Department of Health and Human Services
Appellate Division

SUBJECT: Omni Manor Nursing Home,


DATE: April 22, 2004

             - v -


Centers for Medicare & Medicaid Services


Docket No. A-04-21
Civil Remedies CR1084
Decision No. 1920


Omni Manor Nursing Home (Omni or Petitioner) appealed the September 17, 2003 decision by Administrative Law Judge Richard J. Smith (ALJ) affirming the determination by the Centers for Medicare & Medicaid Services (CMS) to impose a civil money penalty (CMP) totaling $5,750 for Omni's failure to comply substantially with Medicare participation requirements. Omni Manor Nursing Home, DAB CR1084 (2003)(ALJ Decision).

The total CMP is comprised of a $3,800 CMP for one day of noncompliance at the level of immediate jeopardy and a $650 per day CMP for three days of noncompliance that did not constitute immediate jeopardy.

The most serious issue on appeal is the immediate jeopardy finding by the Ohio Department of Health (ODH or survey agency) that Omni failed to ensure the implementation of an effective "do not resuscitate" (DNR) policy for Resident CL 1 (1) and Resident 27. As discussed below, we find that the ALJ's findings are supported by substantial evidence on the record as a whole and are free of legal error. We thus affirm the ALJ Decision in its entirety.

Legal Background

Omni is a skilled nursing facility that participates in the Medicare program. Medicare participation requirements are set forth in 42 C.F.R. Part 483. Compliance with these requirements is verified through a survey and certification process set forth in 42 C.F.R. Part 488, Subpart E. Compliance surveys are generally conducted by a state agency under agreement with CMS. Survey findings are presented in a Statement of Deficiencies (CMS 2567), (2) which identifies and discusses each alleged failure by the facility to meet a participation requirement. (3) See CMS State Operations Manual (SOM) Appendix P, § IV. Deficiency findings are identified in the CMS 2567 using data "tags" corresponding to the requirements of participation in 42 C.F.R. Part 483. Id.; SOM Appendix PP.

If a survey reveals that a facility is not in "substantial compliance" with program 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 survey agency approves the POC, the facility may not be regarded as in substantial compliance until the 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 §§ 7203.D., 7317.A.1. "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. "Noncompliance" is defined as "any deficiency that causes a facility to not be in substantial compliance." Id.

CMS enforces participation requirements, in part, by imposing remedies for a facility's failure to maintain substantial compliance. (4) See 42 C.F.R. Part 488, Subpart F. CMS selects the appropriate remedy, if any, based on the "seriousness of the deficiencies." 42 C.F.R. § 488.404(a). (5) Deficiencies are categorized by letters A-L, which is a function of their "seriousness" (severity and scope). 42 C.F.R. § 488.408; SOM § 7400E.1; SOM Appendix P, § V. A Level "J" deficiency is an isolated instance of immediate jeopardy to resident health or safety. SOM § 7400E.1 (deficiency grid). A Level G deficiency is an isolated instance of actual harm that does not rise to the level of immediate jeopardy. Id.

CMS may impose a CMP in the range of $3,050 to $10,000 per day for an immediate jeopardy deficiency. 42 C.F.R. § 488.438(a)(1)(i). CMS may impose a CMP in the range of $50 to $3,000 per day for a non-immediate jeopardy level deficiency that either causes actual harm or has the potential for more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii). The amount of the CMP is determined by the facility's history of noncompliance (including repeated deficiencies), its financial condition, the factors set forth in 42 C.F.R. § 488.404, and the facility's degree of culpability. 42 C.F.R. § 488.438(f). (6) The 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).

When an ALJ determines that CMS had a basis for imposing a CMP, the ALJ may not review CMS's exercise of discretion in selecting the CMP as a remedy. 42 C.F.R. § 488.438(e)(2). A facility may, however, appeal the state survey agency's certification of noncompliance which leads to the selection of a CMP. 42 C.F.R. § 488.408(g)(1). A facility may also appeal a CMS determination of the level of noncompliance when a successful challenge would affect either the range of CMP amounts that CMS could collect or a finding of substandard quality of care that results in loss of approval of a nurse aide training program. 42 C.F.R. §§ 498.3(b)(14), 498.3(d)(10)(ii). These appeals are governed by regulations set forth in 42 C.F.R. Part 498. 42 C.F.R. § 498.3(a)(3)(ii).

The Survey

ODH conducted a standard survey at Omni from May 14-17, 2001 and an extended survey from May 17-18. CMS Ex. 22, at 7; CMS Ex. 1, at 1. As a result, ODH cited Omni for multiple deficiencies, the most serious being an isolated deficiency of immediate jeopardy at Level J: F-Tag 281 (resident assessment). CMS Ex. 1, at 1; CMS Ex. 8, at 31-35. ODH also cited Omni for two deficiencies at Level G (F-Tags 280 and 490), four at Level E (F-Tags 156, 241, 248, 250), and five at Level D (F-Tags 221, 225, 315, 323, 324). See CMS Ex. 8.

On May 31, 2001, ODH advised Omni that it would recommend certain remedies for the deficiencies, including a CMP of $3,800 daily effective May 18, 2001. CMS Ex. 1, at 1. On June 11, CMS advised Omni that the immediate jeopardy had abated on May 18, but that Omni remained out of substantial compliance with other program requirements; the CMP was therefore reduced from $3,800 to $650, effective May 19. CMS Ex. 2, at 1. ODH conducted a revisit survey on June 5 and found Omni in substantial compliance effective May 22. CMS Ex. 3, at 1. On July 30, CMS imposed a total CMP in the amount of $5,750, representing a CMP of $3,800 for May 18 and a reduced CMP of $650 per day for May 19-21. Id. at 2.

The ALJ Decision

The ALJ Decision contains seven numbered Findings of Fact and Conclusions of Law (FFCLs) under Section V. ALJ Decision at 4-17. In FFCL 1, the ALJ upheld CMS's findings under F-Tag 281 of isolated noncompliance at the immediate jeopardy level (Level J). In his discussion, he focused on the DNR status of Residents CL 1 and 27. Id. at 4-12. (7) In FFCLs 2 and 3, the ALJ upheld CMS's findings under F-Tags 280 and 490 of isolated noncompliance at the level of actual harm that is not immediate jeopardy (Level G), also concerning the DNR status of Residents CL 1 and 27. Id. at 12-14. In FFCLs 4 and 5, the ALJ upheld CMS's findings under F-Tags 323 and 324 of isolated noncompliance at the level of the potential for more than minimal harm (Level D) regarding the facility's obligations in accident prevention. Id. at 14-16. In FFCL 6, the ALJ stated that Omni had taken immediate and thorough steps to respond to allegations of resident abuse. Id. at 16-17. In FFCL 7, the ALJ upheld the total CMP as reasonable. Id. at 17. The ALJ did not address seven deficiencies listed in the CMS 2567. (8)


Omni's Request for Review (Request for Review or RR) (9) raises numerous legal and factual issues. Omni first argued that allocating the burden of proof to Omni by a preponderance of the evidence, under Hillman Rehabilitation Center, DAB No. 1611 (1997) (Hillman), aff'd, Hillman Rehabilitation Center v. U.S., No. 98-3789, slip op. (GEB)(D.N.J. May 13, 1999), conflicts with the Administrative Procedure Act (APA) and cited case law. RR at 3-5. Omni also argued that the Hillman standard should have been promulgated pursuant to rulemaking procedures set forth in the APA and that section 205(a) of the Social Security Act (Act) also required publication of a rule on burden of proof. RR at 5-7. Omni further raised several general objections to the FFCLs, alleging that the ALJ selectively reviewed records and testimony, imposed an inappropriate standard of care, and accorded undue weight to the testimony of Omni witnesses. Id. at 7-8. Omni then excepted to FFCLs 1-5 and 7. (10) Id. at 8-17. Omni concluded by arguing that multiple evidentiary rulings were prejudicial to Omni and deprived it of a fair hearing consistent with due process. Id. at 17-21.

Standard of Review

The standard of review on a disputed conclusion of law is whether the decision is erroneous. The standard of review on a disputed finding of fact is whether the ALJ's finding is supported by substantial evidence in the record. Guidelines -- Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs (Guidelines)(at; South Valley Health Care Center, DAB No. 1691, at 2 (1999), aff'd, South Valley Health Care Center v. HCFA, 223 F.3d 1221 (10th Cir. 2000).

Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Under the substantial evidence standard, the reviewer must examine the record as a whole and take into account whatever in the record fairly detracts from the weight of the decision below. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). The reviewer does not, however, reweigh the evidence nor substitute his or her judgment for that of the initial decision-maker. Casias v. Secretary of Health & Human Services, 933 F.2d 799, 800 (10th Cir. 1991). Thus, the reviewer must not displace a "choice between two fairly conflicting views," even though a different choice could justifiably have been made if the matter had been before the reviewer de novo. Universal Camera, 340 U.S. at 488. The reviewer must, however, set aside the initial conclusions when he or she "cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the [initial decision-maker's] view." Id. In addition, the Board has held that an ALJ need not "cite to everything in the record which supports" the findings, but that the "evidence that the ALJ does cite must support the findings made." Reconsideration of Wesley Hal Livingston and Shoals Medical Equipment and Supply Co., Inc., DAB No. 1406, at 3 (1993).


We first discuss Omni's challenges concerning the Board's holding in Hillman and the allocation of the burden of proof in CMP cases. We next discuss Omni's multiple challenges to evidentiary rulings. We continue by discussing whether substantial evidence and applicable law supports the ALJ's determinations in FFCLs 1-5. We conclude by discussing whether the amount of the CMP is reasonable, as found in FFCL 7.

1. Omni's exceptions to Hillman and to the ALJ's allocation of the burden of proof, as well as its general objections, are unfounded.

The ALJ allocated the "ultimate burden of persuasion" to Omni by a preponderance of the evidence. ALJ Decision at 3 (citations omitted). In doing so, he relied on multiple Board precedents, including the Board's Hillman decision.

On appeal, Omni generally asserted that Hillman was wrongly decided, that CMS bore the burden of proving that the facility was not in substantial compliance with program requirements, and that the Board's conclusions in Hillman contravene APA notice and comment rulemaking requirements and provisions of the Social Security Act. RR at 3-7. Omni also raised several general objections concerning the ALJ's reliance on purportedly selective documentary and testimonial evidence and his imposition of a higher standard of care than required by statute. Id. at 7-8.

Counsel for Omni has raised exactly the same issues in prior cases before the Board, using exactly the same contentions in the instant and previous requests for review. We have previously rejected these arguments for reasons fully set forth in those cases, which we need not repeat here. Instead, we affirm the ALJ's allocation of the burden of proof and fully incorporate by reference our prior holdings and the underlying analyses on these arguments, in cases which, like this one, involved imposition of a CMP. Batavia Nursing and Convalescent Center, DAB No. 1904, at 8-21, 24-27 (2004)(Batavia I); Batavia Nursing and Convalescent Inn, DAB No. 1911, at 8-22, 24-27 (2004)(Batavia II).

