Heritage Manor - Carlinville, LLC, DAB No. 3231 (2026)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Heritage Manor – Carlinville, LLC (Petitioner), a skilled nursing facility, appealed the decision of an administrative law judge (ALJ) upholding on summary judgment a determination by the Centers for Medicare & Medicaid Services (CMS) to impose a civil money penalty against Petitioner.  Heritage Manor – Carlinville, LLC, DAB CR5159 (2018) (ALJ Decision).  CMS penalized Petitioner for failing to ensure that the “resident environment remains as free of accident hazards as is possible” and each resident “receives adequate supervision and assistive devices to prevent accidents” as required by 42 C.F.R. § 483.25(d).  Based on undisputed evidence concerning an unattended steam table accessible by unassisted, ambulatory facility residents, the ALJ determined that Petitioner was not in substantial compliance with section 483.25(d), that CMS’s immediate jeopardy determination was not clearly erroneous, and that the penalty imposed by CMS in the amount of $9,254 per day from May 15-16, 2017, was reasonable.  Based on our de novo review of the record, we affirm the ALJ Decision granting summary judgment in favor of CMS.

Legal Background

To participate in Medicare, a skilled nursing facility must be in “substantial compliance” with the program’s participation requirements in 42 C.F.R. Part 483, subpart B (sections 483.1- .95).1  42 C.F.R. §§ 483.1, 488.400.  A facility is not in substantial compliance when it has a “deficiency” – that is, a failure to meet a participation requirement – that creates at least the potential for more than minimal harm to one or more residents.  Id. § 488.301 (defining “substantial compliance”).  The term “noncompliance,” as used in the applicable regulations (and in this decision), is synonymous with lack of substantial compliance.  Id. (defining “noncompliance”).  The participation requirement relevant here states: 

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(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.

42 C.F.R. § 483.25(d). 

CMS may impose one or more enforcement “remedies” against a facility that is out of substantial compliance.  Id. §§ 488.400, 488.402(b)-(c), 488.406.  In deciding the appropriate remedy, CMS considers the “seriousness” of a facility’s deficiency or deficiencies.  Id. § 488.404(a).  Seriousness is a function of the scope of noncompliance (whether it is “isolated,” constitutes a “pattern,” or is “widespread”) and severity (whether it has created a “potential for” harm, resulted in “[a]ctual harm,” or placed residents in “immediate jeopardy”).  Id. § 488.404(b).  The most serious noncompliance is that which puts one or more residents in “immediate jeopardy.”  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. 

The remedies that CMS may impose for noncompliance include civil money penalties.  Id. §§ 488.406, 488.430.  A per-day penalty may be imposed for “the number of days a facility is not in substantial compliance with one or more participation requirements.”  Id. § 488.430(a).  When CMS assessed the penalty here, it had authority to impose a penalty (adjusted for inflation) in the range of $6,394 to $20,965 per day for deficiencies at the immediate-jeopardy level of severity.  Id. § 488.438(a)(1)(i); 45 C.F.R. § 102.3 (eff. Feb. 3, 2017).2  In selecting the penalty amount, CMS considers the facility’s history of noncompliance, financial condition, degree of culpability, and the factors specified in section 488.404 (mainly, the seriousness of the noncompliance).  42 C.F.R. § 488.438(f).

A skilled nursing facility may challenge a determination of noncompliance that led to the imposition of a remedy by requesting an ALJ hearing and appealing any unfavorable ALJ decision to the 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 a remedy, the scope of ALJ or Board review is limited to considering whether a basis exists for imposing the remedy and, if the remedy is a civil money penalty, whether the amount of the penalty is reasonable.  See id. §§ 488.438(e), (f). 

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Case Background

1. Survey Findings

In May 2017, the Illinois Department of Public Health (survey agency) performed annual health and Life Safety Code surveys of Petitioner.  CMS Exs. 1-2, 5-6, 8.  The health survey team included four surveyors, one of whom coordinated the survey.  After the surveys, the survey agency issued statements of deficiencies citing Petitioner for multiple deficiencies.  See CMS Exs. 1-2. 3    

The only deficiency citation at issue here (F323) concerns a steam table in one of Petitioner’s dining rooms.  CMS Ex. 1, at 13-21.  A steam table keeps food warm by heating water in metal wells where food pans are placed.  The steam table in question had two water wells containing 3/8 of an inch of water, and each well was covered by a three-pound metal lid designed to minimize the escape of steam.  P. Ex. 2a, ¶ 1.c.4 

In the deficiency citation, the survey agency reported that at 9:40, 10:38, and 11:05 a.m. on May 15, 2017, the steam table was on, the dining room doors were open, no staff were present, and visible steam was rising from the table’s lids.  CMS Ex. 1, at 14-15.  The survey agency also found that at 9:40 a.m., the surface temperature of both of the steam table’s lids exceeded 160 degrees Fahrenheit (℉) (as measured using “Thermolabels”),5 high enough to cause skin burns, and the temperature of the water inside the wells (as measured using a digital thermometer) was 196.5 and 207.1℉.  Id.  The survey agency further found that at 11:20 a.m., one of the table’s lids continued to have a surface temperature exceeding 160°F.  Id. at 16. 

The surveyors were concerned that “there might be residents who could enter the dining room independently and might touch the steam table due to cognitive loss, seriously burning themselves.”  CMS Ex. 33, ¶ 9.  The survey agency therefore asked for, and Petitioner’s staff provided, lists identifying residents who:  (1) lived on the facility’s 400 Hall, where the dining room was located, or who ate in or had access to that room; (2) were capable of moving between hall locations independently (with or without a

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wheelchair or other assistive device); and (3) were also cognitively impaired.  Id. ¶ 10; see also CMS Ex. 1, at 17-18.

The survey agency found that between breakfast and lunch on May 15, 2017, the unattended steam table posed an accident hazard to ten residents given their “moderate” or “severe” cognitive impairment and independent mobility.  CMS Ex. 1, at 14, 17-19.  The survey agency found that “the facility failed to supervise a steam table to prevent potential thermal hazard/burns” and cited Petitioner for noncompliance with 42 C.F.R. § 483.25(d) for failing to ensure that the resident environment remained as free of accident hazards as possible and that each resident received adequate supervision to prevent accidents.  Id. at 13-14.6   The survey agency further concluded that the noncompliance placed residents in immediate jeopardy from May 15 through May 16, 2017.  Id. at 14; CMS Ex. 33, ¶ 14.  The survey agency later determined, after a revisit survey, that Petitioner returned to substantial compliance with all Medicare requirements, including section 483.25(d), on July 13, 2017.  CMS Ex. 8, at 1-2.

2. CMS’s Noncompliance Determination

CMS concurred with the survey agency’s finding that Petitioner was noncompliant with section 483.25(d) at the immediate-jeopardy level on May 15 and 16, 2017, and imposed a $9,254 per day penalty for those two days.  CMS Ex. 8, at 2.  CMS also imposed a $150 per day penalty (not contested by Petitioner) for other noncompliance of lesser severity that persisted from May 17 through July 12, 2017.  Id.  In addition, CMS informed Petitioner that its violation of section 483.25(d) constituted “substandard quality of care” that resulted in an “extended survey” and, therefore, it was prohibited from operating a nurse aide training and competency evaluation program for two years.  Id. at 1, 4. 

3. ALJ Proceedings and Decision

Petitioner requested an ALJ hearing to contest the section 483.25(d) noncompliance determination and associated penalty.  In a stipulation submitted to the ALJ on February 21, 2018, Petitioner conceded it was not appealing any other deficiency finding or remedy stemming from the May 2017 health and life safety surveys.7 

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Shortly after Petitioner filed its hearing request, the ALJ issued an Acknowledgment and Pre-Hearing Order.  Among other things, the pre-hearing order directed the parties to make a “pre-hearing exchange” consisting of:  (1) “[a] copy of each proposed exhibit”; (2) “[a] list of all proposed witnesses (if any)”; (3) the “complete, written direct testimony of any proposed witness”; and (4) written legal argument addressing all issues of law and fact.  Pre-Hr’g Order (Dec. 15, 2017) ¶¶ 3, 7.  The pre-hearing order directed CMS to file its pre-hearing exchange first, and Petitioner to make its filing approximately four and one-half weeks later.  Id., ¶ 3.  The order also informed the parties that neither was “entitled to supplement its pre-hearing exchange absent a showing of good cause,” and that a party had to “file its entire proposed supplement with any motion that it makes to supplement a pre-hearing exchange.”  Id. 

The parties submitted their pre-hearing exchanges in accordance with the deadlines in the pre-hearing order.  CMS’s pre-hearing exchange, submitted on March 15, 2018, included medical records (CMS Exs. 17-26); notes written by survey team members documenting their observations, review of records, and staff interviews (CMS Exs. 29-31); and a declaration by the survey team coordinator (CMS Ex. 33).  Petitioner’s pre-hearing exchange, submitted on April 20, 2018, identified 14 proposed witnesses and included 94 exhibits.8  Petitioner’s exhibits included declarations by the proposed witnesses as well as notes written by two members of the survey team.  See P. Exs. 1-27, 76, 89.

Approximately two months after Petitioner filed its pre-hearing exchange, and after a pre-hearing conference and further discussion between the parties, see Joint Notice of Agreed Hearing Date and Location (June 8, 2018), CMS filed a motion for summary judgment.  In the motion, CMS asked the ALJ to sustain its determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) at the immediate-jeopardy level, and to sustain the penalty imposed by CMS for two days of noncompliance.  CMS based its summary judgment motion on the evidence and arguments that the parties had presented in their respective pre-hearing exchanges.   

In response to the summary judgment motion, Petitioner submitted a brief and 17 additional exhibits (P. Exs. 95-111).  Ten of the additional exhibits are new declarations, nine of which are by persons (mostly employees of Petitioner) whom Petitioner had not identified in its pre-hearing exchange as proposed witnesses.  Petitioner informed the ALJ that it was submitting the additional exhibits “[p]ursuant to [the ALJ’s] Acknowledgment and Pre-Hearing Order.”  P.’s Supp. List of Prop. Exs. (July 31, 2018).  Petitioner did not submit a motion requesting permission to supplement, out of time, its exhibits, witness list, or the written direct testimony of any witness identified in its pre-hearing exchange. 

