Preferred Care at Old Bridge LLC, DAB CR6658 (2025)

DECISION

Petitioner, Preferred Care at Old Bridge LLC, is a long-term care facility, located in Old Bridge, New Jersey, that participates in the Medicare program.

Following a recertification survey, completed on March 6, 2023, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with several Medicare requirements, including 42 C.F.R. § 483.25(g).  Section 483.25(g) is a section of the quality-of-care regulation that addresses assisted nutrition and hydration.  Based on that deficiency, CMS imposed a civil money penalty (CMP) of $1,415 per day for 57 days of substantial noncompliance (February 22 through April 19, 2023).

Petitioner appealed, and CMS moves for summary judgment, which Petitioner opposes.

For the reasons explained below, I grant CMS’s motion.  The undisputed evidence establishes that, from February 22 through April 19, 2023, the facility was not in substantial compliance with section 483.25(g) and that the penalty imposed is reasonable.

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Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than 15 months elapsing between surveys.  Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

Here, from February 22 through March 6, 2023, surveyors from the New Jersey State Department of Health (state agency) conducted the facility’s annual recertification survey.  They determined that the facility was not in substantial compliance with the following Medicare participation requirements:

• 42 C.F.R. § 483.20(f)(1) (Tag F640 – resident assessments:  data processing), cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.21(b)(1)(3) (Tag F656 – comprehensive, person-centered care planning:  professional standards of quality), cited at scope and severity level D;
• 42 C.F.R. § 483.25(g)(1)-(3) (Tag F692 – quality of care:  assisted nutrition and hydration), cited at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety);1

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• 42 C.F.R. § 483.30(a)(1)(2) (Tag F710 – physician services:  physician supervision), cited at scope and severity level E (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm); and
• 42 C.F.R. § 483.60(d)(1)(2) (Tag F804 – food and nutrition services:  food and drink), cited at scope and severity level D.

CMS Ex. 1.

On April 19, 2023, the facility submitted a plan of correction.  CMS apparently accepted the plan and determined that the facility returned to substantial compliance on April 20, 2023.  See CMS Br. at 2, 14, 24; CMS Ex. 2; CMS Ex. 41 at 16-18 (Avitabile Decl. ¶¶ 53, 54).2

Based on the deficiency cited under section 483.25(g), CMS imposed a CMP of $1,415 per day for 57 days of substantial noncompliance (February 22 through April 19, 2023), which totals $80,655.  Curiously, CMS’s notice letter puts the total CMP at $87,210.  CMS Ex. 3.  For reasons they have not explained, both parties appear to have accepted this as the total amount of the penalty.  In fact, $1,415 x 57 days = $80,655.  Because I base my decision on the per-day penalty, not the total, I leave it to the parties to resolve this discrepancy.  See Crawford Healthcare & Rehab., DAB No. 2738 at 20 (2016); 42 C.F.R. § 488.438(f).3

The parties’ submissions.  CMS has filed a pre-hearing brief and motion for summary judgment (CMS Br.) with 41 exhibits (CMS Exs. 1-41).  Petitioner filed its own prehearing brief and opposition to summary judgment (P. Br.) with 23 exhibits (P. Exs. 1‑23).  CMS responded to Petitioner’s prehearing brief (CMS Response).

CMS also objects to my admitting P. Ex. 22, the written declaration of Registered Dietician, Wendy Curry, arguing that the witness’s testimony lacks foundation.

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Dietician Curry, referred to as Dietician # 3, was the facility’s third registered dietician in about 15 months.4  She began providing “weekly consulting services” at the facility “on or about” February 15, 2023, just one week before the survey began.  P. Ex. 22 at 1 (Curry Decl. ¶ 1).  She thus has little to no direct knowledge of the facts underlying the survey findings, the most significant having occurred before she started consulting with the facility.

I consider the proffered evidence to determine whether it creates a material fact in dispute but need not admit the exhibits into the record.  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 3 n.4 (2020), aff’d sub nom. Gorovits v. Becerra, No. 20-1850 (E.D. Pa. May 17, 2021); Ill. Knights Templar Home, DAB No. 2274 at 6-7 (2009) (holding that an ALJ must review all proposed exhibits submitted in support of or in opposition to a motion for summary judgment; the ALJ is not required to admit those exhibits into the record).  The exhibits are “properly treated as an offer of proof,” to be evaluated, as necessary, to determine whether a genuine issue of material fact exists.  Id.

With respect to the Curry testimony specifically (discussed below), to the extent that her testimony lacks foundation, it will not preclude my entering summary judgment.  Conclusory statements that are unsubstantiated by evidence of specific facts are insufficient to create a genuine factual dispute and do not preclude summary judgment.  See Guardian Health Care Ctr., DAB No. 1943 at 11-12 (2004).

Issues

As a threshold matter, I consider whether summary judgment is appropriate.

On the merits, the issues before me are:

• From February 22 through April 19, 2023, was the facility in substantial compliance with 42 C.F.R. § 483.25(g); and
• If the facility was not then in substantial compliance with section 483.25(g), is the $1,415 per-day penalty reasonable?

Scope and severity.  Petitioner challenges CMS’s scope-and-severity determination.  P. Br. at 25; see P. Br. at 2, 4, 21.  I have no authority to review scope and severity in this case.  The regulations authorize such review if:  (1) a successful challenge would affect the range of the CMP; or (2) CMS has made a finding of substandard quality of care that results in the loss of approval of the facility’s nurse aide training program.  42 C.F.R.

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§§ 498.3(b)(14), 498.3(d)(10); 38-40 Freneau Ave. Operating Co., LLC, DAB No. 3008 at 11-12 (2020); Madison Cnty. Nursing Home, DAB No. 2895 at 16 (2018); NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014); Cedar Lake Nursing Home, DAB No. 2344 at 9 (2010); Heritage Park Rehab. & Nursing Ctr., DAB No. 2231 at 15‑16 (2009); Evergreen Commons, DAB No. 2175 (2008); Aase Haugen Homes, Inc., DAB No. 2013 (2006).

Here, the per-day penalty would remain in the same lower range even if the scope-and-severity finding were reduced, so the first criterion is not met.

