SUBJECT:

Livingston Care Center,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

I grant the motion for summary disposition made by the Centers for Medicare & Medicaid Services (CMS). I find that CMS was authorized to impose civil money penalties against Petitioner, Livingston Care Center, for each day of a period that began on April 20, 2001 and which ran through May 11, 2001. I find to be reasonable penalties in the amount of $500 per day. The total amount of civil money penalties that I sustain in this case is $10,500. I deny as moot CMS's motion to enter summary disposition concerning alleged violations by Petitioner of Life Safety Code requirements. I also deny as moot Petitioner's motion to amend its hearing request to contest allegations that it failed to comply with Life Safety Code requirements.

The undisputed material facts of this case establish that Petitioner failed to comply substantially with a participation requirement that is identified at Tag 314 in the report of a compliance survey that was completed of Petitioner's facility on April 20, 2001 (April 2001 survey). Petitioner did not aver facts to show that it attained compliance with this requirement before May 11, 2001. I sustain the amount of the civil money penalties that CMS determined to impose against Petitioner based on the undisputed material facts and the factors for determining penalty amounts that are set forth at 42 C.F.R. § 488.438(f)(1) - (4), including those factors that are stated at 42 C.F.R. § 488.404 and which are incorporated by reference at 42 C.F.R. § 488.438(f)(3).

I. Background

Petitioner is a skilled nursing facility that is located in Dayton, Ohio. Petitioner participates in the Medicare program. As a participant it is required to comply with regulations at 42 C.F.R. Part 483 that govern the participation in Medicare of skilled nursing facilities and nursing facilities. Petitioner was surveyed for compliance with Medicare participation requirements at the April 2001 survey by surveyors who are employed by the Ohio Department of Health. The surveyors concluded that Petitioner was not complying substantially in several respects with Medicare participation requirements. Additionally, the surveyors found that Petitioner was not complying with several provisions of the Life Safety Code, which governs safety aspects of a long-term care facility's plant.

The Ohio Department of Health found that Petitioner did not attain compliance with participation requirements until May 11, 2001. The compliance date was determined based on the results of a revisit survey that the Ohio Department of Health conducted on May 11, 2001 (May 2001 resurvey). CMS accepted the Ohio Department of Health's findings both as to the presence of deficiencies and as to their duration.

In a notice letter to Petitioner dated May 22, 2001, CMS advised Petitioner that it had determined to impose civil money penalties of $500 per day against Petitioner for each day of the April 20 - May 11, 2001 period. CMS also advised Petitioner that it had determined to deny Petitioner payment for all new Medicare admissions effective July 20, 2001. CMS never implemented this second remedy as it subsequently determined that Petitioner attained compliance with participation requirements effective May 11, 2001.

Petitioner requested a hearing from CMS's determination and the case was assigned to me for a hearing and a decision. CMS moved for summary disposition. In its motion it argued that the undisputed material facts of the case supported its determination that Petitioner had not complied substantially with participation requirements as stated at Tag 314 of the report of the April 2001 survey. CMS argued additionally that summary disposition should be entered in its favor as to the Life Safety Code violations that were identified at the April 2001 survey because Petitioner had not requested a hearing to contest these deficiency findings. CMS argued also that its determination that civil money penalties should be imposed in the amount of $500 per day was reasonable.

Petitioner answered the motion. In its answer, Petitioner contended that there were disputed issues of material fact concerning its compliance under Tag 314. It argued additionally that it had not been given notice by CMS that civil money penalties were being imposed in part to address any alleged Life Safety Code violations by Petitioner. It argued that it should be granted leave to amend its hearing request so that it could contest the findings of Life Safety Code violations. CMS filed a reply brief.

CMS submitted 16 exhibits in connection with its motion (CMS Ex. 1 - CMS Ex. 16). With its answer to the motion, Petitioner submitted the written declaration of Kinda E. Walden (Walden declaration). Petitioner also submitted documents which it designated as Exhibit 1, Exhibit 2A - Exhibit 2F, Exhibit 3, and Exhibit 4. Neither party has objected to my receiving any of these exhibits into the record. I receive into the record CMS Ex. 1 - CMS Ex. 16 and Petitioner's Ex.1, 2A - 2F, Exhibit 3, Exhibit 4, and the Walden declaration.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Summary disposition is appropriate;

2. The undisputed material facts show that Petitioner did not comply substantially with a participation requirement as stated at Tag 314 of the report of the April 2001 survey;

3. The undisputed material facts show that Petitioner did not attain compliance with participation requirements prior to May 11, 2001;

4. The undisputed material facts show that civil money penalties in amounts of $500 per day are reasonable for each day of the April 20 - May 11, 2001 period;

5. Petitioner contested its loss of authority to conduct nurse aide training thereby giving it a basis to contest CMS's determination that Petitioner provided care to its residents of a substandard quality;

6. I should deny as moot CMS's motion for summary disposition as to Petitioner's alleged Life Safety Code violations, and also, whether I should also deny as moot Petitioner's motion to amend its hearing request so as to contest alleged Life Safety Code violations.

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. Summary disposition is appropriate in this case.

I find summary disposition to be appropriate in this case because there are undisputed material facts which establish that Petitioner did not comply substantially with a participation requirement. And, the undisputed material facts also support the civil money penalties that CMS determined to impose when these facts are considered in conjunction with regulatory factors.

I discuss the undisputed material facts at Finding 2 of this decision. As I make clear at Finding 2, I do not conclude that every fact averred by CMS is undisputed. However, CMS has averred sufficient facts that are not disputed to establish a basis to impose summary disposition in its favor.

Regulations at 42 C.F.R. Part 498 governing hearings held in cases involving CMS do not mention summary disposition. However, administrative law judges routinely accept and rule on motions for summary disposition. In doing so, they apply the principles of summary judgment that are stated in Rule 56 of the Federal Rules of Civil Procedure, which governs summary judgment in federal civil cases.

A motion for summary disposition is a motion that is based on averred material facts. A material fact is a fact which, if established, might affect the outcome of the parties' dispute over a particular issue. The moving party must aver the material facts that it is relying on and which it alleges to be undisputed. Fed. R. Civ. P. 56(c). It is appropriate to grant summary disposition where conclusions favorable to the moving party may be drawn from undisputed material facts and applicable law.

