SUBJECT: Brier Oak Terrace Care Center,

Petitioner,

Centers for Medicare and Medicaid Services

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

Brier Oak Terrace Care Center (Brier Oak) appealed an April 26, 2001 decision by Administrative Law Judge (ALJ) Marion T. Silva sustaining the determination by the Centers for Medicare and Medicaid Services (CMS) to impose a civil money penalty (CMP) of $32,000 on Brier Oak.⁽¹⁾ See Brier Oak Terrace Care Center, DAB CR766 (2001) (ALJ Decision). CMS had imposed the CMP based on a survey conducted by the California Department of Health Services, the state survey agency, which found that Brier Oak was deficient in one of the requirements for Medicare participation, the prevention of pressure sores, in regard to one of its residents. CMS determined that this deficiency, while not constituting immediate jeopardy or causing actual harm, had the potential for more than minimal harm for the resident's health and safety. The ALJ found that Brier Oak was not in substantial compliance with the Medicare participation requirement set forth at 42 C.F.R. § 483.25(c) regarding the prevention of pressure sores, and she sustained a CMP in the daily amount of $500 for a period of 64 days, resulting in a total CMP of $32,000. In reaching her decision, the ALJ made 25 numbered findings of fact and conclusions of law (FFCLs).

Brier Oak limited its appeal to us to the severity and duration of the CMP. For the reasons discussed below, we find that the imposition of a daily CMP of $500 was within the discretion of CMS. We further find that the duration of the CMP was likewise within the discretion of CMS. We therefore find no error on the ALJ's part in sustaining these discretionary determinations by CMS. We further find, however, that any finding in the FFCLs that Brier Oak was "highly culpable" in its treatment of the resident in question was not supported by substantial evidence on the record as a whole. We accordingly delete any references to "highly culpable" in the FFCLs.

The record here includes the record before the ALJ, the parties' submissions on appeal, and the transcript of a hearing held at the request of Brier Oak. Our standard of review on a disputed conclusion of law is whether the ALJ Decision is erroneous. See, e.g., Lake Cook Terrace Nursing Center, DAB No. 1745 (2000). Our standard of review on a disputed finding of fact is whether the ALJ Decision is supported by substantial evidence on the record as a whole. Id.

Applicable Regulations

CMS determined that Brier Oak was not in substantial compliance with Medicare participation requirements, finding that Brier Oak's treatment of a resident, designated as Resident 2 for purposes of privacy, constituted a level "D" deficiency; that is, the scope of this deficiency was isolated to Resident 2, the severity of the deficiency posed no actual harm to Resident 2, but there existed the potential for more than minimum harm to Resident 2.

For purposes of surveys of skilled nursing facilities like Brier Oak, the regulations define "substantial compliance" as "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. § 488.301.

The participation requirement at issue here is included within the "quality of care" requirements, which share the same regulatory objective that "[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care." 42 C.F.R. § 483.25. The specific provision at issue was the following:

Pressure Sores. Based on the comprehensive assessment of a resident, the facility must ensure that -

(1) A resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and

(2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.

42 C.F.R. § 483.25(c).

For deficiencies that do not constitute immediate jeopardy, but either caused actual harm, or caused no actual harm, but have the potential for more than minimal harm, a CMP in the range of $50 - $3,000 per day may be imposed. 42 C.F.R. § 488.438(a)(2) (1998).

The following factors are to be taken into account in determining the amount of a CMP:

(1) The facility's history of non-compliance, including repeated deficiencies.

(2) The facility's financial condition.

(3) The factors specified in § 488.404 [the seriousness, scope, and number of deficiencies found].

(4) The facility's degree of culpability. Culpability for purposes of this paragraph includes, but is not limited to, neglect, indifference, or disregard for resident care, comfort or safety. The absence of culpability is not a mitigating circumstance in reducing the amount of the penalty.

