SUBJECT:

Burton Health Care Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Petitioner, Burton Health Care Center, was not in substantial compliance with Medicare and Medicaid participation requirements on January 5, 2002. Petitioner failed to provide adequate supervision for one resident in violation of 42 C.F.R. � 483.25(h)(2). ⁽¹⁾ Petitioner was not in violation of 42 C.F.R. � 483.25(h)(2) on December 12, 2001. The Centers for Medicare & Medicaid Services' (CMS) proposal to impose a per instance civil money penalty (CMP) of $2,800.00 is not reasonable. However, a per instance CMP of $1,400, is reasonable.

I. BACKGROUND

Petitioner is a long-term care nursing facility located in Burton, Ohio that participates in the Medicare program as a skilled nursing facility (SNF) and the state Medicaid program as a nursing facility (NF). From February 26 through 28, 2002, the Ohio Department of Health (the state agency) conducted a standard survey of Petitioner's facility. The state agency cited Petitioner with violations of 42 C.F.R. �� 483.12(d)(1) - (4) (Tag F 208); 483.15(g) (Tag F 250); and 483.25(h)(2) (cited under Tag F 698, indicating a past violation of Tag F 324). CMS Exhibit (CMS Ex. 1). The state agency recommended that CMS impose remedies including a denial of payment for new admissions (DPNA) effective May 28, 2002; a per instance CMP of $2,800 for the violation of 42 C.F.R. � 483.25(h)(2); and termination of Petitioner's provider agreement effective August 28, 2002. CMS Ex. 5. By letter dated April 17, 2002, CMS advised Petitioner that CMS concurred with the state agency recommendations. CMS Ex. 3. On April 2, 2002, the state agency conducted a revisit survey and found Petitioner back in substantial compliance with participation requirements. The state agency recommended that CMS rescind the DPNA and termination, which had not become effective. CMS Ex. 4. CMS advised Petitioner by letter dated June 12, 2002, that the DPNA was rescinded and the termination would not be imposed, however the per instance CMP of $2,800 remained. CMS Ex. 2.

Petitioner timely requested a hearing on August 7, 2002, and the case was assigned to me for hearing and decision. On January 13, 2003, I denied CMS's motion for summary judgment by a ruling on that date. On April 10, 2003, I held a hearing in Cleveland, Ohio as reflected by the 167-page transcript of proceedings. CMS offered as evidence CMS exhibits 1 through 26, and they were admitted. Tr. 15. Petitioner withdrew its previously marked Petitioner's exhibits 1 and 2 as not relevant to the only deficiency at issue, and offered as evidence Petitioner's Exhibit (P. Ex.) 3, which was admitted. Tr. 128-29. The parties' joint stipulation of fact was marked and admitted as Court Exhibit (Ct. Ex.) 1. CMS submitted a post hearing brief (CMS Br.) and a post hearing reply brief (CMS Reply). Petitioner submitted a post hearing brief (P. Br.) and a post hearing reply brief (P. Reply).

II. DISCUSSION

A. FINDINGS OF FACT

The following findings of fact are based upon the exhibits admitted and the testimony at hearing. 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. Petitioner is located in Burton, Ohio, and is certified to participate in the Medicare program as a SNF and in the state Medicaid program as a NF.

2. The state agency completed an annual survey of Petitioner on February 28, 2002, the results of which are recorded in the Statement of Deficiencies (CMS 2567L) with that date (CMS Ex. 1).

3. Based on the survey, Petitioner was cited with being in violation of 42 C.F.R. �� 483.12(d)(1) - (4) (Tag F 208); 483.15(g) (Tag F 250); and 483.25(h)(2) (cited under Tag F 698, indicating a past violation of Tag F 324). CMS Ex. 1.

4. It was determined on a revisit survey on April 2, 2002, that Petitioner had achieved substantial compliance, effective March 20, 2002. CMS Ex. 4.

5. Petitioner requested a hearing by letter dated August 7, 2002.

6. The only alleged violation of participation requirements still at issue in this case is the alleged violation of 42 C.F.R. � 483.25(h)(2). CMS Ex. 2; Tr. 15-19.

7. The only remaining remedy at issue is the proposed per instance CMP of $2,800, which is based solely upon the alleged violation of 42 C.F.R. � 483.25(h)(2). CMS Ex. 2, 4, 5; Tr. 15-19.

