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                              Alameda Center for Rehabilitation and Healthcare, DAB CR5763 (2020)
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Alameda Center for Rehabilitation and Healthcare, DAB CR5763 (2020)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Alameda Center for Rehabilitation and Healthcare,
(CCN: 31-5180),
Petitioner,

v.

Center for Medicare & Medicaid Services.
Docket No. C-19-129Decision No. CR5763November 13, 2021

        
              
    

      DECISION

Petitioner, Alameda Center for Rehabilitation and Healthcare, is a long-term care facility, located in Perth Amboy, New Jersey, that participates in the Medicare program.  Following a complaint investigation, completed on June 12, 2018, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety.  CMS has imposed a per-instance civil money penalty (CMP) of $13,505.

Petitioner has appealed.  CMS moves for summary judgment, which Petitioner opposes.

For the reasons set forth below, I grant CMS’s motion.  The undisputed evidence establishes that the facility was not in substantial compliance with program requirements and that the penalty imposed is reasonable.

**Page 2**

Background

The Social Security Act (Act) sets forth requirements for nursing facilities participating in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.1
  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state survey agencies to survey skilled nursing facilities in order to determine whether they are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys, and must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

Here, responding to a complaint, a surveyor from the New Jersey Department of Health went to the facility to investigate.  She completed her investigation on June 12, 2018.  CMS Ex. 1.  Based on her findings, CMS determined that the facility was not in substantial compliance with **42 C.F.R. § 483.60(e)** (Tag F-808) (food and nutrition services – therapeutic diets), and that the deficiency posed immediate jeopardy to resident health and safety.  CMS subsequently determined that the facility’s deficiency put it out of substantial compliance with **42 C.F.R. § 483.60(d)(3)** (Tags F-800 and F-805) as well.  CMS Exs. 1, 16; CMS Br. at 10.

CMS also determined that the facility removed the immediate jeopardy at the time of the survey.  Following an August 13, 2018 revisit, CMS determined that the facility returned to substantial compliance on June 12, 2018.  CMS Ex. 16 at 1.

CMS has imposed a per-instance civil money penalty of $13,505.  CMS Ex. 16 at 2.

Petitioner appeals, and CMS moves for summary judgment.  With its motion and brief (CMS Br.), CMS has submitted 24 exhibits (CMS Exs. 1-24).  With its brief in opposition (P. Br.), Petitioner has submitted seven exhibits (P. Exs. 1-7).

**Page 3**

Issues

As a threshold matter, I consider whether summary judgment is appropriate.

On the merits, the issues are:

Was the facility in substantial compliance with Medicare program requirements, specifically, 42 C.F.R. § 483.60(d)(3) and (e); and
	If the facility was not in substantial compliance with Medicare program requirements, is the penalty imposed – $13,505 per-instance – reasonable?I have no authority to review CMS’s immediate jeopardy determination.  I may review CMS’s scope and severity findings (which include immediate jeopardy) if:  1) a successful challenge would affect the range of the CMP; or 2) CMS has made a finding of substandard quality of care that results in the loss of approval of a facility’s nurse aide training program.  42 C.F.R. § 498.3(b)(14), (d)(10); *NMS Healthcare of Hagerstown*, DAB No. 2603 at 6-7 (2014); *Cedar Lake Nursing Home*, DAB No. 2344 at 9 (2010); *Heritage Park Rehab. and Nursing Ctr*., DAB No. 2231 at 15-16 (2009); *Evergreen Commons*, DAB No. 2175 (2008); *Aase Haugen Homes*, DAB No. 2013 (2006).

For a per-instance penalty, the regulations provide only one range ($2,097 to $20,965), so the level of noncompliance here does not affect the range of the CMP.  42 C.F.R. §§ 488.408(d), 488.438(a)(2); 45 C.F.R. § 102.3; 82 Fed. Reg. 9174, 9182-83 (Feb. 3, 2017).2

If I approve a penalty of $10,483 or more, which I do here, CMS’s scope and severity finding will not affect approval of the facility’s nurse aide training program, assuming that it has one.  Under the statute and regulations, the state agency cannot approve the program if CMS imposes a penalty of $10,483 or more.  The facility thus loses its approval without regard to the immediate jeopardy finding.  Act § 1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv); 82 Fed. Reg. 9174, 9188.

