Health Law Daily Wrap Up, SKILLED NURSING FACILITIES—DAB DEICSIONS: Civil monetary penalty merited against New York skilled nursing facility, (Feb 3, 2026)

By Leah S. Poniatowski, J.D.

Facility failed to supervise and maintain accident-free environment for resident.

A single per-instance civil monetary penalty of $19,055 was a reasonable remedy levied against a skilled nursing facility in New York where a resident with Alzheimer’s disease broke her pelvis after walking unsupervised and without her walker, against federal regulations for Medicare (Lewis County General Hospital - Nursing Home Unit, DAB No. CR6632, Doc. No. C-23-34 (March 7, 2025)).

Background. The skilled nursing facility (the facility) participates in the Medicare program and, thus, is subject to the rules and regulations therein. During a complaint survey conducted by the New York State Department of Health, the agency discovered that the facility had not been in substantial compliance with 42 C.F.R. § 483.25(d), which requires facilities to be free of accident hazards and provide supervision and assistive devices to prevent accidents.

The resident had been diagnosed with Alzheimer’s disease and presented behavioral disturbances, among other diagnoses. The resident had had a fall without injury and was assessed to require assistance for transfers, walking into her room, bed mobility, walking in the corridor, and locomotion on unit. She used a wheelchair and a walker and could only stabilize when walking with another’s person’s assistance.

A couple of months after being diagnosed as “high-risk”, a maintenance worker saw her walking in the hallway without any device or staff assistance. She lost her balance, fell, and was incontinent. According to the accident report, the resident had been refusing to walk with a walker, only walking with a bassinet. By the second day after the fall, the accident report was amended to reflect that the resident had been injured from the fall, which caused a level fracture. The physical therapist evaluation showed that handheld assistance was most effective with the resident.

Accordingly, CMS evaluated the state surveyor’s findings and determined that the facility had an isolated deficiency with actual harm and imposed a single per-instance civil money penalty of $19,055.

Facility appeal. The facility requested a hearing with an administrative law judge (ALJ). The ALJ issued a rehearing order for all parties to file briefs, proposed exhibits, and written direct testimony for prospective witnesses. CMS filed its proposed exhibits, brief and a motion for summary judgment. The facility filed its brief, proposed exhibits, and opposition to summary judgment.

Determination. The ALJ held that summary judgment was appropriate and that the penalty was reasonable. The ALJ concluded that the facility’s documents, which were proffered by CMS, established material facts showing that the facility had not complied with the applicable regulation. The facility did not dispute the facts.

The facility admitted that the resident had a history of falls but that the resident’s refusal to use her walker made the fall unpreventable. However, the accident report the facility submitted did not challenge the foreseeability of the resident’s fall. Thus, the undisputed material facts reflected that the resident’s fall was foreseeable.

Under the regulatory criteria for assessing a penalty in 42 C.F.R. § 488.438(f), the ALJ considered the facility’s history of noncompliance, the facility’s financial condition, other regulatory factors, and the facility culpability. However, the absence of culpability is not a mitigating factor, per the regulations. The facility did not present any evidence that a lower monetary penalty should be imposed. Rather, the severity of the injury and the knowledge of the resident’s history of falls supported the amount imposed. Further, because CMS had a basis for imposing a civil money penalty in excess of $11,995, the facility also lost its NATCEP for two years (Act § 1819(f)(2)(B)(iii)(I)(c) (42 U.S.C. § 1395i-3(f)(2)(B)(iii)(I)(c))).

AdministrativeDecisions: DABDecisions CMSNews CMPNews CoPNews ProgramIntegrityNews ProviderNews SNFNews