Potomac Falls Health & Rehab Center, DAB No. 3220 (2025)

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Potomac Falls Health & Rehab Center, a skilled nursing facility (SNF), appeals an Administrative Law Judge (ALJ) decision, Potomac Falls Health & Rehab Center, DAB CR5812 (2021) (ALJ Decision).  The ALJ upheld a determination by the Centers for Medicare & Medicaid Services (CMS) that Petitioner was not in substantial compliance with accident-prevention regulation 42 C.F.R. § 483.25(d) from June 23, 2016 through March 21, 2017.  The ALJ also upheld CMS’s determination that during that period Petitioner’s noncompliance posed immediate jeopardy to resident health and safety and held that the amount of the civil money penalty (CMP) that CMS imposed was reasonable.  For reasons explained below, we affirm the ALJ Decision.

Legal Background

Section 1819 of the Social Security Act (Act) and 42 C.F.R. Part 483 govern SNFs’ participation in the Medicare program.1  To participate, a SNF must be in substantial compliance with program requirements.  42 C.F.R. § 488.330(b); Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 6 (2000).  A SNF’s failure to meet a participation requirement is a “deficiency,” and when a SNF has a deficiency that creates the potential for more than minimal harm to one or more residents, the SNF is out of “substantial compliance” and in “noncompliance.”  42 C.F.R. § 488.301 (defining terms).

State health agencies conduct surveys to determine SNFs’ compliance with participation requirements.  Act §§ 1819(g), 1864(a); 42 C.F.R. §§ 488.10, 488.11, 488.110(m).  Surveys include touring the SNF, interviewing staff and residents, reviewing medical

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records, and observing resident care.  42 C.F.R. § 488.110(a)-(h).  If the survey results in “negative findings,” surveyors prepare a Statement of Deficiencies that cites each deficiency by a “prefix tag and regulatory citation, followed by a summary of the deficiency and supporting findings.”  42 C.F.R. § 488.110(i)(4).  Surveyors signify each deficiency’s “seriousness,” meaning its severity and scope, per a matrix in the CMS State Operations Manual (SOM) containing designations from “A,” for the least serious deficiencies, to “J,” “K,” and “L” for the most serious, which pose immediate jeopardy to residents.  W. Care Mgmt. Corp., DAB No. 1921, at 4 (2004) (displaying matrix and citing to SOM).  “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.  The state agency gives the Statement of Deficiencies to the SNF and CMS, and the SNF then must submit an acceptable plan of correction specifying corrective measures and a timetable for completing them.  Id. §§ 488.110(j)-(k), 488.402(d), 488.408(f).

This appeal concerns Petitioner’s alleged noncompliance with 42 C.F.R. § 483.25(d):

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

CMS may impose enforcement “remedies,” including a per-day CMP, for noncompliance.  Act § 1819(h); 42 C.F.R. §§ 488.400; 488.402(b)-(c); 488.406; 488.408(a)-(e); 488.430.  A per-day CMP may begin as early as the facility’s first date of noncompliance and continues either until the SNF achieves substantial compliance or until CMS or the state agency terminates the SNF’s provider agreement.  Id. §§ 488.440(a)(1), 488.454(a).  CMS sets the CMP amount by considering specified factors.  Id. §§ 488.404; 488.438(b), (f).

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

Case Background2

This case arises from a June 23, 2016 incident (Burn Incident) when spilled hot coffee burned Resident 18 (R18), a resident of the SNF that Petitioner operates in Sterling, Virginia.  ALJ Decision at 1, 5-6.  R18, born in 1958 and a facility resident since June

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2005, had conditions including epilepsy, spastic hemiplegia affecting the right dominant side, intellectual disabilities, traumatic brain injury, and generalized weakness.  ALJ Decision at 5; CMS Ex. 4, at 1; CMS Ex. 7, at 2-4.  Epilepsy is “a group of neurologic disorders characterized by recurrent episodes of convulsive seizures.”  CMS Ex. 1, at 31 (citing Mosby’s Dictionary of Medicine, Nursing, and Health Professions, 8th ed.).  R18 regularly took meals in his room and had standing orders to receive honey-thickened coffee with each meal.  ALJ Decision at 5 & n.11; CMS Ex. 6; Hearing Transcript (Tr.) at 481.  Petitioner documented on June 23, 2016, at 11:36 p.m. that R18’s family-provided private sitter reported R18 “spilled hot coffee on self and ha[s] burn at [5:30 p.m.].”  CMS Ex. 3, at 1.  A licensed practical nurse noted a “burn on bilateral lower quad,” applied a cold compress, and notified a doctor, who ordered a “wound consult.”  CMS Ex. 10, at 1.

I.        Surveys

In 2017 the Virginia Department of Health’s Office of Licensure and Certification (State Agency) conducted an unannounced standard survey of Petitioner’s facility from March 21 through March 23 and a revisit survey on May 30.  CMS Ex. 1, at 1; CMS Ex. 2, at 2; ALJ Decision at 2-3.  The State Agency’s survey team included three Medical Facilities Inspectors (S.R., A.M., and W.C.) and a Long-Term-Care Supervisor (E.H.); S.R., A.M., and E.H. were Registered Nurses.  CMS Ex. 64, at 1-2; CMS Ex. 65, at 1, 4; CMS Proposed Witness List.  The State Agency issued a Statement of Deficiencies listing three deficiencies at seriousness level “D,” three at level “E,” and one each at levels “F,” “G,” and “K.”  ALJ Decision at 2; CMS Ex. 1, at 1-6, 68-72, 88-90 (“D” tags), 6-10, 76-88 (“E” tags), 72-76 (“F” tag), 10-31 (“G” tag), 31-68 (“K” tag).  The G-level deficiency, Tag F309, cited Petitioner for violating 42 C.F.R. §§ 483.24 and 483.25 by failing to “provide the necessary care and services for a 2nd degree abdominal burn” to R18 and failing to “properly assess, and follow Physician orders to obtain a Wound Consult,” resulting in actual harm.  ALJ Decision at 2-3; CMS Ex. 1, at 10-11.  The K-level deficiency, Tag F323, cited Petitioner for violating 42 C.F.R. § 483.25(d)3 by failing to “provide an environment that was free of hazards” and “to prevent accidents for” R18 and other residents, resulting in immediate jeopardy.  ALJ Decision at 2-3; CMS Ex. 1, at 31-32; see also CMS Ex. 1, at 36-41 (listing other residents at issue).

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II.      CMS’s imposition of remedies

On May 31, 2017, CMS issued its initial determination.  See ALJ Decision at 3; CMS Ex. 2, at 1.  CMS summarized that the surveyors found immediate jeopardy was abated on March 22, 2017 and substantial compliance regained on May 12, 2017.  CMS Ex. 2, at 1-2.  CMS imposed a per-day CMP of $6,550 from June 23, 2016, through March 21, 2017 (the immediate jeopardy period), and thereafter a per-day CMP of $503 through May 11, 2017 (the lesser noncompliance period), totaling $1,806,750.  Id. at 2; ALJ Decision at 3.  Petitioner requested a reduction of the CMP due to financial hardship, and on July 20, 2017, CMS reduced the total CMP by 20 percent to $1,445,400 and approved a payment plan.  ALJ Decision at 3; P. Ex. 20; CMS Exs. 54, 55.

III.     ALJ Proceedings

Petitioner timely requested an ALJ hearing, disputing “the legal and the factual basis for the alleged immediate jeopardy deficiency at F323,” whether “it existed for 272 days,” and “the reasonableness of the CMP imposed.”  Request for Hearing at 1.  Both parties filed pre-hearing briefs and proposed exhibits (73 for CMS, 61 for Petitioner).  ALJ Decision at 3.  The ALJ held two pre-hearing conferences addressing evidentiary objections and other matters, then an in-person hearing on November 12 and 13, 2019.  ALJ Decision at 4 & n.7; Tr. at 7-8, 548.  The ALJ admitted most of the parties’ proposed exhibits4 and heard testimony from ten witnesses.  ALJ Decision at 4; Tr. at 8.  The parties filed post-hearing briefs and reply briefs.  ALJ Decision at 4.

The ALJ issued a written decision on February 16, 2021, ruling that “Petitioner was not in substantial compliance,” CMS’s immediate jeopardy determination was not clearly erroneous, and the CMP was reasonable.  ALJ Decision at 1.  The ALJ made five primary factual findings and conclusions of law.  First, Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) because Petitioner did not maintain an environment as free of accident hazards as possible and provide adequate supervision and assistance devices to protect R18 from foreseeable risks of harm.  Id. at 12.  Second, R18 sustained a serious coffee burn injury on June 23, 2016.  Id.  Third, Petitioner did not subsequently implement corrective actions to mitigate the risks of harm from avoidable

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accidents from hot liquids for 272 days, until March 22, 2017.  Id.  Fourth, Petitioner made no showing that CMS’s determination of immediate jeopardy was clearly erroneous.  Id.  Fifth, the $6,550 per-day CMP was reasonable.  Id. at 23.

IV.     Board Proceedings

Petitioner timely filed this appeal, which is fully briefed, and we deny both parties’ pending motions.  See Appeal of ALJ Decision by P. (RR); CMS’s Resp. to RR (CMS Br.); Reply to CMS Resp. to Appellant’s Req. for Review of ALJ Decision (P. Reply).  The Motion for Oral Argument by Petitioner is denied as moot because Petitioner later withdrew its request.  Not. of Withdrawal of Oral Arg. Req. (dated Sept. 5, 2023).  The CMS Motion for Leave to File Sur-Reply with Incorporated Brief is denied because a sur-reply brief is neither standard nor necessary to decide this appeal.  See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s Participation in the Medicare and Medicaid Programs (Board Guidelines), “Development of the Record on Appeal,” ¶¶ (a)-(c).

Standard of Review

The standard of review on a disputed factual issue is whether substantial evidence supports the ALJ’s decision, and the standard of review on a disputed legal issue is whether the ALJ’s decision is erroneous.  Board Guidelines, “Completion of the Review Process,” ¶ (c).  We review an ALJ’s procedural rulings for abuse of discretion and may reverse any “prejudicial error.”  Id.