Summary disposition is not appropriate if material facts are genuinely disputed. However, a party opposing a motion for summary disposition does not create a dispute as to material facts simply by asserting that such facts are disputed. It is never a sufficient basis for a party opposing a motion for summary disposition to prevail for that party to aver only that it disputes the facts that are offered by the moving party without articulating facts of its own that dispute the moving party's averred facts:

[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial.

Fed. R. Civ. P. 56(e). Likewise, it is never a sufficient basis for the opposing party to prevail by asserting, without offering facts that dispute the moving party's averred facts, that the motion must be denied because that party intends to present unspecified evidence at an in-person hearing. See Id.

Furthermore, summary disposition is not precluded if the opposing party simply speculates that direct testimony or cross-examination might bring out facts that contradict those asserted by the moving party without averring the specific facts that are likely to emerge through such testimony. The right to confront and cross-examine a witness is a fundamental right. But, that does not mean that a party may impose an absolute bar against imposition of summary disposition simply by asserting the right. If that were so no motion for summary disposition ever could be granted.

Parties frequently confuse the concept of material facts with conclusions that are based on material facts. A conclusion is a finding that may be drawn from material facts. A dispute between parties as to the correct conclusion to be drawn from the facts will not be an impediment to the entry of summary disposition if the material facts are not disputed. For example, it may be a material fact that a resident's plan of care directed that specified services be provided to a resident. It may also be a material fact that the staff at the facility failed to provide the specified services. It is a conclusion that the failure to provide the services in accordance with the requirements of the resident's care plan potentially may have harmed the resident. And, it is a conclusion that such a failure is a substantial failure of the facility to comply with a participation requirement that is set forth in a regulation. In such a case, the parties' disagreement as to the appropriate conclusions would be no impediment to the entry of summary disposition if the underlying material facts were not in dispute.

Nothing that I have said here suggests that it should be difficult for a party in possession of facts that legitimately refute those averred by the moving party to oppose successfully a motion for summary disposition. The only thing that the opposing party must do to successfully resist a motion for summary disposition is aver facts that create a genuine dispute as to material facts.

In this case, and as I shall discuss in detail at Finding 2, CMS's central fact assertions concerning Petitioner's deficiencies at Tag 314 of the April 2001 survey are allegations that Petitioner's residents failed to receive care that was prescribed to prevent the residents from developing pressure sores or to treat pressure sores. Petitioner could have responded to these allegations - assuming it was aware of contradictory facts - simply by averring those specific facts that would show that the residents received the care that had been prescribed for them. In that event I would have found disputed material facts and would have denied CMS's motion.

However, with very few exceptions, Petitioner did not aver any specific facts that responded to CMS's averred facts. Petitioner's response to CMS's motion consists, in the main, of making assertions and arguments that simply do not respond to the facts averred by CMS and which fail to call those averred facts into dispute. I deal specifically with Petitioner's assertions and arguments as they pertain to the facts alleged by CMS below, at Finding 2. Here, I deal with Petitioner's arguments in more general terms.

First, Petitioner broadly challenges the credibility of the surveyor findings that are the basis for the deficiency statement at Tag 314 and which underlie CMS's fact allegations. Petitioner claims that the surveyors' notes are incomplete or illegible and that the surveyors are not credible reporters. It argues also that the surveyor statements made in the report of the April 2001 survey that support CMS's allegations are hearsay and, therefore, not reliable.

I am not persuaded by Petitioner's credibility arguments because they do not address the specific material facts averred by CMS. The allegations that CMS makes are that Petitioner failed to provide specifically prescribed care to certain of its residents. For example, CMS avers that several of Petitioner's residents were prescribed pressure relieving mattresses or wheelchair pads which they did not receive. Petitioner has, for the most part, not denied these allegations. Identifying minor discrepancies in the surveyors' reports, or asserting that the surveyors' notes are in places illegible, or complaining that the surveyors' findings are hearsay, is not sufficient to call into question CMS's allegations if Petitioner does not aver specific facts to refute the findings that the surveyors made that Petitioner failed to provide pressure relieving devices to its residents.

Indeed, with only a very few exceptions, Petitioner has not offered facts that contradict the surveyors' observations. Petitioner has not provided the statement of any witness who avers that he or she saw residents with the pressure relieving devices that the surveyors found were not supplied to the residents or who avers that he or she saw the residents receiving care that the surveyors say was not supplied to the residents. Petitioner has offered the Walden declaration allegedly to rebut the surveyors' findings. But, Ms. Walden avers no facts in her declaration that contradict the surveyors' first-hand observations of the care that Petitioner gave to its residents. See Walden declaration.

Second, Petitioner cites to various documents, most of which it has not produced, and asserts, without explaining the documents' contents, that these documents provide a basis to dispute the material facts relied on by CMS. According to Petitioner, these documents consist of documents that Petitioner generated as part of an informal dispute resolution (IDR) proceeding. Petitioner refers to the IDR documents as support for its contention that it will produce at some future date, but not now, evidence establishing facts that counter CMS's assertions.

This tactic is not an effective response to CMS's motion. Petitioner has an obligation to offer now, and not at some future date, the specific facts that refute those facts that CMS is relying on. It is simply insufficient for Petitioner to say that the documents contain unspecified evidence that refutes CMS's averred material facts.

Third, Petitioner offers conclusions about the medical conditions that its residents manifested and about the care that it provided to its residents and asserts that summary disposition should be denied based on these conclusions. For example, Petitioner asserts that pressure sores developed by some of its residents were unavoidable. It is fair to consider whether these conclusions should be drawn from the facts of this case. But, the conclusions offered by Petitioner are not in and of themselves a reason to find disputed issues of material fact.

As I discuss above, a conclusion is not a fact but is an opinion that is based on fact. What is important in deciding whether there are disputed material facts is whether Petitioner averred facts of its own which contradicted those averred by CMS and which support Petitioner's proffered conclusions. Petitioner failed to assert such facts. The conclusions that Petitioner proffered either are based on those facts that are asserted by CMS or are not based on any asserted facts.

2. The undisputed material facts establish that Petitioner failed to comply substantially with the participation requirements that are stated at 42 C.F.R. § 483.25(c)(1) and (2).