Petitioner nevertheless argues that the scope and severity finding is reviewable because a successful challenge *would* affect the range of the penalties.  P. Br. at 18.  According to Petitioner, if the scope and severity were lowered to level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm), CMS would not have the authority to impose a CMP in any amount.  P.

**Page 4**

Br. at 18.  This is simply wrong.  CMS may impose a penalty whenever a facility is not in substantial compliance with program requirements.  Act § 1819(h); 42 C.F.R. § 488.400.  As noted above, a facility is not in substantial compliance if its deficiencies have the potential for causing more than minimal harm; a D-level deficiency has the potential for causing more than minimal harm.  42 C.F.R. § 488.301.3

Discussion

**Summary judgment**.  Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  *Bartley Healthcare Nursing and Rehab.*, DAB No. 2539 at 3 (2013) (citing*Celotex Corp. v. Catrett*, 477 U.S. 317, 322-25 (1986)); *Ill. Knights Templar Home*, DAB No. 2274 at 3-4 (2009) (and cases cited therein).

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  *Livingston Care Ctr. v. Dep’t of Health & Human Servs.,*388 F.3d 168, 173 (6th Cir. 2004) (quoting *Celotex Corp.*, 477 U.S. at 323-24).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  *Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,*475 U.S. 574, 586 n.11 (1986); *Vandalia Park,* DAB No. 1939 (2004); *Lebanon Nursing and Rehab. Ctr.,* DAB No. 1918 (2004); *Crestview Parke Care Ctr*., DAB No. 1836 at 5 (2002).

General denials do not satisfy a party’s burden to identify *specific* evidence demonstrating a material fact is in dispute.  *Shah v. Azar*, 920 F.3d 987, 995 (5th Cir. 2019); *Forsyth v. Barr*, 19 F.3d 1527, 1533 (5th Cir. 1994); *Pearsall Nursing & Rehab. Ctr. - North*, DAB No. 2692 at 7 (2016) (affirming summary judgment where Petitioner “refers broadly to ‘the evidence presented in [its] response’” but “identifies no specific evidence relevant to the material facts . . . .”); *Ill. Knights Templar*, DAB No. 2274 at 4 (finding that the non-moving party must furnish admissible evidence of a dispute concerning a material fact); *Livingston Care Ctr*., DAB No. 1871 at 5 (2003),*aff’d Livingston Care Ctr. v. Dep’t of Health & Human Servs.,*388 F.3d 168 (6th Cir. 2004).  The non-moving party must also show more than “some metaphysical doubt as to the material facts.”  *W. Tex.*

**Page 5**

*LTC Partners, Inc.*, DAB No. 2652 at 6 (2015), *aff’d, W. Tex. LTC Partners, Inc. v. U.S. Dep’t. of Health & Human Servs.*, 843 F.3d 1043 (5th Cir. 2016); *1866ICPayday.com L.L.C.*, DAB No. 2289 at 3 (2009) (quoting *Matsushita Elec. Industrial Co.*, 475 U.S. at 587).

In examining the evidence for purposes of determining the appropriateness of summary judgment, I must draw all *reasonable* inferences in the light most favorable to the non-moving party.  *Brightview Care Ctr.*, DAB No. 2132 at 2, 9 (2007); *Livingston Care Ctr.*, 388 F.3d at 172; *Guardian Health Care Ctr.,* DAB No. 1943 at 8 (2004); *see also Brightview*, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party *does not require that I accept the non-moving party’s legal conclusions*.  *W. Tex. LTC Partners, Inc.*, DAB No. 2652 at 6-7, 14-15; *cf. Guardian Health Care Ctr.*, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed, and there is only one reasonable conclusion that can be drawn from those facts.”); *see Green Valley Health Care and Rehab. Ctr.*, DAB No. 2947 at 8 (2019) (*quoting Johnson v. Perez*, 823 F. 3d 701, 705 (D.C. Cir. 2016) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”)).

