Golden Living Center – Mountain View, DAB No. 3190 (2025)

FINAL DECISION ON REMAND

This case is before the Board on remand from the United States Court of Appeals for the Sixth Circuit, to determine whether Petitioner, Golden Living Center – Mountain View (Mountain View), a Tennessee skilled nursing facility (SNF) participating in the Medicare program, was not in substantial compliance with two Medicare participation requirements – one relating to accident prevention and the other to facility administration – from January 13, 2014 through April 28, 2014, and, if so, whether a civil money penalty (CMP) that the Centers for Medicare & Medicaid Services (CMS) imposed on Petitioner for that period of noncompliance is a reasonable remedy. See Golden Living Ctr. – Mountain View v. Sec. of Health & Hum. Servs., 832 F. App’x 967 ir. 2020).

For the reasons explained below, we conclude, based on our de novo review of the record and the totality of the evidence, that Mountain View was not in substantial compliance with the accident prevention and facility administration requirements at issue; that CMS’s finding that the noncompliance had placed residents in immediate jeopardy is not clearly erroneous; and that a CMP of $3,600 per day for the period of immediate jeopardy-level noncompliance is reasonable.

Legal Background

To participate in the Medicare program, a SNF must be in “substantial compliance” with the participation requirements in 42 C.F.R. Part 483, subpart B.¹ Social Security Act (Act) § 1819(h); 42 C.F.R. §§ 483.1, 488.400. State survey agencies, under agreements with CMS, survey SNFs to determine whether they are in substantial compliance. Act § 1819(g); 42 C.F.R. §§ 488.10-.12, 488.300 et seq. A SNF is not in substantial compliance when it has a “deficiency” – that is, a failure to meet a participation requirement – that creates the potential for more than minimal harm to one or more

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residents. See 42 C.F.R. § 488.301 (defining deficiency, substantial compliance). The term “noncompliance,” as used in the applicable regulations, is synonymous with lack of substantial compliance. Id. (defining noncompliance).

Surveyors report survey findings in a Statement of Deficiencies (Form CMS-2567), identifying the severity and the scope of each deficiency. 42 C.F.R. §§ 488.325(f)(1), 488.331(a). The Statement of Deficiencies identifies each deficiency with a “Tag” number that corresponds to the relevant regulatory requirement and CMS guidance on that requirement. See generally State Operations Manual (SOM), CMS Pub. 100‑07, Ch. 7, Survey and Enforcement Process for Skilled Nursing Facilities and Nursing Facilities.² The participation requirements at issue following the appeals court remand require that a facility “ensure that . . . [t]he resident environment remains as free of accident hazards as is possible” and that “[e]ach resident receives adequate supervision and assistance devices to prevent accidents” (42 C.F.R. § 483.25(h)(1), (2), Tag F323), and be “administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident” (42 C.F.R. § 483.75, Tag F490).

The enforcement remedies that CMS may impose against a noncompliant facility include CMPs (assessed per day or per instance), and a denial of payment for new admissions (DPNA). Act § 1819(h)(2); 42 C.F.R. §§ 488.400, 488.402(b), (c), 488.406, 488.408(d)(1)(iii)-(iv), (e)(1)(iii)-(iv), 488.430(a). In setting the amount of the CMP, CMS must consider various factors, including the “seriousness” of the SNF’s noncompliance. 42 C.F.R. §§ 488.404(b)-(c), 488.438(f). Seriousness is a function of the scope of noncompliance (whether a deficiency is “isolated,” constitutes a “pattern,” or is “widespread”) and severity (whether a deficiency has created a “potential for” only “minimal harm” or a potential for “more than minimal harm,” resulted in “[a]ctual harm,” or placed residents in “immediate jeopardy”). Id. § 488.404(b). “Immediate jeopardy” means “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. § 488.301.

When CMS imposed the CMPs in this case, it had authority to impose a CMP in the range of $3,050 to $10,000 per day for any immediate jeopardy-level deficiencies. Id. § 488.438(a)(1)(i). A per-day CMP may accrue “as early as the date that the facility was first out of compliance” and continues until the SNF achieves substantial compliance or its provider agreement terminates. 42 C.F.R. §§ 488.440(a)(1), 488.454(a).

A SNF may challenge a determination of noncompliance that has resulted in the imposition of an enforcement remedy by requesting an ALJ hearing and appealing any

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unfavorable decision by the ALJ to the Board. Id. §§ 488.408(g)(1), 498.3(b)(13), 498.5(b)-(c). A SNF may also contest the reasonableness of the amount of any CMP imposed. Lutheran Home at Trinity Oaks, DAB No. 2111, at 21 (2007). A SNF may not, however, contest CMS’s finding about the “level of noncompliance” (e.g., a finding of immediate jeopardy) except in limited circumstances, such as when a successful challenge would affect the range of CMP amounts that CMS may impose. 42 C.F.R. § 498.3(b)(14). If contestable, CMS’s determination as to the level of noncompliance, including an immediate jeopardy determination, “must be upheld unless it is clearly erroneous.” Id. § 498.60(c)(2).

A SNF may seek judicial review of a Board decision. Id. § 498.90. When, following judicial review, the Board receives a case remanded by a court, the Board may either remand the case to an ALJ or, as here, issue its own decision. Id. § 498.88(a).

Case Background

At all times relevant to this appeal, Mountain View had a state-licensed Alzheimer’s Care Unit (ACU), a locked unit of two wings that housed approximately 30 residents diagnosed with Alzheimer’s disease or other cognitive disorders who were ambulatory to some degree, at least with staff assistance or assistance devices like wheelchairs and walkers, and whom Mountain View had assessed as being at high risk for falls associated with their activities of daily living. To meet the facility’s criteria for admission to the ACU, residents must be ambulatory (including with a walker or wheelchair), not require skilled nursing care, and be continent (but may participate in bowel or bladder programs). See Petitioner’s Proposed Finding of Fact (P. PFF) No. 18 (“admission criteria for the ACU require that its residents must be mobile, and must be able to benefit from its programs”).

Two surveyors from the Tennessee Department of Health surveyed Petitioner’s facility over two weeks ending April 11, 2014, and reported their findings in a 112-page Statement of Deficiencies (form CMS-2567) issued April 24, 2014. CMS Ex. 1 (SOD); Hearing Transcript Volume 1 (V1) at 71-75; Volume 4 (V4) at 37, 43-44.³ The survey agency found Mountain View out of substantial compliance with multiple regulatory requirements at the immediate jeopardy and non-immediate jeopardy levels, identifying each deficiency with an “F tag” number. CMS Ex. 1. The survey agency cited Petitioner for immediate jeopardy-level noncompliance under several provisions of 42 C.F.R. Part 483 subpart B, in addition to the accident-prevention and administration regulations at sections 483.25(h) (Tag F323) and 483.75 (F490) cited above: sections 483.20(d)(3) and 483.10(k)(2) (F280, requiring periodic review of and revision of resident care plans); 483.75(i) (F501, requiring appointment of a physician medical director to implement resident care policies and coordinate medical care in the facility); 483.75(o) (F520,

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requiring a quality assessment and assurance (QA) committee that develops and implements appropriate plans of action to correct identified quality deficiencies and meets at least quarterly to identify issues); and 483.30(a) (F353, requiring “sufficient nursing staff”). CMS Ex. 1. The survey agency found that residents’ immediate jeopardy existed as of January 13, 2014, and was ongoing. Id. at 2.

Revisit surveys of Petitioner conducted by Tennessee Department of Health in May and June 2014 determined that the Petitioner had abated the immediate jeopardy as of April 29, 2014, and had returned to substantial compliance with all requirements as of June 11, 2014. Joint Stipulations of Undisputed Facts Nos. 8-10.

The survey agency’s immediate jeopardy-level noncompliance findings relate to five ACU residents – Residents 28, 45, 94, 111, and 112 – who fell over 40 times during the period December 2013 through early April 2014, in what Mountain View describes as a “spike in falls relating to the five subject residents” being at “the very end of their lives,” and that “returned to a previous baseline when the five subject residents died or left the ACU.” Petitioner’s Opening Brief on Remand (P. Br.) at 13; V1 at 65-67; see also V1 at 65 (P. Counsel attributing spike to the facility “being sensitive to the instructions” of the residents’ family members to “let them walk and let them be free, and not confine them to chairs.”).⁴ Many of the falls were not witnessed by staff and resulted in injuries, some requiring emergency care. 832 F. App’x at 971, 979.

Based on the survey agency’s noncompliance and level-of-noncompliance findings, CMS imposed the following remedies: CMPs of $5,800 per day for the 106 days of immediate jeopardy-level noncompliance, January 13, 2014 through April 28, 2014 ($614,800), and $150 per day for the subsequent 43 days of lower-level noncompliance, April 29 through June 10, 2014 ($6,450) – for total CMPs of $621,250; and a denial of payment for new admissions (DPNA) from April 25, 2014 through June 10, 2014. Joint Stipulations of Undisputed Facts Nos. 6-10. Mountain View requested an ALJ hearing to contest only the immediate jeopardy-level deficiency citations.⁵ Id. No. 11; P. Request for H’g at 2; 832 F. App’x at 971 (“deficiencies at lower severity levels . . . were not challenged by Mountain View”).

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The ALJ upheld the deficiency findings at the immediate jeopardy level and the CMPs on the ground that Mountain View did not have sufficient staff and did not consider increasing ACU staffing, and the Board affirmed the ALJ Decision.

The ALJ Decision describes the ACU and its admission criteria, the condition and medical history of each of the five residents, each of the residents’ falls, and the interventions in each resident’s care plan. The decision summarizes and weighs the testimony of the seven witnesses who appeared during the five-day hearing, and then discusses the regulations’ requirements for the assessment of residents, the development and updating of resident care plans based on those assessments, and the requirement to provide supervision sufficient to prevent accidents. The descriptions of the ACU and of the five residents and their falls are largely undisputed. See 832 F. App’x at 970 (“The factual background of this case is nearly undisputed.”); P. Br. at 10 (“Petitioner does agree that nearly all of the material evidence on the remaining issues [following remand] is undisputed.”), 13 (“The ALJ Decision described the evidence relating to the Center’s ACU, the five subject residents, and their falls, in considerable detail at pages 11-26, and Petitioner has no significant dispute with that summary. Likewise, the ALJ aptly summarized the Center’s data regarding falls at pages 26-27.”); ALJ Decision at 8 (“There are no disputed facts related to the falls experienced by [the five residents] as those facts are documented in Petitioners clinic records.”); DAB No. 2953, at 4 (“There is no dispute about the material facts establishing and surrounding each fall, facts documented in medical and other records provided by [Mountain View] and not disputed in the testimony at hearing.”).

The ALJ, however, did not analyze the circumstances of each fall to determine whether the facility’s care of the five residents was substantially compliant with the cited regulations, or whether the facts of individual falls showed noncompliance. Instead, the ALJ found Mountain View noncompliant with all the regulations CMS cited (at the immediate jeopardy level) because the facility had not met the state staffing standards for ACUs on seven of fourteen days in March 2014 and facility management had not considered adjusting staffing in response to the spike in falls, as it had previously, and because of evidence that there was not always sufficient staff to adequately care for the residents. See, e.g., ALJ Decision at 50 (finding “no evidence of any effort to adjust staffing on the ACU to address falls in January, February, or March 2014,” as the facility had during 2013), 52 (“the QA and management teams clearly failed in their regulatory duties to consider whether or not increased staff to provide direct care might reduce the number of falls in the ACU”). The ALJ thus rejected Mountain View’s argument that it complied with its regulatory obligations by having “delivered all reasonable care and services” and that the five residents’ falls were therefore “unavoidable.” Id. at 45-52. The ALJ also noted that Mountain View “has not disputed that a fall by a nursing home resident poses a risk for more than minimal harm,” meaning that the noncompliance provided “a basis for the imposition of enforcement remedies.” Id. at 52.

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The ALJ upheld, as reasonable, CMPs totaling $621,250 ($5,800 per day for 106 days of immediate jeopardy-level noncompliance from January 13 through April 28, 2014, and $150 per day for 43 subsequent days of lower-level noncompliance through June 10, 2014 (although the non-immediate jeopardy-level noncompliance was not appealed)), and upheld a DPNA from April 25 through June 10, 2014. ALJ Decision at 52-61. The Board affirmed the ALJ Decision. DAB No. 2953.⁶

The appeals court reversed DAB No. 2953 on the grounds that there is no requirement in the regulations to consider increasing staffing.

The United States Court of Appeals for the Sixth Circuit (appeals court) reversed the Board’s decision (DAB No. 2953) and remanded the case to the Board for proceedings consistent with that opinion. Golden Living Ctr. – Mountain View v. Sec’y of Health & Hum. Servs., 832 F. App’x 967 (6th Cir. 2020). The appeals court reviewed the conclusion, reached initially by the ALJ and affirmed by the Board, that from January 13 through April 28, 2014, Mountain View was not in substantial compliance at the immediate jeopardy level with multiple Medicare participation requirements. Specifically, the appeals court rejected the Board’s conclusions that Mountain View was not in substantial compliance with 42 C.F.R. §§ 483.10(d)(3) and 483.20(k)(2); with 42 C.F.R. § 483.30(a); and with 42 C.F.R. § 483.75(i). See 832 F. App’x at 976-77, 980-82. As to 42 C.F.R. § 483.75(o)(1) and 483.75(o)(2), the appeals court found that Mountain View had a functioning quality assurance committee and that it lacked notice under the regulation that the committee was required to consider staffing increases to address the deficiencies. Id. at 982-83.

With respect to 42 C.F.R. § 483.25(h), the appeals court reiterated its longstanding support of the Board’s interpretation of the regulation’s provision that residents must receive “adequate supervision” to prevent accidents as requiring facilities to take “‘all reasonable precautions against residents’ accidents.’” Id. at 978. The appeals court noted that “CMS pointed to the resident’s unsupervised falls as evidence that Mountain View was failing to take all reasonable precautions against residents’ accidents,” and opined that, “[f]actually, this seems evident.” Id. The appeals court, however, noted that our prior decision “did not point to the totality of the circumstances, including the continuing falls, and conclude that Mountain View had not taken all reasonable steps,” but rather “specifically concluded that in order to comply with the regulation Mountain View, and in turn all skilled nursing facilities housing ACUs where patients were falling, was required to consider additional staffing.” Id.; see also id. at 969 (“While it seems likely that CMS may have gathered sufficient evidence to find that Mountain View was not in compliance with the regulations due to the increased falls that residents experienced

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without adequate intervention from the facility, the DAB’s decision rested exclusively on Mountain View’s failure to consider increasing its staffing.”).

The appeals court explained that “[w]hether Mountain View was in compliance with § 483.25(h) is not the question before this court,” and it decided only “the narrow question” of “whether the ALJ and DAB were correct in holding that CMS could properly assess a CMP against Mountain View solely for failing to consider adding additional staffing to the ACU.” Id. at 979 (emphasis added). In deciding that question, the appeals court held that “[b]ecause consideration of staffing is outside the scope of the regulation and unfairly surprised Mountain View, the ALJ and DAB’s basis for finding Mountain View not in substantial compliance with § 483.25(h) was arbitrary and capricious.” Id. The appeals court noted that supervision does not refer only to staffing but to “actions undertaken by facility staff to prevent accidents.” Id. The appeals court concluded that, “[w]hile the ALJ’s ultimate outcome may have been correct, it is clear that the reasoning was not,” where the ALJ focused solely on staffing questions that were outside the language of the regulation and caused Mountain View surprise. Id. at 979-80. The appeals court further held that the ALJ’s conclusion that Mountain View was not in substantial compliance with the requirement in 42 C.F.R. § 483.75 was not supported because it was “derivative” of, or relied upon, the ALJ’s “arbitrary and capricious application” of section 483.25(h). Id. at 981.

Accordingly, the appeals court “vacate[d] the DAB’s determination and remand[ed] for further consideration of whether the surveyor[s’] findings of violations” of 42 C.F.R. §§ 483.25(h) (Tag F323) and 483.75 (Tag F490) “are sufficient by themselves to support CMS’s finding of immediate jeopardy and, therefore, also sufficient to uphold the CMP.” Id. at 983.⁷

Following remand, the Board issued an “Acknowledgment of Court Remand and Schedule for Submission of Written Legal Argument” (Mar. 12, 2021) (Acknowledgment). The Board “determined that it can fairly and efficiently resolve the remaining issues without remanding the case to the ALJ” because “the parties developed an ample record before the ALJ” and “the material facts in this case are largely undisputed.” Id. at 3. The Board set a schedule for the parties to submit further briefing. Id. at 3-4. Mountain View, and then CMS, filed an opening brief, and each filed a reply brief. The Board has conducted a de novo review of the record and issues this decision on remand in accordance with 42 C.F.R. § 498.88(a).

