Pennsylvania Nursing and Rehabilitation Center, DAB No. 3185 (2025)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Pennsylvania Nursing and Rehabilitation Center (Petitioner), a skilled nursing facility (SNF), appeals an administrative law judge (ALJ) decision, Pennsylvania Nursing and Rehabilitation Center, DAB CR5854 (2021) (ALJ Decision).  The ALJ upheld determinations by the Centers for Medicare & Medicaid Services (CMS) that Petitioner was not in substantial compliance with multiple Medicare participation requirements concerning resident neglect, facility policies, quality of care, and accident prevention from February 16 through May 15 of 2017.  ALJ Decision at 1-2, 45.  The ALJ concluded that CMS’s determination that Petitioner’s noncompliance posed immediate jeopardy to resident health and safety from February 16 through 24 of 2017 was not clearly erroneous.  Id. at 1, 41, 42, 45.  Finally, the ALJ determined the civil money penalty (CMP) amounts that CMS imposed were reasonable.  Id. at 2, 45.  For reasons explained below, we affirm the ALJ Decision.

Legal Background

Section 1819 of the Social Security Act (Act) and the regulations in 42 C.F.R. Part 483 govern SNFs’ participation in the Medicare program.¹  To participate, a SNF must be in substantial compliance with program requirements.  42 C.F.R. § 488.330(b); Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 6 (2000).  A “deficiency” means a failure to meet a specified participation requirement, “noncompliance” means any deficiency that causes a facility not to be in substantial compliance, and “substantial compliance” means that no identified deficiency puts residents at risk of more than minimal harm.  42 C.F.R. § 488.301 (defining terms).

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State health agencies conduct compliance surveys of SNFs.  Act §§ 1819(g), 1864(a); 42 C.F.R. §§ 488.10, 488.11.  Surveys include conferring with facility staff, touring the facility, interviewing residents, reviewing medical records, and observing patient care.  42 C.F.R. § 488.110(a)-(h).  The survey process is intended to determine compliance with participation requirements, and a surveyor’s primary role is “to assess the quality of care and services and to relate those findings to statutory and regulatory requirements for program participation.”  Id. § 488.110(m).  “Complaint surveys” are “those surveys conducted on the basis of a substantial allegation of noncompliance.” Id. §§ 488.30(a).    

When a survey reveals substandard care or services, surveyors prepare a Statement of Deficiencies that cites each deficiency by a “prefix tag and regulatory citation, followed by a summary of the deficiency and supporting findings.”  42 C.F.R. § 488.110(i)(4).  Surveyors signify each deficiency’s “seriousness,” meaning its severity and scope, per a matrix in the CMS State Operations Manual (SOM) containing designations from “A” (least serious) to “L” (most serious).  W. Care Mgmt. Corp., DAB No. 1921, at 4 (2004) (displaying matrix and citing to SOM).  Noncompliance poses “immediate jeopardy” if it “has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301 (defining “immediate jeopardy”).  The state agency gives the Statement of Deficiencies to the SNF and CMS.  Id. § 488.110(j), (k).  In response, the noncompliant SNF must submit an acceptable plan of correction specifying its corrective measures and a timetable for completing them.  Id. §§ 488.401 (defining “plan of correction”), 488.402(d), 488.408(f).   

This appeal arises from the ALJ’s findings and conclusions concerning Petitioner’s noncompliance with four participation requirements:  42 C.F.R. §§ 483.12, 483.12(b), 483.25, and 483.25(d)(2). 

The pertinent portions of 42 C.F.R. § 483.12 state:

          The resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in this subpart.  This includes but is not limited to freedom from corporal punishment, involuntary seclusion and any physical or chemical restraint not required to treat the resident’s medical symptoms.

*        *        *

          (b) The facility must develop and implement written policies and procedures that:
          (1) Prohibit and prevent abuse, neglect, and exploitation of residents and misappropriation of resident property,
          (2) Establish policies and procedures to investigate any such allegations, and

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          (3) Include training as required at paragraph § 483.95.

The pertinent portions of 42 C.F.R. § 483.25 provide:

          Quality of care is a fundamental principle that applies to all treatment and care provided to facility residents.  Based on the comprehensive assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices, including but not limited to the following:

*        *        *

          (d) Accidents.  The facility must ensure that—
          (1) The resident environment remains as free of accident hazards as is possible; and
          (2) Each resident receives adequate supervision and assistance devices to prevent accidents.

The definition of “neglect” for purposes of 42 C.F.R. § 483.12 appears in section 488.301 (and also, effective November 28, 2016, in section 483.5):

Neglect is the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.

CMS may impose enforcement “remedies” on a noncompliant SNF.  Act § 1819(h); 42 C.F.R. §§ 488.400; 488.402(b)-(c); 488.406; 488.408(a)-(e).  Available remedies may include a CMP assessed per day or per incident and a denial of payment for new admissions (DPNA).  42 C.F.R. §§ 488.406; 488.417; 488.430; 488.438(a).  When CMS assessed the penalty at issue, the daily CMP ranges (adjusted for inflation) were $6,394 to $20,965 for noncompliance posing immediate jeopardy and $105 to $6,289 for lesser noncompliance.  Id. §§ 488.408(d)-(e); 488.438(a); 45 C.F.R. § 102.3 (table of maximum CMPs); see also Annual CMP Inflation Adjustment, 82 Fed. Reg. 9,174, 9,182-83 (Feb. 3, 2017).  CMS determines a CMP amount by considering specified factors.  42 C.F.R. §§ 488.404; 488.438(b), (f).  A per day CMP “may start accruing as early as the date that the facility was first out of compliance” and continues until the SNF achieves substantial compliance or the provider agreement terminates.  Id. §§ 488.440(a)(1), 488.454(a). 

When CMS determines noncompliance and imposes remedies, an SNF may request an ALJ hearing and appeal an unfavorable ALJ decision to the Departmental Appeals Board, Appellate Division (Board).  Id. §§ 488.408(g)(1); 498.3(b)(13)-(14); 498.5(c). 

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Case Background²

Petitioner operates a facility in Fort Worth, Texas, and participates in Medicare as a SNF and in Medicaid as a nursing facility (NF).  ALJ Decision at 2; CMS Ex. 13, at 24; Parties’ Joint List of Issues and Stipulations for Hr’g (J. Stips.) at 2. 

Petitioner had a policy (copyright 2001, revised 2005) stating that Petitioner would not “condone any form of resident abuse or neglect.”  ALJ Decision at 17 (citing CMS Ex. 23 and P. Ex. 12, at 2); see also Tr. at 563 (Administrator’s testimony acknowledging P. Ex. 12 as Petitioner’s policy).  The policy referenced three different definitions of “neglect.”  The policy defined “neglect” both as “failure to provide goods and services as necessary to avoid physical harm, mental anguish, or mental illness” and as “failure to provide goods or services, including medical services that are necessary to avoid physical or emotional harm, pain, or mental illness.”  P. Ex. 12, at 2, 13.  Petitioner’s policy also recognized that for “certified facilities” such as Petitioner, “neglect is also defined at 42 CFR § 488.301,” which defines neglect as a facility’s failure “to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.”  CMS Ex. 23, at 1; P. Ex. 12, at 13; 42 C.F.R. § 488.301.  Petitioner’s policy listed “unexplained weight loss” and “[i]nadequate provision of care” as signs of actual physical neglect.  ALJ Decision at 17; P. Ex. 12, at 2.

1. Resident 1

Petitioner first admitted Resident 1 on December 15, 2005, when he was 39 years old.  ALJ Decision at 32; CMS Ex. 8, at 1.  Resident 1’s diagnoses included unspecified psychosis, lack of coordination, unspecified convulsions, and muscle weakness.  ALJ Decision at 32; CMS Ex. 8, at 1, 5.  

On March 27, 2017, Resident 1 fell from a Hoyer lift.  ALJ Decision at 32.  “A Hoyer Lift is a device operated by staff to lift a resident by using a hammock-like sling that is placed under the resident and has straps that are attached to the lift during the transfer.”  W. Tex. LTC Partners, Inc., DAB No. 2652, at 3-4 (2015), aff’d, 843 F.3d 1043 (5th Cir. 2016).  While a certified nurse aide (CNA) was transferring Resident 1 from chair to bed using the lift, one of its straps broke and the resident fell about two feet to the floor, landing on his right shoulder.  ALJ Decision at 30; CMS Ex. 3, at 57; CMS Ex. 9; P. Ex. 15, at 8.  Petitioner’s staff notified the resident’s physician and family, and an x-ray of the resident’s right shoulder showed a fractured clavicle.  ALJ Decision at 30; CMS Ex. 3, at 57; CMS Ex. 8, at 17; CMS Exs. 9, 10; P. Ex. 15, at 5-7.  The x-ray report gave the reason for the exam as “POST FALL, PAIN.”  CMS Ex. 8, at 17.

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At the time, Resident 1’s care plan required “total care from staff” for all bed mobility and transfers, and use of a “Hoyer lift for all transfers.”  CMS Ex. 8, at 4; P. Ex. 14, at 3.  The care plan’s approach to Resident 1’s risk for falls included “[t]otal assist of staff with use of” a Hoyer lift.  P. Ex. 14, at 11.

2. Resident 2

Petitioner admitted Resident 2 on February 1, 2012, when he was 46 years old.  ALJ Decision at 11; CMS Ex. 13, at 1, 24.  His diagnoses included traumatic brain injury secondary to a motor vehicle accident, hemiplegia, paraplegia, gastro-esophageal reflux disease, and unspecified dementia and psychosis.  ALJ Decision at 11; CMS Ex. 13, at 1, 40-41, 78, 80-81, 104; CMS Ex. 15, at 1.  He was totally dependent on assistance for toileting and was incontinent of bowel and bladder.  ALJ Decision at 12; CMS Ex. 13, at 33, 39, 68.  He received antipsychotic, antianxiety, and antidepressant medications.  CMS Ex. 13, at 49.  His sister was his responsible party.  CMS Ex. 13, at 1.

Resident 2’s comprehensive care plan dated December 15, 2016, identified several problems and needs.  CMS Ex. 13, at 67-75; P. Ex. 1, at 2-4.  The care plan documented the resident’s history of constipation and risk for fecal impaction and bowel obstruction.³  ALJ Decision at 12; CMS Ex. 3, at 3; CMS Ex. 13, at 67; P. Ex. 1, at 2; see also CMS Ex. 13, at 89, 91, 93, 95, 97 (recording constipation among Resident 2’s primary diagnoses in monthly summaries of his conditions and care from October 13, 2016 through February 14, 2017).  The associated goal was for Resident 2 to have a bowel movement (B.M. or BM) “at least every three days.”  CMS Ex. 13, at 67; P. Ex. 1, at 2; see also ALJ Decision at 12; CMS Ex. 3, at 3.  Petitioner was to “[m]onitor B.M.s for amount and consistency,” and if the resident had “no B.M. after three days” Petitioner was to “perform a bowel assessment” and “report abnormal findings to M.D.”  CMS Ex. 13, at 67; P. Ex. 1, at 2; see also ALJ Decision at 12; CMS Ex. 3, at 3.  The care plan also documented Resident 2’s incontinence of bowel and bladder and directed the approach of “[m]onitor[ing] for incont.”  CMS Ex. 13, at 72; P. Ex. 1, at 4.  The care plan listed nursing staff as responsible for monitoring the resident’s B.M.s for amount and consistency, and a licensed nurse as responsible for performing a bowel assessment and reporting any abnormal findings to a medical doctor if there was no B.M. after three days.  CMS Ex. 13, at 67; Tr. at 654-55.

Petitioner documented certain changes in Resident 2’s condition during February 2017.  Monthly summaries of his condition for October 2016 through January 2017 recorded a “Regular” bowel pattern, but the summary for February 2017 did not.  CMS Ex. 13, at 90, 92, 94, 96, 98.  The percentage of Resident 2’s meals consumed generally declined throughout February 2017.  P. Ex. 11, at 3 (showing, for example, 25% of breakfast, 25%

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of lunch, and 75% of dinner eaten on February 1 and none of breakfast or lunch and only 50% of dinner eaten on February 23).  A February 3, 2017 Nutrition Assessment Form recorded that he “cont[inue]s to have significant weight loss.”  CMS Ex. 13, at 61.  February 8 nursing notes documented Petitioner’s telephone call notifying Resident 2’s sister of his “poor appetite for breakfast/lunch” and poor oral intake.  Id. at 87; P. Ex. 4, at 1.  A February 20, 2017 Weight/Skin Change form records his loss of 19 pounds in 30 days and continued refusal to eat breakfast and lunch.  CMS Ex. 13, at 101.  February 22 and 23 nursing notes reference his weight loss and Petitioner’s discussions with his sister and Physician Assistant (PA) about measures to address it, possibly including hospice care.  Id. at 88; P. Ex. 4, at 2.  A Weight Flow Sheet charted Resident 2’s weight dropping from 175 pounds to 148 pounds between December 1, 2016 and February 1, 2017, and dropping further to 140 pounds by February 22, 2017.  CMS Ex. 13, at 99.