**Summary judgment applied to administrative review in Medicare cases**.  It is well-established that an administrative law judge is empowered to decide a case on a motion for summary judgment, without an evidentiary hearing.  *Shah v. Azar*, 920 F.3d at 996 (citing *Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs.*, 619 F.3d 453, 457 (5th Cir. 2010)); *see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs.*, 604 F.3d 445, 449 (7th Cir. 2010).  Deciding a case on summary judgment *does not mean* that it is decided without a hearing, and in applying the principles of summary judgment to administrative proceedings, courts have been careful to avoid any suggestion that the case is decided without a hearing.  Throughout their decisions, they refer to deciding the case without an “oral hearing” or without an “evidentiary hearing.”  Although a case may be decided on summary judgment (or based on the written record), an administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing, as required by sections 205(b) and 1866(h) of the Act.  *See* *CNG Transmission Corp. v. FERC*, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).

There seems to be some confusion about applying such well-founded principles of civil litigation to these proceedings, with some suggesting that, to do so, denies a party a fundamental right.  In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals gave lie to such misconceptions:  “All it means for a decision to be

**Page 6**

based on a grant of summary judgment is that there are *no issues that would benefit from being resolved in an evidentiary hearing*.”  *Fal-Meridian*, 604 F.3d at 449 (emphasis added).

As the following discussion shows, in this case, no material facts are in dispute, and CMS is entitled to judgment as a matter of law.  CMS has come forward with evidence – a physician order, multiple assessments, and the resident’s care plan – establishing that one of its residents required a therapeutic diet.  Yet, nursing staff disregarded all of this and gave her a meal that, according to facility documents, was potentially dangerous.

Petitioner does not dispute any of the underlying facts, but instead argues that the precautions were unnecessary.  It submits opinion testimony that the staff’s disregard of the resident’s dietary restrictions did not put the resident in any immediate danger.  In fact, the opinions Petitioner submits are not supported by the underlying documentation.  But even if they were, Petitioner could not prevail.  As a matter of law, facility staff are not free to ignore physician orders, assessments, and care plans addressing a resident’s dietary restrictions.  Because they did so, the facility was not in substantial compliance with sections 483.60(d)(3) and (e).

***1. CMS is entitled to summary judgment because the undisputed evidence establishes that the facility lacked safeguards for ensuring that staff followed physician orders for therapeutic diets.  Specifically, staff ignored the dietary restrictions called for in one resident’s physician order, dietary and speech therapy assessments, and care plan, by giving her food that, according to all of those documents, she could not safely eat.  Such disregard for her dietary restrictions put the facility out of substantial compliance with 42 C.F.R. § 483.60(d)(3) and (e).***4

**New issue**.  Petitioner complains that CMS has added two F-tags – F-800 and F-805 – that were not cited on the survey report form.  P. Br. at 5-6.  Although F-tags are a convenient short-hand for discussing deficiencies, they have no legal significance.  I am bound by the statute and regulations, not F-tags.

To the extent that Petitioner complains that CMS has added a new issue – whether the facility complied substantially with 43 C.F.R. § 483.60(d)(3) – the regulations allow me to consider new issues, even if CMS did not include them in its initial determination.  42 C.F.R. § 483.56(a).  And it is well-settled that CMS is not limited to the specific allegations included in the Statement of Deficiencies.  As the Departmental Appeals Board has repeatedly explained, the Statement of

**Page 7**

Deficiencies is a notice document, not intended to “lay out every single detail in support of finding that a violation has been committed.”  *Life Care Ctr. of Bardstown*, DAB No. 2479 at 7 (2012) (citing*Livingston Care Ctr*., DAB No. 1871 (2003)); *Alden Town Manor Rehab. & HCC*, DAB No. 2054 at 17 (2006) (citing*Pacific Regency Arvin*, DAB No. 1823 at 9-10 (2002)).  So long as the facility knows what it must answer to – which can be accomplished through pre-hearing record development – the facility has sufficient notice.  Here, in its motion for summary judgment and pre-hearing brief, CMS laid out its positions.  The issues were thus properly raised, and Petitioner had ample notice and opportunity to respond.