42 C.F.R. § 488.438(f).

Factual Background

Brier Oak is a skilled nursing facility located in Los Angeles, California. On September 29, 1998, Resident 2, a 79 year-old man, was admitted to Brier Oak. Resident 2 had been at a hospital where he had two successive surgical procedures performed on his esophagus. On his admission to Brier Oak, Resident 2 was diagnosed in a severely compromised state, described as "malnourished, edematous, immobile, . . . muscle wasting and heart failure." Brier Oak Ex. 3, at 13. Within days after his arrival, Brier Oak's staff conducted a risk assessment of Resident 2 on the possibility of the development of pressure sores. Brier Oak Ex. 1, at 153. The risk assessment failed to note several factors which would have placed Resident 2 at a greater risk for the development of pressure sores. Tr. at 404 - 05. Brier Oak did take several precautions to prevent the development of pressure sores, including providing Resident 2 with a protective mattress, physical therapy, nutritional supplements, and turning Resident 2 on a regular basis. Despite these precautions, on October 14, 1998, Brier Oak's staff noted a blister on each of Resident 2's heels. On that same day, a physician ordered the use of heel protectors for Resident 2. On October 19, 1998, Resident 2 was transferred to an acute care hospital.

On November 19, 1998, the state survey agency visited Brier Oak and conducted a closed-record review abbreviated survey based on a complaint. The state surveyor checked the records of patients who had been discharged with pressure sores, including Resident 2. As a result of the record review, a survey report (HCFA Form 2567) was issued, finding Brier Oak not in compliance with the requirement set forth at 42 C.F.R. § 483.25(c), the prevention of pressure sores. CMS Ex. 1.

On December 3, 1998, Brier Oak submitted a plan of correction (POC), listing four categories of actions addressed to the deficiency cited in the survey report: 1) immediate action as to Resident 2; 2) identification of all other residents who might be affected by the practices at issue; 3) implementation of procedures to prevent recurrences of the challenged practices; and 4) monitoring procedures to ensure timely identification of residents at risk for pressure sores. CMS Ex. 1. The POC further stated that actions with regard to Resident 2 were completed October 19, 1998, with the other aspects of the plan completed by December 3, 1998. Id. The POC also bore a handwritten notation, author not specified, that it had been "Reviewed & Accepted" by the state surveyor on "12/17/98." Id.

After the POC had been submitted, CMS determined that the scope and severity of the deficiency was at a level "D," meaning that it was an isolated incident with no actual harm, but with the potential for more than minimal harm that is not immediate jeopardy. On December 10, 1998, CMS imposed a CMP of $500 per diem for the period in which Brier Oak was out of compliance with 42 C.F.R. § 483.25(c), which CMS later determined was from November 19, 1998, until January 22, 1999. CMS Ex. 2. CMS also denied Brier Oak payment for new admissions effective December 25, 1998, until substantial compliance with program requirements was achieved. CMS Ex. 3.

A follow-up survey by the state survey agency completed on January 22, 1999, found Brier Oak back in substantial compliance with applicable Medicare program requirements. In a February 18, 1999 letter, CMS notified Brier Oak that the follow-up survey conducted on January 22, 1999 found Brier Oak in substantial compliance effective January 22. CMS informed Brier Oak that its provider agreement would not be terminated, the denial of payment for new admissions was rescinded effective January 22, and the $500 per day CMP stopped accruing on January 22. CMS Ex. 4.

Discussion

In reaching her decision, the ALJ made 25 numbered findings of fact and conclusions of law (FFCLs). Brier Oak challenged three of the FFCLs:

21. HCFA was authorized to impose a civil money penalty of $50 - $3000 per day based on Petitioner's failure to substantially comply with 42 C.F.R. § 483.25(c). 42 C.F.R. § 488.408(d).

23. Petitioner was highly culpable within the meaning of 42 C.F.R. § 488.438(f)(4) because it demonstrated disregard for Resident 2's care, comfort, and safety when it failed to provide some form of heel protection for Resident 2 to prevent the development of pressure sores on his heels even though it should have known from Resident 2's clinical condition and from the fact that he developed other pressure sores that Resident 2 was at high risk for developing pressure sores.

25. A civil money penalty of $500 per day is reasonable in amount since Petitioner had repeated deficiencies, was highly culpable with respect to Resident 2, and did not provide any evidence of an inability to pay the penalty. 42 C.F.R. § 488.438(f).