Petitioner’s documentation of Resident 2’s Activities of Daily Living (ADL) during February 2017 was incomplete.  ADL Flow Records provided spaces for recording his bowel function for each of the three daily shifts (Night, Day, and Evening).  See, e.g., CMS Ex. 13, at 13; see also Tr. at 554 (Administrator’s confirmation of Petitioner’s shifts).  The ADL Flow Record instructions direct the entry of codes “over all shifts,” including the “Number of Episodes” of bowel function per shift.  CMS Ex. 13, at 13 (emphasis omitted).  From February 1 through 23 of 2017, Petitioner’s staff documented Resident 2’s bowel function in the ADL Flow Records for only 34 of the 69 daily shifts.  ALJ Decision at 13; CMS Ex. 3, at 3, 21, 40; CMS Ex. 13, at 13, 15.  From February 16 through 23 of 2017, staff made such documentation for only nine of 24 shifts, “noting for each shift that was documented that the resident had no episodes of bowel function.”  ALJ Decision at 13; see also CMS Ex. 3, at 3, 21, 40; CMS Ex. 13, at 13; P. Ex. 2, at 14.

On February 23, 2017, the PA examined Resident 2 to follow up on his reported weight loss and refusal to eat.  ALJ Decision at 15; P. Ex. 10, at 1.  The PA documented that Resident 2’s abdomen “was soft, not tender, not distended, with bowel sounds and she concluded that the abdominal assessment was negative.”  ALD Decision at 15.  The PA “added anorexia as a diagnosis.”  Id.

On February 24, 2017, at 9:50 a.m., Petitioner transferred Resident 2, by physician’s order, to a hospital emergency room for evaluation.  CMS Ex. 3, at 4, 22; CMS Ex. 13, at 88; P. Ex. 3, at 1-3.  The resident had a bloody catheter and a “sickly appearance” and said that “he did not feel good.”  CMS Ex. 3, at 3, 4, 6, 22, 24, 42.  A February 24 nursing note documented his continued poor oral intake and “thin/frail” appearance.  CMS Ex. 13, at 88; P. Ex. 4, at 2.  The Resident Transfer Form documented his refusal of most meals, consumption of “junk food” and sodas, and weight loss.  P. Ex. 3, at 3. 

Hospital intake records document Resident 2’s condition on arrival.  A medical history taken that day states, “He has not had a BM in an unknown amount of time and admits to abdominal pain” among other symptoms, including constipation and an “emaciated”

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appearance.  CMS Ex. 15, at 1, 4-5.  His abdomen had “mild tenderness to palpation.”  Id. at 5.  At 1:35 p.m., a physician interpreted computerized tomography (CT) imagery taken at the hospital as showing that “[a] severe amount of stool is present within the rectum, right colon, and transverse colon,” and “[t]he stool within the rectum is concerning for fecal impaction.”  Id. at 21; see also CMS Ex. 3, at 3-4, 22, 41.  The imagery also showed “associated mild small bowel dilation with air, which could relate to ileus.”   ALJ Decision at 16; CMS Ex. 15, at 21.  Ileus means bowel paralysis.  ALJ Decision at 20 n.12; P. Ex. 6, at 4; Tr. at 463.  Resident 2’s treatment plan included “[f]ecal disimpaction ordered to help with constipation,” with the “hope . . . that he will have improvement of his ileus once he’s able to clear his stool.”  CMS Ex. 15, at 22-23. 

By the next day, February 25, 2017, the hospital’s fecal disimpaction efforts, including enemas, had failed and hospital staff and Resident 2’s family agreed he was too frail and malnourished to undergo more invasive procedures.  CMS Ex. 3, at 4-5, 23, 41; CMS Ex. 15, at 8.  His abdomen was distended and tender, with minimal bowel sounds.  CMS Ex. 3, at 5, 23, 41; CMS Ex. 15, at 9. 

On February 26, 2017, a hospice physician certified that Resident 2 was terminally ill and the hospital discharged the resident to hospice.  CMS Ex. 15, at 27; P. Ex. 7, at 5, 7.  A registered nurse (RN) assessment of the same date noted, “No bowel movement documented at facility for over 3 weeks.”  CMS Ex. 15, at 61.

Resident 2 died on March 6, 2017 in hospice care.  ALJ Decision at 17; CMS Ex. 3, at 5; CMS Ex. 15, at 69.  A Medical Abstract of Death Certificate (Death Certificate) recorded the certifying physician’s conclusions that Resident 2’s immediate cause of death was sepsis due to large bowel obstruction and the approximate interval from onset to death was “weeks.”  CMS Ex. 3, at 5; CMS Ex. 16.  The Death Certificate listed aspiration pneumonia as a “significant condition[] contributing to death but not resulting in the underlying cause.”  CMS Ex. 16. 

3. The survey

From April 5 through 26 of 2017, the Texas Department of Aging and Disability Services (State Agency) surveyed Petitioner to investigate several reported incidents and complaints.  CMS Ex. 3, at 1 (listing two complaints and three incidents); J. Stips. at 2; Tr. at 72 (testimony by surveyor that an “incident” is “self-reported by the facility” and a complaint investigation addresses a third-party complaint against the facility).  The survey team, which included a nutritionist (C.A.) and a RN (B.R.), reviewed Petitioner’s records and took notes.  CMS Exs. 26, 27; Tr. 71-74.  The survey also entailed interviews with 13 members of Petitioner’s staff concerning Resident 2 and at least 25 staff members regarding Resident 1.  Tr. at 76.  Surveyor C.A. was the primary drafter of the Statement of Deficiencies.  Tr. at 124.

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Concerning Resident 1, the surveyors learned the following information.  The CNA who transferred Resident 1 on March 27, 2017 stated that “it was normally difficult to find other staff to help assist him” with Hoyer lift transfers and “he had not asked for assistance” with Resident 1 that day.  CMS Ex. 3, at 57-58.  The CNA “stated he did not believe the outcome of the incident would have been different if another person had been there during the transfer except that another person may have been able to help break the resident’s fall.”  Id. at 58.  Interviews with four other CNAs and two licensed vocational nurses (LVNs) “revealed they knew two staff members were needed to operate the mechanical lift properly.”  Id. at 59-60; see also CMS Ex. 27, at 12-13, 15.  The survey team reviewed a document titled “Policy:  Mechanical or Hydraulic Lift.”  CMS Ex. 3, at 62 (quoting CMS Ex. 22, at 1).  The policy stated that a lift is “a mechanical device used to transfer a resident” who is “paralyzed, obese, or too weak to transfer without complete assistance,” and “[i]t requires two or three staff members to safely operate and accomplish the transfer.”  CMS Ex. 22, at 1.

Regarding Resident 2, the surveyors recorded information from interviews and from documents including his Minimum Data Set assessment, comprehensive plan of care, ADL Flow Records, Weight Flow Sheets, Resident Transfer Form, physician orders, nursing notes, hospital records, and Death Certificate.  CMS Ex. 3, at 2-51.  Petitioner’s previous director of nursing (DON) reportedly checked Resident 2’s ADL documentation after his transfer to the hospital and found the documentation “horrible.”  Id. at 9, 27, 45; CMS Ex. 27, at 28.  The former DON had discussed with staff “the importance of documenting a resident’s ADLs,” and said “nurses were expected to monitor the ADL book” when their shifts ended “and the CNAs should have reported to the nurse” when the resident had no B.M.  CMS Ex. 3, at 9, 27-28, 45-46.  Petitioner’s Administrator and then-current DON admitted they were “very upset about what happened” with Resident 2 and “they felt the CNAs failed to alert the charge nurses that Resident #2 was not having any bowel movements and the nurses failed to monitor the ADL book documentation.”  Id. at 14, 32, 50; CMS Ex. 27, at 32, 35.  The facility’s Medical Director reportedly “thought [the] facility was doing a good job” but “stated the facility had to be more diligent regarding the residents’ toileting.”  CMS Ex. 3, at 14-15, 33, 51; CMS Ex. 27, at 45; see also CMS Ex. 3, at 17, 35 (identifying Medical Director); CMS Ex. 7 (same). 

The State Agency completed its investigation on April 26, 2017 and prepared a Statement of Deficiencies that summarized the survey results and identified deficiencies under four tag numbers.⁴  ALJ Decision at 2.  The first three tags (F223, F226, and F309) concerned Petitioner’s alleged failure “to consistently monitor Resident #2’s bowel function in February 2017,” despite his “history of constipation” and “risk of impaction and bowel obstruction.”  CMS Ex. 3, at 2, 20, 38.  Petitioner allegedly did not:  “ensure each

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resident had the right to be free from neglect” (Tag F223), “implement written policies and procedures” prohibiting neglect (Tag F226), and ensure “treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the residents’ choices” (Tag F309).  Id. at 2, 20, 38.  For those three tags, the surveyors found immediate jeopardy, stating Petitioner’s “failure could affect the facility’s 32 residents who were incontinent of bowel and placed them at risk for not being assessed properly which could lead to a decline in their health status, the need for hospitalization, and/or death.”  Id. at 2, 20, 38-39.  The Statement of Deficiencies noted Resident 2’s hospitalization on February 24, 2017 and death on March 6, 2017 from “sepsis due to large bowel obstruction.”  Id. at 2, 20, 38.  The fourth deficiency, Tag F323, concerned Petitioner’s failure to ensure “adequate assistance to prevent accidents” because a CNA transferred Resident 1 by mechanical lift without assistance on March 27, 2017, resulting in the resident’s “right midclavicular shaft fracture.”  Id. at 55-56.

By letter dated May 10, 2017, the State Agency cited Petitioner for these deficiencies:

• Tag F223:  noncompliance with 42 C.F.R. § 483.12(a)(1), at seriousness level K (pattern of immediate jeopardy), concerning Resident 2;
• Tag F226:  noncompliance with 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3), at seriousness level K, concerning Resident 2;
• Tag F309:  noncompliance with 42 C.F.R. §§ 483.24 and 483.25(k)(1), at seriousness level K, concerning Resident 2; and
• Tag F323:  noncompliance with 42 C.F.R. § 483.25(d)(1)-(2) and (n)(1)-(3), at seriousness level G (isolated actual harm that does not amount to immediate jeopardy), concerning Resident 1.

ALJ Decision at 8-9; CMS Ex. 1, at 1; CMS Ex. 3.  Petitioner submitted a Plan of Correction that the State Agency accepted.  CMS Exs. 4, 5.

4. CMS’s imposition of remedies

CMS issued its initial determination on May 23, 2017.  ALJ Decision at 2; CMS Ex. 1.  CMS concurred with the State Agency’s noncompliance findings and tags with one exception:  for Tag F309, CMS cited 42 C.F.R. § 483.25 in addition to sections 483.24 and 483.25(k)(1).  CMS Ex. 1, at 1.  CMS imposed a $14,659 per day CMP for the period of immediate jeopardy from February 16 through 24 of 2017, and a $1,460 per day CMP for noncompliance below immediate jeopardy from February 25, 2017 until further notice from CMS.  ALJ Decision at 2; CMS Ex. 1, at 2.  (CMS also proposed a DPNA and warned of potential termination of Petitioner’s provider agreement, but later rescinded those remedies before their effective date.  ALJ Decision at 2; CMS Ex. 1, at 1-3.).

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By letter dated August 10, 2017, CMS notified Petitioner that it had achieved substantial compliance effective May 16, 2017.  ALJ Decision at 2; CMS Ex. 2, at 1.  The final CMP imposed was $14,659 per day from February 16 through 24 of 2017 and $1,460 per day from February 25 through May 15, 2017.  ALJ Decision at 2-3; CMS Ex. 2, at 1.  The total CMP amount was $248,731.  CMS Ex. 2, at 1.

5. Proceedings before the ALJ

Petitioner requested a hearing before an ALJ.  ALJ Decision at 3; P. Notice of Appeal & Req. for Hr’g (RFH).  Petitioner argued that the deficiency citations had “no regulatory basis,” that “the health and safety of facility residents was not jeopardized,” and that the CMP was “excessive.”  RFH at 2.

The ALJ held a video hearing from September 18 through 20 of 2018.  ALJ Decision at 3.  The ALJ admitted all but one of the parties’ proposed exhibits.⁵  Id.; Tr. at 23.  CMS called two witnesses: CMS reviewer Captain (Public Health Service retired) D.J.M., R.N.; and former state surveyor C.A (who had left state employment in May 2017).  ALJ Decision at 3.  Petitioner called three witnesses:  Robert Parker, M.D.; Administrator Marie Lawson; and Pearl Merritt, R.N., Ed.D.  Id.  The ALJ accepted Dr. Parker as an expert in geriatric medicine and Nurse Merritt as an expert in nursing home administration and geriatric health care.  Id. at 18, 20; Tr. at 432, 613.  Both parties filed post-hearing briefing.  ALJ Decision at 3.

In a written decision issued on April 14, 2021, the ALJ winnowed down the regulations at issue to one per tag, as follows:

1. Tag F223:  The ALJ clarified that 42 C.F.R. § 483.12, rather than section 483.12(a)(1), was the correct citation for the allegations “that Petitioner failed to ensure that Resident 2 was not neglected.”⁶  Id. at 9.  The ALJ reasoned the surveyors’ citation to subparagraph (a)(1) “did not prevent Petitioner from preparing to defend” against the “clearly alleged” neglect charge and “caused no prejudice.”  Id.