The participation requirements that are stated at 42 C.F.R. § 483.25(c)(1) and (2) state that a facility must ensure that:

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

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

The surveyors who conducted the April 2001 survey of Petitioner found that Petitioner failed to comply with these requirements. CMS Ex. 6 at 13 - 19. They based their conclusions on observations they made of the care that Petitioner gave to five residents - identified in the survey report as Residents #s 83, 73, 90, 1, and 20 - along with their review of these residents' treatment records (originally, the surveyors found errors in the care that Petitioner gave to a sixth resident, but these allegations were deleted in the course of IDR). Id.

CMS offered undisputed facts from which I conclude that Petitioner did not comply substantially with the requirements of 42 C.F.R. § 483.25(c)(1) and (2) in providing care to these residents. The undisputed material facts show that there was a pattern of failures by Petitioner to provide care that had been prescribed to its residents to prevent the development of, or to treat, pressure sores. In the instances that I discuss below, Petitioner's staff developed plans of care which acknowledged that residents were at great risk for developing pressure sores and which required that these residents be supplied with pressure relieving devices. Residents were not given these devices despite these instructions. The undisputed material facts establish also that residents were not given other care that should have been given to them in order to treat, or prevent the development of, pressure sores. For example, one resident who was at risk for developing sores and who had developed a pressure sore on her buttock was allowed by Petitioner's staff to lie for hours with her buttock, and the sore, in contact with urine soaked bedding. The staff fed a meal to the resident while she lay in urine soaked bedding but failed to clean the resident or to replace the bedding.

Petitioner's failures to provide care to its residents harmed them. The residents whose cases I discuss below were individuals who were characterized by Petitioner's staff as being at a high risk for developing pressure sores. Yet, the undisputed material facts establish that Petitioner's staff failed to provide to these residents the very services that the staff had determined to be essential to prevent or treat pressure sores. Several of these residents developed additional sores while under Petitioner's care. These sores were avoidable given Petitioner's failures to follow the care plans that it developed for these residents to prevent and treat pressure sores.

a. Petitioner failed to provide necessary treatment and services to Resident # 83 to promote healing, prevent infection, and prevent new sores from developing.

The following are the material facts alleged by CMS concerning the care that Petitioner gave to Resident # 83:

• The resident was dependent on Petitioner's staff for all aspects of her care. CMS Ex. 6 at 13. The resident was assessed to be at a high risk for developing pressure sores. Id. at 13 - 14. The resident's plan of care required that the resident be given pressure relieving devices for her bed and her chair. Id. at 14.

• On April 16, 2001, at 8:30 a.m., a surveyor observed that the resident had a standard mattress without pressure relief. CMS Ex. 6 at 14. The surveyor observed the resident's bed again at 9:35 a.m. Again, the resident had a standard mattress without pressure relief. Id. The mattress had a plastic cover which had multiple creases, especially at the upper and middle portion of the mattress. Id.

• The resident was observed to be sitting in a wheelchair on five separate occasions on April 16 and 17, 2001. CMS Ex. 6 at 14. On all of these occasions the wheelchair lacked pressure relief. Id. The resident's seat cushion was observed to be on the resident's wardrobe. Id.

• Prior to the April 2001 survey Resident # 83 was known to have one pressure sore, a Stage IV sore on her right heel, which had been determined by the resident's physician to be unavoidable. CMS Ex. 6 at 13. During the survey the resident was observed by surveyors to have three additional pressure sores. One of these, first observed by a surveyor on April 16, 2001, consisted of a Stage II pressure sore over the resident's left fibula and below the resident's left knee. Id. at 14. A second sore was observed by a surveyor on April 18, 2001 and consisted of a Stage II pressure sore on the top of the resident's right foot. Id. at 15. A third sore was observed by a surveyor on the resident's left buttock on April 16, 2001. Id. at 15 - 16.

• The pressure sore on the resident's left fibula was located at the point where a knee immobilizer pressed on tissues above the bone. CMS Ex. 6 at 14. The resident's treatment records established that Petitioner's staff first observed the sore on April 6, 2001. Id. at 15. The records show that, on that date, a nurse employed by Petitioner applied a clear dressing to the sore. Id. However, the nurse did not record the defining characteristics of the sore. Id. There was nothing in the resident's records prior to the surveyor's observation of the sore on April 16, 2001 showing that Petitioner's staff had notified the resident's physician about the sore . Id. There was no documentation in the resident's record of a plan of care to treat the sore. Id. There was no intervention to modify the pressure of the immobilizer at the point where the sore had developed. Id.

• Review of Resident # 83's treatment records showed that Petitioner's staff first observed redness on the resident's right foot on April 5, 2001. CMS Ex. 6 at 15. There was nothing in the resident's record which showed that Petitioner's staff made any interventions to address this problem prior to April 18, 2001, when a Stage II pressure sore was identified on the foot. Id.

The averred facts support the conclusion that Petitioner failed to provide necessary treatment and services to Resident # 83 to promote healing, prevent infection, and prevent new sores from developing in contravention of 42 C.F.R. § 483.25(c). The facts as alleged by CMS also support the conclusion that Resident # 83 developed avoidable pressure sores that were related to Petitioner's failure to provide necessary care for the resident.

The facts show that Petitioner's staff knew that the resident was at risk for developing pressure sores. The staff developed a plan of care for the resident that included the requirement that the resident be given a pressure-relieving mattress. However, Petitioner's staff failed to implement the resident's plan of care. The averred facts also show that Petitioner's staff knew as early as April 6, 2001 that an immobilizing device was applying pressure to the resident's leg and causing her to develop a sore. Yet, the staff developed no plan of care to address this problem - nor did it take specific steps designed to alleviate the pressure on the resident's leg - until at least 10 days after the problem was first identified. Finally, the facts averred by CMS show that the staff waited at least 13 days after identifying a problem with the resident's right foot before addressing that problem. During that period of time and while untreated, the problem worsened until, on April 18, 2001, a Stage II pressure sore was observed.

Petitioner asserts that it disputes CMS's averred facts and the conclusions which CMS contends that I should draw from these averred facts. Petitioner's assertions notwithstanding, I find that there are no disputed issues of material fact concerning the care that Petitioner gave to Resident # 83. CMS's averred facts have not been rebutted by Petitioner. These unrebutted facts are, for the reasons I discuss above, ample basis for me to conclude that Petitioner failed to comply with regulatory requirements in providing care to the resident.

I find that there is no genuine dispute that Petitioner failed to assure that Resident # 83 was seated on a pressure relieving pad while up in a wheelchair. In its answer to CMS's motion, Petitioner both admits and denies that CMS's averred facts are correct. However, it has not offered any facts that call into question the surveyors' observations of the resident.