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The ALJ excluded the 17 additional exhibits (P. Exs. 95-111) that Petitioner filed with its brief opposing CMS’s summary judgment motion.  ALJ Decision at 2.  The ALJ declined to consider those exhibits because Petitioner “filed [them] untimely and in contravention of the initial pre-hearing order,” which “established deadlines for the parties to file . . . any and all proposed exhibits,” including the written direct testimony of witnesses.  Id.  The ALJ also found that Petitioner “made no showing whatsoever of good cause . . . to accept these exhibits.”  Id.  The ALJ did not exclude any other exhibits proffered by the parties.  Id.

The ALJ granted summary judgment in favor of CMS, finding that undisputed material facts established Petitioner’s noncompliance with 42 C.F.R. § 483.25(d).  ALJ Decision at 1, 3.  Based on the admissible record evidence, the ALJ found it undisputed that during a 90-minute period beginning at 9:40 a.m. on May 15, 2017, the steam table in the resident dining room was on; the dining room doors were open; the room was unattended; the steam table’s lids and water inside the table’s wells were “sufficiently hot to cause severe burns to an individual coming into contact with them”; and the steam table’s surfaces “were accessible to anyone approaching.”  ALJ Decision at 3, 6, 7.  The ALJ found it undisputed that Petitioner’s residents included persons with “moderate to severe cognitive impairment,” who could nonetheless move about the facility “without physical assistance,” and were at risk of encountering the steam table.  Id. at 7-8.  After discussing Petitioner’s arguments, the ALJ determined that “[t]he undisputed facts support a finding that the unattended steam table was so hot on the morning of May 15, 2017, as to endanger residents.”  Id. at 6.  The ALJ further found, based on “undisputed facts,” that “residents of Petitioner’s facility included elderly, frail individuals with impaired ambulation and with cognitive impairments,” and “the unattended steam table, as hot as it was, posed a significant accident hazard to these frail and impaired residents.”  Id. at 7. 

The ALJ further concluded that there were “no facts” that could justify overturning CMS’s immediate-jeopardy finding as clearly erroneous, asserting that the “combination of impaired residents” and “access to a device that could cause severe burns on contact plainly created a likelihood of serious injury, harm, or death to residents.”  Id. at 8-9.  The ALJ found that “penalties of $9,254 for each day of a two-day period of noncompliance” – May 15 and 16, 2017 – were “reasonable” and “well within the range of permissible penalties,” noting that Petitioner had “offered no facts to challenge the reasonableness” of the penalties “except to argue that it complied with participation requirements.”  Id. at 3, 9.  Finally, the ALJ observed that “as a consequence of [his] decision,” and “by operation of law,” Petitioner lost “the authority to conduct a nurse aide training and competency evaluation program . . . for a period of two years.”  Id. at 1, 9 n.4.

Standard of Review

We review whether summary judgment is appropriate de novo.  Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703, at 5 (2016).  “Summary judgment is appropriate

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when the record shows there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”  Id. (internal quotation marks omitted).  “To defeat an adequately supported summary judgment motion, the nonmoving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.”  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010), aff’d, 405 F. App’x 820 (5th Cir. 2010).  “A party must do more than show that there is some metaphysical doubt as to the material facts.  Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”  The Harborage, DAB No. 2905, at 5 (2018) (internal quotation marks and ellipses omitted). 

“In examining the evidence to determine the appropriateness of summary judgment, we view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.”  Heritage House of Marshall Health & Rehab., DAB No. 3035, at 8 (2021).  Drawing factual inferences in the light most favorable to the non-moving party does not require that we draw unreasonable inferences or accept the non-moving party’s legal conclusions.  See Brightview Care Ctr., DAB No. 2132, at 10 (2007); Cedar Lake Nursing Home, DAB No. 2344, at 7 (2010).  When deciding summary judgment, it is inappropriate for the tribunal to make credibility determinations or weigh competing evidence.  See Heritage House of Marshall at 9.

Analysis

In its Request for Review (RR), Petitioner first argues that the ALJ improperly refused to consider the 17 additional exhibits it filed in response to CMS’s summary judgment motion.  RR at 6-7; see also Reply at 16-19.9  Then, relying partly on those excluded exhibits, Petitioner argues that genuine disputes of material fact precluded summary judgment on CMS’s noncompliance finding under 42 C.F.R. § 483.25(d) and immediate jeopardy determination.  See RR at 2-3, 4, 7-11, 14, 17, 24, 29; Reply at 7-16.  Petitioner contends, in the alternative, that any immediate jeopardy was abated on May 16, 2017 – the day it removed the steam table from the facility – and that the $9,254 per day penalty should be rescinded or reduced.  RR at 36.  Petitioner also asks the Board to hold that CMS had “no basis” to prohibit its operation of a nurse aide training and competency evaluation program (NATCEP).  RR at 37; Reply at 19-20.10

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CMS responds that the ALJ properly refused to consider Petitioner’s late-filed exhibits.  CMS Br. at 17-19.  CMS further contends that there are no genuine disputes of material fact (even if one considers the untimely exhibits that the ALJ excluded) and that CMS proffered unrefuted evidence demonstrating that: 

• on the morning of May 15, 2017, Petitioner left the steam table in a resident dining room unattended;
• the dining room doors were left open, and the steam table lids were at least 160 degrees Fahrenheit (℉), hot enough to cause a third-degree burn in seconds; and
• the facility’s population included “cognitively impaired and independently mobile” residents with access to the dining room and who “could independently get to the steam table and . . . reach at least the edge of the steam table lids.”

CMS Br. at 4, 10-11, 13, 16, 20.  CMS submits that these and other undisputed facts establish that Petitioner was not in substantial compliance with section 483.25(d), and that the ALJ properly found that Petitioner was noncompliant at the immediate jeopardy level.  Id. at 4, 21; see also id. at 2-3, 4-17, 20-21.  CMS further argues that:  (1) Petitioner did not abate the immediate jeopardy until May 17, 2017 (when it completed “in-service” staff training); (2) the $9,254 per-day penalty imposed for immediate jeopardy noncompliance is reasonable; and (3) the NATCEP prohibition was lawfully imposed.  Id. at 21-23.

We affirm the ALJ Decision because:  (1) the ALJ committed no legal error or abuse of discretion in excluding the 17 exhibits Petitioner untimely submitted; (2) the undisputed material facts establish that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d); (3) Petitioner failed to identify or present evidence that could lead a rational fact finder to conclude that CMS’s immediate jeopardy determination is clearly erroneous; (4) the civil money penalty imposed by CMS is reasonable; and (5) Petitioner is prohibited from conducting a nurse aide training program by operation of law.

1. The ALJ committed no legal error or abuse of discretion by excluding Petitioner’s Exhibits 95-111, which were not timely filed.

We first address Petitioner’s contention that the ALJ improperly refused to consider the 17 exhibits (P. Exs. 95-111) it submitted with its response to CMS’s summary judgment motion.  The ALJ excluded the supplemental exhibits because:  (1) the pre-hearing order required the parties to submit all evidence (including written direct testimony of proposed witnesses) with their pre-hearing exchanges; (2) Petitioner proffered the supplemental

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exhibits long after the pre-hearing exchange deadline; and (3) Petitioner failed to show “good cause” for “untimely” filing the supplemental exhibits by, for example, showing “that it was surprised by facts alleged by CMS” in its summary judgment motion.  ALJ Decision at 2.

An ALJ has discretion to supervise and direct all phases of a case, and acts within his or her discretion by excluding documentation proffered by a party in violation of a pre-hearing order.  See Chander Kachoria, R.Ph., DAB No. 1380, at 11-12 (1993); see also Korangy Radiology Assocs., P.A., DAB No. 1996, at 17 (2005) (“[The] Board has recognized that an ALJ has discretion to manage proceedings, which may include sanctioning parties that fail to comply with orders under certain circumstances.” (citing Royal Manor, DAB No. 1990, at 14-29 (2005))), aff’d, Korangy v. FDA, 498 F.3d 272 (4th Cir. 2007); Carrington Place at Muscatine, DAB No. 2321, at 19 n.10, 22 (2010) (holding that an ALJ did not abuse his discretion in disallowing submission of evidence that could and should have been part of the party’s pre-hearing exchange).

The ALJ’s pre-hearing order states that “[n]either party is entitled to supplement its pre-hearing exchange absent a showing of good cause,” and a party “must file its entire proposed supplement with any motion that it makes to supplement a pre-hearing exchange.”  Pre-Hr’g Order at 4.  Petitioner filed its pre-hearing exchange, including written testimony of proposed witnesses, on April 20, 2018.  If Petitioner wished to later “supplement” that exchange, it needed to request (by motion) the ALJ’s permission and show “good cause” for the supplementation, as the pre-hearing order plainly requires.  Petitioner did not comply with those requirements when it submitted the supplemental exhibits, merely informing the ALJ that the exhibits – some of which were declarations by persons not previously identified as proposed witnesses – were being filed “[p]ursuant to [the ALJ’s] Acknowledgment and Pre-Hearing Order.”  P. Supp. List of Proposed Exhibits (July 31, 2018).  Petitioner’s submission of additional evidence (P. Exs. 95-111) was not “pursuant to” the pre-hearing order; rather, it contravened the order’s motion and good-cause requirements. 

Petitioner asserts that the proposed supplemental exhibits were part of its response to CMS’s summary judgment motion, and that the response was filed within 30 days after CMS filed the motion, as the pre-hearing order required.  RR at 6; see also Reply at 16; Pre-Hr’g Order ¶ 4.a (requiring the party opposing a summary judgment motion to file its response within 30 days).  Petitioner asserts that the supplemental exhibits “were filed in accordance with [Rule 56 of the Federal Rules of Civil Procedure],” which does not require a non-moving party to request leave to submit evidence opposing the motion.  Reply at 16.  Petitioner contends that its submission of additional evidence after its pre-hearing exchange was “in keeping with the directives of [Federal Rule of Civil Procedure] 56 specifically providing for use of affidavits to oppose a [motion for summary judgment].”  Id. at 17. 

