surveyors completed the facility's LSC survey.  Based on their findings, CMS determined that the facility was not in substantial compliance with:

• LSC §§ 18.2.2.2.7, 18.2.2.2.8, 19.2.2.2.7, and 19.2.2.2.8 (Tag K223 – doors with self-closing devices) cited at scope and severity level E;

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• 42 C.F.R. §§ 403.748(d)(1), 416.54(d)(1), 418.113(d)(1), 441.184(d)(1), 460.84(d)(1), 482.15(d)(1), 483.73(d)(1), 483.475(d)(1), 484.102(d)(1), 485.68(d)(1), 485.625(d)(1), 485.727(d)(1), 485.920(d)(1), 486.360(d)(1), 491.12(d)(1) (Tag E037 – emergency preparedness training programs) cited at scope and severity level E;

P. Exs. 7, 8.6

November 29, 2021 LSC revisit.  On November 29, 2021, state surveyors revisited the facility.  Based on their findings, CMS determined that the facility remained out of substantial compliance with LSC requirements and that one of the deficiencies posed immediate jeopardy to resident health and safety.  Specifically, CMS determined that the facility was not in substantial compliance with:

• 42 C.F.R. §§ 403.748(d)(1), 416.54(d)(1), 418.113(d)(1), 441.184(d)(1), 460.84(d)(1), 482.15(d)(1), 483.73(d)(1), 483.475(d)(1), 484.102(d)(1), 485.68(d)(1), 485.625(d)(1), 485.727(d)(1), 485.920(d)(1), 486.360(d)(1), 491.12(d)(1) (Tag E037 – emergency preparedness training programs) cited at scope and severity level E (repeat deficiency);
• LSC §§ 18.2.2.2.7, 18.2.2.2.8, 19.2.2.2.7, and 19.2.2.2.8 (Tag K223 – doors with self-closing devices) cited at scope and severity level E (repeat deficiency); and
• NFPA §§ 101, 241, 18.7.9, 19.7.9, 4.6.10, 7.1, 10.1 (Tag K791 – construction, repair, and improvement operations) cited at scope and severity level J (isolated instance of substantial noncompliance that poses immediate jeopardy to resident health and safety).

P. Exs. 10-11.

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The December 2, 2021 survey.  State surveyors completed a revisit survey on December 2, 2021, to see if the September 22 deficiencies had been corrected, and determined that they had not been.  Petitioner characterizes the deficiencies cited during the December survey as "near trivial."  P. Br. at 4 n.4.  Substantial noncompliance is not "trivial."  The statute and regulations have purpose; any deficiency that poses the potential for more than minimal harm – which includes a D level deficiency – is significant.  Indeed, CMS may terminate a facility's program participation whenever the facility is not in substantial compliance with program requirements.  Act § 1819(h)(2)(A); 42 C.F.R. § 488.412(a); see Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. at 1, 21-22 (2000) (holding that CMS has broad discretion to select a penalty if a facility is not in substantial compliance, and that discretion is not diminished because the agency is reluctant to terminate any but the "most egregious recidivist institutions."); Beverly Health & Rehab. Servs., Inc. v. Thompson, 223 F. Supp. 2d 73, 111 (D.D.C. 2002) (holding that the agency's authority to terminate is not limited to immediate jeopardy cases but "may span all noncompliant facility behavior").

Moreover, one deficiency, cited under section 483.25(d)(1), was serious, indeed.  Surveyors noticed that a severely impaired resident had bruises.  Yet, the facility had neither documented nor investigated his injuries; it had not developed a plan to protect him from future injuries.  Progress notes documented that he had experienced multiple falls.  After one fall, he complained of leg pain and was hospitalized with a leg fracture.  He underwent surgery, and a metal rod was inserted into his femur.  At the time of his admission, the hospital also found that he had a urinary tract infection.  Notably, during the September 22, 2021 survey, surveyors had identified the resident as at risk and found that the facility was not in substantial compliance with section 483.25(d)(1).  P. Ex. 5 at 12-16; see CMS Ex. 1 at 35-38.