In making these findings, the ALJ found that Brier Oak was not in substantial compliance with the program requirement set forth at 42 C.F.R. § 483.25(c), in that the blisters Resident 2 developed on his heels were in fact pressure sores that were not unavoidable. The ALJ found that the evidence showed that Resident 2 spent up to 16 consecutive hours a days in bed, that Resident 2 had limited ability to lift himself to relieve the pressure on his heels, and that Brier Oak's general policy to turn all residents every two hours did not establish that Resident 2 was in fact so turned. The ALJ found that Brier Oak could not claim that the blisters were unavoidable as it failed to do what is necessary to ensure that pressure sores do not develop, specifically by failing to provide Resident 2 with some form of heel protection until after the blisters developed. The ALJ further found that a CMP of $500 per day was reasonable given that two prior surveys of Brier Oak, in May 1997 and May 1998, had found it in violation of 42 C.F.R. § 483.25(c). The ALJ found that the $500 CMP was also merited by Brier Oak's culpability in failing to provide Resident 2 with some form of heel protection, specifically adding that she need not take into account the inadequacy of Brier Oak's risk assessment of Resident 2's propensity to develop pressure sores in determining the degree of Brier Oak's culpability within the meaning of 42 C.F.R. § 488.438(f)(4) as constituting "neglect, indifference, or disregard for resident care, comfort or safety" of Resident 2. ALJ Decision at 18.

On appeal, Brier Oak did not contest the ALJ's findings that it was not in substantial compliance with 42 C.F.R. § 483.25(c). Rather, Brier Oak challenged the reasonableness and duration of the $500 daily CMP and the ALJ findings that Brier Oak was "highly culpable" for the development of pressure sores on Resident 2.

I. Brier Oak did not establish that it was in substantial compliance prior to the state survey revisit on January 21, 1999.

On appeal, Brier Oak argued that any CMP should only accrue from November 19, 1998, through December 2, 1998, in that it had submitted a plan of correction (POC) on December 3, 1998. Brier Oak also argued that the denial of payments for new admissions (in effect from December 25, 1998 to January 21, 1999) should be reversed. Brier Oak contended that CMS' insistence that the imposition of these sanctions be in effect until January 21, 1999, the day before the resurvey occurred, was a punitive, rather than a remedial, action, in that it unfairly presumed noncompliance on Brier Oak's part until the resurvey. Brier Oak maintained that the fact that CMP penalties continued to accrue for weeks beyond the correction date set forth in the POC produced an arbitrary and capricious result that is contrary to law. Brier Oak explained that, since the question of noncompliance involved a single resident, a resident who was discharged from the facility a month before the survey even took place, at only a "D" level deficiency, the lowest level of deficiency for which appealable remedies may be imposed, a revisit was not necessary for CMS to verify substantial compliance. Brier Oak argued that CMS's assumption that it was not in substantial compliance until the revisit illustrates the abuse and unfairness of delayed revisits, an abuse which, according to Brier Oak, CMS itself recognized in adopting a new remedy policy in a May 3, 2001 policy memorandum.

When Brier Oak initially requested a hearing to contest the imposition of sanctions, it made a similar challenge to the duration of the CMP. February 9, 1999 request for hearing. In its June 16, 1999 Report of Case Readiness to the ALJ, Brier Oak again stated that among the legal issues to be determined was, "Whether Petitioner was in substantial compliance at any time prior to the date alleged by HCFA of January 22, 1999." At 2.

At the hearing, Brier Oak attempted to raise this issue, asking a CMS witness who was the leader for the long-term care enforcement team that imposed the CMP, "In setting the amount of the civil money penalty, do you have any discretion to consider the length of time that the state agency takes in getting around to revisit the facility and re-certify it to be in substantial compliance?" Tr. at 370. CMS objected to this question, stating that the only factors to be considered in determining the penalty amount are those set forth at 42 C.F.R. § 488.438(f). Brier Oak then failed to point out to the ALJ the inapplicability of that regulation, as discussed below, to the question Brier Oak posed to the CMS witness. When the ALJ sustained the objection, Brier Oak stated that it would "go ahead and brief that [issue] in post-hearing briefs." Tr. at 371. At no other time during the hearing was this issue raised by Brier Oak.

In its post-hearing briefs before the ALJ, Brier Oak failed to either argue that the ALJ's ruling was incorrect or raise the issue of the proper duration of the CMP. Consequently, the ALJ made no specific finding on this issue in her decision.