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Administrative proceedings before an ALJ are not governed by the Federal Rules of Civil Procedure.  See Pre-Hr’g Order ¶ 1 (“The procedures governing these proceedings appear in Title 42 of the Code of Federal Regulations (C.F.R.), Part 498.”).  Petitioner’s view is inconsistent with the pre-hearing order, which requires that the parties exchange all relevant exhibits, including written direct testimony, in accordance with the pre-hearing exchange deadlines.  The pre-hearing order does not say that the filing of a motion for summary judgment, particularly one that relies only on the exhibits and testimony already exchanged by the parties, authorizes either party to submit new or additional evidence.  Rule 56 does not help Petitioner because it does not address the filing of new exhibits in contravention of a pre-hearing order and contains no provision inconsistent with the ALJ’s refusal to consider exhibits filed in violation of a pre-hearing order.

Petitioner asserts that the supplemental exhibits were “necessary because CMS [in its summary judgment motion] changed the timeline and fact pattern of residents ‘at risk’ which deprived Heritage of its due process rights,” RR at 6, but that is not accurate for several reasons.  First, Petitioner made no such due process argument before the ALJ.  See ALJ Decision at 2 (noting that Petitioner did not show “that it was surprised by facts alleged by CMS in its motion for summary judgment”).  Second, Petitioner failed to support its claim of “necessary” supplementation of the record with any specifics about  the timeline and fact-pattern changes CMS purportedly made in its summary judgment motion.  Petitioner asserts that the “residents who have been cited as ‘at risk’ by CMS have changed throughout this Appeals process,” Reply at 18, but cites no examples, and we have found none.  Petitioner also does not specify how the summary judgment motion unfairly surprised Petitioner in light of CMS’s pre-motion filings; for example, Petitioner’s alleged surprise concerning notes written by surveyor Rick Gross, see RR at 6, was already expressed in Petitioner’s pre-hearing brief, before CMS filed its motion.  See P. Pre-Hr’g Br. (filed April 20, 2018) at 2.  Petitioner also has not explained how its supplemental exhibits responded to alleged changes in CMS’s presentation or how such changes – if they occurred – matter to the outcome. 

Contrary to Petitioner’s complaint before the ALJ, CMS’s theory of the case was not a “moving target.”  See P. Resp. to MSJ (filed Aug. 1, 2018) at 6-7.  An apparent basis for Petitioner’s complaint was that CMS based its summary judgment motion on the survey agency’s reported observations between 9:40 a.m. and 11:05 a.m. on May 15, 2017, and not on the reported observation of Resident 23 in the dining room at 11:17 a.m. that same day.  Id. at 5-6 (citing CMS Ex. 1, at 15, and claiming that CMS “shortened the timeline” of the surveyors’ observations).  However, narrowing (not expanding) the scope of the facility’s alleged noncompliance on summary judgment is not a “change” that would warrant expanding the record to include new evidence.  Petitioner also claimed that CMS’s summary judgment motion included a “new allegation” that surveyors had conducted a “second temperature test” of the steam table lids at 11:20 a.m.  P. Resp. to MSJ at 6.  However, the allegation of a “second temperature test” was not new; CMS’s pre-hearing brief stated Thermolabel testing conducted “an hour and forty-five minutes

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after the survey team’s first observation of the steam table [at 9:40 a.m.]” showed one steam table lid was “in excess of 160 degrees Fahrenheit.”  CMS Pre-Hr’g Br. (Mar. 15, 2018) at 6 (citing, among other exhibits, CMS Ex. 33, ¶ 8).  CMS consistently argued in its pre-hearing brief, and later-filed summary judgment motion, that the factual bases for the challenged noncompliance were surveyors’ observations of the dining room and the unattended steam table during the morning of May 15, 2017.  CMS’s summary judgment motion did little more than bring into sharper focus the evidence or facts upon which its theory of the case rested.   

For all these reasons, we find the ALJ did not err or abuse his discretion in excluding Petitioner’s supplemental exhibits, which Petitioner filed in violation of the ALJ’s pre-hearing order.  Accordingly, we do not consider P. Exs. 95-111 in resolving the compliance and other related issues presented in this appeal.

2. The undisputed material facts establish that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d).

Title 42 C.F.R. § 483.25(d)(1) requires a facility to “ensure” that “[t]he resident environment remains as free of accident hazards as is possible.”

The standard in section 483.25[d](1) itself – that a facility “ensure that the environment is as free of accident hazards as possible” in order to meet the quality of care goal in section 483.25 – places a continuum of affirmative duties on a facility.  A facility must determine whether any condition exists in the environment that could endanger a resident’s safety.  If so, the facility must remove that condition if possible, and, when not possible, it must take action to protect residents from the danger posed by that condition.  If a facility has identified and planned for a hazard and then failed to follow its own plan, that may be sufficient to show a lack of compliance with regulatory requirement.  In other cases, an ALJ may need to consider the actions the facility took to identify, remove, or protect residents from the hazard.  Where a facility alleges (or shows) that it did not know that a hazard existed, the facility cannot prevail if it could have reasonably foreseen that an endangering condition existed either generally or for a particular resident or residents.

Maine Veterans’ Home – Scarborough, DAB No. 1975, at 5-6 (2005) (footnote omitted).  In short, “[a] skilled nursing facility must take all reasonable steps to protect its residents against foreseeable accident hazards.”  Estes Nursing Facility Civic Ctr., DAB No. 2000, at 7 n.5 (2005) (internal quotation marks omitted); see also Woodland Village Nursing Ctr., DAB No. 2172, at 17-21 (2008) (sustaining noncompliance finding where facility failed to take “reasonable steps” to protect residents from an accident hazard about which it should have known); Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 589-90 (6th

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Cir. 2003) (upholding a Board determination that the facility was noncompliant with the accident-prevention regulation because it had not taken “all reasonable precautions against residents’ accidents”). 

Title 42 C.F.R. § 483.25(d)(2) requires a facility to “ensure that . . . [e]ach resident receives adequate supervision . . . to prevent accidents.”  Substantial compliance with section 483.25(d)(2) requires a facility 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).

The relevant statement of deficiencies, which CMS relied on to make its noncompliance determination, reported the following facts based on surveyors’ observations, interviews, and record review: 

• At 9:40 a.m., 10:20 a.m., 10:38 a.m., and 11:05 a.m. on May 15, 2017, surveyors observed “visible steam” rising from underneath the steam table lids.  CMS Ex. 1, at 14-15.
• On each of these occasions, a surveyor observed that the dining room doors were open and that no staff were present in the room.  Id.
• At 9:40 a.m., a surveyor applied a “Thermolabel” to both steam table lids.  Id. at 14.  In both instances the Thermolabel turned black, indicating that the lid’s surface temperature was at least 160℉.  Id.  In addition, using a digital thermometer, a surveyor measured the water temperature inside the wells of the steam table as 196.5℉ in one well and 207.1℉ in the other.  Id. at 15.
• At 11:20 or 11:22 a.m., a surveyor again applied Thermolabels to the steam table lids; one Thermolabel turned black (indicating a temperature of at least 160℉).  Id. at 16.
• Due in part to decreased skin thickness and sensitivity, the elderly are at greater risk for, and suffer more severe consequences from, thermal injury than others.  Id. at 19 (quoting the Journal of American Medical Association, which noted that “‘[m]any residents in long-term care facilities have conditions that may put them at increased risk for burns caused by scalding’”).
• The steam table lid and water temperatures measured by surveyors on the morning of May 15, 2017, were hot enough to quickly burn the skin of an elderly resident.  Id. (citing medical literature addressing skin burns caused by exposure to hot water).

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• On the date of the survey, Petitioner had in place a written policy stating that the steam table should be turned off after food service was completed.  Id. at 18-19; CMS Ex. 27.  The steam table also had a sign that said, “Remember Turn off the steam table and then unplug it.  Thank you for being safe.”  CMS Ex. 1, at 15.
• Resident lists supplied by Petitioner (CMS Exs. 14-16) identified ten residents who:  (1) lived on the 400 Hall, where the dining room was located, or otherwise had access to that room; (2) had at least “moderate” cognitive impairment; and (3) had the ability to move about the facility “independently” with or without a wheelchair or other assistive device.  See CMS Ex. 1, at 14-18 (describing Residents 4, 6, 7, 11, 18, 19, 20, 22, 23, and 24); CMS Ex. 33, ¶¶ 9-10. 

In her declaration, the survey team coordinator, Mary Bierbaum, R.N., stated that she drafted the portion of the statement of deficiencies citing Petitioner for noncompliance with section 483.25(d).  CMS Ex. 33, ¶ 6.  Regarding the risk of harm posed by the steam table, Surveyor Bierbaum stated:  “[A] resident using a walker or in a wheelchair would have been able to reach the lids on the pans in the steam table to touch or move them when next to the steam table.  Further a resident would have been able to reach the water in the wells and touch it if they were using a walker or in a wheelchair.”  Id., ¶ 12.  Surveyor Bierbaum further stated that because of their “moderate” or “severe” cognitive impairment, the ten residents identified in the statement of deficiencies “might not understand that a steam table with visible steam was hot and touch the pans or the water.”  Id., ¶ 11.  Surveyor Bierbaum explained that she determined the severity of residents’ cognitive impairment using their scores on the Brief Interview for Mental Status (BIMS).  Id.  According to that assessment tool, a score of seven or less indicates “severe cognitive impairment”; and scores between 8 and 12 indicate “moderate cognitive impairment.”  Id.  Surveyor Bierbaum used BIMS scores to assess the residents’ capacity to appreciate the danger posed by the steam table.  Id. 

The facts and circumstances alleged in the statement of deficiencies and Surveyor Bierbaum’s declaration demonstrate that:  (1) on the morning of May 15, 2017, after breakfast and before lunch service, Petitioner allowed a steam table to continue operating in an open dining room with metal lids and water hot enough to quickly burn the skin of elderly residents; (2) the steam table was unattended and unmonitored by facility staff for an extended period; (3) residents with moderate or severe cognitive impairments had access to the dining room and were physically capable of entering the room and reaching the steam table without knowledge of or supervision by staff; and (4) Petitioner did not take reasonable precautions, such as turning off the steam table in accordance with its own policy or closing the dining room doors, to prevent accidental burns of its cognitively impaired but mobile residents.  Petitioner argues that there are genuine disputes of material fact that preclude summary judgment, but Petitioner failed to show that any material facts are in dispute.   