Analysis

Petitioner “focuses on F323, the only alleged immediate jeopardy deficiency, which is the sole deficiency at the center of this appeal,” and “does not challenge the non-immediate jeopardy deficiencies.”  RR at 2 n.2 (emphasis omitted); P. Reply at 20.  Thus, all noncompliance findings except those in Tag F323, and the $503 per-day CMP for those non-immediate-jeopardy deficiencies, are final and binding.  See Kenton Healthcare, LLC, DAB No. 2186, at 4-5 n.1 (2008).

Regarding the alleged noncompliance with 42 C.F.R. § 483.25(d), Petitioner claims “the ALJ’s Decision is factually and legally unsupportable and must therefore be reversed.”  RR at 1.  Petitioner groups the ALJ’s alleged errors under numerous headings, primarily challenging:  the existence of a deficiency, id. at 13-30, 34-39; the existence and duration of immediate jeopardy, id. at 7-13; and the reasonableness of the CMP, id. at 32-33, 40.  Petitioner asserts that immediate jeopardy did not exist or at most “only existed for one day, June 23, 2016,” and the amount of the immediate jeopardy CMP was unreasonable.  Id. at 40.  CMS counters that the Burn Incident “seriously harmed” R18, Petitioner then “took no corrective action to reduce the risk of additional injuries,” the determination that

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Petitioner violated section 483.25(d) at the immediate jeopardy level was not clear error, and the CMP is reasonable.  CMS Br. at 1.  After thorough review of the entire record and the parties’ arguments, we affirm the ALJ Decision for reasons explained below.

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

The pertinent regulation, 42 C.F.R. § 483.25(d), requires “reason and professional judgment in assessing what can be done to make residents (given their special needs) safe, through removing accident hazards, providing appropriate devices, and ensuring adequate supervision.”  Glenoaks Nursing Ctr., DAB No. 2522, at 8 (2013).5  Petitioner claims there was “[n]o [d]eficiency at F323,” the tag signifying noncompliance with section 483.25(d).  RR at 19 (emphasis omitted).  We uphold the ALJ’s contrary findings and conclusions for reasons explained below.

1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1).

Per 42 C.F.R. § 483.25(d)(1), facilities “must ensure that . . . [t]he resident environment remains as free of accident hazards as is possible.”  Substantial compliance with section 483.25(d)(1) requires a facility to “identify and remove hazards, where possible, or where the hazard is unavoidable because of other resident needs, manage the hazards by reducing accident risks to the extent possible.”  Morris View Healthcare Ctr., DAB No. 3149, at 10 (2024).  The Board applied this regulatory duty to the hazard of hot liquids (including coffee) in Crawford Healthcare and Rehabilitation, DAB No. 2738 (2016).  In Crawford an SNF’s alleged regulatory violation at the immediate jeopardy level stemmed from three burns from hot coffee spills in one month affecting two different residents, one of whom “sustained second-degree burns requiring lengthy treatment.”  Id. at 2.  The Board upheld CMS’s determinations, explaining that the regulation required the facility to “examine its practices regarding the service of hot liquids; assess the danger posed by those practices to individual residents; identify and implement reasonable precautions to minimize any identified risk; and monitor the effectiveness of its safety measures.”  Id. at 11.

Petitioner maintains that its resident environment was safe and free of accident hazards.   RR at 22-23.  Petitioner relies on testimony by Tamera Kelly, a physical therapist and nursing home administrator, who stated that the residents identified in the Statement of Deficiencies as at-risk (other than R18) never “‘experienced a burn nor is there any

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indication in their records that they ever experienced safety issues with eating/drinking.’”  Id. at 22 (quoting P. Ex. 49, at 8); see also P. Ex. 49, at 1-2; P.’s Ex. & Witness List at 11.  Petitioner also asserts that its coffee temperature logs were not its “determination of what was a ‘safe’ temperature for the residents,” but “merely provided ‘guidance’” on “a reasonable range when coffee is initially dispensed,” before delivery to residents and addition of cooling “milk or creamer.”  P. Reply at 14-15.  Petitioner argues that CMS relies on cases that are factually distinguishable, including Crawford, which Petitioner distinguishes as a case in which “three (3) separate residents,” not just one, “were burned from spilled hot coffee.”  RR at 35-37.

We reject Petitioner’s arguments and uphold the ALJ’s determination of noncompliance because it is based on factual findings that are supported by substantial evidence, meaning “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”  See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).  The surveyors recorded this account of the Burn Incident by R18’s private sitter:

[Resident # 18] has seizures. That day he said he liked to drink some coffee, so I went to the kitchen and got the coffee from the machine and I put thickener in it.  After that I gave it to him and he had a seizure.  His hand went down and the coffee went all over his abdomen.  I toweled him off and told the nurse he had a seizure and spilt his coffee.

CMS Ex. 1, at 25.  That nurse told surveyors that she lifted R18’s shirt “to do an assessment,” saw that the “left quad[rant] had a blister and the right had a scar from the burn [that] was pink,” and then called R18’s doctor, who ordered a “Wound Consult.”  Id. at 56.  R18 told surveyors that the sitter “got me some coffee and when I started to drink it I had a seizure and dropped my coffee in my lap and it burned me,” and “I’m scared to drink it by myself now.”  Id. at 57.

The ALJ supportably found that “Petitioner utilized pre-printed forms to document food and beverage temperatures, with the reference temperature range for coffee listed as 140-150 degrees,” which “represent[ed] Petitioner’s determination that coffee in that temperature range would be palatable and served at the safest temperature possible.”6  ALJ Decision at 11, 21 n.34; P. Exs. 31-39 (temperature logs).  Surveyor S.R. testified that “[t]he Administrator told the surveyors that Potomac did not have a hot liquids policy, but its temperature log form indicated that coffee should be between 140 ºF and 150 ºF.”  CMS Ex. 65, at 24.  J.G., a dietitian who is “part of the management team” for Petitioner, testified that “[w]e attempt to serve coffee to the patient between 140 and 150 degrees.”  P. Ex. 44, at 1, 9.  Petitioner’s expert witness Warner-Maron relied on, and CMS submitted into evidence, a professional journal article identifying “an optimal

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drinking temperature of approximately 136 ºF” for coffee.  P. Ex. 42, at 5; CMS Ex. 72 (F. Brown & K.R. Diller, “Calculating the optimum temperature for serving hot beverages,” 34 Burns 648-654 (2008)), at 1, 6.

The ALJ also supportably found that Petitioner served residents coffee much hotter than 150 degrees both before and for several months after the Burn Incident.  ALJ Decision at 21.  In 2016, Petitioner measured coffee temperatures exceeding 150 degrees on R18’s residential unit (Shenandoah), on most of the days in:  June (21 of 30); July (22 of 31); August (20 of 31); September (19 of 30); October (22 of 31); November (24 of 30); and December (26 of 31).  ALJ Decision at 12; P. Ex. 30, at 5; P. Ex. 31, at 2-31.   Shenandoah unit coffee temperatures are absent from the record for January 2017, but still exceeded 150 degrees for most (15 of 29) days in February 2017 and 12 of the 21 days in March 2017 before Petitioner abated immediate jeopardy on March 22.  P. Ex. 30, at 5-6.  Documented coffee temperatures in two other residential units (Piedmont and Tidewater) reached 160 degrees seven times between June 2016 and March 22, 2017.  P. Ex. 30, at 3, 7.  In the fourth residential unit (Allegheny), Petitioner logged the breakfast coffee temperature at 210 degrees, just under water’s 212 degree boiling point, on June 18, 2016, less than a week before the Burn Incident.  ALJ Decision at 12 n.20; P. Ex. 30, at 1; P. Ex. 31, at 48.  During the survey, “surveyors along with the Dietary Manager determined that the coffee on” the four units of Petitioner’s facility was at 160, 167, 169.3, and 171 degrees.  CMS Ex. 34 (facility action plan to clear immediate jeopardy).

Substantial evidence also supports the ALJ’s finding of “a plainly apparent accident hazard.”  ALJ Decision at 20.  “Brief exposures to liquids in th[e] temperature range” of 160 to 185 degrees “can cause significant scald burns.”  CMS Ex. 72, at 1; see also CMS Ex. 47 (“Safety Facts on Scald Burns,” Burn Foundation (2017)), at 2 (“Spilled hot coffee or tea, usually hotter than 160º, will cause severe injury.”); CMS Ex. 65, at 24 (testimony that temperatures ranging from 160 to 171 degrees “can cause third degree burns in less than a second”) (citing CMS Ex. 70, at 12).  Both parties’ evidence shows that as hot water temperature increases, the time needed to produce second and third degree burns decreases and “scald injury severity varies exponentially with temperature.”  CMS Ex. 72, at 6; P. Ex. 23.

The record also contains substantial evidence to support the ALJ’s determination that the risk to R18 in particular was foreseeable, given his documented impairments.  See Crawford at 10-11 (concluding that accident risk of hot coffee spills was foreseeable as to residents with assessments indicating “medical issues” that “reasonably viewed would pose a foreseeable danger when drinking hot liquids”).  Petitioner’s staff documented that R18 had a seizure the day before the Burn Incident.  CMS Ex. 1, at 50-51, 54; CMS Ex. 10, at 1.  R18 had standing orders to receive honey-thickened coffee – a hot liquid – with each meal.  CMS Ex. 6.  These facts alone show the foreseeability of his seizure while drinking coffee, but the record contains further evidence.  For example, R18’s mother told the survey team that Petitioner was “not supposed to leave him with hot things

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because his seizures can happen anytime, anyplace, and any day.”  CMS Ex. 1, at 53-54.  R18’s lack of other documented scald injuries from hot coffee aside from the Burn Incident does not excuse or negate Petitioner’s noncompliance.  “[T]he regulatory standard does not require that an injury occur before a facility has failed to comply substantially with its requirements.”  Batavia Nursing & Convalescent Ctr., DAB No. 1904, at 54 (2004), aff’d per curiam, 129 F. App’x 181 (6th Cir. 2005).  Nor does an injury need to occur before it can be deemed foreseeable.