In any event, implicit in section 483.60(e) is the requirement that the physician’s order for a therapeutic diet be followed.

**Program requirements:  42 C.F.R. § 483.60(d)(3) and (e) (Tags F-800, F-805 and F-808)**.  The facility must provide each resident with a nourishing, palatable, and well-balanced diet that meets her daily nutritional and special dietary needs.  Among other specific requirements, the facility must provide food prepared in a form designed to meet individual needs, and therapeutic diets must be prescribed by the resident’s attending physician, although the physician may delegate that task to a registered or licensed dietitian, as allowed by state law.

**Resident 1 (R1).**  R1 was an 86-year-old woman, admitted to the facility in December 2012.  She suffered from a long list of impairments, including gastro-esophageal reflux disease without esophagitis, atherosclerotic heart disease, hypertension, anemia, anxiety disorder, major depression, and dementia.  She had a cardiac pacemaker.  CMS Ex. 6 at 1.  She was missing many of her teeth.  CMS Ex. 9 at 2.

According to her speech-language evaluation and plan of treatment, dated April 16, 2014, R1 presented with oropharyngeal dysphagia, which means that she had problems chewing and moving food or fluid to the back of her throat and swallowing it.  CMS Ex. 9 at 1-3; *see* CMS Ex. 20 at 1; CMS Ex. 24 at 3 (Ruscello Decl. ¶ 5) (“Oropharyngeal dysphagia is difficulty emptying material from the oropharynx into the esophagus.”).  She was referred for the evaluation because nurses reported that she was coughing while attempting to eat chopped meats.  CMS Ex. 9 at 2.  The therapist recommended a mechanical soft diet, chopped and soft textures and thin liquids to “increase safety during oral intake.”  According to the plan of treatment, R1 also required “close supervision” for oral intake.  CMS Ex. 9 at 1.

R1’s physician ordered a therapeutic diet:  pureed texture, regular consistency, ground meat only.  R1’s physician also ordered the facility to “feed [patient] slowly in upright position.”  CMS Ex. 6 at 1.

**Page 8**

R1’s quarterly dietary assessments, from April 1, 2015, through April 5, 2018, indicate that she had “a potential for altered nutrition [related to] psychosis, dementia, [being] on [psychiatric medications]” and that she was at risk for changes [in her oral] intake . . . .”  CMS Ex. 7 at 2-5.  The assessments were consistent in confirming that R1 was on a “regular puree diet (ground meats),” although they also indicate that she “feeds herself, with supervision and setup help.”  CMS Ex. 7.  She is generally described as “alert with periods of confusion.”  CMS Ex. 7 at 2, 3, 4.

An annual screening by the facility’s speech therapy pathologist, Danielle Moseley, CCC (Certificate of Clinical Competence), is dated October 2, 2017.  Speech Therapist Moseley concluded that R1’s overall condition was unchanged and again called for a soft diet of ground textures and thin liquids.  CMS Ex. 8; *see* CMS Ex. 7 at 2.

**The June 11, 2018 meal**.  Surveyor Geraldyn Mijares-Echevarri, RN, BSN, WCC, observed the residents eating lunch on June 11, 2018.  CMS Ex. 2 at 2 (Mijares-Echevarri Decl. ¶ 5).  Although R1’s meal ticket called for pureed foods and ground meat only (consistent with her assessments, care plan, and physician order), staff had given her a grilled cheese sandwich, which she was eating, without assistance.  CMS Ex. 2 at 2 (Mijares-Echevarri Decl. ¶ 6).

Surveyor Mijares-Echevarri questioned the charge nurse, the dietitian, and, ultimately, Speech Therapist Moseley, who confirmed that a grilled cheese sandwich did not conform to R1’s dietary restrictions.  She also confirmed that she herself had screened R1 on October 2, 2017, and concluded that R1’s eating and swallowing functions had not improved and that she should remain on the ground meat/pureed food diet for safety.  She confirmed that grilled cheese was hard in texture and did not conform to R1’s dietary restrictions.  CMS Ex. 2 at 2-3 (Mijares-Echevarri Decl. ¶¶ 7-9).