Omni also argued that the ALJ erred by finding that Omni failed to address "conflicting information" in the records of Residents CL 1 and 27. RR at 12. According to Omni, "[i]f there was conflicting information, under the prima facie standard the decision must be for Omni Manor. But here the ALJ improperly applied the burden of proof standard and held Omni Manor to the standard to be applied to CMS." Id. While unclear, this assertion appears to be another Hillman challenge, implying that Omni does not bear the burden of ultimate persuasion when evidence is evenly balanced (or, as stated in Hillman, when evidence is "in equipoise"). (11) We have previously explained, however, that a provider who argues that evidence is evenly balanced loses as a matter of law on the issue of substantial compliance.

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 susain the conclusion that Meadow Wood failed to prove substantial compliance.

Meadow Wood Nursing Home, DAB No. 1841, at 6-7 (2002), aff'd, Meadow Wood Nursing Home v. Dept. of Health and Human Services, No. 02-4115 (6th Cir. Mar. 2, 2004).

Thus, if Omni's position is that evidence is in equipoise on this issue, Omni has conceded its case. In any event, as explained below, we conclude that the evidence is not in equipoise and that Omni has failed to meet its burden to show by a preponderance of the evidence that it was in substantial compliance with applicable program requirements.

2. The ALJ's evidentiary rulings are not erroneous.

During the hearing, counsel for Omni raised numerous objections to documentary and testimonial evidence offered by CMS. RR at 17-21. The ALJ largely admitted the proffered evidence into the record, overruling counsel's objections. The ALJ explained the standard for admissibility as follows:

You both know that the federal rules of evidence don't control here. They are a good guide. They are the product of an awful lot of thought and wisdom but some places they are not meant to apply and administrative hearings are one of them.

I remind you that we don't have juries present and that part of my job is to sort out the weight to be accorded evidence. So I know that you will, from time to time, find things to object. Don't be surprised if my inclination seems to be to admit the document and then later, in my deliberations, decide how much weight to accord it.

Tr. at 8.

The ALJ rejected Omni's objections to his evidentiary rulings in its post-hearing brief "for the reasons stated at the time." ALJ Decision at 2, n.3. The ALJ also made the following finding regarding the credibility of testimony by ODH surveyors:

Despite Petitioner's allusions to the inexperience or ineptitude of the surveyors with regard to their credibility (see P. Reply Br. at 6), I found the testimony of these surveyors to be credible. Below, I rely on the testimony of these professionally credentialed individuals and their survey findings where such testimony and survey findings are consistent with the regulations, their professional expertise as surveyors, and the documentary evidence of record.

ALJ Decision at 2, n.1.

On appeal, Omni argued the prejudicial nature of the ALJ's evidentiary rulings, which (according to Omni) "singularly caused prejudice to Omni Manor and as a group denied Omni Manor a fair hearing." RR at 17. Citing multiple examples, Omni generally asserted that (i) the ALJ improperly allowed state surveyors to provide opinion testimony beyond the scope of their experience and respective professional licenses; (12) and (ii) the ALJ improperly admitted testimonial and documentary evidence in violation of certain Federal Rules of Evidence (FRE). We discuss below the regulatory framework for surveyor qualifications, evidentiary objections raised by Omni as to each surveyor, and Board decisions concerning hearsay evidence.

a. Omni's challenges to surveyor testimony are unpersuasive.

Surveys of long term care facilities "must be conducted by a multidisciplinary team of professionals, which must include a registered nurse." 42 C.F.R. § 488.314(a)(1). Professionals who may be on such a survey team include physicians, nurse practitioners, dieticians, engineers, or social workers. 42 C.F.R. § 488.314(a)(2). The state (with CMS approval) determines what constitutes a survey team professional. 42 C.F.R. § 488.314(a)(3). "Surveyors are professionals who use their judgment, in concert with Federal forms and procedures, to determine compliance." 42 C.F.R. § 488.26(c)(3). The state survey agency must use "methods, procedures, and forms that are prescribed by [CMS]." 42 C.F.R. § 488.26(d). The use of federal procedures "ensure[s] uniform and consistent application and interpretation of Federal requirements." 42 C.F.R. § 488.26(c)(4). The use of federal forms "ensure[s] proper recording of findings and [documentation of] the basis for the findings." 42 C.F.R. § 488.26(c)(5).

CMS must provide "comprehensive training" to surveyors. 42 C.F.R. § 488.314(b). This training must include "(1) Application and interpretation of regulations for SNFs and NFs. (2) Techniques and survey procedures for conducting standard and extended surveys. (3) Techniques for auditing resident assessments and plans of care." Id. With limited exceptions, an individual may not serve as a surveyor until he or she has completed such training. 42 C.F.R. § 488.314(c). A deficiency documented on a CMS 2567 constitutes not the opinion of an individual surveyor, but "the collective determination by the . . . survey team that the facts reported evidenced a deficiency . . . ." Beechwood Sanitarium, DAB No. 1906, at 41 (2004). With this as background, we now turn to Omni's challenges to testimony by individual ODH surveyors.

Surveyor Kuhns

Omni first maintained that Surveyor Kuhns was improperly permitted to testify concerning the "standard of practice" for documentation of "do not resuscitate" status in long term care facility records. RR at 17. Omni did not contest, however, that Ms. Kuhns received her registered nurse degree (with honors) in 1992, worked as a nurse from 1992 through 1999, served as an ODH surveyor since 1999, and, as an ODH surveyor, has conducted approximately 120 surveys of long term care or assisted living facilities each year. Tr. at 31-33; CMS Ex. 17, at 4. We find that the ALJ could reasonably admit and rely upon Ms. Kuhns' testimony. We reject Omni's argument that the ALJ unfairly prejudiced Omni's case by receiving testimony from Ms. Kuhns since we conclude that she testified as to a matter of which she presumably had knowledge by virtue of her education, training, and experience.

Omni next objected to what it characterized as Ms. Kuhns' improper definition of "no heroic measures" and asserted that her understanding of "comfort care" was inconsistent with Ohio law. RR at 18, citing Ohio Revised Code (O.R.C.) § 2133.01(C).

Ms. Kuhns testified that "the last line of [a] progress note" which appears to state "on comfort care" was insufficient to designate the resident as DNR under facility policy. Tr. at 60-61. (13) According to Ms. Kuhns, facility staff had advised her that the physician had to specify in a progress note that the resident was DNR. Id. at 61. She then stated that the referenced note "doesn't say DNR and it doesn't, as I said before, it doesn't tell me what comfort care means. I'm not sure what that means and I don't know if anyone can determine what that means." Id. Ms. Kuhns further testified to the absence of a "corresponding physician's order" or any other documentation in the chart as to the resident's DNR status. Id.

Omni misses the point. First, Ms. Kuhns' testimony was not proffered as expert testimony on legal conclusions, but instead as the opinion of a state surveyor trained pursuant to federal requirements, with relevant educational background and significant work experience, and direct and relevant knowledge of the instant survey process and deficiency findings. Tr. at 31-33. The ALJ properly received her testimony and weighed it accordingly. Second, Ms. Kuhns' testimony centered not on the term "comfort care" as a term of art, but as it related to the facility's policy that DNR status had to be reflected in the resident's clinical record by both a progress note and a physician's order. Her testimony in its entirety reasonably suggests that the term "comfort care" alone is insufficient to satisfy that policy. Third, Omni's argument is in effect that Ms. Kuhns' inability to state what "comfort care" in the progress note meant renders her not credible as a witness. The ALJ expressly found the testimony of all ODH surveyors to be credible. ALJ Decision at 2, n.1. As we have long held, in questions of witness credibility, we generally defer to the findings of the ALJ. Meadow Wood Nursing Home at 8, quoting South Valley Health Care Center at 22 and citing Woodstock Care Center, DAB No. 1726, at 8-9 (2000)("we must abide by that determination absent a compelling reason not to"). Omni has presented no compelling reason why we should not abide by the ALJ's credibility determination here. By saying that she did not know what was meant by "comfort care" as expressed in the context of the January 14th progress note, Ms. Kuhns was not necessarily indicating that she was not familiar with Ohio law. Omni presented no testimony or evidence that a notation for "comfort care" in a clinical record is the functional equivalent of an order of DNR or "no CPR" under state law or facility policy, and the following support a conclusion that it is not:

    •Ohio's "Modified Uniform Rights of the Terminally Ill Act and the DNR Identification and Do-Not-Resuscitate Order Law" defines a "Do-not-resuscitate order" as "a directive issued by a physician that identifies a person and specifies that CPR should not be administered to the person so identified." O.R.C. § 2133.21(D). A reference to the term "comfort care" in a progress note, standing alone, does not satisfy the requirements of this definition.

    •The provision of Ohio law upon which Omni relied defines comfort care as being nutrition, hydration, or "[a]ny other medical or nursing procedure, treatment, intervention, or other measure" used to "diminish the pain or discomfort" of the patient, "but not to postpone the declarant's or other patient's death." O.R.C. § 2133.01(C). The provision does not, however, specify the particular comfort care, or any combination of comfort care, that will be provided to any particular patient.

    •Social services notes for Resident 218, dated May 4, 2001 state: "Keith wants 'R' to be a No CPR and facility policy is explained to he and Jack today. He will call Dr. Dickstein and request 'R' be No CPR. We will await order." CMS Ex. 13, at 65 (emphasis supplied). A follow-up entry on May 9th states, in part: "called Keith . . . re: Dr's order/progress note re: no CPR. We have not yet received. Reminded him to call physician and request if he has not yet done so." Id. (emphasis supplied). These notes are entirely consistent with Ms. Kuhns' testimony that facility policy requires that a resident's DNR status be documented in a physician's progress note and a physician's order through something more than a reference to "comfort care."

    •The record contains a "DNR Identification Form" with caption "DNR Comfort Care," in which the physician certifies to the resident's DNR comfort care status. Id. at 40. This form, signed by a facility physician in what appears to be 1999, contains a paragraph in which the physician checks a "Do-Not-Resuscitate Order," which references a DNR protocol on the reverse side. Id.

Omni also argued that the ALJ improperly admitted CMS Exhibit 22, a document prepared in part by Ms. Kuhns, although it contained "compound hearsay." RR at 18, citing Tr. at 85-86. Ms. Kuhns testified that she prepared one page of CMS Exhibit 22, which is a federal form titled "Extended/Partial Extended Survey Worksheet" (Form HCFA-673). Tr. at 84, citing CMS Ex. 22, at 7. Her notes reflect the wishes of Resident 27 or a family member upon admission to be considered DNR because of a terminal condition. Her notes also reflect what appear to be statements by facility staff that, contrary to the resident's stated wishes, the staff considered the resident "a full code." CMS Ex. 22, at 7; Tr. at 85.

