Donelson Place Care and Rehabilitation Center, DAB No. 3046 (2021)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Donelson Place Care and Rehabilitation Center (Petitioner) appeals the decision of an Administrative Law Judge (ALJ) upholding the imposition by the Centers for Medicare & Medicaid Services (CMS) of multiple enforcement remedies, including termination of Petitioner’s participation in Medicare on June 1, 2015, after repeated surveys determined that Petitioner was not in substantial compliance with Medicare requirements.  Donelson Place Care & Rehab. Ctr., DAB CR5132 (2018) (ALJ Decision).

We conclude that the ALJ correctly determined that termination was mandatory based on the facts of record and that the other remedies imposed were reasonable.  We therefore sustain the ALJ Decision.

Applicable Legal Authorities

The requirements for participation by skilled nursing facilities (SNFs) in Medicare are in section 1819 of the Social Security Act (Act) and in regulations in 42 C.F.R. Part 483.  Section 1819(h)(2) of the Act authorizes the Secretary to impose enforcement remedies against a SNF for failure to comply substantially with the federal participation requirements.  To participate in the Medicare program, a SNF must be in “substantial compliance” with the participation requirements in 42 C.F.R. Part 483, subpart B.  42 C.F.R. §§ 483.1, 488.400.1   The term “noncompliance,” as used in the applicable regulations, is synonymous with lack of substantial compliance.  Id. § 488.301 (defining “noncompliance”).  “Substantial compliance” means “a level of compliance with the

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requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.”  Id.

Compliance with the Part 483 requirements is verified through onsite surveys performed by state health agencies.  Id. §§ 488.10(a), 488.11.  A state agency reports any “deficiency” (“failure to meet a participation requirement”) it finds in a statement of deficiencies (SOD) and rates the level of seriousness of each.2   Id. §§ 488.301, 488.325(f)(1). 

When a facility is found not in substantial compliance, CMS may impose enforcement “remedies,” including civil money penalties (CMPs), denial of payment for new admissions (DPNA), and termination.  Id. §§ 488.400, 488.402(a)-(c), 488.406, 488.417, 488.430.  CMS may terminate –

a facility’s provider agreement if a facility –  
(i) Is not in substantial compliance with the requirements of participation, regardless of whether or not immediate jeopardy is present; or
(ii) Fails to submit an acceptable plan of correction within the timeframe specified by CMS or the State.

Id.§ 488.456(b).

The Act requires the Secretary to terminate the Medicare participation of any SNF that does not return to substantial compliance with participation requirements within six months of being found not in substantial compliance (sometimes referred to as “mandatory termination”).  Act § 1819(h)(2)(C).  The implementing regulations thus provide that, where a SNF has been found noncompliant at a level less than immediate

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jeopardy,3 CMS “may terminate the facility’s provipppppder agreement or may allow the facility to continue to participate for no longer than 6 months from the last day of the survey” when CMS considers an alternative remedy than termination appropriate.  42 C.F.R. § 488.412(a) (1) (emphasis added).  If a SNF allowed to continue to participate under section 488.412(a) is not in substantial compliance within 6 months of the last day of the survey, CMS will terminate the facility’s participation.  Id. § 488.412(d).

Case Background4

Petitioner is a nursing facility in Nashville, Tennessee participating in both the Medicare and Medicaid programs.  On December 1, 2014,5 the state survey agency completed a complaint investigation and partial extended survey that found noncompliance with nine distinct requirements at a level posing immediate jeopardy to its residents that had existed since October 12, 2014 and was continuing at the time the survey ended.  CMS Ex. 1. Petitioner chose not to appeal these findings, and they are therefore final, along with the remedies, including a $10,000 per-instance CMP (reduced by 35% based on the decision not to appeal), that CMS imposed based on the findings.  ALJ Decision at 2 and n.2; CMS Ex. 14, at 2. 

A revisit survey completed on December 17, 2014, determined that Petitioner had abated the immediate jeopardy on December 11, 2014, but continued to be out of substantial compliance with applicable requirements.  CMS Ex. 3, at 2.  Again, Petitioner did not challenge this determination.  In addition to the remedies imposed as a result of the December 1, 2014 survey findings, CMS imposed a $150 per day CMP effective December 11, 2014, and a discretionary denial of payment for new admissions (DPNA) beginning December 13, 2014, and continuing until Petitioner either returned to substantial compliance or had its provider agreement terminated.  CMS Ex. 14, at 3; CMS Ex. 15, at 2.   

A second revisit, combined with another complaint investigation, took place January 29, 2015.  CMS determined that, although the deficiencies cited in the two December surveys, were corrected as of December 19, 2014 (CMS Ex. 7), additional noncompliance existed (CMS Ex. 6).  The survey agency made three additional noncompliance findings,

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including one – identified in the SOD under Tag F1666 – relating to the requirement in 42 C.F.R. § 483.10(f)(2) to promptly resolve grievances.  Id. at 1, 3, 5.  The facts alleged under Tag F166 indicate that the cited noncompliance began in October 2014 and remained uncorrected as of the survey.  Id. at 1-3.  Based on the noncompliance findings of the January 29, 2015 revisit survey, CMS increased the per-day CMP to $200 per day effective December 19, 2014, and continued the DPNA in effect because Petitioner had still failed to return to substantial compliance.  CMS Ex. 16.  CMS further warned that Petitioner would be subject to mandatory termination effective June 1, 2015, if it did not achieve substantial compliance by that date.  Id. at 2.

On March 4, 2015, the state survey agency performed a third revisit and found that Petitioner had not adequately implemented its approved plan of correction for the noncompliance cited by the January 29, 2015 survey (under Tag F166) as having begun in October 2014, and that Petitioner therefore had still not returned to substantial compliance.  CMS Ex. 8, at 1-2.  The surveyors also cited noncompliance under eight tags at various levels of seriousness arising from failures occurring between January 29, 2015 and the end of the survey.  Id., passim.  Based on the findings of the March 4, 2015 revisit survey, CMS increased the CMP amount to $1,200 per day effective January 26, 2015, and advised Petitioner that the DPNA continued in effect.  CMS Ex. 9.  CMS again warned that Petitioner would be subject to mandatory termination if it did not achieve substantial compliance by June 1, 2015.  Id. at 2. 

The surveyors returned two more times in 2015.  On March 20, 2015, surveyors completed Petitioner’s annual survey and yet another complaint investigation, concluding that Petitioner remained out of substantial compliance, with some violations found to have begun as far back as August 2014.  CMS Ex. 10.  CMS explained that all prior remedies remained in effect, except the CMP was increased to $2,050 per day beginning February 25, 2015.  CMS Ex. 17.  CMS warned Petitioner that based on the initial survey date of December 1, 2014, it was subject to mandatory termination effective June 1, 2015, if it did not achieve substantial compliance.  Id. at 2.  On May 22, 2015, the fourth and final revisit survey and complaint investigation were completed, and again Petitioner was found not in substantial compliance with multiple requirements, with some deficiencies cited at the level of immediate jeopardy.  CMS Ex. 13.

As a result of the May 22, 2015 survey, CMS notified Petitioner on May 29, 2015, that its participation in Medicare would be terminated involuntarily on June 1, 2015.  CMS Ex. 18, at 1-2 (citing 42 C.F.R. §§ 488.456(b)(l)(i) and 489.53).  CMS also increased the

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CMP to $6,800 per day effective April 22, 2015, and continued the DPNA through the date of termination.  Id. at 2.

The ALJ summarized the remedies imposed as follows:

Termination of Petitioner’s provider agreement and participation in Medicare effective June 1, 2015;
Civil money penalty (CMP) of $200 per day from December 19, 2014 through January 25, 2015;
CMP of $1,200 per day from January 26, 2015 through February 24, 2015;
CMP of $2,050 per day from February 25, 2015 through April 21, 2015;
CMP of $6,800 per day from April 22, 2015 through June l, 2015; and Denial of payment for new admissions (DPNA) effective December 13,
2014 through termination on June l, 2015.

ALJ Decision at 1-2.

On April 10, 2015, Petitioner requested review of the findings of noncompliance and resulting remedies from the January 29, 2015, March 4, 2015, and March 20, 2015 surveys, and later amended its request to add the May 22, 2015 survey.  Id. at 4.  The ALJ conducted a hearing by videoconference and later admitted some further exhibits offered in response to testimony at the hearing.  Id.

ALJ Decision

The ALJ’s conclusions are set out as headings with extensive discussion below each conclusion (or set of conclusions) laying out his factual findings and supporting analysis.  We reproduce the conclusions together here for easy reference:

1.  It is not disputed that Petitioner was not in substantial compliance during the period December 1 through 18, 2014, because Petitioner waived ALJ review of the allegation of noncompliance during that period as alleged by the surveys completed on December 1 and 17, 2014.
2.  The six-month survey cycle began in this case on December 1, 2014.
3. The state agency did not certify that Petitioner returned to substantial compliance on December 19, 2014; therefore, the six-month survey cycle did not end on December 19, 2014.
4.  Petitioner waived review of the allegations of noncompliance of the March 20, 2015 survey, which alleged noncompliance beginning prior to December 19, 2014.
5.  Petitioner has by failure to defend the allegations of deficiencies from the March 20, 2015 survey, waived arguments that it was in substantial

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compliance at any point during the period December 1, 2014 through at least March 18, 2015.
6.   There is a basis for the imposition of enforcement remedies from December 19, 2014 through at least March 18, 2015.
7.  Petitioner violated 42 C.F.R. § 483.10(f)(2) (Tag F166) and the violation posed a risk for more than minimal harm as alleged by the survey completed on January 29, 2015.
8.  Petitioner violated 42 C.F.R. § 483.60(b), (d), (e) (Tag F431) and the violation posed a risk for more than minimal harm as alleged by the survey completed on January 29, 2015.^[7 ^]
9.  Petitioner violated 42 C.F.R. § 483.65 (Tag F441) and the violation posed a risk for more than minimal harm as alleged by the survey completed on January 29, 2015.
10.  Petitioner violated 42 C.F.R. § 483.12(a)(2) (Tag F201) and the violation posed a risk for more than minimal harm as alleged by the survey completed on May 22, 2015.
11.  Petitioner violated 42 C.F.R. § 483.12(a)(3) (Tag F202) and the violation posed a risk for more than minimal harm as alleged by the survey completed on May 22, 2015.
12.  Petitioner violated 42 C.F.R. § 483.12(a)(4)-(6) (Tag F203) and the violation posed a risk for more than minimal harm as alleged by the survey completed on May 22, 2015.
13.  Petitioner violated 42 C.F.R. § 483.12(a)(7) (Tag F204) and the violation posed a risk for more than minimal harm as alleged by the survey completed on May 22, 2015.
14.  Petitioner violated 42 C.F.R. § 483.75 (Tag F490) and the violation posed a risk for more than minimal harm as alleged by the survey completed on May 22, 2015.
15.  Petitioner has failed to show that the declaration of immediate jeopardy related to the noncompliance with 42 C.F.R. §§ 483.12(a)(2), (a)(3), (a)(4)-(6), and (a)(7); and 483.75 was clearly erroneous, or that immediate jeopardy was abated prior to termination on June 1, 2015.
16.  A CMP of $200 per day from December 19, 2014 through January 25, 2015; a CMP of $1200 per day from January 26, 2015 through February 24, 2015; a CMP of $2050 per day from February 25, 2015 through April 21, 2015; a CMP of $6800 per day from April 22, 2015 through June 1, 2015; a DPNA from December 13, 2014 through termination on June 1, 2015, are reasonable enforcement remedies.

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17.  Termination of Petitioner’s provider agreement and participation in Medicare on June 1, 2015, after six months of noncompliance that began on December 1, 2014, was mandated by section 1819(h)(2)(C) of the Act.8
18.  Other defenses and issues raised by Petitioner are without merit or are not within my authority to decide.

ALJ Decision at 8, 9, 12, 17, 21, 23, 26, 52, 58, 61 (bold emphasis removed; intervening material omitted).

In relation to the March surveys, as mentioned above, Petitioner identified them in its review requests, but the ALJ explained that Petitioner elected not to present evidence relating to the cited deficiencies and, “thus, does not contest the deficiency citations from the March 4 and 20, 2015 surveys or that they are a basis for the imposition of reasonable enforcement remedies.”  Id. at 14 (citing Pet.’s Post-Hearing Br. at 5).  Moreover, the ALJ reported that Petitioner “states that it accepts the CMP for the period March 20, 2015 through May 18, 2015, the latter date being the date Petitioner asserts is the date it corrected all deficiencies from the March surveys.”  Id. (citing Pet.’s Post-Hearing Br. at 6).  The ALJ also found that CMS’s evidence as to the multiple deficiencies cited in these surveys (many of which were found to have commenced in October or November 2014) supported that Petitioner was indeed noncompliant with the cited provisions.  Id. at 15.  Given Petitioner’s concessions regarding the December survey findings and failure to contest the March survey findings, the ALJ viewed noncompliance as established from December 1, 2014 through at least May 18, 2015.  Id.  The ALJ proceeded to review contested noncompliance findings from the January 29 and May 22, 2015 surveys.9

The ALJ noted that the January 29, 2015 citations included one under Tag F166 which began on “about October 21, 2014, when Petitioner failed to promptly resolve a grievance made by a family member.”  Id. at 16 (citing CMS Ex. 6, at l).  Two other citations from the January 29 survey (under Tags F431 and F441) were found to have begun on January 26, 2015.  Id. (citing CMS Ex. 6, at 4-6).  The ALJ explained that Petitioner’s position was that, but for the alleged noncompliance cited under Tag F166, it was in substantial compliance from December 19, 2014 to January 26, 2015.  Id.

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The noncompliance under Tag F431 involved a nurse leaving a drawer open, on a medication cart that was supposed to be locked, with an opened bottle of insulin in it.  Id.  at 21.  Petitioner admitted the event occurred but denied that it presented the potential for more than minimal harm (the lowest level of harm to establish noncompliance).  Id. at 22.  While it was not clear whether a resident ingesting the insulin orally was likely to happen or would cause harm, the ALJ agreed with the surveyor that a potential for more than minimal harm existed where residents had access to an unsecured medication cart drawer without regard to assessing the specific potential of the medication involved to harm the residents.  Id. at 23. 

The Tag F441 citation was triggered when surveyors observed a large amount of dried human feces on the floor and wall of a resident’s room.  Id.  The ALJ found that allowing feces to remain uncleaned violated Petitioner’s infection control policy to clear all visible contaminated surfaces (and that the policy thus had not been adequately implemented and maintained).  Id. at 24-25.  The ALJ did not find credible the claim that feces were only present for ten or fifteen minutes and held that such contamination presented a risk of more than minimal harm of being spread even if it was not proven that a resident entered the room.  Id. at 25.

The ALJ discussed the circumstances relating to the Tag F166 citation in some detail, given its significance to Petitioner’s view of the case.  The facts as found by the ALJ were that a resident’s family filed a grievance with Petitioner in October 2014 because the resident was repeatedly left in wet diapers at night, and that although the family requested a catheter be used, none was successfully placed until four days later and then it was removed after a few days.10   Id. at 17-20.  In December 2014, after the resident left the facility, the family complained to the state survey agency that their grievance was not resolved.  Id. at 18.  The complaint was investigated during the survey ending January 29, 2015.  Id.  Surveyors determined that Petitioner had not complied with its own policy for handling grievances and failed to discuss the risks involved with catheters with the family.  Id. at 18-19.  The ALJ concluded that Petitioner had presented no evidence that it ever dealt with the problem of the resident being left in wet diapers for extended periods or that it evaluated the tradeoffs of placing a catheter or that it planned for how it would address the resident’s incontinence after removing the catheter.  Id. at 20.  The ALJ rejected as unsupported on the record Petitioner’s claim that surveyors reviewed this grievance and found the facility’s handling adequate during the survey ending December 1, 2014 (which was before the family filed its complaint with the survey agency).  Id. at 20-21.

