SUBJECT: Ivy Woods Health Care and Rehabilitation Center,

Petitioner,

Centers for Medicare & Medicaid Services

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Ivy Woods Health Care and Rehabilitation Center (Ivy Woods) appealed the September 30, 2003 decision by Administrative Law Judge (ALJ) Keith W. Sickendick sustaining the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a civil money penalty totaling $6,600 for Ivy Wood's failure to comply substantially with Medicare participation requirements. Ivy Woods Health and Rehabilitation Center, DAB CR1093 (2003) (ALJ Decision).

Our standard of review on a disputed conclusion of law is whether the ALJ decision is erroneous. Our standard of review on a disputed finding of fact is whether the ALJ's finding is supported by substantial evidence on the record as a whole. See Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs, http://www.hhs.gov/dab/guidelines/ prov.html. 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.

Background

Ivy Woods participates in the Medicare program as a skilled nursing facility (SNF) and in the Medicaid program as a nursing facility (NF). Participation requirements for SNFs and NFs are set forth in 42 C.F.R. Part 483, Subpart B. Provisions governing the surveying of long-term care facilities and enforcement of their compliance with participation requirements are in 42 C.F.R. Part 488, Subparts E and F.

The Ohio Department of Health (State survey agency) conducted a survey of Ivy Woods from June 24 through June 28, 2001. The State survey agency found that Ivy Woods failed to comply substantially with 12 requirements of Medicare participation. Based on a follow-up survey, the State survey agency found that Ivy Woods had achieved substantial compliance effective July 10, 2001. CMS advised Ivy Woods that it was imposing a civil money penalty (CMP) of $550 per day for the period June 28 through July 9, 2001. Following a hearing, the ALJ sustained CMS's imposition of the CMP based on his determination that Ivy Woods had failed to comply substantially with nine of the 12 requirements of participation cited by the State survey agency. ⁽¹⁾

Discussion

The ALJ made 17 Findings of Fact and 18 Conclusions of Law. ALJ Decision at 3-11. On appeal to the Board, Ivy Woods took exception to Findings of Fact 8-14 and 16-17, as well as to Conclusions of Law 2-5, 7-12, 15, and 17. Since Ivy Woods took no exception to Findings of Fact 1-7, and 15, or Conclusions of Law 1, 6, 13-14, 16 and 18, we affirm these findings and conclusions without further discussion. Below, we discuss first the Findings of Fact and then the Conclusions of Law to which Ivy Woods took exception.

I. Findings of Fact ⁽²⁾

Before addressing the contested Findings of Fact individually, Ivy Woods argued generally that 1) the ALJ used only selective portions of the facility's records and testimony to make his findings, 2) Ivy Woods presented credible testimony that is fully supported by the residents' medical records, and 3) Ivy Woods' cross-examination of CMS witnesses reveals that their observations are not based on an accurate review of residents and their records nor reflective of the overall course of care and treatment of the residents observed. Ivy Woods asserted that, unlike the surveyors who testified for CMS, its witnesses possessed "a deep, long term knowledge of each resident based upon routine and/or daily contact." Ivy Woods also asserted that the surveyors lacked "contemporary clinical experience which degrades the quality of their testimony regarding standard of care and practices of nursing." Ivy Woods Br. at 7-8.

As indicated above, our standard of review is whether the ALJ's findings are supported by substantial evidence on the record as a whole. This standard requires us to consider not only the evidence relied on by the ALJ but also the evidence cited by the petitioner as conflicting with or undermining those findings. We have performed this review below where Ivy Woods has argued that the evidence it cites is inconsistent with or undermines a particular finding. However, we note that much of Ivy Woods' brief simply paraphrases testimony (in some instances mischaracterizing it) without any accompanying argument as to its significance in relation to evidence supporting the ALJ's findings. Moreover, Ivy Woods' arguments are frequently so summary that it is difficult to determine precisely what Ivy Woods intended. Nevertheless, we have fully considered all arguments that appear to be raised on appeal, regardless of whether we have provided a detailed written analysis in this decision.

Further, except in one instance noted later, Ivy Woods did not specifically identify any testimony by the surveyors that it believed was not credible or not entitled to the same weight as that of its own witnesses. We note in any event that in general, as an appellate body, we defer to an ALJ's assessment about the relative credibility of testimony by witnesses who appear in person at the hearing. See, e.g., Meadow Wood Nursing Home, DAB No. 1841, at 8 (2002), quoting South Valley Health Care Center, DAB No. 1691, at 22 (1999), aff'd South Valley Health Care Center v. HCFA, 223 F. 3d 1221 (10th Cir. 2000). The Board has stated that where there are conflicting observations of fact or accounts of events--

the ALJ may reasonably make judgments about what testimony to believe and what weight to assign. The fact-finder must resolve conflicting testimony in some way, where it cannot be understood in a manner that removes the inconsistencies. This may be done by assessing plausibility, evaluating the overall coherence of a witness's account, considering what interests or bias a witness may have, looking at other corroborating or conflicting evidence in the record, and so on.