Based on the December 2 survey findings, CMS determined that the facility was still not in substantial compliance with multiple program requirements:

• 42 C.F.R. § 483.10(h)(1)-(3) (Tag F583 – resident rights:  privacy and confidentiality) cited at scope and severity level D (repeat deficiency);
• 42 C.F.R. § 483.21(b)(1) (Tag F656 – comprehensive care plans) cited at scope and severity level D (repeat deficiency);
• 42 C.F.R. § 483.25(b)(1) (Tag F686 – quality of care:  skin integrity) cited at scope and severity level D (repeat deficiency);
• 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689 – quality of care:  accident prevention) cited at scope and severity level G (repeat deficiency);

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• 42 C.F.R. § 483.45(d)(1)-(6) (Tag F757 – pharmacy services:  restricting unnecessary drugs) cited at scope and severity level D (repeat deficiency);
• 42 C.F.R. § 483.45(g), (h)(1)-(2) (Tag F761 – pharmacy services:  labeling of drugs and biologicals) cited at scope and severity level D (repeat deficiency); 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 (repeat deficiency);7

P. Ex. 5; see CMS Ex. 42 at 2.

The January 28, 2022 notice letter with appeal rights.  CMS sent the facility a notice letter, dated January 28, 2022.  After reiterating the contents of the October 22, 2021 notice letter (remedies imposed based on the August 12 and September 22 surveys), the letter addressed the subsequent surveys, including the November 29, 2021 LSC survey.8

Based on the findings of substantial noncompliance documented in the November 29 and December 2 surveys, CMS imposed the following additional remedies:

• A CMP of $6,890 a day for one day (November 29, 2021) for the immediate jeopardy deficiency;
• A CMP of $550 per day from November 30, 2021 through January 16, 2022;

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• A CMP of $335 per day for each day after January 16, 2022, until the facility achieved substantial compliance; and
• The DPNA that was in effect would continue.

CMS Ex. 42 at 2.

The notice letter set forth the facility's rights to appeal the November 29 and December 2 survey findings and accompanying penalties:

If you disagree with this letter's determination to impose remedies made on the basis of noncompliance identified at the November 29, 2021 or December 2, 2021 surveys, you or your legal representative may request a hearing before an administrative law judge of the U.S. Department of Health and Human Services, Departmental Appeals Board.  The appeal rights are set forth at 42 C.F.R. § 498.5 and the procedures for requesting a hearing are set forth at § 498.40 et. seq. . . .  Your appeal must be filed no later than 60 days from the date of receipt of this letter.

CMS Ex. 42 at 7 (emphasis added).  CMS served the notice letter electronically.  CMS Ex. 42 at 1.  Petitioner did not appeal either survey.

Now, however, under the guise of challenging the duration of the DPNA, Petitioner attempts to undermine the November and December survey findings.  P. Reply to CMS's Motion at 8-10.  It is obviously far too late to do so.  Because it did not timely challenge those findings, they are final and binding and establish that the facility's substantial noncompliance continued.  42 C.F.R. § 498.20(b).

Based on a survey completed on January 25, 2022, CMS determined that the cited deficiencies were corrected effective January 17, 2022.  CMS Ex. 42 at 2.

The March 14, 2022 notice letter.  CMS sent a final notice letter to the facility on March 14, 2022.  After recapping the contents of the October 22, 2021 and January 28, 2022 notice letters, the letter advised the facility that it had achieved substantial compliance effective January 17, 2022.  The letter summarized the remedies imposed, including all of the CMPs, and noted that the mandatory termination did not go into effect and that the DPNA, which went into effect on November 6, 2021, was discontinued effective January 17, 2022.  CMS Ex. 43 at 1-2.