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Standard of Review, Burden of Persuasion on Remand

The Board in its Acknowledgment stated:

The [appeals c]ourt’s analysis and holdings appear to leave the following issues to be addressed by the Board on remand:

• The primary issue is whether the “totality of the circumstances” [832 F. App’x at 978] established by the record support[s] CMS’s determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h) beginning on January 13, 2014.
• If the foregoing issue were resolved in CMS’s favor, then the Board may review whether the evidence of noncompliance with section 483.25(h) supports a conclusion that Petitioner was noncompliant with its obligation under 42 C.F.R. § 483.75 to administer its facility “effectively and efficiently to attain or maintain the highest practicable . . . well-being” of each resident.
• The Board might also then review whether CMS’s finding that the noncompliance with sections 483.25(h) and 483.75 (if any) placed residents in immediate jeopardy is “clearly erroneous.” See [ALJ Decision] at 52-53.
• In addition, the Board may review whether the amount of the per-day CMPs imposed by CMS remain lawful and reasonable in light of the conclusions reached (on judicial review and remand) with respect to the underlying compliance issues.

Acknowledgment at 3 (footnote omitted, citation to “slip. op.” replaced by citation to F. App’x). The Board invited the parties to state in their briefs whether they contended “that the issues on remand differ from those we have set out.” Id. at 4. Neither party did, and Petitioner “agrees that these are the issues before the Board.” P. Br. at 2.

In this appeal, as in any Part 498 appeal of enforcement remedies imposed on a SNF based on a survey, “[i]f a facility disputes a finding in an SOD, ‘the issue once both parties have presented their evidence . . . is whether the petitioner showed substantial compliance by a preponderance of the evidence.’” Life Care Ctr. of Bardstown, DAB No. 2479, at 18 (2012) (quoting Oxford Manor, DAB No. 2167, at 2-3 (2008)), aff’d, 535 F. App’x 468 (6th Cir. 2013).

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Analysis

We now address and resolve the compliance and penalty issues specified in our Acknowledgment Letter. We conclude that Mountain View was not in substantial compliance with section 483.25(h) during the relevant period, and that this noncompliance is evidenced by circumstances of multiple falls, involving five residents, that were cited in the Statement of Deficiencies as a basis for the survey agency’s (and later, CMS’s) noncompliance determination, including the failure to implement care plan interventions or facility policy. These failures also demonstrate Mountain View’s noncompliance with the administration regulation at section 483.75. We further conclude that CMS’s finding that Petitioner’s noncompliance with sections 483.25(h) and 483.75 placed residents in immediate jeopardy is not clearly erroneous. Finally, we conclude that a $3,600 per day CMP is reasonable for the duration of Petitioner’s immediate jeopardy-level noncompliance.

I. The totality of circumstances relating to falls by five ACU residents demonstrates that Mountain View was not in substantial compliance with 42 C.F.R. §483.25(h).

Section 483.25(h), as in effect during the relevant time period, states that a nursing facility “must ensure that . . . [t]he resident environment remains as free of accident hazards as is possible” (§ 483.25(h)(l)) and that “[e]ach resident receives adequate supervision and assistance devices to prevent accidents” (§ 483.25(h)(2)).⁸ The lead-in language of section 483.25, “Quality of care,” sets out the overarching requirement that “[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.” 42 C.F.R. § 483.25 (2013); Heritage Plaza Nursing Ctr., DAB No. 2829, at 6 (2017); see also Act §§ 1819(b)(2) (Medicare), 1919(b)(2) (Medicaid). The quality-of-care regulation “imposes on facilities a high affirmative duty to provide services that are designed to achieve [favorable] outcomes to the highest practicable degree.” Sunshine Haven Lordsburg, DAB No. 2456, at 14 (2012) (internal quotation marks omitted) (citing Agape Rehab. of Rock Hill, DAB No. 2411, at 9 (2011) (citing Liberty Nursing & Rehab. Ctr. – Mecklenberg Cnty., DAB No. 2095, at 8 (2007), aff’d, 294 F. App’x 803 (4th Cir. 2008)).

As it existed during 2014, CMS’s “Guidance to Surveyors for Long-Term Care Facilities,” published in Appendix PP to the State Operations Manual, explains that the intent of section 483.25(h) “is to ensure the facility provides an environment that is free from accident hazards over which the facility has control and provides supervision and

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assistive devices to each resident to prevent avoidable accidents.” P. Ex. 1 (State Op. Man., App. PP, Rev. 27, eff. Aug. 17, 2007) at 2. “In interpreting what section 483.25(h) requires, the Board has stated that, while the regulation broadly prescribes outcomes facilities must meet, facilities have flexibility to choose the specific methods as appropriate to their circumstances and to employ reasonably necessary measures to comply with the regulation.” Lifehouse of Riverside Healthcare Ctr., DAB No. 2774, at 15 (2017) (citing, e.g., Azalea Court, DAB No. 2352, at 9 (2010)), aff’d, 482 F. App’x 460 (11th Cir. 2012); Briarwood Nursing Ctr., DAB No. 2115, at 11 (2007); Aase Haugen Homes, Inc., DAB No. 2013 (2006); and Woodstock Care Ctr., DAB No. 1726 (2000), aff’d, 363 F.3d 583 (6th Cir. 2003)). “In this context, facilities are held to anticipating reasonably foreseeable risk of accidents in choosing appropriate accident prevention methods.” Id. (citing Glenoaks Nursing Ctr., DAB No. 2522, at 8 (2013) (a facility “is obligated to anticipate reasonably foreseeable accidents that might befall a resident and take steps – such as increased supervision or the use of assistance devices, for example – calculated to prevent them”)); see also Briarwood, DAB No. 2115, at 5; Century Care of Crystal Coast, DAB No. 2076, at 6-7 (2007), aff’d, 281 F. App’x 180 (4th Cir. 2008) (similar discussion in both Board decisions).

“[S]ection 483.25(h)(1) places a continuum of affirmative duties on a facility to identify, remove, and protect residents from hazards”; “where a facility takes action to remove a hazard but then has reason to know that those measures are substantially ineffective, the facility must, if possible, implement more effective measures.” Meadowwood Nursing Ctr., DAB No. 2541, at 2 (2013) (internal quotation marks omitted) (citing Maine Veterans’ Home – Scarborough, DAB No. 1975, at 6-7 (2005); Estes Nursing Facility Civic Ctr., DAB No. 2000, at 7 (2005); and Clermont Nursing & Convalescent Ctr., DAB No. 1923, at 21 (2004) (to comply with section 483.25(h)(1), a facility must “eliminate or reduce the risk of accident to the greatest degree practicable” (emphasis in original)), aff’d, 142 F. App’x 900 (6th Cir. 2005)); see also 832 F. App’x at 978 (the regulation “require[s] the facility to take all reasonable steps to ensure that a resident receives supervision . . . that meet[s] his or her assessed needs and mitigate[s] foreseeable risks of harm from accidents”) (quoting Lake Park Nursing & Rehab. Ctr., DAB No. 2035, at 7 (2006)).

Regarding section 483.25(h)(2), “[n]umerous Board decisions have explained” its requirements. Green Oaks Health & Rehab. Ctr., DAB No. 2567, at 5 (2014) (collecting cases). The Board has repeatedly held that section 483.25(h)(2) obligates a facility to take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.” Heritage Plaza at 6 (citing Briarwood, DAB No. 2115, at 5 (citing Woodstock Care Ctr. v. Thompson, 363 F.3d at 590); see also Miss. Care Ctr. of Greenville, DAB No. 2450, at 5 (2012), aff’d, 517 F. App’x 209 (5th Cir. 2013) (per curiam); Golden Age Skilled Nursing & Rehab. Ctr., DAB No. 2026, at 11 (2006) (each citing Woodstock Care Ctr. v. Thompson, 363 F.3d at 590); 832 F. App’x at 977-78

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(“Whether supervision is ‘adequate’ depends on the resident’s ability to protect himself or herself from harm.” (quoting Golden Living Ctr. – Riverchase, DAB No. 2314, at 8 (2010))).

Though a facility has flexibility to choose the methods of supervision and assistance used to prevent accidents, it must also “provide supervision and assistance devices that reduce known or foreseeable accident risks to the highest practicable degree, consistent with accepted standards of nursing practice.” Century Care of Crystal Coast, DAB No. 2076, at 6-7. “[A] SNF violates section 483.25(h)(2) if it fails, without justifiable reason, to implement accident precautions that its own staff determined [during the periodic assessment or care-planning process] to be necessary to mitigate foreseeable accident risks.” Good Shepherd Home for the Aged, Inc., DAB No. 2858, at 14 (2018) (citing Board decisions). In addition, “[a] resident care policy intended to ensure compliance with Medicare participation requirements may reflect the facility’s own judgment about how best to achieve compliance with those requirements and hence failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard.” Id. at 12 (internal quotation marks and brackets omitted); see also Heritage Plaza, DAB No. 2829, at 20 (“Once a facility adopts a policy that incorporates the measures that are appropriate to assure that residents receive adequate supervision and assistance devices to prevent accidents, . . . the facility is held to follow through on them.”).

The five residents, and circumstances of the following falls, as documented in facility records, are examples of repeated failures by Mountain View to “ensure that . . . [t]he resident environment remains as free of accident hazards as is possible,” and that “[e]ach resident receives adequate supervision and assistance devices to prevent accidents,” as section 483.25(h) requires:

• Resident 28, 85 years old when admitted on December 14, 2013, had diagnoses including Alzheimer’s disease, dementia with psychosis, prior hip fracture, and prior falls, and had severe cognitive impairment and was at high risk for falls. CMS Ex. 5, at 112, 170, 192, 227-28. Resident 28 fell 15 times between December 22, 2013 and April 5, 2014, and sustained injuries including skin tears on a thumb, finger, left arm and right hand, abrasions above the left eye, a bruise on the forehead, a laceration above the right eye; a cut on the head closed with staples, elbow pain, and a left hip fracture, and was transported to the emergency room on five occasions for evaluation and treatment. Id. at 1-77, 80, 81, 88-90, 95, 99-100, 104-07, 110, 142, 143.

On February 22, 2014, Resident 28 fell due to a broken, defective, or improperly maintained wheelchair. The resident was seated in a wheelchair outside the nurses station and fell to the floor upon attempting to self-transfer from the wheelchair when the right armrest (described as the right “arm” or “handle”) of the

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wheelchair “gave way,” “came loose,” or was “broken,” resulting in the resident’s fall and a skin tear on the resident’s right thumb. CMS Ex. 1, at 52; CMS Ex. 5, at 37-39, 42-43, 90; see also P. Br. at 22 (resident “fell when the arm on her wheelchair dislodged”). The facility’s response was to provide the resident a wheelchair with “both arms in working order.” CMS Ex. 5, at 38, 39. There is no evidence that prior to the fall the facility implemented its policy to inspect equipment such as wheelchairs at least monthly.

• Resident 111, 77 years old when admitted on July 10, 2012, had diagnoses including senile dementia, Parkinson’s disease, abnormal gait and urinary incontinence, and was assessed as being at high risk of falls. CMS Ex. 6, at 1-2, 47, 69. Resident 111 fell at least seven times between August 16, 2013 and March 27, 2014, including five times beginning in December 2013, and sustained pain in the right big toe, skin tears on the left elbow and right arm, abrasions on both knees and lower back, swelling on the left knee, reopening of an old skin tear on the left arm, and bruises on the head. Id. at 3-42.

By way of example, Resident 111 fell due to improperly fitted clothing and fell again due to a floor hazard the facility created. On November 17, 2013, at about 7:30 a.m., the resident, whose ongoing weight loss was documented in facility records, fell while walking unassisted to the dining hall for breakfast when the resident’s “too big” slacks dropped below the knees and the resident reached down to pull up the slacks. CMS Ex. 6, at 14, 108, 111, 127. The resident sustained a skin tear on the left elbow and an abrasion on the left knee.⁹ Mountain View claimed in briefing that the resident’s pants fell because they became unbuttoned or unfastened but cited no evidence supporting that claim.

On February 8, 2014, at 10:28 a.m., Resident 111 fell upon stepping from a carpet that was “wet/damp” from being cleaned that morning and onto the tile floor of the resident’s room, sustaining an abrasion on the left knee with some swelling. CMS Ex. 6, at 32-34. Mountain View provided no evidence to support its assertion that its staff placed warning signs or barriers around this accident hazard or other such floor-related hazards.

• Resident 112, 64 years old when admitted on December 13, 2013, had diagnoses including dementia with behavioral disturbance, anxiety, diabetes, and hypertension, and had a history of falls and confusion and was at risk of elopement. CMS Ex. 9, at 48-49, 59, 60, 61, 68, 87. Resident 112 fell at least six times between December 29, 2013 and March 30, 2014 (when the resident was

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found asleep on the floor covered with a blanket), and sustained a laceration on the left cheek and a one-inch laceration to the right eyebrow that reopened after a subsequent fall that also resulted in a hematoma in that same area.¹⁰ Id. at 1-35, 37-40 41-46, 49-51, 54-5. On January 31, 2014, the resident fell due to a floor hazard the facility created. Specifically, at about 10:00 p.m., Resident 112 fell to the floor near the exit door close to the nurses’ station where the floors were “being redone,” which the facility listed as a “causal/contributing” factor in the resident’s fall; the resident fell “where new floor ended.” Id. at 13; P. Ex. 30 at 1‑3. The resident was not injured in this fall. Mountain View provided no evidence to support its assertion that staff placed warning signs or barriers around this accident hazard.

• Resident 45, who was 89 years old when admitted on June 4, 2013, and died in March 2014, had diagnoses including Alzheimer’s disease, hypertension, hypothyroidism, anemia, hyperlipidemia, tremor, atrial fibrillation, and a urinary tract infection. CMS Ex. 7, at 1, 52, 56, 75-76, 78. Resident 45 fell eight times between December 6, 2013 and February 17, 2014, and sustained skin tears on the left elbow and left hand, reopening of an old skin tear, hematomas on the left shin, right elbow and knee and the head, and left hip pain. Id. at 2-8, 29-51. In five of those instances, the facility had not implemented its interventions of stand-by assistance for transfers and non-skid socks.
• Resident 94 was 94 years old when admitted on January 3, 2014, with diagnoses including dementia with behavioral disturbance, senility, generalized pain, insomnia, osteoarthrosis, pacemaker, atrial fibrillation, atherosclerosis, and hearing loss, and was discharged from the ACU after approximately three weeks. CMS Ex. 8, at 55, 119; see V4 at 305 and V5 at 198-99 (Director of Nursing’s and Administrator’s testimony that Resident 94 was discharged because the facility could not meet the resident’s needs). The resident fell seven times between January 4 and January 24, 2014, and sustained a hematoma on the left hand, and a laceration at the left eye for which the resident was taken to the hospital. CMS Ex. 8, at 1-36, 55-57, 65, 67. One of three falls on January 23 followed Mountain

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View’s failure to provide the resident with the two-person assist for toileting that the facility determined the resident needed.

Four of the falls noted above, three of which injured the residents, are associated with Mountain View’s failure to have either provided the residents with an assistance device (wheelchair) that was in proper working condition, or protected residents from known or foreseeable falling or tripping hazards (loose clothing and floors that were wet from cleaning or were under construction and uneven). Many of the falls documented in the facility’s records, including falls that resulted in serious injuries, are associated with Mountain View’s failure to have provided the levels of assistance it determined the resident needed in resident care plans or assessments.

The ALJ Decision describes each of these falls (and those descriptions are not disputed), but the ALJ did not further discuss or address their circumstances in concluding that Mountain View violated 42 C.F.R. § 483.25(h) (Tag F323). ALJ Decision at 8-26.¹¹ We do so now, and we discuss these incidents and Mountain View’s arguments in detail below.