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1. There is no genuine dispute about the operating status of the steam table and open doors between 9:40 a.m. and 11:05 a.m. on May 15, 2017.

Petitioner argues that certain findings in the statement of deficiencies – for example, that the dining room doors were open between breakfast and lunch – are in dispute because they are uncorroborated by surveyors’ notes or by other documentation created contemporaneously with the survey.  RR at 21-22 (asserting that there is “zero supporting documentation” of the surveyors’ observations of the steam table and dining room doors at 10:20 a.m., 10:38 a.m., and 11:05 a.m.).  Petitioner asserts that notes of Surveyors Katherine Hayes (CMS Ex. 30 and P. Ex. 76), Rick Gross (P. Ex. 89), and Nancy Patzius (CMS Ex. 31) do not mention the reported 10:20 a.m. and 10:38 a.m. observations, and that no surveyor’s notes indicate that the dining room doors were open at 11:05 a.m.  RR at 22.  Although Surveyor Bierbaum’s notes reflect observations of the dining room and steam table at 10:20, 10:38, and 11:05 a.m. (see CMS Ex. 29, at 11 and P. Ex. 42), Petitioner claims that “she was merely a scrivener” and she merely summarized “other alleged observations” rather than her own “direct observations.”  RR at 8, 12, 21. 

These contentions, as well as Petitioner’s characterization of the statement of deficiencies as a mere “charging document,” incorrectly imply that the statement of deficiencies is not evidence and that CMS must corroborate any finding reported in the statement of deficiencies with other documentation or testimony to show a lack of substantial compliance.  The Board has never held that facts reported by surveyors in a statement of deficiencies cannot be considered on summary judgment absent corroborating evidence.  To the contrary, the Board has held that factual findings reported in a statement of deficiencies constitute evidence of the facts found, and such findings, if not disputed, may suffice to establish a lack of substantial compliance.  See Guardian Health Care Ctr., DAB No. 1943, at 14 (2004) (describing a statement of deficiencies as “a contemporaneous record of the survey agency’s observations and investigative findings” and explaining that “CMS may make a prima facie showing of noncompliance based on that document if the factual findings and allegations it contains are specific, undisputed, and not inherently unreliable”); Universal Health Care – King, DAB No. 2383, at 9 (2011) (holding that the ALJ appropriately relied on factual findings in a statement of deficiencies as evidence of the facility’s noncompliance), aff’d, 499 F. App’x 299 (4th Cir. 2012); The Peaks Care Ctr., DAB No. 2564, at 6 n.4 (2015) (stating that the statement of deficiencies “may constitute prima facie evidence of the undisputed facts asserted in it”); Oak Ridge Ctr., DAB No. 2913, at 8 (2018) (noting that the Board has rejected the argument that summary judgment may not be based on factual findings in the statement of deficiencies).  Accordingly, the ALJ or the Board may consider facts reported in the statement of deficiencies to be undisputed unless there is evidence sufficient to create a genuine dispute about them.  Cf. Southpark Meadows at 6 (noting that to defeat an adequately supported summary judgment motion the facility must “do more than simply deny the findings” in the statement of deficiencies and must “submit relevant counter-evidence”).

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In view of the Board’s consistent holding that a statement of deficiencies may be prima facie evidence of noncompliance, the mere fact that certain findings in the statement of deficiencies are not separately documented in notes or worksheets does not create a genuine dispute of material fact.  Neither does Petitioner’s speculative suggestion that Surveyor Bierbaum’s notes do not reflect her personal observations of the facility.  Windsor Health Care Ctr., DAB No. 1902, at 11 (2003) (holding that a facility’s “mere speculation” about the circumstances of an  accident were insufficient to create a genuine dispute of material fact), aff’d, 127 F. App’x 843 (6th Cir. 2005); W. Tex. LTC Partners, Inc., DAB No. 2652, at 15 (2015) (holding that “unsupported speculation about the accuracy of [a] surveyor’s observations” did not raise a genuine dispute of material fact), aff’d, 843 F.3d 1043 (5th Cir. 2016).  Petitioner’s argument is unsubstantiated by the surveyor’s notes (or any other evidence) and contradicts Surveyor Bierbaum’s written testimony confirming that “the findings in the Statement of Deficiencies constitute a true and accurate summary of [her] observations, interviews, and review of relevant documents and notes of other members of the survey team.”  CMS Ex. 33, ¶¶ 4, 6.     

Petitioner further contends that some of the facts in the statement of deficiencies cannot be undisputed because they are inconsistent with surveyors’ notes and other evidence.  RR at 3, 5, 11, 17-22.  For example, Petitioner alleges discrepancies in the reported observations of Surveyor Hayes, whose notes include results of temperature testing of the steam table at 9:40 a.m. (CMS Ex. 30).  Petitioner submits that Hayes could not have been in the dining room at 9:40 a.m. because one of her worksheets indicates that she began a tour of the facility’s 300 Hall, accompanied by a facility employee (C.G.), at 9:09 a.m., during which she observed and interviewed multiple residents and family members.  RR at 17, 20 (citing P. Ex. 76).  However, there is nothing in Hayes’ worksheets (P. Ex. 76) indicating that her tour of the 300 Hall at 9:09 a.m. precluded her presence in the dining room at 9:40 a.m.   

Petitioner also points to a note in Surveyor Patzius’s worksheet stating that Surveyor Gross “found” the “IJ” (immediate jeopardy) at 9:40 a.m.  RR at 17 (citing CMS Ex. 31, at 2).  Petitioner argues that Surveyor Gross could not have “discovered” the unattended steam table in the dining room at 9:40 a.m. on May 15, 2017, because his own worksheets indicate he was in another part of the facility around that time.  RR at 18-19, 20.  Even if that were true, Surveyor Patzius did not state when Surveyor Gross first discovered the steam table.  In any event, a minor discrepancy in the notes of one surveyor (about another surveyor’s “IJ” finding) is immaterial considering the uncontroverted evidence in this case regarding the unattended steam table.  Moreover, any conflict or inconsistency in the evidence relating to the whereabouts of Surveyor Gross on May 15, 2017, does not raise a genuine dispute of material fact because two other surveyors, Bierbaum and Hayes, reported observations of the dining room and steam table at 9:40 a.m.  See CMS Ex. 29 (Bierbaum), at 11; CMS Ex. 30 (Hayes).  In addition, Surveyor Patzius’s worksheets mention the 9:40 a.m. water temperature

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measurements and Thermolabel testing results.  CMS Ex. 31, at 4.  Surveyor Gross’s alleged absence from the dining room at 9:40 a.m., even if true, does not create a genuine dispute of material fact about observations made by the other surveyors.  

Petitioner further argues that Surveyor Patzius’s notes cannot support the finding that the dining room doors were open and that the steam table was unattended and emitting visible steam.  RR at 20.  Those notes record observations of the dining room at 10:38 a.m. and 11:05 a.m. on May 15, 2017.  See CMS Ex. 31, at 2.  Petitioner emphasizes that the notes also indicate that Surveyor Patzius was observing residents in rooms 411A and 411B at 10:40 a.m., and observing a resident in Room 409A at 11:05 a.m.  RR at 20 (citing CMS Ex. 31, at 4-5).  However, the 10:40 a.m. observations of rooms 411A and 411B are not in conflict with the 10:38 a.m. observation of the dining room, given that they occurred at different times and that Room 411 and the dining room are on the same hall (Rosemont).  See CMS Ex. 13 (facility map).  Furthermore, the alleged inconsistencies in Surveyor Patzius’s notes regarding the precise timing of her observations do not create a genuine dispute of material fact because another surveyor (Bierbaum) reported observations of the dining room at those times.  See CMS Ex. 29, at 11; P. Ex. 42, at 1. 

Petitioner contends that the declarations of two facility employees – C.H., a dietary aide, and J.W., a certified nursing assistant (CNA) – create a genuine dispute about whether the dining room doors were open during the relevant observation period.  RR at 2, 11-12, 16-17, 22-23.11  In her declaration, C.H. stated that staff “always” kept the doors closed (and the room’s lights off) until a meal was ready to be served.  See P. Ex. 18, ¶¶ 10-11, 21, 28.  She also stated that she shut the doors after breakfast was served and residents left the room; that she kept the doors closed while she was cleaning the room and “never” opened them “until I was ready for the residents to come in, closer to the time of the meal to serve”; and that she did not recall the dining room doors being open between meals on May 15, 2017.  Id., ¶¶ 5, 7, 21, 26, 29.  CNA J.W. stated in his declaration that he “personally closed the doors to the dining room” at some unspecified time “after breakfast” on May 15, 2017.  P. Ex. 12, ¶ 8.12

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The dietary aide’s and CNA’s statements do not create a genuine dispute of material fact.  The dietary aide’s statements do not purport to be based on her personal observation or personal knowledge of the dining room doors between 9:40 a.m. and 11:30 a.m.  Rather, they are conclusory assertions about the facility’s usual practices and, do not, without more, generate a genuine dispute of material fact about the surveyors’ observations on May 15, 2017.  See West Caldwell Care Ctr., DAB No. 3210, at 10 (2025).  We agree with the ALJ that the aide’s mere assertion that the doors were “always” closed between meals is insufficient to create a genuine dispute about the surveyors’ personal observations on the morning of May 15, 2017.  ALJ Decision at 4.  The CNA’s statements likewise fail to create a genuine dispute of material fact.  They do not purport to describe personal observations of the dining room doors during the relevant period, and the CNA did not specify when he purportedly closed the doors after breakfast service on May 15, 2017.  No facility witness testified, based on personal knowledge, that the doors were closed during the relevant timeframe. 

Thus, there is no genuine dispute of material fact about the operating status of the steam table and open doors between 9:40 a.m. and 11:05 a.m. on May 15, 2017.

2. There is no genuine dispute about the occurrence or accuracy of the surveyors’ temperature measurements.         

Petitioner questions the accuracy or reliability of the temperature measurements reported by the surveyors.  Petitioner suggests there is a genuine dispute about whether Thermolabels were placed on the steam table lids at 9:40 a.m. on May 15, 2017.  According to Petitioner, “the only verifiable label placed by any surveyor” was the one placed by Surveyor Gross at 11:20 a.m.  RR at 30.  However, Petitioner proffered no evidence rebutting the report (CMS Ex. 1, at 14-15) that surveyors had placed Thermolabels on the steam table lids at 9:40 a.m.  That information is corroborated by Surveyor Bierbaum’s declaration and the notes of Bierbaum and Hayes.  CMS Ex. 33, ¶ 8; CMS Ex. 29, at 11; CMS Ex. 30.  Surveyor Hayes’ notes show a time-and-date entry of 9:40 a.m. on May 15, next to which she affixed two blackened Thermolabels labeled “R[ight] lid” and “L[eft] lid.”  CMS Ex. 30.   