On the one hand, Petitioner seems to admit that the resident did not have a pressure relieving pad, but attempts to argue that the pad was not supplied to the resident because supplying the pad would have interfered with treatment to the resident's leg. Petitioner's answer at 5. I might find this contention to have some merit if Petitioner offered facts to support it. But, Petitioner offered no such facts. The assertion that the pad was not supplied because to do so would have interfered with the resident's care simply hangs in the air without any meaningful support.

On the other hand, Petitioner says that the surveyor's observations of the resident were inaccurate:

[o]bviously, this resident was not left on 04/16/01, from 8:30 am to 12:30 pm or on 04/17/01 from 9:35 am to 12:26 pm in the wheelchair as claimed by the surveyors, as the resident was to be up in a geri-chair. As shown in Livingston's IDR Exhibit A, page 3 Resident # 83 was not up in the geri-chair and could not be observed at these times.

Petitioner's answer at 5.

Petitioner did not offer a copy of "IDR Exhibit A, page 3". However, I have been able to find a copy of what appears to be that document as part of CMS Ex. 7. CMS Ex. 7 at 10. It is a chart, headed with the phrase "Plan of Treatment." It contains numerous hand-written notations and entries. In the left hand margin of the chart is a phrase dated March 22, 2001 which reads: "[m]ay be up in Geri-Chair q day (Circle if not up in Geri Chair)".

Next to that phrase is a column labeled "frequency" which contains handwritten entries marked "7 - 3" and, directly beneath that "3 - 11." Then, spread across the page horizontally, beginning adjacent to these two entries are a number of initials, many of which are circled, and a few of which are not circled. None of the initials are dated.

Petitioner has provided me with no explanation whatsoever as to what these chart entries mean aside from asserting that they support its contention that the resident could not have been observed to be in a wheelchair or geri-chair on the dates and times that the surveyors contended that they saw the resident in the chair without a pressure relieving pad. I cannot discern what the entries mean absent some credible explanation of them by someone who is in a position to testify about them knowledgeably. Possibly, these entries might have some meaning and Petitioner might have established their meaning via an affidavit or declaration by the person who made them. But, I find them to provide no support for Petitioner's contention absent any credible explanation of what the entries mean.

There is no dispute as to CMS's contention that Resident # 83 did not receive a pressure relieving mattress as was ordered for the resident in the resident's plan of care. In response to that assertion Petitioner says only that it "cannot confirm whether . . . [the mattress that had been supplied to the resident] was a standard mattress or not." Petitioner's answer at 5. This response plainly is inadequate to rebut the averred facts that the resident was not given the prescribed mattress.

There is also no dispute concerning CMS's allegations that Petitioner's staff observed redness on Resident # 83's right foot on April 5, 2001 but failed to address the problem for 13 days, until April 18, 2001, when a Stage II pressure sore was observed on that foot. Petitioner's answer to CMS's motion for summary disposition is silent as to these fact allegations.

Nor does Petitioner dispute CMS's contention that it failed to provide treatment for more than 10 days to a pressure sore that had developed on the resident's left fibula and failed to take actions that would have prevented this sore from worsening. Petitioner's non-denial of CMS's asserted facts is tantamount to an admission that they are true.

Petitioner attempts to respond indirectly to CMS's assertions of fact concerning the sore on the resident's fibula by asserting that the pressure sore was clinically unavoidable. Petitioner's answer at 5 - 6. It contends that the resident had a complex medical condition which made her treatment options and choices difficult. Id. at 5. Petitioner asserts that it weighed the risk of skin breakdown against the possibility of further trauma to the resident's leg if the resident's leg was not properly immobilized and made a difficult medical decision to immobilize the leg regardless of the possibility of breakdown.

These assertions by Petitioner are conclusions. The point of Petitioner making them, however, is that CMS's assertions are irrelevant because Petitioner's failure to treat the sore on the resident's leg would not have prevented the sore from developing or worsening. If Petitioner had identified facts that supported its conclusions I would find that there are disputed issues of material fact concerning whether Petitioner provided necessary care to deal with the pressure sore on Resident # 83's fibula. But, Petitioner identifies no facts that support its asserted conclusions. Petitioner contends only that these facts may be found in documents that it submitted in connection with IDR and which it has not submitted here. At no point does Petitioner explain what these alleged facts are.

Petitioner's contention that the sore on Resident # 83's fibula was unavoidable is part and parcel of Petitioner's broader contention that all of the resident's sores were unavoidable. Petitioner argues that the resident's pressure sores were directly related to her medical condition and her diagnosis rather than to any care that Petitioner gave or withheld from the resident. Petitioner contends that this broad conclusion is supported by facts that are stated in IDR-related documents. But, Petitioner has not explained what those facts consist of.

Petitioner's arguments concerning whether the resident's sores were avoidable - including its arguments about the sore on the resident's fibula - are insufficient to resist CMS's motion for summary disposition because they are not supported by any specific facts. See Fed. R. Civ. P. 56(e). As I explain above, at Finding 1, it is an insufficient basis to oppose CMS's motion for Petitioner to refer to unspecified documents and to assert, in effect, that the facts that create a dispute as to material facts are in there, somewhere, to be disclosed at a later date.

A few of the IDR-related documents referred to by Petitioner were submitted by CMS as part of CMS Ex. 7. IDR Ex. A, pages 18 - 19 are nurse's notes that were submitted by CMS as CMS Ex. 7 at 24 - 25. IDR Ex. A, page 20 is a diagnosis record that was submitted by CMS as CMS Ex. 7 at 26. Petitioner cites to them in its answer to the motion but does not explain what is in these documents that supports its contentions. I have examined these documents. I cannot find any facts stated in these documents that support Petitioner's assertion that Resident # 83's pressure sores were unavoidable.

Petitioner also asserts that it could not comply with an alleged directive by surveyors to pad the immobilizer on Resident # 83's leg. Petitioner asserts that it "could not 'pad' the metal bars on the immobilizer as this would have placed more pressure on . . . [the resident's] leg, defeating the purpose of the use of the immobilizer." Petitioner's answer at 6. It offers no facts to support this conclusion. Besides, CMS has not alleged that Petitioner failed to provide necessary care to the resident by failing to pad the resident's leg immobilizer. Nor has CMS contended that the Ohio Department of Health surveyors directed that the immobilizer be padded. The report of the April 2001 survey does not describe what Petitioner should have done. Rather, it focuses on Petitioner's failure to do anything to address the problems caused by pressure against the resident's leg despite being aware of these problems for a 13-day period. Petitioner has not responded to this allegation with any facts.

b. Petitioner failed to provide timely incontinence care to Resident # 73 in order to promote the healing of a pressure sore.