Beechwood Sanitarium, DAB No. 1906, at 62 (2004). Moreover, the ALJ could reasonably give more weight to the testimony provided by qualified state surveyors than to the testimony of facility staff where the testimony went to questions about the proper standards of professional care. Beechwood at 87.

Ivy Woods also argued without reference to any specific findings of fact or particular residents as follows:

The ALJ appears to take the position that a provider's staff must at all times deliver the highest possible standard of medical care and services to an individual who is without the desire or ability to reject that care or react adversely or even have changes in their physiological condition. But a facility is only required to be in substantial compliance with a requirement that the highest practicable care and services be delivered. 42 USC § 1395i-3(b)(4)(A).

Ivy Woods Br. at 7 (emphasis in original). This argument tracks almost verbatim an argument counsel put forward in prior cases. In Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004), the Board addressed this argument as follows:

We also reject Batavia's contention that the ALJ appeared to require that facility staff "must at all times deliver the highest possible standard" of care, in violation of 42 U.S.C. § 1395i-3(b)(4)(A) (Section 1819(b)(4)(A) of the Act). That section of the Act requires, in relevant part, that a facility provide nursing, rehabilitative, and medically-related social services to attain the highest practicable physical, mental, and psychosocial well-being of the resident to the extent needed to fulfill all plans of care. [footnote omitted] We find no indication that the ALJ employed a form of "strict liability," as Batavia implied. Section 1819(b)(2) and 42 C.F.R. § 483.25 make clear that the care and services must be provided in accordance with the plan of care, which must be based on a resident assessment. The facility must also comply with the remaining participation requirements established in the regulations. As discussed below, substantial evidence in the record as a whole supports the ALJ's findings that Batavia failed to comply with these requirements.

Batavia at 25-26 (emphasis in original). As in Batavia, nothing in the ALJ Decision suggests that the ALJ held Ivy Woods to a strict liability standard.

Findings of Fact 8, 9, 12 and 13

We summarily affirm Findings of Fact 8, 9, 12 and 13 based on the analysis in the ALJ Decision. On appeal of these findings, Ivy Woods raised essentially the same arguments, and pointed to the same evidence, on which it relied before the ALJ. While the ALJ did not restate each of Ivy Woods' arguments, he correctly disposed of the arguments in a manner that requires no further explanation except with respect to a minor point involving Finding of Fact 12.b. (discussed below). See ALJ Decision at 17 (Finding of Fact 8), 20 (Finding of Fact 9), 25 (Finding of Fact 12), and 27 (Finding of Fact 13).

Finding of Fact 12.b. states that "[a] storage cabinet containing potentially hazardous materials was accessible by residents and was unlocked and unsupervised for more than an hour on June 25, 2001." ALJ Decision at 5. The surveyors cited this as a basis for a deficiency under 42 C.F.R. § 483.15(h)(1), which states that "[t]he facility must provide . . . [a] safe, clean, comfortable, and homelike environment . . . ." On appeal, Ivy Woods disputed the statement in the ALJ's discussion of Finding of Fact 12.b. that "the surveyor did testify that . . . no staff was present." ALJ Decision at 25. While the surveyor did not expressly testify to this effect, she testified that the Statement of Deficiencies was accurate. Tr. at 225. The Statement of Deficiencies refers to observation of an unlocked cabinet on June 25 from 6:10 to 7:20 a.m. "with no staff noted in the area." CMS Ex. 2, at 12. Thus, the ALJ's finding is supported by substantial evidence.

We therefore affirm Findings of Fact 8, 9, 12 and 13.

Finding of Fact 10

Finding of Fact 10 relates to 42 C.F.R. § 483.15(e)(1), which states that "[a] resident has a right to . . . [r]eside and receive services in the facility with reasonable accommodation of individual needs and preferences . . . ." The finding states:

a. R. 43's plan of care required that a call light be in easy reach at all times and that R. 43 be encouraged to use the call light, but the wrong type of operating device was provided because R 43 suffered from bilateral hand contractions and was unable to squeeze a bulb type call light device.

b. On June 24, 2001, the surveyor observed that R. 40's call light was out of reach for 50 minutes, which is contrary to the requirements of her care plan.

c. R. 20 was observed sitting in a chair with his call light on the floor on two occasions contrary to the requirements of his care plan.

