Filed: Jul. 22, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1447 BEVERLY HEALTHCARE LUMBERTON, Petitioner, v. MICHAEL O. LEAVITT, Secretary of the United States Department of Health & Human Services; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, Respondents. On Petition for Review of an Order of the United States Department of Health & Human Services. (C-06-20; A-07-134) Argued: May 13, 2009 Decided: July 22, 2009 Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges. Petition
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1447 BEVERLY HEALTHCARE LUMBERTON, Petitioner, v. MICHAEL O. LEAVITT, Secretary of the United States Department of Health & Human Services; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, Respondents. On Petition for Review of an Order of the United States Department of Health & Human Services. (C-06-20; A-07-134) Argued: May 13, 2009 Decided: July 22, 2009 Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges. Petition f..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1447
BEVERLY HEALTHCARE LUMBERTON,
Petitioner,
v.
MICHAEL O. LEAVITT, Secretary of the United States
Department of Health & Human Services; UNITED STATES
DEPARTMENT OF HEALTH & HUMAN SERVICES,
Respondents.
On Petition for Review of an Order of the United States
Department of Health & Human Services. (C-06-20; A-07-134)
Argued: May 13, 2009 Decided: July 22, 2009
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Joseph L. Bianculli, HEALTH CARE LAWYERS, PLC,
Arlington, Virginia, for Petitioner. Erica Cori Matos, UNITED
STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, Atlanta, Georgia,
for Respondents. ON BRIEF: Peter D. Keisler, Assistant Attorney
General, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Thomas R. Barker, Acting General Counsel, Dana J. Petti, Chief
Counsel, Region IV, UNITED STATES DEPARTMENT OF HEALTH & HUMAN
SERVICES, Atlanta, Georgia, for Respondents.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Beverly Healthcare Lumberton (Beverly) challenges
civil money penalties (CMPs) imposed by the Centers for Medicare
& Medicaid Services (CMS) for violations of the Medicare and
Medicaid statutes and regulations. These penalties were
sustained by an administrative law judge (ALJ), with minor
adjustments, and affirmed by the Departmental Appeals Board
(DAB) of the U.S. Department of Health and Human Services.
Because we find no reversible error in the DAB’s decision, we
deny Beverly’s petition for review.
I.
Beverly is a skilled nursing facility located in North
Carolina that participates in both the Medicare and Medicaid
programs. The North Carolina Department of Health and Human
Services (the state survey agency), the agency in charge of
surveying healthcare facilities that participate in Medicare and
Medicaid, conducted a complaint survey against Beverly that
ended August 4, 2005. The survey found that Beverly was not in
substantial compliance with three requirements for participation
in Medicare and Medicaid programs. Specifically, Beverly was
found to have (1) failed to provide an environment free of
abuse, in violation of 42 C.F.R. § 483.13(b); (2) failed to
report and investigate allegations of abuse, in violation of 42
2
C.F.R. §§ 483.13(c)(2), (3); and (3) failed to develop and
implement policies to prevent abuse of residents, in violation
of 42 C.F.R. § 483.13(c).
These violations stemmed primarily from an incident
that took place April 9, 2005, involving one of Beverly’s
residents, George Hunt 1 . Hunt was an 87-year-old man with a
history of insomnia, falls, and dementia. Hunt had fractured
his hip in a fall in December of 2004, which resulted in a
physician ordering a soft safety belt to help restrain Hunt in
his wheelchair. In the early morning of April 9, 2005, Hunt was
sitting in his wheelchair at the nurse’s station when he removed
the soft waist restraint belt keeping him in the wheelchair and
became combative with the two nurses at the station, Marilyn
Marino and Octavia Taylor. Both nurses attempted to prevent
Hunt from falling and to persuade him to relinquish the waist
restraint, which he continued to hold. The nurses called a
nursing assistant, Charles Robinson, to come and assist them
because the nursing assistant who was present was too small to
handle Hunt. While attempting to subdue Hunt, Robinson grabbed
Hunt’s right arm and tried to get the restraint out of Hunt’s
1
The description of the incident by the ALJ and DAB was
taken primarily from a nurse’s note prepared by Nurse Marilyn
Marino shortly after the incident. Because the complaint survey
uncovered multiple complaints, the resident at issue here is
sometimes referred to in the record as Resident #2, or R2.
3
left hand. After Hunt pulled his arm away and refused to
release the restraint to Robinson, one of the nurses asked
Robinson to let go of Hunt’s arm, and then managed to persuade
Hunt to give up the restraint. Robinson then “grabbed [Hunt’s]
arms roughly” while the nurses re-applied the restraint. Admin.
App’x A at 369; Admin. App’x B at 450. After the restraint was
back in place, Robinson released Hunt’s arms, but Hunt then
removed the restraint for a second time. Robinson “then tried
to grab [Hunt’s] arms but [Hunt] started swinging at him.”
Admin. App’x A at 370; Admin. App’x B at 451. At that point,
Robinson “grabbed both of [Hunt’s] wrists and would not let go.”