Petitioner submits that Surveyor Hayes’ notes (CMS Ex. 30) are not “competent evidence” of the temperature of the steam table lids at 9:40 a.m. for several reasons.  Petitioner argues that the notes “do[ ] not indicate that she applied the Thermolabel[s] herself, . . . do[ ] not indicate at what location in the Facility the Thermolabels were applied, . . and do[ ] not indicate to what surfaces the Thermolabel[s] [were] applied” – omissions that purportedly “prevent[ed] Heritage from being able to verify the authenticity of the information contained in the exhibit.”  P. Ex. 4 (Decl. of Richard

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Butler), ¶ 15; RR at 14 (incorporating by reference the Butler opinions).13  These contentions, like ones previously addressed, presume that factual findings in the statement of deficiencies are not evidence of the facts they describe unless corroborated by other evidence.  However, CMS was not required to submit such corroborating evidence absent a plausible, non-speculative reason to question the survey findings’ accuracy or reliability.  Guardian Health Care at 14 (“CMS may make a prima facie showing of noncompliance based on [the statement of deficiencies] if the factual findings and allegations it contains are specific, undisputed, and not inherently unreliable.”); St. Catherine’s Care Ctr. of Findlay, Inc., DAB No. 1964, at 8-10 (2005) (rejecting argument that CMS was required to submit declarations or other evidence corroborating findings in the statement of deficiencies to prevail on summary judgment).  We see nothing in the record, including Surveyor Hayes’ notes, that might cause a factfinder to question whether the survey team placed Thermolabels on the steam table lids at 9:40 a.m. on May 15, 2017. 

Petitioner further suggests there is a genuine dispute about the inherent reliability of the method used to measure the temperature of the steam table lids.  RR at 30-31.  Asserting that Thermolabels are “routinely used” to measure temperatures of dishware and other items placed inside dishwashers or autoclaves,14 Petitioner contends that CMS failed to show that Thermolabels produced valid results when placed on a “dry,” “external” surface of a steam table lid.  Id. (quoting P. Ex. 4, ¶ 13).  Petitioner says that it offered “expert and lay evidence that the Thermolabels’ results are unreliable, rendering the results inaccurate,” because their use on a steam table surface was not “in accordance with manufacturer specifications.”  Id. (citing P. Ex. 2a, ¶¶ 10-12; P. Ex. 4, ¶¶ 12, 13, 15, 19; and P. Ex. 22, ¶¶ 47, 62).  Petitioner further suggests that the Thermolabels’ reliability cannot be assumed absent evidence that the survey agency followed “manufacturer recommendations with regard to proper storage of the labels.”  RR at 30.

Petitioner’s evidence does not support its contention that the Thermolabels used by the surveyors somehow produced inaccurate results.  First, the steam table was in Petitioner’s possession before and after the survey, yet Petitioner provided no evidence that the temperature of the lids while the steam table was in operation differed from the temperatures measured by the surveyors.  Although Thermolabels may be “routinely used” to measure temperatures of items inside a dishwasher or autoclave, that does not mean that they are inappropriate for other applications.  Nothing in the manufacturer’s specifications indicates otherwise.  Those specifications do not state that Thermolabels

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are inappropriate for use on “dry” or “external” surfaces (such as the steam table’s metal lids).  P. Ex. 68, at 3.  Nor do the specifications state that Thermolabels may only be used inside dishwashers, autoclaves, or other similar equipment.  To the contrary, the specifications state that Thermolabels are “ideal for a wide range of applications,” instructing users to adhere the Thermolabel “to a clean surface.”  P. Ex. 68, at 2, 3.15  Although the manufacturer instructs users to store Thermolabels in a “cool, dry place, preferably under refrigeration,” the instructions do not indicate that improper storage will impair the product’s performance or accuracy.  Id. at 3.  In any event, there is no evidence that the Thermolabels were not stored as directed.

None of Petitioner’s proposed witnesses alleged facts tending to show that the Thermolabels yielded inaccurate results.  One witness, Richard Butler – an attorney, “health care consultant,” and purported “expert regarding the OBRA survey process” – asserted that “external temperatures taken on the [steam table] are not a valid use of the Thermolabel testing strip” and that the test results were therefore “tainted and unverifiable.”  CMS Ex. 4, ¶ 13.  These assertions are unfounded, as they appear to be based entirely on the previously discussed product specifications, which do not preclude the use of Thermolabels on items or surfaces outside of some enclosed space.  See id., ¶ 12 (citing product specifications in P. Ex. 68).  Neither Butler nor Petitioner’s nursing consultant, who provided similar testimony (P. Ex. 2, ¶ 54; P. Ex. 2a, ¶¶ 10-14), claims to be an expert in temperature testing, and to the extent they expressed opinions about the appropriate use of Thermolabels, those opinions were inadmissible because they were not based on scientific, technical, or other specialized knowledge.  See Fed. R. Evid. 701 (Opinion Testimony by Lay Witnesses).16  Consequently, their testimony cannot be relied upon to defeat CMS’s summary judgment motion.  Estate of Brown v. Thomas, 771 F.3d 1001, 1005-06 (7th Cir. 2014) (holding that expert report could not be relied upon to oppose summary judgment because it was inadmissible under the federal rule requiring authentication of evidence); Laboratorio Concordia Lugaro, DAB No. 3029, at 14 (2021) (“[A] genuine dispute of material fact may be established by documents and other materials . . . that are admissible or could be presented in an admissible form.”).

Petitioner similarly suggests that the surveyors’ findings regarding water temperatures in the steam table’s water wells cannot be accepted as true or undisputed without evidence that the thermometer used to measure them produced accurate results.  RR at 31-32 (stating that there is no evidence that temperatures were measured with “accurately calibrated thermometers” and that “[i]f the Facility cannot verify the device used to

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derive water temperatures in the enclosed water wells, the Facility cannot verify the accuracy of those temperatures and cannot defend itself”).  Such arguments are purely speculative and thus fail to demonstrate a genuine dispute of material fact.  Dumas Nursing & Rehab., L.P., DAB No. 2347, at 18 (2010) (“A party may not avoid summary judgment based on conclusory or speculative statements.”).  Again, despite having possession of the steam table, Petitioner submitted no temperature measurements tending to contradict those taken by the surveyors.  We need not address this argument further because the precise water temperature measurements are immaterial to resolving the noncompliance issue.  That is because, as discussed in the next section, Petitioner has not genuinely disputed that the temperature of the steam table’s metal lids was high enough to cause serious harm to a resident. 

3. There is no genuine dispute that at the time of the survey, the steam table’s metal lids were hot enough to burn a resident’s skin.

Petitioner contends that CMS either produced insufficient evidence that the steam table lids were hot enough to injure a resident or failed to demonstrate the absence of a genuine dispute about that fact.  RR at 16, 29-35 (asserting that the steam table “was not operated at a temperature that would be hot enough to burn any resident or staff”) (citing P. Ex. 8, at 5; P. Ex. 18; and P. Ex. 18, ¶ 4).  In support of that contention, Petitioner points to declarations from employees, including the director of nursing and a dietary aide, who “worked closely with the [steam] table every day[ ] [and] who did not find it hot enough to burn.”  RR at 33.  The director of nursing stated:  “I’ve touched the lids when the [steam table] has been turned on numerous times.  I worked that Hall [the 400 Hall] specifically when I was a floor nurse.  I’ve touched those lids a lot.  Never once have I ever felt like it was anything more than warm, and I’m using that even on a standard with the elderly’s frail skin and higher risk for burns.  In my professional opinion, there is no way the lids of that [steam table] could be hot enough to burn anyone.”  P. Ex. 8, ¶ 12 (cited on page 16 of the Request for Review).  And Petitioner’s dietary aide, C.H., stated that staff “kept the dial [that controlled the table’s water temperature] on five,” which was “medium heat,” and that the steam table “did not cook” food, but kept it at an “appropriate temperature for serving to residents.”  P. Ex. 18, ¶ 3 (cited on page 33 of the Request for Review). 

These statements do not create a genuine dispute about the accuracy or reliability of the surveyors’ temperature measurements.  The statements reflect little more than vague or subjective impressions of Petitioner’s staff and do not address the accident hazard existing at the time of the survey.  None of Petitioner’s witnesses indicated that their subjective impressions were based on objective temperature measurements and, again, no competing temperature measurements were provided. 

Petitioner further contends there is a genuine dispute about whether a metal surface with a temperature of 160℉ (the minimum required for a positive Thermolabel test result) is

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hot enough to burn an elderly resident’s skin.  According to Petitioner, the medical literature and other evidence CMS relied on (CMS Exs. 34-39) is irrelevant, “outdated,” or “not specific to the allegations” made.  RR at 33-34. 

The record does not reflect the factual dispute alleged by Petitioner.  CMS proffered multiple pieces of evidence of the potential for thermal injury from skin contact with hot water or a hot surface.  See CMS Exs. 34-39.  One is a chapter from M.A. Farage, K.W. Miller, and H. I. Maibach (eds.), Textbook of Aging Skin (“Textbook”).  The chapter, titled “Considerations for Thermal Injury:  The Elderly as a Sensitive Population,” indicates that the elderly and persons with disabilities are at the greatest risk of thermal injury (skin burn).  CMS Ex. 37, at 1.  The increased risk to those groups stems from multiple factors, including thinning of the skin and decreased sensory perception.  Id. at 1, 4 (stating that the elderly’s increased risk of “thermal injury” is due to many factors, including “[d]iminished senses,” and “impaired mental acuity, slower reaction time, reduced mobility, and bedridden states may lead to the decreased ability of the elderly to identify the severity of the situation”).  The Textbook chapter also refers to the “Standard Guide for Heated System Surface Conditions that Produce Contact Burn Injuries,” published by ASTM International in October 2003.  Id. at 2.  A graph reproduced from the ASTM guide depicts the “relationship between skin temperature and time as it relates to thermal injury.”  Id. at 3.  The graph and accompanying text reflect that skin exposure to a heated surface at or above 158℉ (or 70℃) could cause significant injury, including permanent skin damage, in a matter of seconds.  Id.17 

Petitioner’s attempt to show that the unattended steam table was not an accident hazard at the time of the survey is simply unsupported by the record.  Petitioner proffered no evidence tending to show that contact with a 160-degree metal surface does not have the potential to cause serious thermal injury to an elderly resident.  Petitioner cites statements by its Director of Nursing (RR at 34-35, citing P. Ex. 8, ¶¶ 8, 10-12), but her statements do not contradict CMS’s evidence on this topic.  In fact, the Director of Nursing admitted that if the steam table were as hot as the surveyors described, “it could have been a safety hazard,” and the temperatures reported “would burn me.”  P. Ex. 8, ¶¶ 22, 25. 