8. Resident 36, a male born December 17, 1923, was originally admitted to Petitioner's facility on July 14, 2000. CMS Ex. 18, at 1; Ct. Ex. 1; Tr. 40.

9. Resident 36 was diagnosed with progressive supranuclear palsy, organic brain disease, blepharitis, dysphasia, and peripheral vascular disease. Tr. 40-41.

10. Resident 36 had a history of falls from attempting to get up out of his wheelchair and walking. CMS Ex. 18.

11. Resident 36 was restless, easily distracted, frequently confused, and was not able to balance while standing without physical help. Tr. 52; CMS Ex. 18.

12. Resident 36's care plan indicated that he should be reminded to call for assistance before trying to ambulate or transfer. CMS Ex. 20, at 1.

13. Resident 36 needed a one to two person assist for toileting and transfers. CMS Exs. 18, at 3, 20.

14. On December 12, 2001, Resident 36 was in the bathroom with a nurse aide.

a. The nurse aide, while in the bathroom, turned away momentarily to get a button brief. CMS Ex. 21.

b. Resident 36, attempted to transfer himself from the toilet to his wheelchair, and fell. Id.

c. Resident 36 suffered an abrasion to his head and left hip due to the fall. Id.

15. On January 5, 2002, Resident 36 was placed in the bathroom by a nurse aide.

a. The nurse aide opened the front of Resident 36's pants and handed him a urinal. Tr. 71.

b. The nurse aide did not assist Resident 36 with transferring from his wheelchair to the toilet, but left him in his wheelchair with his pummel cushion (a saddle shaped device for positioning in a wheelchair) in place. Id.

c. The nurse aide left Resident 36 unattended in the bathroom. Id.

d. Resident 36's care plan required that he have a non-release waist restraint in place while up in his wheel chair. CMS Ex. 20.

e. Although Resident 36's non-release waist restraint was in place while he was in the wheelchair in the bathroom, it was not secured on one side. Tr. 71.

f. Resident 36 attempted to transfer himself from his wheelchair to the toilet without assistance and fell. Tr. 70.

g. Resident 36 suffered lacerations to his head and the bridge of his nose when he fell. Id.

B. CONCLUSIONS OF LAW

1. Petitioner's request for hearing was timely filed and I have jurisdiction as to the alleged violation of 42 C.F.R. � 483.25(h)(2), but not as to any alleged deficiencies that are not the basis for imposing a remedy.

2. Petitioner did not violate the requirement of 42 C.F.R. � 483.25(h)(2) to provide Resident 36 assistance devices and supervision to prevent accidents on December 12, 2001, and CMS may not impose a CMP for the incident on that date.

3. There is prima facie evidence that Petitioner violated 42 C.F.R. � 483.25(h)(2) by not providing adequate assistance devices and supervision to prevent Resident 36 from falling on January 5, 2002, i.e., Resident 36's non-release waist restraint was not applied properly because it was not secured on one side and Resident 36 was left unsupervised in the bathroom.

4. On January 5, 2002, Resident 36 suffered injuries due to his fall that were actual harm within the meaning of the regulations.

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 5, 2002, either by showing it was in substantial compliance or by an affirmative defense.

6. A per instance CMP of $2,800 is not reasonable, but a CMP of $1,400 is reasonable.

C. ISSUES

The issues in this case are:

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

Whether the remedy imposed is reasonable.

D. APPLICABLE LAW

Petitioner is a long-term care facility participating in the federal Medicare program as a SNF and in the state Medicaid program as a 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 (the Act) and at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act vest the Secretary 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 at 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. Id.

The regulations authorize CMS to impose a CMP for noncompliance in the range of $1,000 to $10,000 per instance. 42 C.F.R. �� 488.408, 488.438. 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).

The Act and regulations make a hearing before an 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) 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).

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 (1997).

E. ANALYSIS

1. The evidence in this case is not in equipoise and allocation of the burden of proof has no effect upon the decision.

At the beginning of the hearing and in a prehearing order, I advised the parties that I intended to apply the decisions of the Board in Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. U.S. Dept. of Health and Human Services, No. 98-3789 (GEB) (D.N.J. May 13, 1999) and Cross Creek Health Care Center, DAB No. 1665 (1998) regarding the allocation of the burden of proof. The order of presentation at hearing was thus, CMS and then Petitioner. Petitioner argues that the burden of proof ⁽²⁾ standard as set forth in the Board decision in Hillman is not the correct standard for allocating the burden of persuasion in administrative CMP cases, such as this case. P. Reply at Part II.B.1 & 2. Petitioner argues that the Hillman standard violates the Administrative Procedure Act (APA) (5 U.S.C. � 550 et. seq.), in two ways. First, the APA states that the proponent of a rule or order has the burden of proof, except as otherwise provided by statute. 5 U.S.C. � 556(d). Second, Petitioner argues that the Hillman standard is a substantive rule that was not promulgated pursuant to the APA's notice and comment procedures. On July 24, 2003, CMS moved to strike the argument from Petitioner's brief. The CMS motion is denied.

In Hillman, an appellate panel of the Board held that in a termination hearing before an ALJ, the sanctioned facility bore the burden of persuasion once CMS (formerly the Health Care Finance Administration) made a prima facie showing of a violation of a participation requirement that provided a basis for the remedy of termination. This rule was extended to a CMP case by the decision in Cross Creek. Pursuant to Hillman and Cross Creek, when a penalty is imposed and appealed, CMS must make a prima facie showing that the facility failed to comply substantially with federal participation requirements. If CMS makes a prima facie showing of a violation, then Petitioner must show by a preponderance of the evidence that it was in substantial compliance or that its violation is excused by an affirmative defense. The Board in Hillman analyzed the Act, the regulations, and the history of both and developed its position on the appropriate allocation of the burden of proof. Petitioner is correct, however, that the Secretary has never promulgated a regulation establishing the allocation of the burden of persuasion in cases pursuant to 42 C.F.R. Part 498.

The long-term care facility in Fairfax Nursing Home v. U.S. Dept. of Health & Human Services, 300 F.3d 835 (7^th Cir. 2002), made a nearly identical argument to that made by Petitioner in this case. In Fairfax, the Court of Appeals declined to address whether Hillman was correct because the evidence in the case was not in equipoise and the allocation of the burden of proof had no bearing on the outcome of the case. The Court noted that "premature adjudication on our part will not be helpful in achieving accuracy or clarity in this important area of administrative practice." Fairfax, at 5.

The situation here is identical to that in Fairfax to the extent that the evidence in this case, as will be made clear by the following discussion, is clearly not in equipoise. Thus, it is not necessary for me to rely upon any allocation of the burden of persuasion to decide this case and Petitioner's arguments are of no merit. Even if the evidence was in equipoise in this case, Petitioner points to no error in the logic or reasoning of the Board in arriving at the allocation of the burden of persuasion in Hillman and Cross Creek, that would cause me to allocate the burden of persuasion in this case differently.

2. Petitioner violated 42 C.F.R. � 483.25(h)(2) on January 5, 2002 but not on December 12, 2001, with respect to Resident 36.

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).

There has been little dispute as to the essential facts in this case. Resident 36, a male born December 17, 1923, was originally admitted to Petitioner's facility on July 14, 2000. CMS Ex. 18, at 1; Ct. Ex. 1; Tr. 40. His diagnoses included progressive supranuclear palsy, organic brain disease, blepharitis, dysphasia, and peripheral vascular disease. Tr. 40-41. Resident 36 also had a history of falls, particularly related to his attempts to get out of his wheelchair and walk. CMS Ex. 18. He was restless, easily distracted, frequently confused, and was not able to balance while standing without physical help. Tr. 52; CMS Ex. 18. Resident 36's care plan indicated that he should be reminded to call for assistance before trying to ambulate/transfer. CMS Ex. 20, at 1. His care plan also required that he have a non-release waist restraint while up in his wheelchair. Id. Resident 36 needed a one to two person assist for toileting and transfers. CMS Exs. 18, at 3; 20.

CMS alleges that Petitioner violated 42 C.F.R. � 483.25(h)(2) with regard to its supervision of Resident 36 on two occasions, December 12, 2001 and January 5, 2002.