For the most part, Mountain View has ignored the specific and undisputed circumstances of the falls as reported in the record evidence and contemporaneously found and reported by its staff. Mountain View proffered little or no evidence regarding these falls and has instead made legal arguments that misapprehend its obligations as an SNF, and alleged facts that are not supported by, and sometimes misrepresent, the record evidence. None of Mountain View’s arguments and allegations establish that it substantially complied with the regulation or rebut the evidence that it did not.

A. The record concerning Resident 28’s fall from a wheelchair establishes noncompliance with section 483.25(h).

There is no dispute that Resident 28 fell to the floor because the armrest or arm of her wheelchair gave way, came loose, or broke when the 85-year-old ACU resident attempted to “self-transfer,” causing the wheelchair arm to succumb under the application of some of the resident’s approximately 113‑pound body weight. See P. ALJ Reply at 21 (“[T]he arm on [Resident 28’s] wheelchair dislodged and caused her to fall.”); CMS Ex. 5, at 94 (113.4-pound body weight on February 12, 2014).¹² Mountain View argues that

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“CMS offered no evidence that the Resident’s wheelchair was defective, or had not been inspected or maintained properly.” P. Reply at 11. As discussed below, this argument is demonstrably false.

The wheelchair arm’s failure supports an inference that the wheelchair was not in proper condition, as does the determination of Mountain View’s staff to then give Resident 28 a wheelchair with both “arms in working order,” as facility records state, indicating a finding that the wheelchair from which the resident fell was not in working order, as does Mountain View’s assertion that its “staff repaired the wheelchair” from which Resident 28 fell. P. Pre-H’g Br. at 28; CMS Ex. 5, at 38, 39; see also id. at 37 (facility placed Resident 28 in wheelchair with “2 arms that were in working condition”), 43, 90 (recording change to wheelchair “that had working arms”). The SOD cites Resident 28’s fall from the wheelchair on February 22, 2014 as evidence of noncompliance with section 483.25(h), and CMS cited this fall as “prima facie evidence that [Mountain View] did not provide a working assistive device to Resident 28[,] which contributed to a fall,” and as an example of Petitioner having “failed to ensure that residents had assistive devices in working order.” CMS Ex. 1, at 40, 52-53; CMS Post-H’g Br. at 30; CMS Pre-H’g Br. at 12. Moreover, as discussed further below, Mountain View failed to demonstrate that it had inspected the wheelchair within the 30 days preceding the fall, as its facility policy required.

Consistent with Board precedent discussed below, the undisputed circumstances of this fall constitute a failure to ensure that the resident received “adequate . . . assistance devices to prevent accidents” and that “the resident environment remain[ed] as free of accident hazards as is possible” as the regulation states, and to meet its obligations thereunder to “provide supervision and assistance devices that reduce known or foreseeable accident risks to the highest practicable degree,” to take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents,” and to “address foreseeable risks of accidental harm by identifying and removing hazards where possible.” 42 C.F.R. § 483.25(h); Century Care of Crystal Coast, DAB No. 2076, at 6-7; Meadowwood Nursing Ctr., DAB No. 2541, at 2; Ridgecrest Healthcare Ctr., DAB No. 2493, at 3 (2013).

Mountain View has not disputed, or cited evidence that contradicts or calls into question, the accounts of the fall in the ALJ Decision and facility records. Instead, Mountain View casts CMS’s undisputed accounts of this and other falls by Resident 28 – which also come from the facility’s records – as “commentary that is untethered to any specific regulatory requirement or standard of care” (and claims CMS’s citations of this and other falls “make little sense”) because “CMS simply asserts that because the chair malfunctioned and the Resident fell, there was a deficiency.” P. Reply at 11; P. ALJ

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Reply at 21. (And, as discussed further below, Mountain View also argues that CMS failed to show that the wheelchair was defective or had not been inspected pursuant to the facility’s policy, suggests that the fall was unavoidable, and advanced speculative explanations for the wheelchair’s failure that the record evidence does not support.)

Given the undisputed facts recited above, Mountain View’s puzzlement that Resident 28’s fall due to the wheelchair arm failure shows noncompliance with section 483.25(h) is not credible. Mountain View’s obligations under that regulation, discussed above, included ensuring that Resident 28’s wheelchair, and all wheelchairs, were safe to use. As in effect during the relevant time period, CMS’s guidance to surveyors (Appendix PP to the State Operations Manual), classified wheelchairs as assistance devices for the purpose of the regulation. See P. Ex. 1, at 2 (SOM, App. PP, cited infra). Mountain View acknowledged the foreseeability of resident injuries due to defective or broken wheelchairs, as it reported having “had a policy to check wheelchairs for safety periodically (because like all mechanical devices they can break or wear out).” P. ALJ Reply at 21; see also P. Reply at 11 (“CMS offered no evidence that the Resident’s wheelchair . . . had not been inspected”). Mountain View also submitted guidance from the Centers for Disease Control (CDC) that identifies “improperly fitted or maintained wheelchairs” as one of the “environmental hazards” that are among “the most common causes of nursing home falls.” P. Ex. 6, at 1. Mountain View submitted this guidance to show “the inherently high risk of accidents and injury infirm residents face from ordinary activities that would not threaten stronger individuals.” P. Pre-H’g Br. at 5.

The risk that an ACU resident, who was at risk for falls and needed an assistance device and supervision to ambulate and who sometimes needed a wheelchair, might fall while using a defective or broken wheelchair, was thus eminently foreseeable, even if it might not have happened previously on the ACU. See P. Ex. 22, at 1 (Resident 28 physical therapy records); CMS Ex. 5, at 114, 123, 266 (plan of care and functional assessment); see also Sunbridge Care & Rehab. for Pembroke, DAB No. 2170, at 20 (2008) (“[f]oreseeability does not require being able to foresee that an accident will happen in the same way or result in similar injuries”), aff’d, Sunbridge Care & Rehab. v. Leavitt, No. 08-1603 (4th Cir. July 22, 2009); Josephine Sunset Home, DAB No. 1908, at 14-15 (2004) (rejecting proposition that an accident cannot be considered foreseeable unless it “previously occurred to the same person in the precise manner,” and holding that “[f]or a risk to be foreseeable, it need not have been made obvious by having already materialized”). We do not hesitate to conclude that the obligation to provide “adequate” assistance devices to prevent accidents encompasses providing devices, including wheelchairs, that are in proper working order and condition such that a resident will not be deposited on the floor upon using the device for its intended purposes.

Mountain View, however, did not proffer or cite any evidence of measures it took to “ensure that” it had provided Resident 28 a wheelchair (i.e, an assistance device) that was “adequate . . . to prevent accidents” or to mitigate the foreseeable risk that a broken or

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defective wheelchair posed to Resident 28, as the regulation required. In particular, Mountain View proffered no evidence that it inspected Resident 28’s wheelchair, or any wheelchair, per facility policy, until after the state survey in April 2014.

Mountain View’s “policy to check wheelchairs for safety periodically” was the “preventative maintenance schedule” that Mountain View reported in its “allegation of compliance” filed with the state survey agency in response to the SOD; the maintenance schedule “includes checking equipment for safe working condition on a monthly basis.” CMS Ex. 18, at 11; see V5 at 200-03 (testimony of Mountain View’s Administrator that the statements in the allegation of compliance regarding inspections are accurate); P. ALJ Reply at 21 (“CMS does not dispute that Petitioner had a policy to check wheelchairs for safety periodically.”). Mountain View reported that a visual inspection of “all wheelchairs and Broda chairs to ensure safe working order” completed April 25, 2014 found “no residents identified as having the potential to be affected,” although its Administrator agreed that a document CMS counsel produced at the hearing, and stated was completed by facility staff, indicated that the April 25th inspection discovered a broken brake and a missing armrest on one or more wheelchairs.¹³ CMS Ex. 18, at 11; V5 at 200-03.

The inspection of wheelchairs in April 2014 does not show that the facility had taken measures to ensure that Resident 28’s wheelchair was in safe condition prior to its arm giving way on February 22, 2014, when the resident attempted to transfer out of the wheelchair. But, the facility’s possible discovery, via the April inspection, of wheelchairs needing repairs to be put in safe working order illustrates the importance of regular inspections in ensuring that assistance devices used by residents are adequate to prevent accidents – importance that Mountain View apparently recognized in adopting its policy of monthly equipment inspections.

The record, however, contains no evidence of any wheelchair inspection other than the visual inspection of wheelchairs Mountain View completed on April 25, 2014. Mountain View has not shown, or even alleged, that it inspected Resident 28’s wheelchair, or any wheelchair, during the month or months prior to Resident 28’s fall on February 22, 2014, as its policy required, leaving it to the resident’s fall from that wheelchair to alert facility staff of the wheelchair’s condition and the risk it posed. Mountain View provided no documentation and offered no witness testimony of any such inspection.

We thus conclude that Mountain View failed to comply substantially with section 483.25(h) by permitting Resident 28 to use a defective or broken wheelchair, causing the resident to fall, and by failing to take reasonable precautions to prevent an accident with

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the wheelchair. We next discuss how Board decisions support this conclusion, and how Mountain View’s arguments fail to show any error in that conclusion.

1. Board decisions support our determination that Mountain View was noncompliant with section 483.25(h) in connection with Resident 28’s fall from the wheelchair on February 22, 2014.

Board decisions support our determination that Mountain View was noncompliant with the requirements of section 483.25(h) in permitting Resident 28 to use a defective or broken wheelchair, causing the resident’s fall on February 22. In Ridgecrest Healthcare Center, where a resident’s wheelchair had “malfunctioning brakes,” permitting it to move with a light push despite the brake being engaged, the parties did not dispute, and the Board and the ALJ agreed, that the facility was not in substantial compliance with the requirements of section 483.25(h)(1), at the immediate jeopardy level, even though the resident had not fallen as a result of the malfunctioning brakes. DAB No. 2493, at 10.¹⁴ The Board upheld the ALJ’s further, disputed conclusion that the noncompliance continued (at a lower level) and the facility “did not ensure that each resident’s environment remained as free of accident hazards as possible” because a revisit survey found that the brakes on the resident’s wheelchair were still malfunctioning and that the facility had not implemented all of the steps in its Plan of Correction, including having “an effective system in place to ensure that all wheelchairs were kept in good repair.” Id. at 7-9. The Board held that the ALJ “could reasonably infer that a resident might be at risk not only while sitting in the wheelchair but even by using it for support, unaware of its instability,” adopting the surveyor’s unrebutted testimony that a resident could “suffer a potentially catastrophic fall” if she attempted to lean on or stand up using a wheelchair with faulty brakes. Id. at 11.

That analysis applies here, where the wheelchair arm gave way when Resident 28 attempted to get out of the wheelchair, resulting in the resident injured on the floor, and one “could reasonably infer” that a resident would be at risk any time she exerted pressure on the wheelchair arm. Also as in Ridgecrest, where the facility had not implemented its plan to keep all wheelchairs in good repair, the facility here has not shown that it implemented its policy to check equipment including wheelchairs regularly for safety, and thus, like the facility in Ridgecrest, did not show that it had “an effective system in place to ensure that all wheelchairs were kept in good repair.” DAB No. 2493, at 9.

Florence Park Care Center, DAB No. 1931 (2004), similarly supports our finding of noncompliance with section 483.25(h) in connection with Resident 28’s fall from the wheelchair on February 22, 2014. In that case, a resident who had Alzheimer’s disease

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and was at high risk for falls was in a wheelchair with a seat that lacked the anti-slip material (“dycem”) that nursing staff had determined was needed to prevent the resident from “falling out of the chair.” DAB No. 1931, at 20-21. The Board concluded that the absence of dycem from the resident’s wheelchair, among other facts, “establish that Florence did not ensure that [the resident] received necessary assistance devices to prevent accidents” (§ 483.25(h)(2)). Id. at 21. Here, the presence of a defective, broken or otherwise not-properly-working wheelchair with an armrest that failed when used by Resident 28, an ACU resident who was at high risk for falls, was, like the absence of the dycem that was supposed to be on the seat of the resident’s wheelchair in Florence Park, a failure by Mountain View to ensure that the resident received adequate assistance devices to prevent accidents. See also Harmony Court, DAB No. 1968 (2005) (facility failed to “provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychological well-being” required by the opening paragraph of section 483.25, when a worn or damaged “pommel cushion” in a geri-chair allowed the resident to slide forward, causing the chair’s pelvic restraint to tighten and injure the resident), aff’d, 188 F. App’x 438 (6th Cir. 2006).

Mountain View’s other arguments provide no basis to conclude that the facility was in substantial compliance with section 483.25(h) with respect to Resident 28’s fall from the wheelchair on February 22, 2014.

2. Mountain View has not met its burden to demonstrate by a preponderance of the evidence that it substantially complied with section25(h).

As the appeals court recognized, “the agency must first provide evidence sufficient to establish a prima facie case of the regulatory violation. . . . Once the agency has met its burden, then the burden of persuasion shifts to the facility to ‘prove by a preponderance of the evidence on the record as a whole that it is in substantial compliance with the relevant statutory and regulatory provisions.’” 832 F. App’x at 971 (quoting Hillman Rehab. Ctr. DAB No. 1611, at 8 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Hum. Servs., No. 98-3789 (GEB) (D. N.J. May 13, 1999)). The appeals court did not disturb the ALJ’s determination “that CMS has made a prima facie showing of noncompliance” under the two deficiency tags at issue here. ALJ Decision at 43; see also 832 F. App’x at 978 (citations omitted) (“This court has affirmed the DAB’s interpretation that the key consideration under [section 483.25(h)] is whether a facility has ‘take[n] all reasonable precautions against residents’ accidents.’ . . . Here, CMS pointed to the resident’s [sic] unsupervised falls as evidence that Mountain View was failing to take all reasonable precautions against residents’ accidents. Factually, this seems evident.”); see also id. at 986 (J. Clay, concurring in part and dissenting in part) (“The majority does not dispute that CMS made a prima facie showing that Mountain View violated § 483.25(h) by providing evidence of the residents’ falls and the circumstances surrounding those falls.”). We do not hesitate to conclude that CMS

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presented a prima facie case that Mountain View was noncompliant in failing to provide the resident with a wheelchair in safe condition that would not break when used as intended, causing the resident to fall, or with respect to the other three falls discussed below, as described in the facility’s records, and unrebutted by Mountain View.

At this stage of the proceedings, where both parties have submitted all their evidence and arguments, Mountain View bears the burden of showing, by a preponderance of the evidence, that it was in substantial compliance with the regulation in its care of Resident 28 (and the other residents whose falls we address below). “As the Board again clarified in Oxford Manor, DAB No. 2167, at 2-3 (2008), once both parties have presented their evidence, the issue before the ALJ [or the trier of fact] ‘is whether the petitioner showed substantial compliance by a preponderance of the evidence.’” Hanover Hill Health Care Ctr., DAB No. 2507, at 7 (2013) (quoting Oxford Manor); Meadow Wood Nursing Home, DAB No. 1841, at 6-7 (2002) (“The burden of persuasion throughout a provider enforcement case under Hillman and its progeny is on the provider to show substantial compliance by the preponderance of the evidence.”), aff’d, 364 F.3d 786 (6th Cir. 2004); see also Vandalia Park, DAB No. 1940, at 4-5 (2004) (“The correct standard is . . . whether the preponderance of the evidence in the record favors the facility’s claim of substantial compliance with the requirement at issue.”), aff’d, 157 F. App’x 858 (6th Cir. 2005).¹⁵

In this case, we weigh whether Mountain View was in substantial compliance with the requirements of section 483.25(h). The record as discussed above demonstrates that it was not. The record shows that Mountain View failed to ensure that Resident 28’s environment remained as free of accident hazards as is possible and that the resident received adequate supervision and assistance devices to prevent accidents, via the undisputed finding in the SOD that Resident 28 fell as a result of the arm of the wheelchair giving way, becoming loose, or having dislodged when the resident used it (and facility records showing no determination of why the wheelchair failed, see CMS Ex. 5, at 37, 39, 43, 90). Mountain View has cited no evidence that it took all reasonable steps to ensure that Resident 28 received supervision and assistance devices that mitigated the foreseeable risk that the resident could fall when using a wheelchair with a defective arm, foreseeability that Mountain View recognized in adopting a policy to check equipment monthly for safety. In short, a preponderance of evidence relating to Resident 28’s fall demonstrates that Petitioner was not in substantial compliance with section 483.25(h). Century Care of Crystal Coast v. Leavitt, 281 F. App’x 180, 184 n.1 (4th Cir. 2008) (affirming DAB No. 2076 (2007)).