ALJ Decision at 4. On appeal, Ivy Woods argued, as it did before the ALJ, that call lights inevitably move, and that the issue is therefore not whether the residents always had a call light within reach but rather whether staff knew when these residents needed assistance without being alerted by the call light and whether staff repositioned the residents' call lights when interacting with the residents. We conclude that this argument is unavailing.

Ivy Woods did not dispute on appeal the ALJ's finding that R.43 was completely unable to use the type of call light that she was given; thus, the issue for this resident was not whether staff were aware of the resident's needs during a limited time when the call light had moved out of reach. ⁽³⁾ Ivy Woods did not cite any evidence that its staff would know when R.40 needed assistance without being alerted by a call light. ⁽⁴⁾ Ivy Woods asserted that R. 20's room was "very close" to the nurse's station and that her call light was out of place for only "minutes or seconds" (Ivy Woods Br. at 11, citing Tr. at 252-253); however, the testimony was rather that the resident's room was "fairly close to the nurses's station" and that the surveyor did not "know exactly the minutes or seconds" the call light had been on the floor. This does not clearly establish that Ivy Woods' staff would know when R.20 needed assistance without a call light.

We therefore affirm Finding of Fact 10.

Finding of Fact 11

This finding relates to 42 C.F.R. § 483.15(g), which states that "[t]he facility must provide medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident." The ALJ found that the requisite social services were not provided to eight residents. The ALJ rejected Ivy Woods' argument that the surveyors who made this determination based on their review of facility records and interviews with the residents involved were not qualified by education or training to determine what social services should have been provided. The ALJ observed that "Petitioner does not specifically rebut, either by evidence or argument, any of their testimony" and stated that he was "satisfied based on their testimony that the three surveyors were well qualified as surveyors and their testimony about their observations and analysis of Petitioner's documents is credible." ALJ Decision at 23. The ALJ also noted that "Petitioner's attack on the surveyors' qualifications and conclusions does not address cases, such as that of R.78 and R.2, in which its own records indicated that social services should have been provided but were not." Id. On appeal, Ivy Woods renewed its general argument regarding the surveyors' qualifications and also challenged the ALJ's findings with respect to five of the eight residents.

We conclude that Finding of Fact 11 is supported by substantial evidence in the record as a whole. As discussed earlier, we give deference to an ALJ's credibility determinations; thus, Ivy Woods' general challenge to the surveyors' testimony is not a basis for reversing this finding of fact. Moreover, Ivy Woods did not specifically dispute the surveyors' testimony with respect to three of the eight residents, R.78, R.21, and R.20 (addressed in FFCL 11.b., 11.f., and 11.h.) Furthermore, Ivy Woods did not dispute that the social worker who worked in its facility told the surveyor that she had been working part-time for only one to two hours per week and did not have time to deal with all 75 residents. ALJ Decision at 24, citing Tr. at 70; CMS Ex. 1, at 4. Since these undisputed findings are fully sufficient to support the ALJ's conclusion that Ivy Woods violated section 483.15(g) by failing to provide necessary social services (Conclusion of Law 9), we do not need to address or rely on the ALJ's findings regarding the remaining five residents (addressed in FFCL 11.a., 11.c., 11.d., 11.e., and 11.g.). ⁽⁵⁾

Finding of Fact 14

This finding relates to 42 C.F.R. § 483.25(c), which states that a facility must ensure that "(1) A resident who enters the facility without pressure sores does not develop sores unless clinical conditions demonstrate that they were unavoidable; and (2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing." The ALJ found in pertinent part that R.2 developed pressure sores while in the facility and that "[t]he sores suffered by R.2 were not unavoidable." ALJ Decision at 7. ⁽⁶⁾ The ALJ commented elsewhere that "Petitioner . . . presented no competent evidence that the sores suffered by R.2 were unavoidable." Id. at 33. On appeal, Ivy Woods repeated its argument below that R.2's low red blood count caused her skin not to heal and that the facility was not responsible for her low red blood count. Although the ALJ did not specifically address this argument, he correctly found that there is no competent evidence that R.2's pressure sores were unavoidable. A facility cannot meet its burden of proof on the issue of whether a pressure sore is unavoidable merely by establishing that the resident's clinical condition heightens the risk that pressure sores will develop. (It is thus unnecessary to determine whether Ivy Woods established that to have been the case for R.2.) Prior Board decisions have interpreted "clinically unavoidable" to mean not just unsurprising given the clinical condition of the resident, but incapable of prevention despite appropriate measures taken in light of the clinical risks. See, e.g., Livingston Care Center, DAB No. 1871 (2003) ("a pressure sore can be considered unavoidable only if routine preventive care is provided," citing State Operations Manual (SOM), Appendix PP). The language of the regulation clearly calls for facilities to take necessary actions in the face of high-risk conditions in order to prevent new sores. The Board has articulated the resulting obligation as follows:

