Golden Living Center – Morgantown, DAB No. 3192 (2025)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Golden Living Center – Morgantown (Petitioner), a West Virginia skilled nursing facility (facility), appeals the August 22, 2018 decision by an administrative law judge (ALJ) upholding daily civil money penalties (CMPs) imposed on Petitioner by the Centers for Medicare & Medicaid Services (CMS).  See Golden Living Ctr. – Morgantown, DAB CR5169 (2018) (ALJ Decision).  The ALJ determined that Petitioner was not in substantial compliance with the Medicare participation requirement in 42 C.F.R. § 483.13(c).  The ALJ also upheld CMS’s finding that Petitioner’s noncompliance with section 483.13(c) was at the immediate-jeopardy level of severity from March 29 through June 11, 2014.  In addition, the ALJ determined that the $3,200 per-day CMP imposed by CMS for the immediate-jeopardy period, and the $200 per-day CMP imposed for noncompliance of lesser severity from June 12 through July 30, 2014, were reasonable.  For the reasons discussed below, we affirm the ALJ Decision.

Legal Background

To participate in the Medicare program, a facility must be in “substantial compliance” with the health, safety, and other requirements specified in subpart B of 42 C.F.R. Part 483.1  42 C.F.R. §§ 483.1(b), 488.400.  The two Medicare participation requirements relevant to this case are found in 42 C.F.R. §§ 483.13(c) and 483.25.  Section 483.13(c) requires a facility to “develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.”  Section 483.25 establishes a general quality-of-care standard requiring a facility to provide each resident “necessary care and services to attain or maintain the

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[resident’s] highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.”

A facility is not in substantial compliance when it has a “deficiency” – that is, a failure to meet a Medicare participation requirement – that creates at least the potential for more than minimal harm to one or more residents.  See 42 C.F.R. § 488.301 (defining “substantial compliance” and “deficiency”).  The term “noncompliance,” as used in the applicable regulations, means lack of substantial compliance.  Id. (defining “noncompliance”).

Compliance with Medicare participation requirements is verified through onsite surveys performed by state health agencies.  42 C.F.R. §§ 488.10, 488.11(a).  A state agency reports any deficiency it finds on a form called a Statement of Deficiencies.2  Id. § 488.325(f)(1).  In addition to documenting the factual findings supporting its deficiency citations, the Statement of Deficiencies indicates the survey agency’s assessment of the “seriousness” of each cited deficiency, including whether a deficiency constitutes lack of substantial compliance.  See id. § 488.404(a).  Seriousness is a function of scope (whether a deficiency is “isolated,” constitutes a “pattern,” or is “widespread”) and severity (whether a deficiency has created a “potential for” only “minimal harm,” a potential for “more than minimal harm,” resulted in “[a]ctual harm,” or placed residents in “immediate jeopardy”).  Id. § 488.404(b).  The most severe deficiency is that which puts one or more residents in immediate jeopardy.  See id. § 488.438(a) (authorizing the highest per-day CMPs for immediate-jeopardy-level noncompliance); Woodland Oaks Healthcare Facility, DAB No. 2355, at 2 (2010) (citing authorities). “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.”  42 C.F.R. § 488.301.

CMS may impose enforcement “remedies” on a facility that is found to be out of substantial compliance.  42 C.F.R. §§ 488.400, 488.402(b)-(c), 488.406.  The types of remedies that CMS may impose include a per-day CMP for the “number of days a facility is not in substantial compliance with one or more participation requirements.”  Id. § 488.430(a).  A per-day CMP must be imposed within the ranges specified by regulation:  an upper range for immediate-jeopardy-level noncompliance; and a lower range for noncompliance below the immediate-jeopardy level of severity.  Id. §§ 488.408(d)(1)(iii), 488.408(d)(3)(ii), 488.438(a)(1).  In 2014, when CMS imposed the 

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per-day CMP here, the upper range was $3,050 to $10,000, and the lower range was $50 to $3,000.  See id. § 488.438(a)(1) (Oct. 1, 2013).

A facility may challenge the findings of noncompliance that led to the imposition of a remedy by requesting an ALJ hearing and appealing any unfavorable ALJ decision to the Departmental Appeals Board, Appellate Division (Board).  42 C.F.R. §§ 488.408(g)(1), 498.3(b)(13), 498.5(b)-(c).  When a facility appeals a CMS determination of noncompliance that led to the imposition of a CMP, the scope of ALJ and Board review is limited to considering whether a basis for imposing the CMP exists and whether the amount of the CMP is reasonable.  See id. § 488.438(e), (f); Capitol Hill Cmty. Rehab. & Specialty Care Ctr., DAB No. 1629, at 2-3 (1997).

Case Background

Petitioner is located in Morgantown, West Virginia.  ALJ Decision at 2 (citing CMS Ex. 1, at 1).  From June 2 through June 17, 2014, the West Virginia Department of Health and Human Resources (survey agency) surveyed Petitioner to verify its compliance with Medicare participation requirements.  Id.

Shortly after the survey, the survey agency issued a Statement of Deficiencies containing nine citations of noncompliance, denoted by survey tags F157, F224, F225, F282, F309, F319, F323, F490, and F520.  See CMS Ex. 1, at 1, 6, 21, 29, 38, 46, 56, 73, 77.  Relevant here are tags F224 and F309, which include findings concerning two residents:  Resident 13 and Resident 71.  Id. at 6-8, 15, 38-39.

Under tag F224, the survey agency cited Petitioner for noncompliance with 42 C.F.R. § 483.13(c). CMS Ex. 1, at 6.  The survey agency found the cited noncompliance “evidenced by” Petitioner’s failures to:  (1) investigate the source of an injury – pain and swelling in or around the left thigh – to Resident 13 and to report that injury to the resident’s physician and therapists; and (2) develop, implement, and reassess “intervention strategies” to prevent Resident 71 from engaging in “abusive behavior” – specifically, running into other residents with an electric-powered wheelchair.  Id. at 6-8.

Regarding Resident 71, the surveyors specifically found noncompliance concerning “resident to resident” abuse, stating that Petitioner “failed to develop and implement intervention strategies to prevent occurrences, failed to monitor for changes that would trigger abusive behavior, and failed to reassess interventions on a regular basis.”  Id. at 6-7.  The surveyors found that Resident 71 “was known to hit other residents with her power wheelchair,” and that Petitioner “failed to ensure implementation of effective measures to ensure the resident did not pose a risk to other residents.”  Id. at 8.  These concerns, the surveyors noted, “had the potential to affect all residents living in the facility.”  Id.

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Under tag F309, the survey agency cited Petitioner for noncompliance with 42 C.F.R. § 483.25 in addressing pain and swelling to Resident 13’s left thigh, conditions documented in a March 29, 2014 nursing note.  CMS Ex. 1, at 24, 38, 45, 82; CMS Ex. 11, at 35.  The survey agency found Petitioner noncompliant with section 483.25 because its staff failed to report these conditions to Resident 13’s physician in a timely manner, failed to communicate them to the resident’s therapists, and “fail[ed] to attempt to identify the cause of the injury.”  CMS Ex. 1, at 38-39, 41.  The source of the injury turned out to be bilateral hip fractures, as shown by an April 2, 2014 CT scan.  Id. at 42; CMS Ex. 13, at 4-8.

As reported in the Statement of Deficiencies, Resident 71 hit other residents with her electric-powered wheelchair on February 15, 2013, August 18, 2013, January 16, 2014, April 28, 2014, and May 26, 2014.  CMS Ex. 1, at 16-18.  The Statement of Deficiencies describes the last three of the five incidents as “deliberate” “ramming” incidents.  Id. at 18.  The May 26, 2014 incident – during which Resident 71 rammed her wheelchair into Resident 20’s wheelchair and knocked Resident 20 out of his wheelchair onto the ground – resulted in Resident 20 “bump[ing] his head and sustain[ing] a skin tear” for which he was sent to the emergency room.  CMS Ex. 22, at 8; see also CMS Ex. 1, at 15, 17.

The administrator further confirmed during the survey interview that:

• There was “long-term evidence of ongoing concern regarding safety issues related to aggressive behavior towards other residents by Resident #71” (CMS Ex. 1, at 20);
• “[S]taff were aware of these concerns,” but “no systematic assessment, consultation, or dialogue with outside professionals or the family was attempted in order to ensure other residents’ safety until the injury to Resident #20 on May 26, 2014” (id.);
• Many of the care-planned interventions instituted by Petitioner to address Resident 71’s aggressive behavior “were simply impractical or inconsequential” (id.);
• “[E]fforts toward ensuring [Resident 71’s] continued safe use of [an electric-powered wheelchair] should have begun as early as 2009” (id. at 21); and
• “[T]he facility had no means of assessing safe use of power wheelchairs in place for the four (4) residents currently using them” (id.).

The survey agency determined that Petitioner’s noncompliance with sections 483.13(c) and 483.25 – as evidenced by the findings concerning Resident 13 – was at the immediate-jeopardy level of severity.  See CMS Ex. 2, at 1 (indicating that the “situation [involving Resident 13] was investigated for” and found to “represent immediate jeopardy”).  The survey agency informed Petitioner’s administrator of its immediate-jeopardy finding at 2:45 p.m. on June 11, 2014.  CMS Ex. 1, at 14, 39; CMS Ex. 2, at 1.  Later that day, Petitioner submitted a plan to abate the immediate jeopardy as well as written evidence that corrective action specified in that plan (including staff retraining)

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had been taken.  CMS Ex. 1, at 15, 39; CMS Ex. 2, at 2, 5.  (The abatement plan, called an “Allegation of Compliance,” described measures addressing the survey agency’s findings concerning Resident 13, but not Resident 71.  See CMS Ex. 2, at 5-6.)  Based on the abatement plan and its own observations, the survey agency determined that Petitioner had abated residents’ immediate jeopardy and notified Petitioner of that finding at 5:40 p.m. on June 11, 2014.  Id. at 2.