In addition to her other difficulties with eating, the surveyor observed that R1 had no bottom teeth and had only partial upper teeth.  CMS Ex. 2 at 2-3 (Mijares-Echevarri Decl. ¶ 9).

One of the facility’s registered nurses admitted that she gave R1 the grilled cheese sandwich.  She told the surveyor that she was aware of R1’s dietary restrictions but disregarded them because R1 didn’t like the meal served.  The nurse also told Surveyor Mijares-Echevarri that R1 had been given grilled cheese sandwiches in the past.  CMS Ex. 2 at 3-4 (Mijares-Echevarri Decl. ¶ 13).

Surveyor Mijares-Echevarri interviewed the food service supervisor, who told her that the dietary aides gave alternate foods to nursing staff without asking to see a meal ticket or for whom the food was intended.  CMS Ex. 2 at 4 (Mijares-Echevarri Decl. ¶ 19).  The nurse who’d given R1 the sandwich confirmed that she got it from dietary staff without providing a meal ticket.  CMS Ex. 2 at 4 (Mijares-Echevarri Decl. ¶ 20).

**Page 9**

Facility records list sixteen residents (including R1) who required pureed diets, and an additional 38 who required chopped diets.  CMS Ex. 10.  In CMS’s view, staff’s disregard of dietary orders and care plans potentially threatened all of these individuals.  CMS Br. at 6.

Based on these facts, CMS argues that the facility was not in substantial compliance with 42 C.F.R. § 483.60(d)(3) and (e).

**Petitioner’s defenses**.  Petitioner does not dispute the underlying facts:  that R1’s assessments, care plan, and physician order called for a pureed diet and ground meats; that, contrary to these directives, staff gave the resident a grilled cheese sandwich; that this was not an isolated incident – it had happened before; and that dietary staff provided food when nurses requested it, without ensuring that the food comported with resident diets.5

CMS has come forward with evidence that a grilled cheese sandwich should not be given to someone with R1’s dietary restrictions.  It is considered a “mixed textured food.”  The toasted bread requires “substantial oral preparation, particularly with the molar teeth” (which R1 did not have).  CMS Ex. 23 at 5-6 (Ruscello Decl. ¶ 13); *see* CMS Ex. 2 at 2-3 (Mijares-Echevarri Decl. ¶ 9).  The melted cheese presents additional problems because it is “sticky.”  Without her teeth, R1 would have additional problems forming a bolus (rounded mass or lump of chewed food) with a food of such viscosity.  *Id*.  According to Petitioner’s own literature, sticky foods are a leading cause of choking.  P. Ex. 2 at 17.   Petitioner submits no evidence suggesting a dispute over whether a grilled cheese sandwich may appropriately be fed to an individual on a pureed diet.

Nor has Petitioner presented any evidence to suggest a factual dispute as to whether the kitchen staff gave food to nursing staff without checking meal tickets and without asking for whom the food was intended.

**Page 10**

Instead, Petitioner focuses solely on R1, arguing that she was not as vulnerable as her assessments suggest and that staff’s failing to honor the restrictions did not seriously jeopardize her health and safety.  Petitioner points to evidence regarding R1’s mental acuity:

