The Lakes of Clermont Health and Rehabilitation Center, ALJ Ruling 2027-2 (HHS CRD October 14, 2026)

RULING AND ORDER

Background

Petitioner, The Lakes of Clermont Health and Rehabilitation Center, is a long-term care facility located in Clermont, Florida, that participates in the Medicare program.  Based on a survey completed by the Florida Agency for Health Care Administration (state agency) on October 20, 2023, the Centers for Medicare and Medicaid Services (CMS) determined that the facility was not in substantial compliance with the quality-of-care requirement,  42 C.F.R. § 483.25(d) (Tag F689), and that its deficiency posed immediate jeopardy to resident health and safety).  CMS Ex. 1, CMS Ex. 3 at 1.

Following a revisit survey, completed on November 27, 2023, CMS determined that the facility achieved substantial compliance on November 7, 2023.  CMS Ex. 6.

Based on the October 20 survey findings, CMS has imposed a per-instance civil money penalty (CMP) of $14,335.  CMS Ex. 3 at 2.

Petitioner appealed.

The parties have filed their pre-hearing briefs and proposed exhibits, which I have reviewed.

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RULING

Issues

This case presents the following issues:

1. Was the facility in substantial compliance with 42 C.F.R. § 483.25(d); and
2. If the facility was not in substantial compliance with section 483.25(d), is the $14,335 per-instance CMP reasonable?

Issue that is not reviewable:  scope-and-severity.  Petitioner challenges CMS’s scope-and-severity (immediate jeopardy) determination.  P. Br. at 4.  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. §§ 498.3(b)(14), 498.3(d)(10); 38-40 Freneau Avenue Operating Company, LLC, d/b/a Atrium Pose Acute Care of Matawan, 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).

Neither factor is met here.  For a per-instance penalty, the regulations provide only one range, so the level of noncompliance does not affect the range of the CMP.  42 C.F.R. § 488.438(a)(2).  CMS has not found substandard quality of care.  Nor has the facility claimed that it lost approval of its nurse aide training program (assuming that it has one).

Even if CMS had been able to find substandard quality of care, its scope-and-severity finding might not be reviewable.   Under the statute and regulations, the state agency cannot approve the program if CMS imposes a penalty of $12,924 or more.  The facility could therefore lose its approval without regard to the scope-and-severity finding.  Act § 1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv); 88 Fed. Reg. 69,531, 69,552 (October 6, 2023).

For these reasons, CMS’s scope-and-severity finding is not reviewable.1

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Exhibits

Petitioner’s objections to CMS Exhibits.  CMS submitted 27 exhibits (CMS Exs. 1-27). Petitioner objects to an inordinate number of them.  As I discuss below, Petitioner’s objections are so non-specific that, for the most part, I cannot discern what Petitioner is objecting to.  For eight of the exhibits (CMS Exs. 1, 7, 8, 9, 10, 24, 26, 27), Petitioner offers a virtually identical word salad of objections, conflating the language from Rules 401, 402, and 403 of the Federal Rules of Evidence, but not explaining, in any understandable way, why the document should not be admitted.

Petitioner’s objections also disregard the regulations that govern these proceedings, as well as the many rulings issued by the Departmental Appeals Board and the administrative law judges addressing the admissibility of evidence.

I have broad discretion to admit evidence.  The Federal Rules of Evidence do not apply, and I may receive evidence that would be inadmissible pursuant to them.  42 C.F.R. § 498.61; Lifehouse of Riverside Healthcare Ctr., DAB No. 2774 at 9 (2017).  I admit hearsay “consistent with procedural ‘integrity and fundamental fairness.’”  Omni Manor Nursing Home, DAB No. 1920 (quoting Richardson v. Perales, 402 U.S. 389, 410 (1971)); Britthaven, Inc., DAB No. 2018 at 3 (2006) (“In administrative proceedings generally, and in Chapter 498 proceedings expressly, hearsay is admissible and can be probative on the issue of the truth of the matter asserted, where sufficient indicia of reliability are present.”).

Finally, I am required to inquire “fully into all of the matters at issue” and to admit any documents that are relevant and material.  42 C.F.R. § 498.60(b).

I now address Petitioner’s objections to individual exhibits:

CMS Ex. 1 – CMS’s Statement of Deficiencies (Form CMS-2567)

Petitioner objects to my admitting the Statement of Deficiencies (CMS Ex. 1), charging that it includes unreliable and inaccurate hearsay.  As noted above, hearsay is admissible in these administrative proceedings.  42 C.F.R. § 498.61.