Nor is the second criterion met.  Certain types of deficiencies, including quality of care (42 C.F.R. § 483.25), can lead to a finding of “substandard quality of care.”  The deficiency must be cited at one of the following scope-and-severity levels:  immediate jeopardy; a pattern of or widespread actual harm that is not immediate jeopardy; or widespread deficiencies with the potential for more than minimal harm.  42 C.F.R. § 488.301.  Because the scope of a G-level deficiency is isolated, it does not meet the definition of substandard quality of care.

In any event, even if CMS had been able to find substandard quality of care, its scope-and-severity finding would not be reviewable because of the amount of the penalty.  If (as here) I approve a penalty of $11,995 or more, CMS’s scope-and-severity finding does not affect approval of its nurse aide training program (assuming it has one).  Under the statute and regulations, the state agency cannot approve the program if CMS imposes a penalty of $11,995 or more.  Thus, the facility would lose its approval without regard to the scope-and-severity finding.  Act § 1819(f)(2)(B)(iii); 42 C.F.R. § 483.151(b)(2)(iv); 87 Fed. Reg. 15,100, 15,120 (March 17, 2022).

CMS’s scope-and-severity finding (level G) is therefore not reviewable.5

Discussion

Summary judgment.  Although the federal rules do not apply directly to these administrative proceedings, in considering summary judgment, I am “procedurally and substantively guided by Rule 56” of the Federal Rules of Civil Procedure.  Civil Remedies Division Procedures § 19; see Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs., 388 F.3d 168, 172 (6th Cir. 2004).

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Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 5 (2016); W. Tex. LTC Partners, Inc., DAB No. 2652 at 5 (2015), aff’d, W. Tex. LTC Partners, Inc. v. U.S. Dep’t of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4, and cases cited therein.6

What evidence I must consider.  Rule 56 provides that, in determining whether material facts are in dispute, I am required to consider only the material facts cited by the parties in support of or in opposition to the motion.  However, I “may consider” other materials submitted.  Fed. R. Civ. P. 56(c)(3).  Accord, Administrative Procedures Act, 5 U.S.C. § 556(d) (providing that a rule or order be based on consideration of the whole record or those parts cited by a party and supported by reliable, probative, and substantial evidence).

What the parties must show.  The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs.,388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586 n.11 (1986); see also Vandalia Park,DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners,

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DAB No. 2652 at 6; 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587).

In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Heritage House of Marshall Health and Rehab., DAB No. 3035 at 8 (2021); Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr.,DAB No. 1943 at 8 (2004).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions or draw inferences that are not reasonable.  Vibra Hosp. of Charleston – TCU, DAB No. 3094 at 11 (2023); W. Tex. LTC Partners, DAB No. 2652 at 6-7; cf. Guardian, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”); see Green Valley Health Care & Rehab. Ctr., DAB No. 2947 at 8 (2019) (quoting Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016)) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position”); Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).

Summary judgment applied to administrative review in Medicare cases.  It is well-established that an administrative law judge is empowered to decide a case on a motion for summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).

There seems to be some confusion about applying such well-founded principles of civil litigation to these proceedings, with some suggesting that, to do so, denies a party a fundamental right.  In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals shattered this misconception:  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added); see Cedar Lake Nursing Home, 619 F.3d at 457-58 (affirming summary judgment that was based on the ALJ’s “specific, undisputed findings of fact,” accepting as true the facts presented by the Petitioner).

Principles of summary judgment applied to this case.  No issues in this matter “would benefit from being resolved in an evidentiary hearing.”  CMS’s case rests on specific, undisputed facts, so one-sided that it must prevail as a matter of law.

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Petitioner submits written declarations from the facility’s recently-hired registered dietician, Wendy Curry (P. Ex. 22), and from Nurse Consultant Gail Rader (P. Ex. 20), and claims that these declarations

provide ample evidence of material facts in dispute, related to the factors leading to nutritional, dietary, care plan[,] and weight loss issues, which[,] when viewed in a light most favorable to Petitioner, make summary judgment inappropriate.

P. Br. at 1.  But Dietician Curry, who has virtually no independent knowledge of the relevant facts, does not dispute any of the facts CMS asserts.  She offers no new material facts.  She speculates about what those undisputed facts might have meant; she points to the steps the facility took to correct its deficiencies (without acknowledging the intervening arrival of the survey team); and she opines that, based on these corrective actions, the facility complied with section 483.25(g).  P. Ex. 22.

For her part, Nurse Consultant Rader, who has no independent knowledge of what happened, also accepts CMS’s rendition of the facts and opines that those facts do not support a finding of substantial noncompliance.  Id.

Whether the undisputed facts establish that the facility was not in substantial compliance with Medicare requirements is a legal – not a factual – conclusion and does not preclude summary judgment.  Vibra Hosp. of Charleston – TCU, DAB No. 3094 at 11; W. Tex. LTC Partners, DAB No. 2652 at 6-7; Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 8 (holding that summary judgment is not inappropriate merely because the parties proffer differing opinions on the ultimate legal issue); cf. Guardian, DAB No. 1943 at 11.  I am not bound to accept a witness’s legal conclusions.  See Beatrice State Developmental Ctr., DAB No. 2311 at 12-14 (2010) (affirming that the ALJ decides the legal issues).

1. CMS is entitled to summary judgment because the undisputed evidence establishes that facility staff did not follow the facility’s policies nor implement the interventions called for in resident care plans to ensure that residents would maintain acceptable parameters of nutritional status, such as stable body weight.  These failures put the facility out of substantial compliance with 42 C.F.R. § 483.25(g).7

Program requirement:  42 C.F.R. § 483.25(g)(1)-(3) (Tag F692).  Quality of care “is a fundamental principle that applies to all treatment and care provided to facility residents.”  42 C.F.R. § 483.25.

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The statute and regulation require that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b)(2); 42 C.F.R. § 483.25.

To this end, the “quality-of-care” regulation mandates, among other requirements, that the facility ensure that, based on a comprehensive assessment, a resident:  1) maintains acceptable parameters of nutritional status, such as usual body weight or desirable body weight range and electrolyte balance, unless the resident’s clinical condition demonstrates that this is not possible, or the resident preferences indicate otherwise; 2) is offered sufficient fluid intake to maintain proper hydration and health; and 3) is offered a therapeutic diet when there is a nutritional problem, and the health care provider orders a therapeutic diet.  42 C.F.R. § 483.25(g)(1)-(3).