R1 scored 11 on an April 7, 2018 BIMS (Brief Interview for Mental Status).  Petitioner asserts that her score shows a “high functioning level of understanding.”  CMS Ex. 14 at 13; P. Br. at 8.  I’m not sure what Petitioner means by “high functioning level”; R1’s score establishes that she was moderately cognitively impaired.  *See Rockcastle Health and Rehab. Ctr.*, DAB No. 2891 at 6 n.7 (2018).
	On June 5, 2018, which was after the survey, Boris Borodulin, M.D., conducted a psychiatric evaluation of R1.6
  The evaluation describes her as alert and oriented to person, place, and time, with a normal memory, and “easily” able to spell the word WORLD backwards; she apparently made mistakes attempting to count by serial 7’s.  However, the report also indicates that R1 is forgetful and has problems with concentration.  Her GAF (Global Assessment of Functioning) score was 60, indicating moderate difficulty in functioning.  CMS Ex. 14 at 35; *but see* CMS Ex. 14 at 12 (June 12 physician evaluation, noting that R1 was oriented to self, but not place or time); P. Br. at 8.For purposes of summary judgment, I accept that these were valid evaluations, and accurately reflected R1’s level of function (although I do not accept Petitioner’s gratuitous assertion of “high functioning level,” which I find meaningless), but find them not material.  Neither evaluation suggests that R1’s prior assessments were wrong, nor that she did not require the dietary restrictions called for in her care plan.

More to the point, Petitioner asserts that the facility implemented a therapeutic diet, not because of safety concerns, but because R1’s eating was inefficient – she could not swallow “in a reasonable time frame.”  P. Br. at 11.  In support, Petitioner relies on a June 12 statement signed by two speech therapists (including Danielle Moseley), and the opinions of two speech language pathologists, Peter O’Dougherty, MS, CCC-SLP, and Carolyn Garrett, MS, CCC-SLP.  They reviewed R1’s records (including those generated

**Page 11**

after the survey) and opine, based on those records, that staff’s disregard of R1’s dietary restrictions did not endanger her.  P. Br. at 9-12; CMS Ex. 14 at 25, 36; P. Ex. 4 at 3-5 (Garrett Decl. ¶¶ 12-26).

The guarded statement from the speech therapists simply does not support Petitioner’s assertion.  Nothing in it undermines the validity of R1’s earlier assessments.  The therapists characterize R1’s ordered diet as “the least restrictive” and describe her annual screens for 2015 and 2016 as “stable.”  They also report that, as of June 11, 2018, R1 “expressed [a] desire for grilled cheese sandwiches and agrees to engage in skilled interventions to facilitate potential diet advancement for safe and independent [by mouth] intake.”  CMS Ex. 14 at 25.  Viewing this assessment in the light most favorable to Petitioner, we are still left with the speech therapists’ conclusion that R1 would require “skilled interventions” in order to expand the types of foods she could eat safely.

A major problem with the O’Dougherty and Garrett opinions is that they do not accurately reflect the underlying documents upon which they are purportedly based.  Unsupported speculation does not create even a “metaphysical doubt” as to the material facts, much less raise the genuine dispute of material fact required to preclude summary judgment.  *W. Tex. LTC Partners, Inc.*, DAB No. 2652 at 15.  Moreover, even assuming the opinions raise more than a metaphysical doubt as to the material facts, those facts are ultimately not material.

Speech pathologist, Peter O’Dougherty, MS, CCC-SLP, at the facility’s request, reviewed R1’s records.  He reported that R1 had an oral phase dysphagia, “characterized by difficulty chewing solid foods.”  He opined that R1 understood her limitations and was not at “high risk” for aspiration.  Her diet was modified because of her deficits in mastication, not because she was unable to swallow.  CMS Ex. 14 at 36.  From this, Petitioner argues that, because she was not at high risk for aspiration, feeding her a grilled cheese sandwich did not pose immediate jeopardy to her health and safety.  But, as discussed above, I have no authority to review CMS’s scope-and-severity determination.
	A second speech language pathologist, Carolyn Garrett, MS, CCC-SLP, reviewed R1’s records and echoes Speech Pathologist O’Dougherty’s opinion that R1’s problem was with mastication.  Citing evaluations performed on June 11 (by Speech Therapist Moseley) and on June 14, Pathologist Garrett claims that R1 was not in immediate jeopardy because she was not likely to aspirate and, during the evaluations, she spit out food that was hard for her to chew.  P. Ex. 4 at 3, 4, 5 (Garrett Decl. ¶¶ 14, 16, 25, 26).7**Page 12**