Petitioner also complains that it “does not have the opportunity to cross individuals making statements in this document.”  This is a remarkable accusation, considering that every individual identified in the statement of deficiencies is a facility employee:

• “Staff A” – the nurse aide responsible for the resident involved in the incident that led to the deficiency finding;

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• “Staff B” – the licensed practical nurse who identified herself as the resident’s nurse;
• The facility’s Director of Nursing (DON), whom Petitioner initially listed as a witness, but then withdrew;
• The facility’s administrator, whom Petitioner has listed as a witness and has provided her written direct testimony;
• The facility’s Certified Occupational Assistant; and
• The Regional Director of Clinical Operations.

Petitioner has presented the testimony of one of these individuals and was free to call any of the others, which makes disingenuous its complaints about not being able to cross-examine them.  See Standing Order at 3 (¶ 4(c)(4) (January 3, 2024); Beatrice State Developmental Ctr., DAB No. 2311 at 17, 18 (2010) (pointing out that the facility could have, but did not, present employee testimony that refuted the statements that surveyors claimed they made); Omni Manor Nursing Home, DAB No. 1920 at 11 (2004) (holding that statements of facility employees to the surveyors may constitute substantial evidence).

Even under the Federal Rules, statements made by an agent of the opposing party, who is acting within the scope of the agent’s authority, are not hearsay and are admissible.  Fed. R. Evid. 801(d)(2)(D).

Finally, inasmuch as the statement of deficiencies is (in part) a notice document, it would be truly odd (and not very useful) if it did not specify which regulation was allegedly violated and why.2  A statement of deficiencies sets out the survey findings on which CMS bases its enforcement actions that are the subject of the appeal and, for that reason, is “unquestionably relevant and material evidence.”  Avalon Place Trinity, DAB No. 2819 at 38 (2017); see Oxford Manor, DAB No. 2167 at 2 (2008) (holding that a statement of deficiencies may function both as a notice document and as evidence of facts asserted therein); Magnolia Estates Skilled Care, DAB No. 2228 at 30 n.15 (2009); Jennifer Matthew Nursing & Rehab. Ctr., DAB No. 2192 at 4 n.2 (2008) (holding that CMS need not present evidence in support of a finding in a statement of deficiencies that is not disputed); Guardian Health Care Ctr., DAB No. 1943 at 12 (2004) (characterizing the statements of deficiencies as a “contemporaneous record of the survey agency’s

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observations and investigative findings.”); Park Place Manor, Ruling 26-3 at 3-4 (November 21, 2025).

Thus, because I am required to inquire fully into the matters at issue and to admit any documents that are relevant and material, I must admit the Statement of Deficiencies.

CMS Exs. 7, 9 – Surveyor Resumes.

Petitioner objects to the surveyors’ resumes for the same litany of reasons it attaches to its other objections to exhibits.  These blanket objections are particularly inapt when applied to resumes.

Petitioner complains that the resumes “lack . . . predicate and/or foundation.”  CMS responds that this objection “presents a conundrum” (which it does).  CMS Responses to Petitioner’s Objections at 5.  Is Petitioner suggesting that the documents do not reflect the witnesses’ backgrounds and qualifications?  Petitioner knows full well that these individuals were employed by the state agency and surveyed the facility from October 17-20, 2023.  See, e.g., P. Br. at 10.  The surveyors have submitted written declarations that confirm their credentials.  CMS Exs. 26, 27.

According to Petitioner: 

CMS is attempting to admit the testimony of this witness without the opportunity for Petitioner to cross exam [sic] the witness.  As such, this exhibit is material hearsay evidence3 that is not reliable and the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by needless presentation of cumulative evidence.

This charge might more appropriately have been made against the surveyors’ actual testimony (which it was), not their resumes.  But, no matter which exhibit Petitioner levels this charge against – and it levels the charge repeatedly – it makes no sense.

First, Petitioner’s accusation that it has no opportunity to cross-exam the surveyors is verifiably untrue.  My standing order explicitly says that a “party has the right to cross-examine any witness of the opposing party” and describes the procedures for requesting the opportunity to cross examine.  Standing Order at 5 (¶ 9) (January 3, 2024).  Here, Petitioner has, in fact, asked to cross-examine both of these witnesses.4

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Petitioner offers nothing to support its charges of “unfair prejudice, confusion of issues, or needless presentation of cumulative evidence,” which is not surprising, because these are resumes; they are also straightforward and unremarkable.

CMS Exs. 8, 10 – Complaint Worksheets.