In a letter dated July 21, 2014, the survey agency recommended to CMS that it impose a $3,050 per-day CMP for the period from March 29 through April 1, 2014 as a remedy for Petitioner’s immediate-jeopardy-level noncompliance.  CMS Ex. 3, at 1.3  The survey agency simultaneously informed Petitioner of its obligation to submit a plan of correction addressing the citations of non-immediate-jeopardy-level noncompliance resulting from the June 2014 survey.  Id. at 2-3.

Petitioner submitted its plan of correction on or about July 31, 2014.  CMS Ex. 1, at 1.  Among other things, the plan indicates that Petitioner removed Resident 71 from her electric-powered wheelchair on June 12, 2014 (the day after Petitioner submitted its plan to remove the immediate jeopardy).  Id. at 7.

On August 13-14, 2014, the survey agency performed a revisit survey and determined that Petitioner had returned to substantial compliance with all participation requirements as of July 31, 2014.  CMS Ex. 8.

On August 19, 2014, CMS notified Petitioner that it was imposing CMPs based on the June and August survey findings.  CMS Ex. 6.  CMS preliminarily noted that the “most serious deficiencies” found by the survey agency were the ones cited under tags F224 and F309 at the immediate-jeopardy-level of severity.  Id. at 1.  Based on those deficiencies, CMS imposed a $3,200 per day CMP effective March 29 through June 11, 2014 – finding that June 11th (not April 2nd, the date recommended by the survey agency) was the date “the immediate jeopardy situation was abated.”  Id. at 1-2.  CMS also imposed a $200 per-day CMP for the period of non-immediate-jeopardy-level noncompliance (June 12 through August 13, 2014).  Id. at 2.

Petitioner timely requested an evidentiary hearing before an ALJ to challenge CMS’s enforcement action.  In accordance with the ALJ’s instructions, the parties made pre-hearing exchanges, which included proffers of documentary evidence and written direct

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testimony concerning both Resident 71 and Resident 13.4  ALJ Decision at 2-3.  During a subsequent pre-hearing conference, Petitioner indicated that it was not contesting the seven non-immediate-jeopardy-level deficiency citations (under tags F157, F225, F282, F319, F323, F490, and F520) and conceded that those citations supported:  (1) a finding that it was not in substantial compliance with Medicare participation requirements from March 29 through July 30, 20145; and (2) the imposition of a CMP of at least $200 per day during that period.  Id. at 3; see also Nov. 16, 2016 Order & Summ. of Preh’g Conf. at 1-2.  In light of those concessions, the ALJ determined that the “issues remaining for hearing” were:

(1) whether Petitioner was out of substantial compliance with 42 C.F.R. §§ 483.13(c) (tag F224) and 483.25 (tag F309) from March 29 through June 11, 2014;

(2) assuming Petitioner was noncompliant with those regulations, whether CMS clearly erred in finding that the noncompliance was at the immediate-jeopardy-level of severity; and

(3) whether the $3,200 per day CMP imposed by CMS for the period of immediate-jeopardy-level noncompliance (March 29 through June 11, 2014) is reasonable.

ALJ Decision at 4; Nov. 16, 2016 Order & Summ. of Preh’g Conf. at 3.

On January 24 and January 25, 2017, the ALJ conducted a hearing by videoconference.  At the outset of the hearing, the ALJ admitted CMS Exhibits 1 through 27 and 29, and Petitioner’s Exhibits 1-27, without objection.6  ALJ Decision at 3.  The parties then cross-

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examined each other’s witnesses whose written direct testimony had been offered and admitted.  Id.  After the hearing, the parties submitted post-hearing briefs.  Id. at 4.

In its post-hearing brief, CMS asserted that it “properly found immediate jeopardy and imposed a CMP because Petitioner failed to implement its anti-abuse policies” by, among other things, failing “to take necessary measures to prevent Resident 71 from assaulting other residents with her power wheelchair.”  CMS Post-Hr’g Br. at 1.  CMS contended that the evidence concerning Residents 71 and 13 showed that Petitioner was noncompliant with 42 C.F.R. §§ 483.13(c) and 483.25 during the period for which the challenged CMP was imposed.  Id. at 1-2.  In particular, CMS contended that Petitioner had violated section 483.13(c) by failing to take “necessary” or effective measures to “prevent [Resident 71] from assaulting other residents with her power wheelchair.”  Id. at 1-2, 18-19 (asserting that Petitioner “provided ineffective care plan interventions” to prevent Resident 71’s “dangerous, impulsive” or “aggressive” behavior toward other residents, and that its “failures” to manage Resident 71’s behavior with the electric-powered wheelchair “constitute failure to implement its policies to prevent abuse and mistreatment of its residents”).  In addition, CMS contended that Petitioner’s response to the March 29, 2014 report of Resident 13’s left leg pain and swelling violated the quality-of-care standard in section 483.25, and that Petitioner also violated sections 483.13(c)(2) and 483.13(c)(3) by failing to investigate Resident 13’s hip fractures as possible consequences of abuse, neglect, or mistreatment.  Id. at 1-2, 9-11.  CMS further contended that its noncompliance findings regarding both residents were at the immediate-jeopardy-level of severity, and that $3,200 per day was a “reasonable” CMP for that noncompliance.  Id. at 22-24.

Petitioner submitted a post-hearing brief contending, among other things, that CMS failed to make “even a prima facie case of noncompliance or ‘immediate jeopardy’” based on the evidence concerning Resident 71 or Resident 13.  P. Post-Hr’g Br. at 2, 25.  Referring to Resident 71’s wheelchair-bumping incidents, Petitioner asserted that “all of the Resident’s resident-to-resident altercations occurred in circumstances where it was impossible or impracticable for staff to intervene,” and that “no regulation requires that nursing facilities accomplish the impossible result of assuring that no unwanted behaviors (or consequences) ever occur.”  Id. at 15, 24.  Petitioner also asserted that the plan of care it instituted for Resident 71 “appropriately balanced” Resident 71’s need for autonomy and other residents’ need for safety.  Id. at 2, 24.  Both parties were permitted to, and did, file a reply in response to the post-hearing brief of the other party.

The ALJ’s Decision

Finding it necessary to consider “only . . . the example of Resident 71” in deciding whether Petitioner was noncompliant with 42 C.F.R. § 483.13(c) (Tag F224), and that whether Petitioner complied with 42 C.F.R. § 483.25 (Tag F309) was immaterial to the outcome of the case, the ALJ sustained the $3,200 per day CMP based on CMS’s claim

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that Petitioner had violated section 483.13(c) by failing to take necessary or effective measures to prevent Resident 71 from deliberately striking other residents with her electric-powered wheelchair.7  See ALJ Decision at 1, 6 n.7, 16 n.16.  In reviewing the evidence for that claim, the ALJ first found that Resident 71 had “exhibited behavioral problems at least as early as 2009,” when Petitioner temporarily prohibited her from using an electric-powered wheelchair “at least in part due to impulsive, dangerous behavior.”  Id. at 6.  The ALJ further found that Petitioner had “updated Resident 71’s care plan [in May 2012] to include a focus on . . . behaviors which include[d] [b]umping into other people with the power wheelchair,” id. (internal quotation marks omitted), and that “[t]he goal of the [resident’s] care plan” at that time was “for Resident 71’s ‘behavior [to] stop with staff intervention to decrease [her] episodes to less than monthly thru the next review,’” id. at 7 (quoting CMS Ex. 16, at 54).  In addition, the ALJ found that Petitioner had updated Resident 71’s care plan for appropriate interventions at least two more times, in July and August 2012, to include reminding Resident 71 that her actions could hurt others and keeping Resident 71 away from the middle of hallways and lobbies due to concerns about the safety of other residents.  Id. at 7 & 7 n.9 (citing CMS Ex. 16, at 54).

The ALJ then reviewed documentation of at least five incidents from February 2013 through May 2014 – including the May 26, 2014 incident mentioned earlier – in which Resident 71 used her electric-powered wheelchair to bump, hit, or run into other residents.  ALJ Decision at 7-9.  The ALJ found that after the May 26, 2014 incident, Petitioner twice updated Resident 71’s care plan – on June 2 and June 6, 2014 – and that Petitioner “removed Resident 71 from her motorized wheelchair on June 12, 2014, and placed her in a manual wheelchair.”  Id. at 10.

Based on the findings just outlined and the following analysis, the ALJ concluded that Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(c):

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On at least five separate occasions (from February 2013 through May 2014), Resident 71 intentionally used her wheelchair to run into or even ram other residents.  The record is silent as to the effect this had on some of the residents, but on one occasion the facility documented that a resident (Resident 20) was physically harmed (sustaining skin tears and a bump to his head) by Resident 71’s aggressive behavior.  This behavior fits the identical definitions of abuse provided in the regulations and in Petitioner’s own anti-abuse policy – Resident 71 was using her wheelchair willfully to inflict injury on other residents, leading in at least one instance to actual physical harm.  Yet, despite section 483.13(c)’s clear mandate that Petitioner develop written policies and procedures prohibiting abuse and Petitioner’s own anti-abuse policy requiring it to “take appropriate steps to prevent . . . abuse,” its care plan for Resident 71 provided only for limiting her “episodes” of intentionally running her wheelchair into other residents “to less than monthly[.]”  As CMS correctly points out, this “‘goal’ of limiting these incidents to [less than] once a month demonstrates Petitioner’s tolerance of abuse towards its residents.”  Despite occasionally adding interventions to Resident 71’s care plan after episodes of this abusive behavior, there is no evidence that Petitioner ever modified the goal of the care plan to prohibit her abusive behavior outright – even after an escalating series of incidents that culminated in her knocking over another resident and causing him to bump his head on the floor and suffer skin tears.  On its face, therefore, Petitioner’s care plan for Resident 71 violated 42 C.F.R. § 483.13(c), which led to one resident suffering actual harm and placed potentially all of Petitioner’s other residents at risk of similar, more than minimal harm.

