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CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
IN THE CASE OF  


SUBJECT: Carrier Mills Nursing Home,

Petitioner,

DATE: May 28, 2003

             - v -

 

Centers for Medicare & Medicaid Services

 

Docket No. A-03-37
Civil Remedies No. CR978
Decision No. 1883
DECISION
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FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE D
ECISION

Carrier Mills Nursing Home (Carrier Mills) appealed a November 27, 2002 decision by Chief Administrative Law Judge (ALJ) Marion T. Silva granting summary judgment for the Centers for Medicare & Medicaid Services (CMS) and upholding a $200 per day civil money penalty (CMP) for failure to comply substantially with the Medicare participation requirements in 42 C.F.R. §§ 483.25(a)(2) and 483.25(e)(2). Carrier Mills Nursing Home, DAB CR978 (2002) (ALJ Decision). The CMP upheld by the ALJ totalled $7,000 ($200 per day for the period October 5, 2000 through November 8, 2000).

As explained in detail below, we agree with the ALJ that CMS presented a prima facie case that Carrier Mills was not in substantial compliance with 42 C.F.R. §§ 483.25(a)(2) and 483.25(e)(2), and that Carrier Mills failed to raise a genuine issue of material fact concerning that prima facie case. We therefore affirm the ALJ Decision in its entirety and sustain the CMP of $7,000.

Regulatory Background

Carrier Mills is a skilled nursing facility that participates in the Medicare program. Medicare's participation requirements for nursing and other long-term care facilities are set forth in 42 C.F.R. Part 483.

A facility's compliance with participation requirements is verified through the survey and certification process described in 42 C.F.R. Part 488, Subpart E. Surveys are usually conducted by a state agency under an agreement with CMS. A survey's findings are presented in a Statement of Deficiencies, which identifies each violation of (or instance of noncompliance with) a participation requirement. See CMS State Operations Manual (SOM) Appendix P, ch. IV.

If a survey reveals that a facility is not in "substantial compliance" with federal participation requirements, the facility must submit a plan of correction (POC) for approval by the survey agency. 42 C.F.R. §§ 488.402(d), 488.408(f). Even if the POC is approved, the facility may not be regarded as in substantial compliance until the survey agency determines, following an onsite revisit or other means of verification, that the deficiency no longer exists. 42 C.F.R. § 488.440(h); SOM § 7316. "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.

A CMP in the range of $50-$3,000 per day may be imposed for deficiencies that do not constitute "immediate jeopardy," but either cause actual harm or create the potential for more than minimal harm. 42 C.F.R. § 488.438(a). In cases involving immediate jeopardy determinations, CMS may impose either a per day CMP in the range of $3,050 to $10,000 or a CMP of $1,000 to $10,000 per instance (not to exceed a daily amount of $10,000), but not both. Id.

A CMP accrues until either "(1) The facility has achieved substantial compliance, as determined by [CMS] or the State based upon a revisit or after an examination of credible written evidence that it can verify without an on-site visit" or "(2) [CMS] or the State terminates the provider agreement." 42 C.F.R. § 488.454(a).

The two participation requirements at issue here fall under the rubric of "quality of care" requirements, which share the same regulatory objective that "[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care." 42 C.F.R. § 483.25. Section 483.25(a)(2) provides:

A resident is given the appropriate treatment and services to maintain or improve his or her abilities specified in paragraph (a)(1) of this section.

The list of abilities in paragraph (a)(1) of that section includes "the resident's ability to . . . (ii) Transfer and ambulate."

Section 483.25(e)(2) provides:

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.

Standard of Review

Our standard of review on a disputed conclusion of law is whether the ALJ Decision is erroneous. Our standard of review on a disputed finding of fact is whether the ALJ's finding is supported by substantial evidence on the record as a whole. See 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. Whether summary judgment is appropriate is a legal issue that we address de novo, viewing the proffered evidence in the light most favorable to the non-moving party. See, e.g., Livingston Care Center, DAB No. 1871 (2003); Crestview Parke Care Center, DAB No. 1836 (2002).