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2. Tag F226:  The ALJ determined 42 C.F.R. § 483.12(b) was the requirement relevant to Petitioner’s alleged failure “to implement its written policies and procedures which prohibited neglect of a resident.”  Id.  The ALJ discarded the allegations of noncompliance with section 483.95(c), concerning training, as lacking support and superfluous.  Id.  The ALJ disregarded CMS’s references in its “post-hearing brief” to section 483.12(c) as “merely scrivener’s errors that cause no prejudice.”  Id.
3. Tag F309:  The ALJ identified 42 C.F.R. § 483.25, not section 483.24, as the regulation that “most closely tracks” the noncompliance alleged.  Id. at 9-10.  The ALJ treated citations to section “483.25(k)(1)” as “surplusage” because “there is no subsection 483.25(k)(1),” and the surveyors did not “specifically allege a violation of either” section 483.25(k) (concerning pain management) or section 483.25(l) (concerning dialysis).  Id.
4. Tag F323:  The ALJ determined 42 C.F.R. § 483.25(d)(2), requiring “adequate supervision and assistance devices to prevent accidents,” to be the “very clear” basis for this Tag.  Id. at 10.  The ALJ disregarded citations to section 483.25(d)(1), concerning a “resident environment [that] remains as free of accident hazards as is possible,” as inadequately alleged and discarded citations to section 483.25(n)(1)-(3), concerning bed rails, as unrelated to the facts and therefore “surplusage.”  Id.

The ALJ then upheld CMS’s substantive determinations regarding each tag based on the ALJ’s de novo assessment of the record evidence, including specific findings concerning the weight and credibility of witness testimony.  As to Tags F223, F226, and F309, the ALJ determined that “Petitioner was not in substantial compliance due to violations of 42 C.F.R. §§ 483.12, 483.12(b), and 483.25, and those violations posed immediate jeopardy.”  ALJ Decision at 1 (footnote omitted).  Concerning Tag F323, the ALJ determined that “Petitioner also violated 42 C.F.R. § 483.25(d)(2), and that violation caused actual harm that did not amount to immediate jeopardy.”  Id. at 2.  The ALJ concluded that “CMS made a prima facie showing” of these deficiencies, each one posed a risk for at least minimal harm, and “Petitioner has not rebutted the CMS prima facie showing or established an affirmative defense . . . by a preponderance of the evidence.”  Id. at 10-11.  The ALJ ruled that Petitioner did not show the declaration or duration of immediate jeopardy for Tags F223, F226, and F309 to be clearly erroneous.  Id. at 11.  The ALJ determined that CMS’s enforcement remedies were reasonable, including the CMP of $14,659 per day from February 16 through 24, 2017, for the period of immediate jeopardy, and $1,460 per day from February 25 through May 15, 2017, for continuing noncompliance at less than the immediate jeopardy level.  Id. at 11, 45.

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6. Proceedings before the Board

Petitioner has appealed the ALJ Decision and requests “reversal by the Board.”  P.’s Req. for Review of ALJ Decision (RR) at 1.  CMS asks the Board to “affirm the ALJ’s determinations of noncompliance and the imposition of CMPs.”  CMS’ Br. at 24.

Petitioner did not file a reply brief but did submit a request for oral argument, which we deny.  RR at 32.  Such a request “should state the purpose of the requested appearance.”   Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s Participation in the Medicare and Medicaid Programs (Guidelines), “Development of the Record on Appeal,” ¶ (f), (last visited Mar. 25, 2025), https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/participation/index.html.  The parties’ briefing adequately explains their positions, the Board has thoroughly reviewed the administrative record, we can reach a sound decision from that record, and Petitioner has stated no reason that oral argument nevertheless is necessary.  See Copperas Cove LTC Partners, Inc., DAB No. 3049, at 7 n.4 (2021) (denying oral argument because parties’ positions were “adequately explained in their appeal briefs” and Board could “make a sound decision based on those submissions and the record developed before the ALJ”), aff’d, No. 21-60892, 2023 WL 4198882 (5th Cir. 2023); Highland Pines Nursing Home, Ltd., DAB No. 2361, at 1 n.1 (2011) (denying oral argument as facility “stated no purpose for the request as required by Board Guidelines”).

Standard of Review

The Board’s standard of review on a disputed factual issue is whether substantial evidence supports the ALJ’s decision, and our standard of review on a disputed legal issue is whether the ALJ’s decision is erroneous.  Guidelines, “Completion of the Review Process,” ¶ (c).  “The bases for modifying, reversing or remanding an ALJ decision include” the basis that “a prejudicial error of procedure (including an abuse of discretion under the law or applicable regulations) was committed.”  Id.; see Emery Cnty. Care & Rehab. Ctr., DAB No. 3006, at 4 (2020) (“When a party alleges a procedural error in ALJ proceedings,” the Board reviews the ALJ decision for prejudicial procedural error “including an abuse of discretion”).

“We have repeatedly held that the role of appellate review is not to substitute our evaluation of the evidence for that of the ALJ, but only to determine whether the factual findings made by the ALJ are supported by substantial evidence in the record as a whole.”  Cmty. Nursing Home, DAB No. 1807, at 4 (2002).  “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).  “The ALJ is not required to cite all evidence in the record supporting his or her findings, so long as substantial evidence in the record as

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a whole supports these findings.”  Batavia Nursing & Convalescent Ctr., DAB No. 1904, at 25 (2004), aff’d per curiam, 129 F. App’x 181 (6th Cir. 2005).

Analysis

 The parties’ evidentiary burdens are well established.  “Under the applicable substantive law, CMS has the initial burden of coming forward with evidence that the provider was not in substantial compliance with Medicare participation requirements.”  W. Tex. at 6.  Once CMS has made its prima facie case, the facility must show by a preponderance of the evidence that it was in substantial compliance.  Sunshine Haven Lordsburg, DAB No. 2456, at 3 n.2 (2012), aff’d in part and transferred sub nom. Sunshine Haven Nursing Operations, LLC v. U.S. Dep’t of Health & Hum. Servs., 742 F.3d 1239 (10th Cir. 2014).  The provider “bears the ultimate burden of persuading the ALJ that it was in substantial compliance.”  W. Tex. at 6.  A facility also bears the burden of demonstrating clear error in CMS’s determination of the existence and duration of immediate jeopardy.  42 C.F.R. § 498.60(c)(2); Crawford Healthcare & Rehab., DAB No. 2738, at 14-15, 18 (2016).  Regarding the CMP amount, the burden is not on CMS to present evidence for each regulatory factor; instead, the facility must demonstrate through argument and evidence addressing the factors that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2829, at 22 (2017).

The parties have fully presented their respective positions.  Petitioner claims “that the facility did not commit the F223, 226, 309, and 323 citations,” that “the immediate jeopardy designation was clearly erroneous; and that the proposed civil money penalty is not reasonable.”  RR at 1.  Petitioner contends “[t]he ALJ’s decision to the contrary is not supported by substantial evidence” and “is, in some respects, arbitrary and an abuse of discretion” warranting reversal by the Board “as a matter of law.”  Id.  CMS counters that the ALJ’s factual findings of noncompliance “are supported by substantial evidence and Petitioner is simply trying to relitigate the case,” while “[t]he ALJ’s legal conclusions on the deficiencies, finding of immediate jeopardy, and reasonableness of the CMP were not erroneous” and the Board should affirm them.  CMS Br. at 1-2.

We hold that the ALJ did not err in determining that Petitioner was noncompliant, CMS’s assessment of immediate jeopardy was not clearly erroneous, and the CMP amounts imposed were not unreasonable.

1. The ALJ’s determinations that Petitioner was noncompliant with 42 C.F.R. §§ 483.12 (per Tag F223), 483.12(b) (per Tag F226), and 483.25 (per Tag F309) are supported by substantial evidence and not legally erroneous.

The ALJ addressed Tags F223, F226, and F309 together “because they all arise from the allegations that Resident 2 did not receive necessary care and services; and was, therefore neglected; and the fact Resident 2 was neglected shows that Petitioner failed to

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implement its policies and procedures prohibiting neglect.”  ALJ Decision at 10.  The parties also treated these three tags as conceptually interrelated.  See CMS’s Pre-Hr’g Br. at 16 (“Petitioner’s failures under F223 and F226 are also the basis for its citation under F309.”); P.’s Post-Hr’g Br. at 2 n.1 (“The facts and allegations under F223 are identical to those under F226 and F309.”).  The Board analyzes each deficiency separately to address as clearly as possible Petitioner’s numerous arguments on appeal.

1. The ALJ’s determination that Petitioner violated 42 C.F.R. § 483.12, per Tag F223, is supported by substantial evidence and not legally erroneous.

The ALJ concluded that CMS made a prima facie showing, which Petitioner failed to rebut, that Petitioner violated 42 C.F.R. § 483.12 (Tag F223).  ALJ Decision at 10-11, 23.  Section 483.12 requires that “[t]he resident has the right to be free from . . . neglect.”  Id. at 10.  The ALJ determined that Resident 2’s interdisciplinary team “determined he had a history of constipation and was at risk for impaction and bowel obstruction and created a comprehensive care plan to address the history and risk,” but Petitioner’s staff did not carry out that care plan.   Id. at 23.  After quoting the regulatory definition of “neglect,” the ALJ concluded “that Petitioner’s failure to ensure that Resident 2’s care plan was followed amounts to neglect under the regulatory definition.”  Id. at 24.

1. Under the applicable definition of “neglect,” Petitioner neglected Resident 2.

Petitioner argues it did not commit neglect because pertinent regulations define “neglect” as “failure to furnish goods or services necessary for the resident’s well-being,” and documents and testimony in evidence “confirm that Resident #2 was not deprived of any service he needed at the nursing home.”  RR at 19.  Petitioner details care that Resident 2 received “over the last 6-8 weeks of his nursing stay.”  Id. at 7-13.  Petitioner argues that Resident 2 “was frequently monitored” and received “a pain assessment every day, every shift” and laxatives “daily to prevent constipation.”  Id. at 19-20.  Petitioner claims it “consistently monitored Resident #2 and reported significant events regarding his care to the relevant practitioners.”  Id. at 20.  “Quite simply,” Petitioner argues, “Resident 2 “was never neglected” and any suggestion to the contrary “is preposterous.”  Id. at 21.

The ALJ correctly applied the regulatory definition of “neglect”:

The regulatory definition of neglect applicable to SNFs is found in 42 C.F.R. § 488.301, which defines neglect as:  “the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.”  The Board has accepted that a facility’s failure to provide a resident with the care required by his care plan supports a conclusion that the resident was neglected.  The Cottage Extended Care

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Ctr., DAB No. 2145 at 4-5 (2008).  Therefore, I conclude that Petitioner’s failure to ensure that Resident 2’s care plan was followed amounts to neglect under the regulatory definition. There is no dispute that fecal impaction or bowel obstruction are more than minimal harm or that constipation may cause discomfort.

ALJ Decision at 23-24.

Substantial evidence from Resident 2’s stay at Petitioner’s facility supports the ALJ’s assessment.  “Resident 2’s comprehensive care plan dated December 15, 2016, states that he had a history of constipation and was at risk for impaction and bowel obstruction,” and staff were to “monitor his bowel movements including amount and consistency.”  ALJ Decision at 12 (emphasis omitted); see CMS Ex. 13, at 67; P. Ex. 1, at 2.  “[I]f he had no bowel movement for three days a bowel assessment was to be done and abnormal findings were to be reported to the resident’s physician.”  ALJ Decision at 12; see CMS Ex. 13, at 67; P. Ex. 1, at 2.  ADL Flow Records were important for facilitating communication between Petitioner’s CNAs and nurses, from shift to shift, about resident status and care.  See Tr. at 85, 153.  Yet in the ADL Flow Records from February 1 through 23 of 2017, “staff documented Resident 2’s bowel functions for only 34 of the 69 shifts” and his “last recorded bowel movements in February 2017, occurred on February 11, 2017.”  ALJ Decision at 13; see CMS Ex. 13, at 13-16.  During the same period, Petitioner’s records show no medical assessment or physician notification as the care plan mandated.  “The Board has generally been unwilling to accept that treatments that are not documented have nevertheless been performed.”  River City Care Ctr., DAB No. 2627, at 9 (2015), aff’d, 647 F. App’x 349 (5th Cir. 2016).  Accordingly, the ALJ found that after no documented bowel movement by Resident 2 for three days, “[t]he evidence does not show that:  Resident 2 was assessed for constipation, a bowel assessment was done, or the physician was notified as required by the care plan.”  ALJ Decision at 13.

Substantial evidence from Resident 2’s hospitalization, after his transfer from Petitioner’s facility, further supports the ALJ’s assessment.  At the hospital on February 24, 2017, “a CT scan of his abdomen and pelvis” revealed a “severe amount of stool” in his rectum and colon that “raised the concern of fecal impaction.”  ALJ Decision at 16; see CMS Ex. 15, at 21.  “Disimpaction was ordered,” which the ALJ assessed as “good evidence Resident 2 was not only suffering from constipation but was impacted at the time of examination.”  ALJ Decision at 16; see also id. at 28 (inferring that large amount of stool visible in CT taken “shortly after the resident’s hospital admission is consistent with the resident not having a bowel movement for some time prior to his transfer from Petitioner”).  Petitioner’s own medical evidence confirms that fecal impaction is one potential cause of a large bowel obstruction, which is “an emergency condition that requires early identification and intervention,” such that “[e]arly diagnosis and treatment are crucial,” and “[a]n untreated intestinal obstruction can be fatal.”  P. Ex. 6, at 1-2, 4-5, 9, 16-17.

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We see no error in the ALJ’s assessment of the evidence.  The ALJ articulated a reasonable basis for giving the foregoing evidence greater weight than “the unsworn statements of several staff members who cared for” Resident 2:

[T]hey do not state that they knew Resident 2 had a bowel movement during the period of February 12 through 24, 2017.  Some of the staff members’ statements indicate that they did not hear Resident 2 complain of constipation or symptoms of bowel obstruction.  P. Ex. 9.  However, that is not evidence that the resident had a bowel movement and the absence of a bowel movement for three days is what triggered the requirements of the care plan, not resident complaints.