The Departmental Appeals Board has repeatedly held that “the facility is responsible for taking all reasonable steps to ensure that the resident receives nutrition adequate to his or her needs.”  Carrington Place of Muscatine, DAB No. 2321 at 5 (2010) (quoting The Windsor House, DAB No. 1942 at 17, 18 (2004)) (emphasis added); Carehouse Convalescent Hosp., DAB No. 1799 at 22 (2001).  The question is not whether a resident’s weight falls below a particular threshold; the question is whether the facility takes reasonable and timely steps to help ensure that the resident maintains acceptable parameters of nutritional status.  Carrington Place, DAB No. 2321 at 9-10.8

The clinical condition exception is a narrow one and applies only when the facility can demonstrate that it cannot provide nutrition adequate for the resident’s overall needs, so the weight loss was unavoidable.  Texan Nursing Rehab. of Amarillo, LLC, DAB No. 2323 at 11 (2010); The Windsor House, DAB No. 1942 at 18.

By itself, unplanned weight loss raises an inference of inadequate nutrition and supports a prima facie case of a deficiency.  Desert Lane Care Center, DAB No. 2287 at 5 (2009).

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Facility policies.

[T]he Board has repeatedly held that the requirements under section 483.25 “obligate the [facility] to furnish the care and services set forth in the resident’s care plan, to implement doctor’s orders, to monitor and document the resident’s condition, and . . . to follow its own resident care policies.”  Good Shepherd Home for the Aged, Inc. d/b/a The Good Shepard Home, DAB No. 2858 at 12 (2018) (citing Life Care Ctr. of Bardstown, DAB No. 2479 at 22 (2012) (citing cases), aff’d 535 F. App’x 468 (6th Cir. 2013)); Woodland Village Nursing Ctr., DAB No. 2053 at 9 (2006) (citing cases), aff’d, 239 F. App’x 80 (5th Cir. 2007).  The . . . ALJ . . . may “rely on a facility policy as evidence of the provider’s own judgment as to what must be done to attain or maintain its residents’ highest practicable physical, mental, and psychosocial well-being, as required by section 483.25.”  Senior Rehab., DAB No. 2300 at 13 (quoting Sheridan Health Care Ctr., DAB No. 2178 at 15 (2008)).

Heritage House, DAB No. 3035 at 10 (emphasis added); accord Green Valley Healthcare and Rehab. Ctr., DAB No. 2947 at 6 (2019) (citing The Laurels at Forest Glenn, DAB No. 2182 at 18 (2008)); N. Las Vegas Care Ctr., DAB No. 2946 at 6 (2019); Good Shepherd Home for the Aged, Inc., DAB No. 2858 at 14 (2018) (holding that a facility “violates [what is now] section 483.25(d) if it fails, without ‘justifiable reason,’ to implement the accident precautions its own staff have determined are necessary to mitigate foreseeable accident risks.”); W. Tex. LTC Partners, DAB No. 2652 at 14 (holding that, at a minimum, to comply with section 483.25, the facility must follow its own policies and protocols); Hanover Hill Health Care Ctr., DAB No. 2507 at 6 (2013) (observing that “the Board has long held that a facility’s own policy may be sufficient evidence . . . of what the facility has determined is needed to meet the quality-of-care requirements in section 483.25”).

Facility policy:  Nutritional Management.  The facility had in place a written policy titled “Nutritional Management.”  According to the policy, the facility “provides care and services to each resident to ensure the resident maintains acceptable parameters of nutritional status in the context of his or her overall condition.”  CMS Ex. 4 at 4.

The policy explains that “acceptable parameters of nutritional status” refers to factors that reflect that a resident’s nutritional status is “adequate,” relative to the resident’s overall condition and prognosis, such as weight, food and fluid intake, and pertinent laboratory values.  Id.  “Nutritional status” includes both nutrition and hydration status.  Id.

The policy lists compliance guidelines:

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1. A systematic approach is used “to optimize” each resident’s nutritional status:
   1. Identifying and assessing each resident’s nutritional status and risk factors.
   2. Evaluating/analyzing the assessment information.
   3. Developing and consistently implementing pertinent approaches.
   4. Monitoring the effectiveness of interventions and revising them as necessary.
2. Identification/assessment:
   1. Nursing staff must obtain the resident’s height and weight at the time of admission and in accordance with facility policy.
   2. The dietary manager or designee obtains the resident’s food and beverage preferences at the time of admission, when there is a significant change in condition, and periodically throughout the resident’s stay.
   3. The dietician will complete a comprehensive nutritional assessment at the time of admission, annually, and when there is a significant change in the resident’s condition.  The assessment may include the resident’s:  general appearance; height and weight; cognitive, physical, and medical conditions; food and fluid intake; evidence of fluid loss or retention; presence of persistent hunger, poor intake, or continued weight loss; review of medication list; and review of laboratory and diagnostic data.
3. Evaluation/analysis:
   1. The assessment must “clarify” the resident’s current nutritional status and identify the individual risk factors for altered nutrition or hydration.
   2. The dietician uses data gathered from the resident’s nutritional assessment to estimate the resident’s calorie, nutrient, and fluid needs, and to determine whether the resident’s intake is adequate to meet those needs.  Use current standards of practice and formulas to calculate the estimates.

Id.

4. Implementing the care plan:
   1. The resident’s care plan must reflect the resident’s goals and preferences regarding nutrition.
   2. Interventions are individualized “to address the specific needs of the resident,” for example:  liberalize the diet unless the resident’s medical condition warrants a therapeutic diet; alter the consistency of food and liquids after the underlying causes of symptoms have been addressed; consider weight, environmental, and disease-specific interventions; consider providing physical assistance or assistive devices; address food and drug interactions and medication side effects.
   3. Offer real food before adding supplements.

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4. Provide tube feeding or parenteral fluids “in the context of” the resident’s overall clinical condition and the resident’s goals and preferences.

CMS Ex. 4 at 4-5.

5. Monitoring/revising:
   1. Monitor the resident’s condition and intervene with the resident’s care plan on an ongoing basis.  For example:  interview the resident and/or the resident’s representative to determine if the resident’s personal goals and preferences are being met; directly observe the resident; interview direct care staff to learn about the resident, the interventions in place, staff responsibilities for reporting on those interventions, and suggestions for changes; as part of a comprehensive assessment, review the resident-specific factors to determine if they are still relevant or if new concerns have emerged, such as a new diagnosis or medications.
   2. Monitor the resident for complications associated with interventions.
   3. Update the care plan as needed, such as:  when a resident’s condition changes; goals are met or changed; interventions are determined to be ineffective; or new causes of nutrition-related problems are identified.
   4. Notify the physician of significant changes in weight, intake, or nutritional status, lack of improvement toward goals, or any complications associated with interventions.