We also note that “the Board has explained that the federal requirements are based on an ‘outcome-oriented’ approach, in which the regulations establish outcomes facilities must achieve but provide each facility with flexibility to select methods to achieve them that

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are appropriate to its own circumstances and needs.” Azalea Court, DAB No. 2352, at 9 (emphasis added) (citing Va. Highlands Health Rehab. Ctr., DAB No. 2339, at 5 (2010), and Lake Mary Healthcare, DAB No. 2081, at 17 (2007)). This approach reflects the regulations at Part 488 prescribing the survey, certification, and enforcement procedures, which state “[t]he survey process uses resident and patient outcomes as the primary means to establish the compliance process of facilities.” 42 C.F.R. § 488.26(c)(2); see also The Bridge at Rockwood, DAB No. 2954, at 26 (2019) (citing § 488.26(c)(2) in holding that the regulatory structure of the survey process “is indeed ‘outcome-oriented,’ in the sense that the regulations focus on what goals facilities are to accomplish while permitting facilities to choose among reasonable means to accomplish those goals”).

Mountain View thus had discretion to determine how it would provide a resident environment that was as free of accident hazards as is possible, and supervision and assistance devices, including wheelchairs, that were adequate to prevent accidents, as section 483.25(h) required. See 832 F. App’x at 978 (“‘A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an “adequate” level of supervision under all the circumstances.” (quoting Windsor Health Care Ctr., DAB No. 1902, at 5)); Meadow Wood Nursing Home, DAB No. 1841, at 17 (“Actual performance requirements place responsibility on the facility to achieve the best practicable results as defined in the participation requirements while leaving to the facility the flexibility to select means and methods of achieving those results.”). In any event, Mountain View had a policy of regularly inspecting wheelchairs and other equipment but has not shown that it implemented its policy with respect to the wheelchair used by Resident 28, who experienced a negative outcome upon attempt to rise from the wheelchair on February 22, 2014.

3. Mountain View has not shown that Resident 28’s February 22, 2014 fall or other falls were unavoidable.

Mountain View has also not supported its suggestion that Resident 28’s February 22, 2014 fall was unavoidable. Mountain View asserted at the hearing that “the handle came loose,” that “we know that handles come off of wheelchairs” and that “we don’t know the circumstances of this one.” V5 at 208‑09. Mountain View, however, did not cite any evidence that the armrests or handles come off wheelchairs that are in proper working condition or have been adequately maintained, or that they are meant or tend to be removed or dislodged as part of normal use. Mountain View did not cite any evidence suggesting that the resident used the wheelchair improperly, removed the armrest, or otherwise tampered with it such that the arm would have come off a wheelchair that had been inspected and maintained in proper working order, nor is there any such indication in the facility’s records concerning the fall. See CMS Ex. 5 (Resident 28 Records), at 37‑43, 90, 114. Mountain View has not shown that a chair in proper working order would become partially disassembled when used consistent with its intended purpose and conceded that the reason the armrest came off is unknown.

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Absent such evidence that the wheelchair had been inspected or properly maintained and that its arm coming loose was unavoidable or could not have been prevented through inspection, the failure of the wheelchair arm when the resident attempted to self-transfer indicates that the chair was indeed defective and had not been adequately maintained or inspected.¹⁶ See Vandalia Park, DAB No. 1940, at 23 (“Any evidence which CMS had gathered came from a survey of the provider’s own records and facilities, and the provider is the one in possession of the most complete evidence of the state of its compliance.”). And, as noted above, the facility’s determination, immediately after the fall, to replace Resident 28’s wheelchair with one with arms in “working order” and to repair the broken wheelchair supports an inference that the wheelchair that broke was not in working order, an inference that Mountain View has not rebutted with any evidence.

The reason, moreover, that Mountain View does not know the cause of the wheelchair arm failure is because the record reflects no determination of, and no effort to determine, how or why the wheelchair arm gave way on February 22, 2014, causing Resident 28 to fall, notwithstanding the facility’s policy to investigate all resident falls. See V5 at 192-95 (Administrator’s testimony that after every resident fall the charge nurse initiates or completes a “verification of investigation” form kept in the director’s office and a “post-fall investigation plan” kept in the resident’s medical record and acknowledging that documents she provided to surveyors did not include residents’ post-fall investigation plans); CMS Ex. 27, at 6-7 (policy to investigate falls). The “Verification of Investigation” form states only that “the R arm of w/c gave way & resident fell to floor,” and, as “Causal/Contributing Factors,” that “Arm of w/c came loose for w/c & resident fell from chair to floor.” CMS Ex. 5, at 37-38. The sole “recommendation/intervention taken to prevent recurrence” was “Change in w/c’s w/both arms in working order”; the records for Resident 28 disclose no finding of why or how the wheelchair arm came loose or gave way and contain no “post-fall investigation plan” for this fall. Id.; see also Buena Vista Care Ctr., DAB No. 2498, at 11 (2013) (record contained “no indication” that the facility “had a clear understanding of why” a “tab alarm” did not sound when resident fell from bed; and “[w]ithout such an understanding, Buena Vista could not reasonably conclude that replacing the original tab alarm with another tab alarm of the same type (which might be similarly flawed) was an adequate intervention”). In short, Mountain View provided no basis to find that the periodic inspections its policy required would not have found any defects in the wheelchair from which Resident 28 fell on February 22, 2014.

Regarding this and other falls by Resident 28 (in which, Mountain View notes, the resident “rolled out of bed, or fell in her room, ten times; fell when suddenly standing

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twice, [and] slipped from a Broda recliner chair twice,” P. Br. at 22), Mountain View also argues that “[i]t is conceivable that restraints could have prevented at least some of these falls, especially from bed or in her room, but restraints were not used on the ACU (nor are they ever appropriate for someone on hospice care).” P. Br. at 22-23. Mountain View also asserts that Resident 28’s care plan “included literally dozens of interventions and changes to keep [the resident] safe,” and that its “IDT did review every fall, and did reconsider both clinical and safety interventions after each fall.” Id. at 22, 23. The intervention the facility applied here – giving the resident a wheelchair with “both arms in working order” – was only reactive and did not alleviate the facility’s failure to have provided the resident in the first place with a properly functioning wheelchair. P. Br. at 22; CMS Ex. 5, at 38.

Finally, Mountain View has not shown that this fall (and the other three falls by other residents we discuss below) were unavoidable under CMS’s surveyor guidance. As the appeals court noted, that guidance (in Appendix PP to the State Operations Manual) defines an “unavoidable accident” in part as “an accident that occurred despite efforts to ‘[i]dentify environmental hazards,’ ‘[e]valuate/analyze the hazards and risks,’ ‘[i]mplement interventions, including adequate supervision, consistent with the resident’s needs, goals, plan of care, and current standards of practice in order to reduce the risk of an accident,’ and ‘[m]onitor the effectiveness of the interventions and modify the interventions as necessary, in accordance with current standards of practice.’” 832 F. App’x at 978 (quoting the guidance under “F-Tag 323” (P. Ex. 1)). Mountain View has not shown that Resident 28’s fall from the defective or broken wheelchair on February 22, 2014 was unavoidable.

For the reasons stated above, Mountain View was not in substantial compliance with section 483.25(h) in connection with Resident 28’s fall from a wheelchair on February 22, 2014 when the arm of the wheelchair gave way or came loose. Much of the analysis supporting this conclusion applies to the three falls discussed next and is not repeated.

B. The record concerning three falls by Residents 111 and 112 demonstrates that Mountain View was not in substantial compliance with section 483.25(h).

Resident 111 fell while walking on November 17, 2013, when reaching down to pull up too-big pants that had dropped below the resident’s knees, and fell again on February 8, 2014, upon stepping from a carpet wet from recent cleaning onto a tile floor; the resident was injured in both falls. CMS Ex. 1, at 63-64; CMS Ex. 6, at 13-17. Resident 112 fell on January 31, 2014 while walking near an exit door close to the nurses station, upon reaching the end of where the floor was being “redone.” CMS Ex. 9, at 12-14; P. Ex. 30, at 2.

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The SOD describes and cites each of these falls as evidence of the facility’s noncompliance with the requirements of section 483.25(h). CMS Ex. 1, at 40, 63-64, 67‑68, 87-88. Neither party disputes the accounts of the three falls. Mountain View does not assert that the falls resulted from causes other than the environmental and situational circumstances noted in the SOD and identified in the facility’s investigation documentation as causal or contributing factors: ill-fitting pants that fell, stepping onto a tile floor from a carpet wet from recent cleaning, and stepping from a floor being “redone.” These falls, moreover, were reasonably foreseeable, as in each case the facility had either intentionally created, or was aware of, the causal or contributing factor. Yet Mountain View produced no evidence of measures it took to eliminate or mitigate the accident risk posed by each contributing factor or otherwise prevent it from endangering the residents of the ACU.

Regarding Resident 112’s fall on January 31, 2014, the facility’s “Verification of Investigation” and “Post Fall Analysis/Plan” both identify floors “being redone” as the sole “Causal/Contributing Factors and Observations,” with the former adding that the resident “fell where new floor ended.” CMS Ex. 9, at 13; P. Ex. 30, at 2. The fall was apparently not witnessed, as the resident was found on the floor and could not explain what happened and “was unable to answer writer’s questions appropriately.” CMS Ex. 9, at 12, 14. The facility’s immediate intervention was to place the resident “in common area for better supervision,” and “to prevent recurrence” the facility chose “Non-skid socks” and “staff education to ensure residents are wearing non-skid socks or shoes.” Id. at 12, 13; P. Ex. 30, at 2, see also P. Ex. 30, at 3 (“IDT Review and Recommendations” of “[s]taff education to ensure residents are wearing non-skid socks or appropriate shoes”).

Compromised ACU residents face obvious, well-documented risk in navigating such changes in floor surfaces. The published journals and guidance on falls in nursing facilities and among elderly persons that Mountain View filed as exhibits include 2010 guidance from the Department of Health and Human Services’ Agency for Healthcare Research and Quality (AHRQ) that lists “uneven floors” as an example of “specific extrinsic risk factors” for falls, with “extrinsic fall risk factors” meaning environmental hazards and unsafe equipment and personal care items, factors that “can be modified by staff to decrease risk,” versus “intrinsic risk factors such as age-related changes and chronic diseases,” which “cannot be eliminated [but] can be managed in a way to reduce the resident’s risk of falling.” P. Ex. 12, at 4 (The Falls Management Program: A Quality Improvement Initiative for Nursing Facilities, Feb. 2010). Mountain View also submitted a journal article that identifies “irregular floor surfaces” as one of “[a] variety of extrinsic factors” that “are involved in falls among the elderly.” P. Ex. 8, at 4 (Falls in the Elderly, American Family Physician (Apr. 2000)).¹⁷ CMS’s surveyor guidance (in

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Appendix PP to the State Operations Manual) similarly identifies “irregular walking surfaces” as common potential hazards found in the resident environment. P. Ex. 1, at 9. The hazardous condition Resident 112 encountered on January 31, 2014, moreover, was created by the facility and thus known to it. See id. at 1 (intent of section 483.25(h) is to ensure the facility provides an environment that is free from accident hazards “over which the facility has control” and provides supervision and assistive devices to each resident to prevent “avoidable accidents”). Yet, Mountain View did not establish that it took any measures to protect the residents of its ACU from the known falling hazard it created by “redoing” or otherwise repairing the corridor floor to which those residents apparently had unrestricted access.

Mountain View’s only account of Resident 112’s fall on January 31, 2014, is that the resident “was found on the floor near the nursing station, and was unable to explain what had happened.” P. Pre-H’g Br. at 38; P. PFF No. 357. Mountain View also initially contended that “the Statement of Deficiencies does not clearly allege that any act or omission by the Center’s staff caused or contributed to any of these [i.e., Resident 112’s] falls.” P. Pre-H’g Br. at 37. Mountain View’s descriptions of the fall and the SOD ignore the SOD’s verbatim reporting of the facility’s findings, quoted above, that the floors “being redone and resident fell where new floor ended,” were the causal or contributing factors and observations. CMS Ex. 1, at 87. Mountain View has not addressed or acknowledged these findings shown in its records about Resident 112’s fall on January 31, 2014, and it did not comment on or respond to CMS’s citation of this fall as an example of how “[t]he facility failed to prevent environmental and other problems that contributed to the falls.” CMS Pre-H’g Br. at 11; see also CMS Br. at 29 (asserting that “Petitioner created environmental hazards when it replaced its flooring and left carpeting wet after deep-cleaning”).

For the reasons above, we conclude that Mountain View, in connection with the fall of Resident 112 on January 31, 2014, was not in substantial compliance with the regulation’s requirements that Mountain View “ensure that” the resident environment “remain as free of accident hazards as is possible” and that “[e]ach resident receive adequate supervision.” 42 C.F.R. § 483.25(h); see also CMS Ex. 9, at 12 (noting facility’s immediate intervention in response to the January 31, 2014 fall was to place Resident 112 “in common area for better supervision” (emphasis added)).

We further conclude that Mountain View was not in substantial compliance with the accident hazard and supervision requirements of section 483.25(h) as evidenced by Resident 111’s falls on November 17, 2013, when the resident fell when attempting to

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pull up pants that were too large and had fallen below the knees, and on February 8, 2014, when the resident fell upon stepping onto a tile floor from a carpet that was wet or damp from recent cleaning; the resident was injured in each fall. Again, each fall was associated with a known, potentially hazardous condition the facility had created, or was aware of and allowed to continue, and in each case the facility has identified no measures it took to protect the resident from those hazards.

Regarding Resident 111’s fall on November 17, 2013, the record demonstrates that facility staff was aware that the resident’s ongoing weight loss affected the fit of the resident’s clothing. Medical records identify weight loss as an issue at least as of May 2012 and document ongoing weight loss before and after the fall on November 17, 2013, including “significant weight loss” in April and July 2013. CMS Ex. 6, at 126-27, 180, 551. The Medical Director testified that “[t]owards the end of his life, [Resident 111, who died on April 1, 2014] was losing weight rapidly,” and the facility’s charge nurse testified that as the resident lost weight, “we would have to contact his daughter and try to get her to bring some smaller pants.” V5 at 41, 145. The facility’s Verification of Investigation form for the fall identifies, as the first of two causal/contributing factors or observations, “slacks were too big (had fallen below knees when resident bent over to pull slacks up, he fell).” CMS Ex. 6, at 13-14. The falling or tripping risk posed to such a resident by pants so large that they could drop below the knees is obvious, and the AHRQ guidance on falls in nursing facilities lists “[h]ard-to-manage clothing” as an example of an external risk factor for falls. P. Ex. 12, at 4.

Regarding Resident 111’s fall on February 8, 2014, the facility’s investigation determined that the resident fell after stepping from a “wet/damp” recently cleaned carpet onto a tile floor. CMS Ex. 6, at 32-35. A wet floor is a known accident hazard. The fall prevention guidance materials Mountain View entered as exhibits identify wet floors or wet areas as hazards or risk factors for falls. P. Ex. 6, at 1 (CDC guidance listing “wet floors” as one of the “[e]nvironmental hazards in nursing homes” that “cause 16% to 27% of falls among residents”); P. Ex. 12, at 4 (AHRQ falls management guidance listing “uneven floors, wet areas” among examples of extrinsic risk factors for falls). The facility was responsible for, and thus aware that the carpeted floor adjacent to the tile floor of the resident’s room was wet, as its staff had wetted the carpet while cleaning it the morning of the fall and was necessarily aware that the wet carpet was apparently adjacent to the tile floor onto which the resident stepped from the wet/damp carpet, resulting in the fall.