However, even assuming that Petitioner’s care plan for Resident 71 was adequate to satisfy Petitioner’s obligation to develop policies prohibiting abuse, Petitioner failed to implement the care plan effectively to prevent her from abusing other residents.  On January 17, 2014, Petitioner updated Resident 71’s care plan to initiate the following intervention:  “encourage resident to utilize bell on her [wheelchair] to alert staff that she needs assistance.  When a potential confrontation may occur . . . staff to redirect her behavior and staff will intervene to ensure residents are kept safe.”  Given Resident 71’s demonstrated history of at least attempting to abuse other residents by hitting them with her wheelchair, this intervention clearly was a step Petitioner thought appropriate to prevent abuse, in conformity with its anti-abuse policy.  Yet it does not appear that Petitioner ensured its staff was familiar with this intervention.  The incident on May 26, 2014 began as a “potential confrontation” when Resident 20 bumped his wheelchair into Resident 71’s wheelchair.  But when Resident 71 rang her bell and got the attention of a staff member, the staff member did not

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redirect Resident 71 or intervene to ensure Resident 20 was kept safe.  Instead, she merely walked towards Resident 71 until she saw Resident 20 begin to move away, then walked away after telling Resident 71 that “it would be ok.”  Only moments later, Resident 71 “rammed her wheelchair into [Resident 20’s] wheelchair[,] knocking him over [and] causing him [to] hit his head on the ground.”  Thus, Petitioner failed to implement its anti-abuse policies effectively to prevent Resident 71 from abusing other residents, including Resident 20, which caused actual harm to Resident 20 and placed Petitioner’s other residents at risk of similar, more than minimal harm.

ALJ Decision at 10-11 (record citations and footnotes omitted).

The ALJ rejected Petitioner’s arguments that it substantially complied with 42 C.F.R. § 483.13(c), including its suggestion that Resident 71’s wheelchair-bumping incidents were unpreventable, finding that “[i]t was neither impossible nor impracticable for staff to intervene in the May 26, 2014 incident, had the staff member who witnessed the outset of the altercation followed Resident 71’s care plan.”  ALJ Decision at 11.  The ALJ also rejected Petitioner’s assertion that Resident 71’s action did not harm other residents, noting that Petitioner’s own records show that Resident 71’s actions harmed Resident 20.  Id. at 12.  The ALJ further found that even if Resident 20 sustained no harm on May 26, 2014, “that fact would be irrelevant” and Petitioner “would not be absolved of its noncompliance” with section 483.13(c) because Petitioner was required to protect its residents from harm that could have been inflicted on them by Resident 71, who had long and repeatedly demonstrated a propensity to physically engage with other residents using her power mobility device.  Id. at 11-12.

The ALJ also considered Petitioner’s arguments that its interdisciplinary team’s (IDT’s) assessments of Resident 71’s use of her electric-powered wheelchair and interventions put into her care plan to address Resident 71’s behavior adequately balanced her need and right to be independent and autonomous to the extent possible with other residents’ right to be free from abuse by Resident 71, and that Petitioner successfully implemented Resident 71’s care-planned goal of reducing the frequency of her misuse of her electric-powered wheelchair to less than once a month.  ALJ Decision at 12.  The ALJ rejected these arguments as “unpersuasive and ultimately irrelevant” because the IDT’s care plan “explicitly sanctioned resident-on-resident abuse, so long as it occurred less often than monthly,” which is inconsistent with section 483.13(c), which “does not permit a facility to tolerate resident-on-resident abuse, regardless of whether the facility is ‘successful’ in limiting the frequency of such episodes” and, accordingly, the care plan did not adequately balance Resident 71’s needs and rights with those of other residents.  Id. (citing CMS Ex. 16, at 54).  “[T]hat aside,” the ALJ continued, “Petitioner’s staff failed to maintain that care-planned balance of resident needs and rights by failing to implement the interventions initiated by the IDT in Resident 71’s care plan.”  Id.

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The ALJ also rejected Petitioner’s argument that the governing regulations do not require long-term care facilities to ensure that no adverse consequences ever arise from resident-to-resident altercations as having merely “surface appeal” and “serv[ing] only to distract from the real issues in this case.”  ALJ Decision at 12-13.  The ALJ stated:

Just because it is not possible to prevent all altercations between residents does not mean that a facility should permit, as a matter of policy, some number of altercations, so long as they occur infrequently enough (e.g., less than monthly, as in this case).  Moreover, even within the confines of Petitioner’s care plan for Resident 71, Petitioner did not prevent resident-to-resident altercations “to the extent possible,” given that Petitioner’s staff might have prevented the May 26, 2014 altercation between Resident 71 and Resident 20 had they implemented the interventions the IDT identified as necessary to limit Resident 71’s behaviors.

Id. at 13 (quoting P. Pre-Hr’g Br. at 20).

Summing up her analysis, the ALJ stated that as of March 29, 2014, Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(c) because it “tolerated foreseeable resident-on-resident abuse” by Resident 71, stating that her conclusion was justified “[w]hether this case is viewed through the lens of failure to develop adequate anti-abuse policies and procedures or of failure to implement such policies and procedures.”  ALJ Decision at 5, 10.  Applying the clearly erroneous standard, the ALJ also upheld CMS’s finding of immediate jeopardy, stating that “[t]he facts belie[d]” Petitioner’s contention that its noncompliance with section 483.13(c) was not “likely to cause” serious harm to the facility’s “fragile elderly residents.”  Id. at 13-16.

The ALJ further determined that the $3,200 per-day CMP imposed by CMS for noncompliance was “reasonable in amount and duration.”  ALJ Decision at 16-19 (italics added).  Regarding the daily CMP amount of $3,200, which the ALJ stated was “near the bottom of the immediate jeopardy range,” the ALJ found that Petitioner had not identified any regulatory factor warranting a reduction, that she could have sustained the daily penalty “[f]or that reason alone,” and that the “regulatory factors of seriousness and culpability amply support” the penalty in any event.  Id. at 17-18.  The ALJ also found that “[t]he record . . . supports the reasonableness of the duration of the immediate jeopardy level CMP” because the “facial deficiency” in Petitioner’s care plan (namely, its failure to set a goal of preventing all abusive behavior by Resident 71) “should have been plain . . . no later than March 29, 2014” because the care-planned intervention that Petitioner failed to implement in connection with the May 26, 2014 incident (redirecting Resident 71 in the event of a potential confrontation with another resident) had been part of Resident 71’s care plan since January 2014 – long before the start-date of the challenged CMP.  Id. at 18-19.  Furthermore, Petitioner “presented no evidence that, prior

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to June 12, 2014, it effectively implemented Resident 71’s care plan by, for example, (re)training all staff on the interventions listed to ensure they would implement those interventions when necessary.”  Id.

Finally, the ALJ considered but rejected two ancillary contentions by Petitioner in its pre-hearing brief:  first, that the allocation of evidentiary burdens in this case violated the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., and deprived Petitioner of due process; and second, that Petitioner was deprived of due process and subjected to enforcement action in violation of the Medicare statute because Board decisions do not require CMS to submit evidence of the factors it considered in choosing what remedy to impose.  ALJ Decision at 19; P. Pre-Hr’g Br. at 24-25.  The ALJ saw “no reason to upset the allocation of the burden of persuasion as described by the panels of the [Board]” because the ALJ was “satisfied that CMS established a prima facie case of noncompliance by a preponderance of the evidence and Petitioner has not rebutted the CMS case by a preponderance of the evidence or established an affirmative defense.”  ALJ Decision at 19.  The ALJ moreover “perceive[d] no prejudice to Petitioner” from the fact that CMS was not required to submit evidence about how it considered the regulatory factors in 42 C.F.R. §§ 488.404 and 488.438(f) in deciding what remedies to impose or in setting the daily CMP amount.  Id.

Standard of Review

In general, Board review of an ALJ’s decision is limited to determining whether or not: (1) factual findings in the decision are supported by “substantial evidence” in the record as a whole; (2) the decision’s necessary legal conclusions are correct (that is, are consistent with applicable statutes and regulations); and (3) a “prejudicial error of procedure . . . was committed.”  See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s Participation in the Medicare and Medicaid Programs (“Board Guidelines”), “Completion of the Review Process,” ¶ (c), (available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/participation/index.html).

“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).  “The ‘substantial evidence’ standard is deferential.”  Glenoaks Nursing Ctr., DAB No. 2522, at 6 (2013).  “Under the substantial evidence standard, the Board does not re-weigh the evidence or overturn an ALJ’s choice between two fairly conflicting views of the evidence; instead, the Board determines whether the contested finding could have been made by a reasonable fact-finder taking into account whatever in the record fairly detracts from the weight of the evidence that the ALJ relied upon.”  Douglas Bradley, M.D., DAB No. 2663, at 5 (2015) (internal quotation marks and brackets omitted); see also Golden Living Ctr. - Frankfort, DAB No. 2296, at 9-10 (2009), aff’d, 656 F.3d 421 (6th Cir. 2011).

