SUBJECT:

Presbyterian Manors, Inc., d/b/a Topeka Presbyterian Manor,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Petitioner, Presbyterian Manors, Inc., d/b/a Topeka Presbyterian Manor, violated 42 C.F.R. � 483.25(h)(2) on January 27, 2002 and I therefore must sustain the minimum per-instance civil money penalty (CMP) of $1,000.

I. Procedural History

Presbyterian Manors, Inc., Petitioner, is a long-term care facility located in Topeka, Kansas that participates in the Medicare and Medicaid programs. On February 8, 2002, the Kansas State Survey Agency (the state agency) completed an abbreviated complaint survey of Petitioner and found that Petitioner was not in substantial compliance with Medicare and Medicaid participation requirements. The state agency cited Petitioner for violation of 42 C.F.R. � 483.25(h)(2) (Tag F 324) ⁽¹⁾ (cited under Tag F 698, indicating a past violation of Tag F 324) and alleged that the deficiency presented immediate jeopardy for Petitioner's residents. ⁽²⁾ The Centers for Medicare and Medicaid Services (CMS) notified Petitioner by letter dated February 25, 2002, that it was imposing a $1,000 per-instance CMP as recommended by the state agency. This case was initiated by Petitioner's request for a hearing dated April 24, 2002.

The case was assigned to me for hearing and decision on May 2, 2002. On July 2, 2002, I issued an order setting a date for document exchange and establishing a schedule to hearing. After receipt of the parties' exchanges, CMS filed a motion for summary affirmance. In an order dated October 2, 2002, I denied CMS's motion for summary affirmance and set this matter for hearing.

I conducted a one-day hearing in this case in Topeka, Kansas on January 8, 2003 and a transcript (Tr.) of the proceeding has been prepared. CMS offered and I admitted CMS exhibits (CMS Exs.) 1 through 3 and 5 through 7. ⁽³⁾ Petitioner offered and I admitted Petitioner Exhibits (P. Exs.) 1 through 50 as set forth in Petitioner's List of Exhibits Admitted at Hearing which was attached to Petitioner's posthearing brief (P. Br.). I also admitted Court Exhibit (Ct. Ex.) 1, which is the parties' joint stipulation of undisputed facts. Petitioner filed a posthearing reply (P. Reply). CMS filed its posthearing brief (CMS Br.) and reply (CMS Reply).

II. Findings of Fact and Conclusions of Law

A. Findings of Fact

The following findings of fact are based upon the exhibits admitted. Citations to exhibit numbers related to each finding of fact may be found in the analysis section of this decision if not indicated here.

1. On February 25, 2002, CMS notified Petitioner that it was imposing a per-instance CMP of $1,000 upon Petitioner, a skilled nursing facility, located in Topeka, Kansas. Petitioner's Notice of Appeal and Request for Hearing, Exhibit 1.

2. CMS advised Petitioner that the CMP was imposed because CMS agreed with the state agency determination that Petitioner violated 42 C.F.R. � 483.25(h)(2) with respect to one incident involving Resident 1 and its violation presented immediate jeopardy. Id.

3. CMS's determination was based on an abbreviated complaint survey of Petitioner completed by the state agency on February 8, 2002. Id.

4. The complaint survey ensued from Petitioner's incident report to the state agency that on January 27, 2002, Resident 1 was discovered at approximately 6:45 p.m. outside in the facility courtyard, alone and unsupervised. CMS Ex. 1 and 2, at 1-4; Tr. 64.

5. Resident 1 is a cognitively-impaired, wheelchair-bound, 100-year-old female resident. P. Ex. 12, 13.

6. Resident 1 was discovered in the facility courtyard when she knocked or tapped on an office window where, by happenstance on a Sunday evening, an employee was present. CMS Ex. 1 and 2, at 1-4; P. Ex. 25; Tr. 109, 173.

7. Resident 1, who was sitting in her wheelchair, was assisted by staff back into the building. Ct. Ex. 1, �� 9 and 10; P. Ex. 25.

8. According to facility records, Resident 1 had been last observed by staff in her wheelchair at the nurses station at approximately 6:10 p.m. to 6:15 p.m. on the evening of January 27, 2002. Ct. Ex. 1, � 6.