Mountain View’s arguments and assertions about these two falls by Resident 111 do not demonstrate that it was in substantial compliance with 42 C.F.R. § 483.25(h) and misstate or ignore the record evidence. Regarding the fall on November 17, 2013, Mountain View acknowledges that the resident’s weight loss created an ongoing need for properly-fitting clothing, but essentially denies that the pants were too large (because “the Resident’s daughter assured that he had clothes that fit properly as he lost weight,” P. Br. at 21), and

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claims the resident instead fell because the pants “had come undone,” “became undone,” “unfastened” (P. Br. at 21; P. Reply at 9), or “became unbuttoned and fell down, and he fell when he bent over to pull them up and tripped” (P. PFF No. 145 (citing CMS Ex. 6, at 13-15)), an accident that, Mountain View claimed, “hardly seems ‘foreseeable,’ much less preventable,” P. Pre-H’g Br. at 22. Mountain View thus asserts that “[t]he record does not make clear whether the Resident’s pants did not fit properly, or whether he had not fastened them,” P. PFF No. 146, and that “CMS offered no evidence regarding how the Resident’s pants became undone; or whether he actually ever wore ill-fitting clothing,” P. Reply at 9.

Mountain View’s claims that the pants became unbuttoned or undone and that CMS offered no evidence about “whether the resident ever wore” ill-fitting clothing misrepresent facility records. The facility’s contemporaneous investigation of Resident 111’s fall on November 17, 2013 found that the resident fell because the pants “were too big,” a finding that the SOD quotes in citing this fall as evidence of noncompliance with the accident prevention regulation. CMS Ex. 6, at 13-14; CMS Ex. 1, at 64. While Mountain View seeks to discount its own findings on the ground that “incident reports drafted immediately following an accident sometimes are incomplete, and typically do not include the sort of ‘root cause analysis’ Petitioner described its IDT later completing for every fall,” Mountain View has cited no evidence – none – that the resident’s pants were not ill-fitting, that the pants became unbuttoned, or that its IDT ever made such determinations or ever conducted a “root cause analysis” of this fall. P. Reply at 6 (Petitioner’s emphasis). None of the pages from CMS Exhibit 6 that Mountain View cited indicates that the resident’s pants became unbuttoned or unfastened, nor have we found any in the remainder of that exhibit – the only exhibit identified as containing records relating to Resident R111. The assertion that the pants became unbuttoned or unfastened first appeared in Petitioner’s pre-hearing brief with no citation to any evidence. The sole reference at the hearing was the Medical Director’s testimony that he could not remember whether the pants were too big or became unbuttoned. V3 at 42; but see V5 at 41 (testimony of charge nurse that R111 “wore windbreaker pants or jogging pants” and did not wear jeans). Mountain View has provided no basis to discount or disregard its own contemporaneous determination that the resident fell upon bending over to pick up “too big” pants that had dropped below the resident’s knees.

Mountain View further misstates the record in arguing more generally that this fall (and most of Resident 111’s eight or so other falls) were unavoidable, asserting that it “investigated all of these falls and found that none was even hypothetically preventable,” except for when the resident “slipped on a floor that had just been mopped, [on February 8, 2014, as discussed below] which arguably was preventable.” P. Br. at 21; see also P. Br. No. 2953, at 23 (Resident 111’s fall on November 17, 2013 was “hardly a preventable fall”); P. Pre-H’g Br. at 18 (“the unfortunate fact is that some residents just fall, no matter what interventions are tried”). Mountain View cites nothing in the records of its investigation indicating or implying that the fall on November 17, 2013 was not

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preventable, hypothetically or otherwise. See 832 F. App’x at 978 (noting that the surveyor guidance in the State Operations Manual defines an “unavoidable accident” in part as “an accident that occurred despite efforts to ‘[i]dentify environmental hazards,’ ‘[e]valuate/analyze the hazards and risks,’ ‘[i]mplement interventions, including adequate supervision, consistent with the resident’s needs, goals, plan of care, and current standards of practice in order to reduce the risk of an accident,’ and ‘[m]onitor the effectiveness of the interventions and modify the interventions as necessary, in accordance with current standards of practice’”). Mountain View has not shown that Resident 111’s fall on November 17, 2013 – or any of the other falls we discuss here – was unavoidable under that guidance.

Mountain View also has not explained why it could not have supervised Resident 111 with sufficient attentiveness to protect the resident from the ongoing, known falling hazard that his too-large pants created as the resident lost weight. Instead, Mountain View attempts to place this responsibility on the resident’s family, stating that “the Resident’s daughter assured that he had clothes that fit properly as he lost weight.” P. Br. at 21. The daughter’s assurance was apparently the only measure shown in the record that the facility took to protect Resident 111 from this known falling risk. Mountain View relied on the testimony of its Administrator and a charge nurse, but neither testified that the resident was wearing properly fitting pants at the time of the fall on November 17, 2013, such as to either provide a basis to question the facility’s finding that the resident’s pants were too big or to establish that the resident received adequate supervision. The charge nurse, moreover, cast doubt on the reliability of the resident’s family in assuring that he always had properly fitting clothing, reporting that facility staff “would have to contact his daughter and try to get her to bring some smaller pants.” V5 at 41. In any event, Mountain View cites no authority for the notion that the facility’s responsibility for adequately supervising the resident – including assuring that ill-fitting clothing did not present a hazard – ceased when shared by a family member, and its charge nurse agreed that it is the nursing staff’s obligation to ensure that residents have appropriately-fitting pants to ensure that the pants do not become a falling hazard, and to “make sure that there are no environmental hazards on the unit.” V5 at 61.

We make no findings regarding nursing facilities’ obligations to provide clothes to residents. We address solely the facility’s obligation to provide those residents with supervision adequate to prevent accidents as the regulation requires. By permitting the resident to be exposed to a known falling or tripping hazard as the resident lost weight and relying entirely on a family member to ameliorate that risk, Mountain View failed to substantially comply with that requirement.

Regarding Resident 111’s fall on February 8, 2014, Mountain View states as noted earlier that the resident “slipped on a floor that had just been mopped, which arguably was preventable.” P. Br. at 21. Mountain View instead claimed that “the evidence shows that Petitioner in fact had a policy to do so” – i.e., mop floors and shampoo carpets in a way

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that avoids slip-and-fall accidents – and “specifically assigned a housekeeper to the ACU . . . [who] did post warning placards,” but maintains that “there was no reason to believe this system was inadequate until Resident #111 did slip and fall on a wet carpet (at which point the Center’s managers immediately made operational changes).” P. ALJ Reply at 21 (Petitioner’s italics). These statements are an implicit admission that the wet carpet next to the tile floor was an accident hazard, and that facility staff should have taken measures (such as placing placards or barriers) to prevent residents from encountering the hazard.

The record does not show that Mountain View implemented a policy to place warning placards around wet-floor hazards caused by cleaning, or around other floor hazards of its own making. Mountain View claimed that its “witnesses testified that a specific housekeeper was assigned to the ACU, and that she marked wet areas with diagrams and warning signs while she worked, so that residents would not have to be removed from the ACU while it was cleaned.” P. PFF 176. Mountain View did not provide a citation for any such testimony, which does not appear in the hearing transcript (and Mountain View did not submit written testimony). The only mention during the hearing of signs or placards warning of wet floors was when one of the surveyors did not recall being told about, or shown, “signs and barriers they used when the floors were being cleaned.” V4 at 205-06. Mountain View also did not show or specifically allege that its staff placed any barriers or signs around the carpet the staff cleaned on February 8, 2014, before Resident 111 fell as a result of walking on that still-wet carpet and then onto the tiled floor of their own room. Further, Mountain View in general provided no evidence of having taken such obvious measures to prevent ACU residents like Resident 111 – who suffered from senile dementia with psychosis, was “very active,” often confused, wandered aimlessly, and often sought to exit the facility – or like Resident 112, who had little or no safety awareness and, according to staff, never looked down (V5 at 39-41, 143-46, 160) – from walking on carpets its staff wetted or from walking on floors that were being repaired or redone, as when Resident 112 fell on January 31, 2014. By intentionally creating known accident hazards in areas accessible to ambulatory ACU residents who were physically and mentally compromised, yet taking no measures to limit resident access to those hazards, Mountain View failed to ensure that the environment in which these residents lived, including the floors they traversed, was as free of accident hazards as is possible.

Mountain View does not argue that any of the just-discussed falls involving Residents 111 and 112 were unforeseeable, or explain why it could not reasonably have anticipated, prior to the occurrence of the falls, that loose clothing and floors that are wet or damp or being renovated or “redone,’ pose tripping and falling hazards to ACU residents whose conditions seriously compromise their perception and self-awareness. Mountain View thus failed to ensure that the resident environment was as free of accident hazards as is possible, or that it provided the residents with adequate supervision to prevent accidents. Mountain View does say that “nearly all” of Resident 111’s falls “occurred in locations

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and circumstances where the Center’s interventions were limited by the Resident’s demands and preferences, especially for independence and privacy.” P. Br. at 22. However, Mountain View makes no attempt to show that the resident’s falls on November 17, 2013 and February 8, 2014 occurred in such “locations and circumstances.”

Finally, we reject Petitioner’s citation of CMS’s surveyor guidance for section 483.25(h) as supporting its claim to have complied with that regulation with respect to the residents’ falls. Mountain View quotes and adds emphasis to the guidance language that “[t]he intent of this provision is to ensure the facility provides an environment that is free from accident hazards over which the facility has control and provides supervision and assistance devices to each resident to prevent avoidable accidents.” P. Br. at 12 (Mountain View’s emphasis) (internal quotation marks omitted). The facility’s records concerning those falls, however, reflect the facility’s identification of contributing factors that were within the facility’s control and which it either created (the carpet wet from being cleaned, the floor the facility was having “redone”) or was aware of and permitted to continue (pants too big following the resident’s documented, ongoing weight loss), or that arose concurrently with the facility’s failure to consistently implement its policy of inspecting assistance devices monthly (wheelchair arm failure). And, as discussed above, the record of these falls demonstrates that they were not unavoidable.

We thus conclude that Mountain View was not in substantial compliance with section 483.25(h) as evidenced by each of the falls discussed above.

C. The totality of the evidence and circumstances demonstrates that Mountain View was not in substantial compliance with the requirements of section 483.25(h) in its failure to implement measures it determined residents needed to prevent accidents.

The Board has repeatedly confirmed that a facility’s failure to implement measures it adopts in its policies and resident care plans to comply with the quality-of-care regulations at section 483.25 constitutes noncompliance. See, e.g., Lifehouse of Riverside, DAB No. 2774, at 15 (“Once a facility determines the methods appropriate for purposes of achieving section 483.25(h) outcomes, it is held to following through on them. The failure to do so, itself, may be a basis to support a finding of noncompliance.”); Azalea Court, DAB No. 2352, at 9 (a facility’s “failure to take measures that are reasonably necessary, under the circumstances, to achieve an outcome required by the regulation . . . is indeed evidence of noncompliance”); see also Fort Madison Health Ctr., DAB No. 2403, at 11 (2011) (where facility adopted an anti-elopement policy to correct immediate jeopardy, it “was responsible for ensuring that its method was effectively implemented to achieve compliance” with section 483.25).

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The rationale for this longstanding principle is, in part, that such measures “are evidence of the facility’s evaluation of what must be done to attain or maintain a resident’s ‘highest practicable physical, mental, and psychosocial well-being’ as required by section 483.25.” Lifehouse of Riverside, DAB No. 2774, at 16; see also Blossom South Nursing & Rehab. Ctr., DAB No. 2578, at 13 (2014) (“where a facility’s policies or care plans requires that specific measures be taken in caring for residents, those measures are evidence of the facility’s evaluation of what must be done to attain or maintain a resident’s ‘highest practicable physical, mental, and psychosocial well-being,’ as required by . . . section 483.25”).

The Board thus “has repeatedly held that as a general matter, a facility’s failure . . . to follow its own resident care policies, as well as the failure to provide services in accordance with a plan of care based on a resident’s comprehensive assessment, can constitute a deficiency under section 483.25.” Golden Living Ctr. – Foley, DAB No. 2510, at 23-24 (2013) (citing Lakeridge Villa Health Care Ctr., DAB No. 1988 (2005), aff’d, 202 F. App’x 903 (6th Cir. 2006)); see also The Windsor House, DAB No. 1942, at 55-56 (2004); Spring Meadows Health Care Ctr., DAB No. 1966, at 17-18 (2005).

The record here establishes instances of Mountain View failing to implement interventions in resident care plans and facility policies intended to prevent falls and protect residents. Above, we discussed how the record does not show that Mountain View implemented its policy to periodically inspect equipment, including wheelchairs, at any time prior to Resident 28’s fall when the wheelchair arm broke, or that Mountain View determined why the wheelchair arm gave way, notwithstanding its policy to investigate falls. We also observed that the record does support Mountain View’s claim that its housekeeping staff placed any warning signs or placards around floor hazards it created per facility policy (and how Mountain View’s assertions and proposed findings of fact misstate the record on that point). These failures, which contributed to the residents’ falls, constitute noncompliance with the accident prevention regulation in its care of the five subject residents.

The record also shows the following instances of Mountain View failing to implement measures it determined the residents needed, which are further evidence of its noncompliance with section 483.25(h).

1. Mountain View failed to implement the intervention of non-skid socks it ordered after Resident 112 fell on January 8, 2014.

Resident 112 fell on January 8, 2014, and was found at around 3:00 a.m. on the floor of her room in front of the bed with a shoulder against a bedside table; the resident had an old abrasion on the right knee with a scab in place but no fresh bleeding. CMS Ex. 9, at 6-11, 44-46, 51. The facility cited the resident not having “anything on feet” as a causal or contributing factor, recommended “[n]on-skid socks” as an intervention to prevent

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recurrence, and the IDT recommended that the resident was to have non-skid socks on when put to bed. CMS Ex. 9, at 6-7, 45-46. The facility also added, to the resident’s care plan, “[f]ootwear to prevent slipping – non skid socks,” to address the resident’s risk for falls. CMS Ex. 9, at 62, 70.

Resident 112 was not wearing non-skid socks on January 31, 2014, when the resident fell upon walking at the end of where the facility was redoing the hallway floor, after which the facility again listed non-skid socks as an intervention, as well as “staff education to ensure residents are wearing non-skid socks or shoes” and “ensuring staff knew that residents are to wear non-skid socks or shoes.” CMS Ex. 9, at 13; see also P. Ex. 30, at 2 (facility post-fall checklist indicating that the resident was wearing “socks,” as opposed to “gripper sock” or shoes). The SOD states that the facility advised non-skid socks as an intervention following the latter fall and notes that non-skid socks were “an intervention which was to have been implemented on January 8, 2014.” CMS Ex. 1, at 40, 87-88. Mountain View has not disputed any of this information.

Non-skid socks or footwear was thus a measure that the facility determined would best protect from the risk of falling, as required by the regulation’s directive to “ensure that . . . [t]he resident environment remains as free of accident hazards as is possible” and that each resident “receives adequate supervision and assistance devices to prevent accidents.” Mountain View’s failure after January 8 to ensure that Resident 112 wore the non-skid socks that Mountain View selected as an intervention to protect the resident from the risk of falling constitutes noncompliance with the requirement in section 483.25(h) to ensure that Resident 112 received adequate supervision and assistance devices to prevent accidents.

2. Mountain View failed to supervise Resident 28 in the dining room as per the resident’s care plan, on two occasions when the resident fell.

Resident 28 fell in the dining room, on January 13, 2014 at around 4:30 p.m., after standing up from a wheelchair and falling before staff could intervene, and on January 30, 2014 at around 9:00 p.m., after ambulating or attempting to ambulate without assistance; x-rays disclosed a left hip fracture the day after the first fall. CMS Ex. 5, at 11-15, 23, 105-06.

On January 31, the facility recommended increased supervision when the resident was “up in” a wheelchair and added “supervision while in dining room” to the resident’s care plan. CMS Ex. 5, at 23-24, 143; see also CMS Ex. 1, at 48-49 (SOD reporting, as evidence of failure to comply with section 483.25(h), the unwitnessed fall in the dining room on January 30 and that “supervision while in dining room” was added to resident’s care plan on January 31, 2014). January 31 is also the “assessment reference date” of a significant change Minimum Data Set (MDS) showing the resident required extensive

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assistance with most activities of daily living and was no longer able to stabilize herself when standing from sitting, walking, and turning around. CMS Ex. 5, at 264-66.