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Analysis

Broadly speaking, Petitioner challenges the ALJ Decision on two fronts.  Petitioner first challenges, with numerous arguments, the ALJ’s conclusion that Petitioner was noncompliant with 42 C.F.R. § 483.13(c) (tag F224) at the immediate-jeopardy level of severity, and that CMS imposed a reasonable per-day CMP for the duration of that noncompliance.  Second, Petitioner challenges the ALJ’s determination not to reach and decide, in Petitioner’s favor, a compliance issue relating to Resident 13 – namely, whether Petitioner’s response to the resident’s pain and swelling (observed in late March 2014) violated 42 C.F.R. § 483.25 – asserting that resolution of that issue is necessary to support the challenged remedy.  Petitioner requests that we address that issue and find that CMS failed to make a prima facie showing of noncompliance with section 483.25.

We first consider contentions concerning the ALJ’s conclusion that Petitioner was not in substantial compliance with section 483.13(c).  That conclusion, and its subsidiary factual findings, are supported by substantial evidence in the record and adequately support a conclusion that the noncompliance posed immediate jeopardy to resident health and safety, warranting the imposition of a reasonable per-day CMP of $3,200 for the duration of the immediate-jeopardy period.

We also determine that the ALJ did not err in confining her analysis to the alleged noncompliance with section 483.13(c).  Because Petitioner’s immediate-jeopardy-level noncompliance with section 483.13(c) alone supports the imposition of the $3,200 per-day CMP, the ALJ did not need to reach the issue of whether Petitioner also failed to comply substantially with section 483.25.  We reject Petitioner’s numerous arguments attempting to persuade the Board otherwise, as they identify no error requiring the Board to modify the ALJ Decision or to remand the case to the ALJ for further proceedings.  We therefore affirm the ALJ Decision.

I. Petitioner has identified no basis to disturb the ALJ’s conclusion that it was not in substantial compliance with 42 C.F.R. § 483.13(c).

As indicated in the case background, the ALJ concluded, based on detailed factual findings, that Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(c) as of March 29, 2014, because it had not established or implemented policies or procedures to prevent incidents of Resident 71 ramming or running into other residents with an electric-powered wheelchair.  In reaching that conclusion, the ALJ found that Petitioner “tolerated” foreseeable acts of “abuse” by Resident 71 toward other residents so long as the abuse occurred less than monthly.  ALJ Decision at 5.  Petitioner objects to the ALJ’s conclusion on various grounds, but none of its objections demonstrates that the conclusion is legally erroneous or not supported by substantial evidence.

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As a threshold matter, Petitioner suggests that the alleged noncompliance with 42 C.F.R. § 483.13(c) concerned “neglect” of Resident 13, not resident-on-resident “abuse” perpetrated by Resident 71, but that the ALJ improperly assessed the section 483.13(c) deficiency as arising from resident-on-resident abuse and improperly found that Resident 71 had committed “willful abuse” with her electric-powered wheelchair.  Petitioner’s Request for Review (RR) at 3, 13, 14, 24, 25 n.15, 26, 27; see also id. at 35-36 (stating that the ALJ “did not address” CMS’s allegation of neglect, which “was a stretch at best” and suggesting the ALJ “decided, without reference to any evidence regarding any standard of care, that [Resident 71’s] behavior was ‘willfully abusive’”).  The ALJ never used the term “willful abuse,” however, and we reject any implication that the term states an applicable standard.  The applicable Medicare definition of abuse is found in 42 C.F.R. § 488.301.  Section 488.301states that “abuse” is a “willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  The ALJ properly considered that definition and correctly found that it covered Resident 71’s behavior.  See ALJ Decision at 10.  In particular, the ALJ found that Resident 71’s “behavior fit[ ] the identical definitions of abuse provided in [42 C.F.R. § 488.301] and in Petitioner’s own anti-abuse policy” because “Resident 71 was using her wheelchair willfully to inflict injury on other residents, leading in at least one instance to actual physical harm.”  Id.

Petitioner asserts that a finding that Resident 71 “‘intended to inflict injury’ . . . seems a stretch, as the various incidents illustrate impulsive responses by a confused woman who could not speak to other residents who were taking food from her plate or things from her room, bumping into her wheelchair, and the like.”  RR at 26 (italics added).  But the ALJ did not find that Resident 71 subjectively “intended” to injure other residents, and the Board has held that “the term ‘willful’ as used in the applicable definition of abuse does not require that the perpetrator intend[ ] to injure or harm the victim, but only that the action be deliberate and not inadvertent or accidental.”8  Honey Grove Nursing Ctr., DAB No. 2570, at 5 (2014), aff’d, 606 F. App’x 164 (5th Cir. 2015); see also Consulate Healthcare of Jacksonville, DAB No. 3119, at 14 (2023).  Petitioner does not dispute that Resident 71’s repeated acts of running into other residents with an electric-powered wheelchair were deliberate.  And, there is no evidence that any of the incidents were inadvertent or accidental.  We therefore do not disturb the ALJ’s finding that those acts constituted abuse within the meaning of the applicable regulation.

Petitioner contends that there is “no support at all in the record” for the ALJ’s finding that it “‘tolerated’ ‘foreseeable resident-on-resident abuse.’”  RR at 26; id. at 36 (similar

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assertion).  However, that finding is neither unfounded nor irrational given the number of documented incidents of abusive conduct by Resident 71 (at least five) and the considerable (15-month) span of time over which the incidents occurred.  See ALJ Decision at 7-9, 10-11.  Moreover, Petitioner failed to show it had a credible legal or other justification for failing to establish a goal of preventing all such incidents and instituting measures calculated to meet that goal despite its awareness of Resident 71’s propensity to use her electric-powered wheelchair to express displeasure about the actions of, or perceived slights or offenses against her by, other residents.  See id.; CMS Ex. 16, at 54 (establishing facility goal to “decrease” Resident 71’s wheelchair incidents to “less than monthly”).9

Petitioner asserts that its IDT “consistently” assessed and re-assessed Resident 71’s “unwanted behaviors” and “developed and implemented interventions to reduce and address such behaviors.”  RR at 26; see also P. Reply Br. at 16 (asserting that Resident 71’s concerning behavior “dated to at least 2012” and its staff developed and implemented a care plan to address Resident 71’s behavior “at that time”), 17 (asserting it care-planned to address Resident 71’s behavior).  The ALJ discussed in some detail staff’s assessment and re-assessment of Resident 71 and updates to the resident’s care plan during the two-year period between mid-2012 and mid-2014.  See ALJ Decision at 6-11.  However, as the ALJ correctly found, section 483.13(c) “clear[ly] mandates that Petitioner develop written policies and procedures prohibiting abuse” and “Petitioner’s own anti-abuse policy require[ed]” Petitioner to prevent abuse.  Id. at 10.  Limiting or tolerating the foreseeable incidents of deliberate wheelchair-bumping by Resident 71 did not “prohibit her abusive behavior outright – even after an escalating series of [such] incidents” that put all of Petitioner’s other residents at risk of more than minimal harm and resulted in actual harm to Resident 20.  Id. at 10-11.

Petitioner also questions the ALJ’s characterization of Resident 71’s incidents with the electric-powered wheelchair as “escalating,” asserting that “the frequency between incidents seemed to be decreasing.”  RR at 26.  Petitioner does not support this assertion with a review or analysis of relevant facts.  Petitioner also ignores the ALJ’s contrary findings, which are supported by substantial evidence in the record.  The ALJ found that the wheelchair incidents were “steadily increasing in frequency leading up to the incident with Resident 20,” noting that “[t]he first two incidents [were] separated by six months; the second and third incidents by five months; the third and fourth incidents by three months; and the last two incidents by less than one month.”  ALJ Decision at 10 n.14.

Petitioner contends that the ALJ’s finding that it violated section 483.13(c) by not directing its staff to prevent all incidents of abusive behavior by Resident 71 was “not

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reasonable” because it “disregards . . . undisputed evidence that some hypothetical goal of eliminating the Resident’s unwanted behaviors was unrealistic and unachievable for this Resident.”  RR at 28; see also P. Reply Br. at 18 (asserting that a facility has no obligation to achieve “some hypothetical notion of perfection”), 20 (stating that “absolute success is not the regulatory standard”).  However, the only evidence Petitioner cited for that proposition is testimony by its director of nursing, Tammy Livingston, R.N. (see RR at 28, citing Tr. at 443-44), who in no way suggested that preventing all such incidents was impossible or that Petitioner’s IDT had made such an assessment in developing or updating Resident 71’s plan of care.

Furthermore, to the extent Petitioner suggests that the ALJ erroneously required Petitioner to meet an impossible compliance standard or a standard not prescribed by the governing regulations in determining that Petitioner “tolerated” Resident 71’s behavior (see, e.g., RR at 26, 27) and that Petitioner’s interventions failed to “eliminate” rather than “minimize” Resident 71’s potentially harmful behaviors (see RR at 28), we disagree the ALJ did so.  Petitioner is held to showing “substantial compliance,” which means “a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301 (emphasis added); id. (also defining “noncompliance” as “any deficiency that causes a facility to not be in substantial compliance”).  Thus, while facilities are required to protect residents from abusive behavior, the failure to do so constitutes lack of substantial compliance only where the actual or threatened abusive behavior had the potential to cause more than minimal harm to a resident or residents.  There can be no dispute that bumping or ramming an electric-powered wheelchair into other residents (or an attempt to do so) poses such a risk, and a foreseeable one, particularly where, as here, such action resulted in actual harm to at least one resident.  Holding Petitioner to eliminate such foreseeable incidents is not equivalent to holding Petitioner to an “impossible” standard of “perfection.”  See ALJ Decision at 12-13 (rejecting argument that Petitioner cannot be held to ensuring that no harmful resident behaviors and their consequences ever occur as “distract[ing] from the real issues in this case”).