ALJ Decision at 13-14.  For example, one CNA stated Resident 2 “was having bowel movement[]s when I was taking care of him,” and another CNA claims the resident “went . . . a few times,” yet neither CNA specified any dates when the alleged bowel movements occurred.  P. Ex. 9, at 1, 6.  A LVN noticed no signs or symptoms of bowel obstruction in Resident 2, but admittedly “did not check resident #2 for impaction” and “never treated resident #2 for constipation.”  Id. at 3.  A RN acknowledged the “absence of bowel movement documentation by nurse aides on the nurse aide flow sheets for January and February.”  Id. at 4.  The employee statements, considered both individually and collectively, do not rebut CMS’s compelling evidence of neglect, which included a physician-certified Death Certificate (CMS Ex. 16) stating that the resident died of sepsis due to a large bowel obstruction of weeks’ duration.  Cf. Florence Park Care Ctr., DAB No. 1931, at 28 (2004) (discussing lack of persuasiveness of “unsworn written statements by facility nurses” offered to support “a proposition inconsistent with the autopsy report” of a resident).

Petitioner’s assertions of factual error by the ALJ tend instead to highlight troubling inconsistencies in Petitioner’s own records.  For example, Petitioner relies on three “Weight/dietary evaluations” to claim that Resident 2 suffered only a “five pound loss” of weight between February 1 and 22 of 2017.  RR at 9; P.’s Pre-Hr’g Exchange at 2 (identifying P. Ex. 8).  Yet those evaluations document his weight on February 1, 2017 inconsistently as either 152 pounds or 148 pounds.  Compare P. Ex. 8 at 5 with id. at 6.  The February 22, 2017 entry of 147 pounds contradicts the 140 pounds recorded on Petitioner’s separate Weight Flow Sheet for that same date.  Compare id. at 7 with CMS Ex. 13, at 99.  Surprisingly, Petitioner emphasizes the unhelpful fact that “close examination of the dietary records reveals a significant typographical error” in “late January/early February 2017.”  RR at 9-11 (underlining replaced with italics).  Petitioner notes that “documentation does not equate to care, and the facility was not cited for failure to maintain proper clinical records.”  RR at 6 n.3.  However, the Board recognizes medical documentation as credible evidence of the quality of resident care.  Autumn Ridge Rehab. Ctr., DAB No. 2467, at 20 (2012) (“[D]ocumenting a resident’s medical condition and care is a critical nursing function,” and “[c]onsequently, documents created

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or maintained by a SNF may be reliable and probative evidence about the quality of a resident’s care.”).  Furthermore, Petitioner’s denial of neglect conflicts with Petitioner’s own policy, which itemized “unexplained weight loss” and “[i]nadequate provision of care” – both of which Petitioner evidently experienced – as signs of actual physical neglect.  P. Ex. 12, at 2, 13.

Petitioner maintains that “Resident #2 was never neglected” and “[t]he ALJ’s ruling in this regard is not supported by substantial evidence and, therefore, constitutes an abuse of discretion as a matter of law,” RR at 21, but Petitioner is mistaken. “[A]n abuse of discretion standard applies to the exercise of an ALJ’s discretion, although any legal standard or factual finding underpinning the exercise of discretion would be subject to the standard of review applicable to law or facts.”  Meridian Nursing & Rehab at Shrewsbury, DAB No. 2504, at 7 (2013), aff’d, 555 F. App’x 177 (3d Cir. 2014). The substantial evidence standard of review that applies to disputed findings of fact “is deferential.”  Glenoaks Nursing Ctr., DAB No. 2522, at 6 (2013).  Under this standard we determine whether a reasonable fact-finder could have made a contested finding after taking into account any contrary or detracting record evidence.  Autumn Ridge at 7.  We believe any reasonable fact-finder, weighing the entire evidentiary record here, could have reached the same factual finding of neglect by Petitioner that the ALJ reached.  The ALJ also did not commit legal error in rejecting Petitioner’s position.  Petitioner’s itemization of care that Resident 2 did receive cannot excuse required care that he did not receive.  Even “[a]n instance of exemplary treatment would not cancel out or make insignificant an instance of gross neglect,” and “[i]t is not an adequate response to assert that many other things were done for the resident at other times.”  Emerald Oaks, DAB No. 1800, at 21, 29 (2001).

We reject Petitioner’s arguments, defer to the ALJ’s assessment of the evidence, and uphold the ALJ’s legal conclusion of neglect because Petitioner does not persuasively explain specifically how and why the ALJ committed any error of fact or law, much less any abuse of discretion that would warrant reversal.  Cf. Lifehouse of Riverside Healthcare Ctr., DAB No. 2774, at 9 (2017) (deferring to ALJ’s assessment of evidence as SNF did “not explain specifically how and why the ALJ’s weighing of evidence . . . amounts to an abuse of discretion such that we should take the exceptional action in not deferring to the ALJ’s assessment of the evidence”).

2. Petitioner’s failure to fulfill its care plan for Resident 2 constituted neglect.

Petitioner argues that care plan goals “are simply that – goals,” and “just because something is listed as a goal does not mean that the goal can always be achieved.”  RR at 5.  “Just because the facility may not meet its goal,” Petitioner asserts, “does not mean that the resident has been neglected, or that improper care has been provided.”  Id. 

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The ALJ did not err in determining that Petitioner’s noncompliance with its care plan for Resident 2 amounted to neglect.  ALJ Decision at 18.  As an initial matter, the ALJ did not find noncompliance because Petitioner did not meet the goal that Resident 2 would have a bowel movement at least every three days; the ALJ found noncompliance because Petitioner did not monitor and assess Resident 2 as the care plan required.  Id. at 23 (finding no evidence “that Petitioner’s staff took actions required by Resident 2’s care plan when Resident 2 did not have a bowel movement recorded in more than three days” or “that Petitioner’s staff actually monitored the amount and consistency of Resident 2’s bowel movements as required by his care plan”).   Furthermore, a facility’s “failure to implement its own care plan is not mitigated by its after-the-fact disparagement of the measures it adopted as useless.”  Avalon Place Trinity, DAB No. 2819, at 26 (2017), aff’d per curiam, 761 F. App’x 407 (5th Cir. 2019).  “The Board has held that a facility’s care plan indicates the facility’s assessment of what the resident needs, and that failure to follow the care plan may be grounds for concluding that the facility is not in substantial compliance with . . . quality of care standards.”  Azalea Ct., DAB No. 2352, at 12 (2010) (citing cases), aff’d, 482 F. App’x 460 (11th Cir. 2012).

3. Petitioner’s arguments concerning Resident 2’s protected personal choices are without merit.

Petitioner argues that it did not neglect Resident 2 but instead was respecting his personal choices as the law required.  Petitioner asserts that “[r]esident right regulations” protecting residents’ “likes/preferences” gave Resident 2 an “absolute right” to continue with his “extremely poor nutritional habits” and “[t]here was nothing the facility could do to stop him.”  RR at 4-5.  Petitioner describes him as “resistant to care, frequently hitting and cursing at staff when they tried to help him.”  Id. at 4.  Thus, Petitioner states, the resident’s “bowel related issues were clinically unavoidable.”  Id. at 5.  Petitioner also asserts that the resident “was refusing all attempts at therapeutic intervention” to counter weight loss during February 2017 so “his condition continued to decline.”  Id. at 9.  Petitioner informed Resident 2’s family and physician that the resident “only eats candy and drinks soda, and that he is non-compliant in all aspects of his care.”  Id. at 10.  Petitioner argues that Resident 2’s “refusal of care complicated his course of treatment, but refusal of care was his absolute right.”  Id. at 20-21.

Petitioner raised the same argument before the ALJ, who reasonably rejected it.  ALJ Decision at 27.  Certain regulations do protect a resident’s right to self-determination.  See, e.g., 42 C.F.R. § 483.10(a), (f).  Yet they do not negate other Medicare participation requirements or excuse noncompliance with them.  See id. § 483.425 (requiring facility to “ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices”) (emphasis added).  While “outcomes can depend on many factors, including a resident’s cooperation (i.e., the right to refuse treatment),” CMS considers it “reasonable to require the facility to ensure that the resident does not deteriorate within the confines

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of a resident’s right to refuse treatment.”  Medicare & Medicaid; Requirements for Long Term Care Facilities, 54 Fed. Reg. 5,316, 5,332 (Feb. 2, 1989).

A facility may not claim unavoidable harm to a resident without first showing that the facility has furnished all necessary treatment and services, and Petitioner has not shown that here.  See Heritage House of Marshall Health & Rehab., DAB No. 3035, at 12 (2021); see also Harborage, DAB No. 2905, at 8 (2018) (stating that “the record does not contain any evidence supporting a finding that the facility provided all of the . . . interventions required by [the] care plan, as would be necessary to support a claim” of unavoidability of harm) (underlining replaced with italics).  Petitioner cannot credibly claim that Resident 2’s decline and demise were unavoidable when the record shows Petitioner did not take even the measures required in the resident’s facility-developed care plan.

“Irreducibly hard choices exist between preserving freedom and dignity and preserving health and safety” of residents, but a facility may not “abdicate[] its responsibility to its residents to engage in the struggle to optimize both aspects of their well-being to the maximum extent practicable.”  Woodstock Care Ctr., DAB No. 1726, at 35 (2000), aff’d, 363 F.3d 583 (6th Cir. 2003), reh’g & suggestion for reh’g en banc denied (6th Cir. 2004); accord Neighbors Rehab. Ctr., LLC, DAB No. 2859, at 16 (2018), aff’d, 910 F.3d 919 (7th Cir. 2018).  Petitioner presents no evidence that Resident 2 chose to hinder Petitioner from carrying out the care plan, for example by refusing to let staff perform the required monitoring of his bowel movements or by rejecting any appropriate treatment.  If Resident 2’s known preference for an unhealthy diet has any relevance, it is to make Petitioner’s failures of monitoring and care more consequential and culpable, not less.  Petitioner’s failures to monitor Resident 2’s bowel output regularly and to call for physician intervention if three days passed without a bowel movement were an abdication of the facility’s responsibilities, particularly if Petitioner perceived the resident’s eating preferences as potentially harmful.  The ALJ correctly rejected Petitioner’s argument and would have erred by accepting it.  See Good Shepherd at 18 (holding that ALJ erred in concluding “that a facility may invoke resident rights as a reason for not following its care plan designed to protect that resident”).

4. Petitioner’s arguments concerning the survey process are immaterial and do not negate the ALJ’s well-supported findings of noncompliance.

Petitioner claims this case involves “complex medical issues” and the ALJ Decision is based “on findings by a surveyor,” namely C.A., “with no nursing training,” who under Texas law is “not qualified to determine the cause of a particular medical condition or the cause of death.”  RR at 2, 14.  Petitioner complains that C.A. lacked “understanding of the medical issues” and failed “to review critical facility documentation,” including “key portions of the hospital records.”  Id. at 2, 11, 15.  Petitioner objects that the surveyor

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relied on “backwards” reasoning and “hindsight” and on documents “not even in existence” during the relevant events.  Id. at 2, 13-14.  Petitioner contends CMS staff made “arbitrary” enforcement decisions based “solely” on the Statement of Deficiencies, not on “any medical records or facility documentation.”  Id. at 2; see also id. at 32.

Those arguments are unpersuasive for reasons the ALJ explained:

A surveyor is not expected to make a diagnosis.  Rather, a surveyor is required to make findings and conclusions as to whether a provider is in substantial compliance with program participation requirements, which requires her to conclude whether or not there is a potential for more than minimal harm.  More importantly, however, it is not necessary for me to rely upon the surveyor’s findings or conclusions . . . .  Rather, I conduct a de novo review of all the evidence to determine whether Petitioner violated a regulatory or statutory participation requirement and whether the violation posed a risk for more than minimal harm.  Therefore, [the surveyor’s] qualifications and survey performance have no real impact on the outcome in this case.  The regulations are clear that any inadequacies in survey performance do not relieve a facility from meeting all the requirements of program participation or invalidate adequately documented deficiencies.

ALJ Decision at 26 (citation omitted).  And, despite Petitioner’s assertions, the ALJ’s conclusions about Petitioner’s noncompliance did not rely on the surveyor’s testimony or her findings and conclusions in the Statement of Deficiencies.  Id.

We find no error in the ALJ’s analysis.  “Surveyors are professionals who use their judgment, in concert with Federal forms and procedures, to determine compliance,” and “CMS provides comprehensive training to” them, which includes “[a]pplication and interpretation of regulations for SNFs and NFs.”  42 C.F.R. § 488.26(c)(3), 488.314(b).  “While state agency surveys and their results are the foundation for any subsequent CMS enforcement action, once CMS does proceed with enforcement action, on appeal, the ALJ . . . reviews the record de novo and determines whether the facility was in substantial compliance with applicable requirements.”  Avalon Place at 12 n.8.  “Inadequate survey performance does not—(1) Relieve a SNF or NF of its obligation to meet all requirements for program participation; or (2) Invalidate adequately documented deficiencies.”  42 C.F.R. § 488.318(b).  Accordingly, “the Board has consistently held that allegations of inadequate survey performance are irrelevant to ALJ or Board review of CMS’s noncompliance and remedy determinations.”  Avon Nursing Home, DAB No. 2830, at 11 (2017) (citing cases); see also Consulate Healthcare of Jacksonville, DAB No. 3119, at 35 (2023) (“Inadequate survey performance, even if proven, neither relieves a SNF of its obligation to meet all requirements for program participation, nor invalidates adequately documented deficiencies.”).  “[E]ven if the surveyors did not follow the

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correct procedures, that is irrelevant since the ALJ’s review is de novo.”  N.C. State Veterans Nursing Home, Salisbury, DAB No. 2256, at 26 (2009).