On the issue of whether there is a factual basis for the CMP, CMS is entitled to summary judgment if it has (1) made a prima facie showing that the petitioner was not in substantial compliance with one or more Medicare participation requirements, and (2) demonstrated that there is no dispute about any material fact supporting its prima facie case and that it is otherwise entitled to judgment as a matter of law. CMS is not entitled to summary judgment if the petitioner has proffered evidence that would permit an ALJ to conclude that it was in substantial compliance with the participation requirements during the relevant period. Livingston Care Center at 6.

Background

On October 5, 2000, the Illinois Department of Public Health conducted a survey of Carrier Mills and determined that it was not in substantial compliance with several Medicare participation requirements, including the requirements at 42 C.F.R. §§ 483.25(a)(2) and 483.25(e)(2). As relevant here, the surveyors found that "the facility failed to give appropriate treatment and services to maintain or improve abilities for ambulation for 1 of 16 sampled residents" (R12). CMS Ex. 4, at 3. The surveyors further found that "the facility failed to provide treatment and necessary services for each resident with limited range of motion to increase, prevent and/or maintain range of motion on 4 of 7 sampled residents identified with limited range of motion" (R12, R4, R8 and R13). CMS Ex. 4, at 5. By letter dated November 22, 2000, CMS notified Carrier Mills that, based on the survey findings (which included additional deficiencies not at issue here), it was imposing a CMP of $200 per day, effective October 5, 2000, until Carrier Mills achieved substantial compliance. A revisit survey conducted on November 9, 2000 determined that Carrier Mills was in substantial compliance. ALJ Decision at 1.

Carrier Mills filed a hearing request on December 15, 2000. After the parties exchanged exhibits, CMS filed a Notice of Issues for Which Summary Affirmance Will Be Requested. In accordance with a briefing schedule agreed to by the parties, CMS then filed a Motion for Summary Affirmance based on the survey findings of deficiencies under sections 483.25(a)(2) and 483.25(e)(2). The motion was accompanied by 25 of the previously exchanged exhibits, as well as by declarations by two surveyors that had not previously been submitted (CMS MSJ Exs. A and B). Carrier Mills filed a response accompanied by the affidavit of its Director of Nursing, Ms. Blackwell (P. Ex. A). In addition, Carrier Mills moved to strike the surveyors' declarations. ALJ Decision at 1-2. Finally, CMS filed a reply to Carrier Mills' response.

In her decision, the ALJ made the following numbered findings of fact and conclusions of law (FFCLs):

1. Summary judgment is appropriate where, as here, Petitioner has not demonstrated any dispute over genuine issues of material fact.

2. Petitioner was not in substantial compliance with the regulation regarding resident transfer and ambulation. 42 C.F.R. § 483.25(a)(2).

3. Petitioner was not in substantial compliance with the regulation regarding range of motion. 42 C.F.R. § 483.25(e)(2).

4. The amount of the CMP imposed was reasonable.

ALJ Decision at 4-6, 11. The ALJ also declined to strike the two declarations filed by CMS.

Summary of Carrier Mills' Arguments on Appeal

On appeal, Carrier Mills failed to identify the specific FFCLs to which it excepted. However, based on the arguments raised in Carrier Mills' brief, we consider it to have taken exception to FFCLs 1, 2 and 3. (1)

Carrier Mills took the position that the ALJ erred in concluding that summary judgment was appropriate. Carrier Mills argued specifically that: the ALJ improperly placed the burden of persuasion on Carrier Mills; the ALJ erred in declining to strike the surveyors' declarations; Carrier Mills was entitled to a hearing in the absence of any waiver of its right to a hearing; and there are genuine issues of material fact requiring a hearing. According to Carrier Mills, contrary to what the ALJ found, it offered to provide ambulation and transfer therapy to R12 and passive range of motion (PROM) exercises to R12, R4, R8 and R13, but the residents refused or were uncooperative. Carrier Mills also disputed that its alleged failure to offer ambulation and transfer therapy or PROM exercises caused the condition of the residents to decline.

ANALYSIS
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1. The ALJ did not place the burden of persuasion on Carrier Mills.

In a section of her decision captioned "Applicable law," the ALJ stated as follows:

When a penalty is imposed, CMS must make a prima facie case that the facility has failed to comply substantially with federal participation requirements. To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEV) (D.N.J. May 13, 1999).