9. The courtyard is entered by two sets of double glass doors, one at the northwest corner and one at the southeast corner of the courtyard. P. Ex. 4; P. Br. at 5; Tr. 155-156.

10. Each set of doors is alarmed so that when a courtyard door is opened an alarm sounds at the nurses station and an indicator light on the alarm panel is activated. P. Br. at 5; Tr. 99, 156, 157 and 186.

11. The alarm is intended to inform staff that a resident is entering the courtyard. Ct. Ex. 1, � 12.

12. When the alarms sounds, staff are required by Petitioner's policy and practice to check the door to see if a resident passed through it, close the door, and then press the reset button to reactivate the alarm system. Tr. 157, 159, 189-190.

13. On January 27, 2002, the courtyard door alarm did not sound when Resident 1 entered the courtyard. Ct. Ex. 1, � 14.

14. Upon returning Resident 1 to inside the facility, an employee tried to determine whether the courtyard alarms had sounded and found that the alarms had not sounded because the alarm switches for both sets of courtyard doors had been switched to the off position. CMS Ex. 2, at 22; P. Ex. 25; P. Ex. 42; Ct. Ex. 1, � 15.

15. Petitioner investigated but never determined how the switches came to be in the "off" position. Ct. Ex. 1, �� 16-18.

B. Conclusions of Law

1. Petitioner's request for hearing was timely and I have jurisdiction.

2. Petitioner violated 42 C.F.R. � 483.25(h)(2) (Tag F 324) on January 27, 2002, which is a basis for the imposition of a CMP.

3. Petitioner's violation put Resident 1 in immediate jeopardy.

4. Because CMS had a basis for imposing a remedy, I have no authority to review CMS's exercise of its authority to impose a penalty and I must sustain its determination to impose the minimum per-instance CMP of $1,000.

5. Petitioner has failed to rebut the CMS prima facie showing of a violation of 42 C.F.R. � 483.25(h)(2) on January 27, 2002, either by showing it was in substantial compliance or by an affirmative defense.

III. Analysis

A. Issues

The general issues are:

1. Whether there is a basis for the imposition of an enforcement remedy; and,

2. Whether the remedy imposed is reasonable.

B. Applicable Law

Petitioner is a long-term care facility participating in the federal Medicare program as a skilled nursing facility (SNF) and in the state Medicaid program as a nursing facility (NF). The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Social Security Act (Act) and at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act vest the Secretary of Health and Human Services with authority to impose CMPs against a long-term care facility for failure to comply substantially with federal participation requirements.

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. Facilities that participate in Medicare may be surveyed on behalf of CMS by state survey agencies in order to determine whether the facilities are complying with federal participation requirements. 42 C.F.R. �� 488.10-488.28, 488.300-488.335. Pursuant to 42 C.F.R. Part 488, CMS may impose a per-instance or per day CMP against a long-term care facility when a state survey agency concludes that the facility is not complying substantially with federal participation requirements. 42 C.F.R. �� 488.406; 488.408; 488.430. The regulations in 42 C.F.R. Part 488 also give CMS a number of other remedies that can be imposed if a facility is not in compliance with Medicare requirements.

The regulations specify that a CMP that is imposed against a facility on a per day basis will fall into one of two broad ranges of penalties. 42 C.F.R. �� 488.408, 488.438. The upper range of CMP, of 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), (d)(2). The lower range of CMP, 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). There is only a single range of $1,000 to $10,000 for a per-instance CMP, which applies whether or not immediate jeopardy is present. 42 C.F.R. �� 488.408(d)(1)(iv); 488.438(a)(2).

