SUBJECT: Meadow Wood Nursing Home,

Petitioner,

Centers for Medicare & Medicaid Services

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

On April 13, 2002, Meadow Wood Nursing Home (Meadow Wood) appealed the January 28, 2002 decision of Administrative Law Judge (ALJ) Alfonso J. Montano sustaining a determination of the Centers for Medicare and Medicaid Services (CMS). ⁽¹⁾ Meadow Wood Nursing Home, DAB CR862 (2002) (ALJ Decision). CMS imposed a civil money penalty (CMP) of $3,050 per day for the period from July 23, 1998 through August 1, 1998 during which CMS found that immediate jeopardy existed at Meadow Wood. A reduced CMP of $50 per day went into effect after the immediate jeopardy was abated and continued through December 1, 1998 when the facility was found to have achieved substantial compliance.

On appeal, Meadow Wood disputed all of the Findings of Fact and Conclusions of Law (FFCLs) made by the ALJ. In particular, Meadow Wood challenged, as legally erroneous and not supported by substantial evidence, the conclusion that it was not substantially complying with the regulatory requirement at 42 C.F.R. § 483.25(h)(1), and that this failure created an immediate jeopardy. Meadow Wood also appealed the adverse findings of the ALJ concerning seven other deficiencies.

For the reasons explained below, we find that substantial evidence in the record as a whole supports the ALJ's findings as to the immediate jeopardy citation, and we conclude that Meadow Wood's legal arguments have no merit. We have also thoroughly reviewed the record and the arguments made by Meadow Wood related to the seven additional deficiencies, but discuss each in less detail than the immediate jeopardy finding. Even were we to agree with Meadow Wood as to one or more of these deficiency findings, we would be required nevertheless to uphold the $50 per day CMP for the period of August 2, 1998 through December 1, 1998. As the ALJ ruled before the hearing, other deficiencies not timely appealed were sufficient to require him to uphold the remedy selected by CMS (and the amount of that CMP could not be reduced because it was already at the minimum legal amount). ALJ Ruling dated June 18, 2000. Meadow Wood did not appeal this ruling.

Based on the reasoning explained below, we affirm the ALJ Decision and sustain the full amount of the remedy ⁽²⁾ imposed by CMS.

Background

This summary of the undisputed facts is intended to provide a general framework for understanding the decision and is not intended to be a substitute for the ALJ's findings. Meadow Wood is a long-term care facility that has a Medicare provider agreement. The Ohio Department of Health (ODH) conducted a survey at Meadow Wood concluding on August 11, 1998 which found 21 deficiencies, including a finding that Meadow Wood failed to maintain an environment as free of accident hazards as possible resulting in immediate jeopardy to residents in violation of 42 C.F.R. § 483.25(h)(1) (cited as Tag F323). On September 9, 1998, CMS imposed the following remedies:

(1) A CMP of $3,050 for each day there was immediate jeopardy: July 23, 1998 through August 1, 1998.
(2) A CMP of $50 per day from August 2, 1998 through December 1, 1998.
(3) Denial of payment for new Medicare and Medicaid admissions (DPNA) effective September 29, 1998.
(4) Termination of Petitioner's Medicare and Medicaid provider agreement effective February 11, 1999, unless the facility achieved and maintained substantial compliance.

Follow-up surveys on October 8, 1998 and November 10, 1998 found continuing noncompliance. A third follow-up survey conducted on December 11, 1998 determined that Meadow Wood achieved substantial compliance as of December 2, 1998. Consequently, termination was not implemented, and the other remedies ended on December 1, 1998.

The ALJ ruled, and Meadow Wood did not dispute before us, that Meadow Wood failed to preserve any challenge to the findings of the follow-up surveys and preserved challenges to only the following eight F-tag deficiency findings from the August 11, 1998 survey: F-323, F-312, F-314, F-316, F-324, F-498, F-371, and F-318. The ALJ therefore affirmed the DPNA and a $50 per day CMP for the entire period from July 23, 1998 through December 1, 1998. The ALJ proceeded to take evidence on the eight disputed deficiencies at a hearing held in June 2000.

Issues

In its appeal, ⁽³⁾ Meadow Wood raised a number of substantive legal and factual issues, excepting to all of the FFCLs ⁽⁴⁾ in the ALJ Decision. Meadow Wood asserted that it "was in substantial compliance with the participation requirements" for all the participation requirements at issue at the hearing. Meadow Wood Request for Review at 1.

Below, we first address Meadow Wood's overarching arguments that affect multiple findings. Then, we discuss in detail Meadow Wood's arguments specifically related to the most serious deficiency finding, which led to the immediate jeopardy citation. Next, we address the other challenged deficiency findings. Finally, we address a broad due process challenge raised for the first time in Meadow Wood's reply brief on appeal.

Standard of Review

Our standard of review on a disputed finding of fact is whether the ALJ decision is supported by substantial evidence on the record as a whole. See, e.g., Lake Cook Terrace Nursing Center, DAB No. 1745 (2000). The bases for modifying, reversing or remanding an ALJ decision include the following: a finding of material fact necessary to the outcome of the decision is not supported by substantial evidence; a legal conclusion necessary to the outcome of the decision is erroneous; the decision is contrary to law or applicable regulations; or a prejudicial error of procedure (including an abuse of discretion under the law or applicable regulations) was committed. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs, ¶4(b), http://www.hhs.gov/dab/guidelines/prov.html; see also Community Nursing Home, DAB No. 1807 (2002); Fairview Nursing Plaza, Inc., DAB No. 1715, at 2 (2000); South Valley Health Care Center, DAB No. 1691 (1999), aff'd South Valley Health Care Center v. HCFA, 223 F.3d 1221 (10th Cir. 2000); Hillman Rehabilitation Center, DAB No. 1611, at 6 (1997) (Hillman), aff'd Hillman Rehabilitation Center v. HHS, No. 98-3789(GEB), slip op. at 25 (D.N.J. May 13, 1999).

1. The ALJ applied the appropriate burden of proof and standards of proof in evaluating the evidence before him.

Meadow Wood gave conflicting descriptions of its understanding of the proper burden of proof to be employed by the ALJ in resolving this case, and at one point suggested that the evidence was in "equipoise" so that an error in the allocation of the burden of proof could have played a role in the outcome. Meadow Wood Br. at 5. For this reason, we first discuss the allocation of the burden of proof in nursing home survey appeals cases, as set out in many prior Board decisions, and review whether the ALJ in this case properly employed the appropriate burden of proof standard. We find that he did.

In Hillman, the Board rejected an argument that the ultimate burden of persuasion rested on CMS to establish that a provider that had previously entered into a Medicare provider agreement no longer met the conditions for participation, and therefore could be terminated from the program. Based on the relevant statutory and regulatory language, prior administrative and court decisions, and the underlying purpose of protecting Medicare beneficiaries, the Board held as follows:

FFCL 1A. [CMS] must set forth the basis for its determination terminating a provider with sufficient specificity for the provider to respond, including the basis for any finding that a condition-level deficiency exists. The provider must then identify which of the findings material to the determination the provider disputes, and must also identify any additional facts the provider is asserting.

FFCL 1B. At the hearing, [CMS] has the burden of coming forward with evidence related to disputed findings that is sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case that [CMS] had a legally sufficient basis for termination.

FFCL 1C. At the hearing, the provider has the burden of coming forward with evidence sufficient to establish the elements of any affirmative argument or defense which it offers.

FFCL 1D. The provider bears the ultimate burden of persuasion. To prevail, the provider must prove by a preponderance of the evidence on the record as a whole that it is in substantial compliance with the relevant statutory and regulatory provisions.

Hillman, DAB No. 1611, at 65; see also Cross Creek Health Care Center, DAB No. 1665 (1998)(same framework applies in long-term care facility cases involving CMPs).