CMS Ex. 4 at 5.

6. Informed consent:
   1. The resident/representative has the right to choose and decline interventions designed to improve or maintain the resident’s nutritional or hydration status.
   2. The facility must discuss the risks and benefits associated with that decision and offer alternatives, as appropriate.
   3. The resident’s comprehensive care plan should describe any interventions offered but declined.

Id.

Facility policy:  Weight Taking and Recording.  The facility had another policy directed specifically toward preventing, monitoring, and intervening to prevent undesirable weight loss for its residents.  Its stated purpose is “to obtain a baseline weight and to monitor weight changes.”  CMS Ex. 4 at 2.

The policy describes the procedures that staff are required to follow.  At the time of admission:

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1. Nursing staff must take the resident’s weight.  If no weight concerns are noted, the resident will be weighed monthly thereafter.
2. Staff record the weights on the weight record sheet that is kept in each unit and in the resident’s medical record.
3. The facility’s dietician reviews the resident’s weight and makes recommendations, as necessary.

Id.

Weights are monitored monthly.

1. Monthly weights are taken for each resident and recorded in the “weight working sheets.”
2. Monthly weights are completed at the beginning of the month for each unit.
3. Any weight changes of +/- five pounds or more since the last weight assessment will be taken for confirmation with the licensed nurse.  If the weight is verified, the dietician will be notified.
4. The unit manager and the dietician review the completed monthly weights.

Id.

5. The threshold for significant unplanned and undesired weight loss is based on the following criteria:
   1. 1 month – 5% weight loss is significant; greater than 5% is severe.
   2. 3 months – 7.5% weight loss is significant; greater than 7.5% is severe.
   3. 6 months – 10% weight loss is significant; greater than 10% is severe.

CMS Ex. 4 at 3.

6. If the weight change is desirable, this is documented and no changes need to be made to the resident’s care plan.
7. The dietician or nurse designee documents the resident’s weight in the resident’s medical record each month.

Id.

The policy includes instructions for weekly weight monitoring:

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1. Staff take weights weekly according to a physician’s order or the resident’s plan of care.
2. Weekly weight is taken every week and recorded on the working weight sheet.
3. The dietician reviews the weekly weights and makes recommendations, as necessary.
4. Weekly, the dietician or nurse designee records the weight in the resident’s individual medical record.

Id.

Resident 97 (R97).  R97 was an 88-year-old woman, admitted to the facility on August 13, 2022, suffering from a long list of impairments, including dysphasia and hemiparesis (weakness of one side of the body) following a cerebral infarction, gastro-esophageal reflux disease, anemia, hypothyroidism, essential hypertension, chronic gout, stage 4 (severe) chronic kidney disease, polycythemia vera (overproduction of red blood cells), anxiety, and depression.  She had muscle wasting and atrophy, abnormalities of gait and mobility, and required assistance with personal care.  CMS Ex. 29; CMS Ex. 28 at 1, 2; CMS Ex. 33 at 1; CMS Ex. 34 at 1; P. Ex. 2 at 1.

An initial evaluation, dated August 13, 2022, describes R97’s slight pitting edema.  CMS Ex. 34 at 100; P. Ex. 2 at 8.

According to an assessment, dated November 13, 2022, R97’s Brief Interview for Mental Status (BIMS) score was 15, indicating that she was cognitively intact.  CMS Ex. 31 at 2.

R97’s initial nutritional assessment.  At the time of her admission, R97 weighed 145.6 pounds.  CMS Ex. 34 at 100.  Her physician ordered her a regular diet, “regular texture, thin consistency.”  She required assistance with tray set up and feeding.  CMS Ex. 33 at 1.

A nutritional assessment, dated August 22, 2022, records her weight at 144 pounds.  CMS Ex. 32 at 1.  Registered Dietician # 1 recommended nutritional interventions:  “super” cereal at breakfast and a four ounce “mighty” shake at breakfast, lunch and dinner.  CMS Ex. 32 at 2.  The assessment identifies R97’s “nutrition goal” as “stable weight” until the next review.  CMS Ex. 32 at 2; see CMS Br. at 5.

R97’s care plan.  Failing to follow a resident’s care plan presents one of “the clearest cases of failure to meet” the quality-of-care regulation.  Spring Meadows Health Care Ctr., DAB No. 1966 at 17 (2005).

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R97’s care plan includes interventions meant to address her nutritional challenges.  Initiated on August 29, 2022, the plan directly addresses R97’s “altered nutrition” related to her dysphagia and other disorders, requiring an altered diet.  The plan’s goal is that she weigh 135 to 145 pounds at her next review.  Interventions are:

• putting in her upper and lower dentures in the morning and removing them at bedtime;
• following treatment orders;
• providing diet and supplements as prescribed;
• monitoring her weight, labs, skin integrity, and hydration status;
• honoring her food preferences; and
• administering medications as prescribed.

CMS Ex. 28 at 9.

R97’s weight loss and the facility’s response (or lack of response).  Throughout August 2023, R97’s weight remained stable at 145 pounds.  CMS Ex. 36 at 2.  In September, however, she began to lose weight at an alarming rate.

For reasons that are not explained, the record of R97’s weight changes from weekly to monthly after October 6, even though R97 continued to lose weight.

CMS Ex. 36 at 1-2.

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R97’s weight losses well exceeded the facility’s standards for severe weight loss.  In one week (September 15-22, 2022), she lost 7.6 pounds, or 5.2% of her body weight.  In less than one month, she lost 8.8 pounds or 6% of her body weight.  By three months, she had lost 15.6 pounds, more than 10% of her body weight.  See CMS Ex. 4 at 3.  These greater than “severe” losses should have triggered the following interventions called for in the facility’s policies and the resident’s care plan:

• confirm the weight with a licensed nurse and report the verified weight to the dietician.  CMS Ex. 4 at 2, 4.
• the dietician should complete a “comprehensive nutritional assessment.”  CMS Ex. 4 at 4.
• Notify the resident’s physician.  CMS Ex. 4 at 5.
• Update the resident’s care plan.  CMS Ex. 4 at 5.

