SUBJECT: Mountain View Manor,

Petitioner,

Centers for Medare & Medicaid Services

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Mountain View Manor (Mountain View) appealed the August 11, 2003, decision by Administrative Law Judge (ALJ) Anne E. Blair sustaining the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a $3,050 per day civil money penalty (CMP) for the period May 25 through June 30, 1999. Mountain View Manor, DAB CR1076 (2003) (ALJ Decision). CMS had imposed the CMP based on a survey by the Arizona Department of Health Services (State agency) conducted from June 28 through July 2, 1999 that found that Mountain View failed to substantially comply with Medicare participation requirements at 42 C.F.R. §§ 483.13 and 483.75, and that the noncompliance posed immediate jeopardy to resident health and safety. Mountain View argued on appeal that CMS's selection of May 25 as the beginning date for a CMP at the immediate jeopardy level was arbitrary and capricious. As discussed in detail below, we find no merit in Mountain View's arguments and affirm the ALJ Decision.

Our decision is based on the record before the ALJ, Mountain View's appeal from the ALJ Decision, and CMS's response to the appeal. Mountain View chose not to file a reply brief, although it had the opportunity to do so.

Legal Background

Mountain View is a long term care facility that participates in the Medicare program. The regulatory requirements for long term care facilities participating in Medicare are set forth at 42 C.F.R. Part 483. The specific requirements at issue here are:

o Section 483.13, which addresses resident behavior and facility practices, and provides in pertinent part:

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

(c) Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents . . . .

(1) The facility must-

(i) Not use verbal, mental, sexual, or physical abuse . . . .

o Section 483.75, which addresses administration, and provides in pertinent part:

A facility must 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.

* * * * *

(i) Medical director. (1) The facility must designate a physician to serve as medical director.

(2) The medical director is responsible for-

(i) Implementation of resident care policies; and
(ii) The coordination of medical care in the facility.

Compliance with the participation requirements is determined through the survey and certification process, set out at 42 C.F.R. Part 488, Subpart E. Surveys are generally conducted by a state survey agency under agreement with CMS. A participating long term care facility is subject to a "standard survey" at intervals of no less than 15 months (with a statewide average interval of 12 months). 42 C.F.R. § 488.308. In a standard survey, surveyors examine the quality of care furnished to a representative sample of patients and investigate the facility's compliance with statutory requirements regarding resident rights. 42 C.F.R. § 488.305.

Based on a survey's findings, surveyors prepare a Statement of Deficiencies which identifies and describes each failure to meet a participation requirement (deficiency) under a separate "tag" number. If a survey reveals that a facility is not in "substantial compliance" with federal participation requirements, the facility must submit a plan of correction for approval by the survey agency. 42 C.F.R. §§ 488.402(d), 488.408(f)(2). Even if the plan of correction is accepted, 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).

The seriousness of deficiencies is assessed on a scale that considers scope (how isolated or widespread the deficiency is) and severity (how great the harm or potential for harm posed by the deficiency). 42 C.F.R. § 488.404. In order to be found in "substantial compliance," a provider must have no deficiencies that pose a risk to resident health or safety greater than "the potential for causing minimal harm." 42 C.F.R. § 488.301. At the other extreme, the most serious deficiencies are those determined to constitute immediate jeopardy. "Immediate jeopardy" is defined in the regulations 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." Id. A facility becomes subject to remedial action when it is not in substantial compliance with one or more participation requirements. 42 C.F.R. § 488.400.

CMS may impose a CMP for either "the number of days" or for "each instance" a facility is not in substantial compliance with one or more participation requirements. 42 C.F.R. § 488.430(a). CMS may impose a CMP "for the number of days of past noncompliance since the last standard survey, including the number of days of immediate jeopardy." Section 488.430(b). A per day CMP "may start accruing as early as the date that the facility was first out of compliance, as determined by CMS or the State." 42 C.F.R. § 488.440(a)(1). These provisions were intended to "create a financial incentive for facilities to maintain compliance with all of the conditions of participation by authorizing . . . civil money penalties for each day a facility is out of compliance even though the facility may subsequently bring itself back into full compliance." 59 Fed. Reg. 56,116, at 56,206 (Nov. 10, 1994), quoting H.R. Report No. 391, 100^th Cong., 1^st Sess., 473-6 (1987). This is consistent with the overall purpose of the legislation authorizing the imposition of CMPs and other remedies to "discourage facility non-compliance that Congress believed to be widely evident between surveys and thereby to encourage lasting compliance." 59 Fed. Reg. 56,116, at 56175.

