SUBJECT:

Rosewood Care Center-Edwardsville,

Petitioner,

Centers for Medicare & Medicaid

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a Civil Money Penalty (CMP) of $200 per day, from March 8 through April 11, 2002, against Petitioner, Rosewood Care Center-Edwardsville, for failure to comply substantially with federal requirements governing the participation of long-term care facilities in the Medicare and Medicaid programs.

I. Background

On March 27, 2002, CMS informed Petitioner that, based on a standard survey and a complaint investigation completed on March 8, 2002, CMS was imposing remedies against Petitioner due to its failure to be in substantial compliance with the applicable federal requirements for nursing home participants. CMS stated that it concurred with the State recommendation and was imposing the following remedies:

�Directed In-Service Training, to be completed by April 3, 2002.

�Mandatory Denial of Payment for New Medicare and Medicaid Admissions, effective June 8, 2002.

�A CMP in the amount of $200 per day, effective March 8, 2002.

CMS exhibit (CMS Ex.) 3.

Inasmuch as the facility returned to substantial compliance as of April 12, 2002 (CMS Ex. 5), the only remedy at issue here is the imposition of the $200 per day CMP from March 8 2002 through April 11, 2002.

Petitioner filed a request for hearing on May 24, 2002, contesting not only the deficiency cited based on the March 8, 2002 survey, but also a "G" level deficiency cited as a result of a prior survey conducted on December 11, 2001. I take notice that in another case before me (Docket No. C-02-476), Petitioner is already contesting the remedy imposed based on this December 2001 survey. However, the only deficiency properly before me here is the remedy based on the March 8, 2002 survey. ⁽¹⁾

On October 15, 2002, CMS filed a "Notice of Issues under 42 C.F.R. � 498.70 and a Notice of Issues for Summary Judgment" and a proposed briefing schedule. Petitioner agreed with the briefing schedule proposed by CMS. I issued an Order adopting the parties' proposed briefing schedule on October 25, 2002. CMS filed a "Memorandum of Law in Support of its Motion for Summary Judgment" (CMS Br.) on December 2, 2002, accompanied by 21 proposed exhibits. Petitioner filed a "Memorandum of Law in Support of Petitioner's Response to Motion for Summary Judgment" (P. Br.) on January 31, 2003, accompanied by five exhibits. In the absence of objection from either party, I admit CMS's proposed exhibits as CMS Exs. 1 - 21, and Petitioner's exhibits as P. Exs. 1 - 5. CMS submitted a reply brief (CMS Reply Br.) on February 28, 2003. Petitioner did not file a reply brief.

II. Applicable Law and Regulations

Petitioner is considered a long-term care facility under the Social Security Act (Act) and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act, and at 42 C.F.R. Part 483, and enforcement and hearing rights are found at 42 C.F.R. �� 488 and 498.

Sections 1819 and 1919 of the Act invest the Secretary with the authority to impose remedies against a long-term care facility for failure to comply substantially with participation requirements, which remedies include CMPs and denial of payment for new admissions.

Pursuant to the Act, the Secretary has delegated to CMS and the States the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. The applicable regulations at 42 C.F.R. Part 488 provide that facilities which participate in Medicare may be surveyed on behalf of CMS by State survey agencies in order to ascertain whether the facilities are complying with participation requirements. 42 C.F.R. �� 488.10 - 488.28. The regulations contain special survey conditions for long-term care facilities. 42 C.F.R. �� 488.300 - 488.335. Under Part 488, CMS may impose a CMP against a long-term care facility where a survey ascertains that the facility is not complying substantially with participation requirements. 42 C.F.R. �� 488.406, 488.408, and 488.430. The penalty may start accruing as early as the date that the facility was first out of compliance and continues to accrue until the date substantial compliance is achieved or the provider agreement is terminated. 42 C.F.R. � 488.440.