We also reject Petitioner’s argument that “conclusions based on ‘backwards reasoning’ (i.e., hindsight), such as those reached by the surveyors here, are not reliable, and should not be used to support any type of legal sanction against the facility.”  RR at 14.  Petitioner bases this assertion on decisions by the federal Eighth Circuit and Texas state courts that variously address the admissibility of scientific expert witness testimony under the Federal Rules of Evidence (FRE), their Texas analogues, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  RR at 14.  The analysis in those cases has no meaningful application here.  Neither the ALJ nor the surveyor was an expert witness proffering scientific testimony in a federal court.  See River City at 15 (“[T]he gatekeeping function contemplated by Daubert is meant to protect lay factfinders from confusion, but the ALJ sits without a jury and needs no such protection in evaluating evidence.”); CMS List of Proposed Exs. & Witnesses at 3 (showing C.A. not offered as expert witness).  Also, neither Eighth Circuit cases, Texas decisions, nor the FRE are governing authority in this administrative proceeding.  See Golden Living Ctr. – Trussville, DAB No. 2937, at 27 (2019) (stating Board was not bound to follow precedent from federal judicial circuit where facility was not located); Lifehouse of Riverside at 19   (“State law has no bearing in this case where we (and the ALJ) determine whether [a facility] violated federal regulations concerning nursing homes that participate in federal health care programs.”); Hanover Hill Health Care Ctr., DAB No. 2507, at 6 (2013) (stating FRE “do not apply to hearings under the procedures at 42 C.F.R. Part 498”).

Here, the ALJ “retained for himself the analytical work of applying the standards to the facts as he found them” and therefore “the role of the surveyor[] in collecting evidence and in providing information about professional practices was subject to the de novo evaluation of the ALJ.”  River City at 16.  We find no error in the ALJ’s evaluation of the record evidence, and we reject Petitioner’s criticism of the surveyor and survey process.

5. The ALJ appropriately found Petitioner’s expert witness testimony lacked credibility.

We next address Petitioner’s argument concerning the ALJ’s handling of the expert testimony that Petitioner presented.  Petitioner argues the ALJ “improperly disregarded Dr. Robert Parker’s uncontroverted opinions” concerning Petitioner’s care of Resident 2.  RR at 15.  Petitioner states that “Dr. Parker testified in detail why [Petitioner’s] actions were appropriate, within the standard of care, and how/why the facility staff’s actions did not cause any harm to Resident 2.”  Id.  Petitioner relies on Dr. Parker’s testimony to establish, among other things, that Resident 2 was hospitalized “not for issues related to his bowel status,” but instead for poor oral intake and nutritional status, medication refusal, and bloody urine.  Id. at 13 (citing Tr. at 480-484).  Petitioner also relies on Dr. Parker’s testimony to argue that Resident 2 did not die from sepsis due to a large bowel

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obstruction despite a Death Certificate stating the opposite.  Id. (citing Tr. at 444-46, 454, 457, 461, 463-64, 466). 

“In general, the Board defers to an ALJ’s findings on the credibility of witness testimony unless there are compelling reasons not to do so.”  Autumn Ridge at 12.  Petitioner does not assert any reason, much less a compelling one, to disregard the ALJ’s assessment of Dr. Parker’s or Nurse Merritt’s testimony.

We see no error in the ALJ’s assessment of Dr. Parker’s testimony.  Discussion of Dr. Parker’s opinions fills three pages of the ALJ Decision, and the ALJ’s explanation for considering those opinions “simply not credible and weighty” is similarly detailed:

Dr. Parker expressed these opinions ignoring the fact that:  [Petitioner’s] staff had not recorded that Resident 2 had a bowel movement after February 11, 2017; there is no evidence of compliance with Resident 2’s care plan requirement that amount and consistency of his bowel movements be monitored; a CT confirmed that Resident 2 arrived at the hospital with a severe amount of stool in his colon; the CT was then interpreted by a radiologist as concerning for impaction and ileus; and unsuccessful efforts were made at the hospital on February 24 and 25, 2017 to clear the stool.

ALJ Decision at 20.  We agree with that assessment and further observe that Dr. Parker made significant factual concessions that tend to support CMS’s position rather than Petitioner’s.  Dr. Parker acknowledged that he would want to know if his patient had not had a bowel movement in ten days, and even “[s]even days would be a concern.”  Tr. at 493, 500.  Dr. Parker acknowledged the usefulness of medical documentation in providing care, and that he would expect documentation by CNAs to inform licensed nurses, who in turn would inform physicians, about patient condition.  Tr. at 493-94.  Dr. Parker acknowledged that in this case, if information was not documented in the patient’s records, he does not know whether it was communicated at all.  Tr. at 495.

Petitioner also argues that its second expert witness, Nurse Merritt, “plainly stated [that] there was no deficient practice” and the Board should reverse the ALJ’s contrary decision as “not supported by substantial evidence,” but again we disagree.  See RR at 25.  The ALJ reasonably dismissed Nurse Merritt’s opinion as mere “speculation” and “not based on facts reflected in the evidence she considered,” particularly given her concession “that if there is no documentation, one cannot prove that monitoring actually occurred or that one knew what a resident’s status was.”  ALJ Decision at 21-22.  Nurse Merritt’s testimony did lack factual support.  She opined that Petitioner monitored Resident 2’s bowel status on shifts and dates when the ALJ Flow Records showed no corroborating entries.  ALJ Decision at 21.  On cross-examination she admitted to seeing no mention in the nursing notes or weight meeting notes about the amount or consistency of Resident

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2’s B.M.s, even though his care plan called for nursing staff to monitor their amount and consistency.  Tr. at 654-56, 694-95.  She conceded that she was not personally present at any meeting or conversation between facility staff, so did not know what information, if any, the CNAs and nurses communicated to each other orally about Resident 2.  Tr. at 658, 708.  As for Nurse Merritt’s opinion that Petitioner’s nursing care of Resident 2 “met the applicable standard of care or standard of practice,” the ALJ reasonably assessed that opinion as neither credible nor weighty because it ignored the same contrary facts that Dr. Parker had ignored.  ALJ Decision at 21-22.  The ALJ also justifiably found Nurse Merritt’s opinion “that there was no immediate jeopardy” to be neither credible nor weighty because it lacked foundational testimony that Nurse Merritt “knew the definition of immediate jeopardy or how it is determined.”  Id. at 22-23

The ALJ committed no legal error in determining that the testimony of Petitioner’s expert witnesses lacked credibility and weight.  An ALJ reasonably may discount expert witness testimony that “was not based on personal, contemporaneous observation,” and the witnesses’ qualification as experts “does not mean that their testimony is entitled to more weight than that of experienced surveyors.”  Coquina Ctr., DAB No. 1860, at 15-16 n.11 (2002).  “We do not disturb an ALJ’s credibility finding unless it is clearly erroneous,” Lutheran Home at Trinity Oaks, DAB No. 2111, at 14 (2007), or there is some other “compelling reason,” Blossom S. Nursing & Rehab. Ctr., DAB No. 2578, at 19 (2014).  Petitioner has shown no such clear error or other compelling reason here.

6. The ALJ did not err by treating Tag F223 as encompassing Petitioner’s failure to follow Resident 2’s care plan.

Petitioner argues that “[t]here are Ftags/regulations pertaining to a facility’s perceived failure to follow a resident’s care plan, but F223 is not among them, and none of the applicable care plan regulations were cited in this case.”  RR at 3.  “As such,” Petitioner states, “the ALJ’s reasoning is misplaced and constitutes an abuse of discretion by relying on regulations/citations either not cited or not at issue under F223.”  Id.

We first observe that survey tags do not limit CMS’s enforcement authority or discretion but are merely organizational reference numbers.  Copperas Cove at 27.  “[T]he fact that CMS may have been able to cite a deficiency under another tag is irrelevant” to the dispositive issues of whether the ALJ Decision was factually supported by substantial evidence and free of legal error.  Lakeridge Villa Health Care Ctr., DAB No. 1988, at 23 (2005), aff’d, 202 F. App’x 903 (6th Cir. 2006).

We next observe that the ALJ did not err by narrowing the regulations at issue to four – one for each tag – from the more numerous citations by the State Agency and CMS.  As CMS states, the Statement of Deficiencies contains some regulatory citations that “are not relevant,” but it also “contains citations to every regulatory violation sustained by the ALJ.”  CMS Br. at 18.  A Statement of Deficiencies is “a notice document,” and

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surveyors need not “display the drafting skills of attorneys.”  Pac. Regency Arvin, DAB No. 1823, at 9-10 (2002); accord Rehab at River’s Edge, DAB No. 3163, at 13 (2024).  The ALJ appropriately recognized this.  Tr. at 64 (“[S]urveyors – they have some training, but they are not lawyers.  When they write these charges, sometimes they are not the most artfully constructed.”).  The Statement of Deficiencies nevertheless included the full text of each regulatory provision on which the ALJ Decision ultimately relied.  CMS Ex. 3, at 1, 19, 37, 55.  Petitioner received reasonable notice of the allegations it faced, had ample opportunity to present a responsive defense, and did so.

The ALJ also did not err by treating Petitioner’s failure to follow the care plan for Resident 2 as relevant to the neglect allegation in Tag F223.  Before the ALJ hearing, Petitioner stipulated that one issue for adjudication related to Tag F223 was whether “the facility monitor[ed] Resident #2’s bowel status,” J. Stips. at 1, as his care plan required.  As the ALJ stated, “failure to deliver care as directed by the care plan meets the definition of neglect and is an example of an inadequate provision of care.”  ALJ Decision at 18.  Thus, 42 C.F.R. § 483.12, the neglect-prohibiting regulation that underlies Tag F223, can encompass a facility’s deviation from a resident’s care plan.  “CMS may, in its discretion, charge a facility with violating any number of applicable requirements based on a given set of circumstances.”  Pinecrest Nursing & Rehab. Ctr., DAB No. 2446, at 23 (2012).  The Board has rejected an argument, comparable to Petitioner’s, “that the surveyors were obligated to allege a violation under” one regulation rather than another, for “[t]he regulations do not preclude the possibility that a facility’s conduct or omissions might violate more than one participation requirement.”  W. Care Mgmt. at 50-51.  “More to the point, however, arguing over which tag surveyors used does nothing to aid [a facility] in carrying its burden,” which Petitioner has not carried, “to establish that the facts on which CMS relied in citing it with a violation . . . are inaccurate.”  Avalon Place at 11.

2. The ALJ’s determination that Petitioner violated 42 C.F.R. § 483.12(b), per Tag F226, is supported by substantial evidence and not legally erroneous.

The ALJ concluded that CMS made a prima facie showing, which Petitioner failed to rebut, that Petitioner violated 42 C.F.R. § 483.12(b) (Tag F226).  ALJ Decision at 10-11, 23.  Section 483.12(b) requires that “[t]he facility must develop and implement written policies and procedures that . . . [p]rohibit and prevent . . . . neglect.”  The ALJ reasoned that, “[h]aving concluded that Resident 2 was neglected, it follows that Petitioner failed to ensure staff followed, i.e., implemented, Petitioner’s policy prohibiting neglect of residents.”  ALJ Decision at 24.

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1. The ALJ did not err in rejecting Petitioner’s arguments concerning implementation of its policies.

Petitioner argues that the Statement of Deficiencies does not reference “any specific policy or procedure that [Petitioner] supposedly did not implement,” the surveyors found Petitioner’s neglect prohibition policies adequate, and Petitioner appropriately implemented them through in-service training.  RR at 21-22.

The ALJ did not err in rejecting those arguments.  “There is no question,” the ALJ acknowledged, “that Petitioner had the required policy that prohibited neglect of residents, among other things.”  ALJ Decision at 25 (citing P. Ex. 12 and CMS Ex. 23).  However, “the mere existence of a policy on abuse is insufficient to show that a facility met the requirement to develop and implement the policy.”  N.C. State Veterans at 15.  As the ALJ understood, Tag F226’s allegations of noncompliance with 42 C.F.R. § 483.12(b) did not concern allegedly inadequate policy language or training, but instead concerned Petitioner’s failure to implement its policy through actual care of residents.  ALJ Decision at 9-10 (explaining “the surveyors allege that Petitioner failed to implement its written policies and procedures which prohibited neglect of a resident” and “the fact Resident 2 was neglected shows that Petitioner failed to implement its policies and procedures prohibiting neglect”) (emphasis added).

Where, as here, the record facts “demonstrate that [a resident’s] needs for prompt and accurate assessment and monitoring . . . were neglected by multiple staff members over a significant period of time,” this evidence “reasonably supports the conclusion that the facility was in noncompliance with” 42 C.F.R. § 483.12(b).  Life Care Ctr. of Gwinnett, DAB No. 2240, at 7 (2009).⁷  Such evidence shows noncompliance because the facility, even if it had an anti-neglect policy, “had not implemented its policy in a manner that would effectively prevent such neglect.”  Id.  Such evidence is abundant in this record.  During the 23 days in February 2017 that preceded Resident 2’s hospitalization, Petitioner’s staff failed to document the resident’s bowel function for more than half (35 of 69) of the daily shifts.  ALJ Decision at 13; CMS Ex. 13, at 13, 15.  The facility’s previous DON candidly described this documentation as “horrible.”  CMS Ex. 3, at 9, 27, 45; CMS Ex. 27, at 28.  The facility’s Administrator reportedly “felt the CNAs failed to alert the charge nurses” about Resident 2’s lack of bowel movements “and the nurses failed to monitor the ADL book documentation.”  CMS Ex. 3, at 14, 32, 50; see also CMS Ex. 27, at 35.  The Medical Director for the facility conceded it “had to be more diligent regarding the residents’ toileting.”  CMS Ex. 3, at 14-15, 33, 51.