Meadow Wood acknowledged in its appellate brief that the applicable burden of proof "ultimately requires the facility to show 'substantial compliance' by a preponderance of the evidence, effectively rebutting any prima facie case of noncompliance established" by CMS. Meadow Wood Br. at 5. Yet, Meadow Wood's reply brief stated that:

The party upon whom the burden of persuasion falls must prove the point at issue by the requisite standard of proof and that burden does not shift. Ward's Cove Packing Co. v. Atonio, 490 U.S. 642, 659-660, 109 S.Ct. 2115, 104 L.Ed.2d 733. If the party with the burden (here CMS) presents only a prima facie case, then the Petitioner need only introduce evidence equal to that prima facie case to prevail on the issue. See Mobile, Jackson & Kansas City R.R. Co. v. Turnipseed, 219 U.S. 35, 42, 44, 31 S.Ct. 136, 55 L.Ed. 78 (1910).

* * *

Here the evidence in the record at least came to an equipoise and as such Meadow Wood prevails as a matter of law.

Meadow Wood Reply Br. at 2, 4.

Meadow Wood's statement of the law is erroneous and its cited authorities are inapplicable. In particular, Ward's Cove involved a disparate impact employment discrimination claim adjudicated under a distinctive burden of proof scheme. The burden of persuasion throughout a provider enforcement case under Hillman and its progeny is on the provider to show substantial compliance by the preponderance of the evidence. The preponderance of the evidence standard means that, where the evidence on the record as a whole rests in equipoise on an issue, the provider's proof on that issue has failed and CMS would prevail as a matter of law. Thus, if Meadow Wood is correct that the evidence in the record came to equipoise in this case, then we must sustain the conclusion that Meadow Wood failed to prove substantial compliance.

It is true that, in order to put a provider to its proof, CMS must produce evidence sufficient to establish a prima facie case that, in the absence of any conflicting evidence, would constitute a legal basis for the proposed remedies. This requirement can be characterized as a production burden to establish that the factual allegations raised are legally sufficient and are not simply asserted without some evidentiary basis. This prima facie showing in no way represents a shifting of the ultimate burden of proof to CMS.

As fully discussed in Hillman, a provider participating in the federally-funded health care programs undertakes to maintain and demonstrate compliance, at all times, with all participation requirements. See Hillman at 12-17. This requirement carries particular force in light of the core purpose of the programs in serving populations that are often aged, vulnerable, poor, and medically dependent. Thus, the focus of the program's survey and enforcement efforts must be primarily to protect such persons rather than to benefit providers. Id.

Meadow Wood also asserted that a "provider must prove that CMS' determination of the level of non-compliance is clearly erroneous if the record of the case establishes that the facility is not complying substantially . . . ." Meadow Wood Reply Br. at 2. The regulation cited by Meadow Wood provides that "CMS's determination as to the level of noncompliance must be upheld unless it is clearly erroneous." 42 C.F.R. § 498.60(c)(2). Elsewhere, however, the regulations preclude any appeal of CMS's findings as to the level of noncompliance unless "a successful challenge on this issue would affect the range of civil money penalty amounts that CMS could collect." 42 C.F.R. § 498.3(b)(14); see also 42 C.F.R. § 483(d)(10)(ii). The Board has long held that the net effect of these regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination. See, e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000). In the situation of immediate jeopardy, the provider can prevail in overturning the scope and severity level only if it shows that the level assigned by CMS was clearly erroneous. Id.

2. We decline to disturb the credibility determinations made by the ALJ about witnesses who appeared before him.

Much of Meadow Wood's argumentation throughout its briefing rested on a broad attack on the credibility of the surveyors who testified. Meadow Wood contended that the surveyors simply fabricated their documented observations because the observations could not possibly have been made in the time frames reported or because the surveyors were in reality asleep or otherwise distracted from their duties when they claimed to have made the observations. See, e.g., Meadow Wood Reply Br. at 8.

In general, as an appellate body, we defer to an ALJ's assessment about the relative credibility of testimony by witnesses who appear in person at the hearing. Thus, the Board stated:

A reviewing panel does not have the opportunity to evaluate the credibility of a witness by listening in person to the witness's testimony or observing the witness's demeanor. The evaluation of the credibility of a witness is properly left to the hearing officer. . . .  Thus, we defer to the ALJ's evaluations of the credibility of the witnesses who appeared before him in this matter.

South Valley at 22 (1999); see also Woodstock Care Center, DAB No. 1726, at 8-9 (2000)("we must abide by that determination absent a compelling reason not to"); Oak Lawn Pavilion, Inc., DAB No. 1638 (1997); Bernard J. Burke, M.D., DAB No. 1576, at 14 (1996) (it "is within the ALJ's authority to weigh the evidence and judge the credibility of each witness").

We find that Meadow Wood failed to offer any compelling reasons why we should not rely on the ALJ's credibility determinations here. Contrary to Meadow Wood's claim that the ALJ did not even comment upon the credibility of the surveyor, Ms. Truett, the ALJ in fact made express findings that her testimony was "credible and compelling" and that Meadow Wood's allegations about her observations were "unsubstantiated and unconvincing." ALJ Decision at 12. These comments were made in relation to the findings about Meadow Wood's failure to provide proper incontinent care, but the ALJ made clear that he was rejecting a "recurring" theory of fraudulent or unreliable reports by Ms. Truett, and similar findings by the ALJ appear throughout the ALJ Decision. Id.; see also ALJ Decision at 14 (Petitioner failed to introduce evidence to "attack the reliability of Ms. Truett's personal observations"), 15 (Petitioner's cross-examination has not "diminished the credibility" of Ms. Truett's observations), 22 (ALJ found "no reasons to believe" Meadow Wood's claims that Ms. Truett "fabricated her observations").

Meadow Wood also implied that the ALJ's reliance on the information provided by the surveyors reflected a bias or hostility toward Meadow Wood. We find no basis for this in a careful reading of the ALJ Decision nor in a review of the record as a whole. Meadow Wood's allegations that pages 12 through 17 somehow demonstrate a "bias against a provider of incredible proportions" or show "[r]idiculing" of Meadow Wood's position have no foundation. Cf. Meadow Wood Reply Br. at 7. The core point made in that section of the decision to which Meadow Wood objected seems to be that the ALJ discounted oblique "insinuation" and conclusory assertions in Meadow Wood's briefs where they were unsupported by, and in fact contradicted by, record evidence. ALJ Decision at 13-14. We find no fault in that general approach.

In particular, the ALJ was indeed unpersuaded by Meadow Wood's attacks on Ms. Truett's integrity, which he described as based in part on a "recurring, but unsubstantiated and unconvincing theory" that the surveyor could not have made the reported observations because they would place her in too many locations at once. ALJ Decision at 12. Rather than merely choosing to believe that surveyor's reports because he found her "credible and compelling," the ALJ also carefully noted documentation, including evidence presented by Meadow Wood itself, as well as a number of uncontradicted facts, that provided independent corroboration for many of the findings which he made. For example, the ALJ noted that Meadow Wood had (1) charged that Ms. Truett could not have observed, as she claimed, that soiled briefs went unchanged for long periods because she did not observe continuously and (2) denied that her assertions that strong foul odors from the incontinence briefs constituted evidence that the briefs had not been changed in a long time. The ALJ found, however, that the more complete picture supporting the finding that a resident was left too long in a soiled condition also included the notation of the time the brief was last checked (written on the brief itself), about which Meadow Wood presented no contradictory evidence, in addition to the surveyor's report of her conversations with staff about the timing of the incontinence care. ALJ Decision at 22-23. Meadow Wood presented neither documentation nor testimony from the staff members caring for them that the residents were not actually in need of such care at the time reported or that pericare was provided sooner than appeared from that evidence. While the ALJ clearly accepted a different version of many events at issue than that proffered by Meadow Wood, we find that he articulated why he found Meadow Wood's version less believable based on all the evidence before him. This weighing of testimony and evidence in the record is the essential task of an ALJ and can hardly be viewed as a demonstration of bias toward the party that does not prevail on the merits, however disappointed.

3. Substantial evidence in the record supports the ALJ's conclusion that the facility was not in substantial compliance with 42 C.F.R. § 483.25(h)(1).