Thus, based on all of the deficiencies that it could have but did not appeal, the facility was not in substantial compliance with Medicare program requirements beginning August 12, 2021, and the CMPs imposed for those un-appealed deficiencies are

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reasonable.  For the same reasons, the DPNA continued through at least December 2.  42 C.F.R. § 498.20(b); Taos Living Ctr., DAB No. 2293 at 9-10 (2009).

2. CMS is entitled to summary judgment because the evidence shows that the facility remained out of substantial compliance through January 16, 2022, and Petitioner has presented no counter-evidence establishing the existence of a dispute over CMS's factual findings.

Once a facility has been found to be out of substantial compliance, it remains so until it affirmatively demonstrates that it has returned to substantial compliance.  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 23 (2008); Lake City Extended Care Ctr., 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 deficiencies continue to exist.  Asbury Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002).

A facility's return to substantial compliance usually must be established through a resurvey.  42 C.F.R. § 488.454(a); Ridgecrest, DAB No. 2493 at 2-3.  The facility must show that the incidents of noncompliance have ceased and that it has implemented appropriate measures to ensure that similar incidents will not recur.  Libertywood Nursing Ctr., DAB No. 2433 at 15 (2011) (citing Life Care Ctr. Of Elizabethton, DAB No. 2367 at 16 (2011)); accord 42 C.F.R. 488.454(a), (e); Hermina Traeye Mem'l Nursing Home, DAB No. 1810 at 12 (2002) (holding that, to be found in substantial compliance earlier than the date of the resurvey, the facility must supply documentation "acceptable by CMS" showing that it was in substantial compliance and was capable of remaining in substantial compliance on the earlier date); Cross Creek Health Care Ctr., DAB No. 1665 (1998).

A facility may be able to establish that it returned to substantial compliance before an on-site revisit (through surveyor interviews, observations, review of records or policies, for example).  However, resolving the question of when a facility returns to substantial compliance requires careful review of the facility's plan of correction.  N. Las Vegas Care Ctr., DAB No. 2946 at 11 (2019).  A plan of correction evidences the measures necessary to bring a facility back into substantial compliance.  Id. at 13 (citing Libertyville Manor Rehab. & Healthcare Ctr., DAB No. 2849 at 14 (2018)).  Here, Petitioner offers no evidence or argument to show that it returned to substantial compliance any earlier than January 17, 2022.  Indeed, for each of the deficiencies cited during the December 2, 2021 survey, the facility's plan of correction lists January 17, 2022 as its correction completion date.  P. Ex. 5 at 1, 4, 8, 12, 16, 18, 21.  Because the facility's substantial noncompliance continued for more than three months, CMS was required to impose a DPNA until the facility returned to substantial compliance.  Act § 1819(h)(2)(D); 42 C.F.R. § 488.417(b)(1).

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Thus, the facility was not in substantial compliance with Medicare program requirements through January 16, 2022.

Conclusion

Because the facility did not appeal deficiencies cited during the surveys completed through December 2, 2021, and because the facility has not supplied evidence establishing that it corrected all of its deficiencies and maintained substantial compliance prior to January 17, 2022, I grant CMS's motion for partial summary judgment.  I affirm the CMPs imposed for the deficiencies that Petitioner did not appeal.

With respect to Petitioner's limited appeal, three issues remain, which I do not resolve in this ruling:  1) based on a survey completed on September 22, 2021, was the facility in substantial compliance with 42 C.F.R. § 483.80(h); 2) if, from September 13 through 16, 2021, the facility was not in substantial compliance with 42 C.F.R. § 483.80(h)(1)-(6), did that deficiency pose immediate jeopardy to resident health and safety; and 3) if the facility was not in substantial compliance with section 483.80(h), and that deficiency posed immediate jeopardy to resident health and safety, is the CMP imposed – $11,500 per day – reasonable?  See Joint Statement of Issues Presented (E-file # 13); Petitioner's Supplemental Statement of Issues (E-file # 15).

Additional orders will follow.