Petitioner asserts that the Textbook on Aging Skin “is irrelevant to support potential harm alleged by CMS” (RR at 33) but ignores the textbook’s discussion of the elderly’s risk

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factors for thermal injury and the relationship between exposure time and temperature.  Petitioner also criticizes CMS’s reliance on a study by Moritz and Henriques on the ground that it is “outdated” and describes research on porcine rather than human skin.  RR at 33 (referring to CMS Ex. 36).18  However, the 1947 article reporting that study’s findings explains that testing was conducted on porcine skin because “no other readily available animal has skin that bears so close an anatomical resemblance to that of man” and because experiments on humans was generally not “feasible.”  CMS Ex. 36, at 2, 4.  Petitioner offered no evidence that the Moritz and Henriques thermal-injury study is invalid or unreliable; in fact, the Textbook on Aging Skin describes it as a “landmark work.”  See CMS Ex. 37, at 2, 6, 12 (citing the study in notes 11-14). 

Petitioner suggests that even if the steam table lids and water were as hot as the surveyors found them to be, residents were not at risk of physical harm because their “reflexes would have protected them from severe burns had they touched the [steam table].”  RR at 34.  The only evidence Petitioner cites to support that speculative assertion is a 2007 article from Pain, a journal devoted to pain medicine and research.  Id. (citing P. Ex. 66 – “Defining the Nociceptive Flexion Reflex (NFR) Threshold in Human Participants:  A Comparison of Different Scoring Criteria”).  Petitioner does not cite or quote any passage from that article or attempt to describe its key findings.  We see nothing in the article supporting Petitioner’s suggestion that the withdrawal reflex would invariably protect an elderly resident from any harm caused by contact with a 160℉ hot metal surface.  The study reported in the article involved “healthy young adults,” rather than the elderly.  P. Ex. 66, at 2.  On this record, it is undisputed that the elderly have “decreased sensory perception” and a “higher threshold for pain,” relative to younger adults, and that “diminished senses,” “slower reaction time,” and other factors “may lead to the decreased ability of the elderly to identify the severity of the situation, as well as their capacity to escape from harm.”  CMS Ex. 37 (Textbook), at 1, 10.  In short, Petitioner has not shown that there is a genuine dispute of material fact about whether the unattended steam table observed by surveyors on the morning of May 15, 2017, was an accident hazard and had the potential to cause serious burns.

4. There is no genuine dispute that the unattended steam table observed by surveyors on May 15, 2017, was an accident hazard for unsupervised facility residents.

Petitioner contends that Minimum Data Set (MDS) assessments and other nursing records suggest that the ten residents whom the survey agency identified as being at risk of harm from the hot unattended steam table were not actually at risk, either because they could not move about the facility without staff help or assistive devices, or because they had sufficient safety awareness.  RR at 2, 3, 11, 24-29.   

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To establish lack of substantial compliance, CMS needed to show that the accident hazard in the dining room had the potential to cause more than minimal harm to one or more residents in the facility, “even if surveyors did not observe or identify a particular resident who was actually threatened with harm during the survey.”  Liberty Commons Nursing & Rehab. Ctr. – Johnston, DAB No. 2031, at 19-20 (2006), aff’d, 241 F. App’x 76 (4th Cir. 2007); see also North Las Vegas Care Ctr., DAB No. 2946, at 9 (2019) (finding that it was unnecessary for CMS to show that a deficiency posed a risk of harm to a specific resident). 

CMS made the requisite showing.  It proffered uncontested evidence that the steam table had the potential to harm any resident who was independently mobile (with or without an assistive device) and moderately cognitively impaired, and that there were several residents with access to the dining room – including R4, R7, R18, R19, R22, R23, and R24 – that met both conditions.19

Petitioner contends there are genuine disputes about the ability of these specific residents to “ambulate toward the [steam table] unassisted” (RR at 25) but identifies no evidence to support that contention (see RR at 24-29).20  For example, with respect to R18, Petitioner cites a functional assessment but does not indicate which of the assessment’s findings show an inability to ambulate or move through the dining room unassisted.  See RR at 25.

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In fact, the relevant assessment indicates that R18 was “independent” in “locomotion” (moving between locations in the facility, including moving between room and “off-unit” locations), and Petitioner’s own consultant indicated that R18 was “independently mobile with a walker or a wheelchair.”  CMS Ex. 21, at 6; P. Ex. 2a, ¶ 49.  We need not address these contentions further because, as noted here, there is uncontested evidence that several facility residents were both independently mobile and cognitively impaired.  See supra at n.19. 

Moreover, it was not necessary for CMS to show that Petitioner’s noncompliance – the failure to ensure that the facility remains as free of accident hazards as is possible and that each resident is adequately supervised to prevent accidents – posed a risk of harm to any specific resident.  See North Las Vegas at 9.  “A deficiency is severe enough to warrant a noncompliance finding if it involves acts or omissions that . . . have the potential to cause more than minimal harm to any of the [facility’s] residents . . . .”  Id.  Here, the unattended and unmonitored steam table posed an accident hazard for several facility residents, and Petitioner’s failure to remove that hazard or supervise residents’ access to it had the potential to cause more than minimal harm.  The record reveals no factual dispute that could lead a reasonable factfinder to conclude otherwise. 

5. Petitioner’s dining room “policy” is irrelevant and immaterial.

Petitioner contends that it had a “policy” permitting only “highly cognitively functioning” residents who were able to transfer to, and sit in, a regular dining room chair to use the 400 Hall’s dining room.  RR at 15 (citing P. Ex. 2, ¶ 6).  Petitioner further asserts that decisions about which residents could use the dining room “were based on independent evaluations and clinical conclusions,” and residents who used the dining room did not have “wandering behavior” and were “deemed aware of the importance of avoiding” the steam table.  RR at 15, 26.  This argument, however, fails to address the basis for the noncompliance finding.  Even if only “highly cognitively functioning” residents ate in the dining room, as Petitioner claims, that fact does not preclude summary judgment for CMS because the accident hazard in question existed in between (not during) meal services.  As noted, CMS identified multiple at-risk residents who did not eat in the dining room but nonetheless had access to it. 

6. Petitioner’s contentions regarding the source of resident lists provided to the survey agency do not create a genuine dispute of material fact.

Relying on the declaration of its Director of Nursing, Petitioner disputes the “origin” and “accuracy” of lists the surveyors obtained of residents with access to the dining room who could self-ambulate and were cognitively impaired.  RR at 25 (citing P. Ex. 8, ¶¶ 8, 10).  Petitioner does not explain how any dispute about the lists’ “origin” matters to the outcome, nor does it identify any inaccuracy in the lists.  Although the nursing director

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stated in her declaration that she did not provide the resident list marked as CMS Ex. 14 or verify its information (P. Ex. 8, ¶ 10), she did not deny that Petitioner’s staff provided this list and others to surveyors.  Nor did she allege that any resident list contained inaccurate information.  There is no genuine dispute of material fact relating to the content and accuracy of the resident lists provided by Petitioner to the survey agency.   

7. Petitioner’s contentions about a second steam table reveal no genuine dispute of material fact.

Petitioner asserts that surveyors were aware of a second steam table in another dining room but did not test that table’s temperatures or mention it in the statement of deficiencies, despite their attention to the steam table in the 400 Hall’s dining room.  RR at 14 (citing P. Ex. 4, ¶ 16).  Petitioner suggests that these circumstances show that “surveyors could not have believed” that either steam table was “inherently dangerous.”  Id.  We reject this argument because there is no evidence that surveyors did not inspect the other (second) steam table.  Petitioner cites the declaration of Richard Butler, but Butler was not present in the facility during the May 2017 survey and did not claim to have personal knowledge of what surveyors did or did not inspect.  Moreover, Petitioner’s noncompliance does not turn on a “belief” that all steam tables are “inherently dangerous.”  Rather, the survey team found that Petitioner was of out substantial compliance with section 483.25(d) because the unattended steam table in the 400 Hall dining room posed an accident hazard to unsupervised facility residents on the morning of May 15, 2017.

8. Petitioner did not take all reasonable precautions to prevent or minimize the accident hazard.    

Petitioner claims it had a policy providing for “extensive staff supervision” of the 400 Hall dining room when residents were present, that it “trained staff extensively and uniformly” in its safety policies and procedures, and that it made “reasonable efforts to anticipate safety issues for residents and staff alike.”  RR at 15 (citing P. Ex. 2, ¶¶ 6, 24, 39; P. Ex. 2a, ¶ 91; P. Ex. 12, ¶¶ 6, 8; P. Ex. 14, ¶¶ 9, 12, 13; P. Ex. 18, ¶¶ 2, 26; and P. Ex. 22, ¶ 24).  Petitioner asserts that the efficacy of its safety measures is evidenced by an “injury log report” showing no burn injuries to residents during the preceding seven years.  See RR at 8, 13, 15, 17 (citing P. Ex. 34).  Petitioner also contends that the purpose of the signage on the steam table (to “turn off” and then “unplug” the table after use) was not for resident safety but for the protection of employees from electric shock when cleaning it.  RR at 15.