The Act and regulations make a hearing before an Administrative Law Judge (ALJ) available to a long-term facility against whom CMS has determined to impose a CMP. Act, section 1128A(c)(2); 42 C.F.R. �� 488.408(g); 498.3(b)(13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd, 941 F2d. 678 (8^th Cir. 1991). A facility has a right to appeal a "certification of noncompliance leading to an enforcement remedy." 42 C.F.R. � 488.408(g)(1); see also 42 C.F.R. �� 488.330(e) and 498.3. However, the choice of remedies by CMS or the factors CMS considered when choosing remedies are not subject to review. 42 C.F.R. � 488.408(g)(2). A facility may only challenge the scope and severity level of noncompliance found by CMS if a successful challenge would affect the amount of the CMP that could be collected by CMS or impact upon the facility's nurse aide training program. 42 C.F.R. �� 498.3(b)(14) and (d)(10)(I). CMS's determination as to the level of noncompliance "must be upheld unless it is clearly erroneous." 42 C.F.R. � 498.60(c)(2). This includes CMS's finding of immediate jeopardy. Woodstock Care Center, DAB No. 1726, at 9, 38 (2000), aff'd, Woodstock Care Center v. U.S. Dept. of Health and Human Services, 363 F.3d 583 (6^th Cir. 2003). The Departmental Appeals Board (the Board or DAB) has long held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination. See, e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000). Review of a CMP by an ALJ is governed by 42 C.F.R. � 488.438(e). Pursuant to 42 C.F.R. � 488.301, "(i)mmediate jeopardy means 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." (emphasis in original). "Substantial compliance means 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." Id. (emphasis in original).

When a penalty is proposed and appealed, CMS must make a prima facie case that the facility has failed to comply substantially with federal participation requirements. "Prima facie" means that the evidence is "(s)ufficient to establish a fact or raise a presumption unless disproved or rebutted. Black's Law Dictionary 1228 (8^th ed. 2004); see also, Hillman Rehabilitation Center, DAB No. 1611, at 8 (1997), aff'd Hillman Rehabilitation Center v. U.S. Dept. of Health and Human Services, No. 98-3789 (D.N.J. May 13, 1999). To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Batavia Nursing and Convalescent Center, DAB No. 1904 (2004); Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Center, DAB No. 1665 (1998); Hillman Rehabilitation Center, DAB No. 1611.

C. Discussion

1. Petitioner violated 42 C.F.R. � 483.25(h)(2) (Tag F 324), which is a basis for the imposition of a CMP.

Section 483.25 of 42 C.F.R. establishes quality of care requirements for long-term care facilities. One such requirement is that a facility must ensure "[e]ach resident receives adequate supervision and assistance devices to prevent accidents." 42 C.F.R. � 483.25(h)(2). The regulation requires that a facility provide both "assistance devices" and "adequate supervision" to prevent accidents. In Woodstock Care Center, the Board considered whether the facility knew of or reasonably should have anticipated the risk of the kind of events that occurred and whether any reasonable means were available to prevent them without violating the residents' rights. Woodstock Care Center, DAB No. 1726, at 26-27 (2000), aff'd, Woodstock Care Center v. Thompson, 363 F.3d 583 (6^th Cir. 2003). The Board in Woodstock noted that while a facility is permitted the flexibility to choose the methods it uses to prevent accidents, the chosen methods must constitute an "adequate" level of supervision and use of assistance devices given all the circumstances. What is "adequate" takes into consideration the resident's ability to protect himself or herself from harm. See Woodstock Care Center at 28-35; see also Windsor Health Care Center, DAB No. 1902, at 5 (2003), aff'd, Windsor Health Center v. Leavitt, 127 Fed. Appx. 843, No. 04-3018 slip op., 2005 WL 858069 (6th Cir. April 13, 2005 ) ("A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an 'adequate' level of supervision under all the circumstances.").

There is a prima facie showing of a violation of 42 C.F.R. � 483.25(h)(2), when: (1) the evidence shows that an accident occurred, with or without harm to a resident; or (2) the evidence shows that the facility failed to do what it could to supervise residents or provide assistance devices to minimize risks that could lead to accidents. An "accident" is "an unexpected, unintended event that can cause a resident bodily injury," excluding "adverse outcomes associated as a direct consequence of treatment or care (e.g., drug side effects or reactions)." State Operations Manual, App. P, Guidance to Surveyors, at PP-105, F324, Quality of Care (Rev. 274, June 1995), Woodstock Care Center, DAB No. 1726, at 4 (2000).