In sum, a SNF is “required not only to develop written policies to protect residents . . . but also to implement such policies.”  Madison Cnty. Nursing Home, DAB No. 2895, at 12 (2018).  “[A] facility’s policy for implementing a regulatory requirement may reflect

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that facility’s own judgment about how best to achieve compliance and hence failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard.”  Bivins Mem’l Nursing Home, DAB No. 2771, at 9 (2017).  “An anti-neglect policy that exists only on paper provides no benefit to the residents whom the regulation is intended to protect.”  Life Care of Gwinnett at 6.

2. Petitioner’s allegation that “the F226 citation cannot stand as cited” is unpersuasive.

Petitioner argues that “the F226 citation cannot stand as cited, and because the ALJ acknowledged it was cited incorrectly, the citation should be dismissed,” elaborating:

On page 9 of his decision, the ALJ acknowledges that the F226 citation references an improper regulation/facts which were not cited.  However, the ALJ’s justification for supporting the F226 findings (calling it a mere “scrivener’s error”) in the face of the improper citation was tantamount to saying, “well, you knew what they meant.”  This type of finding constitutes an abuse of discretion and violates Petitioner’s right to due process/fair notice of the allegations against it.

RR at 22.

We find this argument unclear, but unpersuasive under any interpretation.  If Petitioner is complaining that it lacked due process and fair notice with respect to the regulation the ALJ applied, 42 C.F.R. § 483.12(b), that complaint is mistaken.  So is any claim of prejudicial mismatch between section 483.12(b) and the regulations that the Statement of Deficiencies cited (sections 483.12(b)(1)-(3) and 483.95(c)(1)-(3)).  The Statement of Deficiencies provided the full text of section 483.12(b), including subparagraphs (b)(1) through (b)(3), concerning Tag F226; therefore, Petitioner was fully on notice to defend against an alleged violation of section 483.12(b).  Petitioner showed its understanding that Tag F226 alleged a violation of section 483.12(b) by developing a Corrective Action plan responsive to that allegation.  CMS Ex. 4, at 20-21.  While the Statement of Deficiencies also cited section 483.95(c), the ALJ explained that the “surveyors do not specifically allege that Petitioner failed to ensure staff received the training required by” that section and it was “unnecessary” to consider it, given the substantial evidence that Petitioner violated section 483.12(b).  ALJ Decision at 9.

To the extent Petitioner is arguing that CMS committed a substantive citation error that the ALJ erroneously treated as a mere “scrivener’s error,” we find that argument both unpreserved and meritless.  The ALJ referred to a “scrivener’s error” that appeared late in the proceedings before the ALJ, when CMS’s principal post-hearing brief quoted the relevant language of 42 C.F.R. § 483.12(b) but mistakenly cited it to section 483.12(c).  CMS’s Post-Hr’g Br. at 12-13, 15.  Petitioner’s subsequent post-hearing reply brief, filed

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over a month later, did not raise any issue concerning the incorrect citation, so we cannot consider that issue.  See Guidelines, “Completion of the Review Process,” ¶ (a); Meadowmere Emergency Physicians, PLLC, DAB No. 2881, at 15 (2018) (“A party appearing before the Board is not permitted to raise on appeal issues that could have been raised before the ALJ but were not.”).  Yet even if we considered the argument on its merits, we would concur with the ALJ that CMS’s citation error “cause[d] no prejudice” to Petitioner.  ALJ Decision at 9.  The error appeared in CMS’s principal post-hearing brief.  See CMS Post-Hr’g Br. at 12.  At that point, the parties already had stipulated to the disputed issues and had presented their cases in a three-day hearing.  Moreover, CMS’s citation mistake was both self-evident and inconsequential, as the passage containing it quoted the correct regulation, section 483.12(b).  The Board does not countenance formalistic claims that a typographical mistake defeats evaluation of substantive evidence of noncompliance, particularly where the complaining party shows no prejudice from the mistake.  Lakeridge Villa at 11.  Thus, this claim of error, even if it were preserved, would lack any merit.

3. The ALJ’s determination that Petitioner violated 42 C.F.R. § 483.25, per Tag F309, is supported by substantial evidence and not legally erroneous.

The ALJ concluded that CMS made a prima facie showing, which Petitioner failed to rebut, that Petitioner violated 42 C.F.R. § 483.25 (Tag F309).  ALJ Decision at 10-11, 23.   Section 483.25 requires that, “[b]ased on the comprehensive assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices.”  The ALJ determined that Petitioner did not carry out the monitoring and interventions that Resident 2’s care plan required, and he consequently arrived at the hospital with constipation, which “may lead to more severe conditions of impaction and bowel obstruction and poses a risk for more than minimal harm.”  ALJ Decision at 25.  Therefore, the ALJ concluded, “Petitioner violated 42 C.F.R. § 483.25” and “Resident 2 was deprived of care and services [Petitioner] determined were necessary for him to reach his highest practicable state given his condition.”  Id. at 25, 29.

1. The ALJ did not err in rejecting Petitioner’s arguments concerning causation of Resident 2’s physical decline and death.

Petitioner argues that it did not cause Resident 2’s fatal physical decline.  Petitioner argues that neither any physician nor the Statement of Deficiencies claims Petitioner’s staff “actually caused Resident #2’s harm, up to and including his death.”  RR at 15.  Petitioner asserts that the ALJ, when considering the quality of care Resident 2 received, failed to consider his diagnoses as of February 23, 2017, including anorexia, “and the fact that inevitable decline was expected” and “hospice services had been mentioned” during his final two weeks at Petitioner’s facility.  Id. at 11, 23.  Yet despite that dire prognosis, Petitioner also claims that a “PA’s assessment less than 24 hours before Resident #2 left

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the facility” did not reveal “any physical sign or symptom of a bowel obstruction” and Resident 2 “deteriorated significantly after his admission to the hospital.”  Id. at 10, 12, 18-20.  Petitioner asserts that Resident 2’s death resulted from aspiration pneumonia, not bowel sepsis, and deems it “inconceivable for CMS to suggest that Resident #2’s demise was the result of anything [Petitioner’s] nursing staff did or failed to do.”  Id. at 17-19.

Petitioner’s arguments about causation of Resident 2’s fatal decline are immaterial, as the ALJ correctly perceived.  See ALJ Decision at 41 (“Whether or not the failure to monitor Resident 2’s bowel functions actually caused him to suffer either a fecal impaction or a bowel obstruction at the facility has no bearing on my analysis.”).  Determining a facility’s “substantial compliance” means determining whether there was “greater risk to resident health or safety than the potential for causing minimal harm,” 42 C.F.R. § 488.301 (emphasis added), and here there clearly was.

Abundant evidence shows that Petitioner deprived Resident 2 of “care and services his [inter-disciplinary team] determined were necessary for him to reach his highest practicable state given his condition,” put him at risk of more than minimal harm, and thus violated 42 C.F.R. § 483.25.  ALJ Decision at 28-29.  A hospital CT scan interpreted at 1:35 p.m. on February 24, 2017, less than four hours after Resident 2’s discharge from Petitioner’s facility, showed a severe amount of stool in his rectum and colon and raised concerns of fecal impaction.  CMS Ex. 15, at 21; Tr. at 176.  Surveyor C.A. testified that she found no record that Resident 2 ate anything between leaving Petitioner’s facility and having the CT scan.  Tr. at 174-75.  Thus, it is a reasonable inference that he accrued the stool in his lower digestive tract during an earlier period while under Petitioner’s care.  See Tr. at 174-77.  Records of the resident’s hospice admission on February 26, 2017 record his “Last BM” as “+ 3 weeks.”  CMS Ex. 15, at 32; see also id. at 61 (“No bowel movement documented at facility for over 3 weeks”).  The physician-certified Death Certificate stated Resident 2’s cause of death was “sepsis due to large bowel obstruction,” with an approximate interval of “weeks” from onset to death.  CMS Ex. 16 (emphasis omitted).  Resident 2 left Petitioner’s facility less than two weeks before his death.

Petitioner did not present persuasive rebuttal evidence of substantial compliance with 42 C.F.R. § 483.25.  According to Petitioner’s own medical evidence, constipation and decreased appetite (which Resident 2 undisputedly had while under Petitioner’s care) are symptoms of intestinal obstruction, impacted feces or stool can cause intestinal obstruction, and if “[u]ntreated, intestinal obstruction can cause serious, life-threatening complications.”  P. Ex. 6, at 1-2, 5, 13-14, 16-17.  Dr. Parker agreed that appetite loss could be a symptom of fecal impaction, and that if Petitioner identified Resident 2 as at risk for constipation then he also was at risk for fecal impaction and bowel obstruction.  Tr. at 489-90; see ALJ Decision at 20.  Yet the record contains no proof that Petitioner performed the monitoring or interventions concerning Resident 2’s bowel status that Petitioner’s staff had deemed necessary “to avoid harm due to impaction or bowel obstruction.”  ALJ Decision at 25.  Petitioner’s reliance on the PA’s February 23, 2017

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examination of Resident 2 is unavailing.  As the ALJ correctly observed, no evidence showed that the PA was even “informed that Resident 2’s last recorded bowel movement was on February 11, 2017.”  ALJ Decision at 15.  The Board has held that the quality-of-care requirements in section 483.25 obligate the SNF to “furnish the care and services set forth in a resident’s care plan,” to “monitor and document the resident’s condition,” and to follow the SNF’s own policies.  Good Shepherd at 12 (2018).  Petitioner did not prove that it met those obligations.

2. The ALJ did not err in rejecting Petitioner’s arguments concerning 42 CFR § 483.75(i).

Petitioner argues that by April 7, 2017 – that is, during the survey process – Petitioner “had changed its documentation policies based upon its [Quality Assurance] Committee’s review of the current procedures calling for nurse aides to document on the ADL flow sheets.”  RR at 24.  Petitioner asserts that, “[u]nder 42 C.F.R. § 483.75(o), good faith efforts by the committee to identify and correct perceived problems within the facility may not be used as the basis for a deficiency” but “that is exactly what happened here.”  Id.

The ALJ accurately stated that “[t]he correct citation to the new regulation in effect at the time of the survey is 42 C.F.R. § 483.75(i),” not section 483.75(o), and “[t]he citations of noncompliance in this case based on the example of Resident 2 are not contrary to” the regulation.  ALJ Decision at 29 & n.14.  Section 483.75(i) states, “Good faith attempts by the [facility’s quality assessment and assurance] committee to identify and correct quality deficiencies will not be used as a basis for sanctions.”  The ALJ rightly reasoned that section 483.75(i) does not apply because Petitioner was cited for neglect, not the allegedly remedied problem of “faulty documentation.”  ALJ Decision at 29.  Petitioner admitted that “the facility was not cited for failure to maintain proper clinical records.”  RR at 6 n.3.  Furthermore, the regulation’s purpose “is to encourage the kind of systemic actions that can improve quality of care, not to insulate facilities that fail to properly care for residents” once noncompliance has come to light.  Sunshine Haven at 29.

3. The ALJ did not rely upon improper speculation.

Petitioner criticizes the ALJ’s observation that “constipation or a bowel obstruction ‘might have been identified’ if someone had reviewed the resident’s flow sheets” as “pure speculation.”  RR at 6 n.3 (quoting ALJ Decision at 22).  Petitioner objects that the “ALJ seem[s] to equate problems with documentation consistency by the nurse aides on the ADL flow sheets (P. Ex. 2) with the care that was actually provided.”  Id. at 23.

We repeat in full what the ALJ said:  “Had the ADL Flow Records been reviewed, either the failure of staff to document or the possible constipation of Resident 2 might have been identified.”  ALJ Decision at 22.  The ALJ said nothing about identifying a bowel

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obstruction by reviewing flow sheets or that Petitioner’s noncompliance was the failure to recognize a bowel obstruction.  Instead, the ALJ pointed out that timely review of those records could have flagged sooner either that Resident 2 was constipated and not having bowel movements or (as Petitioner claims) that staff merely was not documenting them.  The ALJ did not speculate, but instead reasonably inferred that either way Petitioner was not following Resident 2’s care plan and was committing neglect by failing to do what the care plan required.

We again reject Petitioner’s suggestion that missing documentation entries cannot prove missing care.  The quality-of-care requirement at 42 C.F.R. § 483.25 requires both “monitoring and adequately documenting the resident’s condition” and “following established facility policies [and] providing care consistent with the resident assessment and care plan.”  Laurels at Forest Glenn, DAB No. 2182, at 6 (2008).  If a routinely maintained record of necessary care “fails to indicate positively that [an] item or service was provided during [a] shift, then the fact-finder may presume, absent credible evidence to the contrary, that the item or service was not provided.”  See Evergreene Nursing Care Ctr., DAB No. 2069, at 24-25 (2007).  The ALJ here made that presumption, saw no credible rebuttal evidence, and committed no error.

2. The ALJ’s determination that Petitioner was noncompliant with 42 C.F.R. § 483.25(d)(2), per Tag F323, is supported by substantial evidence and not legally erroneous.