These contentions do not establish any genuine dispute of material fact concerning Petitioner’s noncompliance.  Section 483.25(d) required Petitioner to take all reasonable precautions to eliminate or minimize the identified accident hazard.  It is undisputed that Petitioner did not take at least two such precautions on May 15, 2017 – namely, turning

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off the steam table after breakfast service as its own policy instructed, and shutting the dining room doors between meals to prevent or discourage cognitively impaired or unsupervised residents from entering the dining room between meals, when the steam table might be hot.  CMS Ex. 27.  Petitioner’s evidence that it supervised residents during meals in the dining room (see, e.g., P. Ex. 2, ¶ 6 and P. Ex. 12, ¶¶ 6, 8) is immaterial because Petitioner’s noncompliance related to the time between meal services.  The lack of a reported burn injury also does not excuse Petitioner’s noncompliance or create a genuine dispute of material fact relevant to this case.  See Lake Worth Nursing Home, DAB No. 3194, at 17 (2025) (holding that the fortuity that a resident was not harmed by a facility’s noncompliance “does not excuse the noncompliance”). 

9. The survey agency did not “exonerate” Petitioner.

Petitioner argues that the noncompliance finding itself is in dispute because one of the surveyors – Rick Gross – “exonerated” the facility by indicating on his CMS-803 form that the facility was “as free of accident hazards as possible” and that there were “no identified concerns” under 42 C.F.R. § 483.25(d).  RR at 19-20 (citing P. Ex. 28).  This argument misconstrues both the form and the authority of surveyors.  First, the CMS-803 form is not a statement of deficiencies and does not set forth a survey agency’s (or CMS’s) determination about whether a facility is not in substantial compliance with participation requirements.  Rather, the form is used by individual surveyors to document their “general observations” of a facility, and to “focus [the surveyor’s] observations” on certain areas of concern.  P. Ex. 28, at 1.  CMS ultimately determines whether a facility is compliant with Medicare requirements.  See Rosewood Care Ctr. of Rockwood, DAB No. 2466, at 9 (2012) (“State survey agencies . . . merely recommend findings of substantial compliance or noncompliance; ultimate authority for certifying a [facility] as compliant with Medicare requirements rests with CMS.”).  Thus, CMS’s noncompliance determination would “supersede” any conflicting surveyor finding.  Id. at 10.

Second, nothing on the CMS-803 form completed by Surveyor Gross indicates that the form relates to his observations about conditions existing in the 400 Hall’s dining room on the morning of May 15, 2017.  Page one of the form contains a pre-printed list of 18 areas of concern, including “accident hazards.”  P. Ex. 28, at 1.21  At the bottom of the page, Surveyor Gross initialed a pre-printed statement indicating there were “no identified concerns.”  Id.  Such a general conclusory statement by one surveyor, without more, is insufficient to generate a genuine dispute of material fact about the conditions existing in the 400 Hall dining room on May 15, 2017, observed by other surveyors.  Indeed, nothing on the form indicates when Surveyor Gross initialed the no-identified-concerns statement.  Notably, the second page of the form contains handwritten notes of Surveyor Gross’s personal observations beginning at 3:15 p.m. on May 16, 2017, after

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the steam table was removed from the 400 Hall’s dining room.  P. Ex. 28, at 2.  None of the notes on page two of the form purport to document observations made on May 15.

10. CMS did not concede the existence of any dispute of material fact.

According to Petitioner, CMS “admitted” the existence of a genuine dispute of material fact in footnote two of its summary judgment motion.  RR at 14.  We disagree.  The footnote indicates there is a dispute (or conflicting evidence) about whether the steam table was on and unattended at (or about) 11:20 a.m., when surveyors tested the temperature of the steam table lids for a second time.  However, as Petitioner recognizes (see RR at 2, 26), CMS’s position is that Petitioner was noncompliant with section 483.25(d) because the steam table posed an accident hazard to residents between 9:40 a.m. and 11:05 a.m., when uncontroverted evidence shows the dining room doors were open and the steam table was left on and unattended.  Given these parameters, any dispute about the operating status of the steam table at 11:20 a.m. is immaterial. 

11. CMS’s noncompliance determination does not depend on finding that a resident was unsupervised in the dining room.

Petitioner further contends that no surveyor “document[ed] seeing any unsupervised resident in the [dining room] with the [steam table] on,” RR at 8, but that asserted fact, even if assumed to be true, is immaterial.  To establish noncompliance, CMS only needed to show an accident hazard with the potential to cause more than minimal harm to at least one facility resident, “even if surveyors did not observe or identify a particular resident who was actually threatened with harm during the survey.”  Liberty Commons – Johnston, DAB No. 2031, at 19-20; see also Josephine Sunset Home, DAB No. 1908, at 15 (2004) (“For a risk to be foreseeable, it need not have been made obvious by having already materialized.”). 

Having concluded that CMS is entitled to summary judgment with regard to its noncompliance determination under 42 C.F.R. § 483.25(d), we next consider Petitioner’s challenge to CMS’s immediate-jeopardy determination. 

3. Petitioner did not present or identify evidence that could lead a rational trier of fact to conclude that CMS’s immediate jeopardy determination is clearly erroneous.

“Immediate jeopardy” is defined in CMS’s regulations as a “situation in which the [facility’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 (italics added).  As this definition indicates, immediate jeopardy may exist even if no resident sustained actual harm as a result of the noncompliance (as is the case here).  Briarwood Nursing Ctr., DAB No. 2115, at 12 (2007); Daughters of Miriam Ctr.,

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DAB No. 2067, at 8 (2007).  In evaluating an immediate jeopardy determination, the focus is on the severity of harm that could result from the noncompliance if left uncorrected.  See 42 C.F.R. § 488.404(b)(1) (describing the level of potential or actual harm, including immediate jeopardy, as factors in determining the seriousness of a deficiency).  CMS may find immediate jeopardy “if a [facility’s] noncompliance is the type of noncompliance that would likely cause serious injury, harm, impairment, or death [to a resident] if not corrected, even if surveyors did not observe or identify a particular resident who was actually threatened with harm during the survey.”  Liberty Commons – Johnston, DAB No. 2031, at 19.  “Where a facility’s noncompliance is likely to cause serious harm to a resident, immediate jeopardy exists, regardless of whether any particular resident has already suffered serious harm or is likely to suffer serious harm.”  Lakeport Skilled Nursing Ctr., DAB No. 2435, at 6 (2012) (emphasis in original).       

The Board must sustain CMS’s immediate-jeopardy determination unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c)(2) (“CMS’ determination as to the level of noncompliance . . . must be upheld unless it is clearly erroneous.”).  Under the clearly erroneous standard, CMS’s immediate jeopardy determination is “presumed to be correct,” and “a facility bears a heavy burden in challenging the assessment of immediate jeopardy, which, of necessity, includes an element of judgment.”  Vibra Hosp. of Charleston - TCU, DAB No. 3094, at 22 (2023) (internal quotation marks omitted).  “Once CMS presents evidence supporting a finding of noncompliance, CMS does not need to offer evidence to support its determination that the noncompliance constitutes immediate jeopardy; rather, the burden is on the facility to show that that determination is clearly erroneous.”  Id. (internal quotation marks omitted); see also Liberty Commons – Johnston, DAB No. 2031, at 17-19 (rejecting facility’s contention that CMS was obligated to demonstrate that the established noncompliance caused or was likely to cause serious harm to support its immediate-jeopardy determination).  “To avoid summary judgment on [the immediate-jeopardy] issue, [the facility] had to present evidence that, viewed in the light most favorable to Petitioner together with all reasonable favorable inferences, could cause a rational trier of fact to see clear error in CMS’s determination.”  Heritage House of Marshall at 23.        

As discussed, Petitioner was noncompliant with section 483.25(d) because it allowed an accident hazard – an unattended steam table with hot metal surfaces – to exist in a dining room accessible to residents with moderate or severe cognitive impairments and without supervision.  Petitioner did not demonstrate clear error in CMS’s conclusion that this noncompliance met the regulatory conditions for immediate jeopardy.  Petitioner failed to proffer or identify record evidence showing that the harm posed by the unattended steam table was not “serious” under “any reasonable definition” of that term.  Daughters of Miriam at 9.  Petitioner merely offered unfounded criticism (addressed in section II.C. above) of medical literature submitted by CMS showing that the risk of harm (e.g., third-degree burns) was indeed serious. 

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Petitioner failed to demonstrate that the accident hazard created by the unattended steam table was not “likely to cause” serious harm.  Citing the 2014 version of Appendix Q to CMS’s State Operations Manual, Petitioner instead addressed whether there was “immediacy” to the threat of harm posed by the accident hazard.  See RR at 8.  The 2014 version of Appendix Q identified immediacy as a “component” of immediate jeopardy and stated that “immediacy” should be determined by asking whether “harm or potential harm” to residents from the noncompliance was “likely to occur in the very near future . . . if immediate action is not taken.”  P. Ex. 56 (Appendix Q, Rev. 102, issued Feb. 14, 2014).  However, this agency guidance “does not establish enforceable or binding legal standards.”  Copperas Cove LTC Partners, Inc., DAB No. 3049, at 41 (2021) (citing Agape Rehab. of Rock Hill, DAB No. 2411, at 19 (2011)), aff’d, No. 21-60892, 2023 WL 4198882 (5th Cir. June 27, 2023).22  The controlling standard is instead found in 42 C.F.R. § 488.301, which does not include “immediacy” as a required element of an immediate-jeopardy finding.  Id.  The regulation, which binds the Board, defines immediate jeopardy in terms of whether noncompliance “has caused” or “is likely to cause” serious injury, harm, impairment, or death to a resident, without regard to when those outcomes occur or may occur.  Agape Rehab. at 19 (noting that the applicable regulation does not “set[ ] any parameters as to the timing of potential harm”); Hermina Traeye Mem. Nursing Home, DAB No. 1810, at 8-9 (2002) (holding that a “crisis situation” or “presently existing threat” is not required to find immediate jeopardy), aff’d per curiam sub nom., Sea Island Comp. Healthcare Corp. v. Thompson, 79 F. App’x 563 (4th Cir. 2003). 

Petitioner faults CMS for not submitting a declaration by Surveyor Gross, or notes he made during the survey, even though (according to Petitioner) his “observations constituted the basis for the other surveyors to pursue an [immediate jeopardy] determination.”  Reply at 19.  However, it is Petitioner’s burden to demonstrate that CMS’s immediate-jeopardy finding was clearly erroneous, rather than CMS’s burden to prove the finding’s validity.  See Copperas Cove, DAB No. 3049, at 38-39.  Furthermore, the record shows that the immediate-jeopardy finding was based on observations of surveyors other than Surveyor Gross.  See CMS Exs. 29-31.

Petitioner asserts that the survey agency did not notify Petitioner’s staff of the immediate-jeopardy finding until May 17, 2017, two days after making the observations supporting that determination.  RR at 13-14.  According to Petitioner, that circumstance “proves that the survey team determined the standards for a Level 4 Severity [immediate jeopardy] determination did not exist.”  Id. (quoting P. Ex. 4, ¶ 16).  We disagree.  CMS’s immediate-jeopardy determination rests on evidence concerning the condition of the steam table in the dining room on the morning of May 15, 2017, the mental and physical

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functioning of residents with access to the dining room, and the seriousness of the harm threatened by the accident hazard.  CMS’s immediate jeopardy determination does not turn on when the surveyors notified the facility of their immediate-jeopardy finding.  See Heritage House of Marshall at 22 (rejecting facility’s contention that the timing of the surveyor’s declaration of immediate jeopardy created a genuine dispute of material fact about CMS’s immediate jeopardy determination).

Finally, we note that although Petitioner generally questions the validity of what it calls  CMS’s “IJ determination” (see, e.g., RR at i, 7, 11), Petitioner’s arguments largely conflate the threshold issue of whether it was in substantial compliance and the related but separate issue of whether its noncompliance was at the immediate-jeopardy level of severity.  As a result, Petitioner has not clearly articulated a basis, grounded in the regulatory definition of immediate jeopardy, for finding error in CMS’s immediate-jeopardy determination and thus cannot meet its heavy burden to upset that determination.  See Hotel Reed Nursing Ctr., DAB No. 2154, at 20-21 (2008) (upholding an immediate-jeopardy finding when the facility “ma[d]e no argument and cite[d] no evidence specific to [its] burden” under the clearly erroneous standard but “merely refer[red] in general terms to the evidence on which it relied to support its assertion that it was in substantial compliance”); Dumas Nursing & Rehab. at 5 (“[I]t is appropriate [on summary judgment] for the tribunal to consider whether a rational trier of fact could regard the parties’ presentations as sufficient to meet their evidentiary burdens under the relevant substantive law.”).

Petitioner has not demonstrated that the regulatory conditions for an immediate-jeopardy finding are absent in this case or identified a genuine factual dispute material to determining the existence of those conditions.  Accordingly, we sustain CMS’s immediate-jeopardy determination as not clearly erroneous.

4. CMS’s determination as to the duration of immediate jeopardy is not clearly erroneous.

Petitioner challenges CMS’s determination that immediate jeopardy was not abated until May 17, 2017.  Petitioner asserts that it reduced the severity of the noncompliance on May 16 by changing the way it served meals, permanently removing the steam table from the facility, and taking other measures documented in the statement of deficiencies.  RR at 8-9, 36 (arguing that the per-day penalty should be reduced by at least one day).  We reject Petitioner’s argument because it is undisputed that Petitioner did not complete the corrective measures it identified to abate the immediate jeopardy until May 17, 2017.   

“[A] determination by CMS that the facility’s noncompliance continued at the immediate jeopardy level during a specified period constitutes a determination about the level of noncompliance and, therefore, is subject to the clearly erroneous standard of review under section 498.60(c)(2).”  Vibra Hosp. at 24 (internal quotation marks omitted).  Thus,

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“once a facility is found to have placed residents in an immediate jeopardy situation, it is presumed to continue to present immediate jeopardy unless the facility shows that the determination of continued immediate jeopardy is clearly erroneous.”  Id. (internal quotation marks omitted); see also Bridge at Rockwood, DAB No. 2954, at 29 (2019).  “[A]s a general rule, a facility will not be considered to have successfully abated immediate jeopardy until it has at least completed the steps it determined were necessary to accomplish that goal.”  Vibra Hosp. at 26; see also Owensboro Place & Rehab. Ctr., DAB No. 2397, at 12-13 (2011) (finding no clear error by CMS in determining the duration of the facility’s immediate-jeopardy and noncompliance periods in view of evidence about when it took corrective action specified in its own plan of correction); Meridian Nursing Ctr., DAB No. 2265, at 20-21 (2009) (upholding CMS’s finding regarding the duration of immediate jeopardy based on the timing of the facility’s completion of “all necessary corrective actions” specified in its plan for abating the immediate jeopardy), aff’d sub nom., Fal-Meridian, Inc. v. U.S. Dep’t of Health & Hum. Servs., 604 F.3d 445 (7th Cir. 2010).

Although Petitioner contends that residents were no longer in immediate jeopardy on May 16, 2017, Petitioner does not claim that it had, by that date, implemented all the corrective measures it identified to abate the immediate jeopardy.  According to the statement of deficiencies, those measures included “in-servic[ing]” all staff “regarding the steam table policy that the steam table be turned off after meal service”; “educat[ing] staff that no resident remains in the dining room unattended while a steam table is in use”; and educating staff that “dining room doors remain closed until a dining room steam table is cooled.”  CMS Ex. 1, at 20.  Petitioner does not dispute that the facility did not complete the required training until May 17, 2017.  Id. at 20 (¶ 7) (indicating that staff “were in-serviced regarding the steam table policy” on May 17). 

Moreover, the steam table continued to be used for breakfast and lunch on May 16 and was not removed until the afternoon of that day.  Id. at 20 (¶ 4).  And, while it is true that Petitioner changed the way it served meals on May 16, that change was not implemented until the late afternoon of May 16.  Id. at 20 (¶ 5).  Based on these uncontroverted facts, we cannot conclude that CMS’s determination regarding the duration of immediate jeopardy is clearly erroneous.

5. The civil money penalty is reasonable.

The ALJ (or the Board) determines de novo whether a civil money penalty is reasonable based on the facts and evidence in the record concerning the factors specified under 42 C.F.R. § 488.438.  See 42 C.F.R. § 488.438(e)(3), (f); Green Oaks Health & Rehab. Ctr., DAB No. 2567, at 16 (2014) (collecting cases).  Those factors are:  (i) the facility’s history of noncompliance; (ii) the facility’s financial condition; (iii) the factors specified in 42 C.F.R. § 488.404, which include the severity and scope of deficiencies; and (iv) the facility’s degree of culpability, including but not limited to neglect, indifference, or

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disregard for resident care, comfort or safety.  42 C.F.R. § 488.438(f).  The Board has long held “that the [penalty] amount selected by CMS is presumptively reasonable based on [the regulatory] factors” enumerated above, and that “the burden is on the [facility] to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction . . . is necessary to make the amount reasonable.”  Good Shepherd at 23 (internal quotation marks omitted). 

“Whether a [penalty] amount is reasonable is a legal, not a factual, issue.”  Crawford Healthcare & Rehab., DAB No. 2738, at 19 (2016).  To overcome a motion for summary judgment on the reasonableness of a penalty, the facility “must proffer evidence sufficient to create a genuine dispute about facts affecting [an] assessment of the relevant regulatory factors.”  Id.  For the reasons explained below, we find that Petitioner has not identified a genuine dispute of material fact relating to any of the regulatory factors that would affect our assessment or justify a reduction in the per-day penalty amount.

Here, CMS imposed a $9,254 per day penalty for two days of noncompliance at the immediate jeopardy level (May 15-16, 2017).  CMS Ex. 8, at 2 (noting a total penalty of $18,508 for the immediate-jeopardy level noncompliance).  When CMS imposed the penalty, the regulations established a per-day-penalty range of $6,394 to $20,965 for immediate-jeopardy level noncompliance.  42 C.F.R. § 488.438(a)(1)(i); 45 C.F.R. § 102.3 (eff. Feb. 3, 2017).  As the ALJ found, the per day penalty amount imposed by CMS “falls well within the range of permissible penalties.”  ALJ Decision at 9.  The ALJ further found that “Petitioner offered no facts to challenge the reasonableness” of the penalty amount, “except to argue that it complied with participation requirements and that no penalties should apply.”  Id. 

We agree with the ALJ’s assessment.  Beyond contesting the validity and duration of CMS’s immediate jeopardy determination, which we resolved in favor of CMS, Petitioner does not allege that any regulatory factor warrants a reduction in the penalty amount.  Accordingly, we conclude that $9,254 is a reasonable per day penalty for the period of immediate-jeopardy-level noncompliance in this case.  See Consulate Healthcare of Jacksonville, DAB No. 3119, at 36 (2023) (upholding penalty amount where petitioner did not “challenge the ALJ’s assessment of the regulatory factors . . . or cite any evidence that might undercut it”); Glenoaks Nursing Ctr., DAB No. 2522, at 27 (2013) (upholding penalty amount where petitioner did not assert on appeal “that any particular regulatory factor did not support the [penalty] amounts”).

6. CMS properly notified Petitioner that it was prohibited from operating a nurse aide training and competency evaluation program for two years.

Petitioner asserts that if the contested noncompliance determination or immediate-jeopardy finding is found invalid, and the civil money penalty is reduced, then there would be “no basis” to prohibit it from operating a nurse aide training and competency

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evaluation program (NATCEP).  RR at 36-37; Reply at 19-20.  We reject Petitioner’s argument because we sustain CMS’s noncompliance and immediate-jeopardy determination, as well as the civil money penalty.  Petitioner is prohibited, by operation of law, from operating a NATCEP for two years (beginning May 22, 2017) because its immediate-jeopardy-level noncompliance under section 483.25(d) constitutes “substandard quality of care,”23 and Petitioner was subject to an “extended survey” as a result of the substandard-quality-of-care finding.  See CMS Ex. 8, at 1, 4; see also Social Security Act § 1819(f)(2)(B)(iii)(I)(b), (g)(2)(B)(i); 42 C.F.R. § 483.151(b)(2)(iii), (f)(1).   

Conclusion

We affirm the ALJ’s determination that:  (1) Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d); (2) CMS’s determination that Petitioner’s noncompliance was at the immediate-jeopardy level from May 15-16, 2017, is not clearly erroneous; and (3) the $9,254 per day penalty for noncompliance at the immediate jeopardy level is reasonable.