Staff did not document that they consulted a licensed nurse about the resident’s significant weight loss on September 22 or any other time, and no evidence suggests that the weight was verified, as called for in the facility’s policy.  CMS Ex. 4 at 2.

Similarly, Petitioner points to no evidence and produces no documentation showing that the physician was notified of R97’s weight loss.  See CMS Ex. 8 at 14.  This is particularly puzzling because her progress notes reflect that, from August 2022 through February 2023, she was seen by a physician or nurse practitioner on a fairly regular basis.  Yet, their notes do not even mention weight loss.  CMS Exs. 10-14.

Even if the physician had been notified, the undisputed evidence establishes that the facility’s dietician (and the rest of the staff) did not follow the facility’s policies and the resident’s care plan in responding to a dramatic weight loss.  The resident’s progress notes for September 22 and 23, 2022 do not even mention it.  CMS Ex. 34 at 88, 91.  “Weight Variance Reports,” dated September 22, 2022, October 20, 2022, November 28, 2022, and January 26, 2022 list the residents who lost weight and indicate whether the weight loss was desired, undesired, planned, or unplanned; whether nutritional interventions were imposed; and the date care plans were revised.  CMS Ex. 27 at 4-13.  Remarkably, and without explanation, R97’s name does not appear on that list.

Indeed, throughout the time of R97’s severe weight loss, the dietician’s involvement in her care was virtually nonexistent.  The record includes a list of the resident’s assessments and evaluations from August 13, 2022, through March 14, 2023.  It reflects R97’s August 22, 2022 initial nutrition assessment.  CMS Ex. 34 at 8; see CMS Ex. 32 at 2.  The next mention of the dietician’s involvement was months later, on January 9,

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2023, when Dietician # 2 prepared a “mini nutritional assessment.”  CMS Ex. 34 at 6.  That assessment describes R97 as “malnourished” and notes that she had lost more than 6.6 pounds – at that point, she had lost 17 pounds in four months.  CMS Ex. 32 at 4.  Even then, her care plan was not amended, and no other changes were made.  A nutrition note – written almost four months after the resident’s significant weight loss began – does not satisfy the requirements of the resident’s care plan or the facility’s policies.

R97’s name appears in a short “dietician recommendation” note, dated January 12, 2023.  The (then) dietician recommended discontinuing the mighty shakes (“too sweet”) and the super cereal (“doesn’t like”) that had been recommended by Dietician # 1 following the resident’s initial nutritional assessment (almost four months earlier).  CMS Ex. 27 at 14.  Petitioner points to no documentation establishing that the facility provided the supplements and, in fact, does not claim that it did.  Staff should have documented that the supplements were offered and how much, if any, of them the resident consumed.  When the resident began losing weight, such information would have been useful in assessing her and planning interventions (had the facility taken those required steps).

R97’s care plan was not amended until February 26, 2023, after the surveyors arrived.  CMS Ex. 28 at 22.

Thus, faced with a resident’s severe weight loss, staff disregarded R97’s care plan and the facility’s policies.  They (likely) did not report the weight loss to her physician.  See CMS Ex. 4 at 5.  The dietician did not assess the resident and “complete a comprehensive nutritional assessment.”  See CMS Ex. 4 at 4.  In fact, the dietician made no recommendations until much later.  See CMS Ex. 4 at 2.

Because the facility did not follow the facility policies and did not implement the interventions called for in R97’s care plan to ensure that she maintain acceptable parameters of nutritional status, the facility was not in substantial compliance with section 483.25(g).

Other residents.  By itself, the facility’s failure to address timely R97’s nutritional issues put the facility out of substantial compliance with section 483.25(g).  And the survey identified additional residents whose nutritional needs were not properly addressed.

Resident 33 (R33).  R33 was a 91-year-old woman, admitted to the facility on November 1, 2022.  CMS Ex. 14 at 2, 4.  Her diagnoses included atrial fibrillation, congestive heart failure, acute pulmonary edema, dysphagia, hypertension, Alzheimer’s disease, and depression.  She had a urinary tract infection.  CMS Ex. 14 at 26-27.

Her BIMS score was 12, indicating a moderate cognitive impairment.  CMS Ex. 14 at 7.

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R33 had a swallowing disorder and would hold food in her mouth and cheeks after meals.  At the time of her admission, she was 65 inches tall (5’5”) and weighed 125 pounds.  CMS Ex. 14 at 32.  According to her initial assessment, dated November 8, 2022, she had not been on a physician-prescribed weight-loss regimen but had recently lost significant weight.  CMS Ex. 14 at 32.  On September 29, which was before she was admitted to the facility, R33 weighed 139 pounds.  At the time of her admission, she weighed 125 pounds, a 10% loss in a month.  CMS Ex. 17.

A nutrition assessment, dated November 7, 2022, describes R33’s recent weight loss of 10% or more in the preceding 60 days.  The dietician recommended “diet liberalization” and a four-ounce mighty shake twice a day (lunch and dinner).  The resident’s nutrition goal was to maintain a stable weight until the next review.  CMS Ex. 15 at 1.

Nutritional issues not addressed in R33’s care plan.  Notwithstanding the resident’s recent dramatic weight loss, her care plan did not address her nutritional status nor explain how to achieve her nutrition goal, which was to maintain a stable weight.  CMS Ex. 10; CMS Ex. 41 at 14 (Avitabile Decl. ¶ 44).

Supplements not provided.  As with R97, the facility produced no evidence that it provided the shakes, as called for by the dietician.  CMS Ex. 41 at 14 (Avitabile Decl. ¶ 43).  The facility produced R33’s meal tickets, which listed the foods and beverages staff gave to R33.  The meal tickets do not list mighty shakes.  CMS Ex. 11; CMS Ex. 41 at 15 (Avitabile Decl. ¶ 46).

On March 3, 2023, surveyors interviewed R33, who confirmed that she had never been given a mighty shake on her lunch or dinner tray.  CMS Ex. 41 at 15 (Avitabile Decl. ¶ 47).  Her regularly-assigned nurse aide told the surveyors that she had never observed a mighty shake on the resident’s lunch tray.  CMS Ex. 41 at 15 (Avitabile Decl. ¶ 48).  Petitioner does not deny that the individuals made these statements nor claim that they weren’t true.  The statements may therefore be considered reliable and may constitute substantial evidence.  Omni Manor Nursing Home, DAB No. 1920 at 11 (2004); Beatrice State Developmental Ctr., DAB No. 2311 at 17, 18 (pointing out that the facility could have, but did not, present testimony that refuted the statements the surveyors claimed they made).

Resident 38 (R38).  R38 was an 83-year-old man, admitted to the facility on September 5, 2014.  CMS Ex. 20 at 1.  He was seriously ill, suffering from prostate cancer, neutropenia (an abnormally low number of white blood cells in the blood), anemia, muscle wasting, depression, and other disorders.  CMS Ex. 20 at 2.

His BIMS score was 15, indicating that he was cognitively intact.  CMS Ex. 22 at 6.

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R38 was very small.  In March 2022, he weighed 103 pounds.  By June, his weight had dropped to 97 pounds.  In August, he was down to 96 pounds, and in September, he weighed 93 pounds.  CMS Ex. 25 at 19.  Thus, he had lost 9.7% of his body weight in six months.  At that time, the (then) dietician reported that he ate less than half of his breakfast.  She added to his diet:  a four-ounce mighty shake at lunch and dinner and a four-ounce “magic cup” (frozen dessert that adds calories and protein to a diet).  Id.

R38’s care plan.  R38’s care plan, dated September 8, 2022, set his goal weight at 95 to 105 pounds.  At that time, the interventions listed in the care plan were:  diet supplements; snacks; fortified foods as prescribed; medications as prescribed; monitor weight, labs, skin integrity, hydration status, provide diet counselling/education, as needed.  On November 12, 2022, the facility added:  appetite stimulant (REMERON) as ordered; encourage intake at and between meals; and monitor intake by mouth and record each meal.  CMS Ex. 18 at 17.

An assessment, dated November 23, 2022, indicates that R38 was 58 inches tall (4’10”) and weighed 95 pounds.  CMS Ex. 22 at 28.  His physician ordered Mirtazapine, an antidepressant, to increase his appetite.  CMS Ex. 24 at 1, 2.

Although R38’s weight seems to have stabilized, it occasionally fell below 95 pounds (September 2022 – 93 pounds; January 2023 – 94 pounds; February 2023 – 92.6 pounds).  CMS Ex. 26 at 1.

No follow-up assessment.  A “mini” nutritional assessment, dated January 9, 2023, identifies risk factors and indicates that R38 was at risk of malnutrition, citing his decreased mobility, acute disease, mild dementia, and body mass index.  CMS Ex. 23.  However, the dietician did not follow-up with a comprehensive assessment until the time of the survey, on March 2, 2023.  CMS Ex. 39 at 8 (Vasquez Decl. ¶ 22); see P. Ex. 8 at 6.9   Nor did the facility revisit his care plan in response to the dietician’s assessment that he was at risk for malnutrition.

As with R97 and R33, no evidence suggests that supplements were provided or consumed by the resident.  CMS Ex. 39 at 8 (Vasquez Decl. ¶¶ 16, 21, 23).  The resident’s meal ticket indicated that super cereal was provided at breakfast but did not mention mighty shakes or a magic cup.  CMS Ex. 19.  The surveyors observed R38 eating his lunch on February 27, 2023.  His meal did not include a mighty shake or magic cup.  CMS Ex. 39 at 6 (Vasquez Decl. ¶ 16).

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The facility’s substantial noncompliance.  A facility may be noncompliant with section 483.25(g) if it fails to identify and assess the nutritional needs of a resident found to be at risk for malnutrition or if it fails to implement prescribed interventions to minimize that risk.  This is true even if the resident does not become malnourished.  Carrington Place, DAB No. 2321 at 9.  Thus, the undisputed evidence establishes that the facility did not comply with section 483.25(g) because:

• Inadequate response to R97’s weight loss.  Contrary to its policy, the facility did not update R97’s care plan when her condition changed (severe weight loss).  See CMS Ex. 4 at 5.

  Contrary to facility policy the dietician did not review R97’s weight and recommend necessary interventions when she lost significant weight.  See CMS Ex. 4 at 2.

  Although R97 had lost more than five pounds since her last weight assessment, contrary to facility policy, a licensed nurse did not confirm the weight loss, and the dietician was not notified.  See CMS Ex. 4 at 2.

• Inadequate monitoring.  Contrary to facility policy, the dietician did not review R97’s weekly weights and recommend necessary interventions.  See CMS Ex. 4 at 3.

• Failures to assess.  Contrary to facility policy, the dietician did not complete a comprehensive nutritional assessment when R97 experienced a significant change in condition (severe weight loss).  See CMS Ex. 4 at 4.

  The facility did not assess R33 or R38 when they were identified as malnourished or at risk for malnutrition.  See CMS Ex. 4 at 4.

• Inadequate care planning to address nutritional needs.  Although the goal of R97’s care plan was that she weigh 135 to 145 pounds, when her weight fell below that, her care plan was not amended.  See CMS Ex. 4 at 5.

  Although R33 had experienced a severe weight loss immediately prior to her admission to the facility, her care plan did not address her nutritional status nor describe interventions aimed at achieving her nutritional goal, which was to maintain a stable weight.  See CMS Ex. 4 at 5.

  When a mini nutritional assessment found that R38 was at risk for malnutrition, the facility did not revisit his care plan.  See CMS Ex. 4 at 5.

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• Failure to provide nutritional supplements.  The facility did not provide its residents, R97, R33, and R38, with the recommended supplements.  CMS Ex. 28 at 9.

  Failing to follow the dietician’s recommendations for meal supplements supports the finding of substantial noncompliance.  Those recommendations reflect the facility’s determinations as to what care and services were necessary “to permit the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being.”  Sheridan Health Care Ctr., DAB No. 2178 at 10 (2008); Woodland Village Nursing Ctr., DAB No. 2053 (2006).

Petitioner’s defenses.  Petitioner raises a series of defenses.  Some are not supported by any evidence in the record – in fact, they are contradicted by the evidence.  Some are simply irrelevant.  The rest are not material or are legally unsound.

R97 maintained her weight.  Most baffling among Petitioner’s defenses is its claim that R97 remained “within her desirable weight range as noted on her care plan.”  P. Br. at 2.  Petitioner cites no evidence to support this remarkable assertion, and, in fact, the resident’s medical records establish that the assertion is simply untrue.  As noted above, according to her care plan, R97’s desirable weight range was 135 to 145 pounds.  CMS Ex. 28 at 9.  On November 10, 2022, her weight had fallen below 135 pounds, and it continued to drop after that.  By February 2023, she was six pounds under her desirable weight range.  CMS Ex 36 at 1-2.

Citing the written declaration of Dietician Curry, Petitioner also claims that R97 “maintained her weight despite reduced edema and a rare and complex medical diagnosis causing her to feel ‘fullness.’”  P. Br. at 2.; P. Ex. 22 at 22 (Curry Decl. ¶ 80).  But losing more than 16 pounds (12% of her body weight) in less than five months – which the facility’s policy defines as a “severe” weight loss – can hardly be considered “maintaining her weight.”  See CMS Ex. 4 at 3; CMS Ex. 36 at 1-2.

R97’s weight loss was desirable.  Petitioner suggests that R97’s weight loss was desirable.  P. Br. at 7.  If that were so, the facility’s policy required that it be documented, which it was not.  CMS Ex. 4 at 3.  The facility even had in place a system for reporting whether a resident’s weight loss was desirable – the Weight Variance Reports.  CMS Ex. 27 at 4-13.  As noted above, R97’s name did not appear on those reports.  In fact, at the time, no one reviewed her weight loss to determine its cause and to consider its significance.

Of the three surveyed residents, R97 was the only one who lost weight, and her weight loss was unavoidable.  Petitioner also claims that R97’s weight loss was inevitable, caused by R97’s impairments, particularly her edema.  Citing the written declaration of Dietician Curry, Petitioner points generally to CMS Ex. 33, a 43-page

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exhibit listing physician orders, and claims that the resident lost weight because her edema was resolved.  P. Br. at 3 (citing P. Ex. 22 at 5-6 (Curry Decl. ¶¶ 23, 24)).10  Having reviewed the orders, I find only one that mentions edema.  An order dated September 13, 2022, directs staff to elevate R97’s right hand for edema.  CMS Ex. 33 at 15, 25, 35 (the same order appearing in three places).  Based on this thinnest of evidence, Dietician Curry acknowledges R97’s severe weight loss between September 15 and 22, 2022, and speculates, without support, that the loss was “most likely [related to] reduction in edema.”  CMS Ex. 34 at 1.  Until March 5, 2023, when Dietician Curry suggested this as a possible cause of the resident’s weight loss, no one had even mentioned it.

CMS objects to Dietician Curry’s opinion as unsupported and points out that the facility’s Director of Nursing (DON) acknowledged that the facility could not correlate the resolved edema with the resident’s weight loss.  CMS Response at 2; CMS Ex. 41 at 12 (Avitabile Decl. ¶ 36).  The DON did not submit a written declaration.  That she made the statement is unrefuted.  Beatrice State Developmental Ctr., DAB No. 2311 at 17, 18; Omni Manor Nursing Home, DAB No. 1920 at 11.  I need not resolve this apparent conflict to determine that the facility was not in substantial compliance.

I agree that Petitioner has not established that R97’s weight loss was inevitable.  The “mere presence of a significant clinical condition, without additional evidence, does not prove that maintaining acceptable nutritional status is not possible.”  Carrington Place, DAB No. 2321 at 5 (quoting The Windsor House, DAB No. 1942 at 18).  In Carrington Place, the facility argued that its resident’s weight loss was “planned and desirable.”  Carrington Place, DAB No. 2321 at 7.  According to the facility, the resident lost weight because she was administered Lasix to decrease excess body fluids caused by intravenous fluids she had been given while hospitalized.  The Board rejected the facility’s argument for the same reasons I reject Petitioner’s similar argument here:

• the facility’s contention was speculative and unsubstantiated.  The facility cited no evidence that Lasix contributed to the weight loss and no evidence that the weight loss was “planned” or “viewed as desirable by the nursing staff, dietician, or physician”; and
• the weight-loss argument overlooked the actual bases for determining that the facility was not in substantial compliance with (then) section 483.25(i):  1) the nursing staff stopped providing ordered dietary supplements; 2) notwithstanding the resident’s ongoing weight loss, nothing in the resident’s medical records

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• indicated that the facility reported the loss to the dietician or physician; and 3) no evidence established that staff assessed the resident to determine the reasons for her weight loss and whether it was a cause for concern.

Carrington Place, DAB No. 2321 at 7-8.

Here, as in Carrington, the resident’s weight loss is not the dispositive factor.  Weight loss can be significant evidence.  Indeed, by itself, unplanned weight loss raises an inference of inadequate nutrition and can establish a prima facie case of substantial noncompliance.  Carrington Place, DAB No. 2321 at 5; Desert Lane Care Ctr., DAB No. 2287 at 5.

However, R97’s weight loss and its possible causes are issues that the facility should have documented and addressed at the time they occurred, in accordance with the facility’s policies and the resident’s care plan.  Dietician Curry’s after-the-fact explanations and speculations are simply too little and too late to meet the requirements of section 483.25(g).  The facility thus failed to take such “reasonable and timely steps to help ensure that [R97] maintained acceptable parameters of nutritional status,” and that failure, not the resident’s weight loss, per se, put the facility out of substantial compliance with section 483.25(g).  Carrington Place, DAB No. 2321 at 10.

Facility efforts to correct.  Instead of challenging the facts surrounding the facility’s response (or absence of a response) to R97’s significant weight loss, Petitioner relies on the testimony of Dietician Curry, who focusses on the facility’s efforts to bring the facility into compliance during and following the time of the survey:  1) on February 28, 2023, Dietician Curry finally submitted a “quarterly nutrition note”; 2) in an entry dated February 26, 2023, R97’s care plan added an additional focus aimed at R97’s nutrition risk.  CMS Ex. 28 at 22; P. Ex. 3 at 72-73.

These responses should have occurred in September 2022, when R97 suffered her initial, dramatic weight loss.  If, following the survey, these interventions were implemented and effective, the facility could correct the deficiency and return to substantial compliance, as it apparently did.  However, because they came so late, they are insufficient to establish the facility’s substantial compliance.

Surveyor inadequacy.  Petitioner complains about factors “the surveyor failed to take into consideration,” such as comorbidities and the impact of R97’s COVID-19 infection on her weight.  P. Br. at 6; see P. Br. at 11-12 (complaining that the surveyor did not consider similar factors regarding R38); P. Br. at 12-13 (offering similar complaints regarding R33).  First, the suggestion that R97’s COVID-19 infection contributed to her weight loss is belied by the evidence.  She contracted the disease on January 3, 2023, months after she started losing weight.  And she did not lose any weight after she

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contracted the disease.  In fact, between January 4 and February 2, 2023, she gained a fraction of a pound.  CMS Ex. 36 at 1-2.

Second, it is not the surveyor’s job to assess the resident in order to figure out the relationship between her comorbidities and her weight loss.  It is the facility’s job – particularly the dietician’s job – to do that assessment timely, which it did not do.

In any event, allegations of inadequate survey performance are irrelevant to ALJ or Board review of CMS’s noncompliance and remedy determinations.  42 C.F.R. § 488.318(b) (providing that inadequate survey performance does not relieve the facility of its obligation to meet all program requirements or invalidate adequately documented deficiencies); Avon Nursing Home, DAB No. 2830 at 2, 11 (2017) (holding that the survey agency’s purported failure to comply with provisions of the Medicare statute did not invalidate CMS’s noncompliance determination or enforcement remedy); see Avon Nursing & Rehab. v. Becerra, 119 F.4th 286 (2d Cir. 2024) (agreeing that the absence of registered nurses from the survey team did not invalidate survey findings).

[T]he ultimate issue before an ALJ is not how the state agency performed the survey or what process it followed to reach its conclusions, but “whether the evidence as it is developed before the ALJ supports” CMS’s independent “finding of noncompliance” under the relevant participation requirements.

Avon Nursing, DAB No. 2830 at 11 (quoting Sunshine Haven Lordsburg, DAB No. 2456 at 21 (2012), aff’d in part and transferred, Sunshine Haven Lordsburg Operations, LLC v. U.S. Dep’t of Health & Human Servs., 742 F.3d 1239 (10th Cir. 2014)).

State Operations Manual.  In a related argument, Petitioner faults the surveyor for disregarding portions of Appendix PP of the State Operations Manual because she allegedly did not consider all of the criteria that can affect the risk of weight loss.  P. Br. at 18-19.  I do not agree that the surveyor disregarded these provisions.  Further, if Petitioner determined that relevant evidence should be considered, it was free to submit any of those records or witness declarations and to make arguments concerning that evidence.  See Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, 129 F. App’x 181 (6th Cir. 2005).

But, ultimately, the issue of whether the surveyor adequately considered provisions of the State Operations Manual is irrelevant.  For more than two decades, the Board has flatly refused to use the sub-regulatory guidance provided to surveyors in the State Operations Manual (and elsewhere) to alter the plain language of the regulations.  The provisions of the State Operations Manual may be “instructive” but they are not binding.  Consulate Healthcare of Jacksonville, DAB No. 3119 at 17 (2023); Countryside Rehab. & Health

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Ctr., DAB No. 2853 at 25 (2018); Kindred Transitional Care and Rehab – Greenfield, DAB No. 2792 at 20 (2017); Miss. Care Ctr. of Greenville, DAB No. 2450 at 15-16 (2012); Foxwood Springs Living Ctr., DAB No. 2294 at 9 (2009); Oakwood Cmty Ctr., DAB No. 2214 at 16 (2008); Aase Haugen Homes, Inc., DAB No. 2013 at 15 (2006); Alden-Princeton Rehab. & Health Care Ctr., DAB No. 1873 (2003); Beverly Health & Rehab. Ctr. – Williamsburg, DAB No. 1748 at 8 (2000), aff’d, Beverly Health & Rehabilitation Servs. v. Thompson, 223 F. Supp. 2d 73, 99-106 (D.D.C. 2002).

This approach comports with the Supreme Court’s comments as to the value of sub-regulatory guidance.  See Azar v. Allina Health Servs., 587 U.S. 566 (2019).

2. The penalty imposed is reasonable.

Summary judgment applied to CMPs.  Whether the penalty amount imposed is reasonable is a legal, not a factual, issue.  To overcome a summary judgment motion as to the reasonableness of the penalties, the facility must proffer evidence sufficient to create a genuine dispute about facts affecting how the regulatory factors should be assessed.  Vibra Hosp. of Charleston, DAB No. 3094 at 30 (2023); Crawford Healthcare, DAB No. 2738 at 19 (2016).

Determining whether the penalty is reasonable.  To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors in 42 C.F.R. § 488.404 include:  (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the section 488.438(f) factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1638 at 8 (1999).

I determine whether a penalty is reasonable, based on the per-day penalty, not the total accrued penalty.  Crawford Healthcare, DAB No. 2738 at 20.

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The burden is on the facility “to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 22 (2017) (quoting Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 26-27 (2011)).

Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, April 19, 2023.  CMS Ex. 3; 87 Fed. Reg. 15,100, 15,111 (Mar. 17, 2022).  Here, CMS imposed a per-day CMP of $1,415, which is in the low-to-very-low-range for per-day penalties ($120 to $7,195).  42 C.F.R. §§ 488.408(e), 488.438; 45 C.F.R. § 102.3; 87 Fed. Reg. at 15,111.

Applying the criteria to this case.  Except to assert that the facility was in substantial compliance, so no CMP should be imposed, Petitioner presents no argument or evidence to establish that a reduction is necessary to make the CMP amount reasonable.  CMS is therefore entitled to summary judgment on the issue.  Vibra Hosp., DAB No. 3094 at 30; Crawford Healthcare, DAB No. 2738 at 19.

In any event, considering the relevant factors, CMS has established that the relatively low CMP is reasonable.

The record is silent on the facility’s enforcement history.

Petitioner does not claim that its financial condition affects its ability to pay the CMP.

With respect to the remaining factors, I consider the deficiency here serious.  I have discussed in some detail how staff disregarded a resident’s care plan and the facility’s own policies, leading to its significant failure to provide its vulnerable residents with the care needed to maintain acceptable standards of nutritional status.  For these shortcomings, the facility is culpable and substantial penalties are justified.  I therefore conclude that the low-end penalty imposed here is reasonable.

Conclusion

From February 22 through April 19, 2023 the facility was not in substantial compliance with 42 C.F.R. § 483.25(g), and the penalty imposed – $1,415 per day – is reasonable.