A. Basis for deficiency finding

The regulation under which immediate jeopardy was cited requires that a facility "must ensure that . . . [t]he resident environment remains as free of accident hazards as is possible," as part of its obligation to provide each resident with "the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well-being . . . ." 42 C.F.R. § 483.25 (quoting from introductory paragraph and subsection (h)(1)). The ALJ found that Meadow Wood instead "allowed accident hazards which could have been easily remedied to persist at great risk to the residents," with the result that one resident suffered actual harm by falling from a bed with an unsafe bed rail. ALJ Decision at 6. In addition, the beds of a dozen other resident were found to be in unsafe condition.

The two most serious cases involved Residents 2 and 3. Meadow Wood did not dispute the sequence of events. Resident 2 was injured in a fall when he was placed back in the same bed after the side rail had been noted by the nurses to fall easily, and was still in that bed almost a week later when the side rail was observed to again fall without warning in the presence of the surveyors. Resident 3 was placed back in a bed from which he fell twice sustaining injuries both times, first when the side rail collapsed and then when the bracket connecting it to the bed snapped altogether. He was then moved to a different bed which was observed to have a 3-4 inch gap between the side rail and the mattress. In addition to these situations, the survey found widespread problems with poorly maintained beds throughout the facility.

B. The ALJ evaluation of surveyor and staff opinions

Meadow Wood asserted in its reply brief that the issues in this case centered on "a determination that the opinions of the surveyors are entitled to more credence and deference than the educated professionals employed by Meadow Wood," and cited two Supreme Court cases to the effect that expert testimony must be reliable and not merely conclusory. Meadow Wood Reply Br. at 3-4. The ALJ made no such general determination about surveyors' opinions nor can such a principle be implied from his findings in regard to this deficiency. A careful review of the ALJ Decision, and of the record cited therein, makes evident, in fact, that the ALJ relied to a large extent on factual evidence, much of it unrebutted, rather than on any expert opinion in concluding that Meadow Wood left unaddressed known accident hazards to its residents that presented immediate jeopardy. Neither party sought to have any of their witnesses formally accepted as experts.

Meadow Wood suggested that the skills, education, training and experience of the surveyors did not exceed "that possessed by, say, Meadow Wood's nursing staff" and that the surveyors did not demonstrate training in "industrial engineering." Id. at 4. Meadow Wood had, however, not offered any witness purporting to be trained in industrial engineering or "accident safety" to show that the condition of the beds at issue was within normal limits or was safe for the residents placed in them, and the report of its own maintenance man (CMS Ex. 19) tends to contradict any such suggestion. The surveyors did testify to considerable education and experience as nurses and their specific training in evaluating nursing facility compliance with participation requirements. Tr. at 34-37, 348-51; see also CMS Exs. 36-38.

Further, Meadow Wood did not articulate what opinions of the nurse-surveyors exceeded their demonstrated expertise (beyond Meadow Wood's general attack on their honesty, which, as noted, the ALJ expressly found unsupported). Meadow Wood did make a general claim that the "surveyors' testimony regarding the probability of harm is solely and simply an ipse dixit statement . . [and] not tied to the facts." Meadow Wood Reply Br. at 4. We do not see the basis for this broad claim. Certainly, as to Resident 2, the actual harm from his fall when the side rail failed for a second time was evident rather than a matter of expert opinion. Since the seriousness of a deficiency is assessed based on the most serious finding under that tag, we need not engage in a prolonged exploration of the testimony on the other events. See, e.g., Tr. at 133-34 (Surveyor Truett on how the level is assessed for a deficiency with multiple examples). Briefly, the ALJ had evidence in the record, in addition to testimony, sufficient to support a finding that the potential for entrapment of mentally impaired residents where large gaps are permitted to exist between the mattress and a side rail should have been well-known to the facility. See, e.g., CMS Exs. 31 and 32. A warning label to that effect was present on the very bed provided to Resident 3. CMS Ex. 19, at 6.

Finally, to the extent that the ALJ was more convinced by the testimony of a surveyor about questions of actual or potential harm arising from observed conditions, the Board has held that "the ALJ's authority to weigh the evidence and judge the credibility of each witness" includes the evaluation of conflicting witnesses with expertise. Bernard J. Burke, M.D., DAB No. 1576, at 14 (1996). The ALJ could reasonably have given more weight to the opinions of the surveyors based on his assessment of their relative training and experience.

C. Resident 2

The sequence of the events relating to Resident 2 discredits Meadow Wood's claims that only a strict liability standard could lead to holding it responsible for the failures of the bed rails because the events were unpredictable. Meadow Wood did not dispute the ALJ's finding that Resident 2 was partially paralyzed and relied on the side rails to reposition himself and to access a urinal placed on the side rail for his use. ALJ Decision at 7. The facility's nursing notes record that at 7 PM on July 22, 1998 his side rail had fallen and a nurse aide reported that it "falls down easily." CMS Ex. 21, at 13. The notes states that "they put a chair under it for safety at this time." Id. Yet, it is not contested that, at 1:30 AM the following morning, the side rail collapsed when the resident leaned against it causing him to fall and suffer skin tears, scrapes, and bruises. ALJ Decision at 7. After putting the resident back in the same bed, a nurse aide apparently tried tying the unstable rail to the one on the other side. CMS Ex. 21, at 15. Then, on July 29, 1998, during the survey, the same rail fell again. Id. The surveyors observed that the nuts and bolts were loose and the rails both "rocked back and forth." Id.

Meadow Wood offered responses to these findings that appear inconsistent with each other. First, it contended that the sequence of events showed nothing about the facility's compliance. Meadow Wood Reply Br. at 5-6. Meadow Wood pointed out that the injuries occurred less than seven hours after the malfunction was "temporarily fixed and maintenance notified," while the incident observed by the surveyors merely indicated that six days later "the rail was noted to need further repair as the bolts securing the rail to the bed frame had come loose." Id. at 6. Meadow Wood apparently found it significant that the July 29^th event did not result in additional injuries and that nothing untoward was recorded about this side rail in the interim period even though there was "no evidence that this resident . . . became more compliant and more 'angelic' in his behavior" during that time. Id.

We see no support for Meadow Wood's position in either the brevity of the period before which the inadequacy of the supposed temporary fix of putting a chair under the rail was demonstrated to be useless nor the length of time that elapsed before the unstable rail was seen to collapse in front of the surveyors. What is significant is that Meadow Wood offered no evidence that the temporary fix of propping up the rail remained in place even on the next shift after it was undertaken, although Meadow Wood recognized that such a measure could only be effective, if at all, "as long as the chair remained under the guard rail." Meadow Wood Br. at 9. Further, when the rail collapsed in front of the surveyors neither the chair prop nor the cross-rail tie were in place. ALJ Decision at 7. What is even more significant is that no evidence at all appears in the record that maintenance, after reportedly being notified of the problem with Resident 2's bed, took any steps to assess or repair it over the course of the following week, even while a survey was underway.

Unlike the situation with Resident 3, who had a history of violently shaking his bed, Meadow Wood offered no evidence that non-compliant or difficult behavior by Resident 2 was implicated in his fall or the proclivity to collapse of the side rails on his bed. Meadow Wood further commented that the facility lacked sufficient information to take other steps after the rail fell because the staff did not have the "pure fortune" to witness the spontaneous collapse and could only speculate, since they could not "reasonably" be expected to ask the resident, "an unreliable century-old gentleman," what had happened and how. Meadow Wood Br. at 9. This comment seems less than respectful and inconsistent with Mr. Crout's testimony that the resident "was probably one of the more mentally astute people that I have met even up to when he was 100." Tr. at 794. The resident told the surveyors that "the side rails were broken and that they would just fall down sometimes." CMS Ex. 1, at 34. While it is certainly possible that the resident would have been unable to shed light on the cause of the side rail's collapse, it would hardly have been unreasonable to have asked him about it or to have taken other steps to discover the source of the problem, even if the staff did not see the collapse themselves.