ALJ Decision at 3. Carrier Mills argued that the ALJ erred in placing the burden of persuasion on it pursuant to Hillman since in its view Hillman was wrongly decided. (2)

Carrier Mills is incorrect that the ALJ placed the burden of persuasion on it. Although the ALJ Decision cites Hillman for the proposition that a long-term care facility must overcome CMS's prima facie case that the facility was out of compliance with a preponderance of the evidence, the ALJ did not state that she was applying Hillman in this case, nor is Hillman applicable where a case is decided on a motion for summary judgment. (3) Hillman sets out "the process of review before the ALJ on disputed issues of fact." Emerald Oaks, DAB No. 1800, at (2001) (emphasis added). Here, however, CMS moved for summary judgment on the ground that there were no disputes of material fact requiring an oral hearing. The ALJ proceeded to evaluate Carrier Mills' briefs and its proffered evidence to see if disputes of material fact had been raised. Where the ALJ concluded that a dispute of material fact had been raised, the ALJ then resolved the dispute in favor of Carrier Mills, just as if it had been established by a preponderance of the evidence. Where Carrier Mills failed to raise a genuine dispute of fact, the ALJ found that the CMS finding of deficiency was uncontroverted and therefore established for purposes of summary judgment. Ultimately, the ALJ concluded that the remedy in question was fully justified on the basis of the uncontroverted deficiency findings, and granted summary judgment for CMS.

Thus, even if we were to agree with Carrier Mills that Hillman is inapplicable and that the burden of persuasion should not be borne by the facility, that would not be a basis for reversing the ALJ Decision.

2. The ALJ did not err in declining to strike the surveyors' declarations.

The two surveyors in question were registered nurses who were on the survey team that conducted the survey of Carrier Mills in October 2000. Their declarations relate to the deficiency findings under 42 C.F.R. §§ 483.25(a)(2) and 483.25(e)(2) based on which CMS moved for summary judgment. The declarations provide more detail about the basis for these findings than the statement of deficiencies. Most of the statements in the declarations describe the contents of exhibits submitted with CMS's motion for summary judgment. The declarations also explain the significance of notations in the relevant medical records. In particular, the Declaration of Cheryl Young states that "[b]lank spaces or '0's' on a treatment log normally indicate that the treatment was not attempted," while the Declaration of Helen Bowman states that "a zero, zero with a slash through it, or a blank space" indicates that exercises or therapy were "not attempted." CMS MSJ Ex. A, ¶ 7; CMS MSJ Ex. B, ¶ 10. In addition, the declarations state that Carrier Mills "was not providing appropriate treatment and services" as required by the regulations cited above, and that this resulted in harm or a potential for more than minimal harm to the resident. CMS MSJ Ex. A, ¶ 12 (R12), ¶ 20 (R12), ¶ 25 (R8); CMS MSJ Ex. B, ¶ 8 (R4), ¶ 11 (R13).

In explaining her decision not to strike these declarations, the ALJ wrote:

Petitioner argues that I should grant its motion to strike the two declarations labeled CMS MSJ Exs. A and B because CMS is attempting to deprive it of its due process rights to confront and cross-examine the two surveyors who were the authors of these declarations. Petitioner also claims that these two declarations are inadmissible because the declarations contain hearsay statements, legal conclusions, editorial comments on information found in documents, and lay opinions on medical issues.

Petitioner will not be deprived of its due process rights in cross-examining the two surveyors who were the authors of these declarations because there is no testimony that could be elicited from these surveyors that could alter the relevant factual findings that I have made based on Petitioner's own documents. I find that the other reasons that Petitioner claims these declarations are inadmissible are without merit. The declarations are material, relevant, and admissible. Petitioner should note, however, that I give these declarations very little weight because I base this decision almost entirely on Petitioner's own documents.

ALJ Decision at 2.

On appeal, Carrier Mills reiterated its arguments before the ALJ regarding these declarations. We agree with the ALJ that consideration of these declarations does not deprive Carrier Mills of its right to confront and cross-examine the surveyors. Carrier Mills misconstrued the function of the declarations when it characterized them as "direct testimony" or "evidence." Carrier Mills Br. at 8. Under Rule 56 of the Federal Rules of Civil Procedure, a party moving for summary judgment may submit an affidavit in support of its motion, and the adverse party may submit opposing affidavits. (4) In ruling on the motion, the judge must consider whether the pleadings, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Carrier Mills had the opportunity to dispute facts alleged in the surveyors' declarations when Carrier Mills filed its opposition to CMS's motion for summary judgment. Since (as discussed later in this decision) Carrier Mills did not raise a dispute as to the facts on which the ALJ relied in ruling on the motion, there was no reason to give Carrier Mills an opportunity to cross-examine the surveyors.