Mountain View did not consistently implement that care plan intervention. On March 12 and April 5, 2014, Resident 28 again fell in the dining room while unsupervised. CMS Ex. 5, at 53-55, 58, 69-75, 83. In the first fall, a video recording showed that the resident sat up at the foot of a Broda chair causing it to flip forward, and in the second fall, the resident was found on the floor in the dining room in front of a “gerichair” or “geri chair.” Id.; see also CMS Ex. 1, at 54-55, 58 (SOD reporting Resident 28’s unwitnessed falls in dining room on March 12 and April 5, 2014, as evidence of failure to comply with section 483.25(h)). The resident had redness on the right side of her head after falling on March 12, and after the April 5 fall the Resident was sent to an emergency room with a cut on the right hand and a bruise on the forehead. CMS Ex. 5, at 53-58, 69-75, 83, 142.

Mountain View’s 78 proposed findings of fact about Resident 28 do not mention supervision generally as an intervention, except for reporting one occasion when the resident was moved to a room closer to the nurses station “to enhance monitoring” after being found on the floor next to the bed with the bed alarm sounding on February 28, 2014. P. PFF 246-47. Mountain View has not disputed either that as of January 31, 2014, Resident 28’s care plan called for supervision in the dining room, or that the resident was unsupervised in the dining room prior to falling there on March 12 and April 5, 2014, as the SOD also states.

Mountain View instead downplayed supervision as an intervention to protect ACU residents from falling, referencing its Director of Nursing’s testimony to the effect that its nurses “do not and cannot regularly do close ‘one-to-one’ supervision of confused or demented residents, and that patients who require such close monitoring for more than short periods are not considered appropriate for admission to or retention on the ACU.” P. Post-H’g Br. at 14; see also V4 at 304-05; P. ALJ Reply at 16 (“Petitioner’s witnesses testified that even [if] one-to-one staffing were feasible for extended periods of time (it is not), it is not necessarily a good intervention for confused residents, as it can make them more agitated, and so residents who require that degree of supervision are not retained on the ACU.”). Mountain View similarly argued that “even if staff were to accompany every resident at every moment – which is neither feasible nor desirable – as discussed above, that would not prevent all falls.” P. Pre-H’g Br. at 42.

The Director of Nursing, however, clarified that the limitations of supervision apply to residents who need one-on-one supervision “[f]or long, extended periods, for an extended time frame,” which the nursing director defined as, “Hours, days.” V4 at 332. The instruction to supervise Resident 28 in the dining room that Mountain View added to the resident’s care plan on January 31, 2014 but failed to implement on two occasions did not call for supervision “at every moment” or for the extended periods of time that the nursing director testified were not practical or effective, but only while the resident was

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in the dining room. See V4 at 303-04 (nursing director testimony that staff members sometimes provide one-on-one care for “a certain amount of time or for a short period” of a “few minutes”). Mountain View asserts that “the record shows that the Center’s IDT did review every fall, and did reconsider both clinical and safety interventions after each fall,” P. Br. at 23, but the record contains no indication of any determination by the IDT or other facility staff that the dining-room supervision intervention instituted on January 31, 2014 was impractical, would not be effective at protecting the resident, or had been removed from the resident’s care plan. Indeed, some of the other interventions in Resident 28’s care plan were subsequently “cancelled” or “resolved,” and some bear initiation or revision dates as late as during April 2014, indicating that the care plan was current and that the intervention at issue here was still in effect when the resident fell in the dining room while unsupervised on March 12 and April 5, 2014. CMS Ex. 5, at 142-43.

Finally, as noted earlier in discussing Resident 28’s fall when the arm of her wheelchair broke and gave way on February 22, 2014, Mountain View argues, but has not shown, that nothing short of restraints could have prevented most of Resident 28’s falls, including when the resident “fell when suddenly standing twice [and] slipped from a Broda recliner chair twice,” thus encompassing the dining room falls. P. Br. at 22-23. Mountain View has not explained or addressed why supervising the resident in the dining room, consistent with the care plan, could not have protected the resident from falling in the dining room, without having to resort to using restraints.

Given the appeals court’s decision, we need not consider whether Mountain View’s failure to supervise Resident 28 in the dining room on March 12 and April 5, 2014 (or Mountain View’s efforts during these proceedings to downplay the value of supervision) indicates that Mountain View lacked sufficient staff to implement the care plan measure. That inquiry is unnecessary and beyond the scope of remand. The quality-of-care regulations in section 483.25 do not set out staffing requirements but, as discussed above, establish required outcomes and allow facilities flexibility to select methods to achieve those outcomes that are appropriate to their own circumstances and needs. See, e.g., Azalea Court, DAB No. 2352, at 9. Here, Mountain View selected increased supervision at mealtimes to achieve the required quality of care for Resident 28; its failure to implement that measure and resulting consequences further demonstrates its noncompliance with section 483.25(h).

3. Mountain View failed to provide eating assistance to Resident 111 in the dining room as per the resident’s care plan, when the resident fell.

Mountain View added “eating assistance of one” as an intervention to Resident 111’s care plan on July 19, 2012 (and again on April 10, 2014). CMS Ex. 6, at 169, 206; see id. at 482 (MDS dated Sept. 9, 2013, showing the resident needed “one person physical assist” for eating). A progress note dated November 20, 2013, states that the resident

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required set-up and one-person assist “with mealtimes d/t increased hand tremors.” Id. at 82.

On November 25, 2013, Resident 111 fell in the dining room when the nurse who was assisting him with eating left to answer a phone call across the hall, and the resident spilled milk and got up to clean the spilt milk. Id. at 18-21. The resident had a cut on his left arm and a bruise on his head. Id.

Regarding this fall, Mountain View acknowledged that “the Resident spilled milk while seated in the dining room, stood up, lost his balance and fell before staff could intervene, reopening the skin tear on his elbow” (P. Pre-H’g Br. at 22) and argued that this fall was “again, probably not preventable” (P. Br. No. 2953, at 23); but, Mountain View has not explained why assiduously implementing the intervention of eating assistance that was added to the care plan would not have prevented this fall. Again, Mountain View, by omission, selectively misrepresents the record: its 87 proposed findings of fact about Resident 111 do not mention the planned intervention of eating assistance. P. PFF 106-192.

4. Mountain View failed to provide Resident 45 with stand-by assistance for transfers or non-skid socks as per the resident’s care plan on five instances when Resident 45 fell, and failed to provide Resident 94 with the assistance in the bathroom it determined the resident required when Resident 94 fell in the bathroom on January 23, 2014.

As of July 31, 2013, Resident 45’s care plan called for “stand-by” assistance for locomotion (ambulation) and one-staff physical assistance for transfers (moving to and from a bed, chair, or standing position) “as needed”; non‑skid socks were added as an intervention on January 8, 2014.¹⁸ CMS Ex. 7, at 30, 33, 137. A December 9 MDS assessment found the resident needed two-person support for mobility, transfers, and walking in her room. Id. at 181; see also CMS Ex. 1, at 72 (SOD) (MDS showed “resident needed extensive assistance for transfer, walk in room, and locomotion on unit and limited assistance for walk in corridor”). On January 4, 2014, after the resident was found sitting on the floor near the bathroom, the facility specified non-skid socks “to prevent recurrence,” and again in the resident’s care plan on January 8. CMS Ex. 7, at 24-25, 29-30, 96; CMS Ex. 1, at 77 (SOD noting “non-skid socks were to have been implemented after the fall on January 4th”). The facility also repeatedly assessed Resident 45 as needing “max assist” and “max assist x1” with most or all activities of daily living (ADLs) from October 2013 through January 2014. See, e.g., CMS Ex. 7, at 53 (Oct. 11, 2013), 58 (Oct. 29), 60 (Nov. 2, 3), 62 (Nov. 7, 8), 63-65 (Nov. 15, 18, 22), 73-76 (Nov. 16, Dec. 25), 78-79 (Jan. 12, 17, 2014), 81 (Jan. 26).

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Mountain View consistently failed to provide the level of care it determined the resident required. Facility records document the resident falling in or near the dining room on December 6 and 8, 2013, and on February 12 and 17, 2014, after rising from a wheelchair or a Broda chair, unassisted and unattended despite the facility’s call for stand-by assistance and maximum assistance with ADLs. CMS Ex. 7, at 9, 13-15, 29, 40‑49, 51, 68-69, 86-89. The resident sustained a three-inch cut on the left elbow on December 6, and a head bruise and a cut on the left forearm on February 17. Id. at 9, 13, 45, 49. In addition, on January 10, at about 7:16 a.m., Resident 45 fell upon ambulating, again “without assistance,” and was laying on her back “when discovered” in the hallway in front of her room. Id. at 29, 32. When the resident fell on January 10, 2014, the resident was also not wearing the non‑skid socks the facility had ordered on January 4 and 8; this is apparent because non-skid socks were put on the resident as a response to that fall. Id. at 29.

Mountain View does not dispute any of this information from its records, acknowledging only that it “added non-skid socks” for the resident but not denying their absence on January 10, 2014. P. Br. at 23. While it suggested that another resident, Resident 111, did not like non-skid socks because he favored athletic shoes, Mountain View made no such representations about Resident 45. V4 at 166, 180‑81, V5 at 51-53, 151-58. Mountain View also misstated the record of Resident 45’s fall on February 12, 2014 as showing that the resident did not attempt to stand (thus presumably not triggering the requirement for stand by assistance), claiming the resident fell because she “is in a wheelchair and she slips out of the seat.” V3 at 257 (citing CMS Ex. 7, at 40). That exhibit page, however, states that the resident “stood from rocking broda chair” and that “CNA was in dining room picking up the dirty plates went to resident; resident attempted to sit back down in chair and missed her chair; resident fell to floor on her buttock.” CMS Ex. 7, at 40. This record comprises substantial evidence that the resident fell due in part to the facility’s failure to provide the level of supervision or assistance it determined the resident required.

And, as with Resident 28, Mountain View argues that “restraints arguably might have helped prevent at least some of these falls” by Resident 45. P Br. at 23; P. Post-H’g Br. at 22 (“restraints might have helped prevent at least some of these falls”). We reject that argument for the same reasons we stated above in regard to Resident 28.

Mountain View’s failure to consistently implement the interventions it determined were needed for Resident 45 constitutes noncompliance with section 483.25(h). See Guardian Health Care Ctr., DAB No. 1943 (2004) (noncompliance comprised failure to ensure resident used the geriatric chair facility had ordered for his safety and the safety of the other residents and leaving resident unsupervised or unattended).

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On January 10, 2014, the facility determined in an MDS assessment that Resident 94 required two-person extensive weight-bearing assistance for toileting. CMS Ex. 8, at 81; CMS PFF No. 89; see CMS Post-H’g Br. at 20. The facility failed to provide that level of assistance on January 23, 2024, when the resident, in one of three falls that day, fell from a wheelchair in the bathroom while being assisted by only one staff member. Id. at 21-24, 57; CMS Ex. 1, at 84. The record contains no indication that prior to that fall the facility revised its assessment that the resident needed two-person extensive weight‑bearing assistance.

For the reasons discussed earlier, these instances of Mountain View’s failure to provide the interventions, services or levels of assistance it determined residents required constitute noncompliance with section 483.25(h).

II. Mountain View was not in substantial compliance with its obligation under 42 C.F.R. § 483.75 to administer its facility “effectively and efficiently to attain or maintain the highest practicable . . . well-being” of each resident.

We next conclude, based on the record discussed above, that Mountain View was not in substantial compliance with its obligation under 42 C.F.R. § 483.75 to administer its facility “in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.”

“An administrative deficiency” under section 483.75 “is a derivative finding, based on the presence of other deficiencies.” Asbury Ctr. v. U.S. Dep’t of Health & Hum. Servs., 77 F. App’x 853, 857 (6th Cir. 2003) (affirming Asbury Ctr. at Johnson City, DAB No. 1815 (2002)). “The Board has long held that a determination of noncompliance with section 483.75 may be derived from findings of noncompliance with other participation requirements.” Vibra Hosp. of Charleston – TCU, DAB No. 3094, at 17 (2023) (collecting cites); see also Stone Cnty. Nursing & Rehab. Ctr., DAB No. 2276, at 15-16 (2009). “In other words, a determination that a facility failed to substantially comply with the administration regulation may be derived from findings that the facility was not in substantial compliance with other participation requirements.” Life Care Ctr. of Bardstown, DAB No. 2233, at 28 (2009). As the Board has “previously explained, ‘where a facility has been shown to be so out of compliance with program requirements that its residents have been placed in immediate jeopardy, the facility was not administered in a manner that used its resources effectively to attain the highest practicable physical, mental, and psychosocial well-being of each resident.’” Life Care Ctr. of Bardstown, DAB No. 2479, at 29.

Additionally, the Sixth Circuit has stated that CMS “‘needs to show that conduct supporting breaches of other regulations also supports an ‘inference’ that a facility’s

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problems were ‘systemic.’” 832 F. App’x at 981 (brackets omitted) (quoting Life Care Ctr. Tullahoma v. U.S. Dep’t of Health & Hum. Servs., 453 F. App’x 610, 617 (6th Cir. 2011)).¹⁹ The court, however, has also rejected the argument “that there be a proven ‘nexus’ between the other breaches and the facility’s administration” to show noncompliance with section 483.75, finding that “there is no such requirement.” Life Care Ctr. Tullahoma, 453 F. App’x at 617.

Mountain View argues there was no administrative deficiency because it complied with the other regulations cited in the SOD, including the accident prevention regulation at section 483.25(h). Mountain View argues that “[w]ith respect to the ‘administration’ citation, the ALJ plainly held that it was derivative of the ‘accident hazards’ citation” and that “if the latter falls, so does the former.” P. Br. at 30-31.

This argument fails because of Mountain View’s noncompliance with section 483.25(h) in connection with the resident falls discussed above and multiple failures to implement facility policies and care plan measures, each associated with those or other falls. And, as we conclude below, Mountain View’s noncompliance was at the immediate jeopardy level for causing, and placing residents at risk of, serious injury from falls. See Asbury Ctr., 77 F. App’x at 857-58 (“[S]ince the noncompliance was serious enough to place residents in immediate jeopardy, the facility was not administering its resources effectively to optimize resident well-being.”); Life Care Ctr. of Bardstown, 535 F. App’x at 472 (“Because we affirm the ALJ’s findings that the Center failed to substantially comply with the physician consultation requirement and the quality-of-care requirement, and that such non-compliance put resident health and safety in ‘immediate jeopardy,’ we also uphold the finding that the Center failed to substantially comply with the facility administration requirement” at section 483.75.). These repeated instances of failures to protect ACU residents from tripping hazards the facility created or was aware of and to implement policies and care plan measures intended to prevent falls amply support an inference that Mountain View’s failure to comply with section 483.25(h) was systemic, establishing noncompliance with the administration regulation at section 483.75.

Board decisions finding noncompliance with section 483.75 based on a facility’s violations of resident care requirements for long term care facilities in subpart B of 42 C.F.R. Part 483 support our determination that Mountain View failed to substantially comply with the administration regulation. In Brenham Nursing and Rehabilitation

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Center, DAB No. 2619 (2015), aff’d, 637 F. App’x 829 (5th Cir. 2016), the Board sustained a finding of noncompliance with section 483.75 based on the facility’s failure to timely investigate and report to state authorities the discovery of extensive bruising on one elderly resident with severe cognitive impairments as required by facility policy and section 483.13(c); staff did not do so because of their conjecture that the bruising was caused by a “blood disorder” or the sling of a Hoyer lift. DAB No. 2619, at 10-11. As the Board rejected those assertions it summarily rejected the facility’s additional argument that there was thus no deficiency under section 483.75. Id. at 15-16.

That holding applies here, where Petitioner’s failures to implement policies to inspect wheelchairs and protect ACU residents from tripping hazards it created, and to implement care plan measures, were associated with multiple falls by several residents. See Consulate Healthcare of Jacksonville, DAB No. 3119, at 23 (2023) (noting Board’s observation in Brenham that the “[l]ack of a serious investigation of possible abuse at a facility ‘evidences a serious breakdown in the implementation of its abuse and neglect prohibition and accident/incident investigation policies that posed a likelihood of further harm to . . . all other residents’”); see also, e.g., Asbury Ctr., DAB No. 1815 (noncompliance based on 483.25(h)(2) violation involving two residents who fell down stairs while restrained in wheelchairs); Ill. Knights Templar Home, DAB No. 2369, at 13‑14 (2011) (noncompliance with section 483.75 based on two incidents of resident abuse); Century Care of Crystal Coast, DAB No. 2076, at 5 n.3, 6-7 (noncompliance with section 483.75 based on noncompliance with section 483.25 for two incidents of failure to enforce smoking policy involving two residents).