But the underlying evaluations do not support Speech Pathologist Garrett’s conclusions.  No evidence even suggests that R1’s therapeutic diet was implemented because R1 was not an efficient eater.  Moreover, Speech Pathologist Garrett omits significant facts that are in R1’s records and are undisputed.  The June 11 evaluation indicates that Speech Therapist Moseley gave R1 a brownie and three bites of meatloaf.  She evaluated the resident with the following *skilled interventions in place*:  positioning in gerichair at 90 degrees; oral motor training; “mastication training for adequate bolus formation due to [lack] of bottom dentition,” verbal cues during mastication training; cyclical training; “effortful double swallow training.”  CMS Ex. 14 at 33.  Speech Therapist Moseley also evaluated the physician order and the resident’s chart.  She *listed precautions* and *recommended a dental consult* because of the missing dentition and the resident’s desire to advance her diet, and she writes that she educated nursing and staff as to the progress made during the consultation.  She also recommended a diet of “mechanical soft/ground texture.”  CMS Ex. 14 at 33.

Where opinion testimony “is wholly at odds with what is shown unambiguously on the face of the [facility’s] documents,” it is not sufficient to raise a genuine dispute of fact precluding summary judgment; no rational trier of fact would be persuaded by expert testimony if it is contradicted by the facility’s documents on their face.  *Bartley Healthcare Nursing and Rehab.*, DAB No. 2539 at 8 (2013); s*ee Kenton Healthcare LLC*, DAB CR1666 at 23 n.18 (2007), *aff’d* DAB No. 2186 at 16-17 (2008) (holding that the adjudicator is not bound to accept an opinion that is not supported by the underlying facts); *Green Valley Health Care and Rehab. Ctr.*, DAB No. 2947 at 8 (2019) (quoting*Johnson v. Perez*, 823 F. 3d, 701, 705 (D.C. Cir. 2016) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”)).

Drawing the inferences in the light most favorable to Petitioner, the evidence thus establishes that R1 was moderately cognitively impaired and that she may have been capable of *learning* to eat a grilled cheese sandwich safely, if appropriate safeguards were in place, and proper protocols were followed.  But that is not what happened here.  Instead, a nurse arbitrarily handed the problematic food to the resident.  “A therapeutic diet cannot be changed unless a physician [or licensed dietitian] determines that a change in diet is appropriate for the resident [and] that the diet provides appropriate nutrition within the bounds of safe oral intake of food.”  CMS Ex. 23 at 9-10 (Ruscello Decl. ¶ 27).

**Page 13**

Moreover, what happened to R1 is evidence of the facility’s systemic problem:  it did not have in place safeguards to ensure that staff complied with orders for therapeutic diets.  *See* CMS Ex. 23 at 9-10 (Ruscello Decl. ¶ 27).  Kitchen staff gave food to nurses without asking to see a meal ticket or asking for whom the food was intended.  CMS Ex. 2 at 4 (Mijares-Echevarri Decl. ¶ 19).

Thus, because the undisputed evidence establishes that the facility did not follow R1’s physician order and care plan, which restricted R1’s diet, and because the facility lacked safeguards to assure that staff complied with physician dietary orders, it was not in substantial compliance with sections 483.60(d)(3) and (e).

***2. The undisputed evidence establishes that the penalties imposed are reasonable.***

To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors in 42 C.F.R. § 488.404 include:  (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the section 488.438(f) factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  *Barn Hill Care Ctr.*, DAB No. 1848 at 21 (2002); *Cmty. Nursing Home*, DAB No. 1807 at 22 *et seq*. (2002); *Emerald Oaks*, DAB No. 1800 at 9 (2001); *CarePlex of Silver Spring*, DAB No. 1638 at 8 (1999).

Here, CMS imposes a per-instance penalty of $13,505, which is in the mid-range for per-instance penalties ($2,097 to $20,965).  42 C.F.R. §§ 488.408(e)(1)(iv), 488.438(a)(2); 45 C.F.R. § 102.3 (2017); 82 Fed. Reg. 9174, 9182-83 (Feb. 3, 2017); *see* 84 Fed. Reg. 59,549, 59,559 (Nov. 5, 2019).8
  Applying the relevant factors here, the penalty is reasonable.