The ALJ further supportably determined that “Petitioner did not implement significant and broad interventions until March 22, 2017.”  ALJ Decision at 22.  It was only then, due to the survey, that Petitioner took obvious accident-mitigation measures such as “[r]educing the brewing temperature” of the coffee, “[a]uditing residents for hot liquids risk,” and “[i]nstalling a barrier device to prohibit access to automatic coffee machines,” at least for residents determined to be at risk.  Id. at 22-23.  Until such measures were in place, Petitioner was not in substantial compliance.  In fact, until the survey Petitioner was not even consistently taking the limited step of measuring and logging its coffee temperatures.  P. Ex. 30, at 1, 3, 5, 7 (showing data gaps for dates without logged coffee temperature measurements); P. Ex. 44, at 9 (“There are different dietary aides on each unit and they all complete the task of taking temperatures a little differently,” and “these variations can make a slight difference in the temperatures recorded.”).

There is substantial evidence that Petitioner could have mitigated the accident risk by reducing the “brew temperatures on the hot beverage machines,” as it eventually did on March 22, 2017 during the survey.  CMS Ex. 1, at 33; CMS Ex. 34, at 1.  The feasibility of that measure is evident from Petitioner’s prompt performance of it “prior to ever giving [suveyors] the first plan of correction.”  See Tr. at 48.  Yet for months Petitioner had continued serving coffee that exceeded the facility’s own standard temperature range, even after spilled coffee had burned R18, and after the Board upheld noncompliance findings at the immediate jeopardy level under analogous circumstances.  See Crawford at 6-8 (concerning coffee served at 165, 169, and 171 degrees).

There also is substantial evidence that Petitioner should have evaluated R18 and other residents for risk from hot liquids.  For example, before the Burn Incident, R18 had a care plan focus for “fragile skin,” yet despite his foreseeable accident risk for hot liquid spills and burns, “at the time of his injury, care planning did not address his safety with respect to hot liquids.”  ALJ Decision at 10 (citing CMS Ex. 15, at 3-7).  The Board has upheld a noncompliance determination when, as here, “there is no evidence that [resident] assessments were used to develop residents’ care plans or informed the nursing staff’s practices regarding the service of hot liquids.”  Crawford at 12-13.  After the Burn Incident, Petitioner should have followed its policy on “Unusual Occurrences,” which expressly included “a resident being burned” and called for “a documented investigation of the cause of the unusual occurrence,” then a written “outlining [of] the findings” including “steps to prevent future reoccurrence.”  CMS Ex. 1, at 30, 66; CMS Ex. 29,

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at 1-2.  As surveyor S.R. explained, Petitioner’s policy “highlights the importance of determining the cause of the accident,” which “is critical because without that information a facility does not know how best to prevent future occurrences.”  CMS Ex. 65, at 22.  Yet Petitioner’s Administrator admitted during the survey that after the Burn Incident facility staff “didn’t do an investigation” or “put a plan in place” for prevention and the Administrator had no explanation why not.  CMS Ex. 1, at 13, 58; see also CMS Ex. 58, at 8 (S.R. survey notes); CMS Ex. 65, at 10, 22-23 (S.R. written testimony).  “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.”  Golden Living Ctr. – Mountain View (GLC-MV), DAB No. 3190, at 30 (2025) (citing cases).  Moreover, even without conducting the policy-mandated investigation, Petitioner could have evaluated R18 and other residents “for the ability to handle and consume hot liquids,” to “identify whether care plan interventions were appropriate,” and “whether assistance devices, such as lidded cups, adaptive mugs, or protective blankets, would be appropriate.”  ALJ Decision at 22.

Substantial evidence also shows Petitioner’s failure to take accident-prevention measures concerning the unrestricted accessibility of hot coffee to all residents.  Petitioner does not deny that, until the survey, the dining rooms were “equipped with an industrial coffee machine, from which residents and their visitors could help themselves to coffee at any time of the day or night,” and “the coffee machine was accessible to all of the residents.”  CMS Ex. 65, at 6; see also id. at 24 (“The coffee was accessible to all residents, regardless of their cognitive status or physical limitations.  It was also available to families and caregivers, who could then serve it to residents without staff being aware.”).  Thus, unrefuted evidence shows that Petitioner continued serving residents coffee, including on a self-service basis, at temperatures far exceeding the standard range specified on Petitioner’s own tracking forms, for months after the Burn Incident.  From this evidence it is reasonable to conclude that the facility did not keep itself “as free of accident hazards as is possible.”  See 42 C.F.R. § 483.25(d)(1).

Petitioner unpersuasively attempts to distinguish Crawford as a case in which “three (3) separate residents,” not one, “were burned from spilled hot coffee” and surveyors did not call immediate jeopardy “after the first burn that a resident sustained.”  RR at 36.  In Crawford, as here, CMS assessed immediate jeopardy once a single resident had suffered a second-degree burn.  Crawford at 2-3.  Petitioner’s attempts to distinguish three ALJ (not Board) decisions, see RR at 35-37, are equally unpersuasive because the ALJ Decision did not rely on them and “ALJ decisions are not binding precedent on the Board or other ALJs” in any event.  See Rutland Nursing Home, DAB No. 2582, at 9 n.3 (2014).

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2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(2).

Per 42 C.F.R. § 483.25(d)(2), facilities “must ensure that . . . [e]ach resident receives adequate supervision and assistance devices to prevent accidents.”  Substantial compliance with section 483.25(d)(2) requires a SNF to “identify and assess foreseeable accident risks; determine what, if any, interventions are necessary and appropriate to mitigate the assessed risks; and take timely and effective steps to implement the chosen interventions.”  Good Shepherd Home for the Aged, Inc., DAB No. 2858, at 12 (2018) (citing cases); see also Windsor Health Care Ctr., DAB No. 1902, at 5 (2003) (stating the regulation “require[s] the facility to take reasonable steps to ensure that a resident receives supervision and assistance devices designed to meet his or her assessed needs and to mitigate foreseeable risks of harm from accidents”), aff’d per curiam, 127 F. App’x 843 (6th Cir. 2005).  The supervision and assistance devices provided must “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 7 (2007), aff’d per curiam, 281 F. App’x 180 (4th Cir. 2008); accord Briarwood Nursing Ctr., DAB No. 2115, at 13-14 (2007).

Petitioner contends that supervision and assistance devices were unnecessary.  Petitioner offered testimony that R18’s “low risk of burn injury, evidenced by no actual prior burns and the potential to negatively impact [R18]’s sense of normalcy and quality of life, outweighed his need for any adaptive equipment.”  P. Ex. 43, at 3, ¶ 4.  Petitioner claims “it was not ‘foreseeable’ that [R18] would have a spill eleven years after his admission since he safely drank thousands of cups of hot coffee without any untoward events” until the Burn Incident.7  RR at 20.  Petitioner further argues that “all residents cited on the Statement of Deficiencies were able to safely consume hot coffee without any additional supervision,” and “[t]here is no evidence that assistance devices were needed” for R18 “or any other resident.”  Id. at 11 (emphasis omitted); P. Reply at 8.  Similarly, Petitioner criticizes the “ALJ’s speculation that lids on coffee cups would prevent accidents, in spite of the evidence to the contrary where no accidents occurred in 272 days” of alleged noncompliance.  RR at 18 (emphasis omitted).

We reject these arguments.  Viewing a coffee burn accident to R18 as unforeseeable until it already had happened “stands the concept of foreseeability on its head.”  See Meridian Nursing Ctr., DAB No. 2265, at 10 (2009), aff’d sub nom. Fal-Meridian, Inc. v. U.S. Dep’t of Health & Hum. Servs., 604 F.3d 445 (7th Cir. 2010).  An accident need not “have previously occurred to the same person in the [same] precise manner” to be foreseeable, and “[a] professional care facility can reasonably be expected to exercise

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more foresight than this.”  Josephine Sunset Home, DAB No. 1908, at 14 (2004); see also Briarwood at 10 (requiring no proof “that the accident occurred in a manner clearly presaged by previous actions of the particular resident”).  The risk of a burn injury to R18 from drinking hot coffee was known to Petitioner.  R18’s private sitter told the surveyor that “[e]verytime [R18] has a seizure I tell the nurse,” which is evidence that Petitioner was on notice that R18 suffered recurring seizures, including one suffered on the very day before the Burn Incident.  CMS Ex. 1, at 25, 50-51.  Petitioner’s care planning goal, initiated in 2012, for R18 to be “free from injury from seizure activity” is further evidence that Petitioner knew of that injury risk long before it manifested in the Burn Incident.  CMS Ex. 15, at 15.

In addition to R18, numerous other residents, even those capable of feeding themselves, also had “a foreseeable accident risk” from spilled hot coffee given their documented “cognitive impairments.”  See Crawford at 10-11.  The surveyors identified particularly vulnerable residents with medical conditions including muscle weakness, lack of coordination, cognitive impairment, and dementia.  CMS Ex. 1, at 33-41, 58-59; CMS Ex. 16, at 1; CMS Ex. 17, at 1; CMS Ex. 21, at 1; CMS Ex. 22, at 1; CMS Ex. 24, at 1; CMS Ex. 25, at 1; CMS Ex. 65, at 24-25.  As Petitioner recognizes, hot coffee’s ability to “cause a burn when it comes in contact with skin” is “obvious.”  P. Reply at 16.  An accident is not unforeseeable “simply because the facility reports not having previously known about or witnessed a similar accident.”  Briarwood at 12; see also Josephine Sunset Home at 15 (“For a risk to be foreseeable, it need not have been made obvious by having already materialized.”).  The fortunate absence of a particular accident “no more proves” adequate supervision “than it proves that there was no foreseeable risk of harm.”  Meridian, DAB No. 2265, at 12.