We further agree with the ALJ that Carrier Mills' other arguments as to why the declarations should be stricken are without merit.

The applicable regulations provide that "[e]vidence may be received at the hearing even though inadmissible under the rules of evidence applicable to court procedure." 42 C.F.R. § 498.61. Thus, even if statements in the declarations constitute hearsay, they are not necessarily inadmissible. Moreover, we see no basis for Carrier Mills' objection that the surveyors were allowed to provide "personal opinions beyond their expertise." Carrier Mills Br. at 10. Carrier Mills did not explain why it believed the surveyors--who, as indicated in their declarations, were R.N.'s who had previously worked in nursing homes--were not qualified to offer opinions on nursing issues with which they had experience, however. Furthermore, Carrier Mills did not proffer any contrary evidence with respect to any material fact alleged in the declarations on which the ALJ relied. Moreover, although Carrier Mills is correct that the surveyors were not qualified to give their opinion as to the ultimate legal issue in the case--whether Carrier Mills was in substantial compliance with the applicable Medicare participation requirements--there was no prejudice here since the ALJ, unlike a jury, can be presumed to have recognized the surveyors' lack of qualification in this regard and not to have relied on their opinions.

3. Part 498 does not give a facility a right to an evidentiary hearing where there are no material facts in dispute.

Carrier Mills argued that, in deciding this case without an oral hearing, the ALJ violated 42 C.F.R. § 498.66. That section provides in pertinent part:

(a) Waiver procedures. (1) If an affected party wishes to waive its right to appear and present evidence at the hearing, it must file a written waiver with the ALJ.

* * * * *

(b) Effect of waiver. If the affected party waives the right to appear and present evidence, the ALJ need not conduct an oral hearing . . . .

Carrier Mills asserted that it "did not submit a written waiver of the right to appear and present evidence and continues to assert that there were genuine issues of material fact, thus ALJ Silva was required to hold an oral hearing 'to clarify the facts at issue.'" Carrier Mills Br. at 9. Carrier Mills also asserted that sections 498.60 and 498.62 "explicitly [provide] nursing facilities such as Carrier Mills the right to an evidentiary hearing and the opportunity to interrogate witnesses offered by the opposing party." Id. at 3.

Carrier Mills' reliance on the waiver provisions quoted above is misplaced. We have previously held that, even absent a waiver, the ALJ may decide a case on summary judgment, without an evidentiary hearing, if there is no dispute about any material fact and a party is entitled to judgment as a matter of law. Livingston Care Center, Crestview Parke Care Center. Since there were no disputed issues of material fact, "a plenary, adversary administrative proceeding involving evidence, cross-examination of witnesses, etc., [was] not obligatory ..." United States v. Consolidated Mines and Smelting Co., Ltd., 455 F.2d 432, 453 (9th Cir. 1971). Moreover, nothing in the provisions about the general conduct of a hearing and the examination of witnesses in section 498.60 and section 498.62, respectively, suggests that a facility has a right to an evidentiary hearing where the ALJ determines that there is no dispute as to any material fact.

A party must of course be afforded a meaningful opportunity to raise any issues of material fact before a case is decided on summary judgment. Here, Carrier Mills was given clear notice of the issues and of the basis for CMS's position and had a full opportunity to brief these issues and to provide documents in support of its own position. Thus, Carrier Mills had ample opportunity to dispute the facts on which the ALJ relied in granting summary judgment for CMS.

4. There was no dispute of material fact regarding whether Carrier Mills offered ambulation and transfer therapy or PROM exercises to the residents in question.