Besides denying noncompliance with resident care regulations related to the residents’ falls (because according to Mountain View they were mostly unavoidable given the residents’ behaviors and absent restraints or supervision levels not provided by the ACU), Mountain View argues in effect that it complied with section 483.75 despite other resident care deficiencies. Mountain View asserts that its IDT “assessed every resident’s risk for falls, and planned and implemented interventions, in accordance with the analytic structure described in CMS’ ‘Interpretive Guideline’ to then-Section 483.25(h)(2)”; that it “evaluated possible interventions for any issue or problem, including risk for falls, in light of every other condition or issue that also may affect a resident”; and that it “addressed every incident report and fall at the next morning’s clinical startup meeting [and] sought input from nurses regarding the root cause for each fall, and potential care plan revisions.” P. Br. at 12, 17‑18. Mountain View also states that “the ALJ specifically found that there was no basis in the record for CMS to second-guess any of the Center’s IDT’s professional judgments and actions.” P. Br. at 3.

These arguments fail as well because the record does not show that the Mountain View administration’s evaluation of interventions and examinations of facts related to falls ever acknowledged the instances when facility staff failed to consistently implement care plan measures and facility policies designed to protect residents from falling risks, as well as

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providing basic supervision and attentiveness sufficient to achieve that goal. The record as discussed in the previous section shows instances of failure to inspect wheelchairs or protect residents from floor hazards the facility created, and to provide eating assistance and supervision in the dining room, assistance with transfers and ambulation in the facility, and the non-skid socks called for by resident care plans. Each of those failures are associated with a resident fall. The record also does not evince facility management and administration efforts to recognize and address those failures.

The evidence Mountain View provided to show compliance with section 483.75 includes excerpts of minutes of meetings of the QA committee (identified as the Quality Assurance Performance Improvement Committee) in March and May 2014 and guidelines for daily clinical and “stand-up” meetings (P. Exs. 13-17), and hearing testimony of its Administrator, Medical Director, Director of Nursing, MDS Coordinator, and the charge nurse. See, e.g., P. Br. at 17-19; P. Post-H’g Br. at 25-27; P. PFF 66-84, 98-105, 338, 348, 361, 365, 373, 376; P. PCL 5, 11. The exhibits contain no information about the falls discussed above or evidence that the facility management addressed the failures we discussed. The QA committee meeting minutes from March 13, 2014 do include a page with a column titled “Analysis of opportunities identified and actions taken,” with entries noting the number and location of falls for the month, and the entry “Audit to ensure interventions are in place was initiated.” P. Ex. 16, at 8. The record contains no results of that or any similar audits or evidence of self-evaluation.

The hearing testimony includes recitations of interventions the facility attempted, opinions about the effectiveness of interventions in general, accounts of the survey and the surveyors’ conduct, but does not reflect consideration of whether staff successfully implemented facility policies and care plan measures and whether such failures contributed to the resident falls. And although the “Verification of Investigation” form for Resident 111’s fall on November 17, 2013 states that the resident’s pants fell because they “were too big,” causing the fall, the Medical Director at the hearing was unaware of that determination and professed ignorance over whether the pants were too big or “came unbuttoned,” though the record as noted contains no evidence that the pants became unbuttoned. CMS Ex. 6, at 14; V3 at 42. Mountain View’s administration could not reasonably conclude that the “spike” in falls on the ACU attributed to the five residents was unavoidable when it failed to consider whether staff actions and inactions contributed to the falls. See P. Br. at 13 (“data show that [the] spike in falls relating to the five subject residents was anomalous, and that the number and rate of falls returned to a previous baseline when the five subject residents died or left the ACU”); P. PFF No. 103 (QA Committee “determined that the number of falls on the ACU fell to historical levels after certain residents who had fallen many times either died or were discharged”).

Mountain View has thus failed to demonstrate that it was in substantial compliance with section 483.75 (Tag 490). See, e.g., Life Care Ctr. of Tullahoma, DAB No. 2304, at 45 (noting ALJ’s finding that the “‘systemic failure of Petitioner’s nursing staff to comply

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with physicians’ orders and with Petitioner’s internal protocol can and should be laid at the feet of Petitioner’s management’”); Oceanside Nursing & Rehab. Ctr., DAB No. 2382, at 15-16 (2011) (agreeing with ALJ that facility’s “failure to ‘have had a system in place to assure that its residents who wore, or were supplied with, alarms had those devices checked regularly’” was “a failure of Petitioner’s management to implement policies and procedures that protect residents against staff misfeasance” and that its failure “to assure that [a resident] was in a Broda chair at all times when he was on premises and awake” was a failure by management “‘to assure that staff was properly trained to assure that the resident received the care that had been ordered for him’”).

III. Mountain View’s other arguments provide no grounds to find that it was in substantial compliance with the two regulations.

On remand Mountain View repeats several overarching arguments it made below, none of which address the facts of the several resident falls discussed earlier or failures to implement facility policies and resident care plans associated with falls.

Mountain View again criticizes the state survey, complaining that “CMS based its case entirely on the opinions of two Tennessee State Surveyors” whose “judgment was entirely subjective” as “they had never surveyed an ACU before” and engaged in subjective second-guessing of the IDT’s judgments. P. Br. at 11, 26; see also id. at 25 (alleging “a very poorly conducted survey in which the surveyors did not even purport to evaluate the evidence in terms of the enforcement criteria CMS describes in the Interpretive Guideline”); P. Reply at 3 (“the sole measure of compliance cannot be a surveyor’s subjective critique of an IDT’s professional judgments, premised only upon a post hoc observation that the interventions the IDT planned and implemented did not completely prevent resident falls”).

Mountain View misapprehends the nature of this proceeding. In an administrative appeal such as this, where the Board has stepped into the ALJ’s role as factfinder, the Board decides the noncompliance issue de novo – that is, without deference to CMS’s or the state survey agency’s factual findings or legal conclusions and based on its own evaluation of the evidence submitted by the parties. N.C. State Veterans Nursing Home, Salisbury, DAB No. 2256, at 24 (2009) (noting that the “ALJ reviews de novo whether the evidence supports CMS’s (and the State’s) determination of noncompliance)”; see also Lifehouse of Riverside, DAB No. 2774, at 13 (“[T]he ultimate question is not whether the survey was performed correctly but whether the evidence collected at the survey, along with all other evidence presented on appeal, establishes noncompliance.”); Beechwood Sanitarium, DAB No. 1906, at 44 (2004) (“[T]he appeals process is not intended to review the conduct of the survey but rather to evaluate the evidence of compliance regardless of the procedures by which the evidence was collected.”). We based the noncompliance findings above, not on the surveyors’ opinions, but on information from Mountain View’s care records, much of which, as Mountain View

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acknowledges, is repeated verbatim in the SOD. See P. Br. at 11 (complaining that “the surveyors simply copied into a Statement of Deficiencies the Center’s incident reports regarding the five subject residents’ falls”). Mountain View mostly does not dispute any of this information, and the few contrary factual allegations it offers are not supported by, and sometimes misstate, the record evidence. None of our conclusions constitute “second-guessing” of any specific, documented IDT judgment about what interventions were necessary or reasonable to mitigate residents’ assessed accident risks.

Mountain View also repeatedly cites Kisor v. Wilkie, 588 U.S. 558 (2019), which advised courts against deferring to an agency’s interpretation of its regulation that is “merely [a] convenient litigating position” (especially “a new interpretation . . . that creates unfair surprise”), including one raised in “[a]n enforcement action” that otherwise “must go through notice and comment” rulemaking.²⁰ 588 U.S. at 579, 584 (internal quote marks removed); see, e.g., P. Br. at 4, 5, 6, 8, 9 n.2, 25, 29, 31; P. Reply at 1, 2, 3, 16, 18. The appeals court cited Kisor in holding that the “obligation to consider additional staffing” that CMS (and the ALJ and the Board) applied “arose through enforcement,” in which “CMS interprets its own regulations ad hoc, for example, through litigation positions.” 832 F. App’x at 974-75. Mountain View argues that Kisor is consistent with earlier court reversals of Board decisions on the ground that, according to Mountain View, “neither the pertinent regulation nor any Interpretive Guideline . . . provided adequate notice that CMS would cite noncompliance” for the reasons the Board sustained. P. Br. at 6-8.

Mountain View’s reliance on Kisor is misplaced. Our discussion above of individual instances of noncompliance related to resident falls does not rely on ad hoc or new interpretations of the accident regulation. Rather than apply any new or ad hoc interpretation of our own (or CMS’s) creation, we have instead explained how, based on the facts in the record – mostly Mountain View’s own clinical records – Mountain View did not, as the regulation requires, provide its residents with an environment that remained as free of accident hazards as is possible or with adequate supervision and assistance devices to prevent accidents. Kisor is not implicated here.

Mountain View has principally argued that it implemented many fall-prevention interventions tailored to individual residents’ needs, conditions, and behaviors, and implemented new interventions when others were not effective, and that falls that did occur were an inevitable consequence of caring for mentally compromised yet ambulatory residents in an ACU environment where restraints were not used and residents were permitted to be active at the end of their lives. According to Mountain View, the five residents presented challenges that made falls inevitable, and its care of them prevented even more falls. See, e.g., P. Reply at 18 (citing “the challenge of

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preventing many, if not most, falls as persons age, yet try to maintain the activities of their more-vigorous youth”); P. ALJ Reply at 10 (“the evidence makes clear that Resident # 111’s decline posed significant ongoing challenges”), 25 (“[T]he interventions the Center’s staff planned and implemented prevented a number of residents who were at high risk for falls from falling even more than they did.”).²¹

Mountain View argues, for example, that the IDT “did assess each of the subject residents’ risk for falls, and did create and implement fall prevention care plan interventions . . . [and] evaluated possible interventions for any issue or problem” and that “the risk for falls, while important, was not necessarily the most pressing problem or issue a resident faced at a particular point in time, particularly at the end of life.” P. Br. at 17; see also id. at 6 (Mountain View “did do everything CMS described in its Interpretive Guideline to prevent accidents, and . . . there was no legal basis to infer a more general violation of any of the cited regulatory provisions simply because there nevertheless was an anomalous number of falls.”); CMS Br. No. 2953, at 14 (“There is no dispute that Petitioner’s staff assessed all five residents at high risk for falling; that they developed a plan (interventions), through the IDT, for each of the residents in an attempt to prevent their falling.”).

Mountain View complains that CMS has not shown “how to apply Section 483.25(h)(2) to a novel ACU whose admission criteria contemplated that its residents would be at high risk for falls, and that this risk might be tolerable in order to maintain residents’ function and dignity during their last months.” P. Reply at 7 (italics in original). Mountain View thus deems it “plausible that the IDT’s analysis and actions prevented more falls than otherwise might have occurred.” P. Br. at 33. As examples, Mountain View argues that “the evidence certainly suggests that once it became obvious that these five residents were falling more than expected, the IDT’s appropriate responses successfully limited falls by and injuries to Resident #111”; that “the IDT was successful in getting Resident #94 discharged to a more appropriate setting (even over her daughter’s [34] strong complaints)”; and that it “successfully prevented most of the five residents from suffering any serious injuries (albeit, one Resident did suffer a fracture that did not require treatment).” Id. at 33-34.

Mountain View, however, cites no authority for the notion that its liability for individual instances of noncompliance is diminished or may be ignored based on the possibility that interventions the facility did employ might have prevented residents from falling even more times, or that some (but not all) of the falls constituting the spike may not have been the result of its noncompliance (though we make no such finding).

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Nothing in the regulations or the appeals court’s decision requires CMS to identify noncompliance that accounts for all or most of the spike in falls (e.g., the reversed determination that Mountain View has insufficient staff), or bars remedies based on only individual instances of noncompliance, consistent with longstanding precedent. See, e.g., Life Care Ctr. of Bardstown, DAB No. 2479 (noncompliance at immediate jeopardy level with sections 483.25(h), 483.25.10(b)(11) (notification of changes-physician consultation), and 483.75 based on care of one resident over an eight-hour period); Burton Health Care Ctr., DAB No. 2051 (2006) (noncompliance with section 483.25(h)(2) based on one incident involving one resident). “Indeed, even one isolated instance of non-compliance having a potential for more than minimal harm may be the basis for a finding that the petitioner is not substantially complying with the applicable participation requirement.” Ridge Terrace, DAB No. 1834, at 6 (2002) (immediate jeopardy noncompliance based on several instances of medication errors involving a single resident); see also Ridgecrest, DAB No. 2493 (sustaining deficiencies under section 483.25(h) based on defective wheelchair used by one resident).

Thus, “the Board has held that a ‘single incident’ may be sufficient to establish that a facility failed to provide adequate supervision and assistance devices.” White Sulphur Springs Ctr., DAB 2520, at 14 (2013) (sustaining per-instance immediate jeopardy CMP under section 483.25(h) based on one instance of failure to supervise resident while eating as per care plan); see also 59 Fed. Reg. 56,116, 56,169 (Nov. 10, 1994) (deleting proposal “that, for a single remedy for all deficiencies to be imposed, the deficiencies must be interrelated and subject to correction by the same remedy,” and stating that CMS “may apply one or more remedies for each deficiency constituting noncompliance, or single or multiple remedies for all deficiencies constituting noncompliance”), 56,132 (“If a single resident experiences any harm, no matter how minimal, the facility will not have satisfied its statutory obligations.”).

Finally, the challenges of caring for the residents who experienced the “spike” in falls provide no bases to overlook the examples of noncompliance with the accident regulation shown by the record comprising Mountain View’s unrebutted, contemporaneous records of its care of the residents. See, e.g., The Bridge at Rockwood, DAB No. 2954, at 10-11 (“While specific resident needs, foreseeable risks, and reasonable preventive measures may vary in the multitude of situations presented in different long-term care facilities and are judged by the corresponding standards of care, the underlying regulatory responsibilities are defined no differently for secure or special units.”). The challenges Mountain View cited reflect the challenges that ACU residents faced, without the additional threats posed by defective assistance devices and falling hazards that the facility had created or was aware of and permitted to continue, and from which it failed to protect residents, and failures to consistently implement care plan measures intended to prevent falls.

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IV. CMS’s determination that Mountain View’s noncompliance was at the immediate jeopardy level is not clearly erroneous.

The “issues to be addressed by the Board on remand” include “whether CMS’s finding that the noncompliance with sections 483.25(h) and 483.75 (if any) placed residents in immediate jeopardy is ‘clearly erroneous.’” Acknowledgment at 3; see also 42 C.F.R. § 498.60(c)(2) and 832 F. App’x at 970 (“CMS’ determination as to the level of noncompliance . . . must be upheld unless it is clearly erroneous.”). The “clearly erroneous” standard “means that CMS’s immediate jeopardy determination, including the duration of immediate jeopardy, is presumed to be correct, and the burden of proving the determination clearly erroneous is a heavy one.” Consulate Healthcare of Jacksonville, DAB No. 3119, at 12 (citing Miss. Care Ctr. of Greenville, DAB No. 2450, at 15) (internal quotation marks omitted). Mountain View has not met that burden. Instead, the record shows that CMS’s immediate jeopardy determination is not clearly erroneous.

We discussed above how Mountain View’s noncompliance with the accident regulation at section 483.25(h) directly contributed to multiple falls. The five residents suffered numerous cuts, lacerations, abrasions, bruises and hematomas, including of the head, and were sent to the emergency room for evaluation of fall injuries at least six times. See, e.g., supra at 11-13, 32-35. Resident 28’s fall from the wheelchair on January 13, 2014 that followed being left unsupervised in the dining room contrary to the care plan fractured the resident’s hip; Mountain View furnished no reason or evidence to conclude that the hip fracture does not constitute “serious” injury, harm, or impairment, or that the noncompliance with section 483.25(h) did not cause injury suffered by the resident. See 42 C.F.R. § 488.301 (definition of immediate jeopardy). Mountain View’s noncompliance placed its ACU residents in immediate jeopardy.