Thus, in the area of pressure sores, the facility bears a duty to "go beyond merely what seems reasonable to, instead, always furnish what is necessary to prevent new sores unless clinically unavoidable, and to treat existing ones as needed." Koester Pavilion, DAB No. 1750, at 32.

Meadow Wood Nursing Home, DAB No. 1841 (2002).

We therefore affirm Finding of Fact 14.

Finding of Fact 16

This finding relates to 42 C.F.R. § 483.25(h)(2), which states that "[t]he facility must ensure that . . . [e]ach resident receives adequate supervision and assistance devices to prevent accidents." The finding states:

a. R.34 demonstrated her ability to remove her lap buddy and tether alarm.

b. R.34 needed to receive adequate supervision to ensure she did not circumvent the alarms and restraints imposed by Petitioner to prevent her from falling.

c. R.34's repeated falls, despite the tether alarm and lap buddy and the obvious availability of a pressure sensitive alarm (when it occurred to Petitioner's nurse supervisor to use one), show that Petitioner had not tried all reasonably available assistive devices and had not supervised R.34 closely enough.

d. R.10's records show she had nine falls between May 23, 2001 and the date of the survey.

e. Petitioner had interventions in place for R.10 to reduce the risk of falls, including a personal tether alarm.

f. R.10 was observed at various times without her personal alarm attached indicating that R.10 received inadequate supervision in the use of the alarm to prevent or minimize the risk of falls.

g. While Petitioner implemented the intervention of a personal alarm, the surveyor's frequent observation of R.10 without that alarm attached, during the brief period of the survey, indicates that R.10 was not receiving the supervision necessary to ensure that the alarm was effective.

h. Petitioner had implemented interventions for R.21 including the use of a personal alarm and keeping R.21's call light within easy reach. R.21 as observed on several occasions without his personal alarm attached or with the call light out of reach. Tr. at 242.

i. R.21 did not receive the supervision necessary to ensure the interventions of a personal alarm and call light were effective in minimizing the risk of harm associated with falls.

ALJ Decision at 8-9. Below, we address Ivy Woods' arguments with respect to each of the three residents in turn. ⁽⁷⁾

R.34

Ivy Woods argued that there were no other assistance devices it could have provided to prevent R.34 from falling because R.34 removed devices with alarms and because restraints were not safe for R.34. This argument is unavailing. The ALJ found that a pressure sensitive pad would have been an effective intervention. ALJ Decision at 35. (Contrary to what Ivy Woods indicated, the surveyor testified that the facility did not use a pressure sensitive pad until she suggested it during the survey. Tr. at 81-82.) Thus, there was an assistance device that could have been used to prevent R.34 from falling other than the tether alarm that Ivy Woods used for this resident and any allegedly unsafe restraints. ⁽⁸⁾ Even if there were no other assistance devices that would have been appropriate for R.34, Ivy Woods was not in substantial compliance with the regulation since it did not dispute that it failed to provide adequate supervision to prevent accidents. As the ALJ noted, "Section 483.25(h)(2) requires that a facility provide both 'assistive devices' and 'adequate supervision' to prevent accidents." ALJ Decision at 34 (emphasis in original). Thus, if assistance devices are not effective to prevent foreseeable falls, a facility must provide a higher level of supervision.

Ivy Woods also asserted that the surveyor did not "continuously" observe R.34. However, Ivy Woods did not dispute that R.34 was unsupervised at the times noted by the surveyor. Thus, even if Ivy Woods provided adequate supervision at other times, that does not establish that overall the supervision provided was adequate.

Ivy Woods further asserted that it was difficult to predict R.34's falls because they occurred in several different settings, i.e., from bed or chair, or while walking. As the ALJ correctly stated, however, the salient question is "whether the facility had notice of or should reasonably have anticipated the risk of the kind of events that occurred and whether any reasonable means were available to prevent them . . . ." ALJ Decision at 34, citing Woodstock Care Center, DAB No. 1726, at 26-27 (2000), aff'd, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003). Ivy Woods did not point to anything in the record to show that falls in a variety of settings were not reasonably foreseeable. Thus, Ivy Woods' assertion does not undermine the ALJ's finding that it had not tried all reasonably available assistance devices or supervised R.34 closely enough.

Additionally, Ivy Woods cited the surveyor's testimony that there were no physician's orders for R.34 that the facility had not complied with. Ivy Woods Br. at 21, citing Tr. at 298. The fact that Ivy Woods followed all physician's orders would not establish that Ivy Woods was in substantial compliance with the regulation since the regulation places responsibility on the facility to ensure that each resident receives adequate supervision and assistance devices. In any event, Ivy Woods did not assert that the physician's orders adequately addressed R.34's risk of falling, and our review of the physician's orders does not show any orders designed to address this risk except an order for physical therapy for balance and for a padded siderail. See P. Ex. 8, at 13, 22, 26.

Finally, Ivy Woods asserted that "cueing" R.34 "to remind her of her safety needs is an appropriate and effective intervention," and that R.34 "was resistive to care." Ivy Woods Br. at 21, citing Tr. 297-298. Ivy Woods also asserted with respect to this deficiency finding that R.34 was able to use her call light. As the ALJ correctly stated, however, "Petitioner's assertion that it had implemented measures, a point that is not disputed, and the testimony of Ms. Feagin and Ms. Vickers about . . . the fact that R. 34 was often not cooperative . . . do not address the issue of whether Petitioner did all it reasonably could to address the known risk that R. 34 was going to fall again." ALJ Decision at 35-36.

R.10

Ivy Woods asserted that the surveyor acknowledged at the hearing that the Statement of Deficiencies was incorrect regarding R.10, citing in particular the statement in the SOD that there were "no new interventions" after a June 10 fall. Ivy Woods Br. at 22, citing Tr. at 237. Ivy Woods mischaracterized the surveyor's testimony, however. The surveyor stated that a new care plan was developed after the fall, but further stated that the care plan merely addressed care of the head injury sustained by R.10 and that "[t]here was nowhere on that care plan as to what are you going to do to prevent further falls." Tr. at 237. The surveyor's testimony is corroborated by what is recorded on R.10's care plan. See CMS Ex. 18, at 21. Ivy Woods did not point to any other evidence that it implemented any new interventions after the June 10 fall. Thus, the ALJ's finding that Ivy Woods failed to provide adequate supervision to ensure that the intervention already in place-- R.10's personal alarm--was effective supports his conclusion that Ivy Woods failed to substantially comply with section 483.25(h)(2) with respect to this resident.

Ivy Woods also asserted that a resident has a right to reject any form of care, treatment or intervention, including a restraint. Although section 483.10(b)(4) provides that a resident has the right to refuse treatment, Ivy Woods did not point to any evidence that R.10 refused to use the personal alarm that the ALJ found would have been an effective intervention if R.10 had been appropriately supervised. Simply because the alarm was observed to be detached does not mean that R.10 refused to use it.

R.21

Ivy Woods cited testimony that call lights move out of place and that aides are trained to make sure that the call light is in place every time a resident is repositioned. Ivy Woods Br. at 23, citing Tr. at 321-322. The ALJ's finding that R.21 did not receive the supervision necessary to ensure that the call light was effective in minimizing the risk of harm from falls is not inconsistent with this testimony, however. The ALJ could have reasonably determined that having staff check the call lights when repositioning the residents did not constitute adequate supervision since the cited testimony does not specify how often residents were repositioned. While the same witness also testified that residents were scheduled to be turned every two hours (Tr. at 308-309), she did not testify that this was based on an evaluation of each resident's individual needs, which the regulation implicitly requires.

We therefore affirm Finding of Fact 16.

Finding of Fact 17

This finding relates to 42 C.F.R. § 483.75, which states that "[a] facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well being of each resident." The finding states:

a. On June 26, 2001, at about 9:10 a.m., the surveyor observed four staff members incorrectly use a mechanical lift to transfer R.40 from a shower bed to her regular bed in a manner so that R. 40's legs made hard contact with the vertical bar of the lift.

b. The nurse aides who were transferring R. 40 did not demonstrate competence in the use of the lift.

c. The hard contact with part of the lift constitutes actual harm.

ALJ Decision at 9.

On appeal, Ivy Woods cited the testimony of its nurse aide coordinator that the transfer of R.40 from her regular bed to the shower bed was done correctly. Ivy Woods Br. at 24, citing Tr. at 314. However, the transfer at issue here was from the shower bed to R.40's regular bed, which was done following R.40's shower. Ivy Woods pointed to nothing indicating that the manner in which the earlier transfer was done had any bearing on whether the later transfer was done correctly. Moreover, the ALJ found in relation to another alleged deficiency that the nurse aide coordinator's testimony about the earlier transfer was "conclusory and unpersuasive" as compared to the surveyor's testimony. ALJ Decision at 27.