Omni's argument is unconvincing. First, Omni pointed to no statement in that document which it deemed to be hearsay, and it pointed to nothing in the ALJ Decision which would indicate that the ALJ relied upon any such statement. Second, Omni did not dispute that Resident 27 wished to be a DNR upon admission or that the facility staff made statements to the surveyor that the resident would be treated as a full code. (14) Third, in the context of an objection to admissibility, we have allowed that statements by facility staff to a surveyor against the facility's interest bear sufficient indicia of reliability, as being analogous to "admission[s] by a party exempt from the definition of hearsay" under FRE 801(d)(2). Carehouse Convalescent Hosp., DAB No. 1799, at 46-47, n.20 (2001). We find that Ms. Kuhns' notes are consistent with the record as a whole and reflect sufficient indicia of reliability to preclude exclusion from evidence. We discuss Omni's other objections to hearsay evidence later in this decision.

Omni finally asserted that the remainder of Ms. Kuhns' testimony was improper, as it pertained to how facts "constitute deficiencies under all other tags." RR at 19. Omni argued that Ms. Kuhns' testimony should have been rejected as she was untrained "in the practice of medicine or law." Id., citing Tr. at 101. As noted above, the regulations define a surveyor as a professional who uses his or her judgment, consistent with federal forms and procedures, to determine the "compliance" of a facility with participation requirements. CMS requires that surveyors document their observations and findings on federal forms in order "to make deficiency determinations" and to assess scope and severity. SOM Appendix P, Task 5, at P-24. Thus, we find that Ms. Kuhns' testimony on how underlying facts constitute program deficiencies is consistent not only with her experience, but also with the mandate of federal statutes, regulations, and manuals concerning her job. As previously discussed, we affirm the ALJ's determination that Ms. Kuhns testified credibly.

Surveyor DeLuco

Omni maintained that the ALJ improperly allowed Ms. DeLuco, a dietician, to testify about social services, asserting that the testimony was "outside the scope of her license." RR at 19. The ALJ overruled Omni's objection, stating that Ms. DeLuco had been "trained . . . in the conduct of surveys." Tr. at 154. Ms. DeLuco's resume reflects that she had been a healthcare facility surveyor for ODH for approximately ten years at the time of the survey. CMS Ex. 17, at 1-2. She also testified that she began training in July 1991 with "very skilled [ODH] surveyors" and was also trained and tested as a surveyor by CMS in 1992. Tr. at 135-36. Ms. DeLuco further testified that in her 11 years as an ODH surveyor, she surveyed approximately 72 facilities a year, 90 percent of which were long term care facilities. Tr. at 136. We conclude that the ALJ correctly found that her training and experience provided more than ample foundation for her testimony and that there was no error in the weight accorded her testimony by the ALJ.

Surveyor Kostelic

Omni objected that Ms. Kostelic was improperly permitted to testify concerning "what was treatable in dementia care for a patient." RR at 19, citing Tr. at 267, et seq. Ms. Kostelic testified that a facility could plan care and provide interventions for a demented patient who exhibited unrealistic fears, including reassurance and diversional activities. Tr. at 268. The ALJ had asked CMS to "lay a foundation" prior to this testimony. Tr. at 267. Ms. Kostelic then testified that she had "several years experience working with the Alzheimer type dementia, and other types of dementia, schizophrenic, bi-polar, those types of resident." Id. The ALJ concluded that CMS had established "an adequate foundation" for Ms. Kostelic's testimony and declined to allow Omni counsel the opportunity for voir dire examination. Tr. at 267-68. We find that the ALJ could reasonably have admitted Ms. Kostelic's testimony on this point as relevant, that there is no error in his weighing that testimony, and that Omni had ample opportunity, when it questioned the witness, to examine her on her qualifications.

Surveyor Costa

Omni argued that the ALJ improperly denied its counsel's request to review handwritten notes that Ms. Costa prepared prior to her testimony and consulted on the stand. RR at 20. Omni maintained that it sought the notes for possible impeachment purposes pursuant to FRE 612. Id. FRE 612 is entitled "Writing Used to Refresh Memory."

As we explain below, Federal Rules of Evidence do not govern evidentiary questions in this administrative hearing. Further, the ALJ noted that Ms. Costa consulted her notes while on the stand only to clarify a discrete point about her educational background. Tr. at 332. Moreover, even if FRE 612 provided guidance in this instance, the decision to make a document available to the adverse party is within the court's discretion if "necessary in the interests of justice . . . ." FRE 612. We find that the ALJ's ruling on this point was not fundamentally unfair nor prejudicial to Omni's ability to cross-examine Ms. Costa on the substance of her testimony.

b. Omni's hearsay challenges are unfounded and inconsistent with Board precedent.

"[E]vidence that is inadmissible under the Federal Rules of Evidence may be received in a Part 498 hearing." Fairfax Nursing Home, DAB No. 1794, at 9 (2001), citing 42 C.F.R. § 498.61. The Board has recognized that "hearsay is admissible and may be accorded appropriate weight, if supported by adequate indicia of reliability, in accordance with our prior decisions and the case law." Pacific Regency Arvin, DAB No. 1823, at 15, n.6 (2002), citing Carehouse (passim); Narendra M. Patel, M.D., DAB No. 1736, at n.9 (2000). The Supreme Court has recognized that hearsay is admissible in administrative proceedings "up to the point of relevance," so long as consistent with procedural "integrity and fundamental fairness." Richardson v. Perales, 402 U.S. 389, 410 (1971)(subpoena power and cross-examination available to corroborate proffer).

The question then is not whether various levels of hearsay may be admitted into evidence in this administrative hearing (they may be, subject to relevance and fundamental fairness), but what weight the ALJ should accord hearsay so admitted. That weight is determined by the degree of reliability, based on relevant indicia of reliability and whether the hearsay is corroborated by other evidence in the record as a whole. A survey of our prior decisions reflects this principle.

In Carehouse, we affirmed "the ALJ's decision rejecting [CMS] deficiency findings based solely on hearsay . . . ." Carehouse at 32 (emphasis supplied). The ALJ had deemed the hearsay evidence "highly unreliable and of no probative value, principally because there was no way to test either the accuracy or the credibility of statements attributed to residents or their family members . . . ." Id. We found no error in the "ALJ's determination to disregard proffered hearsay because he found that it lacked reliability [or his] rejecting unsubstantiated hearsay as the sole basis for sustaining the deficiency finding." Id. at 33 (emphasis supplied). These conclusions reflect questions of weight, not admissibility.

Similarly, in Pacific Regency Arvin, the CMS 2567 reflected separate interviews with and specific statements by the same resident as a component of CMS's prima facie case. DAB 1823, at 13. The ALJ rejected this evidence as "unpersuasive," since the statements were "unverified hearsay" and because the facility had also presented sufficient rebuttal evidence. Id. In reversing the ALJ, we concluded that the statements were corroborated by the surveyor's testimony about what the resident had said to the surveyor and also by certain documents in the record. Id. at 15. We also noted that the facility had not exercised its option to present "staff witnesses with first-hand knowledge of the events" to contradict written records. Id. at 15, n.7. We therefore concluded that CMS had in fact established a prima facie case, using, in part, the resident's statements as reflected in the CMS 2567. We reached this conclusion after "[c]onsidering the information on the face of the 2567, as well as the surveyor's confirmatory testimony about what the resident told her and how she followed up on the resident's complaints, and the documents discussed." Id. at 15.

Thus, as to hearsay evidence, our precedent does not require reversal of an ALJ's findings simply because they rely on hearsay evidence. Instead, our decisions call for determining whether admitted hearsay is accompanied by sufficient indicia of reliability to constitute substantial evidence that supports an ALJ's findings. (15) We see nothing in Omni's arguments which warrants overturning the ALJ's hearsay rulings. (16)

3. The ALJ's findings concerning Omni's deficiencies (FFCLs 1-5) and the reasonableness of the CMP (FFCL 7) are supported by substantial evidence and consistent with applicable law.

Having rejected Omni's burden of proof and evidentiary challenges, we now turn to its specific challenges. In reviewing the FFCLs, our discussion first sets forth the applicable requirement. We then summarize the ALJ's findings, followed by Omni's contentions. We then analyze whether the ALJ's findings are supported by substantial evidence in the record as a whole.

1. As of the survey ending on May 18, 2001, Petitioner was out of compliance with the participation requirement at 42 C.F.R. § 483.20(k)(3)(i) (F Tag 281 on the statement of deficiencies dated May 18, 2001) at the immediate jeopardy level.

A facility's obligations regarding services provided under a comprehensive care plan (pursuant to a resident assessment) are set forth in 42 C.F.R. § 483.20(k)(3)(i), which provides that "[t]he services provided or arranged by the facility must - (i) Meet professional standards of quality . . . ."

The ALJ Decision addresses Residents CL 1 and 27 and quotes the lengthy factual recitation in the CMS 2567. ALJ Decision at 4-12, quoting CMS Ex. 8, at 31-35. The following summary of background information is drawn from the ALJ Decision and the record before the ALJ. It is intended to provide a general framework for understanding the ALJ Decision and is not a substitute for the ALJ's findings.

Resident CL 1

Resident CL 1 had been an Omni resident since January 1998. Admission documents indicate that she had no durable power of attorney and no advance directive. The resident was thus considered a full code and would receive CPR if needed. CMS Ex. 8, at 32.

Resident CL 1 was hospitalized on March 4, 2001, and was transferred back to the facility on March 14. Her hospital transfer form of the same date listed her as DNR. A March 19 resident assessment reflected on a Minimum Data Set 2.0 (MDS) form, however, stated that the resident had no advance directives. Id.

On April 10, 2001, nursing notes dated 5:30 AM reflect that after a shower, the resident lost blood pressure and pulse and had labored breathing. The physician was contacted and ordered that the resident be taken to the emergency room. The resident continued to deteriorate, and an oxygen saturation test was performed. A 5:45 AM nursing note indicated that respirations had ceased. The physician was contacted and ordered the body released to the funeral home. At 6:00 AM, the resident's son was notified of her death. Id. at 32-33.

On May 16, 2001, Omni's Director of Nursing (DON) questioned the nurse on duty at the time of Resident CL 1's death. The nurse stated that when Resident CL 1 became non-responsive, the nurse "saw the hospital transfer form dated 3/14/01, when looking through the chart and thus decided not to initiate CPR. Therefore, the EMS squad was never called." Id. at 33. The DON advised the surveyor that the facility's procedure regarding resuscitation status required the following: "There must be a progress note from the physician indicating he has discussed the issue of no cardio-pulmonary resuscitation (CPR) with the family or resident, and a physician's order must be written for no CPR." Id. The DON also indicated that when a resident is found nonresponsive, "the nurse must look in the chart under the physician's orders or in the legal documents section for CPR instructions or advanced directives." Id. at 33-34.

Surveyor interviews with staff nurses indicated that they would review either preprinted physician orders or the legal documents section of the resident's chart before beginning CPR or calling 911. The surveyor's review of Resident CL 1's chart revealed no physician's progress note or physician's order for "no CPR."

The head of Omni's social services department stated to the surveyors that facility policy requires discussing advance directives upon the resident's admission and in the event of the resident's physical deterioration. Policy "regarding resident self-determination for advance directives" also requires the performance of "life sustaining procedures such as CPR in the event of a resident's sudden death." The facility is to "honor a physician's order for a resident at the end stage of life to die peacefully and as painlessly as possible." Id. at 34. The CMS 2567 concludes that "the facility did not follow their protocol regarding advance directives. There was no physician's order or progress note in place for no CPR. This resident should have received CPR when found unresponsive." Id. at 34-35.