We find that, although the ALJ should have allowed questioning of this witness as to the duration of the violation, the failure of Brier Oak to pursue this avenue at the hearing, by countering CMS's objection, by taking an exception to the ALJ's ruling, by attempting to question other CMS witnesses or their own witnesses, or to even raise this issue in the briefs before the ALJ, bars it from raising the issue before us. We so hold even though the duration of the CMP would have been a legitimate issue to raise with the CMS witness, one that Brier Oak should have been afforded the opportunity to explore. Contrary to CMS's objection, 42 C.F.R. § 488.438(f) concerns only the factors to be considered in determining the daily amount of a CMP. That regulation, however, does not restrict inquiries into the proper duration of a CMP.⁽²⁾

Under the CMS policy that was in effect when this dispute arose, as expressed in the applicable regulations, the mere submission of a POC did not automatically mean that any cited deficiencies had been corrected. The duration of remedies is governed by 42 C.F.R. § 488.454. That regulation provides that remedies such as CMPs and the denial of payment for new admissions will continue until "[t]he facility has achieved substantial compliance, as determined by HCFA or the State based upon a revisit or after an examination of credible written evidence that it can verify without an on-site visit." § 488.454(a). The regulation additionally provides:

If the facility can supply documentation acceptable to HCFA or the State survey agency that it was in substantial compliance and was capable of remaining in substantial compliance, if necessary, on a date preceding that of the revisit, the remedies terminate on the date HCFA or the State can verify as the date that substantial compliance was achieved and the facility demonstrated that it could maintain substantial compliance, if necessary.

42 C.F.R. § 488.454(e).

Here all that Brier Oak offered as proving that it was in substantial compliance was the accepted POC. However, the Board has held that "[e]ven if the plan of correction is accepted, the facility is not regarded as in substantial compliance until HCFA determines, usually through a revisit survey, that the deficiency no longer exists." Cross Creek Health Care Center, DAB No. 1665, at 3 (1998).

If Brier Oak wanted to establish that it was in substantial compliance with all program requirements effective the date of its POC, Brier Oak had the responsibility to prove that at the hearing. Brier Oak had the opportunity at the hearing before the ALJ to present evidence and testimony on how its POC addressed the section 483.25(c) deficiency and that it did in fact meet all requirements for Medicare participation effective December 3, 1998. Brier Oak failed to do that. Nor did Brier Oak offer any testimony that the state surveyor had accepted the POC on December 17, 1998, as was indicated by the handwritten notation on the POC offered by CMS as its Exhibit 1. In short, there is no evidence in the record that Brier Oak was in substantial compliance with section 483.25(c) on the date of the submission of its POC.

Our review of an ALJ decision is not a de novo review of CMS's remedies. Our review is limited to whether the ALJ decision was erroneous as a matter of law or unsupported by substantial evidence on the record as a whole. As Brier Oak failed to pursue the issue of the duration of the CMP before the ALJ, the ALJ never addressed the issue in her decision. We therefore have no basis for now finding that the duration of the CMP should be any shorter than the date the state survey agency determined by its revisit that Brier Oak was in substantial compliance.

II. Brier Oak failed to meet the requirements of 42 C.F.R. § 483.25(c) but was not "highly culpable."

We find that the ALJ erred in finding Brier Oak's failure to provide heel protectors for Resident 2 rendered it 'highly culpable." Nevertheless, we find that Brier Oak failed to comply with 42 C.F.R. § 483.25(c).

In her decision, at page 4, the ALJ referred to Koester Pavilion, DAB No. 1750 (2000), wherein the Board stated, at page 32:

We therefore review the conclusions relating to pressure sores in light of the regulatory standard that a facility should go beyond merely what seems reasonable to, instead, always furnish what is necessary to prevent new sores unless clinically unavoidable, and to treat existing ones as needed.

In finding that Brier Oak failed to prevent the development of avoidable blisters on the heels of Resident 2, the ALJ stated that the applicable standard was the one set forth above in Koester, that a facility should "always furnish what is necessary." ALJ Decision at 15. The ALJ found that Brier Oak failed to meet this standard because the blisters were not unavoidable as Brier Oak did not provide Resident 2 with heel protection devices. ALJ Decision at 15 - 17. The ALJ further found that Brier Oak thus was "highly culpable."⁽³⁾

The ALJ explained her basis for finding that Brier Oak was "highly culpable" as follows:

I need not consider the initial assessment in determining the degree of Petitioner's culpability since Petitioner was highly culpable based solely on Petitioner's failure to provide some form of heel protection for Resident 2. Petitioner's failure to take this accepted preventive measure for a resident at high risk for pressure sores demonstrates a serious disregard for Resident 2's care, comfort, and safety.