The regulations specify that a CMP imposed against a facility will fall into one of two broad ranges of penalties. 42 C.F.R. �� 488.408, 488.438. The upper range of CMPs, from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a facility's residents, and, in some circumstances, for repeated deficiencies. 42 C.F.R. � 488.438(a)(1)(i) and (d)(2). The lower range of CMPs, from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm, but have the potential for causing more than minimal harm. 42 C.F.R. � 488.438(a)(1)(ii).

The regulations define the term "substantial compliance" to mean:

[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.

In determining the amount of the CMP, the following factors, specified at 42 C.F.R. � 488.438(f) must be considered:

1. The facility's history of noncompliance, including repeated deficiencies;

2. The facility's financial condition;

3. The seriousness of the deficiencies as set forth at 42 C.F.R. � 488.404; and

4. The facility's degree of culpability.

In a CMP case, CMS must make a prima facie case that the facility has failed to comply substantially with participation requirements. To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEB), slip. op. at 25 (D.N.J. May 13, 1999); Cross Creek Health Care Center, DAB No. 1665 (1998).

The Act and regulations make a hearing available before an administrative law judge to a long-term care facility against whom CMS has determined to impose a CMP. Act, sections 1819(h)(2)(B)(ii); 1128A(c)(2); 42 C.F.R. �� 488.408(g), 498.3(b)(13). The hearing before an administrative law judge is a de novo proceeding. See CarePlex of Silver Spring, DAB No. 1683, at 16 - 17 (1999).

III. Issues, findings of fact and conclusions of law

A. Issues

1. Whether summary judgment is appropriate.

2. Whether the facility was complying substantially with federal participation requirements on the dates CMS determined to impose a CMP.

3. If noncompliance is established, whether the amount of the penalty imposed by CMS is reasonable.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below, in italics and bold, as a separately numbered heading, followed by a discussion of these Findings.

1. Summary judgment is appropriate in this case.

CMS contends that there are no material issues of fact in controversy and that this case may be disposed of by way of summary judgment without the need for an in-person hearing. It is Petitioner's position that a genuine issue of material fact exists with respect to whether the facility was in substantial compliance.

Unless the parties have raised a genuine issue of material fact, I may decide this case on summary judgment, without an evidentiary hearing. Livingston Care Center, DAB No. 1871 (2003); Crestview Parke Care Center, DAB No. 1836 (2002); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997); Carmel Convalescent Hospital, DAB No. 1584, at 27 (1996); Fed. R. Civ. P. 56 (summary judgment is appropriate when there is no genuine issue as to any material fact and the proponent is entitled to judgement as a matter of law). The Departmental Appeals Board recently reiterated in its Livingston Care Center decision that,

CMS is entitled to summary judgment if it has (1) made a prima facie showing that [the facility] was not in substantial compliance with one or more participation requirements, and (2) demonstrated that there is no dispute about any fact supporting its prima facie case and that it is otherwise entitled to judgment as a matter of law. CMS is not entitled to summary judgment if [the facility] has proffered evidence that would permit an ALJ to conclude that it was in substantial compliance with Medicare participation requirements during the relevant time.

Livingston Care Center, DAB No. 1871, at 6.

In attempting to defeat a motion for summary judgment, a party may not rely on the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits and/or admissible discovery material, in support of its contention that a dispute exists. Crestview, DAB No. 1836, at 6 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986)). Where a petitioner raises a factual dispute, an administrative law judge determines whether the facts are material by resolving all factual disputes in favor of the non-moving party (here, Petitioner). If, after the administrative law judge has resolved all the factual disputes in favor of the petitioner, and nevertheless finds that CMS has established substantial noncompliance justifying the penalties imposed, the disputed facts are not material and CMS is entitled to summary judgment. ⁽²⁾

It is my finding that there is no issue as to any material fact to be heard at an in-person evidentiary hearing. All inferences to be drawn from the evidence presented cast no doubt as to the propriety of granting CMS's motion for summary judgment. Petitioner has presented no evidence that creates a genuine issue of material fact which would lead me to conclude that it was in substantial compliance during the relevant time.