A CMP in the range of $3,050-$10,000 per day of noncompliance may be imposed for a deficiency that poses an immediate jeopardy to patient health or safety. 42 C.F.R. § 488.438(a)(1)(i). A CMP in the range of $50 - $3,000 per day may be imposed for deficiencies that do not constitute immediate jeopardy but that either cause actual harm or create the potential for more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii).

A facility may appeal a certification of noncompliance leading to an enforcement remedy. 42 C.F.R. § 488.408(g)(1). A determination with respect to the level of noncompliance may be appealed if a successful challenge on this issue would affect the range of CMP amounts that CMS could collect. 42 C.F.R. §§ 498.3(b)(13)(i) and 498.3(d)(10)(i). ⁽¹⁾ 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).

Standard of Review

The standard of review on a disputed issue of law is whether the ALJ decision is clearly erroneous. The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record as a whole. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Program (at http://www.hhs.gov/dab/guidelines/); see also South Valley Health Care Center, DAB No, 1691 (1999); aff'd, South Valley Health Care Center v. HCFA, 223 F.3d 1221 (10^th Cir. 2000); Lake Cook Terrace Center, DAB No. 1745, at 6 (2000) ("it is not our role to substitute our evaluation of the evidence for that of the ALJ, but only to determine whether his factual findings are supported by substantial evidence in the record as a whole.").

Background

The State agency conducted an annual certification survey of Mountain View from June 28 to July 2, 1999, and cited Mountain View for numerous deficiencies, five of which were identified as posing immediate jeopardy. ALJ Decision at 1. The State agency surveyors notified Mountain View of their determination of immediate jeopardy on the afternoon of June 30. CMS Ex. 1, at 1 (Statement of Deficiencies). The surveyors determined that the immediate jeopardy was abated that evening when an acceptable Plan of Correction was presented by the facility and "the facility and staff demonstrated implementation." CMS Ex. 1, at 1; CMS Ex. 41, at 3. The State agency conducted a follow-up survey in September 1999 and determined that Mountain View was back in substantial compliance with all participation requirements effective September 8. ALJ Decision at 2. CMS imposed a CMP in the amount of $3,050 per day from May 25, 1999 through June 30, 1999, for 37 days of alleged immediate jeopardy, and a $500 per day CMP from July 1 through September 7, 1999. ALJ Decision at 1-2. ⁽²⁾ The total CMP for the period of immediate jeopardy amounted to $112,850.

The ALJ made 39 findings which she described as the "underlying factual findings that form the basis" for the alleged immediate jeopardy deficiencies. See ALJ Decision at 5-14. The description of facts below is presented to provide a general framework for understanding the rest of our decision and is not intended to substitute for these 39 findings.

All of the alleged deficiencies that were found to pose immediate jeopardy were based on the same set of facts, relating to three residents of Mountain View's Autumn Court unit who were diagnosed with Alzheimer's disease or dementia. ALJ Decision at 7-9. The ALJ found that during the period of immediate jeopardy between May 25 to July 1, 1999, Resident 15 engaged in aggressive behaviors. The behaviors documented in the nurses' notes included "almost knock[ing] over a female with walker and . . . hit[ting] her bottom very hard," "twisting a female['s] nose and rubbing top of male['s] bald head," and pushing a female resident's "head down while she was eating." Id. at 7. The ALJ also found that during the same period, Resident 15 displayed inappropriate behavior which, according to the nurses' notes, included sexual remarks, patting staff and resident rears, taking off his diaper, and occupying his roommate's bed while naked. Id. at 7-8. The ALJ further found that Resident 15 caused "havoc" at the facility. Id. at 8.

The ALJ found that, during the period of immediate jeopardy, Resident 14 was observed "striking out more at females; feeling several female[s'] breasts; hitting a female and grabbing a female resident, and grabbing a female resident's gown." ALJ Decision at 8. The ALJ found that Resident 14's behavior could be "offensive, anxiety producing to others, and physically painful to other residents." Id.

The ALJ found that, during the period of immediate jeopardy, the nurses' notes documented that Resident 9, who had been assessed by the facility as being persistently angry with herself and others, hit other residents on numerous occasions. ALJ Decision at 9. During the survey, Resident 9 was observed striking out at other residents three times within a 50-minute period. Id.