Ivy Woods also cited the testimony of the charge nurse to the effect that because of R.40's height, she would not hit any gaps at the end or middle of the shower bed. Ivy Woods Br. at 24, citing Tr. at 420-421. However, this testimony also relates to the earlier transfer from R.40's regular bed to her shower bed.

Finally, Ivy Woods argued that the method the surveyor said should have been used to transfer R.40 to her regular bed from the shower bed would not have been appropriate. Specifically, Ivy Woods asserted that R.40's fear of falling would have made this method inappropriate since this method would have required that R.40 be suspended over the floor in a lift while the shower bed was moved out of the way. R.40's care plan states that "anxiety/fear expressed while being Transferred per hoyer lift." CMS Ex. 25, at 22. However, Ivy Woods did not dispute the surveyor's testimony (at Tr. 290-291) that the resident would have to be suspended over the floor at some point during the transfer regardless of whether the lift was placed between the shower bed and the regular bed (as occurred in this case) or whether shower bed was placed next to the regular bed with the lift on the other side of the shower bed (as the surveyor said should have been done). Thus, the ALJ could have reasonably concluded that, regardless of R.40's fear of falling, the transfer method endorsed by the surveyor would have been preferable to the method used by facility staff which resulted in hitting R.40's legs.

We therefore affirm Finding of Fact 17.

Ivy Woods stated that it excepted to Conclusions of Law 2-5, 7-12, 15, and 17. In support of its exceptions, Ivy Woods argued generally that "there was no testimony of any pattern of conduct which establishes a violation of the regulations." Ivy Woods Br. at 28. As we have previously held, however, "even one isolated instance of non-compliance having a potential for more than minimal harm may be the basis for a finding" that the facility has failed to comply substantially with a participation requirement and, consequently, may lead to the imposition of a CMP. Ridge Terrace, DAB No. 1834, at 6 (2002), citing Lake City Extended Care Center, DAB No. 1658 (1998). Here, the ALJ found that all of the deficiency findings he sustained had the potential for more than minimal harm and that some of these violations caused actual harm. ALJ Decision at 13, 40.

Ivy Woods also cited an ALJ decision and a state court decision for several legal principles without explaining what bearing these principles had on this case. See Ivy Woods Br. at 28. Accordingly, we find no basis in these decisions for reversing any of the conclusions of law to which Ivy Woods stated it took exception.

Below, we discuss Conclusions of Law 2, 4, 5, 7, and 15, to which Ivy Woods specifically referred in its appeal brief. Since Ivy Woods did not specifically refer to the remaining conclusions of law to which it took exception, Conclusions of Law 3, 8-12, and 17, we affirm these conclusions of law without further discussion.

Conclusion of Law 2

The ALJ concluded:

The evidence in this case is not evenly balanced or in equipoise, accordingly it is not necessary to decide this case based upon which party bears the burden of proof.

ALJ Decision at 9.

Ivy Woods argued that the case could not be properly decided without assignment of the burden of proof. Ivy Woods Br. at 27-28. This argument has no merit. As the ALJ Decision notes, in a prior case, the Board held, and the court affirmed, that allocation of burden of proof is material only where the evidence is in equipoise. Fairfax Nursing Home, Inc., DAB No. 1794 (2001), aff'd, Fairfax Nursing Home, Inc. v. U.S. Dept. of Health and Human Svcs., 300 F.3d 835, 840, n.4 (7th Cir. 2002), cert. denied, 537 U.S. 1111 (2003). We agree with the ALJ's conclusion that the evidence in the case now before us is not in equipoise. (Indeed, Ivy Woods did not unequivocally assert that the evidence was in equipoise. See Ivy Woods Br. at 24.) ⁽⁹⁾

We therefore affirm Conclusion of Law 2. ⁽¹⁰⁾

Conclusion of Law 4

The ALJ concluded that:

Section 483.10(e)(1) of 42 C.F.R. imposes upon facilities the duty to protect the privacy rights of all residents, not just those residents who can appreciate their rights and it is no defense to a citation of deficiency that a resident was unable to perceive a violation of his or her rights. See Price Hill Nursing Home, DAB No. 1781 (2001); The Windsor House, DAB CR1039 (2003).