Alternatively, Petitioner contends that “adequate supervision and assistance devices, if necessary, were provided” to the residents at issue, including R18.  P. Reply at 6.  For example, Petitioner contends that it “approved” R18’s private caregiver, who was providing “one-on-one supervision at the time of [R18’s] only coffee spill.”  RR at 19-20; see also P. Reply at 1, 5.  Petitioner also asserts that “all of the residents were supervised during meals when they consumed coffee as there is a nurses’ station in the direct line of sight of all residents.”  P. Reply at 7; see also RR at 21-22.  Petitioner further asserts that it provided adequate assistance devices to residents, RR at 20, none were deprived of assistance devices, and “[l]ids on coffee cups were not needed” and “may actually have been counterproductive,” id. at 23.

We reject those contentions.  “The facility must conduct initially and periodically a comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity,” including completion of the Minimum Data Set (MDS) or a CMS-approved equivalent.  42 C.F.R. § 483.20; id. §§ 483.20(b)(xvii), 488.315(a), (b), (d).  In June 2016, shortly before the Burn Incident, Petitioner documented in R18’s MDS that he needed extensive assistance, including “weight-bearing support,” with several Activities

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of Daily Living (ADLs), including “Self-Performance” of “Eating,” and he needed limited assistance like “maneuvering of limbs” even when receiving support.  ALJ Decision at 5; CMS Ex. 5, at 15.  Petitioner coded R18 with “functional impairment in range of motion in all four limbs, meaning both arms and both legs.”  CMS Ex. 65, at 11; see also CMS Ex. 5, at 16.  The MDS checklist of R18’s “Functional problems that affect ability to eat” included “[p]artial or total loss of arm movement” and “[i]nability to perform ADLs without significant physical assistance.”  CMS Ex. 5, at 62.  An “overall objective” of care planning for R18’s “Nutritional Status – Functional Status” was to “[m]inimize risks,” and a stated goal of his care plan was for him to “be free from injury from seizure activity.”  CMS Ex. 5, at 64; CMS Ex. 15, at 15.  Yet for over four years before the Burn Incident – since March 29, 2012 – R18’s care plans specified no interventions to prevent the foreseeable risk of his mobility limitations and seizures causing hot liquid spills.  See ALJ Decision at 11 (citing CMS Ex. 15, at 15-16).  Petitioner only initiated a care plan goal for R18 to “remain free from burns related to hot liquids,” with specified interventions for achieving that goal, on March 22, 2017, during the initial survey.  CMS Ex. 15, at 47.

Petitioner did not show that it adequately supervised R18 and others facing similarly foreseeable risks of accidental injury.  A facility has “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,” including “the resident’s ability to protect himself or herself from harm.”  Windsor Health, DAB No. 1902, at 5.  An “adequate” level of supervision is “reasonably designed to meet the resident’s needs and functional capacity (as reflected in the comprehensive assessment and plan of care).”  Id. at 15.  There is no evidence that R18’s private sitter gave him either the “[e]xtensive assistance” (including “weight-bearing support”) or “[l]imited assistance” (such as “guided maneuvering of limbs”) that his MDS said he needed when eating.  See CMS Ex. 5, at 15.  Moreover, Petitioner’s policy on private duty sitters limits their ability to provide such assistance and places the ultimate duty to care for residents on Petitioner’s own staff.  CMS Ex. 52 (“The Sitter is allowed to assist the resident at meal times,” but “without doing any lifting,” while “[t]he facility nursing staff is ultimately responsible for providing care and services” and “[t]he facility is ultimately responsible for the residents[’] care.”); P. Ex. 40 (same).  That policy aligns with federal law, for “section 483.25([d])(2) makes the facility ultimately responsible for ensuring the safety of residents.”  Ne. Ohio Alzheimer’s Rsch. Ctr., DAB No. 1935, at 8 (2004) (underlining replaced with italics).  Yet Petitioner’s “Dining Room Support Program, Updated 2/1/2017,” lacked any specific interventions to avert accidental hot liquid spills.  P. Ex. 21, at 1.  Petitioner does not explain how the ability to observe dining rooms from nursing stations was adequate to prevent such spills before they happened, particularly to residents like R18 who took meals in their rooms, and given that at times no nurse was at the nursing station, see Tr. at 480-81.

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Petitioner also did not show that it provided adequate assistive devices for at-risk residents.  The Board has affirmed that “serving coffee to some residents in unlidded cups,” particularly after a resident has suffered a spill accident, poses “a foreseeable risk of accidental harm to [facility] residents, or at least to residents having certain impairments, such as severe defects in cognition.”  Crawford at 6, 9.  Yet before the surveyors assessed immediate jeopardy, Petitioner admittedly “did not have sip spout lids that would allow patients to drink out of the coffee cup.”  P. Ex. 45, at 9; P. Ex. 48, at 22.  After R18’s Burn Incident, Petitioner did not even assess whether “assistance devices, such as lidded cups, adaptive mugs, or protective blankets, would be appropriate” for R18 and other residents, much less give them such devices.  ALJ Decision at 22.  If some residents “disliked and removed lids,” then Petitioner was obligated to “devise and implement other, more effective measures to ensure residents’ safety,” but did not.  See Crawford at 11.

3. Petitioner shows no compelling reason to reject the ALJ’s credibility assessments and weighing of the evidence.

Petitioner challenges the ALJ’s assessments of witness credibility and weighing of the evidence.  See, e.g., RR at 5 (inviting Board “to consider how and why the ALJ could treat a surveyor’s testimony as gospel even though she lacked veracity and candor to the tribunal while the ALJ simultaneously ignored” testimony from Petitioner’s “multiple credible and unimpeached witnesses”), 25 (arguing “much of the ALJ’s Decision hinges on Survey[or] [S.R.’s] unproven hearsay and otherwise unreliable testimony”), 25-28 (listing examples of S.R.’s “lack of candor to the tribunal and disingenuous testimony”).  Petitioner asserts the purportedly superior expertise and credibility of its own witnesses.  See, e.g., id. at 22-23 (concerning credentials of witness Kelly), 28 & n.24 (concerning the “[u]nchallenged” testimony of witness Warner-Maron), 30 (concerning opinion of A.F. Hemphill, M.D.).  Petitioner contends that the ALJ erred by relying on hearsay from R18’s private caregiver rather than the testimony of facility nursing staff, id.at 32-33, and by engaging in speculation about Petitioner’s credibility, id. at 35.

Petitioner presents no reason to overturn the ALJ’s assessment of the surveyors’ credibility.  Surveyor S.R. testified regarding Tag F323 that her “observations and interviews” were “accurately documented” in the Statement of Deficiencies and its findings were “accurate and complete,” CMS Ex. 65, at 4-5, and her nearly six hours of testimony gave the ALJ ample opportunity to assess credibility.  See Tr. at 327-28.  “We generally give deference to the credibility assessments of the factfinder who can observe the demeanor of witnesses and evaluate their testimony firsthand.”  Asbury Ctr. at Johnson City, DAB No. 1815, at 10 n.2 (2002), aff’d, 77 F. App’x 853 (6th Cir. 2003).  In many instances, therapy records that Petitioner faults the surveyors for ignoring lack probative value because, as pointed out at the hearing, they either postdate the survey or bear no date at all.  See, e.g., Tr. at 153-56, 158-60, 171-74, 213-14, 231-32; P. Ex. 4, at 6-10 (postdating survey); P. Ex. 5 (same); P. Ex. 7, at 2 (same); P. Ex. 10, at 1

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(undated), 26-45, 54-57 (postdating survey); P. Ex. 11, at 2 (same), 3-5 (undated); P. Ex. 14, at 1-5, 41-52, 59-61, 85-100, 105-07, 109 (postdating survey).  To the extent the ALJ found Petitioner’s witnesses less credible than CMS’s, the ALJ had authority and permissible grounds to do so.  See Jennifer Matthew Nursing & Rehab. Ctr., DAB No. 2192, at 30-31 (2008) (acknowledging testimony by facility’s administrator and director of nursing but holding ALJ “reasonably gave less weight to this testimony than to the surveyors’ observations and other evidence or undisputed facts, fully discussed in her decision”), appeal dismissed as moot, 607 F.3d 951 (2d Cir. 2010); Batavia Nursing & Convalescent Inn, DAB No. 1911, at 26 (2004) (“[I]n evaluating testimony, an ALJ may reasonably take into account factors such as witness qualifications and experience, as well as self-interest.”), aff’d, 143 F. App’x 664 (6th Cir. 2005).  Furthermore, even if established, “[i]nadequate survey performance does not – (1) Relieve a SNF or NF of its obligation to meet all requirements for program participation; or (2) Invalidate adequately documented deficiencies.”  42 C.F.R. § 488.318(b).

The ALJ also did not have to give Petitioner’s witness testimony, including any expert testimony, greater weight than the testimony of the State Agency surveyors.  CMS need not present expert witness testimony to establish noncompliance.  Hanover Hill Health Care Ctr., DAB No. 2507, at 6 (2013).  A facility’s mere presentation of witnesses who “qualified as experts does not mean that their testimony is entitled to more weight than that of experienced surveyors.”  Coquina Ctr., DAB No. 1860, at 15-16 n.11 (2002).  The ALJ supportably discounted Petitioner’s expert evidence.  See, e.g., ALJ Decision at 16 n.26, 18 & nn. 30-32 (explaining factual grounds for rejecting opinions of witnesses Warner-Maron and Hemphill).  “In general, the Board defers to an ALJ’s findings on the credibility of witness testimony unless there are compelling reasons not to do so,” and there are none here.  See Autumn Ridge Rehab. Ctr., DAB No. 2467, at 12 (2012).

We reject Petitioner’s contention that the ALJ erroneously relied on “wildly inflammatory uncorroborated hearsay.”  P. Reply at 11.  Hearsay “may be received at the hearing even though inadmissible under the rules of evidence applicable to court procedure.”  42 C.F.R. § 498.61; accord Florence Park Care Ctr., DAB No. 1931, at 10 (2004).  The ALJ noted Petitioner’s “belated” hearsay argument, first raised by “post-hearing reply brief,” which challenged surveyor S.R.’s credibility about statements by R18 and his private sitter.  ALJ Decision at 15 n.24.  The ALJ found “no basis to reject [S.R.]’s reports, which were subject to cross-examination, as unreliable,” noting that “Petitioner did not challenge this testimony on cross-examination” and presented no “probative evidence to the contrary,” despite the opportunity to do so.  Id.  We perceive no error, as the factors an ALJ may consider when evaluating a hearsay statement’s reliability include whether “the opposing party has the means to . . . verify [the statement’s] accuracy” and whether “the statement is corroborated or contradicted by other evidence.”  Florence Park at 10.