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The ALJ upheld five noncompliance findings from the May 22, 2015 revisit survey and complaint investigation (Tags F201-204 and Tag F490).  Id. at 26.11   All of the deficiencies the ALJ addressed involved a resident (identified as Resident 102) whose April 22, 2015 discharge resulted in the complaint investigation component of the survey.  After a detailed discussion of Resident 102’s admission to and history at the facility, the ALJ recounted the events surrounding Resident 102’s interactions with a female resident which eventuated in his departure from the facility.  Id. at 26-28.  Relying on Petitioner’s contemporary records and internal report, the ALJ found that the residents “had developed a friendship,” that the female resident reported that on April 9, Resident 102 kissed and touched her inappropriately, and that the facility responded by sending Resident 102 to the hospital for psychiatric evaluation, prohibiting further contact with the other resident and placing him on one-on-one supervision.  Id. at 28 (and record citations therein).  Facility staff prepared a plan to transfer Resident 102 to another long-term care facility with a target date of July 10, 2015, recording that as a family request and noting the resident’s physician indicated the resident needed to stay long term and detailing steps to prepare for the transfer.  Id. at 28-29 (and record citations therein).  Resident 102 and his nephew (as family representative) attended a care conference with the facility administrator and staff, the purpose of which was, according to the facility’s written summary, “to explain to Resident 102 that due to his incident with another resident . . ., Petitioner would have to transfer him to another facility.”  Id. at 29 (citing CMS Ex. 24, at 180).  Further, the summary stated that Petitioner had “made arrangements” for the resident to transfer to a facility in a specific town and had advised Resident 102 that “because of protocol [they] have to take this action to ensure safety of both residents.”  Id. (quoting CMS Ex. 24, at 180).  The nephew testified that, consistent with this summary, he understood that the resident was to be transferred to the other facility and that he was in touch with that facility which said it would be able to accept the resident after a required pre-admission screen which would take 10-14 days.  Id.  The social services director advised the nephew that the resident could not continue to stay at Petitioner’s facility.  Id. at 30. 

Matters escalated soon thereafter.  On April 21, 2015, the female resident involved in the incident reported during a hospital psychiatric evaluation that she was “almost raped” by another resident.  Id. at 30 (quoting CMS Ex. 25, at 432, 440, 443).  This allegation was reported by the facility to the state survey agency, the police, and other authorities and investigated internally.  Id. at 31-32.  The female resident stated during the investigation that Resident 102 had tried to climb into her bed (both fully clothed) but she had pushed him away.  Id. at 31 (citing CMS Ex. 24, at 80).  Police came to the facility, interviewed both residents, found that the female resident reported no rape or unwanted contact, and advised Resident 102 that nothing further would come of the incident.  Id. at 32. 

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The ALJ found that Petitioner’s administrator then called the nephew, told him of the new allegations, and advised him that he should pick up Resident 102 who could no longer stay at the facility, or else the resident would be discharged to a homeless shelter.  Id. (citing record testimony and exhibits).  The nephew arrived at the facility on the afternoon of April 22, 2015, was given Resident 102’s belongings and discharge records, and reports he did not know where to take his uncle who ended up staying at a motel room alone for a month.  Id. at 33-34.  The facility to which transfer had been planned could not accept the resident because he was no longer entering as a transfer from another facility.  Id. at 34.  On May 26, 2015, more than a month after his removal from the facility, Petitioner issued a discharge notice for Resident 102 on grounds of endangering the health of other residents due to sexually inappropriate behavior.  Id. at 35 (citing CMS Ex. 24, at 392).

In citing five deficiency tags regarding this episode, according to the ALJ, “the surveyors alleged that Petitioner discharged Resident 102 unnecessarily and involuntarily from the facility, without complying with notice requirements, without planning for his post-discharge care, without proper documentation of the reason for discharge, and without sufficiently preparing Resident 102 to ensure his safe and orderly discharge from the facility” resulting in immediate jeopardy.  Id. at 36.  The ALJ agreed, determining that “[t]he evidence shows that Petitioner’s staff had no adequate justification under the regulations for abruptly discharging Resident 102, and his departure from the facility was involuntary”; that “in carrying out the involuntary discharge of Resident 102, Petitioner’s staff failed to comply with the regulatory requirements and procedures relating to transfer or discharge”; and that the “abrupt, involuntary discharge, without adequate planning and notice, posed a risk for serious harm to or death of Resident 102.”  Id. at 37.  The ALJ rejected claims that the discharge was voluntary as not supported on the record because the resident and his nephew consented to transfer only in response to facility pressure.  Id. at 38-40.  He found no documentation that Resident 102 posed a threat to any other resident as he was cooperative with the one-on-one supervision.  Id. at 40, 43.  Petitioner’s account of the nephew panicking because of police involvement and abruptly removing the resident was not credible, according to the ALJ.  Id. at 41. 

The ALJ considered the belated discharge notice issued more than a month afterwards to be an “unsubstantiated, after-the-fact attempt to offer a justification for Resident 102’s discharge.”  Id. at 43.  Moreover, the ALJ concluded that, even had the resident’s discharge been justified (which it was not), the facility failed to meet the requirement to properly document it in the clinical record.  Id. at 44.  The ALJ agreed with CMS that Petitioner did not provide notice of the resident’s right to appeal discharge or of other required information and failed to follow its own policy in this area.  Id. at 45.12  The ALJ

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noted that the care conference on April 15th when the resident and his nephew were advised that he would be transferred to another facility triggered the requirement to provide a 30-day discharge notice with the required information under both the regulations and facility policy, which was not done.  Id. at 46-47.  It was irrelevant to this lapse, the ALJ pointed out, that the resident abruptly left on April 22nd, even had the departure been voluntary (which it was not) because the notice should already have been provided.  Id. at 47.  After discussing the full record relating to the resident’s departure, the ALJ also concluded that Petitioner did not provide adequate preparation, referrals for services or health care, or accurate assessment of his needs when discharging Resident 102.  Id. at 47-51 (and record citations therein).  Moreover, the ALJ found that “Petitioner’s staff’s failure to carry out their duty to sufficiently prepare and orient Resident 102 for a safe discharge was directly attributable to Petitioner’s administration, which was interested only in forcing Resident 102 to leave as soon as possible,” and therefore the facility “was not administered so as to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each of its residents.”  Id. at 52. 

Having thus found noncompliance under the regulations cited by the five tags listed above (namely, 42 C.F.R. §§ 483.12(a) and 483.75), the ALJ reviewed CMS’s determination that the noncompliance under all five presented immediate jeopardy to Petitioner’s residents that was not abated prior to June 1, 2015.  Id. at 52-53.  The ALJ recognized that the immediate jeopardy determination must be upheld unless Petitioner showed it to be clearly erroneous.13   Id. at 53.  In applying the clearly erroneous standard to the record before him, the ALJ concluded he had “no definite and firm conviction that an error” had been made, and that “considering the facts detailed regarding the situation with Resident 102, Petitioner failed to show that the declaration of immediate jeopardy for the deficiencies under 42 C.F.R. §§ 483.12(a)(2), (a)(3), (a)(4)-(6), and (a)(7) [Tags F201-204] was clearly erroneous.”  Id. at 58.  As to noncompliance with the administration requirement (Tag F490; 42 C.F.R. § 483.75), the ALJ concluded that the deficiency findings involving Resident 102 “alone were sufficient to show a failure of administration” and that “Petitioner has also failed to show that the declaration of immediate jeopardy under 42 C.F.R. § 483.75 was clearly erroneous.”  Id.

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Based on his conclusions that Petitioner did not return to substantial compliance within six months of the initial noncompliance found on December 1, 2014, the ALJ upheld the mandatory termination.  Id. at 58-59, 61.  He reviewed the amounts of the CMPs imposed for the periods set out above and found them reasonable.  Id. at 58-61.14

Issues on Appeal

Petitioner makes the following arguments:

1. CMS abandoned the claim that termination was mandated because the record does not support six months of continuous noncompliance.  Petitioner’s Request for Review (RR) at 30.
2. The January 29, 2015 deficiency findings under Tag F166 relating to the resident’s catheter had actually been investigated earlier with no noncompliance found, involved regulatory matters outside the facility’s control, had been corrected before being cited, and did not present plausible harm to any resident.  Id. at 30-35.  Moreover, the other findings of that survey were “frivolous.”  Id. at 35-36.
3. The May 22, 2015 survey findings concerning the treatment and discharge of Resident 102 were unfounded and, in any case, should have been considered ended when the resident left on April 22, 2015.  Id. at 36.  Petitioner’s position is that it would have been faulted had it not removed Resident 102 after the female resident’s complaints and that the resident actually left voluntarily and was adequately prepared.  Id. at 36-39.  In fact, Petitioner blames the state survey agency for not better tracing Resident 102’s whereabouts after he was removed from the facility.  Id. at 39.

In sum, Petitioner suggests that the case demonstrates a “‘win the case at any cost’ approach to enforcement [that] turns the ostensibly ‘result oriented’ survey and enforcement process on its head.”  Id. at 40. 

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In addition to the identified arguments, Petitioner used the bulk of its request for review to frame its view of the case and facts as the foundation for its arguments.  This presentation is replete with misleading depictions of the content of the record before the ALJ, the bases for CMS action, and the ALJ Decision itself, and is almost devoid of supporting record citations.  The guidelines to these appeals advise the parties that the Board “will review only those parts of the record before the ALJ which are cited by the parties or which the Board considers necessary to decide the appeal.”  Guidelines –  Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s Participation in the Medicare and Medicaid Programs (Board Guidelines), “Completion of the Review Process,” ¶ (a).15   To the extent we discern points material to resolving the issues in this case, we address them (including legal comments on whether CMS may cite noncompliance findings based on complaints filed about events that occurred prior to a previous survey and whether the ALJ was required to address every citation where those upheld suffice to support the remedies at issue).  It is neither necessary nor possible, however, to clarify or correct every instance of erroneous characterization, all evidence rejected as not credible, or all unsupported inferences presented as factual, especially where Petitioner fails to indicate the relevant part of a record that includes over 1,000 pages of hearing transcript, hundreds of pages of exhibits, and multiple rounds of briefing.

Standard of Review

The Board’s standard of review on a disputed issue of law is whether the ALJ’s decision is erroneous.  The Board’s standard of review on a disputed factual issue is whether substantial evidence in the record as a whole supports the ALJ’s decision.  Board Guidelines, “Completion of the Review Process,” ¶ (c).

Analysis

I. CMS was required to terminate Petitioner when the facility failed to return to substantial compliance within six months of December 1, 2014.

A. CMS, and the ALJ, correctly concluded that termination was mandatory if Petitioner failed to demonstrate substantial compliance by June 1, 2015.

Petitioner asserts that “CMS indicated that it would not take, or offer support for, the position that it had purported to terminate the Center based on six months of continuous noncompliance (even though various CMS Notices going back to December 2014 referred to a termination date of June 1, 2015).”  RR at 30 (emphasis in original).  This

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claim was based on a footnote in the ALJ Decision stating that arguments made by CMS’s counsel at the hearing could “understood to be that Petitioner was terminated solely based on the deficiency citations from the survey concluded on May 22, 2015.”  ALJ Decision at 11 n.7.  The ALJ did not point to what statements at the hearing were subject to this possible interpretation, citing only to CMS’s briefs below with no specific page citations.  In any case, the ALJ then concluded that such a position would be “inconsistent with the evidence,” pointing to two CMS notices warning that termination would become mandatory if substantial compliance was not achieved by June 1, 2015 and a third, final notice imposing termination as of June 1, 2015.  Id. (citing CMS Exs. 16, at 2; 17, at 2; and 18, at 2).  The ALJ recognized that CMS had authority to terminate Petitioner based solely on the immediate-jeopardy-level deficiencies found at the May 22, 2015 survey, but found it unnecessary “to resort to such alternate theories” given his conclusion that mandatory termination was supported on the record and that ample notice of it had been provided.  Id.16

Nothing in the ALJ’s comments suggests that CMS ever took the position that it would not “take, or offer support for” mandatory termination.  At most, the ALJ found it confusing that CMS noticed mandatory termination for the same date that termination actually occurred, but then indicated that termination was also appropriate based on the noncompliance found during the final revisit and complaint survey.  See id. at 11-12 n.7.  It is not clear why this would be confusing or inconsistent with the evidence.  CMS may properly warn a facility of an upcoming date by which termination will be statutorily required if substantial compliance is not achieved without implying that CMS will not impose termination for serious noncompliance (i.e., immediate jeopardy here) found to exist on or before the date to avoid mandatory termination.  See 42 C.F.R.

§ 489.53(d)(2)(ii) (authorizing CMS to terminate provider agreement on two days’ notice when SNF has deficiencies that pose immediate jeopardy).  CMS argues that the termination notice stated that it was based on the May 22, 2015 survey findings and emphasizes its discretionary authority to terminate “without regard to whether CMS previously provided notice of the six-month mandatory termination date.”  CMS Brief in Support of Decision No. CR5132 (CMS Br.) at 5-6 n.1-2 (citing CMS Ex. 18, at 2; quoting Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375, at 30 (2011)).  Without disagreeing with CMS, we note that CMS did not appeal this aspect of the ALJ decision, and we find, for the reasons explained below, that termination was indeed mandatory on the record here.  Therefore, we decline to reach the question of whether a discretionary termination was also supported.

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B. Petitioner conceded noncompliance from December 1, 2014, through December 19, 2014.

The ALJ held that, despite abating immediate jeopardy and correcting some deficiencies, Petitioner failed to return to substantial compliance for at least six months after the survey cycle began on December 1, 2014.  ALJ Decision at 61.  The undisputed effect of Petitioner’s express choice not to contest the findings of the two December 2014 surveys is to conclusively establish that:  (1) deficiencies at the facility created an immediate jeopardy situation for its residents from October 12, 2014 to December 11, 2014; and (2) Petitioner remained noncompliant, albeit at a lower level of severity, with the same requirements until at least December 19, 2014 (the date at which the prior deficiencies were found to have been corrected by the revisit part of the January 29, 2015 survey). 

Petitioner does not dispute that a survey cycle began on December 1, 2014, but argues that the cycle ended on December 19, 2014, when the noncompliance cited during the two December surveys was found to have been corrected.  RR at 7 n.4.  The ALJ concluded that the noncompliance cited during the January 29, 2015 survey refuted this argument by establishing additional noncompliance that began prior to December 19, 2014 and continued uncorrected as of the survey date.  ALJ Decision at 8-9, 11, 16.  The January 29th survey cited noncompliance under three tags, but only one of them (Tag F166; 42 C.F.R. § 483.10(f)(2)) alleged that the noncompliance began before December 19, 2014, and that tag is thus relevant to Petitioner’s theory that a gap in noncompliance occurred after December 19, 2014.  Id. at 16.  We therefore turn next to whether the ALJ’s findings about the Tag F166 noncompliance were supported by substantial evidence and free of legal error.

C. The ALJ’s conclusion that Petitioner was not in substantial compliance with the regulatory requirements cited under Tag F166 from at least December 1, 2014 through the March 4, 2015 revisit survey is supported by substantial evidence and free of legal error.

1. The ALJ’s findings concerning the January 29, 2015 survey finding under Tag F166 are supported by substantial evidence.