CMS has made a prima facie showing of a violation of 42 C.F.R. � 483.25(h)(2) in this case by showing that Resident 1 was outside the facility without supervision, i.e., CMS has produced sufficient evidence that, absent conflicting evidence, shows a violation occurred. Meadow Wood Nursing Home, DAB No. 1841, at 7 (2002); Emerald Oaks, DAB No. 1800, at 16 (2001). Thus, the burden is upon Petitioner to rebut the prima facie case by showing that more likely than not, it was in substantial compliance or that it can establish an affirmative defense. Emerald Oaks, at 16.

Petitioner has not rebutted the prima facie showing by CMS. Petitioner has not shown that it did all that it could do to protect its residents with adequate supervision in light of known foreseeable risks. The parties have stipulated to many undisputed facts. See Ct. Ex. 1, Joint Stipulation of Undisputed Facts.

On January 27, 2002, Resident 1, a cognitively-impaired, wheelchair-bound, 100-year old female, who was assessed as being at high risk for wandering (P. Ex. 11) and who had a history of falls and who also was assessed as being at enhanced risk for falls (P. Exs. 12, 13 at 6, 14), was observed in her wheelchair at the nurses station at approximately 6:10 p.m. or 6:15 p.m. Later, at 6:45 p.m., the resident tapped on the window of an office from outside on the courtyard (P. Ex. 25). Generally, on a Sunday evening, there would not have been any employees working in any of the offices that looked out onto the courtyard. However, on this particular Sunday evening, the Minimum Data Set (MDS) Coordinator happened to be in her office catching up on paper work and heard the tapping, and observed that the resident was alone in the outdoor, interior enclosed courtyard of the facility. ⁽⁴⁾ Ct. Ex. 1, �� 7, 8, 9; CMS Ex. 2, at 18, 49; P. Ex. 42; Tr. 109. It was unclear how long the resident was in the courtyard, but, at the least, it appears that she was unaccompanied and unsupervised there for as long as thirty minutes. Moreover, the staff was completely unaware that Resident 1 was in the courtyard alone and unsupervised. But for Resident 1 herself knocking on the window of the office where the employee happened to be present, it is unclear how long she would have remained outside undiscovered. The resident suffered no actual harm. It was fortunate that on January 27, 2002, the weather in Topeka, Kansas during the day was unseasonably warm, but Resident 1 was discovered as night fall approached and temperatures presumably would have begun to drop (P. Ex. 48, at 2).

The courtyard is entered by two doors from the facility. The doors have an alarm which sounds at the nurses station when either door is opened. The alarm is intended to inform staff when a resident is entering the courtyard; Petitioner contends it is not meant to preclude entry into the courtyard. However, it is clear that the doors were alarmed to alert Petitioner's staff when someone entered the courtyard because Petitioner recognized a duty to supervise its resident's in the courtyard. Tr. 204. It is undisputed that on the specific day and time in question, the alarm did not sound when Resident 1 went through the doors into the courtyard. The reason is that the alarm had been turned to the "off" position. Petitioner could not identify any staff member as having turned the alarms off or who knew that it had been moved, nor was Petitioner able to determine how the switch was turned off. Ct. Ex. 1, �� 16, 17, and 18; P. Ex. 42. One member of the nursing staff routinely checked whether the alarm systems were functioning on each day that she worked, although her checks were not required by facility policy. Tr. 57. On January 27, 2002, however, she worked from 2:30 p.m. until 10:30 p.m. and she did not check the alarms on that day. Tr. 57; CMS Ex. 2, at 50. Sharon Petrone, the Health Care Administrator at Petitioner's facility at the time of the incident, conducted the investigation of the incident for Petitioner. Her report at P. Ex. 42 indicates that the switches might have been turned off when bumped by a book or a chart or by some family member who passed the nursing station. At hearing, Ms. Petrone indicated on cross-examination that it was unlikely that the switches for the door alarms were flipped to the off position by a chart or book (Tr. 200-01) but on redirect she indicated that she stood by her original report and, in fact, had no idea whether the switches were flipped accidentally or purposefully by some visitor (Tr. 207-10). Staff also confirmed that no one was visually monitoring the doors to the courtyard because they would only check the courtyard to see who entered if the alarm sounded. CMS. Ex. 2, at 8, 14, and 15.

There is no dispute that January 27, 2002, was an unusually nice day for January and that during the morning shift from 6 a.m. to 2:30 p.m., the alarm sounded several times as visitors and residents entered the courtyard. CMS Ex. 2, at 6, 7, and 12; Tr. 192. Staff also stated that during the afternoon shift they did not notice any alarms sounding and no alarms were heard after about 2:30 p.m. Tr. 206. Petitioner's policy was that if the alarm sounded at the nurses station and the indicator light went on showing which door was opened, the staff were instructed to go to that door, check to see if a resident passed through the door, make sure the area was secured and then return to the nurses's station and reset the alarm panel. Tr. 156-157. While residents have access to the courtyard, it is intended that they enter the courtyard only with the permission, supervision, and knowledge of the staff. Tr. 165-166, 189-190. The reason for this policy as stated by one staff member was that "its [sic] very important that these alarm[s] stay on so we know who [is] coming and going at all times and no one would get hurt outside especially a resident that is not supervised." CMS Ex. 2, at 14.

Petitioner clearly recognized that the interior courtyard presented a risk for harm for residents. Petitioner had alarms on the doors to the courtyard which staff relied upon to alert them that a resident had entered or exited the courtyard so that supervision could be provided as necessary. However, Petitioner here failed to ensure that the alarms, which it used as a form of supervision, could not be accidentally or intentionally turned off by an unauthorized person. Thus, the use of alarms was an ineffective form of supervision. Furthermore, Petitioner clearly recognized that Resident 1, with her circumstances, should not have been outside alone in the courtyard without the knowledge and supervision of staff due to the potential for harm to Resident 1. Tr. 172, 190. Resident 1 even had a personal alarm that would sound if she moved out of her wheelchair because Petitioner recognized her risk for falls. Tr. 32. Because its alarm system failed to alert Petitioner to Resident 1's entry to the courtyard, Petitioner then also failed to provide Resident 1 the supervision Petitioner recognized was necessary for Resident 1 in those circumstances.

Therefore, Petitioner has not rebutted CMS's prima facie showing that Petitioner failed to provide adequate supervision to this resident. Petitioner did not show that it did all that it could do to protect Resident 1 from being outside alone and unsupervised in the courtyard; it admits the alarm was switched off, but does not indicate how or why; it admits that the alarms sounded early in the day and that, despite visitors and residents moving in and out of the courtyard, no one questioned why no alarm was heard for an extended period in the afternoon and no one checked to see if the alarms were working. Petitioner admits that Resident 1 would not have been allowed in the courtyard without knowledge, permission, and supervision, but she was. Petitioner cannot deny that Resident 1 with her history of falls, her age, her lack of mobility and her cognitive status was at great risk for harm by being in the courtyard alone because of her medical and mental status.

2. Because CMS had a basis for imposing a remedy, I have no authority to review CMS's exercise of its authority to impose a penalty and I must sustain its determination to impose the minimum per-instance CMP of $1,000.

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. � 488.406, which include imposing a CMP. See Act, section 1819(h). CMS may impose a CMP for the number of days that the facility is not in substantial compliance with one or more program requirements or for each instance that a facility is not in substantial compliance. 42 C.F.R. � 488.430(a). This is so even if, by the time of the survey, the facility corrected its deficiencies and achieved substantial compliance. Act, section 1819(h)(1); 42 C.F.R. � 488.430(b); North Ridge Care Center, DAB No. 1857, at 11 n.8 (citing 59 Fed. Reg. 56,116, 56,161 (Nov. 10, 1994)) and at 12 n.10 (2002). ⁽⁵⁾

Where CMS has the authority to impose a remedy, the regulations specifically preclude appeal of CMS's choice of remedy or the factors considered by CMS in selecting the remedy:

A facility may not appeal the choice of remedy, including the factors considered by CMS or the State in selecting the remedy, specified in � 488.404.

42 C.F.R. � 488.408(g)(2). Elsewhere, the regulations specify that if an ALJ finds a basis for imposing a CMP, as I have here, he/she may not review CMS's exercise of its discretion to impose a CMP. 42 C.F.R. � 488.438(e).

Petitioner avers generally that the CMP here is unreasonable. Apparently, it argues so because it believes that there was no deficiency and the finding of noncompliance was in error and must be reversed.