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The ALJ permissibly noted that “Petitioner lacks credibility” in claiming that “no other burns occurred during the 272 days before it returned to substantial compliance,” as “it does not appear that Petitioner has always had a mechanism to track and monitor residents’ burn injuries.”  ALJ Decision at 26 n.41.  Petitioner claims the ALJ’s credibility assessment was “at best, inappropriate given the abundance of evidence to the contrary and zero evidence that supports her speculation.”  RR at 35.  Yet Petitioner bears the burden, which it has not met, “to point us to any particular documents or testimony that, in its view, contradicted the finding,” and “must identify specific evidence that it claimed the ALJ disregarded.”  See Emerald Oaks, DAB No. 1800, at 30 (2001).  “As noted previously, absent a compelling reason, we defer to credibility assessments made by an ALJ, and we do so again in this instance.”  Batavia, DAB No. 1911, at 52-53.

Reevaluation and reweighing of the evidence concerning noncompliance is not the Board’s role.  “It is the hearing officer’s, and not the Board’s, responsibility to assess a witness’s qualifications and credibility by listening in person to the witness’s testimony and observing his demeanor.”  Hermina Traeye Mem. Nursing Home, DAB No. 1810, at 8-9 (2002), aff’d per curiam sub nom. Sea Island Comprehensive Healthcare Corp. v. Thompson, 79 F. App’x 563 (4th Cir. 2003).  “We have repeatedly held that the role of appellate review is not to substitute our evaluation of the evidence for that of the ALJ, but only to determine whether the factual findings made by the ALJ are supported by substantial evidence in the record as a whole.”  Cmty. Nursing Home, DAB No. 1807, at 4 (2002).  The ALJ’s factual findings satisfy that standard, because they are based on relevant evidence that a reasonable mind might accept as adequate to support the conclusion of noncompliance.  See Richardson, 402 U.S. at 401.

4. Federal regulations need not specify safe coffee temperatures, and CMS’s noncompliance determination did not improperly rely on the SOM.

The relevant regulations do not prescribe “the specific manner” of compliance but rather let the facility “determine the means to achieve the regulatory ends (prevention of accidents).”  Woodstock Care Ctr., DAB No. 1726, at 28-29 (2000), aff’d, 363 F.3d 583 (6th Cir. 2003), reh’g & reh’g en banc denied (Feb. 20, 2004).  “As the Board has repeatedly explained, the regulations do not focus on imposing checklists of specific measures every nursing facility must take but instead emphasize the results that facilities are to achieve while permitting a flexible choice of means.”  Briarwood at 11 n.7.

Petitioner nevertheless stresses that “there is no federal or state definition for ‘safe coffee temperatures’ of hot coffee” and “no federal or state regulation regarding the ‘safe temperature’ of hot coffee served in nursing homes.”  RR at 2, 14.  Petitioner also argues that the “regulations are silent” as to “coffee lids for residents” and “there is no regulation addressing lids on coffee.”  Id. at 18, 24.  Petitioner claims immediate jeopardy was based “on a hot water chart in the SOM, not a regulation” and the surveyors failed to make that distinction.  Id. at 14; see also id. at 24-25.  Petitioner argues that CMS relied

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on the SOM, which is not “sufficient to demonstrate a regulatory violation.”  Id. at 24-25.  Petitioner further asserts that “the Secretary’s ‘Good Guidance Principles’ directs agencies, such as CMS, not to impose sanctions based on sub-regulatory guidance.”  Id. at 6 n.10 (citing 85 Fed. Reg. 51,396 (Aug. 20, 2020)); see also RR at 16.

The absence of regulatory language specifying a maximum safe temperature for hot coffee served to SNF residents or requiring cup lids is not a basis for reversing CMS’s noncompliance determination.  “To say that a facility is not responsible for negative outcomes that it could have reasonably foreseen and taken steps to prevent only because section 483.25[d] does not spell out specific resident safety measures a facility must or should take would render the regulation’s intent meaningless, and strip it of its intended effect.”  Lifehouse of Riverside Healthcare Ctr., DAB No. 2774, at 15 (2017).

Neither CMS nor the ALJ improperly relied upon the SOM to establish noncompliance.  CMS confirms that it based the deficiency cited at F323 on the applicable regulations, not the SOM.  CMS Br. at 27.  Surveyor S.R. acknowledged that the SOM is not a regulation but instead is subregulatory guidance for surveyors.  Tr. at 27.  The ALJ agreed that the SOM “provides guidance to state agency surveyors,” and while “not binding on these proceedings,” it “addresses the fundamental concept that as the temperature of a hot liquid increases, it takes less time for someone to sustain a burn when exposed to the hot liquid.”  ALJ Decision at 22.  “Thus,” the SOM supports the premise that “when liquids are served at higher temperatures than is necessary, residents may be unnecessarily exposed to harm.”  Id. (emphasis omitted).  The ALJ then accurately observed that Petitioner “set its own hot liquid service temperature range between 140 and 150 degrees,” and presented no evidence that this range lacked “a reasonable basis,” yet “frequently recorded coffee temperatures well in excess of that temperature range.”  Id.  “[W]hile the SOM can provide useful guidance as to CMS’ interpretations of applicable law, the courts and the Board have held that the SOM does not itself have the force of law.”  Cal Turner Extended Care Pavilion, DAB No. 2030, at 13 (2006).  CMS and the ALJ adhered to this principle and did not give the SOM undue weight.

Petitioner’s argument concerning the Good Guidance Principles is also mistaken.  The referenced rule states that “the Department may not issue any guidance document that establishes a legal obligation that is not reflected in a duly enacted statute or in a regulation lawfully promulgated under a statute.”  85 Fed. Reg. at 51,400 (proposed rule); 85 Fed. Reg. 78,770, 78,785 (Dec. 7, 2020) (final rule).  As discussed above, here the noncompliance determination resulted from apt application of the governing regulation, rather than reliance on the SOM or any other guidance document.

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5. Petitioner’s claims of forced violation of residents’ rights are meritless.

Residents have “[t]he right to reside and receive services in the facility with reasonable accommodation of resident needs and preferences except when to do so would endanger the health or safety of the resident or other residents.”  42 C.F.R. § 483.10(e)(3).

Petitioner claims CMS forced it to violate residents’ rights, including those protected by 42 C.F.R §§ 483.15(a), 483.15(e), and 483.35(d)(3).  RR at 37; P. Reply at 17-19. Petitioner argues that federal regulations require that facilities serve coffee in accordance with residents’ preferences.  RR at 16 (citing 42 C.F.R. § 483.60).  Petitioner asserts that its “coffee-drinking residents . . . are extremely dissatisfied with the lower coffee temperatures” the surveyors “arbitrarily forced” on the facility and “those residents deserve better than the tepid coffee they are now forced to drink.”  Id. at 39.

We reject these arguments on both factual and legal grounds.  Surveyor S.R. testified that “our team never told [Petitioner] they had to lower the temperatures” of brewing on Petitioner’s coffee machines, and Petitioner itself chose that step even before presenting the facility’s first plan of correction and when other options were available.  See Tr. at 47-48, 105-06 (discussing alternatives such as “mov[ing] the coffeemakers to an area that was not resident accessible” or placing brewed coffee into “a holding container” until it reached “a certain temperature”).  The regulations Petitioner cites are irrelevant, as 42 C.F.R §§ 483.15(a) and (e) concern, respectively, a facility’s policies for resident admission and return to the facility, and section 483.35(d)(3) relates to licensed nurse requirements.  “Irreducibly hard choices exist between preserving freedom and dignity and preserving health and safety” of residents, as the Board has recognized.  Woodstock, DAB No. 1726, at 35.  However, Petitioner has not proven that CMS dictated any measures that prevented “reasonable accommodation of resident needs and preferences” as to coffee temperature, or that accommodating the preferences of some residents would not “endanger the health or safety” of any others.  See 42 C.F.R. § 483.10(e)(3).

6. The ALJ did not improperly defer to agency interpretation of regulations.

Courts “may not defer to an agency interpretation of the law simply because a statute is ambiguous.”  Loper Bright Enters. v. Raimondo, 603 U.S. 369, 413 (2024).  However, ALJs and the Board “sit as part of the administrative adjudication process, not as a federal court,” so “[w]hile the various court approaches to reviewing agency action inform our thinking, they do not directly apply to our role.”  Orton Motor Co., DAB No. 2717, at 6 (2016), aff’d, 884 F.3d 1205 (D.C. Cir. 2018); accord Mo. Dep’t of Soc. Servs., DAB No. 3156, at 21-24 (2024).

Petitioner asserts that the ALJ committed legal error by excessively deferring to agency interpretation of the applicable regulations.  RR at 16-19.  Petitioner argues that ‘deference’ to CMS’ interpretation of its regulations conflicts with Supreme Court and

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federal court decisions,” namely Kisor v. Wilkie, 588 U.S. 558 (2019) and Azar v. Allina Health Services, 587 U.S. 566 (2019).8  RR at 6 & n.10; see also id. at 16-18.

As CMS states, Kisor and Allina Health “have no applicability to this case.”  CMS Br. at 28.  As “[n]either party has identified any ambiguity in the plain language of” a regulation, “and we perceive none,” we “need not address any arguments about the extent to which either party’s ‘interpretation’ of the regulation is reasonable, unreasonable, or deserving of deference.”  See Next Door Found., Inc., DAB No. 3161, at 13 (2024).