Next, Petitioner contends that it was in substantial compliance with section 483.13(c) in managing Resident 71’s behavior with the electric-powered wheelchair because its nursing staff “appropriately balanced” Resident 71’s rights and needs (including her right to move about the facility and the need to reduce her “isolation” and avoid psychoactive medication use) and the safety needs of other residents.  RR at 27-28, 37; see also P. Reply Br. at 18 (similar argument).  As a general matter, we are open to the notion that a facility must consider the well-being of all of its residents and that it may have to consider how addressing one resident’s rights and needs could affect the health and safety of other residents for which the facility is also responsible.  However, we reject, as the ALJ did, the implication that Petitioner was or should be considered to have complied substantially with section 483.13(c), or should be absolved of substantial compliance

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with section 483.13(c), because Petitioner allegedly balanced Resident 71’s rights and needs against the rights and needs of other residents who were susceptible to the harm posed by Resident 71’s ramming or hitting other residents with her electric-powered wheelchair.10  Petitioner’s argument about balancing the rights and needs of residents disregards the ALJ’s sound determination that care-planning to accept or tolerate foreseeable, recurring resident-to-resident abuse incidents so long as they occurred about once a month or so cannot be considered as compliant with section 483.13(c)’s “clear mandate” that a facility must develop and implement policies and procedures that “prohibit[  ]” abuse.  See ALJ Decision at 10 (ALJ’s emphasis); see also id. at 11 (stating that “Petitioner’s care plan for Resident 71 violated [section] 483.13(c)”), 12 (citing CMS Ex. 16, at 54, and stating that the care plan “explicitly sanctioned resident-on-resident abuse, so long as it occurred less often than monthly”).  We fully agree with the ALJ that accepting or tolerating such abuse incidents so long as they occurred occasionally plainly is not prohibition of abuse for purposes of compliance with section 483.13(c).  Furthermore, the argument sidesteps the ALJ’s well-founded determination, which Petitioner does not dispute, that Petitioner did not in fact implement the interventions its IDT had initiated as part of Resident 71’s care plan.  See id. at 12.  Still further, neither Petitioner nor its witnesses explained why an accommodation of Resident 71’s rights and needs necessarily precluded, or rendered impracticable, a goal of prohibiting all abusive behavior by Resident 71.11

Petitioner suggests that it was substantially compliant with section 483.13(c) because its interventions “successfully minimized” the risk of injuries from Resident 71’s behavior

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with the electric-powered wheelchair.  RR at 35 (parentheses omitted).  However, Petitioner was hardly “successful” in that regard because Resident 71 managed to run into residents with that device on at least five occasions between February 2013 and May 2014, putting the affected residents at risk of serious injury on each occasion and causing actual harm to one resident in May 2014.  The proposition that reducing or minimizing abuse incidents is tantamount to “successful” accomplishment of intervention goals in compliance with the regulations and the facility’s abuse policy is, effectively, as the ALJ stated, a determination to “tolerate” some instances of such incidents so long as such incidents did not occur frequently.  See id. at 13.

Petitioner complains that the ALJ did not rely on any “CMS Guideline, expert testimony, treatise, [or] standard of care” to justify her “criticism” of Resident 71’s plan of care.  RR at 36.  Petitioner fails to explain why such evidence or information was (in its view) necessary to understand relevant evidence, resolve a specific factual issue, or establish a violation of section 483.13(c).  That regulation, not a CMS “guideline” or nursing standard of care, provides the pertinent “standard” that Petitioner was obligated to meet.   Petitioner’s explicit failure to have procedures, policies, or other safeguards in place to prevent all abusive acts by Resident 71, and its failure to implement even the procedures it had developed, violated the regulatory standard.  The regulatory standard’s clear purpose is to safeguard each resident’s right under section 483.13(b) to be “free from” – not subjected to any – abuse.

In a similar vein, Petitioner suggests that CMS needed to submit “expert or other evidence” of interventions it considered necessary and sufficient to address Resident 71’s behavioral “challenges.”  RR at 35 (complaining that CMS did not proffer “any expert or other evidence regarding how to evaluate, characterize, or respond to intermittent behavioral episodes – months apart – by a Resident who posed the challenges [R71] did in this case”).  This suggestion is meritless.  First, Petitioner does not address why the need to recognize, assess, and intervene appropriately for behavior like hitting other residents with an electric-powered wheelchair is an issue that requires “expert” evidence.  Petitioner’s own evidence of care-planning concerning interventions Petitioner’s own staff developed (evidently without the involvement of “experts”) and which Petitioner asserts were “successfully” implemented (RR at 35) would tend to belie the claim that “expert” involvement was necessary.

But even assuming “expert” involvement is necessary or appropriate in this situation, Petitioner does not address why CMS must present “expert or other evidence” to make its case for noncompliance with section 483.13(c) or why CMS in these circumstances needed to posit some alternative approach or a set of interventions that, if implemented, would have complied with its regulatory obligations.  That aside, we reject this contention because Petitioner failed to demonstrate that it fully and effectively implemented the interventions its own staff thought necessary to prevent abusive acts by Resident 71.  The Board has repeatedly held that a facility is obligated to fully and

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effectively implement necessary or appropriate interventions its own staff developed and that the failure to do so can establish a basis for a deficiency.  Coquina Center, DAB No. 1860 (2002) (upholding noncompliance finding based on the facility’s failure to follow care-planned measures directed at preventing accidents, and noting that the Board has “upheld deficiency findings [under the quality-of-care regulation] based on a facility’s failure to follow its plan of care since a care plan is based on a facility’s assessment of a resident’s needs and represents an interdisciplinary team’s best judgment of the services required for the resident” (internal quotation marks and brackets omitted)); Cedar Lake Nursing Home, DAB No. 2344, at 7-9 (2010) (upholding finding of noncompliance with requirement to provide necessary respiratory care based on evidence that the facility did not provide care required by a resident’s care plan and the facility’s own policies); Life Care Ctr. of Bardstown, DAB No. 2233, at 22 (2009) (“[A] facility’s failure to implement physician orders, to comply with its own policies, or to furnish care and services in accordance with a resident’s plan of care can constitute a deficiency under [42 C.F.R.] section 483.25.”); Good Shepherd Home for the Aged, Inc., DAB No. 2858, at 14 (2018) (citing Board decisions) (“[A facility] 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.”).

Petitioner next suggests that staff supervision of Resident 71 was hampered by the fact that her family “consistently refused psychological or pharmaceutical interventions.”12  RR at 25 (citing Tr. 446-450; P. Ex. 26; CMS Ex. 16, at 19); id. at 27 (maintaining that Resident 71’s family “refused” “prophylactic chemical . . . restraints”); see also P. Reply Br. at 19 (stating that Resident 71’s family “declined” “interventions such as mental health assessments or medications”).13  However, Petitioner cites no evidence that such refusal prevented effective supervision or rendered impracticable the goal of preventing all foreseeable incidents of abuse by Resident 71 by the means – other than “psychological,” “pharmaceutical” or “chemical” – that Petitioner evidently determined were appropriate and adequate to address safety concerns raised by Resident 71’s behavior in using her electric-powered wheelchair.  See, e.g., RR at 26-27 (e.g., keeping the resident out of the middle of hallways; intervening before the resident became agitated and could hurt others), 35 (asserting that staff considered Resident 71’s own physical and psychosocial needs but also “successfully” “did implement common sense interventions”).  Nor does Petitioner indicate how, if at all, the resident’s alleged refusal to accept certain types of interventions (e.g., psychological) affected Petitioner’s

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obligations under section 483.13(c) or undercuts the ALJ’s conclusion that it was noncompliant with that regulation.

Citing the written direct testimony of its director of nursing, Petitioner asserts that at some point in 2013, its interdisciplinary team decided that “simply taking away the power wheelchair [from Resident 71] was not reasonable.”  RR at 27 (citing P. Ex. 21, at 7).  However, the nursing director did not testify about any such decision.  Even assuming the record shows that such a decision had been made, that fact would be immaterial because the ALJ did not find that Petitioner could have met its obligations under section 483.13(c) only by completely prohibiting Resident 71’s use of an electric-powered wheelchair.

As noted earlier, Petitioner refers to the section 483.13(c) (tag F224) deficiency finding as one of “neglect.”  See, e.g., RR at 3, 13, 14, 24, 25 n.15, 27, 35.14  Petitioner claims the ALJ took it upon herself to assess tag F224 as presenting an issue of “abuse,” rather than “neglect,” “construct[ing] a ‘de novo’ theory of noncompliance” as to tag F224.  Id. at 35; see also id. at 24 (asserting the Statement of Deficiencies did not allege, and CMS did not argue, that Resident 71’s behavior was abuse).  The ALJ did no such thing, and we reject this attempt to establish ALJ error without any foundation.  We see nothing in the Statement of Deficiencies – and Petitioner does not point to anything in that document – indicating that the survey agency’s noncompliance findings were limited to “neglect” concerning Resident 71.  To the contrary, the Statement of Deficiencies was plainly concerned about Petitioner’s inadequate response to resident-on-resident abuse involving Resident 71.  CMS Ex. 1, at 6-8.  Even if the survey agency had found “neglect” with respect to Resident 71, the ALJ would have been under no obligation to consider the finding because CMS did not rely upon it to support the challenged remedy.  Based on the survey findings, CMS consistently asserted during the ALJ proceedings that Resident 71’s behavior was abusive, that Petitioner did not comply substantially with section 483.13(c), and that Petitioner failed to prohibit resident-to-resident abuse.  See, e.g., CMS Ex. 1, at 6; CMS Pre-Hr’g Br. at 15; CMS Post-Hr’g Br. at 1, 2, 19, 24.