Meadow Wood's second defense to the citation relating to Resident 2, however, would seem to make all of its contentions discussed above quite irrelevant. Mr. Crout testified that he eventually completed an investigation of his own into the cause of the repeated collapses. He concluded that nothing was wrong mechanically. He found, instead, that several facility employees were not pulling the rail into its locking position, because they were "being inattentive." Tr. at 836. Thus, he reported that the reason that the rail was subject to spontaneous collapses such as that witnessed by the surveyors was that "it was observed that employees were in speeding up their delivery of service, they would just pull it up and were not paying enough attention to make sure that it actually locked in place." Id. This argument is more indictment than defense, as the ALJ concluded. ALJ Decision at 8.

We conclude that the evidence of record relating to Resident 2's side rails in itself amply supports the ALJ's finding that the facility failed to maintain an environment as free of accident hazards as possible.

D. Resident 3

It is undisputed that Resident 3 suffered from multiple mental impairments and was physically strong and violent at times. ALJ Decision at 7. He experienced two falls from his bed in which he sustained various bruises and abrasions. The first occurred when a side rail fell down when he shook it. He was again shaking the rails some six hours later, when the metal holding one rail to the bed broke. The surveyors found the next day that the new bed in which he had been placed had a large gap (three to four inches in width) between the mattress and the rail. ALJ Decision at 8, citing CMS Ex. 22, at 5 and Tr. at 59-62.

Far from imposing a strict liability standard, the ALJ's treatment of the allegations relating to Resident 3 illustrates that he considered carefully whether each accident or hazard presented foreseeable risks that Meadow Wood could practicably have prevented. Specifically, he rejected CMS's allegation that Meadow Wood was responsible for exposing this resident to an accident hazard when it put him back in the same bed after the side rail fell, because the evidence did not establish that the loose side rail condition caused the shearing of the metal bracket. ALJ Decision at 8-9. He did find that the gap between the side rail and the mattress in the second bed created a risk of entrapment (when coupled with the documented mental condition of the resident) which sufficed to show that Meadow Wood did not safeguard the resident "from accident hazards to the extent possible," as he summarized the regulatory requirements. Id. at 9.

On appeal, Meadow Wood's arguments regarding this resident seemed to ignore the actual findings made by the ALJ, continuing to assert that the facility "had no reason to foresee that . . . [this resident's] bed would break where it did." Meadow Wood Br. at 7. Meadow Wood's answer to the entrapment risk findings was to assert that "this long-term care facility had no issue even raised with respect to the issue of 'gaps' for 19 years," citing the testimony of Mr. Crout. Meadow Wood Br. at 8, n.8, citing Tr. at 769.

The cited testimony directly contradicts this assertion. Mr. Crout acknowledged that the risk of entrapment from unsafe gaps was in fact an issue in the prior year's survey, and claimed only that his facility had never experienced an injury caused by such a gap. Tr. at 728-29, 769. The record also included evidence that Mr. Crout knew that side rails and gaps presented safety problems, although he discounted their seriousness (Tr. at 827), that the bed into which Resident 3 was placed had a visible warning label to the effect that patients at risk of entrapment included those with the mental conditions with which Resident 3 had been diagnosed (CMS Ex. 19, at 6), and that the Food and Drug Administration issued a safety alert to nursing homes about the risks of entrapment including a call for a regular maintenance program (CMS Ex. 31, at 1-2). We find no support for Meadow Wood's claims that it was either "powerless to do anything to fix" the problem or that a "reasonable inspection would not have revealed [the gap] as problematic." Meadow Wood Br. at 8. On the contrary, we find that substantial evidence in the record supports the ALJ's findings that Meadow Wood permitted Resident 3 to face a well-known and avoidable accident hazard.

Finally, Meadow Wood argued, rather cryptically, that the "error" in the ALJ's "concern" about the gap left between the mattress and the side rail on Resident 3's bed is the ALJ Decision's "notable . . . lack of reference as to how Meadow Wood came out of immediate jeopardy . . . under tag F-323 other than the reference that the beds were 'checked and . . . fixed.'" Meadow Wood Br. at 8 (emphasis in original). Meadow Wood goes on to acknowledge that the ALJ found that "the facility's maintenance man provided the surveyors with a list of bedrails that had been checked and . . . whether any maintenance was performed" and that the "surveyors determined that immediate jeopardy was abated after reviewing the list. Tr. at 94-95, 108." Meadow Wood Br. at 8, n.7, quoting ALJ Decision at 8. Nevertheless, Meadow Wood insisted that the maintenance involved related only "to the 'wobble' problem so prevalent in the surveyors' minds during the survey, not the gap problem." Meadow Wood Br. at 8. The implicit relevance of this argument appears to be a suggestion that the surveyors were not really citing Meadow Wood for the gap that concerned the ALJ.

We find no merit to this argument. First, the statement of deficiencies plainly cited the unpadded side rails on Resident 3's new bed as having a 3-4 inch gap that "constituted a risk of entrapment." CMS Ex. 1, at 36. Second, Meadow Wood gave no basis for its assumption that the surveyors considered the reported repairs made to beds and rails throughout the facility to be relevant only to one aspect of the problem. The looseness and back-and-forth rocking of the rails appears at least potentially related to the size of the spaces in which residents may become entrapped. The list itself reports such maintenance actions as tightening and replacing bolts, adjusting springs and brackets, switching to full length side rails, and putting new side rails on beds. CMS Ex. 19, at 3-4. The ALJ could reasonably infer from this list that a wide range of problems was addressed. Furthermore, the list itself and the record testimony show that the surveyors did not accept the list as originally presented to them on July 29, 1998 and annotated it with notes to the effect that more maintenance was still needed, including specific reference to a need for padding to address a gap in one bed and the existence of side rail gaps in another. Id.; see also Tr. at 75-81.

Thus, we conclude that substantial evidence in the record supports the ALJ's finding that the placement of Resident 3 in a bed with a 3-4 inch opening presented an avoidable risk of entrapment.

E. Widespread problems with beds and side rails

The surveyors found that 12 beds (in a facility with 53 beds) had improperly loose side rails, and some had gaps of more than three inches between the mattresses and the rails. CMS Ex. 19. Notably, Meadow Wood did not present any testimony from the maintenance man (or any other staff who actually checked the condition of the beds involved), nor any records of a regular, ongoing maintenance program for the beds and side rails, to undercut the testimony of the surveyors about the widespread problems they observed. The written report referenced above, which the facility maintenance man provided to the surveyors after they pointed out the problems, confirmed that many rails did need to be replaced or repaired. Id. Meadow Wood argued in its briefs that bed rails require some "play" for their operation, but the record evidence supports the ALJ's findings that rails "fell easily," had "loose screws and brackets," and were wobbly and in need of repairs. ALJ Decision at 7, 9.

Meadow Wood complained that the surveyors left it in the dark about which beds it would have to fix and exactly what repair measures for each bed would be sufficient to satisfy the requirements of the regulations. Tr. at 760-62. This complaint echoes Meadow Wood's general position that somehow it was being held to an unachievable standard in the absence of specific guidance as to what steps it had to take to avoid a citation.

Completely missing from CMS' evidence and the analysis in the Decision is a, respectively, introduction of proof and recognition of a requirement that a facility deliver what is "practicable" in care to residents.

Meadow Wood Reply Br. at 1.

This approach turns on its head the basic scheme of the statute and regulations to focus on actual facility performance and not merely capacity to perform. Actual performance requirements place responsibility on the facility to achieve the best practicable results as defined in the participation requirements while leaving to the facility the flexibility to select means and methods of achieving those results in accordance with such factors as that facility's program, resident mix, and professional judgment. See, e.g., Woodstock at 25, n.11., 28-29 (and statutory and regulatory citations therein). Under this scheme, the surveyors and the agency generally refrain from imposing a specific set of actions that must be taken by all facilities. A corollary is that no checklist of minimal measures will entitle the facility to be found in compliance regardless of the actual results for residents.