The facts of the December 12, 2001 incident are reflected in Petitioner's reports regarding the incident at CMS Ex. 21. ⁽³⁾ On December 12, 2001, Resident 36 was in the bathroom with a nurse aide. The nurse aide, while still in the bathroom, turned away momentarily to get a button brief for the resident. ⁽⁴⁾ While the aide was turned away, Resident 36, attempted to transfer himself from the toilet to his wheelchair, and fell. Resident 36 suffered an abrasion to his head and left hip due to the fall. There is no allegation or evidence that Resident 36 was improperly transferred to the toilet or that he was being improperly transferred from the toilet to his wheelchair when he fell. The evidence also does not show that Resident 36 needed to be physically supported while sitting on the toilet.

The facts of the January 5, 2002 incident are reflected in Petitioner's reports regarding that incident at CMS Ex. 22. On January 5, 2002, Resident 36 was placed in the bathroom by a nurse aide. The nurse aide opened the front of Resident 36's pants and handed him a urinal. The nurse aide did not assist Resident 36 with transferring from his wheelchair to the toilet, but left him in his wheelchair with his pummel cushion (a saddle shaped device for positioning in a wheelchair) in place. The nurse aide left Resident 36 unattended in the bathroom. Resident 36's care plan required that he have a non-release waist restraint in place while up in his wheel chair. Although Resident 36's non-release waist restraint was in place while he was in the wheelchair in the bathroom, it was not secured on one side. Resident 36 attempted to transfer himself from his wheelchair to the toilet without assistance and fell. Resident 36 suffered lacerations to his head and the bridge of his nose when he fell. See CMS Exs. 20, 22; Tr. 70, 146, 150-51, 162.

Based upon these facts, I conclude that CMS has made a prima facie showing of a violation of 42 C.F.R. � 483.25(h)(2) by showing that Resident 36 was injured as a result of an accident involving a fall. ⁽⁵⁾ An "accident" is "an unexpected, unintended event that can cause a resident bodily injury," excluding "adverse outcomes associated as a direct consequence of treatment of care." Woodstock Care Center, DAB No. 1726, at 4 (2000). On both December 12, 2001 and January 5, 2002, Resident 36 who was not being treated, fell and injured himself. The evidence does not show that Petitioner intended that Resident 36 fall. In fact, the evidence shows that before December 12, 2001, Petitioner recognized that Resident 36 was at risk for falls and Petitioner had ordered interventions to minimize the risk of falls. See CMS Ex. 20 (Resident 36's care plan). The issue then is whether the interventions were inadequate, not implemented, or whether it was foreseeable by Petitioner that other interventions were necessary. The burden is effectively upon Petitioner to either, rebut the prima facie case by showing that it was more likely than not in substantial compliance, or establish an affirmative defense. Emerald Oaks, DAB No. 1800 (2001).

With regard to the December 12, 2001 incident, I conclude that the prima facie case is rebutted. The evidence shows that Petitioner had identified and implemented interventions intended to minimize the foreseeable risk of falls for Resident 36. The evidence shows that on December 12, 2001, Resident 36 was transferred to and sitting on the toilet. He was attended by the aide in the bathroom. However, when the aide turned to obtain a brief from the cart in the bathroom, Resident 36 attempted to move off the toilet and fell. Petitioner's intervention of having Resident 36 supervised in the bathroom by an aide was adequate to prevent Resident 36 from making unassisted transfers and to stabilize him if necessary. It was not foreseeable, given evidence that Resident 36 was coherent and capable of following instructions, that during the brief time that the aide turned to retrieve a brief, Resident 36 would not ask for assistance but would rather attempt a self-transfer. The evidence does not show that it was unreasonable for Petitioner to continue to allow Resident 36 to use the bathroom toilet consistent with the requirement for Petitioner to ensure that its residents attain the highest level of activities of daily living possible. The evidence does not show that there might have been a better intervention than one-on-one supervision while Resident 36 used the toilet. I conclude, therefore that Petitioner was not in violation of 42 C.F.R. � 483.25(h)(2) on December 12, 2001.