Finally, Petitioner asserts that the relevant regulations “do[ ] not allow an ALJ to make a subjective enforcement determination based simply upon the personal revulsion to a resident’s behavior.”  RR at 36 (also referring to the ALJ’s “subjective critique” of Petitioner’s care plan).  This, too, is a bare assertion of ALJ wrongdoing with no foundation.  Petitioner does not show that the ALJ based her decision on anything other than the applicable law and relevant evidence submitted by the parties.

In short, Petitioner has not shown that substantial evidence is lacking for any of the ALJ’s material findings of fact concerning Resident 71, nor has it argued that those findings fail

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to establish lack of substantial compliance with 42 C.F.R. § 483.13(c).  We therefore affirm the ALJ’s conclusion that Petitioner was not in substantial compliance with that regulation as of March 29, 2014.

II. The ALJ properly upheld, as not clearly erroneous, CMS’s determination that Petitioner’s noncompliance with 42 C.F.R. § 483.13(c) was at the immediate-jeopardy level of severity.

Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.  42 C.F.R. § 488.301.  The ALJ upheld CMS’s determination that Petitioner’s noncompliance with section 483.13(c) was at the immediate-jeopardy level of severity because Resident 71’s misbehavior with the electric-powered wheelchair, if not prevented, was “capable of causing very serious injury to Petitioner’s vulnerable population.”  ALJ Decision at 14-16.  In support of that conclusion, the ALJ cited “credible, unrebutted” testimony by Petitioner’s Director of Nursing and Surveyor Thomas Clevenger that approximately 85 percent of the facility’s residents were “frail [and] elderly,” with “reduced capacity to withstand falls,” and were thus “especially vulnerable” to debilitating injuries from falls (including broken bones and head injuries), and that “although Petitioner had reduced the speed of Resident 71’s motorized wheelchair in response to the incident with Resident 20,” that wheelchair was nonetheless “heavy” and capable of “knocking someone from their chair or off their feet regardless of the speed” at which it was moving.  Id. at 14 (citing or quoting Tr. at 214-16, 406-07, 409 (internal quotation marks omitted) and further noting that the surveyor’s “testimony shows that Resident 71 continued to pose . . . a threat” to resident health and safety “even after Petitioner reduced the speed setting of her motorized wheelchair”).

Petitioner does not dispute the findings or analysis supporting the ALJ’s resolution of the immediate-jeopardy issue, and we agree with the ALJ, for the reasons she gave, that Petitioner’s noncompliance with section 483.13(c) was likely to cause serious harm to Petitioner’s residents.  Petitioner suggests that there is no proof that the noncompliance – as distinct from Resident 71’s behavior – caused or was likely to cause death or serious harm.  RR at 37 (asserting that “the evidence does not support a finding that any noncompliance was ‘likely’ to cause ‘death or serious harm’ to any resident, the regulatory predicate for an ‘immediate jeopardy’ finding” (italics in original)).  Petitioner states that “in the case of Resident #71, Petitioner’s acts or omissions certainly did not cause the Resident to bump into other residents (or not to stop doing so), and CMS offered no evidence that any additional intervention was required by any regulation, or could have reduced the likelihood that the Resident would not engage in that behavior.”  Id. at 37-38.

This reasoning presupposes that an immediate-jeopardy finding is not warranted unless a facility’s noncompliance is, or could be, a sufficient direct cause of serious harm to a resident.  However, the definition of immediate jeopardy does not require that type of

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causation, and the Board has rejected suggestions to the contrary, upholding immediate-jeopardy findings when it is reasonable to conclude that a facility’s noncompliance contributed or could contribute to causing serious harm.  See Libertywood Nursing Ctr., DAB No. 2433, at 19 (2011) (sustaining an immediate-jeopardy finding where a basis existed to find that the noncompliance was a “contributing cause of the threatened harm”), aff’d, 512 F. App’x 285 (4th Cir. 2013); Good Shepherd Home at 22 (upholding an immediate-jeopardy finding when CMS could reasonably infer that the noncompliance – failure to provide adequate supervision – “was likely to cause, or to be a contributing cause of,” an accident resulting in serious harm to a resident); Florence Park Care Ctr., DAB No. 1931, at 26-27 (2004) (upholding an immediate-jeopardy finding based on unrebutted evidence that a failure to provide adequate supervision was a “proximate or contributing cause” of a resident’s fall).  In this case, Petitioner’s noncompliance, which involved failures to implement interventions intended to prevent Resident 71 from hitting other residents with an electric-powered wheelchair, created or enhanced the likelihood that such incidents would occur and result in serious harm.  We, therefore, affirm the ALJ’s conclusion that CMS’s immediate jeopardy determination was not clearly erroneous.

III. Petitioner identifies no error by the ALJ in sustaining CMS’s finding that the period of immediate-jeopardy-level noncompliance began on March 29, 2014, and continued through June 11, 2014.

In concluding that the “duration of the immediate jeopardy level CMP imposed by CMS” was “reasonable” (ALJ Decision at 18-19), the ALJ left undisturbed CMS’s determination that Petitioner’s period of immediate-jeopardy noncompliance with 42 C.F.R. § 483.13(c) was March 29 through June 11, 2014.  The Board has held that a facility’s “burden of demonstrating clear error [in CMS’s immediate-jeopardy finding] extends to overcoming CMS’s determination as to the duration of immediate jeopardy.”  Vibra Hosp. of Charleston – TCU, DAB No. 3094, at 23 (2023) (italics in original).  Petitioner alleges no error, much less clear error, in that determination.  Apart from its contention that it was never out of substantial compliance at the immediate jeopardy level—a contention we reject for the reasons stated above—Petitioner does not dispute that its immediate jeopardy noncompliance began as of March 29, 2014, nor does Petitioner claim to have removed the immediate jeopardy sooner than June 12, 2014.  We therefore sustain CMS’s determination regarding the duration of immediate jeopardy and affirm the ALJ’s conclusion that CMS lawfully imposed an upper-range daily CMP ($3,050 to $10,000 per day) for that period.

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IV. Petitioner identifies no error by the ALJ in concluding that $3,200 per day was a reasonable CMP for the period of immediate-jeopardy-level noncompliance with 42 C.F.R. § 483.13(c) (tag F224).

Based on her consideration of factors specified in 42 C.F.R. § 488.438, the ALJ concluded that the per-day CMP imposed by CMS for Petitioner’s immediate-jeopardy-level noncompliance period is reasonable.  ALJ Decision at 16-18.  Petitioner does not directly challenge the ALJ’s consideration of the factors in section 488.438; however, it raises multiple arguments aimed at challenging the ALJ’s conclusion that the $3,200 per-day CMP was reasonable for the immediate-jeopardy-level noncompliance, all of which we reject, as explained below.

Petitioner suggests that, in order to sustain the $3,200 per day CMP, the ALJ needed to address (and, presumably, resolve in CMS’s favor) the parties’ dispute about whether the care rendered to Resident 13 demonstrated lack of substantial compliance with sections 483.13(c) and 483.25.  RR at 13-14.  Petitioner asserts that the ALJ should have addressed those disputes because:  (1) the survey agency’s findings regarding Resident 13 were the basis for CMS’s decision (in August 2014) to impose the $3,200 per day CMP; (2) when CMS decided to impose remedies, “neither the [survey agency] nor CMS considered the case of Resident #71 to be anywhere near as significant as the allegations relating to Resident #13”; (3) the parties’ evidence was “devoted almost entirely to the case of Resident # 13”; and (4) the findings of immediate-jeopardy-level noncompliance concerning the care rendered to Resident 13 “remain on the Center’s record, where they are available to the public, and where CMS may use them to support enhanced sanctions in the future.”  Id. at 1-2, 13, 28, 35.

Petitioner is making two overarching contentions here.  The first is that an ALJ may sustain an enforcement remedy based only on survey findings or other information that CMS initially relied upon to impose the challenged remedy.  In Petitioner’s view, by sustaining the immediate-jeopardy finding and associated remedy based on evidence concerning Resident 71, the ALJ improperly “substitute[d] a ‘post hoc rationalization’” or “de novo theory of noncompliance” for CMS’s “actual basis” (that being the survey’s findings concerning Resident 13) for imposing that remedy in August 2014.  RR at 2, 6, 8, 28, 35, 38 (asserting that the ALJ “erred by disregarding the basis upon which . . . CMS imposed the sanction” and “should not have proceeded to construct, ‘de novo,’ not only a new theory of noncompliance, but, without prior notice to Petitioner, a completely new basis for the agency’s action”).