Resident 27

The surveyor's review of Resident 27's record revealed hospital transfer orders, dated March 29, 2001, in the "miscellaneous" section. Those orders designated Resident 27's CPR status as "DNR-CCA." Physician notes upon admission were located in the chart's "progress notes section" and also indicated that the resident and family requested DNR status. CMS Ex. 8, at 35.

The CMS 2567 reflects that "[t]he interdisciplinary team failed to ensure the communication of requested services and did not obtain the needed orders required by the facility's policy and procedure. No physician's order had been written for withholding CPR." When asked about Resident 27's DNR status, "two nurses working on that unit . . . flipped to the physician's order section and indicated that the resident would receive CPR. The two nurses were unaware of the physician's progress note for no CPR." Id. (emphasis supplied).

ALJ Decision

The ALJ found that based upon "the credible testimony of the surveyors" and other evidence of record, CMS asserted that the standard of practice required the facility "to determine a resident's resuscitation status promptly upon admission and re-admission and to have a system in place to clearly communicate the status of the resident to all staff." ALJ Decision at 7, citing Tr. at 41, 45-46, 152; CMS Ex. 49, at 5. The ALJ noted CMS's citation to an article from the December 1998 edition of the "Geriatric Nursing" journal. Id. at 7-8, citing CMS Ex. 49, at 5. The article points out "the need for clear, unequivocal, and rapid determination of a resident's preference regarding resuscitation." Id. at 7. The ALJ also reviewed surveyor testimony that the standard of practice required Omni to promptly discuss, with both the treating physician and the resident, any conflicting information in the record concerning resuscitation status. Id. at 8, citing Tr. at 206, 342, 306.

The ALJ then summarized the applicable standard as being "a mechanism" that would "facilitate immediate identification of a resident's resuscitation status in order to determine whether to initiate CPR or not" in emergency circumstances. Id. The ALJ concluded that this standard was both reasonable and unrebutted. The ALJ supported his conclusion by noting two changes taken by Omni after the survey: "requiring all physician orders contained on hospital transfer sheets (including DNR status) be incorporated into physician orders and reviewed with the physician upon readmission and putting a sticker system in place to easily identify residents with DNR orders." Id. (citations omitted).

The ALJ noted that "Petitioner generally objects to CMS's assertions regarding this standard, but does not present any evidence contesting whether or not the standard is correct." Id. at 7. The ALJ also noted that to affirm the deficiency, he did not need to make findings on whether Omni staff falsified certain facility records after the survey. Id. at 8. He determined that the evidence of record showed that at both the time of the survey and when a DNR decision needed to be made, surveyors and facility staff alike were unable to find DNR documentation. Id. at 8-9.

The ALJ then reviewed record evidence pertaining to Residents CL 1 and 27. ALJ Decision at 9-12, citing CMS Ex. 19 and transcript, passim (Resident CL 1) and CMS Ex. 22, P. Ex. 1, at 8-9 (handwritten notes), and transcript, passim (Resident 27). After this review, the ALJ found as follows:

In looking at the facts surrounding Residents CL 1 and 27, I find that: for Resident CL 1, no resuscitation was attempted even though the resident should have been treated as full code under facility policy; and, for Resident 27, the resident's family had requested DNR status, but the facility failed to implement the order in a way that nursing staff would recognize and, thus, staff believed the resident to be a full code at the time of the survey. . . . CMS has determined that an immediate jeopardy situation existed based on these facts. I must uphold CMS's determination as to the level of noncompliance unless I find it to be clearly erroneous. 42 C.F.R. § 498.60(c)(2).

I do not find CMS's determination to be clearly erroneous here. By not adequately documenting these patients' DNR status, Petitioner failed to give CPR when it should have and could have erroneously attempted to revive an individual who did not wish to have CPR performed. I can think of no more serious deficiency - literally a deficiency involving life and death.

ALJ Decision at 12.

On appeal, Omni asserted numerous grounds for error. We have disposed of the majority of these exceptions in our previous discussion. The remaining issues are: (1) whether substantial evidence supports the ALJ's finding regarding the standard of practice; (2) whether the ALJ's determination not to make a finding on F-Tag 156 requires a finding in Omni's favor on F-Tag 281 (the immediate jeopardy citation at issue); and (3) whether substantial evidence supports the ALJ's finding that facility records did not accurately reflect the DNR status of Residents CL 1 and 27.

a. The ALJ's finding regarding the standard of practice is supported by substantial evidence.

As stated above, the ALJ determined that the appropriate "standard of practice is that in emergency situations where the facility would have to make a decision about a resident's DNR status, the facility must have a mechanism in place to facilitate immediate identification of a resident's resuscitation status in order to determine whether to attempt CPR or not." ALJ Decision at 8.

Omni argued that the contents of the "Geriatric Nursing" article "cannot set a standard of practice" because it was not offered into evidence, "was not enacted as a rule and fails to consider the effect and application of state law." RR at 8.

We first note that the article is marked as CMS Exhibit 49. The ALJ admitted CMS Exs. 1-50 without objection at the hearing. Tr. at 18. We thus find no basis for Omni's suggestion that the article was not offered into evidence.

The SOM provides that "'professional standards of quality' means services that are provided according to accepted standards of clinical practice." SOM, Appendix PP, at PP-82.4. The SOM then provides that "[p]ossible reference sources for [these] standards of practice include . . . [c]urrent professional journal articles." Id. We find that the "Geriatric Nursing" article constitutes a "current professional article" for purposes of the SOM provision and was thus appropriately considered by the ALJ in determining the applicable professional standard of quality in this case.

Omni also quoted section 1871(a)(2) of the Social Security Act as requiring that the "standard of practice" be promulgated by the Secretary (Secretary) of the Department of Health and Human Services (HHS). RR at 9. This statutory provision states:

No rule, requirement, or other statement of policy . . . that establishes or changes a substantive legal standard governing the scope of benefits, the payment for services, or the eligibility of individuals, entities, or organizations to furnish or receive services or benefits under this title shall take effect unless it is promulgated by the Secretary by regulation . . . .

Omni's argument, however, ignores that the Secretary already promulgated the applicable "rule, requirement or other statement of policy" in the form of the regulatory requirement at issue, 42 C.F.R. § 483.20(k)(3)(i). Indeed, that regulatory section merely reflects the statutory requirement that the "services provided or arranged by the facility must meet professional standards of quality." Compare 42 C.F.R. § 483.20(k)(3)(i) with section 1819(b)(4)(A) of the Act.

We thus reject Omni's reading of section 1871(a)(2) as being that an accepted standard of clinical practice must first be specified in a regulation before it may be considered by an ALJ. Requiring this would undercut Congressional intent to ensure quality of care in nursing facilities, since professional standards may change over time. Such changes in professional standards, however, do not change the applicable legal standard, set by statute, that requires that services meet professional standards of quality. (17)

Omni also contended that the "Geriatric Nursing" article itself "was not adopted by any witness at the hearing, let alone as a learned treatise to corroborate or impeach an expert." Reply Br. at 7, citing FRE 702-705, 803(18). (18) The cited provisions concern, respectively: Testimony by Experts (Rule 702); Bases of Opinion Testimony by Experts (Rule 703); Opinion on Ultimate Issue (Rule 704); Disclosure of Facts or Data Underlying Expert Opinion (Rule 705); and Hearsay Exceptions; Availability of Declarant Immaterial - Learned Treatises (Rule 803(18)). As we have discussed, the Federal Rules of Evidence do not govern admissibility of evidence in the ALJ hearing. Thus, the mere fact that the article was not admitted into evidence consistent with the dictates of these rules does not preclude the ALJ's reasonable reliance upon it as an independent piece of evidence.

Omni also objected that the ALJ "takes Omni Manor to task for contesting CMS's asserted standard of practice in this regard without offering proof of what the standard is . . . ." RR at 8, citing ALJ Decision at 7. Omni then made multiple references to state law concerning durable powers of attorney, living wills, and DNR as being the source of the appropriate standard of practice. RR at 9-10, citing 42 C.F.R. §§ 483.10(b)(8), 489.100, et seq. Omni maintained that "the regulations specifically require the use of state law on advance directives." Id.

The ALJ noted that, while Omni had argued that Ohio law governs, Omni offered no argument as to how Ohio law "contradicts the standard of practice asserted by CMS or asserts what the standard of practice should be." ALJ Decision at 7. We conclude similarly here. Omni pointed to nothing which would indicate that Ohio law would preclude it from clarifying conflicting resuscitation information in resident records or from having in place a system for determining resident DNR status on admission and re-admission and a mechanism that produced immediate and accurate identification of DNR status.

In fact, one of the cited federal regulatory provisions mandates processes analogous to those required by the standard of practice applied by the ALJ.

[S]killed nursing facilities . . . must maintain written policies and procedures concerning advanced directives with respect to all individuals receiving medical care by or through the provider and are required to: . . . (2) Document in a prominent part of the individual's current medical record . . . whether or not the individual has executed an advance directive . . . ; (4) Ensure compliance with requirements of State law (whether statutory or recognized by the courts of the State) regarding advance directives. The provider must inform individuals that complaints concerning the advance directive requirements may be filed with the State survey and certification agency; (5) Provide for education of staff concerning its policies and procedures on advance directives . . . .

42 C.F.R. § 489.102(a)(emphasis supplied). The regulation also provides that information concerning such rights must be provided, as follows: "In the case of a skilled nursing facility at the time of the individual's admission as a resident." 42 C.F.R. § 489.102(b)(2).

Thus, Omni pointed to no valid basis for reversing the ALJ's determination as to the applicable standard of practice, which reasonably reflects the fact that time is of the essence in the event of cardiac or respiratory arrest. The facility should have in place a mechanism to clarify and to communicate vital information which reflects that reality.

b. The ALJ's finding that no resuscitation was attempted for Resident CL 1 at the time of death, even though the resident should have been treated as full code under facility policy, is supported by substantial evidence.

The ALJ found that Omni "never adequately addressed the apparent contradiction" in the DNR status for Resident CL 1 reflected on the hospital transfer form in comparison to contrary evidence in the medical record. ALJ Decision at 9. On appeal, Omni did not challenge that Resident CL 1 was considered a "full code" upon admission to the facility in 1998 (i.e., the resident had no DNR order). Id. Omni also did not challenge that a social service history/assessment dated January 8, 1998 indicated "no paperwork" as to "heroics." Id. Omni further did not challenge the ALJ's finding that a February 14 interdisciplinary team meeting, before the hospitalization, determined that the resident had no advance directives. Id.; citing CMS Ex. 9, at 4; Tr. at 53. Omni also did not dispute that a resident assessment conducted five days after the March 14 readmission reflected that Resident CL 1 "did not have a DNR order and did not have advance directives." Id. at 10, citing Tr. at 65. Omni further did not dispute that the facility's interdisciplinary team, nursing staff, or social services staff all failed to discuss resuscitation status with the resident or the resident's family (or the attending physician, for that matter) after readmission or after the post-readmission assessment. Id.