Carrier Mills took the position that there was a dispute of material fact regarding whether ambulation and transfer therapy or PROM exercises were "offered and refused or not offered at all" which can only be resolved by an evidentiary hearing. Carrier Mills Br. at 11. Carrier Mills contended that, contrary to what CMS posited, the fact that Carrier Mills' staff recorded "0" on rehabilitation therapy log sheets and on PROM assignment sheets did not mean that Carrier Mills failed to offer ambulation and transfer therapy or PROM exercises on those occasions. Instead, according to Carrier Mills, this notation means "just that therapy was not done, possibly because the resident refused or was uncooperative." Id. at 12. Carrier Mills pointed to statements in the affidavit of its director of nursing that "nursing staff offered therapy but documented residents' refusal or lack of cooperation with '0's' instead of 'R's' or 'U's'" and that "the residents identified in this survey frequently refused or were uncooperative with therapy." Id., citing P. Ex. A, ¶ 6-7 and ¶ 9-10. (5) Carrier Mills continued:

Although it may have been preferable for nursing staff to more fully explain why therapy was not done, the federal regulations do not require an extensive explanation but only that therapy be offered and provided if the resident complies. Carrier Mills offered therapy to its residents and provided the therapy when the residents accepted it. Therefore, Carrier Mills was in substantial compliance with the federal regulations. At a minimum, this is a factual issue that cannot be decided by ALJ Silva without a hearing.

Id. at 12.

Contrary to Carrier Mills' argument, however, resolution of this factual dispute was not necessary in order for the ALJ to find that Carrier Mills failed to substantially comply with the applicable Medicare participation requirements. The ALJ recognized the existence of this factual dispute but stated with respect to the deficiency cited by the surveyors under section 483.25(a)(2) (resident transfer and ambulation):

Although CMS disagrees with Petitioner's interpretation of "0", I will assume that Petitioner's interpretation is correct for the purposes of the summary judgment motion before me. However, taking Ms. Blackwell's affidavit in the light most favorable to Petitioner, I find that Petitioner does not survive a motion for summary judgment. Petitioner's own documents show that the ambulation therapy log sheets were sometimes completely blank. There is a blank space on the ambulation therapy log sheet for July 30, 2000 (CMS Ex. 18, at 11), and for August 29 - 31, 2000 (Id. at 12). The spaces for October 1 - 4, 2000 (P. Ex. 23, at 3) were lined through to indicate a lack of data for entry. A standard practice in the nursing field is that if something is blank or lined through, then that service or treatment was not performed. More significant, however, was the October log sheet where the staff was directed to do transfer therapy only for R12. Nowhere on the documentation for October was the staff directed to provide any ambulation therapy to R12. I conclude that, on the days mentioned above, R12 was not even offered the ambulation or transfer therapy ordered by her doctor and required by her care plan.

ALJ Decision at 6. (6) The ALJ also found with respect to each of the four residents mentioned in the surveyors' citation of a deficiency under section 483.25(e)(2) (range of motion) that there were blank spaces on the PROM assignment sheet for at least one shift on numerous dates when PROM exercises were required by physician's orders and the resident's care plan to have been performed twice a day. See ALJ Decision at 7-11. The ALJ concluded that the existence of these blank spaces established a violation of section 483.25(e)(2). (7) (8)

Since the ALJ did not treat the '0's' on any of the documentation on which she relied as indicating that either the required ambulation and transfer therapy or the required PROM exercises were not offered, the existence of a factual dispute regarding the significance of the '0's' is not material.

Carrier Mills also challenged the ALJ's finding of a violation on the ground that there was no evidence to support the statement in the ALJ Decision that "a standard practice in the nursing field is that if something is blank or lined through, then that service or treatment was not provided." Carrier Mills Br. at 15, n.2, quoting ALJ Decision at 6. As we noted earlier, however, both surveyors' declarations state that blank spaces indicate that treatment was not attempted. Carrier Mills did not dispute these statements in its response to CMS's motion for summary judgment. Thus, in granting summary judgment for CMS, the ALJ could properly rely on the uncontroverted fact that Carrier Mills did not offer ambulation and transfer therapy or PROM exercises to the residents in question on the dates for which there were blank spaces on the rehabilitation log sheets and PROM assignment sheets. While Carrier Mills is correct that CMS did not proffer evidence that lining through a space means that the service or treatment was not provided, the ALJ found that this was the case only with respect to ambulation therapy for R12 and only for four days; thus, to the extent the ALJ relied on this finding in granting summary judgment for CMS, it was harmless error.

5. There was no dispute of material fact regarding whether the failure to offer ambulation and transfer therapy or PROM exercises caused a decline in the residents' conditions.