In any event, nothing in the record in this case suggests that the surveyors were keeping secret from the facility some checklist of minimum acceptable repair measures, as Meadow Wood implied. Rather, they notified staff members when the surveyors began observing multiple instances of beds with unstable side rails and other problems, and asked that the facility determine how best to identify and address the cause of the problem. Tr. at 80-82, 86, 88, 93-95; CMS Ex. 22, at 8. Nor does the ALJ Decision hold the facility out of compliance merely because at any given time some equipment was not in perfect condition or routine maintenance was underway.

Meadow Wood also suggested that the fact that bolts needed tightening and rails needed to be repaired or replaced was "nothing more than a fact of life in a nursing facility" and that the ALJ could not impose any affirmative duty on the facility to act without first defining precisely the "degree of wobble" that constitutes a hazard. Meadow Wood Br. at 10. In fact, poorly maintained equipment is precisely the sort of preventable accident hazard that a facility can practicably be expected to address. It should also be a fact of life in a nursing facility that loose bolts get tightened regularly and that malfunctioning side rails get repaired or replaced. The problems which triggered this citation were neither isolated nor without consequence. The ALJ specifically rejected Meadow Wood's assertions, repeated before us, that the looseness, untightened bolts, and instability observed in the side rails on many of the beds merely constituted normal "play." ALJ Decision at 9.

F. The ALJ did not err in concluding that CMS's determination that this deficiency presented immediate jeopardy was not clearly erroneous.

"Immediate jeopardy" is defined as "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. As the ALJ noted, Resident 2 suffered actual harm in the form of physical injuries from his fall, and multiple residents were exposed to risks of injury or death from poorly-maintained, loose, or collapsing side rails or from entrapment in side rail gaps. ALJ Decision at 33-34.

A determination that these conditions presented immediate jeopardy may not reasonably be characterized as clear error. Given the record discussed above, we must sustain this conclusion by the ALJ.

4. Substantial evidence in the record supports the ALJ's conclusion that Meadow Wood was not in substantial compliance with the seven other challenged deficiency findings.

A. Arguments on scope and severity of the deficiencies

We turn now to those seven deficiencies with a scope and severity lower than immediate jeopardy as to which Meadow Wood preserved its right to a hearing. Much of Meadow Wood's discussion of these findings appeared directed at the claim that CMS had overstated the probability or severity of harm arising from the events or conditions reported. As we mentioned earlier, however, CMS's findings as to scope and severity are outside the scope of our review where the applicable range of CMPs would remain the same, which is the case with these deficiencies. 42 C.F.R. § 498.3(b)(13). Furthermore, since the CMP was set at the lowest possible amount, the ALJ could not consider evidence relating to the seriousness of the deficiencies in order to review whether the CMP amount imposed was reasonable. 42 C.F.R. §§ 488.404 and 488.438. It is not necessary that CMS have proven, for example, actual harm or a deficient pattern or practice. The regulations provide that CMS has a basis for imposing a CMP for any days in which a facility is not in substantial compliance. 42 C.F.R. § 488.430(a). Substantial compliance is defined as "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. § 488.301.

We thus consider below whether Meadow Wood disproved the allegations that formed the factual basis for finding substantial noncompliance with the cited provisions. We do not address further arguments about whether the harm presented was less severe or widespread than CMS alleged, so long as the factual predicate for the finding established at least a potential for causing more than minimal harm.

B. Pressure sore finding

The regulations require a facility to ensure that a resident who enters without pressure sores does not develop any "unless the individual's clinical condition demonstrates that they were unavoidable" and that a resident who has pressure sores "receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing." 42 C.F.R. § 483.25(c). It was not disputed that Resident 15 entered the facility with many pressure sores and underlying conditions, including diabetes, which put her at an undisputed high risk of developing new sores. ALJ Decision at 17. It was also not disputed that Meadow Wood effectively treated the sores present at the time she was admitted. Id. However, she developed a pressure sore in July 1998 while in Meadow Wood. The ALJ concluded that Meadow Wood failed to show that the new sore was unavoidable or that it was properly treated.

The ALJ described the history of the pressure sore on the resident's foot which was first observed at a stage 1 level in April 1998, as follows:

By June 23, 1998, R15's physician had noted that the sore on her right foot was almost healed. However, on June 27, 1998, R15's urine tested positive for the bacteria provedentia stuarti. Then, on June 30, 1998, the same bacteria was found in R15's sore. Tr. at 147, 328; HCFA Ex. 27 at 7. R15 was prescribed Cipro twice a day, the wound was to be cleaned with soap and water, and Gentamicin with a Tefla BID was to be applied. Tr. at 270. The Cipro was prescribed for 21 days and discontinued on July 27, 1998. A new prescription for Cipro was written on July 27 and discontinued on August 17, 1998. Tr. at 269-70; HCFA Ex. 4E at 44-45.

Despite the treatment, by July 21, 1998 the sore had worsened. The sore was identified as a stage IV pressure sore through the July 1998 survey. HCFA Ex. 27 at 7. During the survey, R15 was observed in bed linen that was wet with urine. Tr. at 141-42; HCFA Ex. 18 at 10; HCFA Ex. 27 at 6. On July 29, 1998, R15 was observed during incontinence care. Urine and feces were on her person, including her right foot which had the sore. Tr. at 141-42; HCFA Ex. 18 at 10; HCFA Ex. 27 at 6. The dressing on the sore was observed to be loose, and contaminated with urine and feces. Tr. at 142; HCFA Ex. 27 at 6. On July 23, 1998, a nurse was observed providing treatment to R15's sore. After removing the bandage, the nurse laid R15's foot with the sore on the dirty bed linens. Tr. at 142; HCFA Ex. 27 at 4. On July 30, 1998, R15 was observed seated in a chair in her room in accordance with her care plan; however, the foot with the sore was resting sore-side down on a foot rest with no pressure relief device. HCFA Ex. 27 at 8.

ALJ Decision at 18-19.

Meadow Wood relied on another ALJ decision for the proposition that acts or omissions that "do not lead to an aggravation of the pressure sore, to the development of other sores, and which are not a regular practice" do not constitute deficiencies. Meadow Wood Br. at 16-17, citing Koester Pavilion, DAB CR650 (2000). Applying that standard, Meadow Wood argued that the facts regarding Resident 15's sore at most reflected an "isolated omission" which did not "harm, aggravate or exacerbate the resident's condition," and hence should not have led to a citation. In support of this claim, Meadow Wood noted that the stage 2 pressure sore that developed on the resident's foot, as documented by the nurses on July 24 and 31, 1998, was being treated and the care itself was not unprofessional or improper. Meadow Wood Br. at 17; Meadow Wood Ex. 2, at 4-5.

Meadow Wood ignored the fact that the relevant portions of the ALJ decision on which it relied were reversed on appeal. Koester Pavilion, DAB No. 1750 (2000). The ALJ here applied the standard set out by the Board on appeal, which he described as a "stringent" requirement for the facility to show that the pressure sore was clinically unavoidable despite proper care and treatment. ALJ Decision at 17. Thus, in the area of pressure sores, the facility bears a duty to "go beyond merely what seems reasonable to, instead, always furnish what is necessary to prevent new sores unless clinically unavoidable, and to treat existing ones as needed." Koester Pavilion, DAB No. 1750, at 32. The pericare that the surveyors reported cannot be characterized as furnishing what is needed to treat the sore and, in fact, directly violated the care plan which Meadow Wood touted as proper and professional.

In a prior decision, the Board has found that a single observation by a surveyor of a nurse aide cleaning an open sore area with a stool-stained washcloth was sufficient to sustain a deficiency finding under this tag. Ridge Terrace, DAB No. 1834, at 15-16 (2002). In this case, as related above, the observations went much further than this. See ALJ Decision at 18, and record citations therein, in particular Tr. at 141-151.

Meadow Wood contended that CMS's position was unreasonable because the nurse aide who allegedly left the resident with a loose dressing soiled with fecal matter could not properly have changed the contaminated dressing. Meadow Wood Br. at 16. The surveyor agreed that a licensed practical nurse would be required to perform the dressing change. Tr. at 271. It does not follow, however, that the nurse aide provided proper care when she allowed the dressing, loose enough that the sore was visible, to become contaminated and then failed to seek assistance from a nurse in remedying the problem.