2. The facility was not in substantial compliance with federal participation requirements from March 8, 2002 through April 11, 2002.

a. The facility failed to provide Resident 8 with adequate supervision and assistance devices to prevent accidents. This failure resulted in actual harm to Resident 8.

Based on the documentary evidence, the written arguments of the parties, and the applicable law and regulations, I find that, from March 8, 2002 through April 11, 2002, Petitioner was not in substantial compliance with the federal participation requirement at 42 C.F.R. � 483.25(h)(2). The survey report listed an alleged deficiency at Tag 324 (which references deficiencies cited at 42 C.F.R. � 483.25(h)(2)) at less than the immediate jeopardy level, with regard to Petitioner's treatment of Resident 8. CMS Ex. 1. That section of the regulations, entitled "Quality of care," provides --

(h) Accidents. The facility must ensure that --

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

The survey report documented the surveyor's findings as follows --

Based on observation, record review, and staff interviews, the facility failed to provide supervision while toileting a resident (R8) ⁽³⁾ resulting in a fall and fractured hip . . .

R8 is an 86 year old individual with diagnoses (from March, 2002 Physician's Order Sheets) of: Bundle Branch Block, Alzheimer's Dementia, Right Displaced Femoral Head Fracture, Fractured Right hip, and Urinary Tract Infection. R8's MDS (Minimum Data Set) dated 10/12/01 assessed her as needing extensive assistance of 2 or more staff for transfers, ambulation, locomotion, dressing, eating, toilet use, personal hygiene and bathing. The test for balance stated she was unable to test her balance while standing without physical help.

R8's record revealed three falls since October 2001. On 10/12/01 at 11:20 AM, ⁽⁴⁾ R8 slid out of her wheelchair while sitting in the TV Lounge area. There were no apparent injuries from this fall. Per review, the facility's investigation listed new measures to avoid further falls, "Continue to place guest in observable area & use body alarm."

On 11/9/01 at 10:50 AM, R8 was found on the floor of the TV room. R8 had both hips x-rayed after this fall and no injuries were noted following the fall. The facility's fall investigation listed new measures to avoid falls, "keep body alarm in place at all times, make frequent rounds . . . when up in [wheelchair], keep where staff can monitor." There was no mention if the body alarm was on or functioning at the time of this fall.

On 12/29/01 at 9:40 AM, R8 fell in the bathroom. The nurse's assessment stated she found R8 lying on her left side with a 3 cm. hematoma to left forehead. R8's physician was notified and x-rays ordered. X-ray revealed a fractured left femoral neck. R8 was sent to a local acute care hospital for treatment of her fractured left hip.

E3 ⁽⁵⁾ the CNA who was providing care for R8 on 12/29/01, was interviewed by phone on 3/7/02 at 12:10 PM. She stated that she and another CNA ⁽⁶⁾ were taking residents to the bathrooms in the big shower room. She stated she had R8 on the toilet and left R8 to assist the other CNA to transfer another resident off the toilet and back into a wheelchair. She stated they heard a loud noise and found R8 on the floor, next to the commode. E3 stated she had left R8 on the toilet for approximately 5 minutes, but only left R8 unattended for approximately one minute to assist the other CNA with a transfer. When E3 was asked if she could see R8 while she assisted the other CNA with a transfer, she replied no. When E3 was asked if that was the usual routine for toileting the residents on the 100 hallway, she replied, "Yes, we toilet 2 or 3 residents at one time."

CMS Ex. 1, at 1 - 2.

Petitioner disputes CMS's contention that Resident 8 was left alone or unsupervised when she experienced a fall in the bathroom on December 29, 2001. Petitioner alleges that there were two CNAs in the bathroom assisting Resident 8. P. Br. at 3, 4. According to Petitioner, Resident 8 had been toileted without incident approximately 1000 times in the six months she had been at the facility, and was capable of indicating when she needed to toilet and when she was done toileting. P. Br. at 4, 6; P. Exs. 4, 5, at 1 - 2. Petitioner described the bathroom where Resident 8 was being toileted as being a bathing suite "approximately 21 feet by 24 feet . . . the entrance was approximately 6 feet wide and the common area is 8 feet wide. The side rooms have doors but the main showers do not and the toilets are not surrounded by a stall." P. Ex. 5, at 2; see P. Ex. 3.

Petitioner argues that two CNAs provided toileting assistance to Resident 8. However, it was not required that they stand beside the resident at all times. In fact, asserts Petitioner, in this case the nurses moved away from the resident during toileting in order to give her privacy and preserve her right to dignity. P. Br. at 5. I note that Petitioner argues that CMS's assertion (as reflected at CMS Ex. 20, the Declaration of Martha A. Green ⁽⁷⁾) that nurses should be concerned with a resident's right to dignity, creates a genuine issue of material fact in this case. P. Br. at 4 - 5. I disagree. Striking the proper balance between resident supervision and privacy is a legal matter for me to consider. Moreover, as will be discussed below, these two requirements of care are not in contention here.

The pertinent facts in this case are not in dispute. From the preceding recital in the statement of deficiencies, contentions of the parties, and affidavits, ⁽⁸⁾ the following facts are uncontroverted:

�Resident 8 was admitted to Petitioner's facility on March 29, 2001, with diagnoses of Alzheimer's disease, bundle branch block, entertrochateric fem fx, and allergies. CMS Ex. 9, at 1.

�Resident 8 was identified as being at risk for falls. CMS Ex. 9, at 4. Resident 8's plan of care described her as confused, seldom responsive to verbal stimuli, capable of responding at times with a yes or no answer to simple requests, and keeping her eyes shut most of the time. CMS Ex. 10, at 3. Resident 8 is described in her minimum data set (MDS) assessment dated January 8, 2002, as having unsteady balance while sitting. CMS Ex. 12, at 4. Further, Resident 8's MDSs dated October 10, 2001 and January 8, 2002, reflect that Resident 8 required extensive to total assistance with all activities of daily living, and that she was completely dependent on staff for toilet use, including transfers on and off the toilet. She required two or more staff to assist her during toileting. ⁽⁹⁾ CMS Ex. 11, at 2, 3; CMS Ex. 12, at 3.

�On October 12, 2001, Resident 8 slid out of her wheelchair while sitting in the television room. CMS Ex. 13.

�On November 9, 2001, Resident 8 was found on the floor of the television room. CMS Ex. 14.

�On December 29, 2001, Ms. Michl was providing toileting care to Resident 8 in what is known as the "main" bathroom ⁽¹⁰⁾ which Petitioner has described as a 21 by 24 foot suite, with a six foot entrance, an eight foot wide common area, and open stalls. On the date noted above, there were two CNAs providing toileting care in this bathroom. Ms. Michl was assisting Resident 8, and employee number 6, Ms. Guess, ⁽¹¹⁾ was assisting another resident. At approximately 9:40 a.m., after Resident 8 had been on the commode for about five minutes, Ms. Michl left Resident 8 to assist Ms. Guess with the transfer of another resident. Ms. Michl had been in the process of assisting Ms. Guess transfer the other resident off the commode for about one minute when they heard a "big crash." CMS Ex. 15, at 4. They rushed to where Ms. Michl had left Resident 8 and found her lying on the floor beside the commode. They called a nurse (Debbie Roseman, L.P.N.), who noted a 3cm. hematoma to the left side of Resident 8's forehead and prepared the incident report. CMS Exs. 1, at 2; 15, at 1, 4; P. Ex. 4.

�Resident 8 was transported to the hospital and diagnosed with a fracture of the femoral neck (left hip fracture). CMS Ex. 15, at 1.

The regulation at 42 C.F.R. � 483.25(h)(2) requires that a facility ensure that each resident receives adequate supervision and assistance devices to prevent accidents. I must, therefore, determine whether the facility did everything in its power to prevent accidents. Coquina Center, DAB No. 1860, at 11 (2002). Comprehensive resident assessments and comprehensive care plans are instrumental to the facility in the exercise of its duty to provide adequate assistance and supervision to its residents in order to prevent accidents. 42 C.F.R � 483.20. These instruments assist the facility in determining the residents' physical and psychosocial needs. Consistent with Petitioner's assessment of Resident 8, and as a result of the resident's multiple medical conditions, the facility noted that Resident 8 had compromised long and short term memory, bowel and bladder incontinence, potential for falls, and potential for side effects from psychotropic medications. CMS Ex. 9. The facility found the resident to be so compromised, both physically and mentally, that it assessed her as totally dependent on staff for all activities of daily living. This assessment included the need for a two or more person assist when toileting. CMS Ex. 12, at 3.

In spite of all the precautions called for with respect to Resident 8, she experienced three incidents, between October 2001 and the end of December 2001, that placed her at risk for injury. On October 12, 2001, Resident 8 slid out of her chair while sitting in the television room. The "Fall Investigation" report reflected that the resident had a history of falls, and that she was not interviewable for purposes of eliciting information from her concerning the incident. To avoid additional falls, the facility determined to place the resident in an area where she could be observed and also applied a body alarm. CMS Ex. 13. These measures did not prevent Resident 8 from experiencing another fall on November 9, 2001. Although the facility had determined to maintain the resident under close observation and had her wear a body alarm, she attempted to transfer herself due to her very confused state. No change to the care plan was undertaken, and the facility continued the use of the body alarm and determined to make frequent rounds to check on the resident. CMS Ex. 14.

It is against the backdrop of these preceding events that Resident 8's fall of December 29, 2001, took place. Contrary to the provision in the care plan for a two or more person assist during toileting, the facility only had one person assist the resident on that occasion. Petitioner alleges that Resident 8 was not unattended when she fell from the commode on December 29, 2001, because the two CNAs (Ms. Michl and Ms. Guess) were in the shower room and less than 10 feet away at the time of the incident. P. Ex. 4, at 1. While it is true that two CNAs were in the shower room when Resident 8 was being toileted, it is not true that the two CNAs were providing care to Resident 8. The credible evidence of record reflects that although there were two CNAs in the shower room at the time, only one was available to assist Resident 8 (Ms. Michl) while the other (Ms. Guess) assisted a different resident. Thus, since simultaneous care was being provided to two residents, it behooved the facility to have sufficient staff available to assist these residents in keeping with their care plans. As has been stated earlier, Resident 8 required two or more persons to assist with toileting. Inasmuch as Ms. Guess could not transfer the resident she was assisting without help, I infer that the other resident required at least a two person assist for transfer. It is evident, then, that the care being provided to the two residents in the main bathroom on December 29, 2001, required the presence of no less than four persons.

To make matters worse, Ms. Michl left Resident 8 alone to assist Ms. Guess in the transfer of another resident. Inasmuch as no one was attending to Resident 8 while Ms. Michl helped Ms. Guess with a transfer, I can conceive of no way to express what occurred other than to say that the resident was left unattended. Moreover, Resident 8's recent history of falls, unsteady balance, confused state, and the need to be under observation when seated, should have alerted Petitioner that she was a potential risk of falls if left unattended on the commode. Pertinent to this is the admission of Ms. Michl that she could not observe Resident 8 while she assisted the other CNA. CMS Ex. 1, at 2. I, therefore, find that Petitioner did not do everything in its power to prevent an accident. Additionally, the potential consequences of leaving Resident 8 unattended were foreseeable.

Petitioner argues that the facility properly balanced the requirements of allowing Resident 8 to have privacy while toileting and providing adequate supervision. P. Br. at 4. This argument is poorly concocted in the aftermath. When Ms. Michl left Resident 8 unattended, it is evident that this alleged equilibrium of "competing requirements" (Id.) was not governing her actions. What drove Ms. Michl away from Resident 8 was not the desire to provide Resident 8 with privacy, but, rather, to give assistance to another CNA who could not transfer a resident without help. Even acknowledging that privacy may be a legitimate concern for residents of long-term care facilities when toileting, Petitioner itself had determined that at least two facility staff members had to be present to provide toileting care to Resident 8, and to remain in close enough proximity to be able to give immediate succor so as to prevent an accident. In fact, I agree with the following statement by Ms. Green:

Based on my training and experience, a resident with R-8's diagnoses and history of falls should not be left alone while on the toilet. Standard nursing practice required that the CNA stay within sight of R-8 until R-8 was done toileting. In addition, although nurses should be concerned with a resident's right to dignity and privacy, privacy concerns do not require a nurse to leave a resident, who is totally dependent on staff for toilet use, alone to use the toilet.

CMS Ex. 20, at 3.

In view of the foregoing discussion, I find that CMS has established a prima facie case that Petitioner failed to provide Resident 8 with adequate supervision and assistance devices to prevent accidents, and that such conduct resulted in actual harm to Resident 8. Petitioner has not come forward with persuasive evidence to overcome CMS's showing.

b. A basis exists to impose remedies against Petitioner for deficiencies that are at the less than immediate jeopardy level of noncompliance.

CMS satisfied the criteria for imposing remedies at the less than immediate jeopardy level. First, CMS established a prima facie case, which Petitioner did not rebut, that as of March 8, 2002, it was not complying substantially with the participation requirement at 42 C.F.R. � 483.25(h)(2). Indeed, there is not only a prima facie case of noncompliance present here, but the preponderance of the evidence is that Petitioner was not complying substantially with this requirement. Second, Petitioner did not show it had eliminated the noncompliance on any date prior to April 12, 2002. Thus, I find that CMS may impose a CMP in the range of from $50 to $3,000 per day beginning March 8, 2002, and continuing through April 11, 2002.

3. The amount of the penalty imposed by CMS is reasonable.

CMS imposed a $200 per day CMP for the period from March 8, 2002 through April 11, 2002. I sustain the penalty imposed. A penalty of $200 per day falls in the lower range of penalties which may be imposed for deficiencies that are at the less than immediate

jeopardy level of noncompliance. 42 C.F.R. � 488.438(a)(ii). The beginning date of the penalty is the date that CMS first determined Petitioner not to be complying substantially with participation requirements. 42 C.F.R. � 488.440(a).

CMS asserts that the CMP imposed is reasonable in light of the following factors specified in 42 C.F.R. � 488.438(f) (CMS Br. at 15 - 21):

�The facility's history of noncompliance.

During a prior survey conducted on March 31, 2000, the facility was found out of compliance with 10 deficiencies at a scope and severity level of "D" or above, two of which were cited at a severity level of "G." Additionally, the facility had been cited for noncompliance in four complaint surveys conducted during the two years preceding the March 2002 survey. CMS Ex. 18.

�The facility's financial condition supports the reasonableness of the CMP.

The CMP, totaling $7,000, is not so large that it would put the facility out of business. According to a cost report prepared by the Illinois Department of Public Aid covering fiscal year 2000, the facility had an adjusted net profit of $795,568. CMS Ex. 19, at 1. CMS also alleges that Petitioner has offered no evidence concerning its ability to pay the CMP imposed.

�The seriousness of the deficiency and the facility's culpability support the reasonableness of the CMP.

Resident 8 suffered serious injury due to the facility's neglect in providing her care during toileting. The facility was aware of the resident's history of falls, her difficulty in maintaining balance, and her total dependence on staff for toilet use. Nonetheless, the CNA providing toileting assistance to Resident 8 left her unattended while she assisted with the transfer of another resident.

Petitioner does not dispute the existence of the factors that support the CMP imposed in this case, with the exception that it wants to contest the December 11, 2001 level "G" deficiency citation as it relates to Petitioner's history of noncompliance. However, even if I discount as a factor the "G" level deficiency found at the December 11, 2001 survey, I find that the other factors identified fully support the amount of the CMP assessed against Petitioner, which is at the lower end of the lower range of per day CMPs permitted.

IV. Conclusion

I conclude that CMS correctly determined that, beginning March 8, 2002, and continuing through April 11, 2002, Petitioner was not complying with federal requirements governing participation of long-term care facilities in the Medicare and Medicaid programs at the less than immediate jeopardy level, and that the imposition of a CMP of $200 per day is reasonable.

José A. Anglada

Administrative Law Judge

1. Petitioner's argument with regard to consideration of the December 2001 survey results is that, because it was cited with a "G" level deficiency in December 2001, it was not given the opportunity to correct the "G" level deficiency cited in this case prior to the CMP being imposed. Petitioner's Memorandum of Law in Support of Petitioner's Response to Motion for Summary Judgment at 1 - 2, 9 - 10. However, the fact that CMS considered Petitioner's history of noncompliance to determine the amount of the CMP imposed does not entitle Petitioner to contest findings from a prior survey that were not the basis for the CMP imposed in this case. See Moran Manor, DAB CR824 (2001). Moreover, as discussed at Finding 3, below, I do not need to rely on Petitioner's noncompliance in December 2001 to sustain the CMP here.

2. In this regard, it is important to distinguish between facts and conclusions. Conclusions and legal arguments do not establish material facts in dispute.

3. I refer to this resident as Resident 8.

4. According to Martha A. Green, a Health Care Facilities Surveillance Nurse with the Illinois Department of Public Health (CMS Ex. 20, at 1), a State surveyor who surveyed Petitioner during this survey, this time is inaccurate. The survey report should have reflected the incident occurred at 11:10 AM. CMS Ex. 20, at 2; see CMS Ex. 13, at 1.

5. E3 is CNA Courtney Michl. CMS Ex. 17; CMS Ex. 15, at 4; P. Ex. 4.

6. This CNA is CNA Chris Guess. CMS Ex. 15, at 4; P. Ex. 4.

7. Petitioner incorrectly refers to this document as P. Ex. 20. See P. Br. at 5.

8. P. Exs. 4, 5; CMS Ex. 20.

9. Petitioner alleges that Resident 8 was able to indicate when she needed to toilet and when she was done toileting. P. Br. at 4. As support for this allegation, Petitioner relies on CMS Ex. 9, at 4; CMS Ex. 10, at 3; and P. Exs. 4 and 5. Id. After reading these references, I could not find support for the allegation. To the contrary, I note that nursing notes documented that Resident 8 was unable to make her needs known. CMS Ex. 16, at 2, 4. Thus the affidavits of Debbie Roseman, LPN, and Petitioner's Director of Nursing, Sherry Oettle, (P. Exs. 3 and 4) have no contemporaneous record support documenting that Resident 8 had the ability to indicate when she needed to toilet and when she was done toileting. However, although Petitioner might argue that the affidavits' assertions that Resident 8 had the ability to indicate when she needed to toilet and when she was done raise a material issue of fact in this case, I would not agree. Even if I were to find that Resident 8 could so indicate, I would still find Petitioner to be out of compliance with this participation requirement for the reasons discussed below.

10. Also referred to as the big shower room. CMS Ex. 1, at 2.

11. The Employee Identity Key submitted by CMS (Ex. 17) did not include the name Chris Guess, the employee with whom Ms. Michl shared duties in the main bathroom on December 29, 2001, the date Resident 8 fell off the commode.