None of the three residents was on a behavioral management program. ALJ Decision at 7. In the Statement of Deficiencies, the state surveyors found that "the total number of incidents of resident to resident altercations which resulted in actual harm to residents were: 42 incidents for resident #9 between May 25, 1999 and June 30, 1999, 28 incidents for resident #14 between February 2, 1998 and June 30, 1999 and 17 incidents for resident #15 between January 1, 1999 and June 30, 1999." CMS Ex. 1, at 3.

The ALJ Decision

The ALJ made the following findings of fact and conclusions of law (FFCLs) relating to the immediate jeopardy deficiencies based on which the $3,050 per day CMP was imposed:⁽³⁾

A. The preponderance of the evidence is that Petitioner failed to keep its Autumn Court residents free from verbal, sexual, physical, and mental abuse as required by 42 C.F.R. § 483.13(b).

B. The preponderance of the evidence is that Petitioner failed to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of its residents as required by 42 C.F.R. § 483.13(c)(1)(i).

C. CMS proved by a preponderance of the evidence that Petitioner was not in compliance with the requirement set forth at 42 C.F.R. § 483.75 that a facility must 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 psycho social well-being of each resident.

D. CMS's assignment of immediate jeopardy to the deficiencies at Tags F 223, 224, 490 and 501 is not clearly erroneous. ⁽⁴⁾

I. The CMPs that CMS imposed were reasonable.

ALJ Decision at 15, 17-18, 20, and 26.

In addition, in a FFCL not identified by letter, the ALJ stated that "CMS failed to present a prima facie case with respect to" the deficiency cited at Tag F493 (corresponding to 42 C.F.R. § 483.75(d)(1)-(2)). ALJ Decision at 20.

The remaining FFCLs relate to the non-immediate jeopardy deficiencies, which, together with the deficiencies as to which immediate jeopardy was found to have been abated, were the basis for the $500 per day CMP. Since Mountain View did not contest this CMP, we affirm those FFCLs (E, F, G, and H, at pp. 21 and 23-25 of the ALJ Decision) without further discussion. We also affirm FFCL I to the extent that it pertains to the $500 per day CMP.

In support of FFCL D, the ALJ stated:

A finding of immediate jeopardy does not hinge on a showing of a direct causal relationship between the facility's failure and the serious injury or death of a resident. The regulations do not require any finding of actual harm to justify a determination that immediate jeopardy exists. . . .

In this case, rather than the noncompliance having no risk of serious harm as argued by Petitioner, I find that Petitioner was quite fortunate that serious harm did not occur. When one considers such incidents as Resident 15 obtaining a cigarette lighter and, of course, the number of times that a resident was hit - not swatted - by another resident, the likelihood of serious injury was palpable. Some of the Autumn Court residents were frail, lacked a sense of danger, and had an unsteady gait. . . . Resident 14 actually targeted small, frail female residents. Moreover, one must consider the likely harm of emotional damage to residents who were confronted by frequent banging on doors and alarms being set and "goosing" and other sexual overtures. Given these factors, I cannot find that CMS's assessment of immediate jeopardy was clearly erroneous.

Id. at 20-21 (citations omitted). Further, the ALJ rejected Mountain View's argument that "unless a readily apparent and tightly defined time period of immediate jeopardy exists, it cannot be imposed." Id. at 21. The ALJ stated:

The question before me is not how the State agency or CMS determined the time period to assess immediate jeopardy. The essential question is whether serious harm was likely during the time period actually determined by CMS for immediate jeopardy. The record is clear that resident-to-resident abuse occurred at approximately the same frequency both before May 25, 1999, and thereafter until June 30, 1999. Simply because CMS chose not to go back further than May 25, 1999 to assign the period of noncompliance does not mean that immediate jeopardy did not exist from May 25, 1999 through June 30, 1999. Regency Gardens Nursing Center, DAB No. [1858] (2002).

Id.

In issuing her decision upholding the CMP at the immediate jeopardy level, the ALJ relied on expert testimony provided by Dr. Linda Teri, whom the ALJ found credible, stating:

I afforded great weight to her testimony because it would be difficult to deny that this witness is one of the foremost authorities on the care of Alzheimer's patients. Tr. 301 - 06. CMS Ex. 52. She has consulted, lectured, written, and taught on the subject. Dr. Teri adamantly disagreed that Alzheimer residents need to be subjected to the bad behavior of other residents. Tr. 323.