Carrier Mills argued that "[r]egardless of whether residents refuse treatment or Carrier Mills failed to provide it . . . , CMS did not offer any evidence or proof that the alleged declines [in the condition of the residents] were caused by the residents not receiving PROM exercises or ambulation therapy." Carrier Mills Br. at 13. On the other hand, Carrier Mills asserted, CMS itself recognized that each resident had "numerous medical conditions" that could have contributed to a decline in their conditions. Id. at 14. Carrier Mills claimed that this created "genuine issues of material fact precluding summary affirmance." Carrier Mills Reply Br. at 5. (9)

We note preliminarily that, although Carrier Mills' argument refers to all four residents in question, R12 was the only resident whose condition was found by the ALJ to have declined. The ALJ found with respect to the other three residents (who were cited only in connection with the deficiency under section 483.25(e)(2)) that Carrier Mills' failure to offer PROM exercises put them "at risk for suffering a decrease in range of motion and for developing contractures because joints begin to stiffen after 24 hours of disuse. CMS Ex. 43, at 5." ALJ Decision at 8 (R4), 9 (R8), and 11 (R13). (10) Carrier Mills did not dispute that such a risk existed.

The ALJ found that there was undisputed evidence (physical therapy evaluations) that "R12 suffered a decline in her ability to ambulate" and that "R12's range of motion became more limited." ALJ Decision at 6-7. Although the ALJ did not expressly find that the decline in R12's condition resulted from the lack of ambulation therapy or PROM exercises, this finding is implicit in her decision, as Carrier Mills' argument recognized. The ALJ later noted Carrier Mills' argument that "there were many intervening medical conditions" that could have caused a decline in R12's condition so that "it is a stretch to conclude that not participating in therapy was the sole cause of the decline." Id. at 8. (11) However, the ALJ rejected this argument, stating:

Petitioner claims that the failure of CMS to present evidence to support a causal connection should defeat CMS's motion for summary judgment. Petitioner misunderstands its burden in responding to a motion for summary judgment. Petitioner's mere speculation that a decline is caused by some intervening medical condition is insufficient to create an issue of material fact. Mere speculation cannot preclude summary judgment. Petitioner is obligated to aver specific facts that will defeat CMS's motion. It has not done so.

Id.

We agree with the ALJ that Carrier Mills did not raise a dispute of material fact concerning the harm suffered by R12. The Declaration of Cheryl Young submitted with CMS's motion alleges that the lack of both ambulation and transfer therapy and range of motion exercises harmed R12 (CMS MSJ Ex. A, ¶ 12 and ¶ 20). In response to the motion, Carrier Mills stated that "[t]he surveyors (as nurses) are unqualified to determine the medical causation of an alleged decline. On the other hand, CMS admits that each resident 'suffered from a number of conditions' [citation omitted]." Petitioner's Response to CMS' Motion for Summary Affirmance of the Civil Money Penalty at 9. As we stated earlier, however, Carrier Mills did not explain why Surveyor Young was not qualified to give her opinions on nursing issues with which she had experience, nor did it proffer any contrary evidence. Moreover, Surveyor Young's opinion is not undercut by CMS's statement that R12 "suffered from a number of conditions including Cerebral Vascular Accident with left hemiplegia and arthritis" (CMS's Memorandum in Support of its Motion for Summary Affirmance of the Civil Money Penalty, at 5) since Carrier Mills did not deny that the lack of ambulation and transfer therapy or PROM exercises contributed to R12's decline. It is irrelevant if R12's other conditions made some decline inevitable inasmuch as section 483.25 requires only that a facility provide care and services to help the resident "attain or maintain the highest practicable physical, mental, and psychosocial well-being" (emphasis added). Thus, Carrier Mills' arguments were not sufficient to raise a dispute as to this issue.

Conclusion

For the reasons above, we affirm the ALJ Decision in its entirety and sustain the CMP (totaling $7,000) imposed in this case. In doing so, we affirm and adopt all of the FFCLs made by the ALJ.

JUDGE
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Judith A. Ballard

Donald F. Garrett

Marc R. Hillson
Presiding Board Member

FOOTNOTES
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1. Although Carrier Mills' reply brief includes a section captioned "The amount of the CMP is unreasonable," the argument that follows does not go to the amount of the CMP but rather to whether there was a legal basis for imposition of a CMP. See Reply Br. at 5.