The following are the material facts alleged by CMS concerning the care that Petitioner gave to Resident # 73:

• Resident # 73 was assessed as needing the assistance of two people for bed mobility. CMS Ex. 6 at 16. The resident also was assessed as frequently being incontinent of urine and as requiring total care for personal needs. Id. The resident's plan of care required that the resident be toileted every two hours. Id. The care plan noted that the resident was at risk for skin impairment due to the resident's incontinence and dependency. CMS Ex. 13 at 4, 20.

• The resident had a Stage II pressure sore on her right buttock. CMS Ex. 6 at 16.

• On April 17, 2001, a surveyor observed the resident lying in bed for more than two hours without being repositioned or being checked for incontinence. CMS Ex. 13 at 5.

• On April 18, 2001, at 7:45 a.m., a surveyor observed the resident in the company of a nurse on Petitioner's staff and a nurse's aide. CMS Ex. 6 at 16. The pad underneath the resident was soiled with urine, the resident's buttocks and upper legs were moist with urine, and the resident's buttocks and bed linen had a urine odor. Id.

• Petitioner's staff then fed the resident breakfast while the resident remained in a urine soaked bed. CMS Ex. 6 at 16. The resident did not receive perineal care before 9:30 a.m. on April 18. At that time the urine soaked bed was changed. Id.

• Based on an interview with the resident the surveyor found that the resident was unable to tell whether she had been incontinent or whether her bed was wet. CMS Ex. 6 at 16.

• The resident was observed again at 1:20 p.m. on April 18, 2001 in the company of a facility treatment nurse and an enterostomal therapist. The resident was again incontinent and wet with urine. CMS Ex. 6 at 16 - 17.

These facts, if not rebutted, support the conclusion that Petitioner failed to provide Resident # 73 with necessary care to promote healing of a pressure sore. The facts relied on by CMS show that Petitioner's staff disregarded the instructions in Resident # 73's plan of care. Moreover, they show that Petitioner's staff caused an environment that would interfere with, rather than promote, the healing process.

The resident was immobile and she was unaware whether she had been incontinent. She thus was totally dependent on Petitioner's staff to keep her clean and toileted. Moreover, the resident had developed a pressure sore on her right buttock and episodes of incontinence jeopardized the healing process. Despite the presence of these factors, Petitioner's staff not only failed to prevent episodes of incontinence, but it failed to respond promptly to address those episodes. On April 17, 2001, the resident was allowed to lie for more than two hours without being repositioned or checked for incontinence. On April 18, 2001, Petitioner's staff allowed the resident to lie for nearly two hours on a urine-soaked bed, with her buttocks wet from urine. A pressure sore that had developed previously on the resident's right buttock was exposed to urine during this entire period. During this period the resident was fed but was not given perineal care nor was her bedding changed.

Although Petitioner asserts that it disputes the material facts relied on by CMS it has not, in fact, disputed them. Petitioner has offered no facts to challenge the accuracy of the surveyor's findings concerning the care that Petitioner gave to Resident # 73. It does not assert any facts that contradict the surveyor's observation that the resident was allowed to lie for more than two hours on April 17, 2001 without being repositioned or being checked for incontinence. And, it does not offer any facts to refute the surveyor's assertion that the resident lay for nearly two hours in urine-soaked bedding on the morning of April 18, 2001. Nor does it deny that these events directly contravened the instructions for the resident contained in the resident's plan of care.

Petitioner avers that it provided all of the care and services to Resident # 73 called for by the resident's plan of care. This assertion is an unsupported conclusion that does not respond to the observations made by the surveyor.

Petitioner asserts also that it has "serious disputes and concerns about the accuracy of those notes prepared by the surveyor and relied upon in her Declaration in support of CMS's Motion that allegedly concern this resident." Petitioner's answer at 6. However, Petitioner fails to articulate what these disputes and concerns are, nor does it offer any facts that refute the surveyor's findings.

Finally, Petitioner asserts that the pressure sore on the resident's buttock was a "skin on skin pressure area that developed unavoidably . . . ." Petitioner's answer at 7. Petitioner again fails to offer any facts to support this conclusion. Moreover, the conclusion is irrelevant. Even if the sore was unavoidable, the issue here is: what did Petitioner's staff do to provide care for the sore so that the sore would heal? Petitioner's plan of care for the resident obligated its staff to toilet the resident at regular intervals and to keep the resident clean and dry. The facts offered by CMS show that Petitioner's staff failed to satisfy these basic obligations.

c. Petitioner failed to provide pressure relief to Resident # 90 to prevent the development of pressure sores.

The following are the material facts alleged by CMS concerning the care that Petitioner gave to Resident # 90:

• Resident # 90 was assessed by Petitioner's staff as requiring total care. CMS Ex. 6 at 17. Her plan of care noted her to be at high risk for developing pressure sores. CMS Ex. 13 at 2, 11. According to the resident's minimum data set (MDS), dated

February 23, 2001, the care that Petitioner's staff was to provide Resident # 90 included pressure relief for the resident while the resident was in bed and in a chair. Id.

• A surveyor observed the resident on April 16 and 17, 2001. On neither occasion had the resident been supplied with pressure relief while in bed. CMS Ex. 6 at 17. On April 17, 2001 Petitioner's staff verified to the surveyor that the resident had not been supplied with pressure relief while in bed. Id. at 18. Also on April 17, the resident was observed sitting in a geri-chair. Id. The resident's heels were flat on the surface of the chair. Id. Petitioner's staff verified that the chair did not have any pressure relief. Id.

• On April 9, 2001, a nurse on Petitioner's staff identified a blister on the resident's right heel. CMS Ex. 6 at 18. The resident's physician was notified and treatment was begun. Id. The resident also was noted to have a Stage I pressure sore on her right metatarsal. Id.