In short, Omni did not explain why no one on facility staff attempted to reconcile or otherwise clarify an inconsistent DNR order on the hospital transfer form, signed by a physician who does not appear to have been the attending physician at the facility, (19) with the resident's pre-hospitalization and post-hospitalization assessments as "full code". The ALJ concluded that when Resident CL 1 "went non-responsive" on April 10, "no resuscitation was attempted even though the resident should have been treated as full code under facility policy." ALJ Decision at 12.

On appeal, Omni argued that the March 14 hospital transfer form, which reflected a DNR designation, required that the facility not provide CPR during cardiac arrest on April 10. In support, Omni pointed to a written policy on physician orders that "all transfer orders are considered current for 30 days unless otherwise ordered by the attending physician." RR at 10, citing P. Ex. 1, at 3. According to Omni, "Ms. Kuhn's [sic] stated that [this policy] was never seen by her at the time of the survey." Id., citing Tr. at 58.

Omni's argument is unconvincing. The ALJ found that Omni's policy required specific and explicit documentation of a resident's DNR status, as indicated by the following testimony from Omni's DON:

[A] resident was not considered DNR unless a physician's progress notes indicated that the issue had been discussed with the resident or family and a physician's order for "No CPR" and an ambulance form were in place. Either a resident or a family member must sign the form and the status could not be changed unless a form were completed.

ALJ Decision at 9, citing Tr. 54-56 (emphasis supplied). Under this policy, Omni could not reasonably rely on the hospital transfer order since it was not supported by a progress note about a discussion with the resident or resident's family. Moreover, as the ALJ found, the standard of practice required that Omni reconcile the contradiction between the hospital transfer form and contrary DNR information in the clinical record.

Even if Omni could reasonably rely on a transfer order as evidence of DNR status, we conclude that the transfer order in question here was no longer in effect as of April 10. Omni's written policy on physician orders states: "It is the policy of this facility to ensure that all Physician orders are current and signed by the attending physician." CMS Ex. 1, at 3 (emphasis supplied). The purpose of the policy is to "make sure the resident is receiving optimal care." Id. The policy provides that "telephone orders, hospital transfer orders and last monthly orders will be reviewed every 30 days. These orders will then be added to the currently monthly orders for the physician to sign." Id. The policy then states: "Hospital transfer orders are considered current for 30 days unless the attending physician has ordered otherwise." Id.

Omni's argument is based on reading this policy as providing that hospital transfer orders are effective for 30 days beginning on the date of the transfer form. However, the record suggests that in practice, the facility reviews orders provided throughout the current month in order to incorporate those orders on a printout of physician orders for the succeeding month. Diane Bennett, nursing clinical director at Omni, testified that orders on a hospital transfer sheet would have to be approved and signed by the physician. Tr. at 426-428. She also testified that the routine procedure for Omni with respect to such hospital transfer orders requires promptly consulting the physician.

A. Okay. We have an admissions person who takes this record [P. Ex. 1, at 4] and puts it into a computer. She gives me the record. I call the physician. We go over the orders and they add or delete whatever they wish, and approve or disapprove the orders.

Q. And would the DNR status be something that you would record from the admission sheet and talk to the physician about?

A. Yes.

Q. Okay. Do you know if that was done in regard to resident CL-1 in this hospital transfer sheet?

A. It was not on her computer sheets, but it was on this sheet. It was not put on her other sheet.

Id. at 428.

Ms. Bennett further testified that a hospital transfer sheet would be "placed in the medical chart but not as direct orders. The direct orders would be written on a sheet of an order similar to something like this and then signed." Tr. at 427 (emphasis supplied). Ms. Bennett then identified Petitioner's Exhibit 1, at 7 as an example of the order sheet to which she had referred. Id. The referenced document reflects a computer printout of physician orders for the month of March (for a different resident). P. Ex. 1, at 7. The first page identifies "cycle start" as the first day of March and "cycle end" as the last day of March. Id.

We thus conclude that facility policy and practice required that the DNR status reflected on the March 14 hospital transfer form be promptly brought to the attention of the attending physician upon the resident's readmission. Omni has pointed to no computer printout for the month of April which would reflect Resident CL 1 as DNR. See Tr. at 66 ("And there was no order on the April 2001 pre-printed physician's orders indicating that the resident was a DNR.") Thus, rather than assuming that the March 14 transfer order was still in effect on April 10, facility staff might have concluded that it was superseded by the April printout of physician's orders.

Furthermore, Ms. Bennett testified that Omni, in practice, reconciles discrepancies regarding DNR status between hospital transfer forms and facility records. Ms. Bennett testified that Omni took the following steps regarding a different resident (Resident 131):

A. She had been a resident with us for a long time and had always been a DNR. She had been sent out to the hospital for a surgical procedure and upon return her transfer sheet said that she was then to be yes to CPR, so we contacted the power of attorney and the physician, and found that the DNR [sic] on the hospital transfer was in error, and she was again made DNR at our facility.

Tr. at 423 (emphasis supplied). Thus, Omni's failure to contact the physician to clarify the DNR status for Resident CL 1 was inconsistent with its recent prior practice.

We also reject Omni's assertion that Ms. Kuhns "acknowledged that Resident CL-1's attending physician entered an order on March 29, 2001, including a 'No-CPR' designation." RR at 12, citing CMS Ex. 13, at 49, Tr. at 118. First, the exhibit cited by Omni pertains to Resident 27 (as indicated in the top right hand corner of the page), not Resident CL 1. Tr. at 86 (Surveyor Kuhns' testimony that identical document pertains to Resident 27). (20) Moreover, even if this exhibit were applicable to Resident CL 1 (and it is not), the ALJ expressly noted and rejected "the handwritten notations" of "no CPR" on the March pre-printed physician orders as a basis for overturning this deficiency. ALJ Decision at 12.

We further reject Omni's argument that the physician's progress note dated January 14, 2001 indicated that Resident CL 1 was to receive "comfort care" and thus "excluded any intervention that is administered to postpone death." Reply Br. at 5-6, citing CMS Ex. 19, at 18, O.R.C. § 2133.01(C); see also discussion, supra at pp. 12-14. Omni appeared to argue that the term "comfort care" either corroborated the DNR status on the hospital transfer form or was dispositive evidence of that status. However, Omni did not explain how reliance on this term alone or in conjunction with an expired transfer order would be consistent with facility policy, which requires explicit documentation of DNR status. Nor would any such reliance undercut the ALJ's finding that the record for the resident, overall, was confusing. In any event, this entry would not excuse Omni's failure to reconcile a DNR order on a hospital transfer form with other facility records designating a "full code" response.

We also note that Ms. Bennett testified on direct examination that the MDS form for Resident CL 1 reflected DNR status. Tr. at 421. However, on cross-examination, she later acknowledged that she was "not sure . . . what was marked on the MDS" without looking at it. Tr. at 428-29. The ALJ observed that the facility did not offer the MDS form into evidence to rebut the surveyor's testimony about what she observed on the form. ALJ Decision at 10, citing Tr. at 429.

We therefore conclude that substantial evidence supports the ALJ's findings with respect to Resident CL 1.

c. The ALJ's finding that facility staff failed to implement a requested DNR order for Resident 27 in such a way that nursing staff would recognize it is supported by substantial evidence.

The ALJ discussed how Resident 27 was admitted to the facility on March 29, 2001. A physician's progress note and hospital transfer form of the same date reflected that the resident wanted DNR status. Surveyor DeLuco could not find that DNR status reflected in various parts of the resident's records, including sections designated for advance directive information. The ALJ concluded that Resident 27's medical record and a March 29, 2001, hospital transfer form reflected "conflicting information regarding Resident 27's DNR status." ALJ Decision at 11 (citations omitted).

On appeal, Omni objected to Surveyor Kuhns' testimony that a handwritten entry of "no CPR" on a March 29, 2001 computerized physician's order sheet was "unusual." RR at 12, citing P. Ex. 1, at 8. In essence, Omni argued that these handwritten entries constituted physician orders and that this satisfied the requirement that the resident's DNR status be clearly indicated in the facility's records. Ms. Kuhns testified that the handwritten entries were unusual for several reasons, including that other handwritten March 29th orders were subsequently incorporated into the computer printout, but the "no CPR" order (also dated March 29th) was not. Tr. at 86-92. In short, Ms. Kuhns' testimony raised the question whether these handwritten entries had been entered subsequent to the survey.

We reject Omni's challenge to Surveyor Kuhns' testimony. The ALJ expressly acknowledged the handwritten notations that Omni referenced, but made "no findings as to when or how the notations were made." ALJ Decision at 12. Instead, the ALJ relied primarily upon the testimony of Surveyor DeLuco in affirming the deficiency. Id. at 11-12. The ALJ noted that Surveyor DeLuco found "conflicting information regarding [Resident 27's] DNR status." Id. at 11, citing Tr. at 139-44. Ms. DeLuco found no physician's order for DNR, nor did she find the DNR status in the plan of care, the "legal documents" section of the chart, "in a white envelope at the front of the chart which was to contain advance directives, or in social service notes." Id., citing Tr. at 146-47; CMS Ex. 22, at 6. Ms. DeLuco also testified that as of April 20, 2001, MDS information indicated that Resident 27 had no advance directives and was not listed as DNR. Id., citing Tr. at 144-45. On May 16, Ms. DeLuco spoke with "the MDS nurse and the charge nurse," both of whom looked through Resident 27's chart, found no DNR orders, and advised Ms. DeLuco "that Resident 27 was a full code." Id.; citing Tr. at 147-48; CMS Ex. 22, at 6. The ALJ found this testimony credible. Id. at 12.

As previously discussed, we generally do not disturb an ALJ's determination of witness credibility absent a compelling reason, and Omni offered no such compelling reason here. The ALJ could reasonably find, based on Ms. DeLuco's testimony, that the resident's DNR status was unclear from the record.

d. The ALJ's determination not to make findings of fact and conclusions of law on deficiencies that are not necessary to support the CMP imposed does not constitute a finding in Omni's favor on those deficiencies.

We also reject Omni's argument that because the ALJ "chose not to address tag F-156 . . . . Omni Manor must then be deemed to be in compliance with [F-Tag 281]." RR at 10. F-Tag 156 requires, in relevant part, that the facility provide information to residents concerning the right to accept or refuse treatment and to formulate an advance directive. CMS Ex. 8, at 2; SOM, Appendix PP, at PP-10. While Omni's argument is unclear, we reject the notion that simply because a facility provides advance directive information to a resident, it is therefore in compliance with any other requirement of participation. In any event, the mere fact that an ALJ has determined that the deficiencies he did address are sufficient to support the CMP does not a priori transform unaddressed deficiencies into findings in the facility's favor. See Batavia I at 21-24; see also Beechwood Sanitarium, DAB No. 1824, at 18-21 (2002)(ALJ not required to make findings on all deficiencies in CMS 2567), aff'd after remand, Beechwood Sanitarium, DAB No. 1906 (2004). Omni offered no legal or factual argument as to why a finding of a lack of substantial compliance with F-Tag 281, which concerns professional services in relation to comprehensive assessments and care plans, may not coexist with the ALJ's decision not to make findings specific to F-Tag 156, which concerns the facility's obligations to make advance directive information available to the resident.