Id. at 10. Based on Dr. Teri's testimony, the ALJ found that "Petitioner did not do all it could have or should have done to protect its residents . . . ." Id.

Mountain View's Exceptions

The Board's guidelines for appeal in these cases clearly instruct parties to identify specific disputed findings and conclusions and to explain the basis for each such challenge, including citations to evidence in the record. While Mountain View did not specifically identify its exceptions, we can infer from the arguments identified below that Mountain View excepted to FFCLs D and I (the latter only to the extent that it pertains to the $3,050 per day CMP).

Mountain View's appeal brief states:

It is reversible error to uphold CMS's declaration of immediate jeopardy in light of its failure to articulate any reasonable or rational basis for backdating the period of immediate jeopardy to May 25, 1999.

Mountain View Br. at 4.⁽⁵⁾ According to Mountain View, the ALJ "erroneously chose to reframe the issue as 'whether serious harm was likely during the time period actually determined by CMS for immediate jeopardy.'" Id., quoting ALJ Decision at 21. Mountain View contended that neither the surveyors nor the CMS official who was responsible for the determination to impose a CMP at the immediate jeopardy level as of May 25 "were able to articulate any rational basis or logical reason for choosing May 25 as the day for declaring the existence of immediate jeopardy." Id. at 5. Mountain View asserted that its due process rights were violated because it could not "defend against May 25 as the date immediate jeopardy began if CMS fails to provide any insight into why immediate jeopardy began then." Id. at 7. Mountain View cited the testimony of a State agency surveyor that the May 25 date was chosen by her program manager because she did not "want to go back to the beginning of when this happened." Id. at 5, citing Tr. at 143. Mountain View also cited the testimony of a CMS surveyor that "initially there was a question as far as May 25 also as being the start date, but eventually we agreed with that." Id. at 6, citing Tr. at 213. In addition, Mountain View cited the testimony of a CMS official, Ms. Perse, that the Statement of Deficiencies was the only survey-related document she reviewed in making the determination to impose a CMP at the immediate jeopardy level as of May 25. Id., citing Tr. at 401. According to Mountain View, Ms. Perse could not make an "informed and responsible decision regarding the imposition of a $112,850.00 penalty without reviewing any of the corresponding records or other documents." Id. Finally, Mountain View argued that not requiring CMS to articulate "standards or reasons for deciding when to declare the beginning of immediate jeopardy" casts into doubt the fairness of the whole survey process because CMS might impose CMPs at the immediate jeopardy level for different periods of time in cases involving similar circumstances. Id. at 6-7.

Mountain View's appeal raises only a legal argument that CMS was arbitrary and capricious in selecting May 25, 1999 as the beginning date of the immediate jeopardy. Mountain View did not expressly challenge the ALJ's conclusion that it failed to substantially comply with Medicare participation requirements during the period May 25 through June 30, 1999.⁽⁶⁾ Moreover, Mountain View did not explicitly argue that its noncompliance did not rise to the level of immediate jeopardy at any time during that period. To the extent that Mountain View's appeal can be viewed as challenging either the existence of noncompliance or that any noncompliance was at the immediate jeopardy level, we find that the ALJ unquestionably cited substantial evidence in the record to support her conclusions. Accordingly, we affirm FFCLs A, B, C, and D.⁽⁷⁾ However, as discussed later, we modify FFCL D to specify the period of time involved. Mountain View did not dispute that a $3,050 per day CMP, the lowest CMP amount that CMS may impose where immediate jeopardy exists, was reasonable. We therefore affirm without further discussion the part of FFCL I relating to this CMP. Finally, we affirm without further discussion the 39 FFCLs at pages 5 through 14 of the ALJ Decision.

As to the legal issue raised by Mountain View, we conclude for the reasons discussed below that CMS's exercise of discretion in selecting the May 25 beginning date and in imposing a CMP in the upper range as of this date was fully consistent with the applicable regulations.

As previously noted, section 488.430(a) authorizes the imposition of a CMP for "the number of days" a facility is not in substantial compliance with one or more participation requirements. 42 C.F.R. § 488.430(a). Furthermore, under section 488.440(a)(1), a per day CMP "may start accruing as early as the date that the facility was first out of compliance, as determined by CMS or the State." Under these regulations, CMS has discretion to impose a CMP in the appropriate range for every single day a facility is out of compliance, going as far back as the date of the last survey. North Ridge Care Center, DAB No. 1857 (2002). The Board has held that imposition of a CMP for a period beginning prior to the current survey pursuant to these regulations is not punitive, but, consistent with congressional intent, "will be an incentive in the future for [the provider] to maintain compliance" between surveys. Fairfax Nursing Home, Inc., DAB No. 1794, at 18 (2001), aff'd, 300 F.3d 835 (7^th Cir. 2002)⁽⁸⁾; see also reference to legislative history at pp. 3-4 above.

In the case now before us, the surveyors found in the course of a standard survey that Mountain View was not substantially complying with certain participation requirements and that its noncompliance posed immediate jeopardy. Although they determined that the immediate jeopardy was abated on the third day of the survey, they also determined that the noncompliance pre-dated the survey.⁽⁹⁾ Under these circumstances, CMS was permitted to impose a CMP in the upper range for every single day of noncompliance identified by the surveyors, as far back as the first day of noncompliance, because the beginning date of the CMP period, May 25, was not prior to the last standard survey.⁽¹⁰⁾ Accordingly, the imposition of a CMP in the immediate jeopardy range for the period May 25 through June 30 was clearly authorized by the regulations.

Moreover, CMS did not need to show that May 25 was the first day of noncompliance at the immediate jeopardy level in order to justify imposition of the upper range CMP beginning on this date. The plain language of section 488.440(a)(1) permits, but does not require, CMS to impose a CMP beginning on the date that the facility was first out of compliance. Thus, as the ALJ recognized and the Board has previously stated:

CMS is not under any compulsion to explain why it decides not to impose remedies on days for which it might do so. From the provision that remedies may be imposed as early as the first day of noncompliance, it follows that CMS may choose to begin any remedy at a later date.

Regency Gardens Nursing Center at 10.

Mountain View did not cite to the applicable regulations in its appeal. Instead, it relied primarily on testimony which it said showed that the State agency and CMS had no rational basis for choosing May 25 as the date on which a CMP at the immediate jeopardy level should begin. The absence of an explanation as to how the State agency or CMS chose that date to begin the CMP does not deprive Mountain View of due process, however. In a prior decision, the Board stated:

[T]he purpose of the hearing here was not to determine whether CMS followed the correct procedure in determining to impose a CMP or setting the amount of the CMP. The hearing at the ALJ level in such cases is intended to determine two fundamental questions: (1) whether a basis existed to support the imposition of the CMP under the governing statutory and regulatory authorities, and (2) whether the amount of the CMP fell within a reasonable range based on the applicable law. The ALJ resolves these issues de novo in the sense that the determination is based on the evidence as it is developed before the ALJ and not on how CMS evaluated the evidence as it stood at whatever point CMS made its assessment.

Emerald Oaks, DAB No. 1800, at 13 (2001). Thus, even if the surveyors had some question about using May 25 as the beginning date of the immediate jeopardy CMP or if CMS accepted the State agency's recommendation to impose this CMP without a thorough examination of the basis for the recommendation, the ALJ properly upheld the imposition of the CMP since she found on the record before her, and Mountain View did not dispute, that immediate jeopardy existed as of May 25. Contrary to what Mountain View argued, the surveyors' testimony indicated that there was a basis for imposing a CMP at the immediate jeopardy level for a lengthy period prior to May 25. The source of any disagreement was merely as to how far back to go. Tr. at 143, 213.

Mountain View also asserted that, absent any requirement that CMS articulate the basis for its selection of the beginning date of immediate jeopardy, CMS could impose upper range CMPs of varying lengths in cases involving similar circumstances. Mountain View did not point to any case in which a similarly situated facility had been treated differently, however. Moreover, the Board has held that allegations of disparate treatment, even if true, do not prohibit an agency of this Department from exercising its responsibility to enforce statutory requirements. National Behavioral Center, Inc., DAB No. 1760, at 4-5 (2001), and decisions cited therein. Since Mountain View did not dispute that its noncompliance posed immediate jeopardy during the entire period for which the CMP was imposed, how CMS may exercise its discretion with respect to the length of a CMP in other cases is of no legal consequence.

Accordingly, we conclude that the ALJ did not err in concluding in FFCL D that "CMS's assignment of immediate jeopardy to the deficiencies at Tags F 223, 224, 490 and 501 is not clearly erroneous." It is clear from the ALJ Decision that this FFCL refers to CMS's determination that immediate jeopardy existed during the period May 25 through June 30, 1999. However, for clarity, we modify FFCL D to specify this period. As modified, FFCL D reads:

CMS's determination that the deficiencies at Tags F 223, 224, 490 and 501 posed immediate jeopardy during the period May 25 through June 30, 1999 is not clearly erroneous.

Conclusion

For the foregoing reasons, we sustain the imposition of a $3,050 per day CMP for the period beginning May 25 and ending on June 30, 1999. In doing so, we affirm and adopt all the FFCLs made by the ALJ, except that we modify FFCL D as stated above.

Cecilia Sparks Ford

Judith A. Ballard

Donald F. Garrett
Presiding Board Member

1.We cite to the regulations as they appeared prior to their amendment in April 2000, when some of the sections were redesignated and amended in ways not relevant here.

2.CMS also denied approval of Mountain View's Nurse Aide Training and/or Competency Evaluation Program for two years pursuant to 42 C.F.R. § 483.151(b).

3.Before the ALJ, a facility must prove substantial compliance by the preponderance of the evidence, once CMS has established a prima facie case that the facility was not in substantial compliance with relevant statutory or regulatory provisions. See Cross Creek Health Care Center, DAB No. 1665 (1998), applying Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789(GEB), slip op. at 25 (D.N.J. May 13, 1999). We do not infer from statements in the ALJ Decision that CMS had proved noncompliance by a preponderance of the evidence that the ALJ was imposing the burden of proof on CMS.

4.These tags correspond to findings of deficiencies under sections 483.13(b), 483.13(c)(1)(i), 483.75, and 483.75(i).

5.The sub-headings under this caption are in the same vein. Sub-heading B reads: "CMS's decision to back date immediate jeopardy to May 25, 1999 was arbitrary and capricious." Sub-heading C reads: "CMS's decision to back date was not an informed decision." Subheading D reads: "Failing to require CMS to articulate non-arbitrary and non-capricious reasons for back dating to May 25, 1999, casts a shadow of inequity over the survey and appeal system." Mountain View Br. at 5-6. (Sub-headings A and E simply assert that the ALJ improperly reframed "the issue" and that the precedential authority cited by the ALJ does not address "the issue.") Id. at 4, 7.

6.The only reference to whether Mountain View substantially complied with the applicable requirements was made in connection with Mountain View's assertion that Ms. Perse did not make an informed decision. Mountain View further asserted that "Ms. Perse . . . could not possibly have appreciated all of the steps which were taken by petitioner, prior to the survey, that were in accordance with the standards testified to by CMS's expert, Dr. Teri." Mountain View Br. at 6. In a footnote to this statement, Mountain View stated that "Dr. Teri testified regarding the relevant standards in caring for Alzheimer's patients, and as explained infra Mountain View's staff routinely complied with all the necessary standards." Id. at 6, n.4. There is no such explanation elsewhere in Mountain View's appeal, however.

7.We take note, however, that Mountain View remarked on the fact that the ALJ referred in her findings to Mountain View's lack of compliance with the participation requirements rather than its lack of substantial compliance. Mountain View Br. at 4, n.1. Under section 488.400, there is no basis for imposition of a remedy unless a facility fails to "substantially comply" with the participation requirements. It is clear from the ALJ Decision as a whole, however, that the ALJ found that there was a failure to comply substantially.

8.In Fairfax, a ventilator dependent patient died when an employee unplugged the ventilator in December 1996. In a subsequent state survey, the facility was found deficient in implementing a protocol for monitoring ventilator dependent residents which caused the December death. The ALJ upheld an immediate jeopardy CMP from December until the state survey in April. The Board found that-

the regulations specifically permit imposition of CMPs for periods of past noncompliance since the last standard survey. This does not render the CMP punitive in nature. The threat of imposing the CMP led Fairfax to comply in this instance and the CMP will be an incentive in the future for Fairfax to maintain compliance. While some remedies may provide an incentive to correct existing deficiencies, the purpose is not so limited.

Fairfax at 18.

9.In this case, Mountain View was on notice that it had substantial behavior problems with several Alzheimer's residents many months before the state surveyors assessed the facility's compliance with Medicare conditions of participation. For example, the ALJ noted that the staff had several years to "monitor" Resident 14's behavior. ALJ Decision at 11.

10.Since the regulations require a standard survey at intervals of approximately 12 months, the standard survey prior to the survey that began on June 28 would likely have taken place significantly earlier than May 25.