Petitioner complains that the surveyors’ complaint worksheets are “unduly repetitious” and include allegations that are not the subject of this litigation.  Again, Petitioner does not identify which portions of the documents it finds objectionable.  See Standing Order at 3 (¶ 4.c.1) (instructing parties to cite the exhibit and page number if its argument relies on a particular exhibit).

These worksheets represent the surveyors’ recorded recollections, which are admissible under Rule 803 of the Federal Rules of Evidence.  That they provide underlying support for findings set forth in the Statement of Deficiency is not surprising and does not make them “unduly repetitious.”

Petitioner also complains that the surveyor notes include allegations that are not included in the Statement of Deficiencies, but, as with all of its objections, does not specify any particular allegations.  In any event, it is well-settled that CMS is not limited to the specific allegations included in a Statement of Deficiencies.  The Board has repeatedly explained that the Statement of Deficiencies is not intended to “lay out every single detail in support of finding that a violation has been committed.”  Alden Town Manor Rehab. & HCC, DAB No. 2054 at 17, citing Pac. Regency Arvin, DAB No. 1832 at 9-10 (2002).  So long as the facility knows what it must answer to – which, as here, was accomplished through record development – the facility had sufficient notice.

Petitioner then repeats the complaints it expressed in its complaints about the Statement of Deficiencies and the resumes:  that summaries of interviews are “material hearsay evidence that is not reliable”; that Petitioner does not have the opportunity to cross-examine the witnesses; and (again parroting the language of Rule 403 of the Federal Rules) that the document’s ‘probative values is substantially outweighed by the danger of unfair prejudice,” etc.  I have already explained why Petitioner’s claim that it had been denied the right to cross-examine witnesses is patently false.  As with its objections to other exhibits, Petitioner has not pointed to any particular section of the notes and has not explained how any portion would cause “unfair prejudice, confusion of the issues, or needless presentation of cumulative evidence.”

Petitioner does not identify or explain “material hearsay evidence.”  If hearsay is material and probative, it may be admitted under an exception to the hearsay rule (see Rule 803).  Even if it doesn’t fit a specific exception listed in Rule 803, a judge might still admit it if it has “equivalent” guarantees of trustworthiness and is more probative than other available evidence.  Fed. R. Ev. Rule 807.

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The Federal Rules do not apply but, if they did, Petitioner has not even shown that these or CMS’s other exhibits would be inadmissible under the Federal Rules.

CMS Ex. 24 – Immediate Jeopardy Removal Plan.  Petitioner’s objections duplicate its objections to CMS Exs. 1, 7, 8, 9, and 10.  Again, Petitioner points to no specific part of the exhibit that it finds objectionable and offers no specifics as to why it should not be admitted.

Petitioner’s objections to this exhibit are particularly puzzling because the exhibit consists of documents prepared by facility staff and submitted to CMS to demonstrate that the facility had corrected the problems CMS cited as presenting immediate jeopardy.

CMS Exs. 26, 27 – Surveyor Declarations.  Again, Petitioner’s objections to the surveyors’ testimony duplicate its objections to CMS Exs. 1, 7, 8, 9, and 10.  Again, Petitioner points to no specific part of the exhibits that it finds objectionable and offers no specifics as to why the documents should not be admitted.  For the same reasons I rejected Petitioner’s objections to the Statement of Deficiencies, the surveyor resumes, and the surveyor worksheets, I reject its objections to the surveyors’ written declarations.  So long as their testimony is relevant and material (which it is), it will be admitted.

Moreover, surveyors “are professionals who use their judgment, in concert with Federal forms and procedures, to determine compliance.”  CMS provides them with “comprehensive training” in multiple areas, including applying and interpreting regulations, survey techniques and procedures, and techniques for auditing resident assessments and care plans.  Surveyors are perfectly capable of making and reporting their observations.  In fact, that is their job.  42 C.F.R. §§ 488.26(c)(3); 488.314(b); Omni Manor Nursing Home, DAB No. 1920 (2004) (finding that a registered nurse surveyor is qualified to explain how underlying facts constitute program deficiencies); see Lakeport Skilled Nursing Ctr., DAB No. 2435 at 5-7 (2012) (describing registered nurse surveyors’ qualifications to opine on the potential harm posed by staff failing to follow physician orders in caring for diabetic residents).5

Petitioner does not object to an additional nine exhibits, but attaches conditions to them.  I reject those conditions:

CMS Exs. 2-6 – State and Federal Notice Letters.

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Petitioner does not object to my admitting CMS Exs. 2-6, which are notice letters from the state agency and CMS, but expresses concern about why they are being offered.  The notices are relevant and material and must be admitted.  If Petitioner disagrees with CMS’s use of the documents, it is free to make those arguments.