**Page 14**

CMS offers no evidence of the facility’s history.

Petitioner does not claim that its financial condition affects its ability to pay this relatively modest penalty.

With respect to the remaining factors, the problem here goes beyond the actions of one nurse, who chose to disregard a resident’s dietary restrictions (although that alone is likely serious enough to justify this penalty).  The undisputed evidence shows that the June 11 incident was not the first time staff offered R1 food that – according to her physician order, assessments, and care plan – she could not safely eat.  Moreover, kitchen staff conceded that they did not ensure that the food they served comported with the residents’ therapeutic diets.  This is a systemic problem, for which the facility is culpable. For these reasons, I find that the modest CMP is reasonable.

Conclusion

I find that the record is sufficiently developed, and the only one reasonable conclusion that can be drawn from the undisputed facts:  the facility was not in substantial compliance with Medicare program requirements governing therapeutic diets, 42 C.F.R. § 483.60(d)(3) and (e).  Based on the undisputed evidence, I also find that the $13,505 per-instance penalty is reasonable.  I therefore grant CMS’s motion for summary judgment.


          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge
      1. The regulations governing long-term care facilities were revised prior to the survey.  81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (Jul. 13, 2017).  However, the substance of the regulations (much of which is also statutory) has not changed, which means that cases decided under the prior regulations are still valid. back to note 1
                      2. Penalties are inflation-adjusted and change annually (more or less).  The amount is determined as of the date the penalty is assessed, in this case, on September 7, 2018.  See 82 Fed. Reg. 9182. back to note 2
                      3. A deficiency cited at level C or below would not be considered substantial noncompliance, so no penalty would be imposed, and I would have no authority to review the citation.  42 C.F.R. § 498.3(b)(13), (d)(10); Rockcastle Health and Rehab. Ctr., DAB No. 2891 at 23-24 (2018). back to note 3
                      4. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision. back to note 4
                      5. In fact, during an Informal Dispute Resolution process, Petitioner conceded “admittedly there might have been a slight deviation [from] the [p]hysician’s order,” but argued that this “slight deviation” did not create the crisis situation required to establish immediate jeopardy.  CMS Ex. 14 at 9.  I do not consider completely ignoring a physician order to be a “slight” deviation.  Moreover, Petitioner was simply incorrect that a finding of immediate jeopardy requires a “crisis situation.”  Mississippi Care Ctr. of Greenville, DAB No. 2450 at 16 (2012); see Agape Rehab. of Rock Hill, DAB No. 2411 at 19 (2011) (finding that facility’s deficiencies may pose immediate jeopardy even though the potential harm is not likely to occur in the near future); Barbourville Nursing Home, DAB No. 1962 at 16-18 (2005). back to note 5
                      6. As CMS points out, evidence created after the time of the survey is generally considered irrelevant unless it relates back to the time of the survey.  See Livingston Care Ctr., DAB No. 1871 at 7 (“Given that it was prepared three days after the survey, this document is little more than a post hoc justification of [the facility’s] treatment (or lack thereof . . . .”).  Thus, opinions based on the assessments in place at the time of the survey may be relevant whereas opinions based on assessments generated after the survey would not be.  But see Carrington Place of Muscatine, DAB No. 2321 at 16 (2010) (noting that a retrospective assessment was “precisely” what staff “should have performed (but failed to perform)” during the relevant time period.). back to note 6
                      7. Petitioner and Speech Pathologist Garrett cite CMS Ex. 11 to support these claims.  But that exhibit is the facility’s plan of correction, which does not include or even allude to such evaluations.  Instead, it promises to train its staff to follow resident diets, as indicated on their meal tickets, and to add R1 to the speech therapy case load.  The June 11 evaluation is found at CMS Ex. 14 at 33.  I could not find the June 14 evaluation. back to note 7
                      8. The slightly higher amounts cited by CMS ($2,140 to $21,393) did not go into effect until October 11, 2018, a month after CMS imposed this penalty.  83 Fed. Reg. 51,369 (Oct. 11, 2018). back to note 8 Back to top
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