We therefore affirm FFCL 1.

2. As of the survey ending on May 18, 2001, Petitioner was out of compliance with the participation requirement at 42 C.F.R. § 483.20(k)(2) (F Tag 280 on the statement of deficiencies dated May 18, 2001), at a non-immediate jeopardy level of noncompliance.

A facility's obligations regarding the development and preparation of a comprehensive care plan are set forth, in part, at 42 C.F.R. § 483.20(k)(2), which provides:

A comprehensive care plan must be - (i) Developed within 7 days after completion of the comprehensive assessment; (ii) Prepared by an interdisciplinary team, that includes the attending physician, a registered nurse with responsibility for the resident, and other appropriate staff in disciplines as determined by the resident's needs, and, to the extent practicable, the participation of the resident, the resident's family or the resident's legal representative; and (iii) Periodically reviewed and revised by a team of qualified persons after each assessment.

The CMS 2567 summarizes this deficiency as follows:

[T]he facility failed to ensure that the interdisciplinary team developed a comprehensive care plan to provide the greatest benefit to the resident. This affected one resident who expired in the facility on 04/10/01, and a current resident who had conflicting documentation regarding resuscitation status.

CMS Ex. 8, at 27.

The ALJ concluded that Omni failed to comply substantially with this requirement as to Residents CL 1 and 27, as follows:

I find that Petitioner was out of compliance with this participation requirement. The facts regarding Residents CL 1 and 27 are discussed above at Finding 1. The evidence of record shows that Petitioner's interdisciplinary team failed to discuss Resident CL 1's DNR status during its meeting on March 21, 2001, and Petitioner provided no documentary evidence to rebut CMS's prima facie case on this point. Specifically, Ms. Kuhns testified that her review of the interdisciplinary team notes showed that when Resident CL 1 returned to the facility with conflicting documentation, the interdisciplinary team did not act on that by following up and writing a care plan to indicate what type of care the resident would receive in case of cardiac or respiratory arrest. Tr. 79-81. With regard to Resident 27, Petitioner failed to ensure that Resident 27 had a current physician's order for no CPR consistent with the resident's expressed wish to be designated as DNR.

ALJ Decision at 13.

On appeal, Omni asserted that: (1) "it is impossible to find compliance with tag F-156 and a violation here based on advance directives;" (2) the ALJ stated that Omni failed to rebut CMS's prima facie case with documentary evidence, but "apparently overlooked, forgot or ignored" testimony rebutting the CMS evidence; (3) with respect to CL 1, "the last dated order in [the] chart is the order to be followed" as a matter of "common sense"; and (4) with respect to Resident 27, the hospital transfer form "contained a DNR order . . . ." RR at 13-14.

We reject Omni's arguments as duplicative of arguments made and rejected in relation to FFCL 1. We adopt and incorporate our prior rationales here. In summary, first, the decision by the ALJ not to evaluate F-Tag 156 is not a finding of substantial compliance by Omni with that requirement. Second, Omni's pleading wholly fails to identify what it considered to be the "latest order" of DNR status for Residents CL 1 and 27. As we have discussed, the hospital transfer form for Resident CL 1 and handwritten entries for "no CPR" on computer printouts for Resident 27 are not dispositive of DNR status, given conflicting information in the record. In any event, the handwritten entries do not excuse Omni's failure to have a system in place which leads to prompt, accurate, and consistent information concerning a resident's DNR status.

Omni raised one argument in relation to FFCL 2 that was not clearly raised in relation to FFCL 1, that the ALJ "overlooked, forgot or ignored" testimonial evidence in relation to Resident CL 1 that would rebut CMS's prima facie case. RR at 13. We find this unsupported contention of counsel inadequate to raise an issue for appeal. Omni did not identify the testimonial evidence which it alleged should have been considered. We have previously noted that argument by counsel "without citation by page or section number and without any indication how those arguments would apply in the instant analysis, is an insufficient means of raising an issue for review and an inadequate basis upon which to adjudicate the appeal." Batavia II at 57 (citations omitted). We conclude similarly here. It is the facility's responsibility to plead its case adequately and consistent with the requirements of the Guidelines. That has not occurred with respect to this contention.

We therefore affirm FFCL 2.

3. As of the survey ending on May 18, 2001, Petitioner was out of compliance with the participation requirement at 42 C.F.R. § 483.75 (F Tag 490 on the statement of deficiencies dated May 18, 2001) at a non-immediate jeopardy level of noncompliance.

A facility's obligations regarding administration are set forth at 42 C.F.R. § 483.75, which provides, in relevant 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.

The CMS 2567 summarizes this deficiency as follows:

[T]he facility failed to ensure that the protocol for advanced directives was followed. This affected one resident who expired in the facility on 04/10/01, and a current resident who had conflicting documentation regarding resuscitation status. The facility was not administered in a manner that ensured the highest practical [sic] physical, mental and psychosocial well-being of each resident.

CMS Ex. 8, at 39.

This deficiency also involves the DNR status of Residents CL 1 and 27. ALJ Decision at 13-14. The ALJ concluded:

Petitioner has failed to rebut CMS's prima facie case that the facility's administration failed to implement an effective and efficient procedure to determine residents' wishes regarding DNR upon admission and readmission and effectively communicate the DNR status to staff members, as exemplified in the cases of these two residents.

Id. at 13.

In summary, the ALJ relied on Surveyor Kuhns' testimony that (1) Omni provided inadequate supervision to ensure that its policies and procedures concerning resuscitation were followed; and (2) there was no clear system by which facility staff could ascertain a resident's DNR status in the record. Id., citing Tr. at 81-82. Ms. Kuhns testified that Resident CL 1's chart was unclear on her DNR status and had inconsistencies that should have been resolved promptly upon readmission from the hospital. Id., citing Tr. at 82. The ALJ noted testimony by Ms. Bennett, an Omni witness, concerning Omni's failure to convert hospital transfer orders into a physician's order. Id., citing Tr. at 428. The ALJ also noted testimony by Surveyors Kuhn and DeLuco that the DNR status of Resident 27 was unclear, as evidenced by "the fact that two of Petitioner's nurses checked the physician's orders for Resident 27 and indicated that the resident would receive CPR . . . ." Id. at 14.

On appeal, with respect to Resident CL 1, Omni asserted that the ALJ "mischaracterizes" the Bennett testimony and that the hospital transfer form showing DNR constituted the physician's order and was valid for the 30-day period after readmission. RR at 14. Omni also argued that Resident CL 1 "previously made her wishes known to staff and staff followed those wishes." Id. at 14-15, citing Tr. at 400-01. Omni further argued that Resident CL 1's MDS records were "consistent with" the hospital transfer order. Id. at 15, citing Tr. at 421.

With respect to Resident 27, Omni argued that the handwritten entry showing "No CPR" was made on March 29, 2001 (the date of Resident 27's admission to the facility). Id., citing Tr. at 424-25, P. Ex. 1, at 12. Omni then maintained that Resident 27 "did have a DNR order on her chart from March." Id., citing P. Ex. 1, at 8, 9. This apparently refers to the handwritten entries of "no CPR" from the cited exhibit.

As an initial matter, we disagree with Omni's assertion that the ALJ mischaracterized Ms. Bennett's testimony. The ALJ stated:

Resident CL 1's medical chart thus contained inconsistencies [regarding DNR status] which should have been resolved shortly after her readmission. Ms. Bennett appears to concede such inconsistency by testifying that Petitioner failed to turn the DNR status noted on the hospital transfer form into a physician's order at the facility.

ALJ Decision at 13, citing Tr. at 428. We see no inconsistency between this quote from the ALJ Decision and Ms. Bennett's testimony. See discussion, supra at pp. 27-28, quoting Tr. at 428. Ms. Bennett testified that Omni's typical practice would be to consult the physician concerning the DNR order on the hospital transfer form and incorporate that order onto the preprinted physician order sheet. Ms. Bennett also testified that this process was not followed with respect to Resident CL 1. Tr. at 53. We also reject Omni's arguments pertaining to the DNR order on Resident CL 1's hospital transfer form for the reasons set forth in our discussion of FFCLs 1 and 2, including Ms. Bennett's testimony, which we incorporate herein.

Moreover, Omni's argument that Resident CL 1 "made her [DNR] wishes known" to facility staff and that staff only "followed those wishes" is irrelevant. The basis of the deficiencies found concerning Residents CL 1 and 27 is that the standard of practice requires that Omni have in place a mechanism by which facility staff could quickly and accurately reference a resident's documented medical record for DNR status. Omni's argument concerning Resident CL 1's "wishes" is thus unpersuasive.

We rejected in discussing FFCL 1 Omni's argument concerning the DNR information on Resident CL 1's MDS form, and we incorporate that reasoning here. We also reject Omni's arguments regarding handwritten entries for "no CPR" for Resident 27 as duplicative of arguments previously raised and rejected in discussing FFCLs 1 and 2.

We therefore affirm FFCL 3.

4. As of the survey ending on May 18, 2001, Petitioner was out of compliance with the participation requirement at 42 C.F.R. § 483.25(h)(1)(F Tag 323 on the statement of deficiencies dated May 18, 2001) at a non-immediate jeopardy level of noncompliance.

A facility's obligations regarding accident prevention are set forth, in part, at 42 C.F.R. § 483.25(h)(1), which states that the "facility must ensure that (1) The resident environment remains as free of accident hazards as is possible . . . ." The CMS 2567 states that "the facility did not keep at least six residents free from possible access to hazardous chemicals . . . ." CMS Ex. 8, at 37.

The ALJ Decision recounts the facts related to this deficiency, as set forth in the CMS 2567. Generally, the CMS 2567 relates that during a tour of the facility on May 16, 2001, the surveyors came across an unlocked door labeled "Caution. Chemical Storage Area." This storage area contained various cleaning substances: bathroom cleaner, disinfectant cleaner, deodorant concentrate, emergency cleaner, powder cleanser, and industrial window cleaner, bleach, germicidal cleaner, liquid cream cleanser, sanitizer solution, and disinfectant solution. All of these items bore warning labels such as "hazardous to humans," "harmful or fatal if swallowed," and "danger - corrosive." Several boxes of drinking cups were located next to containers of sanitizer and disinfectant solution. Over the course of the survey, six residents were observed walking in and out of various resident rooms on this hallway and "attempting to open several doors, including the storage door area." Nursing and maintenance supervisors verified that the door should always be locked. ALJ Decision at 14, citing CMS Ex. 8, at 37-38. Surveyors Kostelic and Trebus testified that neither had seen any facility staff "near the unlocked closet" or "in the immediate area" when they made their observations. Id. at 14-15, citing Tr. 237-40, 347-49; CMS Ex. 34, at 2; CMS Ex. 16, at 1.