The ALJ committed no legal error in sustaining the $3,200 per-day CMP based on the evidence concerning Resident 71.  No statute or regulation limits the ALJ’s adjudication

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in the way Petitioner suggests.15  Furthermore, as Petitioner acknowledges, the Board has consistently held that the administrative “appeal process does not review how or why CMS decided to impose remedies,” Beechwood Sanitarium, DAB No. 1906, at 16, 28-29 (2004), modified, 595 F. Supp. 2d 181 (W.D.N.Y. 2007), and that the hearing before an ALJ is a “de novo” proceeding to resolve disputed compliance issues based on the evidence and argument presented in that proceeding.  SunBridge Care & Rehab. for Pembroke, DAB No. 2170, at 26-27 (2008), aff’d, 340 F. App’x 929 (2009); see also Britthaven of Chapel Hill, DAB No. 2284, at 6 (2009); Vitas Healthcare Corp. of California, DAB No. 1782, at 4 (2001) (stating that the ALJ hearing is a “de novo proceeding to be resolved on the evidence in the record developed before the ALJ, and is not a quasi-appellate review of the correctness of [CMS’s] determination based on the evidence [CMS] had at the time it acted”); The Laurels at Forest Glenn, DAB No. 2182, at 8 (2008) (stating that an “ALJ must determine whether the evidence as it is developed before the ALJ supports the findings of noncompliance, not . . . how CMS evaluated the evidence as it stood at whatever point CMS made its assessment” (internal quotation marks omitted)).  Consequently, in defending a challenged enforcement remedy, CMS may rely on facts, evidence, or reasoning that it may not have relied upon when it imposed the remedy, so long as the facility receives timely and adequate notice at the hearing stage of CMS’s position regarding the disputed issues and an opportunity to respond during the hearing.  Golden Living Ctr. – Superior, DAB No. 2768, at 8 n.4 (2017) (rejecting the facility’s contention that it was “legally improper for CMS to articulate a rationale for its noncompliance determination that differed from the one advanced by the state survey agency” and stating that “CMS may defend a noncompliance determination based on facts, evidence, or reasoning not specified in the Statement of Deficiencies” if “due process requirements . . . are satisfied”); Avon Nursing Home, DAB No. 2830, at 19 (2017) (quoting Golden Living - Superior at 8 n.4 and noting that “CMS’s presentation before an ALJ is not limited to facts asserted in the Statement of Deficiencies”); Beechwood Sanitarium at 28-29 (noting that the hearing is not “restricted to the facts and evidence that were available to CMS when it made its decision”); Covington Manor Nursing Home, DAB No. 2789, at 11 (2017) (holding that it “was not necessary for the ALJ to rely on the same evidence on which CMS relied in order to determine that CMS’s immediate jeopardy determination was not clearly erroneous”).  As discussed later, Petitioner has not shown that it lacked timely notice of CMS’s position that the facts concerning Resident 71 supported its immediate-jeopardy finding, nor does it claim that it lacked a meaningful opportunity to be heard about that position during the ALJ proceeding.

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Petitioner suggests that the Administrative Procedure Act (APA) barred the ALJ from affirming the $3,200 CMP on grounds other than the ones that CMS relied upon to support the CMP, and that the ALJ violated that prohibition by “articulat[ing] a completely new basis” for the CMP about which it lacked “prior notice.”  RR at 5-6, 8-10, 14, 35.  According to Petitioner, the survey agency’s deficiency citation alleging noncompliance with section 483.13(c), which CMS cited in its August 2014 penalty notice, reflected that Petitioner had “neglected” Resident 71 (or residents who came into contact with that resident), yet the ALJ “disregarded” that purported “neglect” finding, concluding that Petitioner was noncompliant with section 483.13(c) under a different “theory” – namely, failure to implement policies to prevent resident-on-resident “abuse.”  Id. at 2-5, 14, 24, 25 n.15, 35.  Petitioner submits that federal court decisions applying the APA required the ALJ to consider only the survey agency’s findings in deciding whether CMS lawfully imposed the CMP, asserting that a “fundamental premise of administrative law is that the reviewing tribunal must evaluate the factual and legal basis for the agency’s action on its own terms, and may not substitute a ‘post hoc rationalization’ for the actual basis the agency asserted for the challenged action.”  Id. at 8 (citing and quoting from Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1970)).

This argument is unconvincing for at least three reasons.  First, we see no finding in the Statement of Deficiencies – and Petitioner cites none – that Petitioner “neglected” Resident 71 or the residents who interacted with her.  See CMS Ex. 1, at 6-8, 15-21.  Second, as our discussion above makes clear, the ALJ’s rationale for finding Petitioner noncompliant with section 483.13(c) was not “new.”  The survey agency found Petitioner noncompliant with that regulation based, in part, on Petitioner’s failure to “develop and implement intervention strategies to prevent occurrences [of “resident to resident mistreatment and abuse”],” referring to the incidents in which Resident 71 ran into other residents with her electric-powered wheelchair.  Id. at 6.  The ALJ found noncompliance with the regulation on essentially the same ground – failure to develop or implement policies or procedures to prohibit foreseeable abusive behavior by Resident 71.  ALJ Decision at 10 (viewing the case “through the lens of failure to develop” or “failure to implement” policies and procedures to protect residents from Resident 71’s abusive conduct).  Third, the “fundamental principle” of administrative law cited by Petitioner – limiting review of federal agency action to the grounds upon which the agency acted – is inapplicable in this context.  That principle applies to justifications offered upon judicial review of final agency action; the principle does not constrain the decision-making of the agency’s administrative law judges or administrative appeal entities.  See Overton Park, 401 U.S. at 419 (holding that litigants’ affidavits containing “post hoc rationalizations” were inadequate basis for judicial review under applicable review standards in 5 U.S.C. § 706); Plott Nursing Home, DAB No. 2426, at 26 (2011) (noting that Overton Park “dealt with an agency’s attempt to present during the court litigation a rationale for its regulatory decision that was not stated as a rationale at the time the decision was issued,” and that “[n]othing in that decision precludes an agency from modifying its rationale

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during the course of an administrative proceeding”), rev’d on other grounds, 779 F.3d 975 (9th Cir. 2013).

Petitioner’s second overarching contention is that an ALJ must address any disputed deficiency citation that is (or was) identified as a basis for a challenged remedy.  As noted, Petitioner contends that the ALJ should have addressed the parties’ dispute about whether the care rendered to Resident 13 was noncompliant with section 483.25 because CMS imposed, and defended, the immediate jeopardy finding in part on that basis, and because not doing so might have repercussions for Petitioner in future enforcement proceedings.  The ALJ committed no error in declining to resolve that dispute, however.  The Board has held that an ALJ need not review every disputed deficiency citation to sustain a challenged remedy.  An ALJ may decline to address a disputed deficiency citation if her valid noncompliance finding adequately supports the remedies imposed and any unaddressed dispute, if resolved in the facility’s favor, would not result in a reduction or mitigation of the imposed remedy.  See Rockcastle Health & Rehab. Ctr., DAB No. 2891, at 24 (2018) (stating that “[a]n ALJ is not required to make findings on every alleged deficiency in order to sustain CMS’s enforcement action” (citing other Board decisions)); Community Skilled Nursing Centre, DAB No. 1987, at 5 (2005) (“ALJs are not required to make findings of fact and conclusions of law on deficiencies that are not necessary to support the CMP imposed.”); Western Care Mgmt. Corp., DAB No. 1921, at 19, 21 (2004) (noting that an “ALJ has discretion, as an exercise of judicial economy, in determining whether to address findings that are not material to the outcome of a case,” and that the “potential materiality of unresolved deficiency findings may depend . . . on whether there are adequate grounds to sustain the amount of a CMP in view of the deficiencies actually addressed”).16  The Board has also considered and rejected the arguments that an ALJ must address a disputed deficiency citation to the extent it remains on the facility’s compliance record and could adversely affect the facility in future enforcement proceedings.  See Rockcastle at 24 (citing Golden Living Ctr. – Frankfort, DAB No. 2296 (2009), recon. denied, DAB Ruling 2010-2 (Feb. 22, 2010), aff’d, 656 F.3d 421 (6th Cir. 2011)).

Citing some of these Board precedents, the ALJ held that Petitioner’s noncompliance with section 483.13(c) in connection with Resident 71 was sufficient to establish “the

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reasonableness of the immediate jeopardy level CMP imposed by CMS” and, therefore, Petitioner’s compliance or noncompliance with section 483.25 regarding Resident 13 would “not ‘have a material impact on the outcome’ of this case.”  ALJ Decision at 16 n.16 (quoting Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 847 (6th Cir. 2010)).  We agree.  ALJs (or the Board) 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 Health & Rehab. Ctr., DAB No. 2567, at 16 (2014) (collecting cases).  Here, the ALJ concluded, based on her de novo consideration of the regulatory factors specified in 42 C.F.R. § 488.438(f), that a per-day CMP of $3,200 for Petitioner’s immediate-jeopardy-level noncompliance was reasonable.  ALJ Decision at 16-18 (“The regulatory factors of seriousness and culpability amply support the CMP amount.”).  Petitioner points to no error in the ALJ’s assessment of the relevant regulatory factors and we find none.  See Bivins Memorial Nursing Home, DAB No. 2771, at 13 (2017) (summarily affirming an ALJ’s conclusion that a per-day CMP amount was reasonable when the facility failed to present an argument that the amount was excessive based on the regulatory factors in section 488.438).  Moreover, Petitioner made no showing that the ALJ would have had to uphold noncompliance findings regarding Resident 13 to find the per-day CMP of $3,200 (on the very low end of the upper range) is reasonable.17  Accordingly, we find no error in the ALJ’s determination not to separately address the alleged noncompliance concerning Resident 13.  See Carrington Place of Muscatine, DAB No. 2321, at 20-21 (2010) (ALJ committed no prejudicial error in not adjudicating certain cited deficiencies where the ALJ determined that those deficiencies the ALJ did address supported the remedies imposed); Community Skilled Nursing at 5, 18 (affirming ALJ’s conclusion that CMP amount was reasonable where additional findings and conclusions regarding unaddressed deficiencies were not necessary to support the CMP).

V. Petitioner identifies no error by the ALJ in sustaining the $200 per-day CMP for the period June 12 through July 30, 2014.