ALJ Decision at 18 (emphasis added).

Brier Oak disputed the ALJ's finding that Brier Oak was "highly culpable" in its treatment of Resident 2, arguing that the ALJ's finding was clearly erroneous and not based on substantial evidence in the record. Brier Oak contended that this finding was based on an erroneous reading of the Agency for Health Care Policy and Research (AHCPR) Guidelines (CMS Ex. 8) on the use of devices to prevent pressure sores on heels. Brier Oak asserted that these guidelines call for a plan of care employing the use of heel protection devices only for individuals who are "completely immobile" and unable to move without assistance. Brier Oak contended that testimony at the hearing and Resident 2's medical records established that he was not completely immobile, with his mobility in fact increasing while at the facility as a result of physical therapy, thus making a finding of "highly culpable" unwarranted based on the evidence. Brier Oak further maintained that the ALJ's "highly culpable" finding ignored the other preventive measures it took for Resident 2 to avoid the development of pressure sores. CMS responded that the evidence overwhelmingly showed that Resident 2 presented a high risk of developing pressure sores; that Brier Oak's assessment of the risk erred dramatically on the side of understating the risk; that the heels are among the most likely places for pressure sores to develop; and that appropriate preventive treatment should have included some sort of heel protection. CMS Br. at 14.

While we would have found, if Brier Oak had raised the issue on appeal, substantial evidence in the record to support the ALJ's finding that the blisters Resident 2 developed were not unavoidable, we find that the ALJ nevertheless erred in stressing that the sole basis for Brier Oak's failure to meet the requirement set forth at 42 C.F.R. § 483.25(c) was Brier Oak's failure to take all measures to prevent the development of Resident 2's blisters, including the provision of heel protectors. Rather, Brier Oak's failure to meet the requirement set forth at 42 C.F.R. § 483.25(c) was tied directly to its inadequate risk assessment conducted for Resident 2 upon his admission to the facility. Under the risk assessment performed on Resident 2, there was no need or requirement to provide him with heel protectors, as the risk assessment determined that Resident had only a score of two out of a possible score of 20 on the risk of developing pressure sores, with a score of eight indicating that a patient was at risk for the development of pressure sores. P. Ex. 1, at 153. Yet the Medical Director for Brier Oak, and Resident 2's attending physician during Resident 2's hospital stay, admitted that the risk assessment did not take into account the state of Resident 2's mobility, his incontinency, and his poor clinical condition. Tr. at 398 - 404. If Brier Oak's staff had properly taken these factors into consideration, Resident 2 would have scored a 14 on the risk assessment scale, meaning that he was at serious risk for the development of pressure sores. If such a score had been properly assessed, Brier Oak should have immediately known to provide Resident 2 with heel protectors, presumably preventing the blisters from occurring. Thus, Brier Oak's argument that the ALJ misconstrued or improperly applied the AHCPR guidelines is irrelevant to the ultimate cause for the development of Resident 2's blisters, the inadequate risk assessment.

The ALJ determined under the standard set forth in Koester that Brier Oak's failure to provide Resident 2 with protective heel devices fell within this category of "what is necessary" and thereby merited a finding of "highly culpable."⁽⁴⁾ But under the risk assessment that was in place, inadequate as it was, Brier Oak did all, in fact even more, than it was required to do in regard to Resident 2. Brier Oak clearly took preventive measures to prevent the development of pressure sores in Resident 2: it provided a mattress designed to prevent pressure sores; it provided physical therapy and rehabilitation twice daily; it provided special nutritional needs; and it ordered Resident 2 to be turned every two hours while he was in bed. Thus, any implication of "high" culpability for the failure to provide heel protectors is unwarranted. It is not even necessary to reach the issue of culpability at all here since, as we discuss below, the amount of the CMP imposed here is fully substantiated without consideration of culpability.

Accordingly, we amend FFCLs 23 and 25 to read:

23. Petitioner's failure to perform a competent assessment of Resident 2's propensity for pressure sores resulted in the development of blisters on Resident 2's heels that were avoidable.

25. A civil money penalty of $500 per day is reasonable in amount since Petitioner failed to prevent avoidable pressure sores in Resident 2, had repeated deficiencies in preventing avoidable pressure sores, and did not provide any evidence of an inability to pay the penalty. 42 C.F.R. § 488.438(f).