Meadow Wood also argued that it was unable to defend against the surveyor's testimony about the improper conduct of the nurse aide because neither the aide's name nor the precise time were provided by the surveyor's testimony. For that reason, Meadow Wood argued its witnesses could only testify about general practices. We discuss this general complaint further below, but specifically in regard to this deficiency, we find it wholly unpersuasive. The dates and times of the surveyor's observations of the treatment of Resident 15 were included in the Statement of Deficiencies which was provided to the facility with the notice of remedies. CMS Ex. 1, at 18-21. Meadow Wood should have had available documentation identifying what services were provided by which staff members during those dates and times.

C. Quality of care findings

Facilities are required to provide "necessary care and services" for residents to "attain or maintain the highest practicable physical, mental, and psychosocial well-being." 42 C.F.R. § 483.25. Several of the deficiencies at issue alleged failures by Meadow Wood to reach that level in its care of residents in violation of various subsections of this fundamental requirement.

i. Hygiene

Facilities are specifically required to ensure that any "resident who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene." 42 C.F.R. § 483.25(a)(3). The surveyors reported observations about three residents allegedly not adequately provided with these services. The allegations included leaving a resident in soiled diapers for long periods, using improper and unsanitary techniques to clean residents, failing to give timely showers, and allowing crust to build up around a resident's mouth.

Meadow Wood continued to assert on appeal that the surveyors simply lied about events that never occurred. The ALJ analyzed these claims and wholly rejected them, finding that Meadow Wood failed to establish any basis to even suspect fraud or unreliability. ALJ Decision at 12. As discussed above, we defer to the ALJ's credibility determinations.

Apart from attacking the integrity of the surveyors, Meadow Wood trivialized the basis for this deficiency by referencing only selective portions of the factual allegations. As an example, Meadow Wood characterized CMS's contentions in regard to Resident 3 as amounting to finding that he "smelled, was unshaven, and unbathed." Meadow Wood Br. at 11. The ALJ found that the resident was observed in a chair dressed only in a hospital gown and stinking of urine for almost four hours during which he received no incontinence care, even though the facility's own plan for his skin integrity called for prompt pericare after incontinence. ALJ Decision at 10-11. When the resident was finally provided pericare, his skin was "red and 'excoriated.'" Id. at 11. The ALJ found that he still was not bathed until two days later, despite the staff having told the surveyor that he was in his hospital gown because he was scheduled for a shower that day. Id. These facts present a much more disturbing scenario than that painted by Meadow Wood's selective account.

Meadow Wood continued to flatly assert that Resident 3 was bathed as scheduled, but the record evidence does not support such a conclusion and the ALJ expressly rejected that claim. Compare Meadow Wood Br. at 13-14 with ALJ Decision at 12. In fact, the testimony to which Meadow Wood cited, by Ms. Ninichuck who then supervised the rehabilitation department, merely stated that Resident 3 was getting range of motion services daily with his bath, despite the absence of any formal plan to provide him with needed range of motion services. Tr. at 561. The basis for this assertion in turn was the general claim that nurse aides were trained to give residents with limited mobility a series of range of motion exercises each day while bathing them. Tr. at 560. This certainly does not establish that Resident 3 was in fact bathed on these particular days. ⁽⁵⁾

In regard to Residents 9 and 15, Meadow Wood's response to allegations that surveyors observed nurse aides continue to use washcloths that had lain on a nightstand or fallen to the floor without washing them out was to express disbelief that its "seasoned" staff would do so in the presence of a surveyor. Meadow Wood Br. at 11-12. Meadow Wood provided no support on the record for its position that the events reported by the surveyors defy rational belief.

Meadow Wood also reiterated its insistence that it could not fairly address allegations about staff behavior because the surveyors did not always record the name of the staff person, or in some instances the exact time of the observation. The ALJ Decision addressed this issue specifically with respect to the "dropped washcloth" incident, as well as more generally, as follows:

[I]t does not seem insurmountable for Petitioner, which had advance notice of what the allegations in this case are, to have found out which employees were responsible for providing care to the residents at the dates and times in question, and to have interviewed them to discover whether there was evidence useful to Petitioner's case. Petitioner has not indicated in its comments why it was unable to do that.

ALJ Decision at 15. Even in those instances where the exact time or date was not in the statement of deficiencies or the documentation later provided to Meadow Wood, the surveyors' observations took place over a matter of a limited number of days ⁽⁶⁾ during a limited number of hours on those days. At that period, Meadow Wood employed 35 nurse aides working three shifts. Tr. at 755-56. At any given shift, at most four nurse aides were assigned to each of the two wings of the building. Id. Numerically speaking, it is hence not obvious that Meadow Wood could not have interviewed the limited number of staff potentially involved. Even were that not so, the facility was responsible to document the care provided and therefore should have been able to identify from its own records the aides who treated the particular residents during the shifts when the surveyors made their observations.

In regard to Resident 9, his care plan required oral treatment every two hours and when needed. CMS Ex. 23, at 9. The surveyor reported watching him for three and a half hours during which he received no oral care and had a "heavy accumulation of white, thick secretions, and mucus and crusty stuff in and on his mouth." Tr. at 158; CMS Ex. 1, at 24. As the ALJ noted, Meadow Wood offered no records or other affirmative evidence to show that it did provide oral care to the resident according to the care plan during this period. ALJ Decision at 16-17. Rather, Meadow Wood asserted it was "dubious" that anyone who drooled constantly could have accumulated any debris at all around the mouth. Meadow Wood Br. at 11. The inclusion of oral care at least every two hours in his care plan in itself suggests that the facility identified this resident as tending to need frequent oral hygiene. We therefore find that substantial evidence in the record supports the ALJ's finding that oral care was not provided to the resident as required. ALJ Decision at 14-16.

ii. Bladder treatment and services

The regulations require that any "resident who is incontinent of bladder receives appropriate treatment and services to prevent urinary tract infections and to restore as much normal bladder function as possible." 42 C.F.R. § 483.25(d)(5). The allegations under this heading involved Residents 3, 13, and 15.

Here again, Meadow Wood's fundamental defense was that "the omnipresent Ms. Truett . . . fabricated her pericare observations" because the residents vehemently protested her presence to observe their treatment. Meadow Wood Br. at 18. We have already upheld the ALJ's rejection of the general attack on the credibility of the surveyor. The testimony of Ms. Jefferson, cited by Meadow Wood for the claim that the observations were fabricated because the residents did not want the surveyor to watch pericare, recites that two unidentified nurse aides told her (Ms. Jefferson, the administrative assistant) that one resident shook her head and yelled when asked permission for the observation but the surveyor observed anyway. Tr. at 690-91. Even crediting this and assuming that the surveyor should not have made that observation, the testimony confirms that the surveyor "watched anyway," so that observation clearly was not fabricated. Tr. at 691. Moreover, no such claim was made about observations of the other two residents whose incontinence care the surveyor faulted.

Resident 3 was able to be continent if regularly toileted, but was twice observed left for periods of several hours without being offered toileting. When care was ultimately provided to several residents to change their incontinent products (which were plainly wet and, in one case, had a strong foul odor), the surveyors checked the times written on them and found that staff had last checked and found them dry between 5 and 10 hours earlier. ALJ Decision at 21; CMS Ex. 1, at 27. Resident 13 was prone to urinary tract infections and yet was repeatedly observed being wiped from back to front in a technique that improperly increased the risk of such infections. ALJ Decision at 21-22; CMS Ex. 1, at 29-30.