ALJ Decision at 9. Ivy Woods argued that this conclusion "is premised upon a distortion of the testimony and evidence." Ivy Woods Br. at 27. Ivy Woods stated that it-

never claimed a "defense" of the ability of the resident to perceive a violation. What was proven was the comatose resident has spastic involuntary movements which cause the covering to come off. It is a routine and ongoing practice which the facility is incapable of preventing.

Id.

Contrary to Ivy Woods' suggestion, however, the ALJ did address Ivy Woods' argument below that there was no deficiency because it could not prevent the resident from becoming uncovered due to her own involuntary movements. The ALJ stated that-

[t]he testimony of Petitioner's witnesses, that R. 11 moved so as to cause her clothing to rise and her bed clothes to move, is credible but does not address the issue of why the staff member present in the room did not pull the privacy screen and/or close the door to ensure R. 11's personal privacy.

ALJ Decision at 17 (discussing Finding of Fact 8.a.). In other words, the ALJ concluded that Ivy Woods could have ensured R.11's privacy by pulling the privacy screen and/or closing the door even if it could not prevent the resident from becoming uncovered. This conclusion is not invalidated by the fact that the ALJ also addressed other arguments that he believed might have been made by Ivy Woods.

We therefore affirm Conclusion of Law 4.

Conclusion of Law 5

The ALJ concluded that "Petitioner violated 42 C.F.R. § 483.10(e)(1) by failing to protect the privacy of R. 11." ALJ Decision at 9. Ivy Woods asserted that this was a statement of fact, not a conclusion of law, and was erroneous for reasons stated elsewhere.

In our view, Conclusion of Law 5 was properly identified as such, but the manner in which the ALJ labeled his findings and conclusions is irrelevant. In any event, we affirmed above the finding of fact on which Conclusion of Law 5 is based (Finding of Fact 8), and Ivy Woods pointed to no legal error in the ALJ's reasoning.

We therefore affirm Conclusion of Law 5.

Conclusion of Law 7

The ALJ concluded that-

Title 42 C.F.R. § 483.15(a) requires that staff treat residents respectfully and in a manner to help maintain or enhance the resident's dignity. The focus of the regulation is upon the conduct of staff toward the resident and not the conduct of the resident toward the staff. Thus, whether, as Petitioner suggests, R. 40 is a constant complainer and attention seeker or R. 2 was crying for some other reasons, it was staff's failure to respond appropriately that constituted the violation.

ALJ Decision at 10. Ivy Woods asserted that the ALJ misconstrued its position as being that the focus of the regulation is on the conduct of the resident toward the staff. According to Ivy Woods, its argument was instead that CMS witnesses improperly relied on R.40's statements in finding that there was a deficiency under section 483.15(a) since R.40's statements were unreliable in light of her condition, dementia and conduct.

Contrary to what the latter argument suggests, however, nothing in the ALJ Decision indicates that the truth of the statements made by R.40 and cited by the surveyors was a relevant consideration in determining whether a deficiency under section 483.15(a) existed. To the contrary, the ALJ found that, regardless of the reliability of R.40's statements, a deficiency existed because staff "ignored [R.40's] assertions" and "talked about her like she was not there. . . ." ALJ Decision at 20. The ALJ stated specifically: "These acts are not respectful and would diminish the dignity of any person, whether or not the person is manipulative." Id. Thus, Ivy Woods' argument is not a basis for finding any legal error in Conclusion of Law 7.

We therefore affirm Conclusion of Law 7.

Conclusion of Law 15

The ALJ concluded that "Petitioner violated 42 C.F.R. § 483.25(h)(2) by failing to use proper assistive devices or give necessary supervision to minimize the risk for falls for R. 10, R. 21, and R. 34." ALJ Decision at 11. In discussing this conclusion, the ALJ stated in part:

In order to evaluate a facility's compliance with section 483.25(h), it is necessary to examine whether the facility did all it could to "prevent foreseeable accidents" or whether the facility did "everything in its power to prevent accidents." Odd Fellow and Rebekah and Health Care Facility, DAB No. 1839, at 6-7 (2002), quoting Asbury Care Center at Johnson City, DAB No. 1815, at 12 (2002), and Koester Pavilion, DAB No. 1750, at 25-26 (2000).

ALJ Decision at 34. Ivy Woods argued that the ALJ did not apply the correct standard, contending that it "is beyond the statutory standard of reasonableness and substantial compliance" to require that a facility "do everything in its power to prevent accidents." Ivy Woods Br. at 25-26.