The reasonableness of the amount of the CMP, however, is not before me. If CMS has imposed a $1,000 per-instance CMP, I must sustain this amount as a matter of law when there is a deficiency that provides the basis for the imposition of a CMP . When CMS imposes a CMP for an instance of noncompliance, the penalty must be in the range of $1,000 to $10,000 per-instance. 42 C.F.R. � 488.438(a)(2). Where CMS imposes a penalty amount that is the minimum, I must sustain that determination if I find a deficiency that provides a basis for imposing a remedy. If the amount of the per-instance CMP were more than the minimum, the amount of the CMP would be reviewable. Thus, I would look at the regulatory factors and make a determination as to whether, based on those factors, the amount was reasonable. But I need not do that here.

CMS determined that the deficiency here - Petitioner's failure to provide adequate supervision - was so serious as to place Petitioner residents in immediate jeopardy. The applicable regulations define an immediate jeopardy deficiency to involve a situation in which a facility's noncompliance has caused or is likely to cause serious injury, harm, impairment, or death to a resident. 42 C.F.R. � 488.301. As was pointed out in Rosewood Living Center, DAB CR1293 (2005), at 17, "a determination of immediate jeopardy is irrelevant to the issue of what is reasonable as a per-instance civil money penalties. A determination of immediate jeopardy is a necessary prerequisite to imposing a per-diem civil money penalty in excess of $3,000, but is not a prerequisite to imposing a per-instance penalty in any amount up to $10,000. See 42 C.F.R. � 488.438(a)(1)(i), (ii), (a)(2)." Therefore, it is unnecessary that I find that the evidence supports CMS's immediate jeopardy determination.

However, here as in Rosewood, a determination of immediate jeopardy is an indication of the seriousness of the deficiency. Petitioner knew that Resident 1 was cognitively impaired and was at a high risk for falls and wandering. Her risk of falls was significant enough that she had a personal alarm to notify the staff if she tried to get up from her wheelchair. ⁽⁶⁾ Petitioner also admitted that Resident 1 would not have been allowed to enter the courtyard alone and unsupervised. But of most concern is the fact that this resident was outside in the courtyard and not one person on the staff knew that she was there or her whereabouts. If Resident 1 had not knocked on the window, there is no knowing how long she would have remained outdoors before someone even realized she was missing. It is again only luck that Resident 1 was not harmed and that, for January, the temperature in Topeka, Kansas happened to be unseasonably warm. Thus, I find there is no question here that this deficiency put Resident 1 in immediate jeopardy and a $1,000 CMP, the minimum per instance CMP that may be imposed, is not unreasonable for such a serious deficiency.

IV. Conclusion

For the foregoing reasons, I conclude that Petitioner violated 42 C.F.R. � 483.25(h)(2) and I must sustain the per-instance CMP of $1,000.

Keith W. Sickendick

Administrative Law Judge

1. All references are to the revision of the Code of Federal Regulations (C.F.R.) in effect at the time of the survey, unless otherwise indicated.

2. The state agency also cited a violation of a state requirement which was not cited by CMS as a basis for the proposed remedy and is not at issue before me.

3. CMS Ex. 4, an affidavit of Donna Deason, originally submitted with the CMS motion for summary affirmance, was not offered or admitted at hearing. Tr. 14. CMS attached to its posthearing brief CMS Exhibit 8. This exhibit was not offered as evidence at the hearing and was not formally admitted. It had not been previously exchanged with Petitioner. Petitioner objects to the use of this document. I therefore do not consider it in my decision.

4. Ms. Fisher's normal work tour was Monday through Friday from approximately 8 a.m. to 5 p.m. Tr. 109; CMS Ex. 2, at 22 and 42.

5. North Ridge contains a comprehensive discussion of CMS's authority to impose penalties for past noncompliance, defined as "noncompliance with the participation requirements between standard surveys." Id. at 14.

6. While Resident 1 had a personal alarm, there is some question whether it could have been heard outside in the courtyard if the doors were shut and no one was outside with this resident. CMS. Ex. 2, at 37 (Statement from CNA indicating that no one would have heard Resident 1's alarm go off if she was "down by the door to the courtyard").