Meadow Wood raised again on appeal its argument to the ALJ that the strength of the odor may depend on factors other than how long the urine has been present. We agree with the ALJ that the inclusion of the odor in the surveyor's observations does not stand alone and greater certainty arises from the full range of facts surrounding the episodes, including the times written on the incontinence briefs by staff. ALJ Decision at 22-23. Meadow Wood also argued that the "strongest argument against the [surveyors'] observations . . . . is the lack of frequency of urinary tract infections." Meadow Wood Br. at 18. Yet, Meadow Wood did not point to any record evidence establishing a low rate of frequency of such infections at the facility; nor did Meadow Wood point to any records establishing its narrower claim that no infections "were present in or develop with these residents during the survey." Meadow Wood Br. at 19. Even had Meadow Wood presented some evidence about urinary tract infections generally, it could not outweigh direct evidence that, for example, specific residents' incontinent briefs were left unchecked for five and more hours.

iii. Assistive devices

Facilities are required to ensure that "[e]ach resident receives adequate supervision and assistive devices to prevent accidents." 42 C.F.R. § 483.25(h)(2). CMS alleged that Meadow Wood failed to provide needed padding to Resident 9's bed rails and misused two restraint devices it placed on Resident 14. CMS Ex. 1, at 38-40.

It was undisputed that a physician ordered the use of padding on the side rails of Resident 9's bed because he was on medication that thinned his blood and increased the risk of excess bleeding. ALJ Decision at 23-24; CMS Ex. 23, at 2 (showing Coumadin dose and padded rail order); Tr. at 126-27. The surveyor observed the resident in bed banging and resting his leg against an unpadded side rail resulting in bruising. ALJ Decision at 24; Tr. at 126. The ALJ found unpersuasive Meadow Wood's response that Resident 9 was responsible for the problem because he chose to have the padding removed so he could look through the rails. ALJ Decision at 24-25. The ALJ acknowledged the resident's right to refuse care but did not credit the claim that the physician was notified, since there was no record of such notification. Id. Meadow Wood argued on appeal that such notification should be presumed from the absence of a citation for a failure by the physician to visit the resident as required by 42 C.F.R. § 483.40. We do not accept this attempt to turn the absence of a survey finding into affirmative proof of compliance, especially in the absence of any documentation of actual compliance, since we see no basis to assume that surveyors always discover every deficiency. Furthermore, the cited regulation requires physicians to visit each resident once every 30 days for the first three months after admission and once every 60 days thereafter. It does not follow that compliance with this visit schedule would have disclosed the removal of the requisite padding during the survey period.

The ALJ also noted that no pad was observed in the area near the bed, inferring that the facility was not even attempting to comply by repeating the offer of padding. Id. at 25. Meadow Wood also argued on appeal that the resident experienced no harm because his leg merely had the same sort of indentations "anybody would experience if he rested his leg . . . against something for awhile." Meadow Wood Br. at 22. This characterization incorrectly downplays the actual finding that the resident had bruising and discolorations as well as the uncontested increase in his risks due to the anti-coagulant. Finally, Meadow Wood did not point to evidence of any other measures it took to meet its continuing obligation to try to safeguard the resident from injury in light of the high bleeding risk and the actual bruising.

Meadow Wood's description of the risk of harm to Resident 14 from an improperly applied pelvic restraint as limited to "the momentary discomfort cause by [her] self-induced wedgie" also fails to confront the actual finding. Meadow Wood Br. at 21. This delusional resident, with a diagnosis of osteoporosis and a history of falls resulting in fractures, was able to move her arms under the straps in a way that caused chest pressure. ALJ Decision at 24. Meadow Wood's argument that somehow the laws of physics precluded asphyxiation or breaking a rib is neither coherent nor responsive to the actual observation that the restraint was pulled very tight against her lower thoracic area. CMS Ex. 1, at 34.

iv. Range of motion services

Based on its comprehensive assessment of each resident, a facility must ensure that "a resident with a limited range of motion receives appropriate treatment and services to increase range of motion and/or to prevent further decrease in range of motion." 42 C.F.R. § 483.25(e)(2). The ALJ found that Meadow Wood failed to provide appropriate range of motion services to Resident 3. ALJ Decision at 31.

The individual who supervised Meadow Wood's rehabilitation department at the time, Pamela Ninichuck, testified that a physical therapy assessment was done within two days of Resident 3's admission and that he was "referred to restorative for range of motion three to five times a week to all extremities." Tr. at 556, 60-61. She further testified that, although the interdisciplinary care team had not met to "write a formal program," the resident was receiving range of motion services daily during his bath. Tr. at 561-62. The ALJ found that Meadow Wood staff indicated to the surveyors that they did not know that this resident was supposed to receive such services, that he was not on the list provided to them by Meadow Wood of residents who were scheduled to receive such services, and that he was not in fact receiving range of motion services. ALJ Decision at 32, and record citations therein. The ALJ discredited the claim that adequate range of motion services were included in Resident 3's daily bath routine, because Resident 3 was not bathed at all on July 28 and 29. Id. at 32. The ALJ also found that a surveyor observed his bath on July 30 and saw no range of motion care. Id. The ALJ inferred that it was unlikely that Resident 3 was bathed daily or that any range of motion services provided during baths would rise to the level of his assessed needs. Id.

Meadow Wood asserted that it "not only substantially complied with the requirements underlying this tag it absolutely complied with them." Meadow Wood Br. at 30 (emphasis in original). ⁽⁷⁾ In support, Meadow Wood relied on Ms. Ninichuck's testimony that she referred Resident 3 for restorative services 3 to 5 times a week and that he actually received it daily (i.e., with a daily bath). Id. The fact that Ms. Ninichuck asserted that he was assessed and referred for services establishes that Meadow Wood evaluated the resident's needs but does not establish that it actually ensured that those needs were met. Meadow Wood offered no evidence or documentation that the services for which he was referred were actually provided, and, as noted, the ALJ found the claims about daily range of motion care dubious. Meadow Wood cited a physical therapy record in support of its claim that Resident 3 "received ROM treatment every day." Id. at 30, citing P. Ex. 3. That record, however, documents only that the resident "will begin program" of services 3 to 5 times a week beginning on August 4. P. Ex. 3. This exhibit further confirms that the identified services were not provided from July 24 to August 4.

D. Findings concerning nurse aide competency

A facility is required to be "administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident." 42 C.F.R. § 483.75. To that end, the facility "must ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for residents' needs, as identified through resident assessments, and described in the plan of care." 42 C.F.R. § 483.75(f). CMS alleged that nurse aides were observed repeatedly transferring residents using a method that provided no support to their lower bodies, and the ALJ found that Meadow Wood presented no evidence to dispute that the transfers took place using an improper technique. ALJ Decision at 26-27, and record citations therein.

Meadow Wood pursued only a legal argument before the ALJ, and again on appeal. Specifically, Meadow Wood argued that the cited regulations require only that the nurse aides be able to "demonstrate" the correct technique, not that they actually perform correctly while providing care. Meadow Wood Br. at 23-25. Thus, Meadow Wood argued that the distinction is that the regulation requires merely "an ability to demonstrate, not actual demonstration. Id. at 24 (emphases in original). Further, Meadow Wood contended that "certification or training is prima facie evidence of the type of technical competency contemplated by the regulations." Id.

The ALJ reasoned that the language of the requirement goes beyond requiring an ability to demonstrate competent technique to specify that the techniques be those identified as necessary in resident assessments and plans of care. ALJ Decision at 27. To give this full context effect, he concluded that the regulation implied the demonstration of competency following the identification of need, rather than being a matter of mere documentation at an initial point (such as when a nurse aide is first hired). Id.

The ALJ found, however, that Meadow Wood failed to demonstrate substantial compliance with the regulation even had he accepted its narrow interpretation. Id. at 28. Meadow Wood did not point to any actual evidence that the nurse aides had an ability to demonstrate competence in performing safe transfers at any point in time. The ALJ inferred from the cumulative impact of the consistent and numerous examples of improper techniques that the nurse aides simply did not know how to do it right. Id.

We conclude that substantial evidence in the record supports the ALJ's finding that, even under Meadow Wood's interpretation of the requirement at § 483.75, Meadow Wood has not shown that it was substantially complying with the requirement. This conclusion does not imply that Meadow Wood's interpretation is correct, but renders it unnecessary for us to address the interpretation question.