III. Imposing a CMP of $500 per day was within the discretion of CMS and the ALJ did not err in finding that amount reasonable.

In finding a CMP of $500 per day reasonable, the ALJ noted that this amount was at the low end of the range of penalty amounts that may be imposed under 42 C.F.R. § 488.438(a)(2). The ALJ cited Brier Oak's history of repeated deficiencies involving the prevention of pressure sores, the failure of Brier Oak to provide any evidence of its inability to pay the penalty, and Brier Oak's culpability as the basis for her finding.

Brier Oak argued that, in addition to its position that there was no basis for a finding of culpability on its part, a $500 daily CMP lacked a legitimate remedial purpose and was not justified by either the scope and severity of a single deficiency or its compliance history. Brier Oak questioned how a deficiency at a "D" level merited such a severe penalty and cited other cases (Ontario Care Center, DAB CR 713 (2000), and Iredell Memorial Hospital, DAB CR639 (2000)) where facilities had multiple deficiencies at a higher scope and severity level but received lower CMPs. Brier Oak stated that the $500 assessed against it was clearly punitive in nature and that another facility with a far worse compliance history was assessed a CMP in the amount of only $200 per day. Reply Br. at 9, citing Hearthside Care Center, DAB No. 1741 (2000). Brier Oak requested a reduction in the CMP commensurate with a consideration of the applicable regulatory factors to the facts of this case and a deletion of the "highly culpable" finding, suggesting that a CMP of $100 per day would serve a proper remedial purpose.

Brier Oak misreads the regulatory framework for the assessment of a CMP. Section 488.438(f)(4) of 42 C.F.R. specifically provides that "the absence of culpability is not a mitigating factor in reducing the amount of the penalty." Thus, our action above amending FFCLs 23 and 25 to delete any reference to "highly culpable" cannot in itself diminish the amount of the CMP. An imposition of a $500 daily CMP was permitted under the regulations. For a deficiency that has the potential for more than minimal harm, the case here, a CMP in the range of $50 - $3,000 per day may be imposed, based on the factors set forth in section 488.438(f).

Brier Oak's reliance on the CMPs imposed in other cases as illustrating the alleged disparity of punishment it received is not persuasive. The regulations give CMS considerable discretion in the amount of a CMP it is permitted to impose. The factors in each case cannot be quantified to determine the appropriate amount of a CMP. Brier Oak itself apparently recognized this when it cited the following language in support of its position: "no scientific formula can be applied to ascertain the precise amount of a CMP that will serve the remedial purpose of the Act in a particular case." Beverly Health and Rehabilitation - Spring Hill, DAB No. 1696, at 49 (1999).

In light of Brier Oak's history of deficiencies for the prevention of pressure sores and Brier Oak's failure to provide information concerning its financial condition, and given that the penalty assessment is still in the lower range for violations not involving immediate jeopardy, we have no basis to overturn the ALJ's penalty decision. Accordingly, we sustain the ALJ finding that a CMP of $500 per day was reasonable.

Conclusion

For the reasons discussed above, we sustain the imposition of a CMP of $32,000 on Brier Oak, thereby sustaining FFCL 21. In doing so, however, we amend FFCLs 23 and 25 to read:

23. Petitioner's failure to perform a competent assessment of Resident 2's propensity for pressure sores resulted in the development of blisters on Resident 2's heels that were avoidable.

25. A civil money penalty of $500 per day is reasonable in amount since Petitioner failed to prevent avoidable pressure sores in Resident 2, had repeated deficiencies in preventing avoidable pressure sores, and did not provide any evidence of an inability to pay the penalty. 42 C.F.R. § 488.438(f).

We affirm and adopt all the other FFCLs made by the ALJ.

Donald F. Garrett

M. Terry Johnson

Marc R. Hillson
Presiding Board Member

1. When this dispute was initiated before the ALJ, CMS was named the Health Care Financing Administration (HCFA). Consequently, the ALJ referred to HCFA in her decision. We use the current acronym, CMS, in this decision, unless we are quoting directly from the ALJ Decision.

2. It is quite understandable why Brier Oak would seek to question, given that the deficiency was limited to the record review of one discharged resident, whether the state survey agency's delay after receipt of the POC in resurveying the facility was considered by CMS in setting the CMP. Although the CMP was accruing at a rate of $500 a day, the state survey agency did not revisit Brier Oak until 49 days after Brier Oak's submission of a POC.