Admin. App’x A at 370. Admin App’x B at 451. Nurse Marino then
suggested that Hunt needed to go to bed, as it was past
midnight. Robinson “angrily answered, ‘He’s not going to bed,’”
and then wheeled Hunt to his room to clean and change him
because he had become incontinent either before or during the
incident. Admin. App’x A at 370; Admin. App’x B at 451.
About ten minutes later, Robinson returned with Hunt,
who had been cleaned and changed. Hunt “appeared upset” and his
“eyes were watery and his lips were quivering.” Admin. App’x A
at 370; Admin. App’x B at 451. Hunt then pointed to his wrist
and said to Nurse Marino, “you broke my heart.” Admin. App’x A
at 370, B at 451. Nurse Marino observed redness and edema on
Hunt’s wrists three to four inches up his forearm, as well as
4
redness on his hand. Hunt told Nurse Marino that it hurt, and
when she touched his wrist he pulled away and said “ow.” Admin.
App’x A at 370-71. When Nurse Marino returned the next morning
(April 10), Hunt showed her his right arm, which had dark
bruises on the wrist. Nurse Marino had begun preparing a
nurse’s note on the day of the incident, April 9, 2005, and
completed the note on April 11, 2005. Robinson continued to
work over the weekend and provided care to multiple residents,
including Hunt, without further incident.
The Director of Nurses (DON) at Beverly, Roxanne
Thompson, was not contacted on the date of the incident.
Thompson learned of it when she came in to work on Monday, April
11, and she then reviewed the weekend incident log. That same
day she began a routine investigation into the incident and
received Nurse Marino’s note. In a follow-up interview
conducted by the North Carolina surveyor, Thompson said that had
she been on duty at the time of the incident, Robinson would
have been suspended immediately. Instead, Robinson was
suspended on April 11 and subsequently terminated on April 14.
However, Thompson’s investigation ultimately concluded that
Robinson had not abused the resident. Thompson finished her
report and filed it with the state survey agency on April 12,
2005. She also filed a required “five day report” on April 15,
2005.
5
The complaint survey that concluded on August 4, 2005,
also cited two other incidents. On March 22, 2005, a family
member of another resident 2 at Beverly filed a grievance
asserting that a nursing assistant had told the resident that
she “better not turn the call light back on again” because the
nurses were short staffed. Admin. App’x A at 394; Admin. App’x
B at 465. The action was documented on April 8, 2005, and the
five day report was filed on May 24, 2005. By that time, the
nursing assistant involved in the incident no longer worked at
Beverly for unrelated reasons.
In the remaining incident, on April 8, 2005, a third
nursing assistant was reported for yelling at a resident 3 . The
nursing assistant involved was suspended on April 11, 2005, and
terminated on April 14, 2005. A twenty-four hour report found
in Beverly’s files was undated and the five day report for the
incident was dated April 19, 2005.
The state agency took no action on these initial
reports. The citations at issue were instead issued by State
Surveyor Patrick Campbell, who arrived at Beverly’s facility on
July 27, 2005, to investigate an unrelated complaint of
2
This resident is referred to as Resident #1, or R1, in the
record.
3
This resident is referred to as Resident #3, or R3, in the
record.
6
inadequate care. Campbell had been sent to investigate a
complaint that involved care provided by his own sister, who was
a nurse at Beverly’s facility. This conflict of interest should
have disqualified Campbell from proceeding with the survey, but
the conflict was unknown to Beverly at the time. After
reporting that he could not substantiate the complaint he was
sent to investigate, Campbell proceeded, apparently of his own
initiative, to begin a search of unrelated records at Beverly.
In the course of that search, Campbell found Nurse Marino’s note
on the April 9 incident. Upon completing his investigation on
August 4, 2005, Campbell cited Beverly for the three violations
listed above, based primarily upon Nurse Marino’s note and
subsequent interviews.
The state survey agency then recommended that the
Secretary of the U.S. Department of Health and Human Services
(Secretary), through the Centers for Medicare & Medicaid
Services (CMS), impose penalties against Beverly. CMS found
that Beverly was not in substantial compliance with 42 C.F.R.
§§ 483.13(b), (c), and (c)(2), (3) and that Beverly’s violations
constituted “immediate jeopardy” to its residents during the
period from April 9 to April 14, 2005 (when nursing assistant
7
Robinson was terminated). 4 As a result, CMS imposed a CMP of
$3,050 a day for April 9 through April 14, 2005. CMS also found
a continuing violation, at a lower severity level, for which it
imposed a CMP of $1,000 a day for April 15 through August 4,
2005. 5 The daily penalties ceased accruing on August 4, when
Beverly submitted a plan of action stating that all staff had
been “in-serviced” on proper policy regarding abuse allegations.
Beverly also stated that it had completed a review of all
grievances between January 1, 2005, and August 4, 2005, to
ensure they had all been reported and investigated.