The ALJ found that Omni failed to rebut CMS's prima facie case. He rejected Omni's argument that there was "no purpose to a locked closet." He concluded that "[t]o ensure compliance with this participation requirement, Petitioner needed only to have recognized that it is essential that the door to this closet be locked at all times when a staff member is not using and monitoring the closet." ALJ Decision at 15.

On appeal, Omni presented the same arguments that it did before the ALJ. Generally, Omni argued that the storage area was in a "staff-trafficked area" and disputed the surveyors' finding that no staff were "near" the unlocked closet, asserting that there was no evidence to support that Omni staff did not exert some form of supervision of the storage area. RR at 15-16. Omni also argued that "there was [sic] no residents in the hallway, either." Reply Br. at 4, citing Tr. at 239.

The ALJ considered and rejected the arguments that the unlocked storage area was adequately supervised by virtue of its proximity to the nurse's station or as a result of being in a trafficked area. ALJ Decision at 15. He expressed that he could not "believe Petitioner could be arguing that it is acceptable to leave an unlocked closet containing hazardous substances open while elderly and perhaps demented residents are walking through the halls." Id. The ALJ recognized that Omni failed to rebut CMS's credible assertion "through the observations of the surveyors, that no staff members were present in the area of the unlocked storage closet . . . ." Id. The ALJ also acknowledged surveyor testimony that residents had been "observed attempting to open doors in [that] hall" throughout the survey. Id., citing Tr. at 349.

Omni did not point to any flaw in the ALJ's analysis. We also find unconvincing Omni's argument that in order to find a deficiency, residents had to have been observed in the hallway at the time the surveyors saw the unlocked storage area. As we have explained with respect to a facility's obligation to provide adequate supervision to prevent accidents (42 C.F.R. § 483.25(h)(2)), it is the risk, not the fact, of an accident that is the crux of this deficiency. We find that the following rationale applies with equal force to a facility's obligation to keep the environment as free as possible of accident hazards under 42 C.F.R. § 483.25(h)(1):

In prior decisions, the Board has thoroughly considered and rejected the concept that an accident is a prerequisite to a deficiency finding under section 483.25(h)(2). See, e.g., Price Hill Nursing Home, DAB No. 1781 (2001) ("The intent of the regulation is to prevent accidents; thus, the fact that no accident occurred because no resident touched the unattended cart or the unlocked supply closet does not establish compliance with this regulation."); Woodstock Care Center, DAB No. 1726, at 17 (2000), aff'd, Woodstock Care Ctr. v. Thompson, No. 01-3889 (6th Cir. 2003) ("[O]bservations and the occurrence of events other than accidents may suffice to expose the absence of supervision adequate to prevent accidents."). The Board has pointed out introductory language in 42 C.F.R. § 483.25 (that a facility "must provide the necessary care and services to attain or maintain the highest practicable . . . well-being, in accordance with the comprehensive assessment and plan of care") in upholding deficiency findings where a facility failed to follow steps in a plan of care that were directed at preventing accidents. See Coquina Center, DAB No. 1860 (2002).

Beechwood Sanitarium, DAB No. 1906, at 59 (2004)(emphasis supplied). Moreover, the uncontested statements of the facility's RN and maintenance supervisors that the door should always stay locked supports a conclusion that the facility knew that the unlocked door created an accident hazard. Tr. at 239-40; ALJ Decision at 15 ("Petitioner's nursing and maintenance supervisors both appear to understand that the door should have been locked.")

We therefore affirm FFCL 4.

5. As of the survey ending on May 18, 2001, Petitioner was out of compliance with the participation requirement at 42 C.F.R. § 483.25(h)(2)(F Tag 324 on the statement of deficiencies dated May 18, 2001) at a non-immediate jeopardy level of noncompliance.

A facility's obligations regarding supervision and assistance devices to prevent accidents are set forth in 42 C.F.R. § 483.25(h)(2), which states that the "facility must ensure that . . . [e]ach resident receives adequate supervision and assistance devices to prevent accidents." The CMS 2567 states that "the facility failed to ensure that each resident receives adequate supervision to prevent accidents." CMS Ex. 8, at 38.

The ALJ Decision recounts the facts as set forth in the CMS 2567. ALJ Decision at 16; CMS Ex. 8, at 39. Resident 134 suffered three skin tears when transferred by a single nurse assistant to a wheelchair on March 26, 2001. The current MDS and "care card" required two or more staff members for a transfer, which was verified by a unit coordinator. A facility investigation indicated that the nurse assistant was reminded "to ask for assistance if the resident required two persons for safe transport." Omni presented testimony by Ms. Smith, LPN, "that Resident 134 was a two-person transfer only when combative," and she was not combative when transferred on March 26. Ms. Smith testified that she was not aware that the nurse assistant had been counseled after the incident in question to use a two-person assist for Resident 134. The ALJ concluded that the failure to provide a two-person transfer violated the participation requirement. ALJ Decision at 16, citing Cherrywood Nursing and Living Center, DAB No. 1845, at 8-9 (2002).

On appeal, Omni generally attacked CMS's reliance upon the MDS form as evidence that a two-person assist was required on the day of the injury, as this was inconsistent with "other resident records and/or treatment provided." RR at 16. Omni further argued that the MDS form showing a two-person assist reflected the "highest need level" during the relevant assessment period, but "not the more customary and routine one person or no person assist." Id. Omni further argued that correspondence from CMS clarified that the existence of inconsistencies between an MDS and the clinical records is an insufficient basis for a deficiency. Id. Omni then concluded that "[n]o evidence established the resident's need on the day in question was a two person assist." Id. at 17. Omni relied on Ms. Smith's testimony as evidence of the need only for a one person assist and framed the issue as whether Omni could "foresee" the need for a two person assist on March 26. Id.; Reply Br. at 2.

Omni also argued that the ALJ made multiple errors concerning evidentiary admissions in relation to this deficiency. Omni argued that the ALJ "improperly uses post [sic] remedial measures as evidence of a violation." Id. at 16; Reply Br. at 2. Omni also argued that the ALJ's decision "to accept compound hearsay (surveyor's worksheets containing abstracts purportedly drawn from unidentified individuals who made entries into resident records) is, when offered to prove the truth of the matters asserted, inappropriate even under a relaxed standard" applicable to administrative hearings. Reply Br. at 2. Omni then faulted the ALJ for not requiring CMS to submit the MDS or the care card into evidence. Id. at 2-3.

a. Substantial evidence supports the ALJ's finding that Resident 134 did not receive adequate supervision to prevent accidents during a one-person transfer.

We affirm the ALJ's finding that Omni's "failure to provide a two-person transfer, given the unrebutted facts of this citation as set out in the statement of deficiencies above, is a violation of this participation requirement." ALJ Decision at 16. Surveyor Costa testified that the facility had determined that Resident 134 was a two-person transfer. Id., citing Tr. at 322-23. She based her conclusion on the "resident's record, the care plan, MDS information, [and] the care cards for the resident" as well as an investigation concerning the skin tears (which revealed that the nurse assistant had been counseled regarding safe transfer methods). Tr. at 321; CMS Ex. 25, at 4. Ms. Costa deemed the one-person transfer on March 26 a deficiency, since "the nursing home had determined that the resident needed at least two person assistants [sic] when transferring the resident for the MDS and the care card . . . ." Tr. at 323.

As indicated, Omni's appeal centers on the significance of the MDS form and the testimony of Omni witness Ms. Smith. While Omni argued that the MDS form reflected only the maximum assistance needed for a transfer, the care card (as read by Ms. Costa) specifies "two or more assist." Tr. at 323 (emphasis supplied). Further, Ms. Costa based her conclusion that Resident 134 required a two-person assist not only on the MDS form, but also upon her review of the care card as well as the post-injury investigation. Thus, two pieces of evidence, independent of the MDS form, support the ALJ's conclusion that at least two people should have transferred Resident 134 on that day. Finally, the ALJ could reasonably have accepted as more credible the testimony of Ms. Costa over Ms. Smith, given the latter's lack of knowledge about the post-injury counseling, her failure to acknowledge the instructions on the care card, and Omni's failure to "submit any documentary evidence supporting Ms. Smith's testimony . . . ." ALJ Decision at 16.

b. CMS correspondence on the relationship between MDS information and supporting clinical documentation does not demonstrate ALJ error.

Omni complained that "CMS' surveyors demonstrate a penchant for utilizing the Minimum Data Set (MDS) form as a basis to establish deficiencies where there is a difference between the MDS form and other resident records and/or treatment provided." RR at 16. Omni then referred to "recently attached [sic] correspondence from CMS" as establishing that "inconsistencies between the MDS form and other clinical resident records is not the basis for citation of deficiencies." Id. Omni attached to its Request for Review a two page undated letter from Cindy Graunke of HHS to Dr. Thomas M. Prose, M.D., M.P.H., M.B.A.

The ALJ had received this correspondence into evidence, although he found it to be "of dubious relevance, and I do not rely upon it in the context that Petitioner submits it . . . ." ALJ Decision at 2, citing P. Ex. 9 (see Attachment 1 to November 22, 2002 Petitioner transmittal and related submissions in ALJ hearing record).

The CMS correspondence concerns whether a physician's completion of clinical documentation in support of an MDS review would lead to a citation under F-Tag 278 "if there are discrepancies between information on the MDS and physician's documentation of a resident's clinical condition." CMS explains that a physician documents a patient's clinical information for multiple purposes, including support of the MDS and Quality Assurance processes, and acknowledges that clinical documentation by the physician or "any discipline" will likely "not be identical to the MDS." CMS concluded more generally that inconsistencies between supporting clinical documentation, prepared over time, and information on a MDS, which captures a patient's condition in a specific period of time, "are not justification for a citation."

On cross-examination, Surveyor Costa testified that the MDS form reflects the highest level of ambulation needed for the seven previous days, as the CMS correspondence suggests. Tr. at 328. She further testified that it was correct that "[i]f there is one instance of one day of needing two-person assistance during that seven-day period, [it will be coded] at that level, and not a lower one-person or no assist . . . ." Id. (21)

The ALJ's reference to the MDS occurs only in his quote from the CMS 2567. ALJ Decision at 16. The MDS, however, was not the only piece of evidence leading to his finding that "Petitioner's failure to provide a two-person transfer, given the unrebutted facts of this citation as set out in the [CMS 2567], is a violation of this participation requirement." ALJ Decision at 16, citing Cherrywood Nursing and Living Center at 8-9 (two-person transfer required per care plan). The care card required a two-person transfer, at minimum. Thus, even if the MDS did not show that Resident 134 required a two-person transfer on March 26, the MDS was certainly not inconsistent with what was on the care card. We thus find that the CMS correspondence submitted by Omni is insufficient to overturn the deficiency citation.

c. FRE 407 provides no basis for excluding surveyor testimony concerning the post-injury staff counseling.