• On April 17, 2001 the resident's physician was present to examine and treat the resident. CMS Ex. 6 at 18. On that occasion the resident's heel was unwrapped and it was observed to be red and bleeding. Id. The physician described the heel as having a Stage II pressure sore. Id. The resident also was observed to have a Stage I pressure sore on the bony prominence of her right metatarsal. Id.

These facts, if not disputed, establish that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(c) in providing care to Resident # 90. The resident was at high risk for developing pressure sores. She was supposed to be given pressure relief, both while in bed and while in a chair, as a preventive measure. Yet, on both April 16 and 17, 2001 she was observed by a surveyor to be in bed or in a geri-chair without being given the prescribed pressure relief.

Petitioner has not offered facts which dispute the material facts relied on by CMS. Petitioner does not deny that its staff was supposed to provide the resident with a pressure relieving mattress but failed to do so. Nor does Petitioner deny that, on April 16 and 17, 2001, the resident was not given pressure relief either while in bed or while in a geri-chair.

Petitioner contends that the wound on the Resident # 90's right heel was not a pressure sore but was, rather, a blister that had burst. Petitioner's answer at 6. For purposes of this decision I am accepting Petitioner's proffered conclusion as correct, although I note that Petitioner's own staff described the wound as being a Stage II pressure sore. However, the conclusion begs the question of whether Petitioner complied with the requirements of 42 C.F.R. § 483.25(c) in providing care to Resident # 90. The central element of the allegation of noncompliance is Petitioner's failure to provide necessary care and treatment to the resident. Petitioner's noncompliance certainly is made more egregious if Petitioner developed a pressure sore as a result of that noncompliance. But, the noncompliance lies in the failure by Petitioner to provide care and not in any resulting development of a pressure sore by the resident.

Petitioner asserts that, on April 17, 2001, the resident's physician ordered that the resident wear Herbst Cradle Boots in order to protect her feet. Petitioner's answer at 6. I accept this assertion as true for purposes of deciding CMS's motion. But, it does not respond to the failure by Petitioner to provide the resident with pressure relief as required by the resident's plan of care and it is not material to the allegations of noncompliance that are made in the survey report and by CMS.

Petitioner also makes the following statement about the care that was prescribed by the resident's physician:

Resident # 90's physician ordered a pressure-relieving mattress on April 17, 2001 the same time the Herbst Cradle Boots were ordered. . . [citation omitted]. The physician had been carefully monitoring Resident # 90's skin care needs and did not feel that a pressure-relieving mattress was not needed at that time.

Petitioner's answer at 6. I have no idea what this assertion means. On the one hand, it seems to suggest that the physician first ordered pressure relief for the resident on April 17, 2001. But then, it possibly suggests that the physician did not believe that the resident needed a pressure relieving mattress "at that time." The confusion created by this assertion is compounded by the fact that the final sentence not only contains a double negative but by the failure by Petitioner to state what it means by the phrase "at that time." Petitioner has not cited to anything that would support the assertions that are contained in the last sentence of the statement that I have quoted.

In any event the statement does not refute - or even address - the facts that are relied on by CMS. A central fact allegation made by CMS is that, as early as February 23, 2001, Petitioner's staff had assessed the resident as requiring pressure relief both while in and out of bed. Petitioner has not denied this averred fact. Nor has Petitioner denied the surveyor's observations that its staff failed to provide the resident with pressure relief, either while in bed or while in a chair, on either April 16 or 17, 2001.

Petitioner does assert, generally, that Resident # 90 "was provided pressure-relieving devices as ordered by the physician and as identified by our staff . . . ." and that there "was no violation of the regulation." Petitioner's answer at 6. These are conclusions that Petitioner does not support with any specific facts.

d. Petitioner failed to provide care to Resident # 1 to prevent the development of pressure sores.

The following are the material facts that CMS alleged concerning the care that Petitioner gave to Resident # 1:

• On April 16, 2001, the surveyor observed Resident # 1 to be wearing a right heel cradle boot. This boot was fastened to the resident's foot with Velcro straps across the top of the foot where the two sides of the boot met. CMS Ex. 6 at 18.

• At 11:33 a.m. on April 17, the resident was observed during a dressing change to the resident's right heel. When the treatment nurse removed the heel cradle boot, a previously unidentified Stage II open pressure sore was observed on the top of the resident's right foot. Both the surveyor and the treatment nurse observed that the pressure sore was in an area where the boot had left an imprint. CMS Ex. 6 at 18.

• On April 17 the treatment nurse treated the wound with an occlusive transparent dressing. CMS Ex. 6 at 18.

• On April 20, 2001, at 11:55 a.m., the wound was observed to be covered with an adhesive dressing that could not be removed without causing further trauma to the resident. CMS Ex. 6 at 18. The dressing was not dated, as is required by facility policy. Id. However, two nurses told the surveyor that the dressing had been changed on April 19. Id.

• Resident # 1's plan of care provided that the resident would receive a pressure relieving wheelchair cushion. CMS Ex. 14 at 4 - 5, 19. A surveyor observed the resident in a wheelchair at three different times on April 16, 2001 and on one occasion on April 17, 2001. On none of these occasions had the resident been supplied with a pressure relieving cushion. Id. at 5, 19, 28, 30.

The facts averred by CMS support a conclusion that Petitioner failed to provide care to Resident # 1 that satisfied the requirements of 42 C.F.R. § 483.25(c)(1) and (2). They show that the resident was not given prescribed care that was intended to prevent the development of pressure sores. They also show that the resident developed a sore on his foot that could have been avoided had Petitioner's staff been attentive to the consequences of strapping a protective boot to the resident's foot. Finally, they show that Petitioner's staff incorrectly treated that sore after it had developed by applying an adhesive bandage to it.

There are disputed material facts on the issue of whether Petitioner gave proper care to Resident # 1's right foot and whether the resident developed an avoidable pressure sore on that foot. But, the facts showing that Petitioner failed to supply Resident # 1 with a prescribed pressure relieving device are undisputed. The undisputed material facts are sufficient to establish that Petitioner failed to give Resident # 1 care that was intended to prevent the development of pressure sores.

Petitioner offered specific facts that are sufficient to create a dispute as to whether Resident # 1 developed a pressure sore on his right foot as a result of Petitioner's staff's failure to provide appropriate care to the resident. The facts offered by Petitioner are that the injury to the resident's foot were not caused by pressure from the protective boot worn by the resident but occurred when another resident's wheelchair rolled over Resident # 1's foot. P. Ex. 2C.

However, Petitioner offered nothing to refute the surveyor's observations that Petitioner failed to supply Resident # 1 with the pressure relieving cushion required by the resident's plan of care. Nor did Petitioner offer any explanation for its failure to do so. Petitioner asserts, without offering any supporting facts, that "the pressure relieving devices were made available." Petitioner's answer at 4. The conclusion is an unsupported denial of CMS's averred facts which is insufficient to establish a dispute. See Fed. R. Civ. P. 56(e).

Petitioner argues that CMS's allegations concerning Petitioner's failure to give Resident # 1 a wheelchair cushion were not made in the report of the April 2001 survey but were made in a declaration that CMS offered to support its motion for summary disposition. Petitioner's answer at 4; see CMS Ex. 6; CMS Ex. 14. Petitioner seems to be asserting that CMS should not be permitted to rely on its allegations inasmuch as they were not made in the survey report. But, Petitioner has not shown how it was prejudiced by these new allegations. Petitioner had ample opportunity to respond to them and it failed to do so.

e. Petitioner failed to provide pressure relief to Resident # 20 to prevent the development of pressure sores.

The following are the material facts alleged by CMS concerning the care that Petitioner gave to Resident # 20:

• The resident's care plan directed that the resident be given a pressure relieving cushion while sitting in a wheelchair. CMS Ex. 6 at 19.

• However, on all five days of the survey (April 16 - 20, 2001) the resident was observed to be sitting in a wheelchair that lacked a pressure relieving cushion. CMS Ex. 6 at 19.

• On April 20, 2001, at 11:10 a.m. the resident was observed to have a Stage II pressure sore on his right buttock. CMS Ex. 6 at 19. On April 19, 2001, the sore was documented by Petitioner's staff to be a Stage I pressure sore. Id.

These facts, if not disputed by Petitioner, establish a failure by it to comply substantially with the requirements of 42 C.F.R. § 483.25(c). The facts establish that Resident # 20 had been prescribed pressure relieving devices including a pressure relieving cushion for his wheelchair. Yet, on five consecutive days the resident was observed to be sitting in a wheelchair without a pressure relieving cushion.

Petitioner disputes that the injury to Petitioner's right buttock was a pressure sore. Petitioner's response at 4. According to Petitioner the injury was a tear that was unrelated to pressure. Id. I accept this assertion as true for purposes of deciding CMS's motion, despite the fact that Petitioner's own staff described the injury to be a pressure sore. However, the assertion is insufficient to refute the allegations of noncompliance made in the survey report or by CMS. The core allegations of noncompliance are the failure by Petitioner to provide the care called for in its own plan of care for Resident # 20.

Petitioner has offered no facts to rebut these core allegations and, in fact, it has not averred that it disputes them.

Petitioner's noncompliance would be more egregious if its failure to provide care to Resident # 20 caused the resident to develop a pressure sore. But Petitioner's staff's omissions are a failure to comply with the requirements of 42 C.F.R. § 483.25(c) whether or not these omissions caused the resident to develop a sore. What is unrebutted here is that Petitioner's staff failed to give the resident required treatment to prevent, or to promote the healing of, pressure sores.

3. The undisputed material facts show that Petitioner did not attain substantial compliance with the participation requirement that is stated at Tag 314 of the April 2001 survey report before May 11, 2001.

At the May 2001 resurvey the Ohio Department of Health surveyors concluded that Petitioner had attained substantial compliance with participation requirements by May 11, 2001. Based on these findings CMS determined that the period of time during which Petitioner failed to comply substantially with participation requirements ran from April 20, 2001 through May 11, 2001. CMS Ex. 10 at l.

Petitioner offered no facts to dispute CMS's contention that Petitioner was not complying substantially prior to May 11, 2001 with the pressure sore prevention and treatment requirements that are stated at 42 C.F.R. § 483.25(c) and which are the basis for the allegations of noncompliance made at Tag 314 of the April 2001 survey report. Indeed, Petitioner did not allege that it attained substantial compliance at any time prior to May 11, 2001.

4. The undisputed material facts establish that civil money penalties of $500 per day are reasonable for each day of the April 20 - May 11, 2001 period.

The undisputed facts of this case provide a basis for CMS to impose civil money penalties against Petitioner for each day of the April 20 - May 11, 2001 period. The deficiency that was present under Tag 314 is not one in which residents were placed in a state of immediate jeopardy. See 42 C.F.R. § 488.301. Therefore, civil money penalties that fall within a range of from $50 to $3,000 per day are applicable. 42 C.F.R. § 488.438(a)(1)(ii).

CMS contends that I must affirm the $500 per day civil money penalties that it determined to impose once I find that Petitioner manifested a non-immediate jeopardy range deficiency. According to CMS, "the scope of this tribunal's review on that issue [the issue of penalty amount] is extremely narrow." CMS's brief at 29. CMS asserts that my only authority is to decide whether a penalty is within an applicable range (immediate jeopardy vs. non-immediate jeopardy) for civil money penalties. Id. According to CMS, if I find that its penalty amount determination falls within the appropriate range, then I must sustain the penalty without addressing the question of whether the actual amount of the penalty is reasonable.

This argument is without support in the regulations. Similar arguments from CMS have been considered in the past and have been found to be without merit by appellate panels of the Departmental Appeals Board. Careplex of Silver Spring, DAB No. 1683 (1999). The regulations contemplate that the administrative law judge will make an independent decision as to what is a reasonable penalty using the same factors that CMS uses to make its initial determination. In making such a decision the administrative law judge must consider all of the regulatory factors. 42 C.F.R. §§ 488.438(e) and (f), and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).

The following factors must be considered in deciding whether a penalty is reasonable:

1. The facility's history of noncompliance, including the presence of any repeated deficiencies. 42 C.F.R. § 488.438(f)(1).

2. The facility's financial condition. 42 C.F.R. § 488.438(f)(2).

3. The regulatory factors specified at 42 C.F.R. § 488.404. 42 C.F.R. § 488.438(f)(3).

4. The facility's degree of culpability. Culpability includes, but is not limited to, neglect, indifference, or disregard for resident care, comfort or safety. Absence of culpability is not a mitigating factor to be used to reduce the amount of a civil money penalty. 42 C.F.R. § 488.438(f)(4).