Petitioner appears to argue that the SOM is ambiguous but relies on two federal circuit court decisions that are neither mandatory nor persuasive authority.  See Golden Living Center – Mountain View v. Sec’y of Health & Hum. Servs. (Golden Living), 832 F. App’x 967 (6th Cir. 2020); Elgin Nursing & Rehab. Ctr. v. U.S. Dep’t of Health and Hum. Servs., 718 F.3d 488 (5th Cir. 2013).  RR at 17.  The present case arose in a facility in the Fourth Circuit, not the Fifth or Sixth Circuit, and “the Board is not bound to apply a decision from a different circuit as controlling precedent.”  Ind. Dep’t of Pub. Welfare, DAB No. 970, at 5-6 (1988), aff’d, 934 F.2d 853 (7th Cir. 1991).  Moreover, both cases are distinguishable.  Golden Living held that CMS had not “properly put [the facility] on notice that failure to consider adding additional staffing in the face of unwitnessed falls would constitute a violation.”  832 F. App’x at 974.  The present case features no analogous issues of deficient notice.  Elgin concerned an interpretive disagreement over an SOM provision, 718 F.3d at 491-96, but here there is no such dispute.  As discussed above, the SOM “does not provide a specific temperature” for coffee served by SNFs, and Petitioner’s choice to “set its own hot liquid service temperature range between 140 and 150 degrees” does not conflict with any SOM provision.  ALJ Decision at 22 (emphasis omitted).

7. The ALJ did not err by considering facts relevant to Tag F309 that also were relevant to Tag F323.

“The ALJ rules on the admissibility of evidence.”  42 C.F.R. § 498.61.  “Under 42 C.F.R. § 498.61, an ALJ has broad discretion to admit evidence.”  Jennifer Matthew at 51.  Factual findings from a survey can be relevant to, and support, more than one tag.  See Azalea Ct., DAB No. 2352, at 12 (2010) (holding that CMS permissibly cited same findings under different tag numbers, including F323), aff’d, 482 F. App’x 460 (11th Cir. 2012); N.C. State Veterans Nursing Home, Salisbury, DAB No. 2256, at 15 n.13 (2009) (noting that two tags are not redundant when “the same findings support both”).

Petitioner objects that “the ALJ muddle[d] her Decision by introducing facts and allegations regarding an unrelated matter,” specifically “[Tag] F309,” which “was not” and “is not” an issue in this appeal.  RR at 2 (emphasis omitted); P. Reply at 2 n.2.  See

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also RR at 2-3 (asserting that “the sole deficiency at issue was F323,” but the ALJ “discussed the nonissue of F309 (i.e., the wound care and response to [R18]’s only burn) for 19 pages of her 26-page Decision”); id. at 4 (R18’s “sole wound was conceded under F309 and cannot support 272 days of immediate jeopardy at F323.”); id. at 34 (“Any wound care [R18] received or did not receive, has no bearing on the issues related to F323 and 272 days of immediate jeopardy.”).

The ALJ considered Tag F309 and its factual basis to be relevant to the immediate jeopardy assessment, see ALJ Decision at 14, and we perceive no error.  Concerning Tag F309, the Statement of Deficiencies summarized that Petitioner “failed to properly assess, and follow Physician orders to obtain a Wound Consult following a 2nd degree abdominal burn from a hot coffee spill on 6/23/16 resulting in a 7 day delay in treatment for Resident #18, which constitutes harm.”  CMS Ex. 1, at 11.  This lack of prompt medical care necessarily caused a lack of contemporaneous medical documentation.  Petitioner even stipulated that “‘some of the documentation regarding a burn is lacking’” and therefore “‘conceded’” the F309 deficiency.  ALJ Decision at 14 (quoting Tr. at 377).  Yet Petitioner’s argument that R18’s injury “was not serious enough to sustain a determination of immediate jeopardy” was “largely premised on the lack of contemporaneous documentation regarding the wounds.”  Id.; see also id. at 26 n.41 (noting that “Petitioner’s system of records failed to yield a single contemporaneous document providing a description of his wounds,” including their “precise locations, sizes, and depths”).  The ALJ thus reasonably rejected Petitioner’s “effort to use its own failure to provide adequate care for Resident #18’s injury as a weapon to challenge the immediate jeopardy determination” as to Tag F323.  Id. at 14-15.

The ALJ also considered Tag F309 and its factual basis to be relevant to the CMP amount, see ALJ Decision at 25, and again we perceive no error.  The regulatory factors for evaluating the CMP amount include the seriousness of a facility’s “deficiencies” (plural), the relationship of “one deficiency to other deficiencies,” and “[t]he facility’s degree of culpability.”  42 C.F.R. §§ 488.404(b)(1) and (2), (c)(1); 488.438(f)(3)-(4).  The ALJ found Petitioner’s several cited deficiencies collectively “egregious,” and Petitioner culpable, in part because per Tag F309, “Petitioner failed to ensure that Resident # 18 received timely treatment for his burns.”  ALJ Decision at 25-26.  Petitioner’s decision to contest only the immediate jeopardy deficiency, Tag F323, could not preclude consideration of Tag F309 under the factors for determining the reasonableness of the CMP amount.  See Heritage House of Marshall Health & Rehab. Ctr., DAB No. 2566, at 17 n.7 (2014) (noting that “[t]he seriousness of [a facility]’s failure to comply substantially with” a participation requirement that the facility “does not dispute on appeal, is also relevant” to the reasonableness of the CMP); Jennifer Matthew at 39-40 (upholding ALJ’s conclusion that CMP was reasonable, given “the nature and scope of the deficiencies,” including not only the “two factual situations leading to noncompliance findings at the immediate jeopardy level” but also the “seven other undisputed noncompliances” at lesser levels).

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8. Petitioner has not established procedural error by the ALJ.

1. The ALJ did not err by not issuing subpoenas.

A “party must file a written request for a subpoena with the ALJ at least 5 days before the date set for the hearing,” and the ALJ may issue the requested subpoena if it is “reasonably necessary for the full presentation of a case.”  42 C.F.R. § 498.58(a)-(b).

Petitioner alleges that the ALJ “refused” Petitioner’s request to subpoena two non-testifying surveyors and thus kept Petitioner “from cross-examining half of the survey team,” which “hampered” Petitioner’s case regarding F323.  RR at 6; see also id. at 31.

The ALJ did not err because, “in refusing to issue the subpoena, the ALJ applied the plain language of the subpoena regulation.”  See Kenton Healthcare at 29.  Petitioner did not file a written request to subpoena the two surveyors in question, E.H. and A.M., as the regulation requires.  At the time of the hearing those two individuals “no longer worked for the state survey agency,” so CMS withdrew their written testimony.  Oct. 24, 2019 ALJ Order Summarizing Oct. 23, 2019 Pre-Hr’g Conference at 1.  The ALJ confirmed she would not admit or consider that testimony in deciding the case and “explained that Petitioner, rather than seeking the issuance of subpoenas, may use its post-hearing briefing to present” arguments concerning “the withdrawal of this testimony.”  Id. at 2.  We have upheld comparable evidentiary rulings and perceive no error.  See Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375, at 33-34 (2011) (finding no error when ALJ “permitted CMS to withdraw” a witness’s declaration, declined to order the witness’s appearance, and instead invited the SNF “to make an offer of proof on the record” subsequently).

Petitioner also has not established that a subpoena was reasonably necessary for full presentation of the case.  Petitioner claims the ALJ denied it a “fair and full [h]earing” on the non-testifying surveyors’ “input into the Statement of Deficiencies and immediate jeopardy.”  RR at 6 n.9.  However, “the quality of the surveyors’ information gathering or thought processes is immaterial because the compliance issues presented are ones that the ALJ decides de novo.”  Oaks of Mid City at 33.  Regardless, the ALJ gave Petitioner “some latitude to address the other surveyors’ findings” during the extensive cross-examination of the surveyor, S.R., who drafted the disputed Tag F323.  ALJ Decision at 4; CMS Ex. 65, at 4; Tr. at 265.  Petitioner also “believes it could have established” through the additional surveyors’ testimony the “forced” lowering of Petitioner’s coffee brewing temperature, “even more than [Petitioner] did with the multiple staff members who credibly testified” to that effect.  P. Reply at 9 & n.4.  Such evidence, even if relevant, would have been cumulative and properly subject to exclusion on that basis.  See Oaks of Mid City at 34.

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2. The ALJ did not err by excluding evidence.

Under 42 C.F.R. § 498.61 the ALJ “rules on the admissibility of evidence,” with “broad” discretion to admit and exclude evidence, see Jennifer Matthew at 51.  “A request for review of an ALJ decision” must specify “the basis for contending that the [ALJ’s] findings and conclusions are incorrect.”  42 C.F.R. § 498.82(b).  The Board “will vacate or modify an ALJ’s decision based on an allegedly improper evidentiary ruling only if the appellant demonstrates that the ruling was prejudicial.”  Carrington Place of Muscatine, DAB No. 2321, at 22 (2010).

Petitioner objects “to the ALJ refusing to admit into evidence the video of the President and Secretary of the Resident Council,” which was Petitioner’s proposed Exhibit 1A, but this objection is baseless.  See P. Reply at 18 n.7.  The ALJ excluded the video as “not accompanied by a transcription,” and “essentially an effort to circumvent” the requirement for parties to submit “sworn written testimony that is subject to cross-examination.”  See May 23, 2019 ALJ Order Summarizing May 21, 2019 Pre-Hr’g Conf. at 2.  Petitioner does not specify any basis for claiming error, as 42 C.F.R. § 498.82(b) requires, except to invoke the video’s “chain of custody” and “authenticity,” which were not the basis for the ALJ’s evidentiary ruling.  RR at 38; P. Reply at 18 n.7.  Petitioner also shows no prejudice, as the ALJ admitted the video’s companion Exhibit 1B, a written letter from the Chairman and Secretary of the Resident Council, and Petitioner makes no proffer of what the video would show that the letter did not.  We have upheld the exclusion of videotape evidence under analogous circumstances.  Golden Age Skilled Nursing & Rehab. Ctr., DAB No. 2026, at 10 (2006) (upholding exclusion of videotape evidence where petitioner presented inconsistent arguments before ALJ and Board, and the videotape seemingly had “negligible, if any, evidentiary value”).