Petitioner asserts that the “duration of the [$200 per day] CMP [for the period of non-immediate-jeopardy-level noncompliance] is uncertain, and the ALJ did not address the issue.”  RR at 6 n.3.  Neither the period of Petitioner’s non-immediate-jeopardy-level noncompliance, nor the amount of the per-day CMP imposed for that period, is “uncertain,” and the ALJ committed no error of omission.  Before the hearing, Petitioner conceded that it did not substantially comply with Medicare participation requirements for which the seven non-immediate-jeopardy-level tags (tags F157, F225, F282, F319, F323, F490, F520) were cited and did not challenge the imposition of a $200 per-day CMP for that non-jeopardy-level period.  See ALJ Decision at 3 & 3 n.5; Nov. 16, 2016 Order & Summ. of Preh’g Conf. at 1-2.  Petitioner does not assert that it returned to

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substantial compliance before July 31, 2014, and does not contend the Board or the ALJ needs to reconsider the duration of the non-immediate-jeopardy period in these circumstances.  Petitioner asserts that the matter would have to be addressed only “if the Board sets aside the ‘immediate jeopardy’ citations addressed herein” – which we have not done.  RR at 6 n.3.  We therefore do not disturb the ALJ’s finding that CMS lawfully imposed a $200 per-day CMP for the period June 12 through July 30, 2014.

VI. Petitioner’s contentions alleging inadequate notice concerning its noncompliance with 42 C.F.R. § 483.13(c) provide no basis to disturb the ALJ’s decision.

Petitioner contends it lacked timely, adequate notice that the ALJ might find it noncompliant with 42 C.F.R. § 483.13(c) based on the facts and reasoning she relied upon in her decision.  According to Petitioner, the ALJ sustained the remedies in this case based on a resident-on-resident-abuse “theory of noncompliance” that neither CMS nor the survey agency advanced during or prior to the hearing.  RR at 2-6, 14, 24, 35.   Petitioner also suggests that it lacked notice that the ALJ might uphold the immediate-jeopardy finding and associated remedy based solely on the evidence concerning Resident 71.  RR at 4 (asserting that CMS’s August 2014 letter notifying Petitioner of the $3,200 per day CMP did not indicate that the survey agency’s immediate-jeopardy finding “extend[ed] beyond [the noncompliance involving] Resident #13”).

These notice claims are unfounded.  The Statement of Deficiencies states that a basis for the survey agency’s finding of noncompliance with section 483.13(c) was that “the facility failed to ensure resident to resident mistreatment and abuse by failing to identify residents [referring to Resident 71] whose personal histories rendered them at risk for abusing other residents,” and that “[t]he facility failed to . . . monitor for changes that would trigger abusive behavior . . . .”  CMS Ex. 1, at 6.  In its pre-hearing brief, CMS identified “five documented episodes of Resident 71 deliberately striking other residents” (actions that can plausibly be deemed abusive) as well as other instances of “aggression to other residents”; noted that “[f]requent charting about the resident’s aggressive behavior throughout her record indicated that staff was aware of the resident’s behaviors for quite some time”; further stated that Petitioner’s administrator “confirmed that there was long term evidence of Resident 71’s aggressive behavior toward other residents, and that efforts to ensure her safe use of the power wheelchair should have begun as early as 2009”; and claimed there was “no evidence of any systemic effort to address the ongoing concerns” with Resident 71’s “assaults” with the electric-powered wheelchair.  CMS Pre-Hr’g Br. at 15-16, 17.  These statements by CMS, coupled with the survey agency’s findings, timely and adequately notified Petitioner that the ALJ might find lack of

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substantial compliance with section 483.13(c) based on the failure to institute or implement policies or procedures prohibiting resident-on-resident abuse.18

Petitioner also had timely, adequate notice that the ALJ could sustain the $3,200 per-day CMP and underlying immediate-jeopardy finding based on evidence concerning Resident 71.  Petitioner emphasizes that CMS’s August 19, 2014 letter notifying Petitioner of enforcement remedies “did not state or even imply . . . that [CMS] considered the alleged ‘immediate jeopardy’ to extend beyond Resident #13.”  RR at 4.  We agree that the penalty letter is unclear about whether CMS had found immediate jeopardy based on the survey’s findings concerning Resident 71 (or Resident 13).  CMS Ex. 6.  However, at the outset of the January 2017 hearing, CMS stated that it had previously communicated to Petitioner its position that the circumstances involving both residents (Resident 71 and Resident 13) supported a finding of immediate jeopardy.19  Tr. at 8.  Petitioner did not object to that statement or ask CMS at the hearing to clarify its position regarding the grounds upon which it planned to defend the immediate-jeopardy finding.  In addition, the ALJ expressly confirmed (without objection from Petitioner) that “the citations for both . . . Resident 13 and Resident 71 rise to the level of immediate jeopardy.”  Tr. at 9.

VII. Petitioner’s arguments about “burdens of proof” identify no error by the ALJ or the Board.

Petitioner says that the Board must “reexamine” and “correct” “the legally insupportable and illogical evolution of its interrelated policies governing ‘burdens of proof’ and ‘de novo’ review.”  RR at 1, 7-14.  Petitioner’s arguments are hardly a model of clarity and cogency.  However, we perceive Petitioner to be asserting that the Board must ensure that the parties follow the burden of proof framework the Board articulated long ago in Hillman Rehab. Ctr., DAB No. 1611 (1997), aff’d, Hillman Rehab. Ctr. v. United States, No. 98-3789 (GEB) (D.N.J. May 13, 1998), under which CMS must first establish its prima facie case before the facility can be held to rebutting it.  According to Petitioner, CMS did not meet its initial burden to establish its prima facie case as to the alleged noncompliance with section 483.25 (tag F309); the ALJ wrongly did not reach that issue; had the ALJ properly applied the Hillman standard and considered whether CMS made its prima facie case (which Petitioner simply avers it did not), then “the case should have

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ended right there.”  Id. at 10, 13-14 (similar argument).  Petitioner exhaustively and repeatedly claims the ALJ instead wrongly constructed and applied a “de novo” basis or theory of “abuse” (as opposed to “neglect”)20 to support her noncompliance finding as to section 483.13(c) (tag F224) and immediate jeopardy for that noncompliance.  See id. at 2, 5, 6, 14, 24, 35, 36, 37.  Petitioner goes on to suggest that the Board has since abandoned the burden of proof framework laid out in Hillman under which CMS must make its prima facie case, and now itself routinely engages in a de novo review, “vitiat[ing]” and “disregard[ing]” the standards in the Social Security Act and the Administrative Procedure Act (APA) in favor of “ad hoc or result-oriented” decisions.  Id. at 11-12.

In accordance with the burden of proof framework the Board set out in Hillman, CMS has the burden to go forward with evidence related to disputed findings that, together with any undisputed findings and relevant legal authority, is sufficient to establish a prima facie case of noncompliance; once CMS makes its prima facie case, the facility must carry its ultimate burden to show by a preponderance of the evidence that it was in substantial compliance by rebutting the evidence on which CMS’s case rests or by proving facts that affirmatively show substantial compliance.  See Evergreene Nursing Care Ctr., DAB No. 2069, at 7 (2007), appeal dismissed per consent motion to dismiss with prejudice, No. 3:07cv00024 (W.D. Va., Charlottesville Div. June 16, 2008).  This burden of proof framework governs the ALJ’s de novo review.  On appeal, the Board, “[a]s an appellate body,” does not assume the ALJ’s role to determine “whether a ‘preponderance of the evidence’ supports a particular conclusion”; rather, “[t]he Board’s role in reviewing the ALJ’s findings of fact is . . . to determine whether the ALJ’s findings of fact are supported by ‘substantial evidence’ in the record as a whole.”  Magnolia Estates Skilled Care, DAB No. 2228, at 13 (2009).

During the ALJ proceedings, Petitioner attempted to raise similar arguments about the burden of proof.  While the ALJ did not cite Hillman or other Board decisions setting out the burden of proof framework (such as Evergreene), the ALJ correctly described the framework.  See ALJ Decision at 19.  The ALJ stated that “[t]he allocation of burdens [set out in the Board’s decisions] is not inconsistent with due process or the [APA] requirements of 5 U.S.C. § 556(d), as CMS is required to come forward with the evidence that establishes its prima facie case.”  Id.  The ALJ also stated, “I see no reason to upset the allocation of the burden of persuasion as described by [the Board], given that I am satisfied that CMS established a prima facie case of noncompliance by a preponderance of the evidence and Petitioner has not rebutted the CMS case by a preponderance of the evidence or established an affirmative defense.”  Id.

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Petitioner does not specifically address the above language in the ALJ Decision; nor does it argue persuasively, citing authority on point, why the ALJ was wrong.  Petitioner, moreover, cites no authority for the concept that the ALJ’s choosing to confine her analysis to one of the two immediate-jeopardy tags – which we have elsewhere in this decision stated was permissible – amounted to the construction and application of a new theory in contravention of the established burden of proof framework and deprived Petitioner of due process.  Petitioner has had notice of CMS’s bases for alleging noncompliance as to tags F224 and F309 (and others) and an opportunity to challenge those bases before the ALJ in accordance with the regulations in 42 C.F.R. Part 498, and fully availed itself of that opportunity.  Even assuming solely for argument’s sake that, before the ALJ, CMS failed to make its prima facie case as to the alleged noncompliance with section 483.25 (tag F309), Petitioner fails to explain how that alone would, in Petitioner’s words, “end the case” altogether, leaving Petitioner the victor on appeal.  CMS could pursue and establish, and here did establish, a lawful basis for imposing a penalty based on immediate-jeopardy-level noncompliance with another regulation, section 483.13(c).  Moreover, Petitioner has not demonstrated that the Board’s prior decisions addressing these subjects are inconsistent with any statute or regulation governing the administrative hearing and appeal process.  (We note incidentally that the Board has consistently rejected challenges to its holdings that allocate to a facility the burden of persuasion on disputed compliance issues.  See, e.g., Life Care Ctr. of Tullahoma, DAB No. 2304, at 47-48 (2010), aff’d, 453 F. App’x 610 (6th Cir. 2011)).

Conclusion

We affirm the ALJ Decision.