2. Carrier Mills argued that the Board's holding in Hillman regarding the burden of proof violates section 553 of the Administrative Procedure Act (APA), which requires notice and comment rulemaking, as well as section 556(d) of the APA, which provides that a proponent of a rule or order generally has the burden of proof. Carrier Mills Br. at 6. Carrier Mills further argued that Hillman violates the regulations governing hearing procedures at 42 C.F.R. § 1005.15, which provide that the Inspector General bears the burden of proof for all issues except affirmative defenses and mitigating circumstances. We need not reach these issues here in view of our analysis in the text below. (We note, however, that the regulations which set forth the hearing procedures in a case involving the imposition of a CMP by CMS under 42 C.F.R. Part 488 are at 42 C.F.R. Part 498, not Part 1005.)

3. Hillman involved the imposition of a CMP on a rehabilitation center; however, the Board held in Cross Creek Health Care Center, DAB No. 1665 (1998) that the same framework applies in long-term care facility cases involving CMPs.

4. Although the Federal Rules of Civil Procedure are not binding in this administrative proceeding, we may look to these rules in determining whether the ALJ's use of summary procedures was proper. See Livingston Care Center and decisions cited therein.

Section 1746 of 28 U.S.C. provides that, whenever a rule requires a matter to be supported by sworn affidavit, the matter may be supported instead by an unsworn, written declaration or statement "subscribed ... as true under penalty of perjury, and dated." The declarations in question here met these criteria.

5. The sheets have boxes corresponding to the nursing shifts for each day of the month. The rehabilitation log sheets, but not the PROM assignment sheets, include the following key:

C - Cooperative, U - Uncooperative, R - Refused, and O - Did not do. See e.g., CMS Ex. 18, at 11 - 13.

6. The ALJ also noted that the PROM assignment sheet for R4 included the notation "3" in several boxes, but that this notation "appears nowhere else in the record and is not used or defined anywhere in the record." ALJ Decision at 8, n.1. Contrary to what Carrier Mills argued, the ALJ treated the "3's" as indicating that Carrier Mills provided the PROM exercises. See Carrier Mills Br. at 14; ALJ Decision at 8.

7. The ALJ went to great lengths to view the documentation in the light most favorable to Carrier Mills, however, stating:

Although Petitioner did not argue this point, I note that there are two lines containing initials below each day on the assignment sheet. I suppose it is possible that the initials indicate the staff person who was recording whether the PROM exercises were done. If that is the case, then wherever there are initials on both of those lines, I can assume that, on that day, PROM exercises were offered twice even though only one "0" was recorded on that day.

ALJ Decision at 7; see also ALJ Decision at 9-11.

8. Although in some cases the ALJ stated that the resident did not "receive" the PROM exercises or that Carrier Mills did not "provide" the PROM exercises (see, e.g., ALJ Decision at 7-8), it is clear in context that the ALJ concluded that the PROM exercises were not even offered to the resident. Carrier Mills did not dispute that failure to offer the PROM exercises constituted a violation of section 483.25(e)(2).

9. According to CMS, this argument "only challenged the scope and severity of the deficiency finding" and was not subject to review since 42 C.F.R. § 498.3(b)(14) precludes a challenge to the "level of noncompliance" unless it would affect the range of the CMP. However, it appears that Carrier Mills was arguing that it was in substantial compliance, not that the level of noncompliance should be different.

10. In response to Carrier Mills' argument that the decline in R4's condition could not be attributed to Carrier Mills' failure to offer PROM exercises since the decline was noted upon R4's return to Carrier Mills following his hospitalization, the ALJ stated "[a]t most, Petitioner could claim it did not cause actual harm to R4." However, the ALJ proceeded to find that, even absent actual harm, Carrier Mills was not in compliance since its failure to perform the PROM exercises posed a risk of more than minimal harm to R4's health. ALJ Decision at 8.

11. The ALJ Decision incorrectly indicates that Carrier Mills made this argument with respect to R4; however, Carrier Mills actually made the argument with respect to R12. See Petitioner's Response to CMS' Motion for Summary Affirmance of Civil Money Penalty at 9.

CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES