SUBJECT:

Florence Park Care Center,

Petitioner,

Centers for Medicare & Medicaid

DECISION

I find that Petitioner, Florence Park Care Center, failed to comply substantially with Medicare participation requirements during a period that ran from April 8 through May 19, 2002. I find further that Petitioner's noncompliance was at the immediate jeopardy level from April 8 through April 14, 2002. Based on these findings, I conclude that the Centers for Medicare & Medicaid Services (CMS) may impose the following remedies against Petitioner:

� civil money penalties of $3,050 per day for each day of the April 8 - 14, 2002 period; ⁽¹⁾

� civil money penalties of $100 per day for each day of the April 15 - May 19, 2002 period;

� denial of payment for new Medicare admissions for each day of a period that ran from April 27, 2002 through May 19, 2002.

I. Background

Petitioner is a skilled nursing facility that is located in Florence, Kentucky. It participates in the Medicare program. Its participation is governed by sections 1819 and 1866 of the Social Security Act and by federal regulations at 42 C.F.R. Parts 483 and 488.

Petitioner was surveyed for compliance with federal participation requirements in a survey that ended on April 8, 2002 (April 8 survey). The surveyors determined that Petitioner was not complying substantially with all requirements and, in one respect, they found that Petitioner's noncompliance was so egregious as to place residents of Petitioner's facility at immediate jeopardy. Petitioner was subsequently found to have abated the alleged immediate jeopardy level deficiency effective April 14, 2002 and to have attained substantial compliance with participation requirements effective May 19, 2002. Based on these findings, CMS determined to impose remedies consisting of: civil money penalties of $10,000 per day for each day of the period running from April 8 through April 14, 2002; civil money penalties of $100 per day for each day of the period running from April 15 through May 19, 2002; and denial of payment for new Medicare admissions for each day of the period running from April 27 through May 19, 2002.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held an in-person hearing in Lexington, Kentucky, on May 29, 2003. At the hearing I received the cross-examination and redirect testimony of several witnesses (the parties having supplied the written direct testimony of their proposed witnesses in advance of the hearing). I also received written exhibits from CMS consisting of CMS Exs. 1 - 11 and 13 and from Petitioner consisting of P. Exs. 1 - 38. Each party submitted a pre- and a post-hearing brief.

II. Issues, findings of fact and conclusions of law

A. Issues

The report of the April 8 survey alleges that Petitioner failed to comply substantially with several Medicare participation requirements. CMS Ex. 3, at 3 - 18. The allegations of noncompliance include an allegation that Petitioner was noncompliant with a participation requirement to the extent that residents of Petitioner were placed at immediate jeopardy. This allegation of an immediate jeopardy level deficiency is made at Tag 324 of the report of the April 8 survey. Id., at 13 - 18. Allegedly, Petitioner contravened the requirements of 42 C.F.R. � 483.25(h)(2), because it failed to assure that each of its residents receive adequate supervision and assistance devices to prevent accidents. Petitioner challenged only this deficiency finding and not the other, non-immediate jeopardy level findings.

The issues in this case are as follows:

1. Did Petitioner fail to comply substantially with the requirements of 42 C.F.R. � 483.25(h)(2)?

2. If Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(h)(2) was CMS's determination that Petitioner's noncompliance placed residents at immediate jeopardy clearly erroneous?

3. If Petitioner was deficient at the immediate jeopardy level, did that deficiency persist through April 14, 2002?

4. If Petitioner was deficient at the immediate jeopardy level, what civil money penalty amounts are reasonable?

5. What civil money penalty amounts are reasonable as remedies for the non-immediate jeopardy level deficiencies that were manifested by Petitioner?

6. May CMS impose denial of payment for new Medicare admissions against Petitioner?

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 as a separate heading. I discuss each Finding in detail.

1. Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(h)(2).

CMS offered the following evidence to support its assertion that Petitioner failed to provide adequate supervision and assistance devices to prevent accidents:

� A resident, who is identified in the report of the April 8 survey as Resident # 2, was profoundly disabled and at great risk for sustaining injuries due to falls. The resident had been hospitalized for fall-related injuries prior to his admission to Petitioner's facility. CMS Ex. 3, at 13. His disabilities, which put him at risk for additional falls, included dementia, a seizure disorder, and severe contractures of his extremities. Id., at 13.

� Resident # 2 fell while residing at Petitioner's facility. On February 13, 2002, the resident sustained a fall from a geri-chair. CMS Ex. 3, at 13. Petitioner's staff knew that Resident # 2 was unable to sit upright in a chair and had to be placed in a reclining position or he would fall forward. Id.

� Petitioner's staff had addressed the resident's risk for falling in the resident's plan of care. A care plan for the resident dated March 4, 2002 stated that the staff should: "be extra careful with all transfers and positioning relative to contractures." CMS Ex. 3, at 14.

� Normally, two persons would transfer Resident # 2 from his bed to a shower and assist with the bathing process. CMS Ex. 3, at 13. Petitioner's staff normally showered Resident # 2 in a reclining shower chair. Id. However, on March 12, 2002, the reclining shower chair was being repaired. Id. On that date, Petitioner's staff decided to shower the resident in an upright shower chair with a seatbelt for stability and support. Id. The staff seated the resident upright in the chair and secured the resident to the chair with the seatbelt.

� After showering the resident on March 12, 2002, in the upright chair, a nursing assistant rolled the resident to the entrance of the facility's shower stall and dried the resident off. CMS Ex. 3, at 13. The assistant unfastened the resident's seatbelt in preparation for transferring the resident to a geri-chair. The assistant then noted that the padding on the geri-chair, which was three to five feet away from the resident, was unfolded. Id. The assistant turned her back on the resident to arrange the pad. Id. As the assistant did so, Resident # 2 coughed and fell to the floor. Id.

� After the fall the resident was transported to a hospital where he died. CMS Ex. 3, at 12. After an autopsy a physician concluded that Resident # 2 died: "Due to neurogenic shock, due to fracture of odontoid process [a fractured neck], due to fall." CMS Ex. 7, at 2 - 3.

� A second resident, who is identified in the report of the April 8 survey as Resident # 1, was also profoundly disabled and at a great risk for sustaining injuries due to falls. The resident suffered from Alzheimer's dementia and organic brain syndrome. CMS Ex. 3, at 14. On January 23, 2002, the resident fell while residing at Petitioner's facility, sustaining a broken hip. Id.; CMS Ex. 10, at 8. The resident also fell in November 2001, February 2002, and March 2002 while residing at Petitioner's facility. CMS Ex. 10, at 2, 4, 6, 8, 10.

� Some of the falls sustained by Resident # 1 occurred while the resident was unattended in her room. CMS Ex. 8, at 20, 55, 58 - 59, 61.

� Petitioner's staff attempted to place an alarm in Resident # 1's bed to alert the staff about attempts by the resident to leave her bed. However, the staff discontinued this effort in February 2002 when the resident was found with the alarm cord wrapped around her neck. CMS Ex. 3, at 15; CMS Ex. 10, at 5.

� On February 20, 2002, Petitioner's staff decided to obtain a different bed sensor alarm for the resident which would not expose the resident to hazards associated with the first alarm's cord. CMS Ex. 10, at 5. It was decided that, pending arrival of the new alarm, the wheels would be taken off of Resident # 1's bed and pads would be placed on the floor adjacent to the bed. Id.

� On April 6, 2002, the resident was observed at 10:00 and 11:25 a.m. to be lying in bed on her back. CMS Ex. 3, at 16. One side rail was observed to be up and the other was observed to be down. Id. Pads were stored in the resident's room but were not on the floor next to the side of the bed on which the bed rail was down. Id.

� On March 27, 2002, Petitioner's staff decided to put dycem on the seat of Resident # 1's wheelchair to prevent the resident from falling from the chair. CMS Ex. 3, at 16. Dycem is a material that is designed to increase friction and thereby to prevent an individual from sliding while seated.

� The resident was observed to be in her wheelchair on April 6, at 12:18 p.m., 12:55 p.m., and at 2:35 p.m., but no dycem was present in the resident's chair. CMS Ex. 3, at 16. During an interview, the nurse responsible for Petitioner's falls program admitted that she was unaware that the resident had not received dycem for her wheelchair seat. Id. She told the surveyor that she had told the unit manager to obtain the material and place it in the resident's chair but that she had not followed up to determine whether this instruction had been carried out. Id.

� A third resident, who is identified in the report of the April 8 survey as Resident # 3, was a high risk for sustaining falls. Resident # 3 fell from his wheelchair in December 2001 and from his bed on March 27, 2002. CMS Ex. 9, at 4. The resident suffered from dementia, impaired vision and hearing, and Petitioner's staff had assessed the resident as being a fall risk. CMS Ex. 3, at 16 - 17.

� Petitioner's staff determined that the resident should wear a body alarm while up and in bed in order to protect the resident against the risk of falling. CMS Ex. 3, at 17.

� The resident was observed by a surveyor on the afternoon of April 6, 2002. The resident was observed to be in a wheelchair in which he ambulated through Petitioner's locked Alzheimer's wing. CMS Ex. 3, at 17. The resident was not wearing a body alarm despite having been ordered to wear one. Id.

� The nurse responsible for Petitioner's falls program admitted that the resident's bed alarm had not sounded when the resident fell from his bed on March 27, 2002. CMS Ex. 3, at 17. The nurse averred that, prior to March 27, 2002, Petitioner's staff had not had a plan in place to check the batteries of alarms or to assure that the alarms actually worked. Id. As of the date of the survey the nurse was working on a system to assure that batteries were routinely checked. However, the system had not been implemented as of the date of the survey. Id., at 17 - 18.

Petitioner attacks this evidence on several fronts. First, Petitioner contends that the evidence offered by CMS is unreliable. According to Petitioner, much of the evidence is unreliable hearsay. Or, according to Petitioner, it consists of unverified and inaccurate observations by surveyors. Petitioner's post-hearing brief, at 2 - 4. Second, Petitioner asserts that many of the findings made in the survey report are ambiguous or are not credible for specific reasons. Finally, Petitioner asserts that, even if CMS's evidence is reliable, it establishes at most some disconnected and unrelated episodes which do not establish a systemic failure by Petitioner to provide adequate supervision and assistance devices to its residents. Id., at 4 - 11.

I find these arguments to be unpersuasive.

Much of Petitioner's attack on the credibility of CMS's evidence focuses on the declaration of Ms. Tamar L. Greenly, R.N., a program manager for nursing home licensure and certification in the Lexington Region of the Kentucky Cabinet for Health Services. CMS Ex. 11. CMS submitted Ms. Greenly's affidavit to support its case and the witness was cross-examined at the in-person hearing. Transcripts at 12 - 69. Petitioner argues that Ms. Greenly's testimony consists of her opinion of the findings that the surveyors made at the April 8 survey. Ms. Greenly was not present at the April 8 survey, made no observations of Petitioner's operations, and thus, has no first-hand knowledge of the conditions that prevailed at Petitioner's facility as of the dates of the survey. Petitioner dismisses Ms. Greenly's declaration as consisting largely of unreliable hearsay.

I agree with Petitioner that Ms. Greenly's declaration does not provide prima facie evidence of what conditions pertained at Petitioner's facility as of the dates of the April 8 survey. As Petitioner rightly points out, Ms. Greenly was not at the survey and made no first-hand observations. Her conclusions are based exclusively on her review of the evidence that the surveyors obtained plus her background, knowledge, and expertise as a registered nurse. Petitioner would have had a legitimate argument that CMS's case was without evidentiary foundation had CMS offered only Ms. Greenly's declaration as support for its contentions.

But, in fact, CMS based its fact allegations on direct surveyor observations and Petitioner's resident records. This evidence, which CMS offered as exhibits, is direct evidence of the conditions that prevailed at Petitioner's facility as of the April 8 survey. In my discussion of the evidence, above, I cite to those documents that CMS relied on to present a prima facie case. None of my citations are to Ms. Greenly's declaration or to her testimony at the hearing. All of them are to the report of the survey or to supporting documents obtained at the survey and offered as evidence by CMS.

Petitioner also attacks generally the survey report as containing hearsay. It is true that the survey report contains hearsay either in the form of surveyor observations or as statements that were made by Petitioner's employees to a surveyor. See CMS Ex. 3. But, I find this hearsay to be reliable in the narrow context of the evidence that was offered in this case

In other cases I have found that hearsay evidence, while admissible in these proceedings, is not reliable. My rulings in these cases focused on the inherent lack of credibility of the declarants (for example, anonymous residents, or residents whose records revealed dementia) or on the inability of the party against whom the hearsay was offered to test the credibility of the declarants' statements. But, these are not problems with the statements that were contained in the report of the April 8 survey. The hearsay statements in this report are the surveyors' personal observations plus the admissions that are attributed to Petitioner's staff. I find these statements to be more credible on their face than the types of statements that I have found not to be reliable in other cases. Some of them are admissions that would be allowed into evidence under the Federal Rules of Evidence. Others are observations made by a trained surveyor. In any event, Petitioner had an opportunity to test the credibility of the declarants whose hearsay is contained in the April 8 survey report. Petitioner could have asked that I subpoena either the surveyor or the staff members whose admissions are contained in the report. It did not do so.

Petitioner's specific attacks on CMS's evidence also are unpersuasive. Petitioner asserts, for example, that CMS's evidence is suspect because it is unclear whether the "documents submitted by CMS for this hearing were the entirety of the survey agency's records on this matter. . . ." Petitioner's post-hearing brief at 2. But, CMS was under no obligation to submit as evidence "the entirety" of the survey agency's records. And, the possibility that it may not have offered everything does not by itself detract from the credibility of what it offered. Petitioner could have asked me to subpoena any records that it suspected might not have been offered and it could have offered those possible additional records into evidence if it believed that they undercut the credibility of what CMS offered. But, Petitioner did not do so.

Petitioner also questions whether surveyors looked at any residents other than those referenced at Tag 324 of the April 8 survey report. Petitioner's post-hearing brief at 2. Evidently, Petitioner would have me draw the inference that a failure to look at more residents than those whose cases are cited in the survey report undercuts the credibility of the findings that the report makes about those residents who were observed. I find this argument not to be persuasive. The facts adduced about those residents whose cases are cited in the survey report speak for themselves. Petitioner could have offered evidence concerning the care that it gave to other residents if it wanted to show that the examples cited in the report and relied on by CMS were aberrations.

As another example Petitioner argues that the survey report at several places cites to an interview with an individual named "Peggy" and who is not otherwise identified. Petitioner's post-hearing brief at 3. Petitioner suggests that this alleged failure to identify "Peggy" calls into question the accuracy and credibility of the survey report. In fact, there are no references to "Peggy" anywhere in the report's discussion under Tag 324. The report does refer to statements by individuals who are not identified by name but who are identified by job title or description. As one example, the report relates an interview that was had with "the nurse responsible for the falls program . . . ." CMS Ex. 3, at 15. Petitioner has not alleged that it was unable to determine the identity of this individual from the description in the report. Of course, Petitioner could have offered the testimony of this individual if it believed that such testimony would negate or undercut the statements that are attributed in the report. It did not do so.

In another line of attack Petitioner asserts that the observations that were made of Resident # 1's bed were not sufficiently clear to show that the resident was put at risk by Petitioner's failure to put padding on the floor by the bed. Petitioner's post-hearing brief at 3. Petitioner asserts, as an example, that the report fails to describe which rail was up and which rail was down on the occasions when a surveyor observed the resident in bed without padding on the floor. Petitioner's post-hearing brief at 3. Petitioner also questions the failure of the report to discuss whether the resident's bed was placed against a wall. Id.

The inference that Petitioner would have me draw from these asserted omissions in the survey report is that the finding that Petitioner failed to pad the floor area around Resident # 1's bed is not meaningful evidence that Petitioner failed adequately to supervise or to provide assistance devices to the resident. I do not find Petitioner's reasoning to be persuasive. Petitioner's decision to pad the floor adjacent to the resident's bed did not depend on whether both side rails were up or down or whether the bed was moved against the wall. See CMS Ex. 10, at 5. The resident had sustained falls from her bed previously and Petitioner's staff recognized that there was a generalized need to protect the resident from such falls. Petitioner's staff decided that the way to address the fall risk was to place mats around the resident's bed. There is nothing in the documentation of that action which suggests that mats would be in place only when side rails were down. I note that Petitioner could have offered affirmative evidence to show that the resident's risk of being injured from a fall to an unpadded floor was reduced by raised side rails (or a rail) or by placement of the bed. It did not do so.

I am also not persuaded by Petitioner's assertions that the events that were described in the survey report are merely isolated errors or understandable oversights which do not describe an overall pattern of failure by Petitioner to provide adequate supervision and assistance devices to its residents. The inference that I draw from the events described in the survey report is that Petitioner was lax overall in assuring that common sense safety related plans were executed consistently by its staff.

There is a common thread that runs through the facts of this case and which is demonstrated by CMS's prima facie evidence. Residents #s 1, 2, and 3 all had disabilities or afflictions that made them prone to falling and vulnerable to injuries from falls. Petitioner was aware of each resident's problems. Its staff planned interventions that were designed to address these problems. However, the interventions were not carried out, thereby putting the resident at risk. Moreover, Petitioner's staff failed to execute on plans which were intended to protect the entire resident population and not just Residents #s 1, 2, and 3. Thus, Petitioner's staff understood the need to check the batteries of safety alarms but failed to implement a plan to do so. It is this failure to execute interventions which were specifically designed to benefit individuals or to benefit the resident population in general which, in my judgment, occurred with sufficient frequency to establish a prima facie case that Petitioner had systemic difficulties complying with the requirements of 42 C.F.R. � 483.25(h)(2).

The harm that these oversights and omissions caused Petitioner's residents is palpable. These residents were individuals who were extraordinarily vulnerable to accidental injuries. They were unable to protect themselves against falling and the serious consequences which could include, and in one instance did include, death. Petitioner had a duty to do all that it could to assure that these residents were protected from known and obvious risks. There were measures that Petitioner's staff knew could be undertaken that would have provided reasonable protection. Yet, there was a failure of execution that led to these residents being put at immediate jeopardy.

Petitioner did not offer any affirmative proof to contradict or rebut CMS's prima facie case of noncompliance with the regulation. It made no attempt to prove that the instances of noncompliance in the survey report were isolated instances or aberrations. Nor did it offer any affirmative proof to show that the specific instances of noncompliance cited in the survey report were described incorrectly or incompletely. It did not offer, for example, any evidence to refute CMS's evidence showing that Resident # 2 fell under the circumstances that are described in the survey report. It did not offer affirmative evidence that the floor around Resident # 1's bed was padded. Nor did it prove that, in fact, it had a program in place to assure that alarms and other battery operated safety-related devices were operational.

2. CMS's determination that Petitioner's failure to comply with the requirements of 42 C.F.R. � 483.25(h)(2) placed residents at immediate jeopardy is not clearly erroneous.

Regulations define "immediate jeopardy" to be:

a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

42 C.F.R. � 488.301. In the instance where CMS determines that a facility's failure to comply substantially with a participation requirements is so egregious as to pose immediate jeopardy for residents it is the facility's burden to prove that the determination is clearly erroneous.

Petitioner did not prove to be clearly erroneous CMS's determination that its failure to provide necessary supervision and assistance devices to residents placed residents at immediate jeopardy. The facts established by CMS in its prima facie case easily lead to the conclusion that noncompliance caused, or were likely to cause, serious injury, harm, impairment, or death to residents of Petitioner's facility. These facts show that Petitioner's failure appropriately to supervise Resident # 2 contributed to that resident's death. Other residents, who were at grave risk for falling, were put in predicaments where the consequences of falls were much more likely to be serious injuries than had Petitioner taken the precautions that its staff recognized to be necessary.

Petitioner's argument against CMS's immediate jeopardy determination essentially is that injuries, and especially serious injuries or death, were not the reasonably foreseeable consequences of falls that occurred in its facility. It characterizes its failure to protect against falls as a garden variety deficiency and it argues that there is no logical reason to presuppose that its omissions put residents in immediate jeopardy. Petitioner's post-hearing brief at 13.

This argument fails to address the evidence that is of record here. The evidence in this case is sufficient to infer that more than a garden variety deficiency was at issue. In this case a fall did result in the death of a resident under circumstances where closer supervision would have prevented that fall. The evidence also shows that other residents, such as Resident # 1, who had a history of sustaining severe injuries from falls, were put at risk for further injuries by Petitioner's failure to execute the precautionary measures that its staff had determined to be necessary.

3. Immediate jeopardy persisted at Petitioner's facility through April 14, 2002.

Petitioner argues that it corrected any immediate jeopardy level deficiency that it arguably manifested prior to the April 8 survey and, therefore, there was no period of days when Petitioner was deficient at the immediate jeopardy level. As support for this argument Petitioner avers that it addressed the circumstances that caused the death of Resident # 2 when they happened on March 12, 2002.

But, even assuming that this assertion is true, it begs the question of the other omissions and failures to provide necessary supervision and assistance devices that were observed at the April 8 survey. For example, Petitioner has not proven that it addressed prior to April 14, 2002, its failure to have a system in place to assure that battery operated devices operated correctly.

4. Civil money penalties of $3,050 per day are reasonable as remedies for Petitioner's immediate jeopardy level deficiency.

I find that civil money penalties of $3,050 per day for each day of the period beginning on April 8, 2002 and running through April 14, 2002 are reasonable remedies for Petitioner's immediate jeopardy level deficiency. I find to be unreasonable the $10,000 per day civil money penalties that CMS determined to impose against Petitioner for this same period.

Regulations provide that daily civil money penalties for deficiencies that fall within the immediate jeopardy level category of deficiencies may range in amounts from $3,050 to $10,000 per day. 42 C.F.R. � 488.438(a)(1)(i). The factors for deciding what amount within that range is reasonable are set forth at 42 C.F.R. �� 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. � 488.438(f)(3)). These factors include: the seriousness of the deficiency or deficiencies; a facility's past compliance history; its financial condition; and its culpability for the deficiency or deficiencies.

CMS contends that its determination of $10,000 per day civil money penalties must be sustained because:

Petitioner has not established the existence of any relevant factor that would warrant changing the amount that CMS determined to impose.

CMS's post-hearing brief at 12. This assertion misstates the way in which penalties must be decided at an administrative hearing. My task is not to decide whether a reason exists to "warrant changing" CMS's penalty amount determination. In deciding what is reasonable I am required to evaluate de novo any evidence that relates to the above-described factors. My decision as to penalty amounts thus is based on the evidence that is introduced at the hearing and on the regulatory factors. It is not simply a review of CMS's determination.

The evidence offered by the parties does not support civil money penalties of the maximum level. In particular, there is nothing in the evidence that suggests that Petitioner's conduct was so egregious, or its culpability for its conduct so high, as to justify maximum penalty amounts.

I sustained $10,000 per day civil money penalties in another case. Wellington Specialty Care, DAB CR548 (1998). It is constructive to compare the facts of Wellington to those of this case. Wellington was a case in which conduct of the petitioner's staff crossed the line from simple oversight to indifference to residents' needs. In Wellington, a resident strangled to death after having wedged her head between the side rails of her bed. The fatal episode was the second instance of the resident having wedged her head between side rails. After the first instance, the petitioner's staff was on notice of the hazards posed to the resident by the bed side rails but it failed to take any action - such as padding the rails - that would protect the resident. Moreover, the manufacturer of the resident's bed had specifically warned the petitioner that unpadded side rails posed a hazard to residents and had recommended that precautions be taken against the precise type of incident that occurred in Wellington. But, the petitioner did nothing to protect its residents notwithstanding this warning.

I imposed the maximum civil money penalties in Wellington because of the petitioner's indifference to the needs of its residents. The case was clearly one in which the deficiency went far beyond mere oversight or error. Here, by contrast, there is no evidence that Petitioner was indifferent to its residents' needs. The failure to provide necessary supervision or assistance to Petitioner's residents in this case is a case of failure by staff to execute instructions that were delivered to them with good intentions by Petitioner's management or its supervisory staff. It is a failure to provide planned for care rather than disregard of the residents' basic requirements. Obviously, the consequences in this case were as serious as they were in Wellington. But, the cause of the deficiency is less egregious. Petitioner's culpability for its deficiencies is not nearly so high as was the case in Wellington.

Civil money penalties of $3,050 per day are high enough so as to impel Petitioner to assure that, in the future, it is sufficiently attentive to its residents' needs so as to avoid recurrences of the types of errors that occurred here. For that reason I find that penalties of $3,050 per day are reasonable.

I do not base my decision to impose penalties of $3,050 per day on Petitioner's financial condition. Petitioner argues that the facility was failing financially prior to its current owner's acquisition of it shortly prior to the April 8 survey. That may be so, but it says nothing about Petitioner's financial condition after it was acquired. Petitioner has not asserted that payment of the penalties which I am imposing here would so hamper it as to impair the quality of care that it provides to its residents.

Petitioner contends that I should reduce the civil money penalties in this case to a $1,000 "per instance" civil money penalty. Petitioner's post-hearing brief at 15 - 16. Regulations permit CMS to determine to impose a "per-instance" penalty in lieu of per day penalties. 42 C.F.R. � 488.438(a)(2). However, in this case, Petitioner's deficiency was not an "instance of noncompliance" but, rather, extended over a period of days. Therefore, a per instance civil money penalty is inappropriate. Moreover, I find that CMS's decision to impose per-day penalties, rather than a per-instance penalty, is an act of discretion by CMS that I have no authority to overrule.

5. Civil money penalties of $100 per day are reasonable for each day of the period that ran from April 15, 2002 through May 19, 2002.

Petitioner did not contest CMS's determination that there were non-immediate jeopardy level deficiencies present at the April 8 survey nor did it contest CMS's determination that these deficiencies persisted through May 19, 2002. CMS determined to impose civil money penalties of $100 per day as a remedy for these deficiencies. The question is whether these penalties are reasonable.

I find them to be reasonable. The three deficiencies that were cited other than the immediate jeopardy level deficiency are low level deficiencies that posed no more than the potential for more than minimal harm to residents. CMS Ex. 3, at 3 - 11. Each of these deficiencies was assigned a scope and severity level of "D". I take notice that a "D" level scope and severity is the lowest level of scope and severity for which CMS will impose remedies including civil money penalties.

The penalties that were imposed are commensurate with the scope and severity of these three deficiencies. Civil money penalties for non-immediate jeopardy level deficiencies may range in amounts from $50 - $3,000 per day. 42 C.F.R. � 488.438(a)(ii). Here, the minimal penalty amounts that were imposed reflect the relative non-seriousness of these deficiencies.

6. CMS is authorized to deny Petitioner payment for new Medicare admissions for each day of the period that ran from April 27, 2002 through May 19, 2002.

CMS determined to deny Petitioner payment for new Medicare admissions for each day of a period that ran from April 27, 2002 through May 19, 2002 based on Petitioner's continuing noncompliance with participation requirements throughout this period. Denial of payment for new Medicare admissions is one of the remedies that CMS may impose where a facility is not complying substantially with Medicare participation requirements. 42 C.F.R. � 488.406(a)(ii).

Imposition of this remedy plainly is authorized here in light of Petitioner's continuing noncompliance through May 19, 2002. I have no authority to direct CMS not to impose a remedy where CMS is authorized to impose one.

Steven T. Kessel

Administrative Law Judge

1. The immediate jeopardy level civil money penalties that I impose are less than the $10,000 per day civil money penalties that CMS determined to impose for the April 8 - 14, 2002 period. I explain my rationale for imposing the lesser amounts at Finding 4 of this decision.