Omni maintained in its general evidentiary objections that the ALJ "improperly used evidence of subsequent remedial measures as evidence of a violation." RR at 21, citing "Evidence Rule 407." Omni made the same assertion in relation to FFCL 5. Id. at 16. It appears that Omni intended to argue that the admission of evidence concerning the facility's investigation into the injuries associated with the one-person transfer of Resident 134, and its subsequent counseling of the nurse assistant, violated FRE 407.

FRE 407 reads as follows:

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

We have also explained that "an exception to Rule 407 is recognized where remedial action is mandated by superior governmental authority." Fairfax at 9, citing 2 Weinstein's Federal Evidence § 407.05[3], p. 407-27 (2nd Ed. 2001).

We thus find Omni's argument unavailing. First, as we have noted, the FRE do not control the admissibility of evidence in this administrative hearing. Thus, even if the ALJ had taken evidence concerning "subsequent remedial measures" as proscribed by FRE 407 (and we make no such finding), it would not constitute reversible error or the exclusion of such evidence.

Second, even if we consult FRE 407 as guidance, the underlying policy also provides no basis for overturning the cited deficiency. FRE 407 generally addresses measures taken after injury or harm that, if taken previously, would have made that injury or harm less likely. FRE 407. Evidence of such measures is "inadmissible to prove negligence, culpable conduct," product defect, design defect, or a need for warning. Id. Clearly, the applicability of FRE 407 arises in tort, not in the context of statutory and regulatory obligations of skilled nursing facilities to maintain substantial compliance with Medicare participation requirements. Thus, FRE 407 provides no clear guidance in the context of an administrative hearing conducted pursuant to 42 C.F.R. Part 498.

Even if FRE 407 were applicable (and we find that it is not), the counseling given to the nurse assistant after the one-person transfer still would not fall within its ambit. Ms. Costa testified that "[t]he nursing assistant [was] reminded of proper transfer techniques, reminded to ask for assistance if resident requires two person for safe transport, and . . . reminded of possible harm if safe transfer techniques are not used." Tr. at 322. Such a conversation does not constitute a subsequent remedial measure contemplated by FRE 407. The record shows that these verbal reminders concerning safe transfers reflect facility policies in existence prior to the injury. The fact that the facility elected again to remind the nurse assistant of those policies after an injury would not bring that conversation within the reach of FRE 407.

In any event, even if the evidence about the reminder to the nurse is disregarded, we find that there is still substantial evidence to support the ALJ's finding.

We therefore affirm FFCL 5.

6. As of the survey ending on May 18, 2001, Petitioner was in substantial compliance with the participation requirement at 42 C.F.R. § 483.13(c)(1)(F Tag 225 on the statement of deficiencies dated May 18, 2001).

The ALJ found that the facility responded to the alleged instances of resident abuse promptly and thoroughly. ALJ Decision at 17. CMS did not appeal this finding, which we therefore leave undisturbed.

7. The CMP imposed is reasonable.

The ALJ wrote that Omni "made no argument regarding the reasonableness of the CMP." ALJ Decision at 17. The ALJ quoted Omni's concession, made in its post-hearing filing: "CMS is correct that Omni Manor made no argument regarding the reasonableness of the CMP. Indeed, it is not a significant amount of money from anyone's perspective." Id., citing P.R. Br. at 11. Notwithstanding Omni's failure to make the argument, the ALJ found "the CMP imposed to be eminently reasonable." Id.

On appeal, Omni argued that "the CMP is not reasonable as it is not based upon the presence of deficiencies. While the amount is not of great significance the principle is - there was no failure of Omni Manor to meet the cited program participation standards." RR at 17.

As Omni conceded this issue before the ALJ, it may not appeal it now. The Board's Guidelines provide that "the Board will not consider issues not raised in the request for review, nor issues which could have been presented to the ALJ but were not." As we explained in Ross Healthcare Center, DAB No. 1896, at 11 (2003):

[O]ur review of an ALJ decision is limited primarily to whether the ALJ decision was erroneous as a matter of law or unsupported by substantial evidence on the record as a whole. Since Ross did not raise this issue before the ALJ, there is nothing in the ALJ Decision to review pursuant to these standards. This guideline also promotes judicial economy and efficiency, since it makes it less likely that a case will be heard piecemeal. Since Ross did not argue that it could not have presented this issue to the ALJ, we see no reason why is should be given an opportunity to raise the issue now.

Even if Omni's failure before the ALJ to question the reasonableness of the CMP amount based on the CMS findings did not preclude it from challenging the amount based on the ALJ's more limited findings, we would nonetheless affirm the ALJ's conclusion. Omni argued, essentially, that the ALJ had no basis for imposing a CMP, not that he erred in evaluating the regulatory factors relevant to the reasonableness of the amount. Omni "simply asserts that what we and the ALJ have found not to be true, namely, that it was in substantial compliance with program requirements." Batavia I at 60, citing Livingston Care Center, DAB No. 1871, at 25 (2003).

We therefore affirm FFCL 7.


For the above reasons, we affirm the ALJ Decision in its entirety and sustain the total CMP imposed. In doing so, we affirm and adopt all of the FFCLs made by the ALJ.


Cecilia Sparks Ford

Donald F. Garrett

Judith A. Ballard
Presiding Board Member


1. The term "CL" in conjunction with a resident identifier indicates a "closed record" review, which involves a resident not in the facility at the time of the review. Tr. at 47.

2. A "deficiency" is defined as a skilled nursing facility's "failure to meet a participation requirement" set forth in the Social Security Act or in 42 C.F.R. Part 483. 42 C.F.R. § 488.301.

3. Surveyors gather information during compliance surveys through personal observation, interviews, and medical record review. SOM Appendix P, Task 5, at P-23 through 26. CMS advises surveyors to document this information on forms that include "Surveyor Notes Worksheet" (HCFA 807) and "Resident Review Worksheet" (HCFA 805). Id. at P-13, 30. CMS states that "[t]his documentation will be used both to make deficiency determinations and to categorize deficiencies for severity and scope." Id. at P-24.

4. "The purpose of the remedies is to ensure prompt compliance with program requirements." 42 C.F.R. § 488.402(a).

5. "Seriousness" is assessed by determining "(1) Whether a facility's deficiencies constitute - (i) No actual harm with a potential for minimal harm; (ii) No actual harm with a potential for more than minimal harm, but not immediate jeopardy; (iii) Actual harm that is not immediate jeopardy; or (iv) Immediate jeopardy to resident health or safety. (2) Whether the deficiencies - (i) Are isolated; (ii) Constitute a pattern; or (iii) Are widespread." 42 C.F.R. § 488.404(b).

6. The definition of culpability includes "neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating circumstance in reducing the amount of the [CMP]." 42 C.F.R. § 488.438(f)(4).

7. CMS cited the immediate jeopardy deficiency concerning advance directives for Residents CL 1 and 27 under F-Tag 281, pursuant to 42 C.F.R. § 483.20(k)(3)(i) (Resident Assessment). CMS also alleged a non-immediate jeopardy deficiency under F-Tag 156, pursuant to 42 C.F.R. § 483.10(B)(5)-(10)(Notice of Rights and Services), that Omni failed to maintain written policies and procedures concerning advance directives and failed to document whether ten residents (Residents CL 1, 27, 9, 211, 221, 218, 208, 213, 131, and 24) had executed advance directives. CMS Ex. 8, at 1-9. The ALJ elected not to make findings of fact or conclusions of law with respect to this deficiency. See discussion infra, at pp. 31-32.

8. These consisted of three deficiencies at Level D (Tags 221, 225, and 315) and four at Level E (Tags 156, 241, 248, and 250). In the hearing, CMS waived its prosecution of Tags 221, 241, 248, and 315 and indicated that it was withdrawing its findings on these deficiencies. Tr. at 393-96.

9. See "Request for Review and Brief in Support of Petitioner Omni Manor Nursing Home of Decision CR-1084, Rendered by Administrative Law Judge Richard J. Smith on September 17, 2003," dated November 18, 2003.

10. Omni misnumbered the FFCLs in its Request for Review and did not appeal the ALJ's favorable finding in FFCL 6.

11. Alternatively, Omni may have meant that CMS had not met its burden to present a prima facie case if it was relying on medical records that contained "conflicting information." As the Board has previously said in a similar context, however, once a facility has presented evidence, the ALJ is to determine substantial compliance based on the record as a whole. Hillman Rehabilitation Center, DAB No. 1663, at 7-8 (1998). Moreover, this is not a case where the fact that one piece of information in a record conflicts with another piece is relevant in determining the reliability of the information. As discussed below, the relevance here of conflicting information in the record is that it would be confusing to those providing care.

12. Neither CMS nor Omni sought to have their witnesses officially "qualified" as experts in the manner required by the procedural rules of some courts or administrative bodies. See, e.g., Rule 702 of the Federal Rules of Evidence. The evidentiary test for opinion testimony by experts, however, is whether the witness is "qualified as an expert by knowledge, skill, experience, training, or education . . . ." Id.

13. The cited progress note is almost completely illegible. Although the phrase "comfort care" does seem to appear in the last line, after a summary of the resident's annual history and physical, the context appears to read "with cont. emphasis on comfort care/QOL care in POC and see [each] mo." CMS Ex. 19, at 18.

14. Here, what is relevant is not the "truth" of the statement by facility staff when they said it, but the fact that they said it, a fact supported by testimony from Ms. Kuhns.

15. An ALJ may, however, decline to admit proffered hearsay into the record if, in the ALJ's judgment, an objecting party adequately demonstrates that the proffer lacks relevance, authenticity, or sufficient indicia of reliability.

16. Omni also asserted that "[t]he ALJ improperly used evidence of subsequent remedial measures as evidence of a violation. See Evidence Rule 407." RR at 21. While unclear, this unsupported claim appears related to FFCL 5, where Omni argued that the ALJ "improperly uses post [sic] remedial measures as evidence of a violation." RR at 16. We address this issue in discussing FFCL 5, where we find no error on the part of the ALJ.

17. Omni has also shown no prejudice from the ALJ's consideration of the professional standards expressed in the article, in that these standards are also consistent with the existing regulatory requirement that advance directives be documented clearly in a prominent part of the resident's medical record and that a facility must educate its staff on the related policies and procedures. 42 C.F.R. § 489.102(a)(2),(5).

18. See "Petitioner's Reply in Support of Request for Review," dated January 8, 2004 (Reply Br.).

19. Surveyor Kuhns testified that "[t]he signature of the physician here is different than the signature on physician's progress notes . . . . So it does not appear to be the same physician." Tr. at 64.

20. The ALJ cites Petitioner's Exhibit 1, at 8 as containing the referenced handwritten notations for Resident 27. ALJ Decision at 11-12. This exhibit is identical to CMS Ex. 13, at 49, which Omni erroneously cites as reflecting a physician's order for "no CPR" as to Resident CL-1. RR at 12.

21. Section G.1.(b) of the Minimum Data Set (MDS) - Version 2.0 Full Assessment Form (September 2000) states as to resident transfers: "ADL Support Provided - (Code for MOST SUPPORT PROVIDED OVER ALL SHIFTS during last 7 days . . . .