With regard to the January 5, 2002 incident, I conclude that Petitioner was in violation of 42 C.F.R. � 483.25(h)(2). Petitioner did not comply with its own care plan for Resident 36 on January 5, 2002 and failed to act reasonably to prevent him from falling. Resident 36 was in his wheelchair and his non-release restraint was not secure on one side. Thus, Petitioner failed to implement one of its interventions from its care plan for Resident 36, an intervention that Petitioner recognized as necessary to prevent a reasonably foreseeable risk that Resident 36 would fall. Furthermore, on January 5, 2002, Petitioner left Resident 36 in the bathroom unattended. Petitioner clearly demonstrated that it recognized a risk that Resident 36 would fall in the bathroom if left unattended and had previously required that staff not leave Resident 36 unattended or unobserved in the bathroom. See e.g. CMS Ex. 20, at 1 (care plan requires all staff to observe his out-of-bed activity) and CMS Ex. 23, at 2 (in-service training reminder that Resident 36 needed to be monitored in restroom). The fact that Petitioner had adopted these interventions shows both that there was a foreseeable risk and that Petitioner believed the interventions reasonable and adequate. Petitioner violated 42 C.F.R. � 483.25(h)(2) by failing to ensure that its staff implemented the interventions on January 5, 2002. No further analysis is necessary.

3. A per instance civil money penalty of $1,400 is reasonable based on the January 5, 2002 deficiency.

In determining the amount of a CMP, the following factors specified at 42 C.F.R. � 488.438(f) must be considered: (1) the facility's history of non-compliance, 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 facilities degree of culpability. In deciding what penalty amount is reasonable, I must examine the evidence that relates to the regulatory factors. My role is not to review for correctness CMS's determination as to penalty amount. I must decide de novo whether the evidence justifies a particular amount.

I have little or no evidence to consider regarding the first two factors. The evidence does not show a significant history of noncompliance or repeated violations of 42 C.F.R. � 483.25. See e.g. CMS Ex. 6. Petitioner has not alleged an inability to pay and there is some evidence that Petitioner's owner also owns several other nursing homes.

Regarding the third factor and fourth factors, seriousness and culpability: (1) actual harm occurred to Resident 36, he sustained injuries from his fall on January 5, 2002; (2) immediate jeopardy is not alleged; (3) Petitioner had identified interventions; but (4) Petitioner failed to ensure its staff implemented necessary interventions. Resident 36's fall was serious even though he experienced only minor injuries and Petitioner was culpable.

CMS proposed a CMP of $2,800 based upon two alleged deficiencies and some reduction is appropriate based upon my conclusion that only one deficiency existed. The regulations establish a single range of $1,000 to $10,000 for a per instance civil money penalty, which applies whether or not immediate jeopardy is present. 42 C.F.R. �� 488.408(d)(1)(iv); 488.438(a)(2). I conclude that a civil money penalty of $1,400, which is at the low range of the scale for a per instance civil money penalty, is reasonable based upon all the facts of this case.

III. CONCLUSION

For the forgoing reasons, I conclude that Petitioner violated 42 C.F.R. � 483.25(h)(2) as a result of the January 5, 2002 incident, and that a CMP of $1,400 is reasonable.

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 surveys, unless otherwise indicated.

2. The phrase "burden of proof" as used herein is treated as synonymous with the phrase "burden of persuasion." The party with the burden of producing or going forward with the evidence is not treated separately.

3. It should be noted that the CMS allegations of past violations in this case are based upon a record review, the same records offered as evidence by CMS.

4. The unrebutted evidence is that Resident 36 had a private room and bath and that his toilet supplies, including briefs were stored in the bathroom on a cart near the door. Tr. 146.

5. CMS has offered evidence that I admitted, that reflects remedial measures taken by Petitioner. Petitioner objected on grounds that its remedial measures should not be construed as proof of liability, admission, or culpability. Tr. 12-14. Federal Rule of Evidence 407, while not directly applicable in this case, specifically prohibits in most cases the use of evidence of remedial measures against an entity. Rule 407 is based on sound public policy and is intended to encourage parties to remedy problems on their own, without fear that their action will be construed against them. In the context of long-term care facilities, the rationale underlying Rule 407 is certainly applicable. It is desirable to encourage facilities to take remedial actions and not discourage such actions because a facility might be concerned that such action would be construed against it. I also recognize that is not uncommon for a facility to take remedial action, whether or not it agrees with such action, simply because a surveyor suggests the action. Accordingly, I have not construed any remedial action by Petitioner to be an admission of fault, liability, or culpability.