As discussed earlier, the Tag F166 finding resulted from a complaint that the state survey agency received in December 2014 from a resident’s family about how Petitioner handled a grievance.  CMS Ex. 6, at l; Tr. 360, 402.  The gravamen of the grievance was that the resident was incontinent and left wet at night; her family requested a catheter; and a catheter was not successfully placed for four days.  ALJ Decision at 17-20.  Petitioner claims on appeal that the surveyor testified that the “gist” of the noncompliance finding was merely that the facility administrator did not sign the grievance form, and argues that it should have been sufficient that someone else signed off on the grievance as resolved on the basis that the administrator talked to the family; that the only alleged potential for

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harm was that the family (not the resident) might have been upset which should not be considered for these purposes; and that “there does not seem to be any dispute that a physician never determined that there was a medical reason” for a catheter.  RR at 16 and 16 n.13 (citing P. Ex. 19; Tr. at 361, 365, 917-919).

Title 42 C.F.R. section 483.10 governs residents’ rights, specifically guaranteeing the rights to a “dignified existence,” to “self-determination,” and to “communication with and access to persons and services inside and outside the facility.”  Subsection 483.10(f) addresses resident grievances and provides that:

A resident has the right to --
(1) Voice grievances without discrimination or reprisal.  Such grievances include those with respect to treatment which has been furnished as well as that which has not been furnished; and
(2) Prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents.

This resident, through family members, sought a catheter as a solution to unresolved incontinence and was unhappy with the facility’s handling of the concerns about her treatment.  The issue thus is whether Petitioner’s handling of the grievance supported the resident in making an informed choice (i.e., self-determination) about how to deal with her incontinence and demonstrated appropriate efforts to hear and resolve the concerns (in accordance with the facility’s own policy for how such grievances should be handled).  If not, the remaining question is whether any inadequacy in that regard presented a potential for more than minimal harm.

Petitioner’s portrayal of the surveyor’s testimony is misleading.  The surveyor did not testify that the gist of the noncompliance lay only in the administrator’s failure to sign the grievance report.  At the cited point in the transcript, the surveyor was shown the grievance report and asked what was wrong with it.  He testified that, “[i]n review of the report itself, at the bottom of the form there where it says resolution, there was no documentation there at the bottom to tell if the grievance was completed or if it was, if the complainant was made aware of the outcome of the grievance.”  Tr. at 361.17   That comment addressed the report itself.  He went on to testify that the facility’s own policy for handling grievances required it to “complete an investigation report and review by the

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administrator within three working days of the receipt of the grievance” and to inform the resident or person acting in their behalf “of the findings upon completion of the investigation as well as any corrective actions.”  Id. at 362-63, 374 (administrator “had not followed up with the family”).  Petitioner does not deny those steps are required by facility policy to deal with issues raised by residents or their representatives about incontinence care (an important aspect of respecting residents’ rights and wishes as provided by the cited regulation).

The surveyor discussed potential harms not merely of upsetting the family but of failing to inform the resident and family of the risks of a catheter, especially as to painful insertion and urinary tract infections.  Tr. at 363-64.  The failure to follow up appropriately on the grievance thus caused “unnecessary . . . [r]isk” for the resident, as well as distress for the family, and, in fact, the resident developed a urinary tract infection.  Id. at 365-66; see also id. at 375-76 (reiterating on cross-examination that the urinary tract infection was related to the failure of the facility to appropriately resolve the complaint including by discussing with the family the risks of a catheter). 

Petitioner’s contention that a catheter was not appropriate because the resident did not have a diagnosis calling for catheterization, even if true, cannot establish that Petitioner’s response to the resident and family’s request promoted the resident’s self-determination.  First, Petitioner provided no evidence that it responded to the request with any guidance about why a catheter might not be the right solution or what else might be done.  Second, any qualms about the propriety of the requested solution do not justify taking four days to act in some way on the resident’s concerns.  Third, the catheterization was ordered twice by medical personnel (Petitioner’s staff failed to place it successfully at first).  Failing to implement orders successfully does not demonstrate that Petitioner’s staff ever challenged the propriety of the nurse practitioner’s order, nor that of the physician who later also ordered catheterization.  Petitioner cannot seek and (eventually) comply with medical orders to do something but later deny responsibility by questioning (after the fact) the appropriateness of the medical professionals’ orders. 

Petitioner is also mistaken in implying that the deficiency lacks merit because “there does not seem to be any dispute that a physician never determined that there was a medical reason” for a catheter.18   RR at 16 n.13 (citing Tr. at 917-18).  First, that may be the opinion of Petitioner’s director of nursing (DON), but that opinion is belied by the fact that a physician did order the catheter and therefore presumably considered the order

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medically appropriate.  Second, the essential point made by the surveyor was not that a catheter should have been inserted immediately upon request (or upon filing the grievance).  It was that the facility failed to support the resident’s right to self-determination (and to fulfill its own policy on grievances) by informing the resident and family of the reasons why a catheter might not be medically appropriate or the best option and by working to resolve the concerns about the resident’s incontinence care (and document the resolution and the resident’s response).

Petitioner also cites to the DON’s testimony in support of the assertion that the surveyor’s only issue with the facility’s handling of the grievance was that it was not “signed off.”  RR at 16 (citing Tr. at 919).  In fact, the DON did not claim that the only problem was that someone other than the administrator had signed off.  Rather, the DON agreed with Petitioner’s counsel that the grievance documentation was not “properly completed” but claimed that the grievance was nevertheless “resolved.”  Tr. at 919-20.  The ALJ rejected Petitioner’s argument that the grievance was resolved, finding no support for that argument in the record evidence.  ALJ Decision at 20 (“The evidence does not show that Petitioner addressed:  the resident and family’s complaint that the resident was frequently wet; the risk and benefits associated with placing a catheter to address urinary incontinence; or the need to remove the catheter and how the resident’s incontinence would be addressed without the catheter.”).

Petitioner further contends that the ALJ erred in inferring that the family was unhappy because the resident was “left wet” instead of merely because the resident was “wet” at all.  RR at 17.  Petitioner states that no evidence established that the resident was not changed when incontinent and that failure to provide incontinence care was not the basis for the deficiency finding under tag F166.  Id.  The main point the ALJ made was not that inadequate incontinence care was the basis of the deficiency, but that concern about the resident’s incontinence was part of the grievance which the facility failed to adequately address.  ALJ Decision at 20.  He relied on the testimony of the DON who explained that the resident’s family “was concerned because [the resident was] continuously having incontinent episodes and they did not want her to continuously wet on herself.”  Tr. at 916.  The DON acknowledged that the resident was concerned about the constant incontinence (albeit portraying that as the resident merely “going along” with her family).  Id. at 971. The ALJ also relied on the grievance itself (as recorded in writing by facility staff) which expressly included both parts to which the ALJ referred:  (1) “Catheter was supposed to be placed, however, it wasn’t”; and (2) “Diapers are being left on all night.”  P. Ex. 19, at 1; ALJ Decision at 19.  We find the record supports the ALJ’s “reasonable reading of the grievance or complaint” to be that the resident “was being left for extended periods in wet diapers and the resident and the family wanted her to have a catheter so

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she would not be wet all the time.”  ALJ Decision at 20.19   We further agree with the ALJ that Petitioner has not shown any evidence in the record that the facility addressed in any way (other than catheterization) the resident’s (and family’s) wish that she not be left continuously wet or in wet diapers overnight. 

2. The Tag F166 deficiency was not investigated or cleared during the December 1, 2014 survey.

The resident left the facility in November 2014, and on December 4, 2014, her family filed a complaint with the state about how the facility had handled their grievance.  ALJ Decision at 17 (citing CMS Ex. 49, at 117, 179) and 18 (citing CMS Br. at 2); see also Tr. at 360, 402.  Petitioner reiterates on appeal its theory that surveyors during the survey ending December 1, 2014 “actually reviewed this matter but cited no deficiencies.”  RR at 17 (citing Tr. at 918); see also CMS Ex. 1 (December 1, 2014 survey SOD with no reference to Tag F166).  Petitioner leaves the “matter” supposedly reviewed vague, but hints that, while it “could have been by chance” that the complaint triggering the investigation aspect of the January survey was filed soon after the December 1st survey ended, the timing might mean “that the surveyors already were aware that the family was unhappy.”  RR at 17-18.  Petitioner speculates that the December 1st “survey team must have communicated with the Resident’s family during the survey a few days earlier.”  RR at 18 (citing Tr. at 350, 918).  The surveyor who conducted the complaint investigation in January 2015, however, denied any awareness of contacts between the survey agency and this resident’s family prior to the filing of the complaint (and, as mentioned, the resident was no longer at the facility at the time of the December 1st survey).  Tr. at 377-79.

The ALJ, moreover, rejected as unsupported on the record Petitioner’s claim that surveyors reviewed this grievance and found the facility’s handling adequate during the survey ending December 1, 2014.  ALJ Decision at 20-21.  Nothing cited by Petitioner supports the implication that the survey agency somehow triggered the complaint by the resident’s family.  The first reference cited by Petitioner is to testimony by the state long-term care ombudsperson speaking about the facility’s responsibilities concerning bed holds and has no relevance to this issue.  RR at 18 (citing Tr. at 350).  The second is to testimony by the facility’s DON at the time of the December 1, 2014 survey.  Id. (citing Tr. at 918).  She testified that she remembered surveyors asking about this resident and

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that would have been the only reason she became aware of the resident since the resident had left the facility prior to the DON’s arrival.  Id. at 915.  She reports that she then looked into why the resident had arrived without a catheter but had one placed and then removed, and that she looked at the family’s grievance “after the process.”  Id. at 915-17.  Asked whether she discussed “all this” with the surveyors during the December 1, 2014 survey, she stated that “we were not as focused on that aspect of the grievance as . . . we were focusing on why she had the catheter, why we pulled it out and why it was reinserted.”  Id. at 918.  Nothing was cited about this resident during the December 1st survey and Petitioner does not point to any surveyor notes documenting discussion of the catheter placement and removal or mentioning the grievance or its handling.  The most reasonable inference (if the DON’s testimony is credited) would be that surveyors looking at facility records noted the oddity of the attempted insertion, reinsertion and then removal of a catheter but then moved on (especially as the resident was not part of their resident sample).  The DON’s own testimony does not indicate that the December 1, 2014 surveyors even saw or heard about the grievance, much less reviewed its handling.20   Petitioner’s counsel also repeatedly sought to have the January 29, 2015 surveyor agree that the facility staff told him they had already addressed the grievance process during the December 1, 2014 survey.  Tr. at 379-81.  The surveyor denied that he was aware of any such comments by facility staff.  Id. 

We conclude that substantial evidence supports the ALJ’s finding that the surveyors from December 1, 2014, neither cited nor investigated the handling of this grievance or any deficiency under Tag F166.

3. The Tag F166 deficiency was not corrected by December 16, 2014, as Petitioner claims.

Petitioner also asserts that, after determining during the January 29, 2015 survey that its  handling of the grievance constituted noncompliance with section 483.10(f)(2), the state survey agency “accepted a Plan of Correction for that citation that indicated that the compliance date was December 16, 2014 (that is, when the Center changed its grievance policies before being cited),” and that CMS could therefore not consider the noncompliance with section 483.10(f)(2) as having continued beyond December 16,

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2014.21   RR at 18 (emphasis in original) (citing CMS Ex. 50, at 4; Tr. at 498, 502).  The DON testified that, after questions arose about the resident’s catheterization during the December 1, 2014 survey, she reviewed all the facility’s grievances and concluded that, while this one was “resolved” (in her opinion) but not “signed off” or fully documented, others had not been resolved.  Tr. at 919-20.  The record does indicate that some staff in-servicing was conducted both before and after December 16, 2014, apparently based on the DON’s review.  See, e.g., CMS Ex. 50 passim (attachments to surveyor notes from March 4 survey).

The citations relied on by Petitioner do not, however, actually show that any deficiency was cited (prior to the January 29, 2015 survey) related to the handling of this or other grievances, or that a plan of correction was submitted for such a deficiency promising a December 16, 2014 correction date.  Petitioner identifies no evidence of acceptance of such a plan by the survey agency or of correction being found to have occurred by December 16, 2014.22   It is clear that the survey agency conducted a revisit survey ending March 4, 2015, in part to determine whether this deficiency had been corrected.23   Petitioner relied on a page in the surveyor’s notes from that revisit with a marginal entry reading:  “? Compliance date 12-16-14.”  CMS Ex. 50, at 4.  The notes also report some steps taken to deal with problems in handling grievances, including an in-service in November 2014 concerning “grievance forms,” a quality assurance meeting on December 3, 2014, plus plans for the social services director and administrator to keep weekly logs of grievances and plans for both of them and the DON to report on grievances monthly to the quality assurance meeting.  Id.  (The DON acknowledged that the latter two steps were taken only after the January 29, 2015 survey citing the facility for noncompliance in this area.  Tr. at 920.)  The surveyor’s notes go on to record, however, that the logs were not done timely and that multiple staff members reported being unaware of how to

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handle a grievance and not recalling relevant training (despite the DON’s assertion that all staff were in-serviced about grievance forms upon hiring and monthly thereafter).  CMS Ex. 50, at 1-4. 

Even assuming that a plan of correction was approved in which Petitioner asserted it would correct the Tag F166 deficiency by December 16, 2014, the March 4th revisit survey findings were unequivocal that the deficiency was not corrected.  The survey’s SOD reported that the facility “failed to implement” the plan of correction as to education in that five of 17 employees interviewed were not “aware of the Grievance policy and procedure.”  CMS Ex. 8, at 1, 4-5.  Indeed, the level of the noncompliance under Tag F166 was raised as a result of the continuing failure to achieve correction.  Id. at 1.

We thus find substantial evidence in the record as a whole supports the ALJ’s findings about the Tag F166 citation.

4. Citing noncompliance based on a substantiated complaint about past events is neither improper nor unusual.

Petitioner repeatedly implies that there is something suspicious or unreasonable about surveyors citing noncompliance that began at a time predating an earlier survey but was not discovered at that survey.  For example, Petitioner claims that the “practice of rolling/retroactive citation of alleged violations that had occurred before previous surveys – and correction dates – is extremely problematic” and says it allows CMS to “extend any survey cycle indefinitely, regardless of whether a facility implements appropriate corrective action, and would make it impossible for the facility ever to know whether, or when, it had corrected deficiencies or resumed compliance unless and until CMS sends a specific notice to that effect.”  RR at 31 n.21.

Petitioner apparently misunderstands both the nature of noncompliance and the survey process for determining whether facilities are operating in compliance with federal requirements.  Noncompliance is a status, not an event.  See 42 C.F.R. § 488.301 (Noncompliance is the absence of a level of compliance with all requirements such that no identified deficiencies present more than the potential for minimal harm.).  The existence of noncompliance may be evidenced by the occurrence of a particular event and surrounding circumstances (such as an accident, a fall, an elopement, or, as here, a mishandled grievance) but the event per se is not the noncompliance.  The noncompliance consists in what is revealed by that event about the facility’s performance in meeting (or not meeting) specific requirements and how that performance potentially puts residents at risk.  It also follows that a facility remains noncompliant until it demonstrates that the underlying condition has been corrected so that residents will no longer be at risk.  This is why the Board has repeatedly held that the fact that an event ended, or the resident involved died or left the facility, or the staff person implicated was terminated does not in itself prove that noncompliance was corrected.  See, e.g.,

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Countryside Rehab. & Health Ctr., DAB No. 2853, at 26 (2018) (stating that “incidents related to individual residents . . . are not themselves the deficiencies that must be corrected; rather, the deficiency is the underlying failure to meet a participation requirement evidenced by the incident” (internal quotation marks omitted)); Cahokia Nursing & Rehab. Ctr., DAB No. 2991, at 8 (2020) (noting that the Board has “repeatedly made clear that merely removing the resident(s) or staff involved in an event that triggered an immediate jeopardy determination is not sufficient to abate the immediate jeopardy”).

Moreover, the survey process is not limited to what surveyors observe during their visit.  The survey process is based on the concept that facilities must be continuously in compliance in order to participate in Medicare, and surveyors focus on determining compliance by focusing on the actual resident-care outcomes and conditions (not just the policies or capabilities) of a facility.  See, e.g., Life Care Ctr. of Tullahoma, DAB No. 2304, at 60 (2010) (“A SNF is expected to be in substantial compliance with Medicare participation requirements at all times.”), aff’d, Life Care Ctr. Tullahoma v. Sec’y of U.S. Dep’t of Health & Human Servs., 453 F. App’x 610 (6th Cir. 2011); 42 C.F.R. § 488.26(c)(2) (“The survey process uses resident . . . outcomes as the primary means to establish the compliance process of facilities and agencies.”).  The procedures include offering confidential interviews to residents, conducting record reviews, selecting and closely reviewing the care of a sample of residents, and performing other tasks.  See generally 42 C.F.R. § 488.110.  Obviously, interviews and record reviews may well disclose situations or events that began prior to the arrival of the surveyors.  Complaint investigations, by their very nature, will often focus on past events that triggered the allegations to the state survey agency.

Petitioner complains that CMS is restricted to imposing only a CMP as a remedy for “past noncompliance” and should not have terminated for that reason.  RR at 4.  “Past noncompliance,” however, is a term of art that, as Petitioner seems to recognize, does not simply mean any noncompliance which began before the survey which discovered it.  Id. at 34 n.24.  “Past noncompliance,” instead, means a period of noncompliance which not only began but also was corrected by the facility itself before the survey.  See, e.g., Green Valley Healthcare & Rehab. Ctr., DAB No. 2947, at 3 (2019) (a deficiency “constituted ‘past noncompliance’ in that Petitioner had taken adequate corrective action prior to the survey to return to substantial compliance with that requirement”).  Uncorrected noncompliance is not past.24   As explained, substantial evidence supported the ALJ’s

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conclusion that noncompliance under Tag F166 was not corrected prior to the January 29, 2015 survey, and indeed was not corrected as of the March 4, 2015 revisit.  We also note that CMS did not base the termination on this noncompliance finding in itself.  The bases for the termination, as noted, were continuous failures to achieve substantial compliance over six months (and the serious noncompliance discovered during the May 22, 2015 survey, although the ALJ did not rely on this independent basis to sustain the termination).

Furthermore, there is nothing novel about the situation where a revisit survey finds previously-cited noncompliance has been corrected but surveyors also discover that the facility was noncompliant with another requirement.  For example, in Libertyville Manor Rehabilitation & Healthcare Center, DAB No. 2849 (2018), surveyors found that the facility had corrected deficiencies identified in a previous survey, but also discovered noncompliance with a different provision that began prior to the correction date.  Libertyville sought to prove a “gap” in the period of continuous noncompliance (in that case, the three-month period that triggers a mandatory DPNA).  The Board determined that Libertyville did not prove that it corrected prior noncompliance before the newly-discovered noncompliance began and agreed with the ALJ that a gap does not arise merely because the noncompliance is discovered at a survey occurring after the date the prior noncompliance was corrected.  DAB No. 2849, at 18-22.  Where the periods during which noncompliance was present overlap, substantial compliance has not been achieved during that time.  Id.  The date of the survey which discovered other noncompliance is not relevant and correction of pre-existing noncompliance does not in itself establish a return to substantial compliance.  Id. at 21 (“[N]oncompliance discovered after the survey which initiated the certification cycle, and prior to a certification of substantial compliance, may be considered in deciding whether a SNF returned to substantial compliance . . . .”) (citing Meadowbrook Manor-Naperville, DAB No. 2173 (2009) (which, the Libertyville decision states (at 22), held that a certification cycle was not interrupted or ended where “additional noncompliance was found to have begun before all previously identified noncompliance was found to have been corrected” )).  The only relevant question, therefore, is whether, at any time during the statutory and regulatory period (three months for mandatory DPNA or six months for mandatory termination), the facility achieved substantial compliance with all requirements.  See Sunshine Haven Lordsburg, DAB No. 2456 (2012) (mandatory termination supported where overlapping periods of noncompliance with different participation requirements showed continuous lack of substantial compliance for six months even where some deficiencies were corrected during the period), aff’d on other grounds, Sunshine Haven Nursing Operations, LLC, d/b/a Sunshine Haven Lordsburg v. U.S. Dept. of Health & Human Servs., 742 F.3d 1239 (10th Cir. 2014).

Finally, a facility does indeed need to obtain notice from the state survey agency or CMS that it has successfully corrected deficiencies and/or resumed substantial compliance (RR at 31 n.21), although it should be prepared to demonstrate that contention by

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documentation and/or at a revisit survey.  See, e.g., Libertyville at 2 (“Even if a plan of correction is accepted, the SNF is not regarded as being in substantial compliance until the survey agency determines, based on an onsite revisit survey or an ‘examination of credible written evidence,’ that the SNF has actually achieved substantial compliance”) (citing 42 C.F.R. §§ 488.440(h), 488.454(a)(1); SOM § 7317; Lake City Extended Care Ctr., DAB No. 1658, at 12 & n.15 (1998)).  Noncompliance with a requirement exists from the time it has been shown to have begun (not just from the time surveyors discover it) until it has been shown to have been corrected.  Oakwood Cmty. Ctr., DAB No. 2214, at 19 (2008), aff’d, Oakwood Cmty. Ctr. ICF/MR v. Sebelius, 723 F. Supp. 2d 937 (E.D. Ky. 2010).  Thus, if noncompliance with some requirement is found to exist prior to the date that previously cited deficiencies were corrected, then the facility is not in substantial compliance until that newly found noncompliance is also corrected.  That is what happened here.

Petitioner argues that something different happened.  Petitioner denies that it is saying surveyors “never can cite ‘past noncompliance’ that a survey team somehow overlooked during a survey,” but asserts that CMS here went further, searching “for additional examples of the same noncompliance it already had cited that had occurred prior to the facility’s completion of its corrective actions – that is, during the time when all concerned knew that the cited noncompliance had not yet been corrected – and then CMS could find that these additional citations vitiate all else, including the [state survey agency’s] finding of compliance.”  Reply at 8 (emphasis in original).  Petitioner is wrong on all points of emphasis.  We have already explained that the survey ending December 1, 2014 did not address the Tag F166 noncompliance (of which the state survey agency became aware only later as a result of the complaint filed after the December 1 survey).  The DON’s testimony indicates that the facility realized after the December survey that it had a problem with handling grievances (although she denied that the facility failed to resolve the one at issue in the January 29, 2015 survey), but does not suggest that the survey agency knew that the facility was taking steps to deal with this problem (and the findings of the March 4, 2015 survey indicate that those steps were inadequate to correct it even by that point).  See generally Tr. at 915-20.  The additional finding in January 2015 of noncompliance existing well before the correction of the noncompliance identified in the December 2014 surveys did not “vitiate” a survey agency determination of compliance because the survey agency never determined that Petitioner was in substantial compliance (as discussed further below).  In short, CMS did not base the Tag F166 noncompliance citation on additional incidents that occurred during a correction period for a prior noncompliance finding under the same tag.

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D. The ALJ’s findings about other noncompliance (Tags F431 and F441) cited in the January 29, 2015 survey are supported by substantial evidence.

As mentioned earlier, besides substantiating the complaint about Petitioner’s mishandling of the grievance, the surveyors determined that two other noncompliance tags were implicated by situations observed during the January 29, 2015 survey, both of which the ALJ upheld.  ALJ Decision at 21-25.25  As to Tag F431, Petitioner admitted a medication cart was left unsecured and accessible to residents, and that an unlocked medication cart “potentially could be hazardous.”  RR at 35 (italics in original).  Nevertheless, according to Petitioner, “this broken lock did not pose any plausible risk of harm at all, and even the surveyor who cited this deficiency conceded at the hearing that his ‘potential for harm’ scenario was implausible.”  Id. (italics in original). 

The ALJ described the surveyor’s testimony on the question of whether the medication cart with a broken lock presented a potential for more than minimal harm (the regulatory standard for noncompliance) as follows:  “Surveyor Trent was uncertain whether orally ingesting 50 ml of insulin would necessarily cause harm, but he was clear that in his opinion unsecured medications of any type present the risk for more than minimal harm.”  ALJ Decision at 21 (citing Tr. at 408-13).  He recognized that the surveyor reported that the unsecured drawer contained only a vial of insulin, normally administered by needle, and that a resident was not likely to drink the insulin, although doing so might lower blood sugar.  Id. at 22-23 (citing Tr. at 408-09, 411-12).  The surveyor opined that “unsecured medications in general . . . pose a potential for harm in that they could be

ingested orally,” which the ALJ construed to mean that, “regardless of what the unlocked medicine drawer contained, the risk for more than minimal harm is posed by any unlocked or unsecured medicine cabinet or container accessible to residents.”  Id. at 23 (citing Tr. at 412). 

Evaluating the record before him on this question, the ALJ concluded that, “regardless of what drugs were in the drawer, whether insulin or another drug, an unsecured medication cart created a potentially dangerous situation for Petitioner’s

residents” and that the “weight of the evidence supports a conclusion that if a resident gained access to drugs from a medication cart and accidentally ingested them, there is a potential for more than minimal harm.”  Id. at 23.  Petitioner presented no evidence that the cart with the broken lock had only ever been used for one bottle of insulin.  We agree with the ALJ that, under the facts as the ALJ found them, resident access to an unsecured

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medicine cart presented some risk of harm (a risk need not be likely to be real and the level of severity was rated low in recognition that the potential harm was not likely or very serious).  Moreover, the failure to ensure medication carts are safely secured demonstrated by this instance puts in question whether facility practices prevent such situations from occurring when the surveyors are not present to observe them and the contents may be more dangerous.  In short, allowing a medication cart with a broken lock to be used demonstrates a failure of safety practices in violation of section 483.60(e) and presents a potential risk for more than minimal harm even though this drawer happened to contain only insulin when discovered.

As to Tag F441, Petitioner does not deny that surveyors found a large amount of dried human feces in one resident’s room.  RR at 35; see also CMS Ex. 6, at 6 (feces on floor and smeared three feet up wall).  Instead, Petitioner suggests that CMS did not prove how long the feces had been there, claiming that the staff were just about to clean it up, and that CMS did not establish even a potential for minimal harm because it did not prove any resident entered the room to be exposed to it.  RR at 35-36.  The ALJ found the DON’s claim that feces were only present for 10-15 minutes not credible given the undisputed fact that the large quantity had dried and the lack of any contemporaneous support for that assertion.26   ALJ Decision at 25. 

The ALJ also rejected the assertion that no governing standard existed for how long staff could take to clean up such soiling, pointing to the facility’s own infection control policy.  Id. at 24-25.  Petitioner did not deny that it “required staff to clean ‘walls, blinds, and window curtains in resident’s area’ when they were ‘visibly contaminated or soiled.’”27   Id. at 25 (quoting CMS Ex. 6, at 7).  We see no error in the ALJ’s conclusion that these facts demonstrate that Petitioner failed to ensure that the measures it chose to adopt “in order to control and prevent infections in the facility” were “adequately implemented” in practice to achieve the regulatory purpose.  Id. (citing 42 C.F.R. § 483.65(a)(l)).  CMS does not, and probably could not reasonably, specify how many minutes feces may be left in a resident’s room or which staff should clean it, but instead permits facilities to adopt

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policies suitable for infection control in their particular situations; but, once policies are adopted, facilities are expected to meet those standards to ensure compliance.  It suffices that the floor and wall of a resident’s room were visibly contaminated with feces long enough to have dried out to show that staff did not implement the policy adequately in at least this instance.  Petitioner “does not dispute that potentially hazardous body waste must be cleaned up,” but argues that any risks posed by “this smear of stool” were merely speculative without proving, “for instance, whether the location even was accessible to any resident.”  RR at 20.  We disagree.  This violation too was cited at a level requiring only the potential for more than minimal harm.  The ALJ could reasonably infer that at least one resident had access (and had smeared the feces up the wall before it dried), and Petitioner (which would have been more likely to have this information) offered no evidence that staff members and other residents could not access the room as did the survey team, creating, as the ALJ noted, the possibility of unintentionally spreading the body wastes elsewhere in the facility.  ALJ Decision at 25.

Petitioner characterizes both violations as “frivolous” (RR at 35), consistent with its repeated minimization (both before the ALJ and on appeal to us) of those violations it does contest (while virtually ignoring the many very serious deficiencies which it did not contest).  See, e.g., ALJ Decision at 24.  Petitioner characterizes these as “a pretty thin reed upon which to construct a termination action.”  RR at 36.  Of course, the termination action does not rest on these two noncompliance findings alone, but rather on the total findings of continuous and broad noncompliance persisting over repeated surveys during which Petitioner failed to show substantial compliance (including the multiple uncontested deficiencies at the level of immediate jeopardy).28
 

If the October, 2014 grievance matter was not a deficiency at all, then the DPNA and CMP should have ended on December 19, 2014, when the SSA [state survey agency] determined that Petitioner corrected the December, 2014 deficiencies.  The “six month survey cycle” then would reset.  And if the remaining two January 29, 2015 citations also are set aside, then the period of substantial compliance lasted until at least March 4, 2015, when CMS cited additional deficiencies.

RR at 36.

 

We conclude that the ALJ’s determination to uphold these two noncompliance findings was supported by substantial evidence and free of legal error.

E. Petitioner was never found to be in substantial compliance as of December 19, 2014.

We also agree with the ALJ in rejecting Petitioner’s claim that it was somehow led to believe that correcting the outstanding noncompliance found in the December surveys sufficed to establish substantial compliance.  ALJ Decision at 11.  As explained already,

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as a matter of law, substantial compliance requires that no deficiency presenting a potential for more than minimal harm exists at the relevant time (and that all prior noncompliance has been corrected).  42 C.F.R.§ 488.330.

As the ALJ noted, the only documentary evidence on which Petitioner relies as establishing substantial compliance on December 19, 2014, is the notice of correction provided after the revisit survey ending January 29, 2015.  ALJ Decision at 11 (citing CMS Ex. 7; 42 C.F.R.§ 488.330).  That document, on its face, provides notice only of which “deficiencies cited by a prior survey have been corrected and the date of correction,” and nowhere certifies substantial compliance.  Id.  As the Board pointed out in a prior case, Board decisions have “rejected essentially the same argument made here, that a Post-certification Revisit Report found the facility in substantial compliance where the report contained no statement to that effect, even though the report indicated that a deficiency from the prior survey had been corrected.”  W. Tex. LTC Partners, Inc., d/b/a Cedar Manor, DAB No. 2652, at 18 (2015), aff’d, W. Tex. LTC Partners, Inc. v. U.S. Dep’t of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016).  In the present case, Petitioner certainly should not have assumed that it was found in substantial compliance based on this correction notice since it was virtually simultaneously notified of ongoing noncompliance as a result of the concurrent complaint survey.29   CMS Exs. 6 and 7.

Petitioner’s after-the-fact position that somehow it was the “plain implication at the time” (RR at 8) that correcting the December survey deficiencies equated to achieving substantial compliance is no more credible to us than it was to the ALJ.  Petitioner further asserts that the facility’s “administrators” not only read the notice of correction this way but heard from “discussion with the SSA [state survey agency] that the DPNA would extend only from December 13 through December 19, 2014,” and even purportedly began admitting new Medicare residents on that assumption.  RR at 8 (italics in original) (citing Tr. 632-633, 1022).  The cited testimony does not support the assertions.  The first citation is to testimony by the president of Petitioner’s parent corporation (not a facility

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administrator) and inquiring counsel who specifically stated that he was not asking about any conversations with surveyors.  Tr. at 632.  The corporate president testified that he thought the deficiencies were “cleared,” that someone met with the survey team (apparently from the January 29, 2015 survey), and that he threw a party for staff to celebrate that they were “clear.”  Id.   However, “a little later,” he “learned” that the facility was “not in compliance” due to “a crossover grievance complaint,” which he understood to be “a very serious situation because it didn’t clear . . . .”  Tr. at 633.  He also testified that he realized at that point that the clock was “ticking” on the six-month mandatory termination rule.  Tr. at 634.  His staff reported to him that “the State or CMS together took a stance that we weren’t in compliance and that letter was almost not valid.”  Tr. at 636.  All that can be concluded from this testimony is that he or his staff misread the notice of correction of the December 2014 deficiencies being cleared as implying that the facility was entirely in the clear; that they were then disappointed to discover that the survey team found noncompliance with Tag F166; and that the survey agency and/or CMS soon after made clear that the facility was not in substantial compliance.  The second citation is to testimony by a corporate vice-president (also not a facility administrator) who said nothing about any discussions with the survey agency but asserted that the facility admitted new patients beginning around January 2015 “because we felt we were in substantial compliance.”  Tr. at 1022.  It is not clear if he had this feeling before or after the survey ending January 29, 2015, which disclosed further noncompliance, and he points to no communication on which he could reasonably have relied to support that feeling.

F. Uncontested findings from both March surveys support continuing noncompliance.

Surveyors returned on March 4, 2015, at Petitioner’s request, for a revisit survey to determine if the noncompliance from January 29, 2015, had been corrected.  CMS Ex. 8.  We have already noted that the revisit portion of the survey concluded that Petitioner had failed to correct the noncompliance cited under Tag F166.  The March 4, 2015 survey also included a complaint investigation and identified noncompliance under nine other tags, including five deficiencies at a level indicating actual harm to residents (level G).30   

On March 20, 2015, surveyors completed both Petitioner’s annual survey and yet another complaint investigation.  CMS Ex. 10.  The state agency determined that Petitioner remained out of substantial compliance with program participation requirements under 22

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different tags, seven of them at the G level.31

CMS has argued consistently that, even had the ALJ not upheld the Tag F166 noncompliance identified in the January 29th survey, Petitioner’s own concessions as to the March 2015 surveys established that the facility was not in substantial compliance from December 1, 2014 through at least May 18, 2015.  CMS Br. at 6, 9.  CMS contends that:  Petitioner did not present evidence challenging deficiencies cited during the March 4 and March 20, 2015 surveys; several cited deficiencies allegedly commenced in October or November 2014 and continued through the survey dates; Petitioner alleged correction of these deficiencies no sooner than May 18, 2015; therefore, the March 2015 survey results amount to uncontested evidence of continuing noncompliance from the start of the survey cycle until at least the correction date alleged by Petitioner for the March 2015 deficiencies.  Id. at 9 (citing RR at 10-11; ALJ Decision at 14-15).

The ALJ recognized that Petitioner included the noncompliance findings of the March 4 and 20, 2015 surveys in its request for hearing, but determined that Petitioner ultimately waived review of those survey findings.  ALJ Decision at 4, 12, 14-15.  The ALJ found that Petitioner had “elected not to present evidence and, thus, does not contest the deficiency citations from the March 4 and 20, 2015 surveys or that they are a basis for the imposition of reasonable enforcement remedies.”  Id. at 14 (citing Pet.’s Post-Hearing Br. at 5).  Moreover, the ALJ concluded that, because Petitioner offered no evidence to contest the survey agency’s determination from the March 4, 2015 survey that the Tag F166 deficiency (from the January 29th survey) had not been corrected, the record established that “Petitioner was continuously not in substantial compliance with program participation requirements through March 4, 2015” as underpinning for the mandatory DPNA and termination.  Id.

Furthermore, the ALJ found that the record evidence (including the SODs, documentation, and testimony) sufficed to show a prima facie case supporting the noncompliance findings from both March 2015 surveys.  Id. at 15.  Because Petitioner did not present evidence rebutting those findings or establishing any affirmative defense to them, the ALJ concluded that the continuous noncompliance with program participation requirements was established from not later than December 1, 2014 through

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at least March 20, 2015.  Id.32

Petitioner admits that it “did not appeal certain sanctions relating to the early December, 2014 survey and the two March, 2015 surveys,” but claims it challenged “a series of allegations of noncompliance between December 14, 2014 and March 4, 2015,” as well as “all of the citations from the May 29, 2015 survey.”  Reply at 4 n.3 (citing Pet.’s Proposed Finding of Fact ¶ 298, and Proposed Conclusion of Law ¶ 78).  Petitioner does not explain what allegations of noncompliance it challenged arising between December 14, 2014 and March 4, 2015.  Petitioner asserted that it “also offered evidence that it had implemented effective corrective action following each in the series of surveys, and that such evidence should have been sufficient to interrupt a series of ‘per diem’ CMPs, the DPNA, and, ultimately, the finding of six months of continuous noncompliance.”  Reply at 4.  Petitioner’s cited finding of fact states only:  “In its Posthearing Brief, Petitioner stated that it is not contesting the findings of noncompliance and remedies CMS imposed following the March 4, 2015 and March 20, 2015 surveys, but is contesting the deficiencies cited following the January 29, 2015 and May 22, 2015 surveys, and the remedies CMS imposed based upon those citations.”33   Pet.’s Proposed Findings of Fact ¶ 298.  Petitioner thus identifies no evidence contradicting the ALJ’s conclusions that Petitioner waived review of the noncompliance findings from the December and March surveys.

Petitioner also contends, however, that the ALJ erroneously understood its concession of the noncompliance findings from the March surveys (which it admits was “true”) to be

“a concession that it was not in compliance with the ‘grievance’ regulation before December, 2014, which definitely was not true . . . especially since Petitioner specifically had appealed, and was contesting, the iteration of that citation from the January 29, 2015 survey.”  RR at 10 (italics in original) (citing ALJ Decision at 14-15).  It is not actually clear that the ALJ assumed that Petitioner conceded noncompliance with Tag F166 in January 29, 2015, but it would be harmless error if he did, since he went on to carefully weigh the evidence presented as to Tag F166 and find that noncompliance was established on the record, a finding we have upheld as supported by substantial evidence.  What he did conclude, and we agree, is that Petitioner failed to contest the factual finding

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from the March 4, 2015 revisit survey that the noncompliance under Tag F166 was not corrected by December 16, 2014 (i.e., before it was cited), or by any other date leading up to the March 4, 2015 revisit.

Petitioner went on to reiterate more broadly the concept we have found unsupported as to Tag F166, arguing that –

 . . . after each of the December 1, 2014, January 29, 2015, March 4, 2015 and March 20, 2015 surveys, the Center submitted a Plan of Correction (“POC”) according to CMS’ requirements, in which the Center indicated that it would implement corrective actions by a certain date, and the SSA accepted each POC on that basis.  But in every one of those surveys (that is, after the initial December, 2014 survey), the SSA cited events that occurred prior to the previous POC’s . . . “correction date” to support new citations; that is, in each survey, the SSA described alleged acts or omissions that had occurred before a correction date (that it had accepted) as support for its conclusion that the Center’s corrective actions, its administration, quality assurance processes, etc., all continuously failed, and remained ineffective, after the correction date.

RR at 11 (italics in original; footnote omitted).  Petitioner again here conflates the submission and acceptance of a plan of correction (stating when a facility allegedly corrected or will correct specific noncompliance) with evidence that the noncompliance actually was corrected.  A survey agency’s acceptance of a plan of correction simply means that it may thereafter conduct a revisit or review to determine if the allegation of correction is substantiated.  See supra at 23. 

Furthermore, Petitioner fails to lay the predicate for its allegation that surveyors were merely looking for deficiency events that occurred prior to an accepted date of correction for a noncompliance finding and then using those events as per se evidence that the noncompliance was not corrected by the date proposed in the plan of correction.  First, Petitioner does not identify any specific tag cited in a later survey for which a plan of correction had been submitted as a result of a noncompliance finding in an earlier survey.  Second, Petitioner does not show that the later survey finding was based only on events that occurred after that citation but prior to the alleged date of correction for the earlier noncompliance finding. 

The March 4th survey did not cite new noncompliance under tags cited in January 2015 (as noted, the revisit component evaluated whether the Tag F166 noncompliance had been corrected and found the facility had failed to implement its POC effectively, resulting in ongoing noncompliance).  Although Petitioner fails to identify them specifically, we recognize some tags cited in the March 20th survey were indeed previously cited in the March 4th survey.  Looking at Tag F520 as an example, we find

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that factual underpinnings of the repeated deficiencies do not support Petitioner’s characterization.  The March 4th survey findings for Tag F520 were based, in part, on the quality assurance (QA) committee not identifying that facility employees had still not understood proper grievance handling (which was supposed to have been one focus of the alleged correction of the January 29th deficiency under Tag F166).  CMS Ex. 8, at 27.  Moreover, the QA committee had not flagged problems implementing the facility’s abuse policy resulting in “a failure to timely report and investigate an abuse allegation and failure to protect residents from verbal abuse which resulted in verbal abuse and psychological harm.”34   Id.  The March 20th survey findings for Tag F520 cited widespread and systemic failures to perform effective QA functions including, among others, failing to “identify and put in place corrective action plans to ensure a bladder training program was in place for forty-six residents with bladder incontinence.”  CMS Ex. 10, at 53.  The March 20th survey’s SOD under Tag F520 lays out in detail both the areas of weakness manifested in the facility’s QA program since the December 1, 2014 survey and new findings occurring after the March 4, 2015 survey.  Id. at 53-56.  In any case, Petitioner did not dispute any of the March 20, 2015 noncompliance findings.

In general, surveyors found not just events during alleged correction periods illustrating continuing problems, but also evidence that noncompliance in some areas began earlier than previously known and remained uncorrected through the time of survey.  Having failed to present any evidence to rebut those factual findings from the March surveys, Petitioner cannot simply assert that it had promised to fix those conditions at one point, so the surveyors were bound to ignore evidence of earlier and later noncompliance. 

Petitioner denies that it is arguing that “such ‘look back’ allegations could not support any noncompliance,” but only that the survey agency and CMS “could not support their ‘continuing noncompliance’ allegations (and sanctions) only by such retroactive findings, and without ever determining whether the Center ever actually had corrected those citations and resumed compliance at some point . . . .”  RR at 12 (emphasis in original).  But, of course, the surveyors and CMS did determine whether the facility ever corrected the citations or resumed substantial compliance at some point.  Their determination was that Petitioner did not return to substantial compliance at any point between December 1, 2014 and June 1, 2015.

Petitioner seems to suggest that it merely “accepted a CMP for the period March 4, 2015 through May 18, 2015” (the date by which it alleged it would correct the March noncompliance findings), but that it could still argue that the March survey findings

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“were not sufficient retroactively to resurrect noncompliance back to October or December, 2014 or January, 2015 (or, really, to any point before March, 2015, when the SSA also cited unrelated deficiencies).”  RR at 13 (italics in original).  If Petitioner means to say that it did not contest the remedy but did still mean to dispute the factual underpinnings of the March surveys’ noncompliance findings (or perhaps of those findings which show noncompliance arising prior to the survey dates), that is not what Petitioner did before the ALJ.  Instead, Petitioner explicitly declined to present evidence as to any of the facts concerning the March survey findings.  We see nothing presented by Petitioner to rebut the prima facie case established on the record as to the dates on which the noncompliance under each tag began.

We conclude that the ongoing noncompliance established by the uncontested March survey findings ran from December 1, 2014 (the start of the survey cycle) through at least May 18, 2015.  We consider this ongoing noncompliance to run parallel to the noncompliance cited under Tag F166, which commenced before December 1, 2014, was found uncorrected at the March 4, 2015 survey, and therefore continued after March 4th pending proof of correction.  Thus, the record establishes that both due to its proven noncompliance with Tag F166 through this period and due to the uncontested noncompliance in the March 2015 surveys, Petitioner failed to show any “gap” in which it was in substantial compliance between December 1, 2014 and May 18, 2015. 

We turn next to the survey ending May 22, 2015 – the last in the relevant survey cycle.

G. The ALJ’s findings about the May 22, 2015 survey are supported by substantial evidence and free of legal error.

CMS relies on the findings of this survey to establish that Petitioner’s failure to achieve substantial compliance continued after May 19, 2015 and compelled termination.  The surveyors conducted a fourth revisit survey to ascertain if the facility was in substantial compliance and another investigation of a new complaint, and determined that noncompliance existed with multiple participation requirements.35  The ALJ found that Petitioner was noncompliant with Tags F201, F202, F203, F204, and F490.  ALJ Decision at 26.  The first four were cited at the J level and the fifth at the K level, and all

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arose from facts he found relating to the expulsion of a vulnerable individual, Resident 102.

We first summarize the heart of the ALJ’s factual findings regarding Resident 102.  After a female resident (with whom he had been friendly for some time according to facility records) said he kissed and touched her, Resident 102 was placed on one-on-one supervision while the staff made arrangements for his orderly transfer to a different facility.  Id. at 27-28.  The initial discharge care plan was prepared by Petitioner on April 10, 2015, and noted a target date of July 10, 2015, by which to discharge Resident 102 to another long-term care facility.  Id. at 28, 38.  Several days later, when the female resident’s allegations escalated to “almost” rape and police became involved (though they quickly ascertained that no criminal matter would be pursued and the female resident soon recanted), the facility administrator abruptly called Resident 102’s nephew and told him he must pick the resident up right away or else the facility would send the resident to a homeless shelter.  Id. at 32.  The resident and nephew had previously cooperated with the facility’s initial plan to require Resident 102 to relocate to another facility (which would need at least ten days to perform screening), although the record shows, and Petitioner concedes, the resident did not wish to move.  RR at 37.  The sudden expulsion of Resident 102 with no transfer plan on April 22, 2015, however, could in no way be fairly characterized as voluntary based on the facts credited by the ALJ.  ALJ Decision at 29-35.  The ALJ found the facility’s treatment of Resident 102’s removal failed to comply with multiple requirements for safe discharge and/or transfer of residents set out in section 483.12(a) and upheld (as not clearly erroneous) CMS’s findings that this noncompliance had placed one or more residents in immediate jeopardy.  Id. at 35-51, 52-58. 

On appeal, Petitioner continues to pursue an alternate version of events.  RR at 36-40.  In Petitioner’s account, Resident 102 and his nephew panicked at word of the police involvement and bolted from the facility on their own initiative, even though the nephew “had no place to take him.”  Id. at 38.  In this scenario, the minimal information and resources provided to the resident on departure were the “best feasible under the circumstances” caused by the actions of the resident and his family.  Id. at 39.  Alternatively or additionally, Petitioner portrays the immediate discharge as necessary because the facility was trapped in a dilemma of CMS’s making to either leave the female resident unprotected or keep Resident 102 under one-on-one supervision indefinitely (both, Petitioner says, in violation of participation requirements).  Id. at 36-37.  Moreover, Petitioner argues that CMS failed to prove that the resident suffered harm or even any plausible risk of harm from the facility’s actions and that the survey agency “essentially walked away from Resident #102 after citing deficiencies that the agency must have known would close the Center . . . .”  Id. at 39.  Petitioner contends that any deficiency should at least have been considered ended when Resident 102 left the facility on April 22, 2015, with no harm done.  Id. at 36.  Finally, Petitioner suggests that a CMS official thought the facility handled Resident 102’s situation “appropriately” but then

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inexplicably pressed on with a deficiency finding in a “‘win the case at any cost’ approach to enforcement.”  Id. at 39-40. 

The ALJ expressly considered all aspects of Petitioner’s various accounts about this resident and rejected them after a meticulous review of all the evidence of record, grouping his factual discussions to make clear how they established each of the cited deficiencies.  ALJ Decision at 26-52.  In considering an ALJ’s factual findings, “[u]nder ‘our settled precedent, absent compelling reasons for not doing so, we defer to the ALJ’s assessment of the credibility of witnesses and weighing of evidence.’”  Maysville Nursing & Rehab., DAB No. 2874, at 13 (2018) (quoting Ridgecrest Healthcare, DAB No. 2598, at 10 (2014) (citing Van Duyn Home & Hosp., DAB No. 2368, at 10-11 (2011) (citing Koester Pavilion, DAB No. 1750, at 20-22 (2000)))).  Petitioner here has given us nothing that resembles a compelling reason to reject that evidentiary evaluation by the ALJ of the facility’s contentions.

We do not repeat all of the ALJ’s detailed findings about Resident 102’s condition and the events surrounding his departure but highlight a few that clearly undercut Petitioner’s preferred scenario.  Responding to the claims that the resident left because he or his nephew was panicked by police involvement, the ALJ stated:

I am unpersuaded by Petitioner’s arguments. The evidence shows that Spring Meadows had agreed to accept Resident 102 pending receipt of the pre-admission screening (Tr. 851-52, 855).  But Petitioner’s staff interrupted the orderly transfer process that had been ongoing.  When Petitioner learned of the allegation of attempted rape, Petitioner became intent on having Resident 102 leave its facility as soon as possible.  Rather than wait for his transfer to Spring Meadows to be processed, Petitioner’s staff coerced Resident 102’s nephew to remove him from the facility on April 22, 2015.

ALJ Decision at 40.  He reviewed the timeline and documentation which he found made more likely that the facility reacted in short order to the “almost rape” accusation by preparing for immediate discharge.  Id. (citing CMS Ex. 24, at 267).  For example, the ALJ noted that the facility had the psychologist meet with Resident 102 on April 22, 2015, and that his clinical notes from 9 AM indicated that the session was to “emotionally prepare to leave the facility later today.”  Id. at 32, 41 (quoting CMS Ex. 24, at 186).  The ALJ reasonably found the timeline consistent with the nephew’s testimony that he was called on April 21, 2015 and told he had to remove his uncle and called again on April 22, 2015 to find out exactly what time he would arrive by which time his uncle’s belongings were already packed to go.  Id. at 41-42 (and record citations therein).  The ALJ specifically found the facility administrator’s denial that he threatened to send Resident 102 to a homeless shelter if the nephew did not take him out of the facility not credible.  Id. at 41 (citing Tr. at 1041).  We do not find Petitioner’s

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characterization of its claims of a relative simply voluntarily snatching a dependent relative away with nowhere to take him and no arrangements for care because of police inquiries to be “obvious” or “common sense” (RR at 38) or even persuasive, much less compelling.  The nephew’s behavior is more consistent with his acting in response to a threat of placing Resident 102 in an even worse position in a shelter without caregivers.  The facility’s rushed preparations for the resident’s departure before the nephew’s arrival and repeated calls to the nephew are more consistent with their wishing to offload a problem as soon as possible than with their being overtaken by a family’s precipitous actions.

As the ALJ noted, Petitioner also argues, somewhat inconsistently, that it was justified in involuntarily removing Resident 102 on April 22nd.  ALJ Decision at 42.  Petitioner emphasizes that CMS does not dispute its responsibility to take the female resident’s concerns seriously.  RR at 36-37.  Indeed, Petitioner’s handling of that resident’s complaint is not at issue here.  And CMS did not allege that the original plan to transfer Resident 102 to a different facility violated the regulations.  The issue is whether the resident’s sudden removal on April 22nd with no plans for his continued care violated regulatory requirements.  The ALJ noted that, on May 26, 2015, more than a month after it expelled Resident 102, Petitioner issued a “Nursing Facility Notice of Transfer or Discharge” stating that the “[r]eason for discharge or transfer” was “[t]he health of other individuals in this facility is endangered” and stated as an explanation, “[s]exually inappropriate with female resident.”  ALJ Decision at 43 (quoting CMS Ex. 24, at 392-93).  The ALJ found no evidence that Resident 102 encountered the female resident or posed any danger to her or anyone else after the initial incident on April 9, 2015, while he was on one-on-one supervision.  Id.  Even assuming that the only way the facility was able to safely manage Resident 102 was to continue one-on-one supervision, Petitioner does not explain why it could not continue that arrangement for a little while longer until the planned transfer to another facility was ready – hardly indefinitely – as it originally planned.  We find no compelling reason to disturb the ALJ’s assessment that the purported reason given in the belated notice constituted “an unsubstantiated, after-the-fact attempt to offer a justification for Resident 102’s discharge.” ALJ Decision at 43.

Section 483.12(a)(7) requires a facility to “provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.”  Petitioner suggests that, even though admittedly the discharge process was not what it would have been with more time, it was the “best feasible,” and Resident 102 and his nephew “were not simply rushed out, but that they actually met with the Center staff, and [a psychologist who had been seeing the resident], for more than an hour during the process.”  RR at 39.  Of course, the relevance of this suggestion depends on Petitioner’s idea that the rush was generated by the resident and his relative, whereas we have found well-supported the ALJ’s contrary finding that the facility itself created unnecessary panic and urgency.  As the ALJ detailed, the regulations require considerably more in discharge preparation than one hour of talk as a resident is on the way out the door.  ALJ

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Decision at 43-51.  For example, the regulations at section 483.12(a)(4)-(6) and the facility’s own policy require a 30-day advance notice for discharge containing specified information (with exceptions the ALJ found inapplicable), but the notice provided was given long after the discharge and contained inadequate and inaccurate information.  Id. at 45-47 (citing CMS Ex. 24, at 517); CMS Ex. 24, at 392-93.  Despite knowing that Resident 102 needed continuing care and had multiple medical issues,36 Petitioner essentially forced his release into the community with no plan for continuity of care and no referrals to ensure access to essential services.

Petitioner argues that Resident 102 incurred no “plausible risk” of harm from his discharge, or at least none for which the facility can be held responsible, largely because, in its version of events, it is the fault of the resident’s nephew that the resident was taken to a motel rather than “home.”  RR at 39.  Besides, according to Petitioner, the resident had a “good outcome” because he reported socializing at a senior center while living on his own.  Id.  In an “odd, and extremely troubling” bit of projection, Petitioner even suggests that it is the state survey agency that should have shown more interest in how Resident 102 was doing after his discharge.  Id.  We agree with the ALJ, however, that it was Petitioner’s “blatant indifference for Resident 102’s welfare, as evidenced by management’s failure to arrange for access to necessary outside services” that  “potentially put Resident 102 at risk of serious harm or death.”  ALJ Decision at 52.  The potential, or even likelihood, of serious harm to a resident as dependent and medically needy as this one required to leave on short notice with no plan for continuity of care, and with inaccurate discharge instructions about his needs (as fully described in the ALJ Decision) is all too clear.  While the resident’s nephew apparently managed to keep him safe, the sudden interruption of the planned transfer caused Resident 102 to lose the opportunity for transfer to the other facility closer to this family, while disrupting the continuity of his relationships with caregivers.  Id. at 34 (citing CMS Ex. 45, at 4).  In short, the facility, which initiated the requirement to leave precipitously, took no responsibility for ensuring Resident 102’s safety or following up on his situation which, at a minimum, caused him to lose the chance to move to a safe facility in an orderly way and potentially caused him to lose access to much-needed services and treatments. 

The ALJ also upheld the Tag F490 citation, which alleged that Petitioner, in violation of 42 C.F.R. § 483.75, was not administered “effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.”

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Id. at 51; CMS Ex. 13, at 96-97.  Citing Board holdings that a determination of noncompliance with section 483.75 may be derived from findings that the facility was not in substantial compliance with other requirements, the ALJ concluded, and we concur, that Petitioner’s immediate-jeopardy-level violations of section 483.12(a) “alone are sufficient evidence” that Petitioner was noncompliant with section 483.75 at the immediate jeopardy level.  ALJ Decision at 51-52; Asbury Ctr. at Johnson City, DAB No. 1815, at 11 (2002) (“[W]here a facility has been shown to be so out of compliance with program requirements that its residents have been placed in immediate jeopardy, the facility was not administered in a manner that used its resources effectively to attain the highest practicable physical, mental, and psychosocial well-being of each resident.”), aff’d, Asbury Ctr. v. Dep’t of Health & Human Servs., 77 F. App’x 853 (6th Cir. 2003).

Finally, Petitioner contends that any deficiency that might be found should be considered confined to this one resident and “the specific facts of his very unusual case,” and should end “when he left the Center on April 22, 2015.”  RR at 36.  Here again, Petitioner distorts the essence of the noncompliance, which is not merely that one vulnerable resident was discharged improperly, but that the mishandling of his discharge demonstrated that the facility was not able to ensure that its staff would handle transfer or discharge of residents properly, especially when the surrounding circumstances might be challenging.  While the precise challenges might not recur, inter-resident conflict or inappropriate interaction is not unusual.  If the facility decides to address such a situation by transferring one of the residents, it must be capable of doing so in compliance with the applicable regulations and its own policies setting out how it will implement the regulatory requirements.  The departure of Resident 102, in response to the facility administrator’s pressure on his family to immediately retrieve him or face his removal to a homeless shelter, did not end the noncompliance but exposed it.37   Petitioner has not shown that any actions were taken immediately after Resident 102’s discharge to ensure the administrator and staff would handle such a situation differently in the future.

Having found the ALJ’s findings on the May 22, 2015 survey well-supported and no evidence of any correction before June 1, 2015, we uphold his conclusion that Petitioner did not return to substantial compliance at any time before termination became mandatory.38

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II. Petitioner’s other arguments have no merit

A. The ALJ did not err by declining to resolve every noncompliance finding.

Petitioner argued that it was somehow improper for the ALJ not to rule on every one of “several dozen deficiencies” cited “during a series of half a dozen surveys over a six month period . . . .”  RR at 3.  Of course, as Petitioner is aware, the majority of the deficiencies cited, including all of those from the four surveys in December and March, were uncontested and therefore administratively final without ALJ action.  The January 29, 2015 survey cited noncompliance under three tags (Tag F166, Tag F43l, and Tag F441).  The ALJ addressed, and upheld, noncompliance under all three.  ALJ Decision at 16-25.  The May 22, 2015 survey cited noncompliance under 18 tags (Tag F201,Tag F202, Tag F203, Tag F204, Tag F205, Tag F224, Tag F226, Tag F241, Tag F246, Tag F250, Tag F312, Tag F319, Tag F353, Tag F356, Tag F490, Tag F493, Tag F501, and Tag F520).  Id. at 26.  The ALJ addressed, and upheld, noncompliance under five of those tags (Tag F201, Tag F202, Tag F203, Tag F204, and Tag F490), all of which involved Resident 102 and all of which were cited as presenting immediate jeopardy.  Id. at 26, 35-36.  So, the only contested noncompliance findings on which the ALJ did not issue a ruling were 13 tags from the May 22, 2015 survey.

Petitioner relies on its reading of Plott Nursing Home v. Burwell, 779 F.3d 975, 985-989 (9th Cir. 2015), as “directly applicable to review of the termination action principally at issue here” and precluding the practice of “leaving undecided contested citations that could affect imposition of a remedy.”  RR at 3 (italics in original).  In Plott, the ALJ addressed only three of 28 noncompliance findings from two surveys and the Board overturned the one noncompliance finding the ALJ had addressed from the second survey.  779 F.3d. at 985.  The court understood the Board’s “position” to be that, “so long as the penalty is within the maximum permitted, more deficiencies are immaterial,” which the court found illogical since the reasonableness of the amount of a CMP may be affected by the number and nature of deficiencies.  Id.  The two-member majority held that contested deficiencies had to be either reviewed or dismissed on the basis that unreviewed deficiency findings might result in an enforcement history triggering a higher CMP in a potential future case and that review then would be inadequate due to staleness.  Id. at 986-88.39   The court recognized that its position conflicted with not only the

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dissenting judge but with the Sixth Circuit, which “upheld a Board determination where only one of seven alleged deficiencies was reviewed.”  Id. at 989 (citing Claiborne–Hughes Health Ctr. v. Sebelius, 609 F.3d 839 (6^th Cir. 2010), reh’g denied, Aug. 20, 2010).  In Claiborne, the court expressly rejected the arguments made in Plott:

The DAB has consistently interpreted the regulations to mean that the ALJ is not mandated to address each and every deficiency found in a survey, and it may choose to address only those deficiencies that have a material impact on the outcome of the dispute.  See W. Care Mgmt. Corp. v. Ctrs. for Medicare & Medicaid Servs., DAB No. 1921, at 36 (2004). . . .  It is neither arbitrary nor capricious for the agency to conclude that, in the interests of judicial economy, it will review only those deficiencies that have a material impact on the outcome of the dispute.

609 F.3d at 847.  Because Petitioner is in Tennessee, which is within the Sixth Circuit, it is Claiborne, not Plott, which governs this matter.  But even were Plott applicable, we would not consider it as requiring review of the unaddressed noncompliance findings from the May 22, 2015 survey.  The number or severity of the noncompliance findings from the May 22, 2015 survey is not material to the termination remedy which was mandatory upon the determination that Petitioner had not achieved substantial compliance after six months.  And, Petitioner did not challenge on appeal the reasonableness of the CMP amounts sustained by the ALJ based on the noncompliance findings he upheld.  ALJ Decision at 59-61.  Nor could any unreviewed deficiencies affect some future CMP for Petitioner once the facility’s participation in Medicare was terminated. 

Petitioner suggests that the unreviewed deficiencies are material on the ground that any of them “at least theoretically could form the basis for termination.”  RR at 4.  It is true that any continuing noncompliance still present at the last survey was sufficient to compel termination, but that leads to the opposite conclusion:  overturning any of the other deficiencies could not have altered the outcome once the ALJ upheld five noncompliance tags from that survey.  Petitioner’s further comments about whether a single D-level deficiency could properly form the sole basis of a discretionary termination (id. at 4 n.3) have no relevance to the reality of Petitioner’s termination, which, as we have said, was mandatory as a result of six months of continuous noncompliance (much of it at the level of immediate jeopardy to its residents).  In short, Petitioner has not shown that any unreviewed deficiencies from the May 22nd survey would have any material impact on the outcome of this dispute.

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B. CMS was not required to make another finding of noncompliance on the day the termination took effect.

Petitioner appears to contend that the ALJ did not make sufficient findings to establish that the facility was not in substantial compliance on the actual date of termination.  RR at 3-4.  This argument is muddled with Petitioner’s contentions about Plott, which we rejected above, but continues by stating that section 1819(h)(2) of the Act “provides that the only remedy the Secretary is authorized to impose for past noncompliance^{[40 ]} is a civil money penalty (that is, not termination if the facility actually is in compliance on the termination date).”  Id. (footnote added); see also id. at 4 n.2 (citing 42 C.F.R. § 488.408 for the proposition that “the Secretary may not impose remedies against a facility that is in substantial compliance” and various other regulatory sections using the present tense to describe imposing remedies when a facility is not in substantial compliance).

Petitioner also points out that the Board has permitted facilities to make showings that they resumed compliance at a date earlier than that recognized by CMS, i.e., to challenge the duration of the remedies imposed.  RR at 4 (citing Foxwood Springs Living Ctr., DAB No. 2294 (2009); Libertyville Manor Rehab. & Healthcare Ctr., DAB No. 2849 (2018); and two ALJ decisions).  Moreover, Petitioner claims that it “offered evidence that it had resumed ‘substantial compliance’ prior to the June 1, 2015 termination date; that is, that it had implemented corrective action for all previously-cited deficiencies, conducted audits to assure that such action was effective, and the like.”  Id. at 3.  The statement has no citations, gives no description of any corrective actions after May 22, 2015, and offers no specific date by which such corrective actions were completed.  Indeed, it is not clear what actions, audits or “the like” are being referenced, and we have already explained in detail the many ways in which Petitioner fell short of achieving substantial compliance even when it abated some immediate jeopardy deficiencies or corrected some other noncompliance (while demonstrating continuing noncompliance in other areas).  Petitioner thus shows no basis to conclude that it had returned to substantial compliance prior to termination.

We must emphasize the Board’s longstanding holding that, once a facility has been found to be out of compliance, the facility has the burden of showing that it has made all necessary corrections and has returned to substantial compliance.  See, e.g., Taos Living Ctr., DAB No. 2293, at 19 (2009) (“The Board has held that once a facility is found to be out of substantial compliance, noncompliance is presumed to continue until the facility demonstrates that it has achieved substantial compliance.”) (citing Cary Health & Rehab. Ctr., DAB No. 1771, at 23-24 (2001)).  That is to say, CMS does not bear the impossible

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burden of checking every day to see if noncompliant conditions persist.  It is the facility that should be able to produce proof of effective correction.  The only relevant question, therefore, is whether Petitioner produced such proof of effective correction prior to June 1, 2015, to show that the ALJ’s contrary conclusion was not supported by substantial evidence. 

Petitioner’s failure to provide evidentiary citations only highlights the reason given by the ALJ for his conclusion.  At the hearing, a nurse testified for Petitioner that the facility had made an allegation of compliance to the state survey agency as of June 1, 2015, and that the state agency had in fact “concluded that Petitioner had corrected the deficiencies and returned to substantial compliance as of June 1, 2015.”  ALJ Decision at 5 (citing Tr. 703-04).  Petitioner admitted that it raised this issue for the first time at the hearing and CMS sought to submit rebuttal evidence on the ground that the testimony was “inaccurate or misleading.”  Id. at 4-5.  The ALJ accepted as exhibits Petitioner’s plan of correction from the May 22, 2015 survey, which in fact alleged that the facility would complete corrections only by June 24, 2015 (not June 1st), and state agency documentation showing that it concluded that Petitioner made the corrections only by June 24, 2015.  Id. (citing CMS Exs. 56 and 57).  Petitioner offers nothing to contradict the ALJ’s reasonable conclusion, based on this documentation, that it did not even allege to the survey agency, much less demonstrate, correction of the outstanding deficiencies prior to the termination date.  

C. Petitioner’s complaints about the survey process are unsupported and, in any case, irrelevant to CMS’s authority to impose the remedies here.

At various points in its briefing, Petitioner implies that the surveyors were improperly driven to find reasons to terminate the facility or that the state survey agency or CMS acted in bad faith in dealing with Petitioner.  The Board has long made clear that any alleged inadequacies or improprieties in the survey process cannot justify ignoring facility noncompliance unless they are shown to undercut the validity of an appealable noncompliance determination.  See, e.g., Libertyville at 23 (citing 42 C.F.R. § 488.318(b) (“Inadequate survey performance does not . . . [relieve a SNF] . . . of its obligation to meet all requirements for program participation” or “[i]nvalidate adequately documented deficiencies.”)); Nightingale Home Healthcare, Inc., DAB No. 2784, at 11 (2017) (administrative appeal process under Part 498 “do[es] not provide for a review of surveyor performance”; “evidence about the survey process is not relevant where the provider has not shown how any alleged defects in the conduct of the survey . . . undercut or impeach the evidence of noncompliance offered by CMS”; and ALJ committed no error in “disregarding . . . complaints about the survey process itself that did not relate to evidence concerning the facts of [the home health agency’s] compliance status” (internal quotation marks omitted)); Ne. Ohio Alzheimer’s Rsch. Ctr., DAB No. 1935, at 8 (2004) (goal of the survey-and-enforcement process to ensure “all deficient providers are appropriately sanctioned” is “in direct conflict with the idea that a noncompliant facility

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may avoid a remedy based on a defense that does not negate or remove the factual basis for a finding of noncompliance” (internal quotation marks omitted)).  Furthermore, alleged bias in a surveyors’ evaluation of evidence would not be prejudicial where the ALJ has an opportunity to make a de novo assessment of the evidence on appeal.  Jewish Home of E. Pa., DAB No. 2254, at 14-15 (2009), aff’d, Jewish Home of E. Pa. v. Ctrs. for Medicare & Medicaid Servs., 693 F.3d 359 (3rd 2012).  We therefore consider Petitioner’s complaints in this light to determine if any supported allegations impacted the evidence of Petitioner’s noncompliance.

Many of Petitioner’s comments are vague or conclusory, but to the extent that we are able to identify specific allegations, they are not supported by the record.  For example, Petitioner terms it “particularly striking – and depressing – that CMS does not even deny that Regional Office official [S.D.] specifically told the Center’s operator’s CEO that the Center had handled the case of Resident #102 appropriately – and then, thereafter, CMS used that very case as the ostensible basis for termination.”  Reply at 3 (italics in original); RR at 40 (arguing this shows a “‘win the case at any cost’ approach to enforcement”).  The only support offered for this assertion is the following testimony by that parent company executive about calling S.D. after the May 22, 2015 survey: 

So what happened was during the conversation with [S.D.], Resident 102 was a very complex situation for reasons I’ll go into when you want to go deeper on that.  But we wanted to explain to [S.D.] that I was involved in 102.  I had brought Dr. [B.] in to do a new behavioral assessment.  I had boards on all kinds of discharge to another sister building that was more advanced in that care level and could do one-on-one care for him.  And so [S.D.] said, I’m okay, the 102 thing, let’s move on that.  Let’s focus on the other fifteen or sixteen residents that . . . you’re alleging that you have lost a lot of money here.  You’re alleging this is an underserved area.  You want to keep your mission vision here but you’re the one who sent out sixteen people and took away their home temporarily.  I want to focus on those and give the bed-hold letter.

Tr. at 657.  The CEO does not assert anywhere that S.D. told him the facility handled Resident 102’s discharge appropriately.  Rather ironically, the reported conversation undermines further the suggestion that Petitioner was coming into substantial compliance after the final survey concluded.  The undisputed context was that 16 facility residents were hospitalized at the time of the survey under conditions where regulations and facility policy required that the facility provide them “bed hold” notices as to whether they would be able to return.  CMS argues that Petitioner effectively discharged these residents improperly (without notice or planning, and without providing them bed hold notices) in violation of 42 C.F.R. § 483.12(b).  CMS Br. at 33.  Petitioner’s witnesses did not deny that at least some of these residents were required to be provided bed hold notices and allowed to return but were not.  The CEO contended that they were trying to

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place some of them into “sister” facilities in the same chain (Tr. at 654-56); the Regional Vice-President explained that Medicaid would not pay for a bed hold when the facility had many empty beds and that they simply told the residents (sometimes only after they went to the hospital) that they could not return (Tr. at 1010-13).  We need not determine whether the denial of bed holds to these residents violated the regulatory requirements because no additional remedy was imposed based on this (since the termination was already in process based on the existing noncompliance).  We review the context, however, because it makes understanding S.D.’s reported comments much easier.  We take her to be conveying that she already knew enough about the events that transpired with Resident 102, and that her more immediate concern was the current fate of the 16 other residents made unable to return to their home from hospital visits by Petitioner, based on its own financial concerns.

Petitioner further claims, as proof that the state survey agency was “determined to use the survey and enforcement process to close the facility one way or another” that “[o]ne Surveyor actually wrote in her notes that her supervisors had instructed her team to ‘go back as far as necessary’ to find something to cite as termination approached.”  RR at 1-2 (quoting CMS Ex. 24, at 11; and citing Tr. 166, 172, 251).  Again, Petitioner distorts the context of the quoted language.  The handwritten notes actually read “c/o can go back as far as needed.”  CMS Ex. 24, at 11.  The abbreviation “c/o” is frequently used in medical records to refer to “complaints of” or “complaining of.”  The surveyor’s cited testimony on cross-examination confirms that the instruction refers to the investigation of Resident 102’s complaint during the May 22, 2015 survey (not some general instruction to the team):

Q . . . It says, can go back as far as needed.  What do you mean by that?
A Complaints can go back as far as needed.
Q As needed to do what?
A We were doing two different things.  We were doing a follow-up survey and we were doing a complaint survey.

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Tr. at 166.  Petitioner has provided no authority suggesting that, when a survey agency receives a resident complaint, its investigators are restricted from looking at records or other information relevant to the complaint prior to some cutoff date.41   Petitioner’s claim that the team was told to go back in time to look for a reason to terminate is without foundation.

The allegation lacks logic as well.  Both parties agree that the survey cycle that ultimately led to Petitioner’s termination was “unusually complicated,” involving as it did multiple revisits and multiple complaint investigations.  CMS Br. at 1; RR at 1 (“almost absurdly complicated”).  Petitioner concludes, despite admitting to being a “nursing facility with a history of operational issues,” that the multiple surveys and many findings could only reflect an “outcome-oriented” thrust to shut the facility down.  RR at 1-2.  But CMS could have chosen to impose a discretionary termination at any point, without waiting six months in hopes that Petitioner might resolve those longstanding operational issues and achieve substantial compliance.  While Petitioner argues that terminating for a single minor deficiency might raise administrative law problems (RR at 4 n.3), it does not deny that CMS had discretionary authority to terminate in the face of the multiple serious noncompliance findings, including immediate jeopardy.  CMS counts, and Petitioner did not dispute, that surveys collectively found 21 immediate jeopardy deficiencies and 13 actual harm deficiencies, many of them never challenged by Petitioner.  What is most striking is CMS’s forbearance in providing repeated opportunities to Petitioner to come into compliance up until the last moment before termination became legally mandatory.

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Conclusion

Having determined, for the reasons explained above, that the ALJ’s factual findings are supported by substantial evidence, and his legal conclusions are free of error, we sustain the ALJ Decision.