Although the statement quoted from Asbury Center and Koester does not track the wording of the regulation, it is clear from the ALJ's analysis here that he applied the applicable regulatory standard. As noted above, the ALJ also cited Woodstock Care Center, upheld by the Sixth Circuit, in which we analyzed the wording, context, and history of section 483.25(h)(2) and, based on that analysis, set out a framework for evaluating allegations of noncompliance with that requirement. Woodstock Care Center at 25-30 (citing 54 Fed. Reg. 5316, 5332 (February 2, 1989). We determined that although section 483.25(h)(2) does not hold a facility strictly liable for accidents that occur, it does require the facility to take reasonable steps to ensure that a resident receives supervision and assistance devices designed to meet his or her assessed needs and to mitigate foreseeable risks of harm from accidents. Id.; see also Odd Fellow and Rebekah Health Care Facility, DAB No. 1839 (2002). A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an "adequate" level of supervision under all the circumstances. See Woodstock Care Center. What is "adequate" supervision depends, of course, on the resident's ability to protect himself or herself from harm. Id.

Moreover, Ivy Woods' argument misapprehends the meaning of substantial compliance. To the extent that Ivy Woods intended to argue that a facility need not adhere to the regulatory standard because 42 C.F.R. § 488.400 provides that a facility becomes subject to remedial action only when it is not in "substantial compliance" with one or more participation requirements, we reject that argument. A facility is not in substantial compliance with a participation requirement if it has a deficiency that creates at least the "potential for more than minimal harm" to one or more residents. 42 C.F.R. §§ 488.301. Thus, a facility that does not meet the regulatory standard may be subject to remedial action unless the deficiency causes no actual harm and has a potential for only minimal harm.

We therefore affirm Conclusion of Law 15.

Conclusion

For the reasons stated above, we affirm all of the ALJ's findings of fact and conclusions of law. Accordingly, we sustain the CMP of $6,600 imposed in this case.

Judith A. Ballard

Cecilia Sparks Ford

Donald F. Garrett
Presiding Board Member

1. The ALJ concluded that CMS failed to make a prima facie case as to two of the alleged deficiencies (identified in the ALJ Decision as F Tag 315 and F Tag 364). The ALJ stated that he "decline[d] to rule on F Tag 371." ALJ Decision at 16. Since we agree with the ALJ that this deficiency finding was not material to his decision-making, we conclude that he properly exercised judicial economy in declining to address this deficiency finding. See Northern Montana Care Center, DAB No. 1930, at 11, and n.3 (2004).

2. Each of the numbered Findings of Fact identifies a particular Medicare participation requirement by the "F Tag" number shown in the State survey agency's Statement of Deficiencies, followed by one or more paragraphs with findings relating to one or more residents.

3. The ALJ Decision notes that Linda Vickers, a staff nurse at Ivy Woods, testified that R.43 could use her call light. ALJ Decision at 21, citing Tr. at 402. However, the ALJ accepted the surveyor's declaration to the contrary on the ground that Ms. Vickers' testimony was "not specific" and did "not negate or rebut" the surveyor's reported observations, noting also that Ivy Woods did not address the example related to R.43 in its post-hearing brief. ALJ Decision at 21-22.

4. As discussed later, Ivy Woods suggested with respect to Finding of Fact 14 that its alleged policy of checking the placement of call lights every time staff repositioned a resident ensured that the residents received adequate supervision and assistance devices to prevent accidents. Reliance on this policy alone was clearly not consistent with the requirements of the residents' care plans.

5. The surveyors determined that the scope of the deficiency was "E," i.e., "pattern," rather than "widespread." The scope could reasonably be considered the same when the number of residents is reduced from eight to three.

6. Since Ivy Woods did not clearly raise any arguments on appeal about the remainder of the finding, we do not quote that part of the finding.

7. Some of the arguments raised by Ivy Woods on appeal were not raised before the ALJ; thus, it is not clear that such arguments are properly before us. We nevertheless consider them all for the sake of completeness.

8. Ivy Woods did not point to any evidence that it decided not to use a particular assistance device because it was a restraint, however.

9. In any event, even if the evidence is in equipoise, the Board has previously rejected the argument put forth again here by Ivy Woods' counsel that a long-term care facility does not bear the ultimate burden of persuasion. See Omni Manor Nursing Home, DAB No. 1920 (2004); Batavia Nursing and Convalescent Center, DAB No. 1911 (2004); Batavia Nursing and Convalescent Center, DAB No. 1904 (2004).

10. Ivy Woods stated that the ALJ's erroneous conclusion in Conclusion of Law 2 "taints all of the conclusions of law . . . ." Ivy Woods Br. at 27. Since we conclude that Ivy Woods' exception to Conclusion of Law 2 is without merit, this exception does not provide a basis for reversing any of the other disputed conclusions of law.