The factors that are stated at 42 C.F.R. § 488.404 include the seriousness of a deficiency. 42 C.F.R. § 488.404(b). They also include the relationship of one deficiency to another and a facility's prior compliance history. 42 C.F.R. § 488.404(c)(1) and (2).

CMS's allegations of seriousness are that Petitioner's noncompliance constituted a pattern of noncompliance which caused residents to experience actual harm. This allegation incorporates the Ohio Department of Health's scope and severity findings that Petitioner manifested a level "H" deficiency at Tag 314. CMS Ex. 6 at 13. I take notice that a deficiency scope and severity of level "H" is a deficiency which manifests a pattern of noncompliance which caused residents to experience actual harm.

Petitioner argues that the Ohio Department of Health's scope and severity findings are incorrect. Petitioner's answer at 7. But, as I discuss above, at Finding 2, the undisputed material facts of this case sustain findings that there was a pattern of noncompliance by Petitioner and that Petitioner's noncompliance harmed its residents. The undisputed material facts show that Petitioner failed to provide care to several of its residents that was called for by the residents' plans of care. The frequency and persistence of Petitioner's failures clearly establishes a pattern of noncompliance.

There are also undisputed material facts that show that this noncompliance caused residents to experience actual harm. At least one resident developed pressure sores that were otherwise avoidable. As I discuss above, at Finding 2.a., Resident # 83 developed avoidable sores as a consequence of Petitioner's failure to provide necessary care. Other residents were harmed by Petitioner's failure to provide care that was necessary to promote the healing of sores.

Neither side has offered facts that relate to any of the other regulatory factors besides seriousness that might be used to decide penalty amounts in this case. CMS has not presented any facts that show that Petitioner has a history of noncompliance with participation requirements. Nor have any deficiencies been established at this stage of the case besides the deficiency that is described at Tag 314 of the report of the April 2001 survey. Therefore, there is no basis for me to evaluate the civil money penalties that CMS determined to impose in the context of the relationship of the Tag 314 deficiency to other possible deficiencies. CMS has not contended, nor has it offered facts to show, that Petitioner's culpability is a basis for the penalties that it determined to impose. Finally, Petitioner has offered no facts to show that its financial condition would make unreasonable payment by it of penalties of $500 per day for each day of the April 20 - May 11, 2001 period.

I find that civil money penalties of $500 per day - only 1/6 of the maximum penalty amount that may be imposed for non-immediate jeopardy deficiencies - are reasonable given the seriousness of the deficiency that was present here. Indeed, the penalties are quite reasonable given the egregiousness of Petitioner's noncompliance. The picture that emerges from the undisputed facts of this case is of a facility whose staff was woefully lacking in attentiveness to residents' needs and prescribed care. Petitioner failed on multiple occasions to provide care that its own staff had determined to be necessary to prevent the development of, or to treat, pressure sores. Petitioner's staff allowed one of its at-risk residents who was a high risk for developing pressure sores to lie for approximately two hours in urine soaked bedding with a pressure sore exposed to urine - even while the staff fed that resident a meal - before cleaning the resident and changing the bedding. In another instance Petitioner's staff failed to develop a plan to prevent the development of a pressure sore for a period of 13 days after the staff noted skin irritation. Ultimately, the Resident developed a Stage II pressure sore in the absence of any preventive measures by Petitioner's staff.

5. Petitioner did not contest its loss of authority to conduct nurse aide training and, therefore, has no basis to contest CMS's determination that Petitioner provided care to its residents of a substandard quality.

At page 1 of its answer, Petitioner asserts that there remains an issue in this case as to whether it provided care of a substandard quality. However, it would not have a right to raise that issue if, in fact, it is not challenging its loss of authority to conduct nurse aide training. Regulations give a facility the right to challenge a finding by CMS that the facility provided a substandard quality of care, but only in the circumstance where the facility is appealing its loss of nurse aide training. 42 C.F.R. § 498.3(b)(14)(ii).

Petitioner has not contested its loss of nurse aide training. Therefore, it has no basis for challenging CMS's determination that Petitioner provided care of a substandard quality. It did not specifically contest the loss of nurse aide training in its hearing request. Furthermore, in its answer to CMS's motion, Petitioner makes the statement that:

[a]s . . . [Petitioner does not conduct nurse aide training], CMS's motion for Summary Judgment makes ripe the following issues.

Petitioner's answer at 2. None of the "following issues" include loss of authority to conduct nurse aide training. Id. The statement is cryptic. But, the reasonable conclusion that I draw from it and Petitioner's failure to address loss of authority to conduct nurse aide training in its hearing request is that Petitioner is not contesting a loss of authority to conduct nurse aide training because it did not conduct nurse aide training.

However, the undisputed material facts of this case establish that Petitioner provided care of a substandard quality even though Petitioner has alleged nothing that would give it a right to litigate that issue. At Findings 2 and 4 I find that the undisputed material facts establish that Petitioner's noncompliance constituted a pattern of noncompliance that caused its residents to experience actual harm. Such noncompliance fits the regulations' definition of care of a substandard quality. 42 C.F.R. § 488.301.

6. I deny as moot CMS's motion for summary disposition as to alleged Life Safety Code violations. I also deny as moot Petitioner's motion to amend its hearing request so as to contest these alleged violations.

CMS moved for summary disposition as to its allegations that Petitioner failed to comply with various sections of the Life Safety Code. See CMS Ex. 6 at 27 - 37. The gravamen of CMS's motion is that Petitioner failed to contest any of the alleged Life Safety Code violations in its May 1, 2001 hearing request. Petitioner responded by moving that it be given leave to amend its hearing request so as to contest the alleged Life Safety Code violations. Petitioner asserts that it was unaware that the alleged Life Safety Code violations were a basis for CMS's remedy determination.

I deny both CMS's motion for summary disposition as to alleged Life Safety Code violations and Petitioner's motion to amend its hearing request as to these alleged violations because they are moot. I have entered summary disposition in CMS's favor as to Tag 314 of the April 2001 survey report and I have sustained the $500 per day civil money penalty that CMS imposed based on the undisputed material facts relating to Tag 314. Ruling in CMS's favor on the Life Safety Code issue might create an additional ground for sustaining the civil money penalties but it would not serve to increase them. It is, therefore, unnecessary that I decide that motion. Similarly, it is unnecessary that I grant Petitioner's request to amend its hearing request inasmuch as granting that request would not alter the outcome of this case.

Steven T. Kessel

Administrative Law Judge