The regulation relevant to Tag F323, 42 C.F.R. § 483.25(d)(2), requires that “[t]he facility must ensure that . . . [e]ach resident receives adequate supervision and assistance devices to prevent accidents.”  The ALJ recognized that the parties cited “no federal or state statute or regulation” specifying the use of two or more facility staff to perform a transfer by mechanical or hydraulic lifts.  ALJ Decision at 34.  Nevertheless, the ALJ determined that Petitioner failed to follow its own policy, which “states that two or three staff members are required to safely operate and accomplish a lift with a mechanical or hydraulic lift,” and Petitioner’s failure “caused Resident 1 to suffer a fractured clavicle.”  ALJ Decision at 34-35.  The ALJ thus concluded “that Petitioner did violate” section 483.25(d)(2) as alleged.  Id. at 33-34.

Petitioner claims it did not violate the regulation and the ALJ’s contrary decision “is not supported by substantial evidence” and “is, in some respects, arbitrary and an abuse of discretion” warranting reversal “as a matter of law.”  RR at 1.  Petitioner claims it adopted a policy requiring two-person Hoyer lift transfers only after Resident 1’s accident, so the ALJ Decision uses “backwards reasoning,” relies on an inadmissible “subsequent remedial measure,” and improperly imposes “strict liability.”  Id. at 29-31.

Substantial evidence supports the ALJ’s determination of noncompliance.  “The surveyors cited Petitioner for a violation of 42 C.F.R. § 483.25(d),” the ALJ summarized,

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because Resident 1 “was being transferred by a single CNA when the sling broke and the resident fell and was injured.”  ALJ Decision at 30.  The ALJ found it “more likely than not that CMS Ex. 22 was a policy of Petitioner,” and the policy stated that using a mechanical lift to transfer a resident “‘requires two or three staff members to safely operate and accomplish the transfer.’”  Id. at 31 (citing and quoting CMS Ex. 22, at 1).  The policy bore no publication or adoption date, but a fax transmittal header on each page was dated “04/06/2017” and included the name, “Pennsylvania Rehab.”  CMS Ex. 22.

The ALJ observed that, though Petitioner’s Administrator “denie[d] that she ever used this policy for training or other purposes, she d[id] not specifically deny it was Petitioner’s policy,” ALJ Decision at 34, and substantial evidence supports the finding that it was.  Surveyor C.A. testified that she received the policy from a “facility staff member” during the survey.  Tr. at 78.  The Administrator acknowledged, when testifying, that the document’s fax header “has [Petitioner’s] name on it.”  Tr. at 567.  The Administrator identified no other written policy on lifts that Petitioner followed, claiming instead that the facility trained from “the instructions that came with the lift.”  Tr. at 567.  Yet the Administrator could not link the lift instructions on which Petitioner relied to the relevant lift’s model and year of manufacture.  Tr. at 566.  A 2014 FDA Patient Lifts guide recognized that “[m]ost lifts require two or more caregivers to safely operate lift and handle patient,” which, as the ALJ noted, “is consistent with the policy stated in CMS Ex. 22.”  CMS Ex. 29, at 6; ALJ Decision at 31 n.15; see also Tr. at 224 (CMS reviewer D.J.M.’s testimony that CMS Ex. 22 is “consistent with” pertinent portion of FDA guide).

There is potentially conflicting evidence about when Petitioner first adopted its policy requiring two-person Hoyer lift transfers, but substantial evidence supports the ALJ’s finding that the policy already was in effect by March 27, 2017, the date of Resident 1’s accidental injury.  Petitioner’s Administrator “did not testify that the policy statement did not exist” on that date.  ALJ Decision at 31.  The Administrator seemed to assert instead that Petitioner first adopted the policy after the April 2017 survey (and thus, after Resident 1’s accident date).  Tr. at 568 (“After the survey, we did decide to go ahead and change it,” meaning the policy, “to use two people.  One is a standby and one to operate the lift.”).  Yet during the survey, four CNAs and two LVNs said the Hoyer lift required “minimum two person[s] to assist” and they were unaware of any incident in which staff had transferred a resident inappropriately “other than” the incident involving Resident 1.  CMS Ex. 27, at 12-13, 15.  Those admissions are evidence that Petitioner’s two-person transfer policy already was in effect when Resident 1’s accident occurred.  Also, on the day after the accident, March 28, 2017, Petitioner’s staff conducted an in-service training on “[h]ow to use a Hoyer lift,” which included an emphatic directive to “*ALWAYS HAVE 2 PEOPLE WHILE USING LIFT*.”  CMS Ex. 24, at 11-12.  Petitioner states that “[i]n-service training is how [Petitioner] implements its policies and procedures.”  RR at 21-22 (citing Tr. at 562); see also Tr. at 562 (Administrator’s testimony that in-services are a way for Petitioner to educate its staff on policies and procedures).  Petitioner has not

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explained why its in-service training mandated two-person Hoyer lift transfers on March 28, 2017 if (as the Administrator claimed) Petitioner first adopted that policy weeks later.

The ALJ’s determination of noncompliance with 42 C.F.R. § 483.25(d)(2) was not only factually supported but also free of legal error.  “[T]he Board has long held that a facility’s own policy may be sufficient evidence both of professional standards of quality and of what the facility has determined is needed to meet the quality of care requirements in section 483.25.”  Hanover Hill at 6; see also Laurels at 18 (“[A] facility’s failure to follow or implement its own resident care policy may constitute a deficiency under section 483.25.”).  “When a facility adopts a policy that calls on the nursing staff to take affirmative actions to safeguard resident health and safety, it is reasonable to infer (in the absence of evidence to the contrary) that the facility did so because such actions are necessary to attain or maintain resident well-being.”  Spring Meadows Health Care Ctr., DAB No. 1966, at 20 (2005).  Petitioner evidently adopted a policy that called on at least two nursing staff members to attend mechanical lift transfers to safeguard resident health and safety, but did not follow that policy when transferring Resident 1 on March 27, 2017.  The ALJ reasonably concluded that Petitioner had violated its own policy and thus was not substantially compliant with section 483.25(d)(2).

Many of Petitioner’s objections concerning Tag F323 are mere disagreements with the ALJ’s weighing of the evidence.  Petitioner lists documents that did not require two staff members for Hoyer transfers:  “The care plan does not require it; the nurses’ notes do not require it; the treatment sheets/physician orders do not require it; and the Hoyer package insert does not mandate or even suggest it.”  RR at 29.  However, as discussed above, the ALJ supportably found that CMS Exhibit 22 was Petitioner’s policy, it did require at least two staff members for safe transfer of a resident by mechanical lift, and this evidence outweighed any contrary evidence.  We agree with CMS that the undated “Sunrise Medical” package insert concerning Hoyer lifts lacked weight because no testimony confirmed that the insert was for the particular model/type and year of manufacture of the lift involved in Resident 1’s accident.  See P. Ex. 21; CMS Br. at 14; see also Tr. at 566 (Administrator’s testimony that she did not know the relevant lift’s purchase year or model number).  Petitioner relies in vain on testimony by Dr. Parker “that Resident 1 only required one person to safely transfer” via Hoyer lift.  RR at 28.  The ALJ found that “Dr. Parker did not address Petitioner’s policy in evidence (CMS Ex. 22) that required two or more staff to conduct transfers using a mechanical or hydraulic lift,” ALJ Decision at 33, and Petitioner has shown no compelling reason to reject the ALJ’s weight and credibility assessments.  See Blossom S. Nursing at 19; Lutheran Home at 14.  Again, we see no error, much less any abuse of discretion, by the ALJ.  See Lifehouse of Riverside at 9 (deferring to ALJ’s assessment of evidence when SNF did “not explain specifically how and why the ALJ’s weighing of evidence . . . amounts to an abuse of discretion”).

Petitioner’s attempt to dispute the cause of Resident 1’s accident is unavailing also.  See, e.g., RR at 29 (asserting “Resident #1’s fall occurred because the straps on the Hoyer

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sling broke, not because there was improper staff assistance during the transfer”).  Establishing the cause, or even the very occurrence, of an accident during a facility’s transfer of a resident by lift is not necessary to prove a violation of 42 C.F.R. § 483.25(d).  See Golden Living Ctr. – Riverchase, DAB No. 2314, at 12-13 (2010), aff’d per curiam, 429 F. App’x 895 (11th Cir. 2011).  However, once such an accident has occurred, the circumstances can support an inference of inadequate supervision, and that is the case here.  See id. at 9, 13.   Even setting aside the facility’s written policy, the CNA admitted during the survey that “it was normally difficult to find other staff to help assist him” and “another person may have been able to help break the resident’s fall.”  CMS Ex. 3, at 58.  It is not unreasonable to infer from the evidence that the facility’s policy and general practice required use of two staff members for a Hoyer lift, in part because a second staff member can reduce a resident’s risk of injury from any fall or other mishap that might occur during the transfer.

When, as here, a staff member recognizes a resident’s “risk for serious injury from falls but did not provide the care and services required” under facility policy to “avoid the harm from that risk,” that conduct “is plainly ‘neglect’ within the meaning of the applicable regulations.”  Heritage Plaza at 10.  Petitioner’s own Plan of Correction for Tag F323 listed the CNA’s termination as a “Corrective Action,” which further supports an inference of fault on the CNA’s part.  CMS Ex. 4, at 56; see also CMS Ex. 3, at 58 (documenting DON’s statement that the CNA “was terminated due to the incident”).

We also reject Petitioner’s complaints that the ALJ and surveyor improperly relied on “backwards reasoning” rather than “any objective data that existed prior to or at the time of Resident #1’s fall.”  RR at 29.  As CMS states, the resident already had suffered a broken clavicle by the time of the survey so “the surveyor had no option but to conduct a record review with a retrospective analysis.”  CMS Br. at 22.  Furthermore, as previously explained, Petitioner’s objections to “backwards” reasoning rely on Texas and Eighth Circuit precedents that do not control here.

Finally, the tort concepts of subsequent remedial measures and strict liability are inapplicable.  See Day Op of N. Nassau, Inc., DAB No. 2818, at 8 (2017) (rejecting petitioner’s suggestion that ALJ should have applied common law tort principles and explaining that “federal statutes and regulations” governed instead); Life Care of Gwinnett at 13 n.9 (“We disagree that the Board has employed tort or contract law in holding facilities responsible for ensuring that they achieve substantial compliance with program participation requirements.”).  The ALJ correctly stated that the FRE can provide “guidance” on evidentiary issues.  Tr. at 14.  “The ALJ and the Board are not bound to follow the FRE,” however, “and the ‘subsequent remedial measures’ rule in FRE Rule 407 has no place in these administrative proceedings, which are governed by specific federal statutes and regulations, not tort law.”  Rockcastle Health & Rehab. Ctr., DAB No. 2891, at 15 (2018).  Similarly, “the entire concept of strict liability is inapplicable to regulatory enforcement.”  Bridge at Rockwood, DAB No. 2954, at 23

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(2019).  “The issue under the regulations is not whether the facility is ‘liable’ to any resident (or even to the federal government),” but instead “whether the facility is substantially complying with the federal requirements for certification.”  Lakeridge Villa at 12 n.8.  With respect to Resident 1, Petitioner demonstrably was not, and the ALJ did not err in so concluding.

3. CMS’s immediate jeopardy assessment for Tags F223, F226, and F309 is not clearly erroneous.

Petitioner claims the immediate jeopardy designation for Tags F223, F226, and F309 “was clearly erroneous” and the ALJ’s contrary decision “is not supported by substantial evidence” and warrants reversal “as a matter of law.”  RR at 1.  Petitioner asserts that even if a deficiency exists, “these citations involve only one resident and one incident,” which “is not enough to constitute a ‘pattern’ finding” of immediate jeopardy.  Id. at 25.  Petitioner contends the “survey report does not contain adequate evidence of” the extent of actual or potential harm, immediacy, and culpability to establish immediate jeopardy under SOM guidelines.  Id.  Petitioner claims “[t]here can be no legitimate argument for ‘immediacy of harm’ when the surveyors themselves left the facility for three weeks without calling an IJ during the course of their investigation.”  Id. at 26.  Petitioner does not argue for a shortened period of immediate jeopardy, but instead claims the ALJ’s upholding of CMS’s immediate jeopardy assessment in its entirety is “not supported by substantial evidence” and “constitutes a clear abuse of discretion, which the Board should reverse.”  Id. at 26-27.

The ALJ concluded that Petitioner “failed to meet its burden to show that the determination of immediate jeopardy for the noncompliance cited under Tags F223, F226, and F309 was clearly erroneous.”  ALJ Decision at 41.  The ALJ correctly cited the applicable definition of immediate jeopardy as “‘a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.’”  Id. at 4 (quoting 42 C.F.R. § 488.301).  The ALJ upheld the immediate jeopardy assessment because of Petitioner’s “multiple” failures constituting a “pattern” of noncompliance, and Petitioner’s failure to show that, “under any reasonable definition of serious, fecal impaction and bowel obstruction are not serious medical conditions that pose a risk for serious harm or death.”  Id. at 41-42; see Yakima Valley Sch., DAB No. 2422, at 8 (2011) (“Under the clearly erroneous standard, the harm or threatened harm caused by the noncompliance is presumed to be serious” and the facility bears the burden of rebutting that presumption by showing the harm or threatened harm did not meet any reasonable definition of “serious.”); see also Daughters of Miriam Ctr., DAB No. 2067, at 9 (2007).  The ALJ upheld the duration of immediate jeopardy because from February 16 through 24 of 2017, “Petitioner’s staff did not record that Resident 2 had a bowel movement” or intervene as Resident 2’s care plan required.  ALJ Decision at 41.   