Even absent those injuries, CMS’s immediate jeopardy determination is not clearly erroneous. A finding of immediate jeopardy does not require a finding of actual harm, only a likelihood of serious harm. Dumas Nursing & Rehab., L.P., DAB No. 2347, at 19 (2010); 42 C.F.R. § 488.301 (definition of immediate jeopardy). The CDC guidance on falls among older adults that Mountain View submitted identifies falls as the leading cause of both fatal and nonfatal injuries and the most common cause of fractures among older adults, and the most common cause of traumatic brain injuries. P. Ex. 5, at 1; see also P. Pre-H’g Br. at 6 (citing CDC guidance). The journal article Mountain View submitted similarly states that falls “are the leading cause of injury-related visits to emergency departments in the United States and the primary etiology of accidental deaths in persons over the age of 65 years.” P. Ex. 8, at 1 (Falls in the Elderly, American Family Physician (Apr. 1, 2000)); see also, e.g., Plum City Care Ctr., DAB No. 2272, at 17 (2009) (quoting ALJ’s holding, in case of noncompliance with section 483.25(h)(2) involving resident who fell from wheelchair, that the resident “by virtue of her dementia and medical conditions, is an individual who is highly susceptible to serious injury or death from falling,” that “[f]ailure to provide the resident with the protections mandated

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by regulation created a high probability that she would fall and, at the least, sustain serious injuries,” and that “even if the fall had not occurred and the resident were uninjured, the extreme level of risk – in and of itself – that Petitioner’s actions created would be enough to support a finding of immediate jeopardy”). That the five residents were not more seriously injured as a result of their many falls does not show that CMS’s immediate jeopardy determination was clearly erroneous.

Mountain View’s arguments do not support a contrary conclusion. On remand, Mountain View does not dispute the risk of harm that falls pose to SNF residents, but argues, essentially, that there was no noncompliance because the five resident’s many falls were unavoidable, and that any resultant risk of injury was similarly unavoidable and not attributable to any noncompliance by Mountain View. Mountain View argues, for example, that “there is no evidentiary or legal basis for ‘immediate jeopardy’” (capitalization, bold omitted) because “not all falls are preventable, and so it is not appropriate to draw an inference that the mere fact of a fall – or any number of falls – in itself supports an inference of noncompliance.” P. Reply at 18-19.

This argument is invalid for two reasons. First, the occurrence of an accident is not a prerequisite for finding that a facility was noncompliant with the accident prevention regulation at section 483.25(h), and that the noncompliance posed immediate jeopardy. See Ridgecrest, DAB No. 2493, at 9-11 (facility noncompliant with section 483.25(h)(1) at the immediate jeopardy level where a resident’s wheelchair had “malfunctioning brakes,” though the resident had not fallen); Vandalia Park, DAB No. 1940, at 19 (“Lack of supervision adequate to prevent accidents may be shown even where no accident has occurred.”). Second, as shown above, Mountain View was noncompliant with the accident prevention regulation (and the facility administration regulation), through its failures to ensure that residents had properly maintained assistance devices and properly fitting clothing and were shielded from floor surface hazards that the facility had created, and that residents received the level of supervision that care their plans required, and such failures did result in resident falls, as shown by the facility’s records.

Mountain View thus has not shown that CMS’s determination that its noncompliance with sections 483.25(h) and 483.75 posed immediate jeopardy to resident health and safety was not clearly erroneous.

V. A CMP of $3,600 per day is reasonable for the period of immediate jeopardy-level noncompliance.

Having affirmed CMS’s determinations that Mountain View was noncompliant with sections 483.25(h) and 483.75 at the immediate jeopardy level, we next consider “whether the amount of the per-day CMP[ ] imposed by CMS [for the immediate jeopardy period] remain[s] lawful and reasonable in light of the conclusions reached (on judicial review and remand) with respect to the underlying compliance issues.”

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Acknowledgment at 3; see also 832 F. App’x at 983 (Board on remand to consider whether violations of the two regulations are “sufficient to uphold the CMP”).

We determine de novo whether a CMP is reasonable based on the facts and evidence in the record concerning the factors specified under section 488.438. See 42 C.F.R. § 488.438(e), (f); Green Oaks, DAB No. 2567, at 16 (collecting cases). Those factors are: (i) the facility’s history of noncompliance; (ii) the facility’s financial condition; (iii) the factors specified in 42 C.F.R. § 488.404; and (iv) the facility’s degree of culpability, including but not limited to, neglect, indifference, or disregard for resident care, comfort or safety. 42 C.F.R. §§ 488.438(f). The Board has long held “that the penalty amount selected by CMS is presumptively reasonable based on those factors, and that the burden is on the SNF to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction in the penalty amount is necessary to make [that] amount reasonable.” Good Shepherd Home, DAB No. 2858, at 23 (internal quotation marks and brackets omitted) (quoting Crawford Healthcare & Rehab., DAB No. 2738, at 19 (2016)).

Here, CMS imposed a $5,800 per day penalty for 106 days of noncompliance at the immediate jeopardy level. Joint Stipulations of Undisputed Facts Nos. 6, 8, 10.²² On remand, Mountain View argues that in the event the Board affirms CMS’s determination of immediate jeopardy-level noncompliance with the two participation requirements at issue, then “all else notwithstanding, the CMP is not reasonable,” because “the fact does remain that the Court found no support for four of the six original [immediate jeopardy-level deficiency] citations upon which CMS based the CMP.” P. Br. at 34 (emphasis and capitalization omitted). CMS argues that $5,800 per day remains reasonable based on “the number of residents affected, and the gravity of Petitioner’s culpability,” and asserts that it “arguably under-imposed the CMP amount in the first place.” CMS Reply at 24-25.

We agree that the appeals court’s decision not to uphold several of CMS’s immediate jeopardy noncompliance findings that led to the initial $5,800 per day CMP warrants a reduction of the CMP here. See Ridge Terrace, DAB No. 1834, at 18 (approving reduction in CMP based on a reduction of noncompliance findings); see also Hermina Traeye Memorial Nursing Home, DAB No. 1810, at 14 (2002); and South Valley Health Care Ctr., DAB No. 1691, at 14 (1999) (both describing “the factors specified in § 488.404” that must be considered per § 488.438(f)(3) as the “the seriousness, scope, and number of deficiencies found” (emphasis added)). Accordingly, considering the

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appeals court’s reversal of four of the six immediate jeopardy-level deficiencies, representing five of seven requirements of the regulations, and based on the seriousness of those deficiencies, we conclude that a reduction of the CMP to $3,600 per day is reasonable for the period of immediate jeopardy-level noncompliance.

However, given the seriousness of the noncompliance sustained here under sections 483.25(h) and 483.75, the number of residents that were at risk and injured, and the facility’s culpability described above, including the noncompliance of facility management in connection with the pattern of violations of the accident prevention regulation, we find that any further reduction of the CMP would be unreasonable. We note that a CMP of $3,600 per day is towards the low end of the range of per-day CMPs for immediate jeopardy level noncompliance at the time the CMP was imposed. See 42 C.F.R. § 488.438(a)(1)(i) (2014) (authorizing CMP in the range of $3,050 to $10,000 per day for any immediate jeopardy-level deficiency). We further note that despite having the burden and opportunity to do so, Mountain View has not shown, through evidence or argument, that any of the other regulatory factors under section 488.438, such as the facility’s history of noncompliance and financial condition, justify a further reduction in the per-day penalty amount. Good Shepherd Home, DAB No. 2858, at 23. For all these reasons, we find a CMP of $3,600 per day is reasonable for the period of immediate jeopardy-level noncompliance.

Conclusion

Mountain View was not in substantial compliance with 42 C.F.R. §§ 483.25(h) and 483.75, at the immediate jeopardy level, from January 13, 2014 through April 28, 2014, and a CMP of $3,600 per day is a reasonable remedy for that noncompliance.

Endnotes

¹ We cite and apply the version of 42 C.F.R. Part 483, subpart B that was in effect in 2014, when the surveys supporting CMS’s enforcement action occurred. Consulate Healthcare of Jacksonville, DAB No. 3119, at 1 n.1 (2023); see also Carmel Convalescent Hosp., DAB No. 1584, at 2 n.2 (1996) (applying the regulations in effect on the date of the survey and resurvey of the facility). CMS subsequently amended the regulations by final rule issued October 4, 2016 and effective November 28, 2016. Final Rule, Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688 (Oct. 4, 2016).

² The version of SOM in effect during Petitioner’s 2014 survey can be found at https://www.cms.gov/Regulations-and-Guidance/Guidance/transmittals/downloads/R70SOMA.pdf and in Petitioner’s Exhibit 1.

³ Page numbering of the hearing transcript begins anew with each day’s transcript volume. We cite the transcript by volume and page number, e.g., V4 at 37.

⁴ We cite the parties’ opening and reply briefs on remand as “P. Br.,” “CMS Br.,” “P. Reply,” and “CMS Reply”; and add “No. 2953” for their briefs before the Board in the initial appeal of the ALJ Decision, e.g., “P. Br. No. 2953.” We cite their briefs to the ALJ with similar indicators, i.e., P. Pre-H’g Br.” for the Request for Hearing and Brief, “Post-H’g” and “ALJ,” in the absence of “H’g,” as in “P. ALJ Reply Br.”

⁵ CMS also found Mountain View not in compliance with five additional requirements at a severity level less than immediate jeopardy; Mountain View did not request ALJ review of those deficiencies, and they are not before us.

⁶ Mountain View did not challenge the DPNA and the CMP for the lower-level deficiencies. They are not before us on remand and we do not address them further.

⁷ The Acknowledgment notes that the concluding paragraph of the appeals court’s majority opinion states that the remand was to address whether CMS’s “‘findings of violations of 42 C.F.R. §§ 483.30(a) and 483.75’” are sufficient to support CMS’s finding of immediate jeopardy-level noncompliance, but that “[i]n light of the analysis and holdings” in the opinion, “the Court meant to cite section 483.25(h) instead of 483.30(a).” Acknowledgment at 3 n.2 (quoting 832 F. App’x at 983, Board’s emphasis). Neither party disputes that assessment.

⁸The 2016 revisions of the requirements for long term care facilities in subpart B of Part 483 moved the accident regulation provisions, unchanged, to section 483.25(d). 81 Fed. Reg. at 68,848, 860.

⁹ The ALJ Decision states that the surveyors did not cite the fall by Resident 111 on November 17, 2013 and another fall on March 29, 2014, but the SOD describes both of those falls, and the others listed here for these three residents, under Tag F323 as evidence of failure to meet the requirements of section 483.25(h). ALJ Decision at 22, 24; CMS Ex. 1, at 40, 52‑53, 63-64, 67-70, 87-88.

¹⁰ We state that Residents 111 and 112 fell “at least” seven and six times, respectively, because Mountain View suggests they may have fallen asleep on the floor on one or more occasions that the SOD identifies as falls, “which may not have been a fall at all,” although under its policies, “Any change of position to a lower vertical plane is considered a ‘fall’ even if the Resident does not hit the ground.” P. Post-H’g Br. at 2; P. Pre-H’g Br. at 27; P. Br. at 11, 21, 24-25; 27; see also CMS Ex. 27, at 5 (facility’s “Fall Management Clinical Guidelines,” stating, “Finding a resident on the floor or lowering/assisting a resident to the floor is considered a fall.”). In any case, there is no dispute that the five residents fell at least 40 times during the time period in question. See, e.g., 832 F. App’x at 971 (“The basis for all of the deficiencies posing immediate jeopardy was numerous unwitnessed falls, over forty during a period of four months, by five residents of Mountain View’s [ACU].”). DAB No. 2953 “refer[s] to 43 falls” versus the 45 falls CMS identified, because “the ALJ noted that surveyors did not cite two of those falls, sustained by R111 on November 17, 2013 and March 29, 2014.” DAB No. 2953, at 7 n.11. As noted above, the SOD cites both of those falls as evidence of noncompliance with section 483.25(h). Determination of the exact number of falls is not material to our analysis.

¹¹ The ALJ declined to adjudicate whether Mountain View made all reasonable efforts and took all reasonable steps to employ adequate interventions to prevent accidental falls in accordance with section 483.25(h). ALJ Decision at 48. To adjudicate that issue, the ALJ needed to determine, among other things, whether the facility implemented the interventions it had selected. See Heritage Plaza , DAB No. 2829, at 6.

¹² A change-in-condition Progress Note states that Resident 28 “had hold of the . . . handle” of the wheelchair while attempting to self-transfer and that the handle came loose after the resident “went to sit back down” in the wheelchair, and that the resident “slipped for [sic] chair to floor.” CMS Ex. 5, at 43. Neither party disputes that there was a failure of the wheelchair arm or armrest, or that “handle” refers to the arm or armrest of the wheelchair.

¹³ At the hearing, CMS counsel stated that there were “potentially five wheelchairs reflected on this document” with “safety issues” due to “[t]he armrests.” V5 at 204. CMS counsel stated that CMS received this document from Mountain View with the allegation of compliance and that CMS did not submit it as an exhibit. V5 at 226-31.

¹⁴ In finding the facility in Ridgecrest “not in substantial compliance with section 483.25(h),” the ALJ and the Board applied the requirement of paragraph (h)(1) to “ensure that each resident’s environment remained as free of accident hazards as possible.” DAB No. 2493, at 5, 11.

¹⁵ We note here that almost all the contemporaneous evidence of this fall and the others we address are from the facility’s records that CMS filed as exhibits.

¹⁶ The record indicates that Resident 28 may have been using a personal wheelchair on February 22, 2014. CMS Ex. 5, at 114 (care plan). Mountain View has not argued, nor would we find, that a resident’s use of a personal wheelchair would relieve a facility of its obligation to ensure that any wheelchair used by a resident was in proper working order.

¹⁷ The ALJ found that “the data presented or other assertions” in articles and guidance the parties submitted concerning falls among elderly people and in nursing facilities “is uncontroverted in any of the articles or by other evidence of record and is accepted as credible.” ALJ Decision at 10 n.9. Neither party has questioned the information reported in the guidance and article excerpts, and Mountain View’s Medical Director testified that the published materials Mountain View submitted (as its Exhibits 2, 3, and 5-12) set forth what Mountain View characterized as “the current standards of care for preventing falls and injuries from falls.” P. PFF No. 47; V3 at 9‑11.

¹⁸ Mountain View has not disputed the surveyor’s description of “stand by” assistance as “just standing there . . . if they need your help, you’re there” and “the help is there if they need help,” including “when she transferred from the wheelchair.” V3 at 237-38.

¹⁹ In its Tullahoma decision, the appeals court, citing the Board’s 2006 decision in Britthaven, Inc., stated that to demonstrate noncompliance with section 483.75, CMS “need show only that conduct supporting breaches of other regulations also supports an ‘infer[ence] that a facility’s problems were ‘systemic.’” 453 F. App’x at 617. In Britthaven, the Board sustained an ALJ’s finding that the SNF was noncompliant with the administration requirement in section 483.75, noting that the ALJ had “reasonably inferred that there were ‘systemic flaws in facility administration’ because Britthaven had failed to properly investigate allegations of abuse and injuries of unknown origin, failed to retain evidence of some investigations, failed to use its resources to follow its written policies concerning resident abuse, and failed to provide adequate supervision.” DAB No. 2018, at 22 (quoting DAB CR1259 (2004)).

²⁰ In contrast to such an “ad hoc statement” interpreting a regulation, the Court in Kisor cited “the agency’s authoritative or official position” (such as, for example, “official staff memoranda that were published in the Federal Register”). 588 U.S. at 577 (internal quotation marks omitted).

²¹ We earlier rejected Mountain View’s related argument that the falls we addressed were unavoidable, with the possible exception of when Resident 111 “slipped on a floor that had just been mopped, which arguably was preventable,” P. Br. at 21. In so arguing, Mountain View largely ignores or misstates the facts about those falls found in Mountain View’s contemporaneous records, and did not show that any of the resident falls were unavoidable under CMS Guidance Mountain View cited, as discussed above.

²² Mountain View does not challenge the duration of its noncompliance and, therefore, we sustain CMS’s determination that Mountain View remained at the immediate jeopardy level of noncompliance for 106 days. See Owensboro Place & Rehab. Ctr., DAB No. 2397, at 12 (2011). Thus, the issue here is the reasonableness of the per-day CMP amount, not the total accrued penalty (which is a function of the duration of noncompliance). See Kenton Healthcare, LLC, DAB No. 2186, at 28 (2008); see also Crawford, DAB No. 2738, at 20 (quoting Century Care of Crystal Coast, DAB No. 2076, at 26).