1. On October 4, 2016, more than a year after the last compliance survey in this case, CMS issued a final rule that amended the Medicare requirements for long‑term care facilities and re-designated some sections.  See Final Rule, Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688, 68,688-89.  Our analysis and decision are based on the regulations in effect from December 2014 through May 2015, the period in which the state survey agency completed the surveys providing the bases for CMS’s determinations of noncompliance.  See Carmel Convalescent Hosp., DAB No. 1584, at 2 n.2 (1996) (applying regulations in effect on the date of the survey and resurvey).
• back to note 1
2. A deficiency’s level of “seriousness” is cited by alphabetical designations:  “A”-level deficiencies are the least serious; “L”-level deficiencies are the most serious.  Seriousness is a function of two factors:  (1) “severity” –  whether the deficiency has created a “potential” for “minimal” or “more than minimal” harm to residents, resulted in “actual harm,” or placed residents in “immediate jeopardy”; and (2) “scope” – whether the deficiency is  “isolated,” constitutes a “pattern,” or is “widespread.”  See 42 C.F.R. § 488.404(b); State Operations Manual (SOM), CMS Pub. 100-07, Chapter 7 - “Survey & Enforcement Process for Skilled Nursing Facilities & Nursing Facilities,” § 7400.3.1 (matrix of scope and severity levels) (available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07pdf.pdf).  Deficiencies rated below level D do not result in actual harm and create the potential for only “minimal harm” and thus do not constitute lack of substantial compliance. SOM § 7400.3.1.  Deficiencies that cause actual harm or create at least the potential for more than minimal harm are rated at level D and above.  Id.; see also Final Rule, Medicare and Medicaid Programs; Survey, Certification and Enforcement of Skilled Nursing Facilities and Nursing Facilities, 59 Fed. Reg. 56,116, 56,183 (Nov. 10, 1994) (scope-and-severity grid).
• back to note 2
3. When immediate jeopardy is present, CMS may either terminate within 23 days or appoint a temporary manager to ensure the immediate jeopardy is removed.  42 C.F.R. § 488.410(a).  If immediate jeopardy is not abated after 23 days, the facility must be terminated.  Id.  CMS may also impose other remedies for the noncompliance.  Id. § 488.410(b).
• back to note 3
4. The factual discussion here is largely drawn from undisputed facts set out in the ALJ Decision.  The sequence of surveys and resultant findings is not in dispute.  We discuss later in our decision those noncompliance findings which Petitioner challenges on factual or legal bases.
• back to note 4
5. We generally refer to surveys by the date they are completed as they may take place over multiple days.
• back to note 5
6. Surveyors identify cited deficiencies by a unique “tag” number that corresponds to the regulatory requirement found to have been violated.  We use these tag numbers throughout this decision as a short form reference to the relevant regulations.
• back to note 6
7. The ALJ ultimately relied only on subsection 483.60(e).  ALJ Decision at 22-23.
• back to note 7
8. The ALJ noted that CMS also argued that it was within its discretion to terminate Petitioner based on the noncompliance found in the May 22, 2015 survey even if termination were not mandatory due to the six-month period of noncompliance beginning December 1, 2014.  ALJ Decision at 11 n.7.  While the ALJ agreed that CMS has such discretion under the regulations, he found that CMS’s notices to Petitioner relied only on the mandatory termination provisions.  Id. (citing 42 C.F.R. §§ 488.412(a), 488.456(b)(l)(i); CMS Exs. 16, at 2; 17, at 2; and 18, at 2).  In any case, he concluded it was unnecessary to reach the issue as he determined termination was indeed mandatory on the record before him.  Id.
• back to note 8
9. The ALJ explained that he would only need to review the May 22, 2015 survey to determine if noncompliance persisted until June 1^st and triggered mandatory termination, but that he had to review the January 29, 2015 survey findings in order to determine the reasonableness of the other remedies.  ALJ Decision at 15.
• back to note 9
10. Petitioner obtained an order from a nurse practitioner on October 19, 2014, but the catheter was not successfully placed; on October 23, Petitioner obtained a physician’s order for a catheter which was successfully placed, but then removed on October 27.  ALJ Decision at 20 (citing CMS Ex. 49 (corrected), at 82, 88).
• back to note 10
11. The surveyors cited noncompliance with eighteen different requirements but the ALJ concluded that he did not need to review every individual citation because those he upheld “show continuing noncompliance through June 1, 2015.”  ALJ Decision at 26.
• back to note 11
12. The ALJ recognized that CMS elaborated on the allegations underpinning the noncompliance finding beyond what was mentioned in the SOD but stated that he would consider those allegations as well because Petitioner neither objected to them nor claimed surprise.  ALJ Decision at 45.
• back to note 12
13. The ALJ engaged in a lengthy commentary on his views of Board precedents articulating the application of the “clearly erroneous” standard but we see no need to parse or correct his dicta in this regard because we find, as explained later, that Petitioner has not shown the immediate jeopardy determination from this survey to be clearly erroneous under the standard as correctly applied.  Cf. ALJ Decision at 53-58.
• back to note 13
14. The ALJ rejected Petitioner’s attack on the long-established distribution of burden of proof in these cases, requiring CMS to establish a prima facie case and the facility to rebut any such case by showing substantial compliance by the preponderance of the evidence.  ALJ Decision at 62.  The ALJ mistakenly asserted that the Board decisions setting out this standard are not precedential, but the error is harmless as he followed the correct standard.  The ALJ correctly affirmed that he reviewed the regulatory factors relating to the reasonableness of the amounts of the CMPs de novo based on the factual record before him, rather than reviewing whether CMS considered those factors in setting the CMPs.  Id.; see also Jewish Home of Eastern Pa., DAB No. 2451, at 13 (2012) (“How CMS calculated the amount of the CMP is not relevant because the ALJ conducts a de novo review of the reasonableness of the amount of the CMP based on the facts and evidence contained in the appeal record.”), aff’d, Jewish Home of E. Pa. v. Ctrs. for Medicare & Medicaid Servs., 517 F. App’x 116 (3rd Cir. 2013).
• back to note 14
15. The Board Guidelines are available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/participation/index.html.
• back to note 15
16. In fact, CMS never abandoned the position that Petitioner was continuously out of substantial compliance during the six-month survey cycle.  CMS Post-Hearing Reply at 4 n.2 (“CMS has maintained throughout this litigation that Petitioner was continuously out of substantial compliance and that the DPNA and CMP applied for every day during the survey cycle.”).
• back to note 16
17. [The grievance form did not lack only the administrator’s signature.  P. Ex. 19, at 1.  The bottom of the form, as referenced by the surveyor, calls for noting whether and how the results of the investigation and corrective measures were communicated to the resident, family and residents’ representative; indicating whether the complainant was satisfied and made any remarks; and obtaining the signature of the complainant and noting whether the complainant or representative received a copy of the form “per facility policy.”  Id.  All those required entries were left blank.  See Tr. at 374-75.]
• back to note 17
18. Petitioner goes so far as to question whether there really even was a grievance since Petitioner considered that it referred to “a regulatory issue not within the Center’s control.”  RR at 34.  This somewhat cryptic remark appears to imply that a family that states a grievance about the handling of its resident’s incontinence issues need not even be given the respect of a proper handling of their grievance by the facility if it believes the solution sought by the family is ill-advised medically.  We find no authority supporting this concept.
• back to note 18
19. Petitioner also suggests that the ALJ may have somehow conflated other incidents of inadequate incontinence care involving other residents or other surveys, and that the “context” of the ALJ comments on the facility’s lack of promptness “does not make clear whether he was referring to action on the grievance, or action to address the Resident’s incontinence.”  RR at 17 and 17 n.14.  Petitioner’s suggestion is contradicted on the face of the ALJ Decision, which shows in great detail that he was focused on this resident’s situation and the context explicitly refers to the poor response to the grievance:  “It took nearly four days for the grievance to be addressed by the resident’s physician who ordered the catheter.  I do not accept that prompt action occurred.”  ALJ Decision at 20.
• back to note 19
20. Petitioner does not explain why surveyors in December 2014 supposedly knew how the facility handled the grievance and were satisfied with it during the survey, but then would have sought out the family after the survey ended to have them file a state complaint which would then be investigated.  The scenario is implausible, as well as unsupported by the record.
• back to note 20
21. It should be remembered that accepting a plan of correction does not imply a finding that a deficiency has been corrected – only that the facility has proffered a plan to make corrections in a certain way by a certain date that the agency agrees might result in substantial compliance.  42 C.F.R.§ 488.110(k) (“Acceptance of the plan of correction does not absolve the facility of the responsibility for compliance should the implementation not result in correction and compliance.  Acceptance indicates the State agency’s acknowledgement that the facility indicated a willingness and ability to make corrections adequately and timely.”).  A revisit survey is usually required to determine whether the plan has been implemented and whether it has succeeded in correcting the deficient conditions.  42 C.F.R. § 488.454(a)(1).
• back to note 21
22. While Petitioner fails to point to it, the March 4, 2015 revisit survey SOD does mention a plan of correction with a claimed compliance date of December 16, 2014, but does not show whether the plan was accepted, and, in any case, finds that Petitioner failed to implement it successfully.  CMS Ex. 8, at 4-5.
• back to note 22
23. The transcript citations on which Petitioner also relied for the claim that the survey agency accepted a plan of correction based on a December 16, 2014 change in the facility’s grievance policy do not establish either point.  RR at 18 (citing Tr. at 498, 502).  At the hearing, the surveyor agreed with Petitioner’s counsel that a revisit would normally follow an acceptable plan of correction but declined to infer that a plan with a December 16, 2014 correction date had actually been accepted, pointing to the question mark he had put over that date in his notes.  Tr. at 498-500.
• back to note 23
24. Even where surveyors find that the noncompliance has been corrected prior to the survey, the regulations expressly authorize CMS to impose a CMP “for the number of days of past noncompliance since the last standard survey.”  42 C.F.R. § 488.430(b).  The regulations also provide that a per-day CMP “may start accruing as early as the date that the facility was first out of compliance” (id. § 488.440(a)(1)), but CMS did not elect to impose a CMP back to the date of Petitioner’s failure to properly handle and resolve the grievance.
• back to note 24
25. CMS on appeal does not discuss these two deficiencies beyond saying that the ALJ did not need to reach them because the ALJ agreed with CMS that Petitioner’s failure to challenge the findings of the March surveys established continuing noncompliance from December 1, 2014 through at least May 18, 2015, and Petitioner had not challenged the reasonableness (as opposed to duration) of remedies.  CMS Br. at 34 (citing ALJ Decision at 15).  We address the arguments about the March surveys later in this decision.  Whether or not the ALJ needed to reach these deficiencies, he reviewed them and found them supported on the record, as do we on appeal.
• back to note 25
26. If anything, the DON’s testimony that the resident of the room in question had a known propensity (due to his mental impairments) to defecate against the wall or in other inappropriate places suggests that the staff should have been monitoring for such contamination in the room.  See RR at 20 (citing Tr. at 923-24).  Petitioner’s reliance on the DON’s after-the-fact claims that a staff person told her at the time that she was “in the process of retrieving cleaning supplies to clean the room” is unpersuasive.  Id.  The ALJ found her testimony not worthy of much weight, and it lacks much specificity (such as whether the staff person had actually noticed the feces before the surveyors entered or were headed to the room or when the comment was supposedly made).  ALJ Decision at 25.  The surveyor’s observations in the SOD provided evidence of a prima facie case of violation and, contrary to Petitioner’s assertions, the ALJ was not obligated to find the DON’s testimony to be a credible rebuttal.  ALJ Decision at 24-25; CMS Ex. 6, at 6; contra RR at 20.
• back to note 26
27. The policy also covered floors and other housekeeping surfaces which are to be regularly cleaned, as well as when visibly soiled.  ALJ Decision at 25 (citing CMS Ex. 6, at 7).
• back to note 27
28. Petitioner’s real concern with the January 29th survey findings is evident in the scenario it paints of how it could avoid termination if only the ALJ had accepted its view of events:
• back to note 28
29. As explained earlier, the surveys ending January 29, 2015 resulted in findings of current noncompliance, including noncompliance under Tag F166 that began with the mishandled grievance in October 2014, but also in findings that prior noncompliance was corrected as of December 19, 2014.  Petitioner makes the odd claims that CMS “does not dispute that it created, sent, and then abandoned a series of Notices” about remedies, and that CMS opined that Petitioner “failed to correct any of the noncompliance cited at any time.”  Reply at 4-5 (emphasis in original).  Neither claim has any basis in the record.  As is evident here, the state survey agency made findings that Petitioner corrected specific noncompliance at specific times and CMS upheld those findings.  CMS never “abandoned” any of its notices – Petitioner was repeatedly warned of the consequences of noncompliance and of the date by which termination would become mandatory absent substantial compliance being achieved.  There is nothing inconsistent about notifying Petitioner when noncompliance with a requirement has been adequately corrected and notifying Petitioner of the identification of noncompliance when it is found.  What CMS found, the ALJ affirmed, and we conclude was supported by substantial evidence, is that Petitioner made some corrections to some areas of noncompliance but at no point during the six-month period at issue came into substantial compliance with all requirements.
• back to note 29
30. The regulations, tags, and scope and severity levels cited were as follows:  D level noncompliance with 42 C.F.R. §§ 483.13(c) (Tag F226) and 483.65 (Tag F441); F level noncompliance with 42 C.F.R. § 483.30(e) (Tag F356); and G level noncompliance with 42 C.F.R. §§ 483.13( c) (Tag F224), 483.15(a) (F241), 483.25(a)(3) (Tag F312), 483.75 (Tag F490), and 483.75(o)(1) (Tag F520), all of which were “based on examples from the period of January 2015 to the end of the survey on March 4, 2015.”  ALJ Decision at 13 (citing CMS Ex. 8).
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31. The regulations, tags, and scope and severity levels cited were as follows:  D level noncompliance with 42 C.F.R. §§ 483.10(b)(11) (Tag Fl57), 483.20(d) (Tag F279), 483.20(g)-(j) (Tag F278), 483.20(k)(3)(i) (Tag F281), 483.25 (Tag F309), 483.25(h) (Tag F323), 483.55(b) (Tag F412), 483.60(c) (Tag F428), 483.75(j)(l) (Tag F502), 483.75(j)(2)(ii) (Tag F505), and 483.75(l)(1) (Tag F514); F level noncompliance with 42 C.F.R. §§ 483.25(d) (Tag F315), 483.75(e)(8) (Tag F497), 483.75(t) (Tag F498), and 483.75(i) (Tag F501); and G level noncompliance with 42 C.F.R. §§ 483.13(c) (Tag F224), 483.15(a) (Tag F241), 483.25(a)(3) (Tag F312), 483.25(c) (Tag F314), 483.25(i) (Tag F325), 483.75 (Tag F490), and 483.75(o)(1) (Tag F520).  ALJ Decision at 13 (citing CMS Ex. 10).  The following noncompliance findings were cited as having begun before or during December 2014:  Tags F314, F325, F329, F412, F428, F502, and F520.  Id.
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32. Because he found that the uncontested noncompliance findings from the December and March surveys sufficed to show that there was no gap in continuous noncompliance, the ALJ stated that he resolved the contested January 29, 2015 survey findings merely in order to assess the reasonableness of the other remedies imposed, but did not consider it necessary for purposes of establishing continuous noncompliance.  ALJ Decision at 15.  In our view, as set out later, the January 29, 2015 survey findings serve not only that purpose but also establish a parallel basis to confirm continuing noncompliance from the start of the survey cycle until at least the noncompliance found in that survey was corrected (which was never shown).
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33. Petitioner’s cited conclusion of law states only:  “A CMP in the amount of $____ is reasonable for noncompliance between March 20, 2015 and May 18, 2015.”  Pet’s Proposed Conclusions of Law ¶ 78 (blank in original).  This does not appear to have any relevance to the question of whether the March 2015 noncompliance findings were disputed.
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34. The underlying verbal abuse took place on January 26, 2015; the facility investigation on January 30, 2015 substantiated it; and this also triggered a deficiency finding under Tag F224.  CMS Ex. 8, at 5-9.  The surveyors also found an allegation of abuse was reported on January 6, 2015, but not investigated until January 27, 2015 in violation of Tag F226.  Id. at 9-11.
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35. The regulations, tags, and scope and severity levels cited were as follows:  D level noncompliance with 42 C.F.R. §§ 483.13(c) (Tag F226), 483.15(e)(l) (Tag F246), and 483.25(t)(l) (Tag F319); E level noncompliance with  42 C.F.R. § 483.12(b)(l)-(2) (Tag F205); F level noncompliance with 42 C.F.R. § 483.30(e) (Tag F356); G level noncompliance with 42 C.F.R. § 483.15(a) (Tag F241); J level noncompliance with 42 C.F.R. §§ 483.12(a)(2) (Tag F201), 483.12(a)(3) (Tag F202), 483.12(a)(4)-(6) (Tag F203), 483.12(a)(7) (Tag F204), and 483.15(g)(l) (Tag F250); and K level noncompliance with 42 C.F.R. §§ 483.13(c) (Tag F224), 483.25(a)(3) (Tag F312), 483.30(a) (Tag F353), 483.75 (Tag F490, 483.75(d)(l)-(2) (Tag F493), 483.75(i) (Tag F501), and 483.75(0)(1) (Tag F520).  ALJ Decision at 26 (citing CMS Ex. 13).  We discuss in a later section the ALJ’s decision not to address all 18 deficiency findings from this survey.  Id. at 27, 35.
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36. On the date he was discharged, Resident 102 was assessed “as requiring extensive assistance with bed mobility, transfers, and toilet use, and needing assistance with dressing, personal hygiene, and bathing,” and a week before, his physician had specifically ordered that any discharge be to another long-term care facility.  ALJ Decision at 42 (citing CMS Ex. 24, at 247, 445-46).  Yet, the facility staff gave Discharge Instructions showing him as having “no limitations” and needing no assistance with “bathing, dressing, feeding, brushing his teeth, shaving, or toilet use,” statements which were “inaccurate and completely inconsistent” with the resident’s actual assessment.  Id. at 50 (citing CMS Ex. 24, at 244).
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37. We also note that the mishandling was not limited to the administrator but included multiple staff, such as the Social Services Director, who admittedly told the nephew on April 20, 2015, that Resident 102 could not stay at the facility until the planned transfer to another facility could be completed.  ALJ Decision at 30, 39-40 (citing CMS Ex. 24, at 19, 184-85).
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38. Petitioner made no clear argument on appeal as to the other remedies apart from points already addressed so we do not separately discuss them.
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39. Plott reflects some confusion about the Board’s position which has been more limited in holding that an ALJ may decline to resolve every contested deficiency finding if, but only if, the deficiency findings upheld are sufficient to demonstrate that the amount of any CMP imposed is reasonable even if the unresolved findings had not been made.  See, e.g., Rockcastle Health & Rehab. Ctr., DAB No. 2891, at 23-24 (2018); Heritage Plaza Nursing Ctr., DAB No. 2829, at 4 n.3 (2017) (“An ALJ need not make findings on all alleged survey deficiencies to sustain a CMS determination and the imposition of enforcement remedies.”).  In addition, in discussing the potential for enhancing future penalties, Plott seems to conflate contested deficiency findings that have not been resolved on appeal with deficiency findings that were not reviewed because they did not result in imposition of any remedy, see 779 F.3d at 988, though in the latter case the Board and ALJs would have no authority to conduct any review.
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40. We have already explained that Petitioner misuses the term “past noncompliance,” but here we address the point implied by the parenthetical, i.e., that the facility could not be terminated if it claims to have been in substantial compliance on June 1, 2015.
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41. The other two transcript citations do not discuss the quotation from the surveyor’s notes.  The testimony on page 172 actually deals with facility self-reports of incidents in the weeks before the survey whereas the complaint survey did not involve self-reporting but a complaint filed by the resident or family, so it has no bearing on the quotation from the notes about how far to go back in investigating a complaint.  On page 251, the surveyor states that she was instructed that she could use examples of continuing noncompliance under cited tags that occurred before the claimed correction date (May 18, 2015) because correction was never achieved (i.e., the facility was “continually out of compliance”).  In other words, the surveyor did not contend that, had the facility shown compliance on or after May 18, 2015, the examples from the correction period would constitute separate deficiencies but, rather, that they were relevant given that no showing of correction was made as of the survey date.  We see no error in this reasoning but, in any case, it is not significant to the outcome here since the deficiencies referenced were among those the ALJ did not address.
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