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“The ‘clearly erroneous’ standard means that CMS’s immediate jeopardy determination is presumed to be correct, and the burden of proving the determination clearly erroneous is a heavy one,” which Petitioner has not met in this case.  See Glenoaks at 16.  Petitioner’s objection that no “pattern” existed is unpersuasive because the validity of an immediate jeopardy finding hinges on “the risk to all residents created by [the facility’s] multiple regulatory failures.”  See Perry Cnty. Nursing Ctr., DAB No. 2555, at 19 (2014), aff’d, 603 F. App’x 265 (5th Cir. 2015).  Surveyor C.A. testified that whether a “pattern” exists is a function of the “number of staff, number of residents or time” involved in the noncompliance.  Tr. at 183.  As the ALJ recognized, Petitioner’s “multiple instances of failure by multiple staff members on multiple shifts over multiple days from February 12 to 24, 2017” were “not an isolated incident but constituted a pattern” that placed other residents “at risk for serious injury, harm, or death.”  ALJ Decision at 42.  Specifically, Petitioner’s failures put at risk the “32 residents who were incontinent of bowel” and who constituted over a third of the facility’s total census of 81 at the time of the survey.  CMS Ex. 3, at 1-2.  “[I]t is reasonable to assume that other residents were in danger” when, as here, facility staff members who neglected one resident also “cared for other residents and demonstrated that they did not understand or were willing to ignore” facility policy and resident care plans.  See Life Care of Gwinnett at 21.  Moreover, “if these [staff members] did not understand these aspects of care, it is reasonable to be concerned that other staff also did not understand, putting additional residents at risk.”  Id.

Petitioner’s argument that the Statement of Deficiencies did not show immediate jeopardy per criteria in Appendix Q to CMS’s SOM is misguided.  The Statement of Deficiencies is just one piece of relevant evidence.  Pac. Regency at 9.  Furthermore, the SOM is non-controlling guidance.  Copperas Cove at 41 (2021) (“[C]ontrary to Petitioner’s implication, Appendix Q’s guidance does not establish enforceable or binding legal standards.”); Agape Rehab. of Rock Hill, DAB No. 2411, at 19 (2011) (“As guidance issued by CMS on the issue of immediate jeopardy, the SOM is instructive, but unlike the regulations, it is not controlling authority.”).  “Appendix Q’s purpose is to guide surveyors in applying a regulatory standard, not to define that standard.”  Pinecrest at 19; see Kindred Transitional Care & Rehab – Greenfield, DAB No. 2792, at 16 (2017) (“[T]he SOM is not binding authority; it provides interpretive guidance for surveyors.”).  “The immediate jeopardy standard is defined by regulation in 42 C.F.R. § 488.301, and the regulatory definition, not the SOM instructions, binds the Board.”  Pinecrest at 19.

Moreover, in suggesting that CMS “failed to prove the elements of immediate jeopardy specified in Appendix Q, Petitioner disregards its burden under the clearly erroneous standard,” under which “it was Petitioner’s burden to demonstrate that CMS’s immediate-jeopardy findings were clearly erroneous.”  See Copperas Cove at 41 (emphasis added).  Petitioner does not meet that burden.  Petitioner claims the SOM’s “immediacy component” for finding immediate jeopardy was unmet because Resident 2 already was deceased, and the Statement of Deficiencies neither cited the deficiency “as past noncompliance” nor referenced “any other specific resident affected.”  See RR at 26

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(emphasis omitted).  However, Petitioner was not dead during the period – from February 16 to 24 of 2017 – immediately before and during his transfer to the hospital and for which CMS imposed the heightened penalty for immediate-jeopardy level noncompliance.  “Past noncompliance” is “a term of art” that “means a period of noncompliance which not only began but also was corrected by the facility itself before the survey.”  Donelson Place Care & Rehab. Ctr., DAB No. 3046, at 23 (2021) (emphasis added).  “Uncorrected noncompliance,” however, “is not past.”  Id.  The Statement of Deficiencies explained that Petitioner’s noncompliance that had affected Resident 2 remained uncorrected.  CMS Ex. 3, at 2.  Petitioner’s failure to monitor Resident 2’s bowel function per his care plan still “could affect the facility’s 32 residents who were incontinent of bowel and placed them at risk for not being assessed properly which could lead to a decline in their health status, the need for hospitalization, and/or death.”  Id.  Petitioner’s uncorrected, continuing noncompliance, which placed 32 particular incontinent residents at ongoing risk, established the immediacy required to support the immediate jeopardy finding.

Petitioner’s argument concerning the surveyors’ departure from the facility during the survey is equally mistaken.  The duration of immediate jeopardy in this case occurred before the complaint investigation and survey began.  Finding immediate jeopardy does not require finding an immediate crisis at the time of the survey.  Hermina Traeye Mem. Nursing Home, DAB No. 1810, at 10 (2002), aff’d per curiam sub nom. Sea Island Comprehensive Healthcare Cor. v. Thompson, 79 F. App’x 563 (4th Cir. 2003).  Also, no legal authority requires surveyors to stay at a facility until immediate jeopardy, if detected, is abated.  See Consulate at 34.  An immediate jeopardy finding “may be based on the actual occurrence or the likelihood of serious harm,” and “[h]ere, there was both.”  See Avalon Place at 34 (underlining replaced with italics).

Petitioner has shown no error or abuse of discretion in the ALJ’s determination that there was no clear error in CMS’s determination of the existence and duration of immediate jeopardy.

4. The ALJ did not err in upholding the reasonableness of the per-day CMP amounts.

Petitioner claims the CMP “is not reasonable.”  RR at 1.  Petitioner does not contest the assessed duration of its noncompliance or argue with particularity for a lower daily CMP amount.  Petitioner instead asserts generally “that no CMP should be imposed” at all, or alternatively “it should not approach anywhere near $250,000” in the aggregate, a sum that was “anything but justified” and “an absurd amount in light of the facts.”  RR at 2, 31-32.  Petitioner claims the ALJ’s upholding of the CMP amounts that CMS imposed “is not supported by substantial evidence and, therefore, should be reversed.”  Id. at 32.

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We disagree.  An ALJ may not set the CMP at zero, reduce it to zero, or review CMS’s exercise of discretion to impose the CMP, and in assessing the reasonableness of the CMP amount the ALJ may consider only the factors that 42 C.F.R. § 488.438(f) specifies.  42 C.F.R. § 488.438(e).  The ALJ rightly recognized these limitations.  ALJ Decision at 43.  The ALJ also correctly understood that when reviewing a per day CMP’s reasonableness we look at the amount imposed per day, not the total.  ALJ Decision at 44; see Vibra Hosp. of Charleston – TCU, DAB No. 3094, at 30-31 (2023); Crawford Healthcare at 21.  The ALJ accurately summarized and applied the regulatory standards for assessing a CMP.  ALJ Decision at 43 (summarizing 42 C.F.R. §§ 488.404(b), 488.438(e)-(f)).  The factors for determining the amount of a CMP are:

(1) The facility’s history of noncompliance, including repeated deficiencies.
(2) The facility’s financial condition.
(3) The factors specified in § 488.404 [concerning “the seriousness
of the deficiencies,” see § 488.404(a)].
(4) The facility’s degree of culpability.  Culpability for purposes of this paragraph includes, but is not limited to, neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating circumstance in reducing the amount of the penalty.

42 C.F.R. § 488.438(f).

The ALJ’s assessment of the regulatory factors is factually supported and free of legal error.  Concerning section 488.438(f)(1), the ALJ cited to evidence that “Petitioner had a history of noncompliance in 2016 under Tag F226 at the ‘E’ scope and severity level.”  ALJ Decision at 44 (citing CMS Ex. 25, at 4.)  Regarding section 488.438(f)(2), the ALJ found that “Petitioner has presented no evidence regarding its financial ability to pay the CMP.”  Id.  As to the seriousness considerations in sections 488.483(f)(3) and 488.404, the ALJ assessed Petitioner’s noncompliance as “very serious.”  Id.  Concerning section 488.483(f)(4), the ALJ held Petitioner “culpable for its noncompliance, which involved neglect of Resident 2 due to failure to follow the resident’s care plan.”  Id.  The ALJ concluded the $14,659 per day CMP for the nine days of immediate jeopardy was “above the middle of the authorized range,” the CMP of $1,460 per day for the remaining noncompliance period was “at the low end” of the range, and both were reasonable under the regulatory factors.  Id. at 45.

Petitioner’s only argument specific to any regulatory factor is that Petitioner “is not a ‘problem’ nursing facility,” RR at 32, which we construe as relating to the “facility’s history of noncompliance” per 42 C.F.R. § 488.438(f)(1), and we reject this argument.  The ALJ supportably found that “Petitioner had a history of noncompliance in 2016 under Tag F226 at the ‘E’ scope and severity level.”  ALJ Decision at 44 (citing CMS Ex. 25, at 4).  This case involves a repeat deficiency under that same tag, the very next year, at the increased seriousness level of “K.”  The ALJ reasonably treated this history of

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noncompliance as a factor supporting a CMP above the minimum.  Moreover, the record indicates that in 2014 Petitioner had seven separate citations at seriousness level “E,” including another citation under Tag F226, and in 2013 had a prior citation for Tag F323 (also cited in this case) at level “E.”  CMS Ex. 8, at 3.⁸  If the ALJ’s assessment needed further support – which it does not – these facts would supply it.

Petitioner does not allege error in the ALJ’s assessment of any other factor, and no such error is apparent.  Regarding 42 C.F.R. § 488.438(f)(2), Petitioner bore the burden “to present evidence that the CMP would render it insolvent or adversely affect its ability to provide its residents with quality care,” and Petitioner presented no such evidence.  See W. Care Mgmt. at 91.  Regarding section 488.438(f)(3) and (f)(4), we agree with the ALJ that Petitioner’s noncompliance was serious (consisting of a “G” level citation reflecting actual harm to Resident 1 and three “K” level citations reflecting a pattern of immediate jeopardy to Resident 2 and others) and that Petitioner is culpable.  These circumstances further support CMPs above the lower bounds of the applicable ranges.

Conclusion

We affirm the ALJ Decision upholding CMS’s determinations that Petitioner was not in substantial compliance with participation requirements from February 16 through May 15, 2017, due to violations of 42 C.F.R. §§ 483.12 (Tag F223), 483.12(b) (Tag F226), 483.25 (Tag F309), and 483.25(d)(2) (Tag F323).  We affirm the ALJ’s determination that CMS’s assessment of immediate jeopardy for Tags F223, F226, and F309 was not clearly erroneous.  We affirm that CMS’s imposition of a CMP of $14,659 per day for the duration of the immediate jeopardy from February 16 through 24, 2017, and a CMP of $1,460 per day for noncompliance below immediate jeopardy from February 25 through May 15, 2017, was not unreasonable.

Endnotes

¹  We apply, as the ALJ did, the regulations in effect in April 2017, when the relevant survey occurred.  ALJ Decision at 1-2 n.1; see Good Shepherd Home for the Aged, Inc., DAB No. 2858, at 1 n.1 (2018).  The long-term care facility regulations cover both SNFs and Medicaid nursing facilities.  42 C.F.R. § 488.330(b); Putnam Ctr., DAB No. 2850, at 1 n.1 (2018) (citing 42 C.F.R. §§ 483.1, 483.5), aff’d, 770 F. App’x 630 (4th Cir. 2019).

²  This section draws from the record to provide context but does not replace or modify the ALJ’s findings.

³  Intestinal obstruction or bowel obstruction “is a partial or complete blockage of the bowel.”  P. Ex. 6, at 4; see also id. at 13 (“When something blocks the bowel, it is a bowel obstruction”).  “Impacted feces” or “[i]mpacted stool” is one possible cause of intestinal obstruction.  Id. at 1-2, 4-5, 17.

⁴  The ALJ noted that the April 2017 survey took place after extensive regulatory amendments (effective November 28, 2016), but before CMS issued an SOM update (effective November 22, 2017) addressing those amendments with revised F-Tag numbers, so the surveyors used non-updated F-Tag numbers.  ALJ Decision at 7-8 n.5.  The ALJ stated “there is no substantive impact in deciding this case,” id., and neither party disagrees.

⁵  CMS filed 30 exhibits, but withdrew its original Exhibit 28, a witness declaration, as “incorrectly filed.”  CMS’ List of Proposed Exs. & Witnesses at 1-2; Tr. at 23.  The ALJ excluded CMS replacement Exhibit 28, identified as a “Hoyer HPL700 Manual.”  ALJ Decision at 3; CMS’ Second Suppl. List of Proposed Exs. & Witnesses at 2; CMS’s List of Admitted Exhibits; Tr. at 35-36.  Petitioner listed 26 proposed exhibits but filed and requested admission of only 25.  P.’s Pre-Hr’g Exchange at 1-2; P.’s List of Admitted Exs.; Tr. at 42.

⁶  Cf. Ross Healthcare Ctr., DAB No. 1896, at 2 n.2 (2003) (modifying ALJ decision to refer to 42 C.F.R. § 483.13(c) instead of its subparagraph (c)(1)(i) “[s]ince the allegation of noncompliance involves only the language in the introductory paragraph” of the regulation).

⁷  During the period relevant to Life Care of Gwinnett, the pertinent requirements were in section 483.13(c).

⁸  The report detailing Petitioner’s compliance history appears in two different exhibits.  See CMS Ex. 8, at 3 (first page); CMS Ex. 25, at 1-3 (remaining pages).