CMS Exs. 16, 19 – The Resident’s Care Plan and Summary of Orders.

Petitioner does not object to these documents “subject to strict proof thereof.”  Petitioner does not explain what this means.  On their faces, these are the facility’s own documents.  Petitioner does not claim otherwise.

CMS Exs. 23, 25 – photo of a resident’s room placard and facility floor plan.  Petitioner does not object to these exhibits, “subject to authentication.”  Again, these are documents over which Petitioner has complete control.  In her written declaration, Surveyor Nieves describes the placard photo.  CMS Ex. 26 at 4 (Nieves Decl. ¶ 12).  Again, Petitioner offers no evidence, or even a suggestion that they are not what they purport to be.

For all of these reasons, I overrule all of Petitioner’s objections and admit into evidence CMS Exs. 1-27.

In the absence of any objections, I admit into evidence P. Exs. 1-8.

I decline to admit P. Ex. 9.  Without any explanation, Petitioner lists, as its Exhibit 9, “any exhibit listed by CMS.”  Since these documents have been admitted into the record as CMS exhibits, re-admitting them as Petitioner’s exhibits would be duplicative.  See Standing Order at 3 (¶ 4.c.3).

But more significant and disturbing, Petitioner flat-out objected to my admitting eight of those exhibits and sought restrictions on an additional nine of them.  That Petitioner then lists the same exhibits as its own raises significant questions about whether it filed its objections in good faith.  Certainly, this effort to admit the documents as Petitioner’s own exhibits is baffling and makes it hard to take seriously Petitioner’s objections.

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RULE 56(f) ORDER

Summary Judgment.  Based on the parties’ submissions, it appears that no material facts are in dispute and that summary judgment may be appropriate.  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 also Livingston Care Ctr v. U.S. Dep’t of Health and Human Services, 388 F. 3d 168, 172 (6th Cir. 2004).  Under paragraph (f) of Rule 56, I may consider summary judgment on my own motion if I identify material facts not in dispute and give the parties notice and an opportunity to respond.

I have identified the following material facts that are not in dispute:

• The facility’s policy on the use of mechanical lifts is found at CMS Ex. 11.
• The “Patient Lift Safety Guide,” prepared by the Food and Drug Administration is found at CMS Ex. 12.
• The manufacturer’s instructions for the “Maxi Move” mechanical lift are found at CMS Ex. 13.
• Resident 4 (R4) was an 82-year-old woman, admitted to the facility on June 15, 2023.  Her medical records are found at CMS Exs. 15, 16, 17, 18, 19, and 20.
• At 10:45 a.m. on October 17, 2023, Surveyor Joanne Nieves observed R4 in her room, alone and unattended.  She was sitting in a sling of a mechanical lift, approximately four feet above the floor, in a space between her bed and the wall.
• On October 17, 2023, a supervisor counselled the nurse aide responsible for R4’s care, who had left her unattended.  The nurse aide was suspended pending investigation.  The record of that action is found at P. Ex. 2 at 1.
• On October 17, 2023, the facility convened an “Ad Hoc Quality Assurance Performance Improvement” meeting.  Its conclusions are found at CMS Ex. 24 at 2.

Decision based on the written record.  In lieu of summary judgment, the parties may agree to have this case decided based on the written record.  When a decision is based on the written record, the parties agree to submit the case based on written submissions even though there may be disputed issues of material fact.

Not later than December 14, 2026, the parties should respond to this order, addressing the following issues:

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1. Whether summary judgment is appropriate;
2. In the alternative, whether the matter should be decided based on the written record.

CMS has listed two witnesses and provided their written declarations.   Petitioner has listed one witness and provided her written declaration.  Unless this matter is decided based on summary judgment or the written record, a party has the right to cross-examine the witness(s) for the opposing party.  Petitioner has asked to cross-examine both of CMS’s witnesses.  CMS does not wish to cross-examine Petitioner’s witness.  Assuming that the matter should not be decided on summary judgment or on the written record, I direct Petitioner to indicate, no later than December 14, whether it still intends to cross-examine the opposing witnesses.  In determining whether cross-examination is required, Petitioner should consider the following:

• CMS’s decision-making process is irrelevant.
• Legal arguments and responses to legal arguments are appropriately presented in the parties’ briefs, not through cross-examination.  I am not interested in the witnesses’ legal opinions and will not allow counsel to argue with witnesses.
• Cross-examination must be within the parameters of the witness’s direct testimony.

If a party wishes to reply to the other party’s submissions, it must request leave to do so.

I will grant no extensions of time absent a showing of extraordinary good cause.