F. Food sanitation findings

A facility must "[s]tore, prepare, distribute, and serve food under sanitary conditions." 42 C.F.R. § 483.35(h)(2). The ALJ did not accept all of CMS's allegations under this heading. The ALJ upheld two findings, specifically: (1) the facility permitted a buildup of blackened material on a can-opener, and (2) the handwashing sink in the kitchen had no hot water. ALJ Decision at 31. Both conditions violated explicit State food services laws. Id.

Most of Meadow Wood's arguments on appeal addressed allegations not upheld by the ALJ. See Meadow Wood Br. at 26-29. Meadow Wood offered no argument relating to the can-opener and, in regard to the sink, offered only the same mutually-contradictory arguments addressed by the ALJ. We find no reason to overturn the ALJ's conclusions on this deficiency.

G. Conclusion on non-immediate jeopardy findings

We affirm FFCLs IV.A.2 through IV.A.8 and conclude that the ALJ did not err in finding that CMS had authority to impose a CMP of $50 per day for the period after immediate jeopardy was abated and until substantial compliance was achieved.

5. Meadow Wood's process arguments are unclear and unavailing.

In its reply brief, Meadow Wood contended that "[s]ignificant due process issues appear in this matter" which it chose not to brief "because this agency lacks the authority to rule on those issues." Meadow Wood Reply at 1. Meadow Wood explained that it considered "[t]he matter of constitutional issues and the validity of the rules as applied are reserved for federal court review and decision." Id.

Meadow Wood also launched a more general attack on CMS and on the process of review of CMS determinations at the Board. Meadow Wood stated that "CMS' response to [Meadow Wood's] request for review suggests a standard of care and services delivery which, on objective review, is impossible for any facility to meet." Meadow Wood Reply at 1. Meadow Wood further argued that--

CMS engages in a whirlwind of hindsight generated by "probabilities" of dire calumny to a nursing home resident so scary that objectivity is lost. Punishment where none is warranted and revenue for the federal government where not appropriate is the result of lost objectivity.

Id. In a footnote to this statement, Meadow Wood asked:

What other conclusion supports the report in the journal Provider, September 2001, article "Due Process Denied," that of the seven ALJ's studied only 2 had ever ruled in favor of a provider and then only 11% of the time. See page 33 of the article (a copy is attached).

Id. at n. 1.

CMS declined an opportunity to respond to Meadow Wood's reply brief.

Generally, constitutional arguments must be raised before the administrative body to preserve them for later court review. See Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1 (2000). Our Guidelines (sent to Meadow Wood with the ALJ Decision) specifically list the bases for Board review of an ALJ decision, including whether there are any "prejudicial errors of procedure," and require the appellant to specify those on which it relies. Guidelines - Appellate Review of Decisions of ALJs Affecting a Provider's Participation in the Medicare and Medicaid Programs at ¶¶ 2(c) and 4(b).

Moreover, while neither the ALJs nor the Board have the authority to declare the Secretary's regulations invalid, questions of the validity of the "regulations as applied" not only may, but should, be raised before the ALJ. Such questions may be relevant to interpreting the regulations properly or to determining whether the regulations have been properly applied to the facts of the case. Considering constitutional issues in the context of interpreting regulations is within our authority, and we have done so many times. See generally Sentinel Medical Laboratories, Inc., DAB No. 1762 (2001). In this particular case, however, since Meadow Wood never specifically identified the questions allegedly beyond the scope of our review, we can hardly address them.

The only references to "due process" in Meadow Wood's briefs below related to arguments to the effect that Meadow Wood did not have a fair opportunity to rebut certain findings because the surveyors did not specifically identify which nurse aides were being observed at the times certain deficiencies were found. There is a question of whether even this argument was raised in a timely manner since Meadow Wood does not appear to have identified it in any of its lists of legal issues below. In any event, this is essentially an argument about procedural fairness. Both the ALJs and the Board have the authority to address such issues, and have done so in many cases, as the ALJ did here. ALJ Decision at 15. While Meadow Wood reiterated the argument it had made to the ALJ in its request for review, it did not directly address the ALJ's analysis, which we conclude is a reasonable one.

Meadow Wood's arguments about "objectivity" similarly lack specificity. The attack by Meadow Wood on the objectivity of CMS's response brief filed in this appeal is general and is irrelevant to our review. What is at issue before us is the ALJ Decision, not standards articulated in CMS's response that the ALJ Decision did not adopt.

Meadow Wood cited the Provider article as showing that the ALJ lacked objectivity. Meadow Wood did not specifically ask us to accept this article into evidence. We have nevertheless construed Meadow Wood's attachment of the article to the reply brief as a request that we admit it into the record. We are permitted to admit evidence not introduced before the ALJ if we consider it "relevant and material to an issue" before us. 42 C.F.R. § 498.86(a). We decline to admit this article for two reasons. First, Meadow Wood failed to provide any explanation of why it did not submit the article (dated September 2001) with its request for review. Second, we do not consider the article relevant or material to any issue before us. Even if we considered the article reliable evidence of the matters asserted in it (which we do not), it is not evidence of a lack of objectivity by this ALJ in this particular case.

We find no basis for Meadow Wood's allegations of bias or lack of objectivity in the process which it received before this ALJ.

Conclusion

For the reasons explained above, we decline to dismiss the appeal as untimely, affirm the ALJ Decision in its entirety and affirm and adopt all the FFCLs therein.

Marc R. Hillson

M. Terry Johnson

Judith A. Ballard
Presiding Board Member

1. CMS was previously named the Health Care Financing Administration (HCFA). See 66 Fed. Reg. 35,437 (July 5, 2001). We use "CMS" in this decision unless we are quoting documents that refer to HCFA.

2. The CMP amounts consisted of 10 days at $3,050 per day for a subtotal of $30,500 and 122 days at $50 per day for a subtotal of $6,100. It is undisputed that the total combined CMP amounted to $36,600. See CMS Br. at 1. The ALJ Decision contained a minor misstatement in describing the remedies as including the immediate jeopardy CMP for 10 days beginning July 23, 1998 and a $50 per day CMP also beginning July 23, 1998 and lasting 132 days. ALJ Decision at 1. It is clear from the ALJ Decision as a whole that the ALJ had, in his prior ruling, found that CMS had a basis to impose a $50 per day CMP once the immediate jeopardy was removed. CMS did not seek to, and the ALJ did not appear to intend to, impose an additional $50 per day CMP above the $3,050 per day CMP during the immediate jeopardy period.

3. CMS sought to have Meadow Wood's request for review dismissed on the ground that it was filed a day after the time for appeal expired. CMS Br. at 3. Given the lack of prejudice to CMS, we decline to dismiss the request for review because we do not consider it appropriate to dismiss under all the circumstances here.

4. The FFCLs appeared in section IV of the ALJ Decision. Those numbered A.1 through A.8 dealt with findings on Meadow Wood's failure to comply substantially with specific participation requirements. The ALJ concluded in FFCL IV.B that CMS's determination of immediate jeopardy was not clearly erroneous and in FFCL IV.C that the amount of the CMP was reasonable.

5. Meadow Wood also suggested it was error to credit the surveyors' reports that they were told that Resident 3 was not bathed (and that his observed condition agreed with that) on July 28 and 29 in the face of testimony by April Johnson, an administrative assistant at Meadow Wood, which Meadow Wood characterized as establishing that "others were given baths on July 28-29 (implicitly including R.3)." Meadow Wood Br. at 14. Ms. Johnson testified that records with nurse aide initials were kept when residents were bathed and that she had no such record of bathing for Resident 3 on the days in question, which does not support Meadow Wood's claims. Tr. at 702-03.

6. Specifically, the surveyors arrived on the morning of July 28, 1998 and conducted their exit conference on August 1, 1998. Tr. at 42, 93.

7. Meadow Wood argued that it had "more than enough staff" to provide the services needed by its residents. Meadow Wood Br. at 29-30. The ALJ explicitly stated, however, that the issue before him was not "whether there was adequate range of motion staffing." ALJ Decision at 31. We therefore do not address Meadow Wood's arguments about its staffing levels and assignments.