II.      CMS’s determination that immediate jeopardy existed is not clearly erroneous.

“CMS’ determination as to the level of noncompliance of a SNF,” including immediate jeopardy, “must be upheld unless it is clearly erroneous.”  42 C.F.R. § 498.60(c)(2); Crawford at 14-15, 18.  “The ‘clearly erroneous’ standard means that CMS’s immediate jeopardy determination is presumed to be correct, and the burden of proving the determination clearly erroneous is a heavy one.”  Glenoaks at 16.  To rebut the presumption of correctness, the facility must present “evidence and argument showing that the harm or threatened harm did not meet any reasonable definition of ‘serious.’”  Daughters of Miriam Ctr., DAB No. 2067, at 9 (2007); accord Yakima Valley Sch., DAB No. 2422, at 8 (2011).

Petitioner raises several challenges to immediate jeopardy.  Petitioner alleges clear error in the ALJ’s assessment that R18 suffered serious injury in the Burn Incident.  RR at 30-31.  Petitioner maintains that R18’s injury was approximately dime-sized and objects to the ALJ’s “repeated and prejudicial reference to a wound that was ‘55 square

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centimeters’” as “egregious factual error” and “a clearly erroneous statement.”  RR at 3, 18.  Petitioner relies on the “demonstrably true fact” that Petitioner’s staff documented that R18 denied feeling any pain.  P. Reply at 12.  Concerning other residents, Petitioner argues that “[t]he undisputed facts do not support a determination that a ‘crisis situation’ existed from June 23, 2016 through March 21, 2017 or that severe harm was ‘likely to occur in the very near future,’ as required by CMS’ guidance.”  RR at 13.

We uphold the ALJ’s rejection of Petitioner’s argument that R18’s burn injury “was not serious enough to sustain a determination of immediate jeopardy.”  ALJ Decision at 14.  It is undisputed that the resident “sustained a burn injury when he spilled coffee on himself.”  Id. at 15; see RR at 4-5 (stating R18 received a “single 2nd degree burn”).  The ALJ found Petitioner “misrepresented the evidence of record” by stating as “fact” that a nurse “documented contemporaneously” a “dime-sized” wound from the hot coffee spill, when in fact the nurse first used that description “more than nine months later.”  ALJ Decision at 16-17 (citing Tr. at 207; CMS Exs. 10, 67).  The ALJ found that R18 “sustained a serious burn injury” because it was an open wound that eyewitnesses described as bleeding, raw, awful, and shocking, it took weeks to heal, and it left scarring observed months later.  Id. at 18-19 (citing CMS Exs. 1, 10, 14, 65).  “Regardless of whether the wound was second-degree or third-degree,” the ALJ summarized – which was not determinable without timely medical care and documentation that Petitioner did not provide – the record contained “compelling evidence” that R18 “had a prolonged recovery with open abdominal wounds for approximately six weeks.”  Id. at 19.

Petitioner’s attempts to minimize the size of R18’s wound are contrary to substantial evidence in the record, and the wound’s exact surface area is not dispositive as to its severity in any event.  There is evidence that R18 showed surveyors two lower abdominal scars from the Burn Incident, which were distinct from a gallbladder removal scar, and on March 23, 2017 a nurse documented scar measurements of 6 by 7.5 centimeters and 3.3 by 3 centimeters.  ALJ Decision at 9-10, 16; CMS Ex. 10, at 3; Tr. at 290-95.  R18’s mother reportedly told the survey team the wound “took a long time to heal,” was “open, and bleeding,” and “was awful for a long time.”  CMS Ex. 1, at 53.  R18’s sitter stated the wound “took more than a month to heal,” and meanwhile “would bleed.”  Id. at 25.  On June 29, 2016, six days after the Burn Incident, Petitioner’s staff documented R18’s “open areas on abdomen” and a telephone order for “[f]oam dressing to open blister areas on abdomen.”  CMS Ex. 10, at 2; CMS Ex. 12, at 8; CMS Ex. 15, at 8, 10.  R18’s Treatment Administration Records show a start date of June 30, 2016 for the foam dressing and a “D/C Date” of August 5, 2016.  CMS Ex. 13, at 26-29.  Weekly Body Audits document R18’s abdominal burn as an “[o]pen area” or “opened area” on June 24 and July 1, 8, 15, 23, and 30 of 2016.  CMS Ex. 14, at 2, 4, 6, 8, 10, 12.  Complete abdominal wound closure was not recorded until R18’s August 6, 2016 Body Audit, which noted only “2 reddened areas,” and his August 13, 2016 Body Audit, which noted “[o]ld burn scar[]s.”  Id. at 14, 16.

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The record also contains substantial evidence that the Burn Incident caused R18 pain.  The ALJ discussed evidence that R18 subsequently “denied any pain” to Petitioner’s staff, but also that he told his private caregiver, “I have pain and pointed to his belly.”  ALJ Decision at 7, 9 (citing CMS Exs. 1, 10, 65).  Petitioner documented three weeks before the Burn Incident that R18 “cannot always communicate discomfort.”  CMS Ex. 9, at 1.  Petitioner presented testimony that, while R18’s burn was not “categorized as serious or painful in any contemporaneous documentation,” he “did feel the burn.”  P. Ex. 43, at 5, 9.  There also is evidence that R18 suffered psychological pain, as he reported feeling “scared” to drink coffee by himself since the Burn Incident.  CMS Ex. 1, at 57; CMS Ex. 65, at 14 (testimony by surveyor S.R. that the Burn Incident harmed R18 “both physically and psychologically”).  “Consistent with the regulations and CMS guidance, the Board has recognized that serious harm or injury can be psychological as well as physical in nature.”  Springhill Senior Residence, DAB No. 2513, at 18 (2013).

We reject any contention by Petitioner that a second-degree burn is necessarily a minor injury.  The Statement of Deficiencies cites the Centers for Disease Control and Prevention’s definition of second-degree burns as involving “the first two layers of skin” with signs including pain, blisters, and possible skin loss.  CMS Ex. 1, at 26, 57.  The American Burn Association characterizes a second-degree burn as “[v]ery painful,” with “moist, wet and weepy” skin, blisters, and “[l]ots of edema (swelling)” and a general healing period of “10-21 days.”  CMS Ex. 46, at 6.  When a resident has “spilled hot coffee” that caused “second-degree burns requiring lengthy treatment,” the Board has rejected contentions that the burns “were not ‘serious’ enough actual harm to justify an immediate jeopardy finding” and upheld CMS’s immediate jeopardy finding “as a matter of law.”  Crawford at 2, 15-16, 18; see also Logan Healthcare Leasing, LLC, DAB No. 3036, at 11 (2021) (upholding ALJ determination that a “deficiency was ‘extremely serious’ because [the resident] sustained actual harm, a second degree burn”).

In sum, we affirm that Petitioner’s noncompliance that left a facility resident with a lingering, bleeding, painful wound, which required regular and prolonged treatment, and left him visibly scarred months later, is noncompliance that “has caused . . . serious injury [and] harm” and thus posed immediate jeopardy.  See 42 C.F.R. § 488.301.

Establishing serious harm to R18 alone establishes immediate jeopardy and justifies affirmance of the ALJ’s determination, but there is substantial evidence to support a finding of “likely” serious harm to Petitioner’s other vulnerable residents as well.  At the time of the survey, Petitioner had 144 residents.  CMS Ex. 1, at 1.  CMS presented testimony that, “[d]ue to their advanced age and co-morbidities, nursing home residents are at an increased risk for spilling hot coffee and for suffering more severe burns from hot coffee spills.”  CMS Ex. 65, at 2.  Other evidence supported that testimony.  See, e.g., CMS Ex. 45 (American Burn Association, Fire and Burn Safety for Older Adults – Educator’s Guide), at 2 (explaining that older adults are “more vulnerable to fire and burn injury”); CMS Ex. 46 (American Burn Association, Scalds:  A Burning Issue

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(2000), at 3 (explaining that individuals with “physical, mental or emotional challenges or require some type of assistance from caregivers are at high risk for all types of burn injuries including scalds”).  Surveyors watched Petitioner serving unlidded cups of coffee to impaired and elderly residents in each of the facility’s four units at temperatures of 160, 167, 169.3, and 171 degrees, which all exceeded the facility’s self-selected standard temperature range of 140 to 150 degrees.  CMS Ex. 1, at 33-41, 58-59; CMS Ex. 65, at 6-9, 24.  Those residents had medical conditions including muscle weakness, lack of coordination, cognitive impairment, and dementia.  CMS Ex. 16, at 1; CMS Ex. 17, at 1; CMS Ex. 21, at 1; CMS Ex. 22, at 1; CMS Ex. 24, at 1; CMS Ex. 25, at 1; CMS Ex. 65, at 24-25.  “Mobility impairments, slow or awkward movements, muscle weakness or fatigue, or slower reflexes increase the risk of spills while moving hot liquids.”  CMS Ex. 46, at 3.  Accordingly, the surveyors found those residents “had either a physical or cognitive impairment that may put them at risk for having an accident hazard while drinking hot coffee” and Petitioner “should have assessed [the] residents” and “put plans in place and interventions in place” if needed to “keep them safe.”  Tr. at 283.  The immediate jeopardy assessment resulted from “hot coffee currently still being served in the facility in all 4 resident dining room[s],” despite R18’s prior coffee burn, without completion of any intervening “investigation, or plan of correction” and “at sufficient temperatures to cause tissue injury to residents.”  CMS Ex. 1, at 58-59.

This evidence is relevant because “the issue with respect to immediate jeopardy is not just whether it was likely that a particular resident would suffer serious injury, harm, impairment, or death, but whether the noncompliance found was likely to cause serious injury, harm, impairment, or death to any resident.”  Columbus Nursing & Rehab. Ctr., DAB No. 2398, at 9-10 (2011) (boldface replaced with italics).  “As CMS’s regulations recognize, nursing home residents are a vulnerable population,” as “[m]ost have serious physical and mental impairments and conditions that render them totally or heavily dependent on the nursing staff for their care and survival.”  Daughters at 13-14.  As a matter of law, an accidental hot coffee spill like the Burn Incident puts the facility “on specific notice of a foreseeable risk of harm from hot liquid spills, that is, an accident hazard under section 483.25[].”  Crawford at 9 (internal quotation and citation omitted).  As discussed above, substantial evidence in the form of medical records shows several residents were especially vulnerable due to conditions including weakness and lack of coordination.  Yet Petitioner states it served this vulnerable population over “58,752 cups of hot coffee (or hot tea)” in the nine months between the Burn Incident and the survey.  RR at 9, 37.  The temperatures of that coffee were frequently well above 150 degrees, even nearing the boiling point.  ALJ Decision at 12 (summarizing evidence).  The risk of injury from an accidental spill was foreseeable, and “[t]he recurrence of conditions allowing for such spills to occur to residents . . . demonstrates the likelihood of imminent serious harm to other residents” in need of protection.  Crawford at 17.

As for Petitioner’s contention that the SOM’s “crisis” criterion for immediate jeopardy was not met, RR at 12 (quoting P. Ex. 15, at 2), “the SOM is merely guidance,” as

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Petitioner acknowledges, RR at 24.  “As guidance issued by CMS on the issue of immediate jeopardy, the SOM is instructive, but unlike the regulations, it is not controlling authority.”  Agape Rehab. of Rock Hill, DAB No. 2411, at 19 (2011).  “The immediate jeopardy standard is defined by regulation in 42 C.F.R. § 488.301, and the regulatory definition, not the SOM instructions, binds the Board.”  Pinecrest Nursing & Rehab. Ctr., DAB No. 2446, at 19 (2012).  Accordingly, “‘a crisis situation’ or ‘a presently existing threat’ is not required for a finding of immediate jeopardy.”  Hermina Traeye, DAB No. 1810, at 10.

CMS’s assessment that immediate jeopardy existed beginning on June 23, 2016 was not clearly erroneous.  We next address Petitioner’s alternative argument that, “if the Board determines that immediate jeopardy existed at F323,” then “it only existed for one day, June 23, 2016.”  RR at 40; P. Reply at 20.

III.     CMS’s determination of the duration of immediate jeopardy is not clearly erroneous.

Regarding the duration of immediate jeopardy, CMS “need not provide affirmative evidence that the deficiencies continued at the immediate jeopardy level; instead, the facility must demonstrate that it has taken the corrective action necessary to remove the immediate jeopardy.”  Barn Hill Care Ctr., DAB No. 1848, at 20 (2002).  Immediate jeopardy ends “only when the facility has implemented necessary corrective measures.”  Florence Park at 30.  “[A] facility bears a heavy burden to prove that immediate jeopardy was abated earlier than the date determined by CMS.”  N.C. State Veterans at 21.

Petitioner argues that “[t]he term ‘likely’ in the immediate jeopardy regulation,” 42 C.F.R. § 488.301, “is synonymous with ‘probable,’” and the risk of serious harm from June 23, 2016 through March 21, 2017, “was not ‘probable.’”  RR at 9.  Petitioner contends “there was not a single instance of any harm to any resident during those 272 days” or “even a ‘likelihood’ of any harm or death to any resident.”  Id. at 4 (emphasis omitted).  Petitioner states that “mathematical probability reveals that serious harm was not ‘reasonably to be expected’ to occur given the unrebutted fact that over 58,752 cups of hot coffee (or hot tea) were served between the June 26, 2016, spill and the survey – all without event.”9  Id. at 9.  

Petitioner has not met its heavy burden of showing clear error in CMS’s determination of the duration of immediate jeopardy.  As the ALJ summarized, even after R18’s burn injury, “Petitioner essentially did nothing to prevent the risk for future accidents with respect to” him, through care planning or otherwise.  ALJ Decision at 21.  For example, Petitioner’s Rehab Director testified that Petitioner performed as-needed occupational therapy assessments of residents on “change in condition,” but performed no such

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assessment of R18 after the Burn Incident.  Tr. at 449-52.  Petitioner kept on serving coffee to residents at temperatures over 150 degrees on numerous occasions in October, November, and December of 2016, months after the Burn Incident.  ALJ Decision at 12 (citing P. Ex. 30).  Petitioner was still serving residents coffee at temperatures exceeding 150 degrees “on more than half of” the days in March 2017 until finally, “[o]n March 22, 2017, Petitioner made changes to its coffee service.”  Id.; see also CMS Ex. 49, at 10-12, 15, 20-21, 26-28, 30.  It is fortunate that no documented hot coffee burn occurred during the assessed period of immediate jeopardy, but “the fact that no harm actually ensues from a violation may be simply fortuitous and does not determine whether there is a likelihood of serious harm.”  Lopatcong Ctr., DAB No. 2443, at 11-12 (2012).

Petitioner also has not shown clear error under governing law.  Petitioner relies in part on Golden Living Center – Trussville (GLC-T), DAB No. 2937 (2019), RR at 8-9, and Innsbruck HealthCare Center, DAB No. 1948 (2004), RR at 7-12, but those cases were decided on summary judgment.  The ALJ decided this case after a full evidentiary hearing, so we need not “constru[e] the facts in the light most favorable to” Petitioner or give it “the benefit of all reasonable inferences” as we must when reviewing a summary judgment.  See GLC-T at 8.  Petitioner’s claims that R18’s burn injury was the only one during the CMS-determined immediate jeopardy period are inconsequential, because “[t]here is no requirement that the duration of a remedy coincide with particular events that evidence a lack of substantial compliance.”  Pinehurst Healthcare & Rehab. Ctr., DAB No. 2246, at 15 (2009).  Furthermore, “CMS may reasonably consider not only the actual incident regarding a resident but what it reveals regarding the facility’s planning procedures” to prevent future accidents.  Golden Age at 18.  After the Burn Incident, Petitioner had no evident planning procedures to prevent future coffee scaldings to R18 or other vulnerable residents.  Petitioner “has failed to demonstrate that it implemented sufficient corrective measures prior to the date identified by CMS as the end-date of the immediate jeopardy period.”  See Pinehurst at 15.

IV.     The per-day CMP amount is not unreasonable.

“We determine de novo whether a CMP is reasonable based on the facts and evidence in the record concerning the factors specified under [42 C.F.R. § ] 488.438.”  GLC-MV at 47.  Those factors are the facility’s noncompliance history, financial condition, and degree of culpability, and the factors specified in § 488.404 concerning the seriousness of the deficiencies.  42 C.F.R. § 488.438(f).  CMS need not present evidence for each regulatory factor; instead, the facility bears the burden of demonstrating a CMP’s unreasonableness through argument and evidence addressing the factors.  Heritage Plaza Nursing Ctr., DAB No. 2829, at 22 (2017); Crawford at 19.

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Petitioner claims the CMP for the immediate jeopardy period is unreasonable and imposed a financial hardship.10  RR at 40.  Petitioner asserts that it presented argument and evidence concerning its financial condition per 42 C.F.R. § 488.438(f)(2) and the ALJ erred in stating that Petitioner had “‘not argued that any of the enumerated regulatory factors warrant a reduction.’”  Id. at 32 (quoting ALJ Decision at 25).  Petitioner also asserts it “may be useful to consider” that a different facility, “where at least 37 residents died from COVID-19, received a CMS-imposed CMP of approximately $611,000,” which is less than the disputed CMP imposed on Petitioner.  See RR at 4.

The CMP is not unreasonable.  Before the ALJ, “Petitioner confirmed that it did not argue that the per-day CMP of $6,550 based on immediate jeopardy noncompliance, in and of itself, is inappropriate based on any factors other than whether immediate jeopardy existed and [Petitioner’s] financial condition.”  May 23, 2019 ALJ Order Summarizing May 21, 2019 Pre-Hr’g Conf. at 2 n.3.  Petitioner “bears the burden of proving its financial condition by the preponderance of the evidence,” Columbus Nursing at 17, and has not done so.  Petitioner’s request to reduce the CMP (P. Ex. 20) is the only evidence Petitioner cites as relevant to the “financial hardship” factor in 42 C.F.R. § 488.438(f)(2).  RR at 32, 40.  In response to that request, CMS reduced the total CMP by 20% before the case ever reached the ALJ.  ALJ Decision at 3; CMS Ex. 55.  Petitioner states no reason why the ALJ erred by not further reducing the CMP based on the same document.

The Board’s independent review of the record confirms that the CMP was not unreasonable.  When CMS imposed it, the allowable daily, inflation-adjusted range for immediate jeopardy noncompliance was $6,394 to $20,965.  42 C.F.R. §§ 488.408(d)-(e); 488.438(a); 45 C.F.R. § 102.3 (Oct. 1, 2017) (table of penalties eff. Feb. 3, 2017); see also Annual Civil Money Penalties Inflation Adjustment, 82 Fed. Reg. 9,174, 9,182 (Feb. 3, 2017).  Thus, we agree with the ALJ that the daily CMP of $6,550 “is very close to the minimum permissible amount.”  ALJ Decision at 25.  Given the record evidence of the facility’s history of noncompliance and the number and seriousness of the cited deficiencies, we conclude even a higher penalty would have been supportable.  See 42 C.F.R. §§ 488.404, 488.438(f)(1), (3); CMS Ex. 53 (documenting E and F level deficiencies in 2016, F and G level deficiencies in 2013 and 2014, and an E level deficiency in 2012).  We review only the reasonableness of the per-day CMP, not the total amount.  Vibra Hosp. of Charleston – TCU, DAB No. 3094, at 30-31 (2023); Crawford at 20.  The total CMP amount is a function of the duration of immediate jeopardy, which we have upheld.  Finally, Petitioner’s comparison with the CMP imposed in another case is unpersuasive because “[c]ase-to-case comparisons generally have little value given the unique circumstances of each case and the myriad factors that must be considered.”  W. Care at 94.

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Conclusion

We affirm the ALJ Decision.