SUBJECT:

Beverly Health and Rehabilitation Center - Williamsburg

Petitioner,

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

The Health Care Financing Administration (HCFA) appealed the March 8, 2000 decision of Administrative Law Judge (ALJ) Steven T. Kessel in which he determined that HCFA had failed to make a prima facie case to support imposing a civil money penalty (CMP) on Beverly Health and Rehabilitation Center - Williamsburg (Williamsburg). Beverly Health and Rehabilitation Center - Williamsburg, DAB CR653 (2000) (ALJ Decision). HCFA sought to impose a CMP of $5,000 per day for three days from January 16, 1998 through January 18, 1998 for a total of $15,000. HCFA argued that the ALJ misconstrued the meaning of the regulations on which HCFA relied by requiring HCFA to prove abuse or potential abuse rather than relying on neglect alone. We find no error in the ALJ's interpretation of the regulation on which HCFA relied. For the reasons explained further below, we affirm and adopt all Findings of Fact and Conclusions of Law (FFCL) made by the ALJ and sustain the ALJ Decision.

Background

The facts in this case are undisputed and are set out in more detail in the ALJ Decision at 1-3. Williamsburg is a dually-participating long-term care facility in Little Rock, Arkansas. On February 25, 1998, the Arkansas Department of Human Services (ADHS) conducted an "abbreviated standard survey" of Williamsburg. The surveyors found that Williamsburg had been out of substantial compliance during three days in the past based on their review of the facility's own past records and a written statement obtained from a licensed practical nurse. P. Ex. C, at 1-4 (Statement of Deficiencies, HCFA Form 2567). The surveyors further determined that the situation during that period presented an immediate jeopardy to resident health and safety.

The incident on which this determination was based involved two residents who shared a room. Resident (R.) 1 used ventilation equipment to support her breathing as a consequence of pulmonary disease. R. 2 suffered from dementia, with a varying level of cognitive understanding and socially and behaviorally disruptive symptoms. R. 1 was transferred into the room occupied by R. 2 on January 16, 1998. At 1:10 a.m. on January 17^th, a nurse observed R. 2 standing by R. 1's bedside and unplugging the breathing apparatus. When asked, R. 2 explained that she did not "want this thing on, it's making a noise." P. Ex. C, at 4. The nurse replaced the plug, and R. 1 stated that she was unharmed but scared of her roommate. Later that morning, at 6 a.m., R. 1 requested that she be moved to another room because she had been up all night and was concerned about her roommate's behavior. The following morning, R. 1 expressed similar fears and again requested a transfer. At 2 p.m. that day, the facility moved R. 1 to a different room. It is uncontested that R. 1 was moved more than 30 hours after her initial request for a room transfer and that during that period R. 1 was fearful and disturbed about her roommate.

The surveyors cited Williamsburg under a regulation that provides that a resident of a long-term care facility "has the right to be free from verbal, sexual, physical, and mental abuse . . . ." 42 C.F.R. § 483.13(b). The surveyors further found that this situation posed immediate jeopardy. Based on the surveyors' findings, HCFA determined to impose a CMP of $5,000 per day.⁽¹⁾

Williamsburg requested a hearing before an ALJ and sought summary disposition on the written record, including exhibits which Williamsburg submitted with its motion. ALJ Decision at 2-4; P. Motion for Summary Disposition, filed Dec. 15, 1999. HCFA opposed the motion, without offering any additional exhibits or testimony, or contesting the accuracy of the material facts as presented in Williamsburg's submission, and filed a cross motion for summary disposition. ALJ Decision at 2; HCFA's Opposition, filed Jan. 18, 1999. The ALJ entered a decision in favor of Williamsburg on the basis that HCFA had failed to state a prima facie case to show a basis to impose a CMP, and this appeal by HCFA followed. ALJ Decision at 1.

Issues

HCFA excepted to only one FFCL, which reads as follows:

FFCL No. 4. HCFA did not establish a prima facie case that Petitioner neglected to care for the needs of Resident # 1 thereby resulting in abuse or potential abuse of Resident # 1 by Resident # 2.

ALJ Decision at 7. HCFA argued that this FFCL was erroneous because the Statement of Deficiencies sets out findings which meet the definition of "neglect" contained in HCFA regulations and hence sufficed to show noncompliance with 42 C.F.R. § 483.13(b), as HCFA interpreted it. HCFA Br. at 2. Therefore, HCFA contended that the ALJ erred in concluding that "HCFA did not establish a prima facie case of neglect." HCFA Br. at 4.

Neither party excepted to the remaining three FFCLs set out in the ALJ Decision, and we therefore affirm and adopt them in their entirety. Those FFCLs hence conclusively establish the following:

FFCL No. 1. Summary disposition is appropriate in this case because there are no facts in dispute.

FFCL No. 2. The gravamen of HCFA's allegation is that Petitioner failed to comply substantially with participation requirements in that Petitioner allowed Resident # 1 to be abused by Resident # 2.

FFCL No. 3. HCFA failed to establish a prima facie case that Resident # 1 was abused by Resident # 2.

ALJ Decision at 3, 4, and 6.⁽²⁾

Standard of Review and Burden of Proof

Our standard of review on disputed issues of fact is whether the ALJ Decision is supported by substantial evidence on the record as a whole. See, e.g., Fairview Nursing Plaza, Inc., DAB No. 1715, at 2 (2000); South Valley Health Care Center, DAB No. 1691 (1999). Our standard of review as to disputed issues of law is whether the ALJ Decision is erroneous. Id. The applicable burden of proof requires HCFA to come forward with sufficient evidence to prove a prima facie case that the facility is not complying with one or more participation requirements and ultimately requires the facility to show substantial compliance, by a preponderance of the evidence, effectively rebutting any prima facie case of noncompliance established by HCFA. Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd, Hillman Rehabilitation Center v. United States, No. 98-3789(GEB) (D.N.J. May 13, 1999).

Conclusion

For the reasons set out above, we sustain the ALJ Decision and affirm and adopt each of the FFCLs.

The dispute which is presented to us on appeal here is very narrow, given the scope of the unchallenged FFCLs. HCFA's appeal addresses only whether Williamsburg neglected R. 1 in a way that at least exposed R. 1 to potential abuse by R. 2.

HCFA did not dispute before us the finding that the gravamen of its allegations against Williamsburg rested on the theory that Williamsburg allowed R. 1 to be abused by R. 2.⁽³⁾ HFCA did not contest that it failed to prove, or even establish a prima facie case, that such abuse occurred. Finally, HCFA did not argue that any facts were disputed, so we accept the facts as laid out in the ALJ Decision.⁽⁴⁾

HCFA did not argue before us that it had indeed presented a prima facie case that the facility put R. 1 in potential danger of abuse by R. 2. Rather, HCFA's focus on appeal was that it had presented a prima facie case of neglect. HCFA argued that the ALJ should not have required it to present evidence of abuse or potential abuse, rather than simply the presence of mental anguish, in order to establish a prima facie case. HCFA Br. at 12. We must therefore consider first what elements were necessary for HCFA to establish in order to present a prima facie case that Williamsburg was not in substantial compliance with 42 C.F.R. § 483.13(b).

The single regulatory provision with which the surveyors found Williamsburg out of compliance, 42 C.F.R. § 483.13(b), reads in its entirety as follows:

(b) Abuse. The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.

A long-term care facility "must protect and promote the rights of each resident." 42 C.F.R. § 483.10.⁽⁵⁾ The term "abuse" is defined elsewhere in HCFA regulations as "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish." 42 C.F.R. § 488.301.⁽⁶⁾ Thus, a finding of noncompliance with section 483.13(b) on its face implies a failure (deliberate or negligent) by a facility to protect a resident from abuse, i.e., from a willfully inflicted injury resulting in harm (physical or mental). In the context of this case, the charge was that Williamsburg failed to prevent one resident from abusing another in a way that inflicted mental anguish.

HCFA asserted, however, that, despite the language of the specific provision on which it relied, its case against Williamsburg was based from the beginning entirely on neglect rather than abuse. That is to say, HCFA contended below that it never charged that Williamsburg "permitted abuse to occur," but rather that Williamsburg "neglected to attend to the needs" of R. 1. ALJ Decision at 4. In effect, HCFA argued that it could omit any element of willful infliction, once it demonstrated that some event, regardless of its cause, resulted in mental anguish.

HCFA pointed to the regulatory definition of neglect as "failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness." 42 C.F.R. § 488.301. Therefore, HCFA argued on appeal that the ALJ should have focused solely on whether goods and services (i.e., a prompt room transfer) were withheld from R. 1 with the result that R. 1 suffered mental anguish. This was sufficient, HCFA contended, to establish a prima facie case. HCFA Br. at 9. In this regard, HCFA contended that the ALJ erroneously failed to accord mental anguish legitimacy as evidence of neglect but rather focused only on threats to physical well-being. HCFA Br. at 10. Further, HCFA challenged the ALJ's conclusion that the delay in transferring R. 1 was not unreasonable, on the grounds that the lapse showed that Williamsburg was "in fact remiss with respect to its regulatory obligation to prevent the neglect" of R. 1. HCFA Br. at 11.

We agree with the ALJ that the sole provision under which Williamsburg was cited speaks to the prevention of abuse. Other provisions do indeed set out the affirmative duties of a facility to provide various needed goods and services, to prohibit staff neglect of residents, and to take steps to prevent accidental injuries. See, e.g., 42 C.F.R. §§ 483.13(c) and 483.25. The ALJ noted that HCFA did not assert at any time that Williamsburg might be found deficient under any provision other than 42 C.F.R. § 483.13(b). ALJ Decision at 5. Instead, HCFA simply insisted that it could properly interpret that provision to cover a duty to prevent neglect of any kind that caused mental anguish to a resident. Thus, HCFA argued that 42 C.F.R. § 483.13(b) should be read to prohibit "medically unnecessary use of restraints, abuse, corporal punishment, involuntary seclusion, mistreatment, neglect, and misappropriation of resident property." HCFA Br. at 5 (emphasis added). This expansive reading is not at all apparent on the face of the particular provision cited, which refers only to the residents' right to be free from abuse, punishment, and seclusion.⁽⁷⁾

Nevertheless, HCFA turned to its instructions to surveyors concerning 42 C.F.R. § 483.13(b) to demonstrate that the provision was meant to address not only failures to keep residents free from abuse but also any neglect of residents' needs leading to harm including mental anguish. See HCFA Br. at 5, citing State Operations Manual, at Appendix PP (Guidelines to Surveyors for 42 C.F.R. § 483.13(b)) (SOM). Specifically, HCFA relied on a statement in the SOM to the effect that 42 C.F.R. § 483.13 covers a "facility's responsibilities to prevent not only abuse, but also those practices and omissions, neglect and misappropriation of property, that, if left unchecked, lead to abuse."

The ALJ rejected HCFA's reliance on the SOM for two basic reasons. First, on procedural grounds, the ALJ found that the unpublished internal guidance to surveyors in the SOM did not provide adequate notice to Williamsburg of the interpretation now put forward by HCFA and was not a reliable basis to alter the plain meaning of the published regulation. Second, on substantive grounds, the ALJ found the language of the SOM would not, in any case, lead to the result propounded by HCFA under the facts here.

We find no error in the ALJ's reasoning. HCFA conceded that the SOM was not legally binding and did not dispute the ALJ's statement that the SOM was not offered by HCFA to the public as its official interpretation. Furthermore, while the SOM language interprets the provision to extend beyond prevention of actual abuse, the additional concerns listed (including neglect) are all modified by the phrase "that, if left unchecked, lead to abuse." Whether or not the facility could be faulted in some other way for the time it took to move R. 1, therefore, the fact remains that an essential element of the provision cited as explained in the SOM is that the conduct or inaction of the facility be such as to "lead to abuse." Thus, the ALJ did not err in focusing on whether the time taken to effectuate a room change here presented a potential for abuse. In this case, the nature of the abuse charged to have occurred or to have been threatened was R. 2 frightening R. 1 by tampering with her supportive breathing apparatus. It is therefore necessary to consider whether R. 2 "abused" or could have "abused" R. 1 by her actions, in order to determine whether the facility failed to take appropriate steps to prevent abuse or potential abuse.

In resolving that question, the risk of abuse must be determined within the regulatory definition of abuse, as, in relevant part, "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish." 42 C.F.R. § 488.301 (emphasis added). Plainly, the entire definition is qualified by the requirement that harm (mental or physical) be inflicted willfully. The undisputed facts, however, strongly establish that no willful behavior was involved or likely to have occurred here. On the contrary, R. 2's explanation of her actions when found with the plug to R. 1's respirator was to comment that the machine was making a noise and that the noise bothered her so she wanted to make it stop. See ALJ Decision at 6; P. Ex. 3. Coupled with the medical records concerning R. 2's cognitive deficits, the ALJ's finding that R. 2 tried to unplug the equipment because R. 2 thought that it "made an annoying noise" was supported by substantial evidence. ALJ Decision at 6. As the ALJ found, there is nothing showing that R 2 was aware of any connection between the machine plugged into the wall and the other person in the room or that R. 2 intended any impact on R. 1. Id. Thus, the ALJ found that no willful abuse occurred. (As the ALJ noted, the record might also support a reasonable inference that R. 2 lacked the capacity to engage in any willfully injurious conduct, but no such broad inference is necessary to demonstrate that R. 2 had no injurious intent or motive in connection with R. 1 and the respirator. See ALJ Decision at 6.)⁽⁸⁾

HCFA is mistaken that evidence that a resident suffered mental anguish, or even physical harm, while under the facility's care is in itself sufficient to prove a deficiency under 42 C.F.R. § 483.13(b). The harm, whether physical or mental in nature, must be the result of abuse. Where a facility is charged with neglecting to protect a resident, the hazard involved must be such as to lead potentially to abuse, not simply to harm from some other cause, in order to show a violation of section 483.13(b). This conclusion in no way implies that mental anguish is being treated as trivial, as HCFA contended,⁽⁹⁾ or that the regulations afford no protection to residents from mental as well as physical mistreatment and harm in a nursing home. On the contrary, the regulations provide, for example, that facilities must not permit mental or verbal abuse (as well as physical acts of abuse), must have written policies prohibiting their staff from neglecting residents, and must thoroughly investigate any violations. 42 C.F.R. § 483.13(c). Both neglect and abuse are defined to include conduct that results in mental anguish as well as conduct causing physical injury or pain. 42 C.F.R. § 488.301. The difference between neglect and abuse is not in the seriousness with which mental anguish is considered, but in the nature of the conduct triggering the harm. Abuse means willfully injurious conduct; neglect means omission to provide necessary goods and services. Id.

HCFA effectively sought to redefine the regulation cited by the surveyors in order to force it to fit the facts by reading the word "abuse" as if were "neglect" or simply "harm." In so doing, HCFA relied on a prior decision which found that "a showing of neglect . . . requires prima facie evidence that: (1) goods and services were withheld from a resident; and (2) that the withheld goods or services were necessary to avoid physical harm, mental anguish or mental illness to that resident." Beverly Health and Rehabilitation - Spring Hill, DAB CR553 at 35 (1998), aff'd, DAB No. 1696 (1999), cited in HCFA Br. at 5. HCFA also contended that this case established that it need not show that the harm which occurred was foreseeable in order to prove neglect. HCFA Br. at 9.

This case is inapposite. Spring Hill involved an allegation that the facility had not implemented a written policy prohibiting neglect of its residents under 42 C.F.R. § 483.13(c)(1)(i). See DAB CR553, at 34-35. The ALJ rejected HCFA's contentions that the absence of a policy could be inferred from the occurrence of certain incidents HCFA characterized as neglect. Id. at 35. The ALJ found no credible evidence that the incidents involved neglect.⁽¹⁰⁾ Id. at 34-38. The appellate decision found that the ALJ's factual findings on the absence of neglect were supported by substantial evidence. DAB No. 1696, at 45, 50. Nothing in the appellate or ALJ decisions supports HCFA's theory that mental anguish alone proves neglect and neglect alone proves abuse.

The only remaining question of whether Williamsburg acted negligently in some way that presented the potential for abuse was also resolved in the negative by the ALJ after careful consideration. ALJ Decision at 7-8. The ALJ found that only from the "vantage point of hindsight" could Williamsburg have known that placing R. 2 with R. 1 was a poor choice. He found nothing in the record to show that R. 2, despite her documented cognitive and behavioral impairments, had caused any prior distress to any other residents.⁽¹¹⁾ Despite HCFA's contrary contentions, we agree with the ALJ's conclusion that the bald fact that R. 2 did behave in a way that caused distress to R. 1 cannot suffice to show that the facility was neglectful in placing these individuals together because of a potential for abuse. Cf. HCFA Br. at 6-7.

Further, the ALJ found that the record showed no repetition of attempts by R. 2 to unplug the respirator or in any other way interact disruptively with R. 1 so as to pose a continuing threat to R. 1's well-being during the period after R. 1 requested a room change. ALJ Decision at 7. HCFA countered that R. 2 must have caused repeated episodes of mental anguish because R. 1 continued to voice fear and distress well after the incident occurred. We conclude that the reiteration by R. 1 of her undisputed unhappiness with and fear of her impaired roommate during the hours before the room transfer took place, however, cannot alone show that R. 2 took any further actions that threatened R. 1 or demonstrated a potential by R. 2 to abuse R. 1. Cf. HCFA Br. at 7. Similarly, the evidence that R. 1 said she stayed awake and kept the light on most of the night documents the seriousness of R. 1's fears but not any abusive (i.e., wilfully injurious) behavior by R. 2. Id.⁽¹²⁾ We therefore reject HCFA's contention that the ALJ disregarded material evidence in the record in reaching his conclusion that Williamsburg did not fail to protect R. 1's right to be free of abuse.

Finally, the ALJ considered whether the delay in moving R. 1 to another room sufficed to show that Williamsburg failed to address the possibility that R. 2 might abuse R. 1 during the interim. ALJ Decision at 7-8. The ALJ concluded that the 32 hours that elapsed between the first request and the execution of the room change did not constitute an unreasonable delay. Id. at 7. In addition, the ALJ concluded that the record contained "no allegation, much less . . . evidence that [Williamsburg] failed to monitor the situation" between the episode at issue and the relocation. Id. at 8. HCFA assumed that only immediate transfer could protect R. 1 from continued mental anguish and argued that the delay was unreasonable on its face based on the same evidence cited above to document that R. 1 in fact did suffer mental distress during the wait. HCFA Br. at 11. Finally, HCFA argued that no evidence was adduced by Williamsburg to prove that R. 1 could not have been moved sooner, other than Williamsburg's assertion that it moved R. 1 "when a room became available." Id. However, HCFA had the burden to present a prima facie case here, yet did not allege or document that Williamsburg had other options to relocate R. 1 sooner. Nor did HCFA offer any evidence that the facility failed to take appropriate steps to protect R. 1 during the interval. Having offered no foundation below, HCFA cannot merely assert now that alternate arrangements might have been made faster. We agree with the ALJ that the record contains no evidence that Williamsburg "was indifferent" to a continuing threat to R. 1's well-being. ALJ Decision at 7. We find no error in the ALJ's determination that the undisputed facts do not demonstrate that R. 1 was left in danger of potential abuse while waiting for the new room.

In sum, even if we agreed with HCFA that it made out a prima facie showing of neglect, which we do not, HCFA has not raised before us even a colorable claim that any such neglect was of the kind that led or would potentially lead to abuse, as defined in its own regulations. We conclude such a showing was a prerequisite to finding a deficiency under the cited regulation. Therefore, we do not find any failure to comply substantially with 42 C.F.R. § 483.12(b).

Marc R. Hillson

M. Terry Johnson

Judith A. Ballard
Presiding Board Member

1. CMPs may be imposed for those days in which past noncompliance, including immediate jeopardy, is found to have been present, even if the situation has been corrected by the time of the record review. 42 C.F.R. § 488.430(b). The amount of the CMP which may be imposed falls into one of two ranges, depending on whether the deficiencies were found to have constituted immediate jeopardy. Where substantial noncompliance is found but no immediate jeopardy is present, a CMP between $50 and $3,000 per day may be imposed. 42 C.F.R. § 488.438(a)(2). Where immediate jeopardy is present, a CMP between $3,050 and $10,000 per day may be imposed. 42 C.F.R. § 488.438(a)(1).

2. HCFA reiterated before us an objection it had raised below to a Statement of Undisputed Facts presented by Williamsburg in support of its Motion for Summary Judgment. HCFA Br. at 2, n.1. HCFA's objection was to three listed facts in the statement, numbered 10-12, each of which stated a fact derived from the surveyors' Statement of Deficiencies. HCFA did not object to the correctness of those facts that were presented, but complained that Williamsburg quoted the Form 2567 "out of context" or omitted additional facts such as the exact time on January 17, 1998 that the room change was first requested. Id. We find no merit to HCFA's argument about these statements of undisputed fact. The statements were admittedly accurate. To the extent they were incomplete, the Form 2567 itself was admitted into evidence and the ALJ was well able to consider the quotes in context. In fact, it is clear that the ALJ did so, and the ALJ Decision itself sets out expressly most of the additional facts from the Form 2567 about which HCFA expressed concern.

3. Williamsburg argued that, by not excepting to FFCL 2, HCFA had effectively conceded that the ALJ's interpretation of 42 C.F.R. § 483.13(b) "as prohibiting 'abuse' and not 'neglect' was correct." Williamsburg Br. at 7. We have nevertheless not foreclosed HCFA from presenting its arguments concerning the proper interpretation of that provision. It is possible to read HCFA's appeal as conceding that it had charged that Williamsburg permitted abuse to occur, and that it failed to make out a prima facie case that what occurred was abuse, but nevertheless asserting that it did make out a case that the regulation was violated by the facility's neglect which caused mental anguish.

4. HCFA did not suggest before the ALJ or before us that it had other evidence or exhibits on which it relied as a basis for its authority to impose the CMP here, beyond what was set out in the 2567. In fact, HCFA asked the ALJ to deem its opposition to Williamsburg's motion to the ALJ for summary disposition as its cross motion for summary disposition. Respondent's Opposition at 16, filed below Jan. 18, 1999.

5. Section 483.10 contains a list of a number of specific rights of residents in long-term care facilities. The duty to protect and promote resident rights expressly includes but is not limited to those rights listed in that section.

6. The term "abuse" is defined thus in Subpart E of Part 488 "as used in" that subpart. That subpart, however, governs survey and certification of long-term care facilities. HCFA did not cite any different meaning of "abuse" as used in section 483.13(b).

7. Other subsections of 42 C.F.R. § 483.13 do address the inappropriate use of physical or chemical restraints and require facilities to report and investigate allegations of mistreatment, injuries of unknown source, misappropriation, and neglect, but none were cited as a basis for HCFA's action. See 42 C.F.R. § 483.13(a), (c)(2) and (c)(3).

8. The parties raised a dispute on appeal about the degree of R. 1's reliance on the equipment and the emotional impact of "weaning" a patient from a breathing apparatus. See, e.g., HCFA Br. at 12; Williamsburg Br. at 4. We do not discuss this issue, because the question of how much harm or distress the episode and its aftermath caused R. 1 is not relevant to the dispute before us. Instead, the threshold question is whether the facility permitted R. 1 to experience abuse or potential abuse under the regulation for which it was cited, not whether R. 1 suffered as a result of R. 2's actions (which she undisputedly did).

9. HCFA wondered rhetorically, under the standard employed by the ALJ, "at what point does a resident's repeated sufferance of mental anguish qualify as neglect, or is physical harm the only legitimate form of neglect?" HCFA Br. at 10, n.2. HCFA misunderstands here both the ALJ Decision and the regulation. The ALJ imposed no requirement that mental anguish be repeated to qualify as an injury as legitimate as physical injury. Instead, the ALJ properly recognized that injury alone (physical or mental) does not establish neglect. Neglect is one possible cause of injury or harm. Abuse is another. Other causes exist. The cause must be shown through material evidence in the record or by reasonable inferences therefrom in order to determine if the facility has failed to comply with one or more participation requirements.

10. HCFA had charged neglect in that the nursing staff did not challenge a physician's order which HCFA considered patently wrong. Substantial evidence in the record established that the physician's orders were appropriate and consistent with the diagnosis, so that the facility staff did not have a basis to question them. DAB No. 1696, at 43.

11. HCFA suggested on appeal that the ALJ should have determined that R. 2 "had a history of unhappiness with her roommates." HCFA Br. at 6. We find no merit to this suggestion. HCFA did not except to the ALJ's finding that no material facts were in dispute and may not now be heard to assert the contrary. In any case, the reference cited by HCFA in the Statement of Deficiencies merely notes that facility records showed that R. 2 was "unhappy with her roommate" in November 1997. This observation clearly does not establish that R. 2 herself caused any harm or problem to the roommate with whom she was unhappy.

12. The Form 2567 quotes nurses' notes from 6 AM on January 17^th as indicating that, overnight, R. 2 had been up at intervals, and had been seen near R. 1's bed disconnecting equipment. The same entry describes R. 1 as "very paranoid" about her roommate. P. Ex. C at 3. The nurses' notes themselves were not submitted for the record, so the context and details about this statement are not available to clarify whether the reference to disconnecting equipment relates only to the 1:10 AM episode . In any case, R. 1 made her initial request for a room change only at 6 AM. Nothing in the Form 2567 records any further inappropriate behavior by R. 2 during the interval before the request was carried out, and nothing in the Form 2567 supports any finding of abuse by R. 2.