Beverly requested a hearing, and the case was heard
before an ALJ. The ALJ sustained all of CMS’s findings, with
the sole exception that he applied the $3,050 CMP from April 9
through April 11, 2005, rather than through April 14, because he
concluded that “immediate jeopardy” had ended once Robinson was
suspended. Beverly appealed to the DAB, which affirmed the
ALJ’s decision in its entirety. On April 3, 2008, Beverly filed
4
Each deficiency is placed in one of four severity
categories: (i) no actual harm with potential for minimal harm;
(ii) no actual harm with potential for more than minimal harm
that is not immediate jeopardy; (iii) actual harm that is not
immediate jeopardy, and (iv) immediate jeopardy to resident
health or safety. 42 C.F.R. § 488.404(b)(1). Deficiencies are
also classified as “isolated,” “constitut[ing] a pattern,” or
“widespread.” Id. § 488.404(b)(2).
5
CMS also imposed other penalties not at issue here.
8
a petition to reopen the DAB’s decision pursuant to 42 C.F.R.
§ 498.100, which the DAB summarily denied on May 2, 2008.
Beverly then filed a petition for review in this court under 42
U.S.C. § 1320a-7a(e).
II.
Beverly raises four challenges to the Secretary’s
imposition of CMPs. First, Beverly contends that the Secretary
failed to establish any of the three alleged violations.
Second, Beverly argues that the Secretary erred in his
determination as to the level of non-compliance (immediate
jeopardy). Third, Beverly asserts that the CMPs imposed are
unreasonable. Finally, Beverly maintains that the DAB erred in
overlooking the state surveyor’s conflict of interest.
A.
CMS’s findings of fact are conclusive “if supported by
substantial evidence on the record considered as a whole.” 42
U.S.C. § 1320a-7a(e). The Supreme Court has described
“substantial evidence” in other contexts as “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (National Labor Relations Act). CMS may impose CMPs
(among other remedies) when it determines that a long-term care
facility has failed to substantially comply with participation
9
requirements. 42 U.S.C. § 1395i-2(h)(2)(B)(ii) (“The Secretary
may impose a civil money penalty in an amount not to exceed
$10,000 for each day of noncompliance.”); 42 C.F.R. 488.301
(“Noncompliance means any deficiency that causes a facility to
be not in substantial compliance.”). “Substantial compliance”
is defined as a “level of compliance with the requirements of
participation such that any identified deficiencies pose no
greater risk to resident health or safety than the potential for
causing minimal harm.” 42 C.F.R. § 488.301. We address each of
the alleged violations in turn.
1.
Beverly was cited for violating 42 C.F.R. § 483.13(b),
which prohibits abuse of residents. Facilities participating in
Medicare and Medicaid programs are forbidden from using “verbal,
mental, sexual, or physical abuse, corporal punishment, or
involuntary seclusion.” 42 C.F.R. § 483.13(c)(1)(i). See also
§ 483.13(b). The U.S. Department of Health and Human Services
(USHHS) defines “abuse” as “the willful infliction of injury,
unreasonable confinement, intimidation, or punishment with
resulting physical harm, pain, or mental anguish.” 42 C.F.R.
§ 488.301. The Secretary’s interpretive guidelines state that a
resident has been physically abused when (1) physical contact
was made (2) that was intentional or careless, (3) there was
resulting harm or a likelihood of physical injury, pain, or
10
death to the resident, and (4) there was a lack of reasonable
justification for the contact. USHHS State Operations Manual at
6-4, available at
http://www.michigan.gov/documents/mdch/bhs_ch6_mom_abuse_etc_223
590_7.pdf. There is a “presumption that physical abuse has
occurred whenever there has been some type of impermissible or
unjustifiable physical contact with a resident that has resulted
in injury or harm to the resident.” Id. The USHHS manual
includes “squeezing . . . any part of the resident’s body” as an
example of potentially abusive treatment. USHHS State
Operations Manual at 6-4. However, the manual also states that
physical contact during care, comfort, or assistance is
permissible when “the type of contact involved and the amount of
force used are absolutely necessary in order to provide care.”
USHHS State Operations Manual at 6-5. When the contact occurs
“in the course of attempting to restrain a resident’s behavior
in an emergency,” it is permissible if “both the type of contact
involved and the amount of force used are reasonably necessary
in order to prevent that resident from injuring himself/herself,
injuring another person, or damaging property.”
Id.
The ALJ’s conclusion that Robinson’s conduct amounted
to abuse was based almost exclusively on Nurse Marino’s note,
which the ALJ found to be “the most complete and reliable
account concerning the incident.” J.A. at 301. The ALJ found
11
that Robinson treated the elderly resident in an “angry manner”
that was “not accidental or necessary in providing care and
services to the resident. In fact, it was intentional and
retaliatory.” J.A. 302. The ALJ also accepted Nurse Marino’s
description of the resident’s physical injury. According to the
ALJ, the only reasonable interpretation of Nurse Marino’s note
was that the incident constituted abuse. In making this
finding, the ALJ chose not to credit later interviews in which
nurses and nursing assistants who were involved, including Nurse
Marino, said that they did not consider Robinson’s conduct
abusive. Beverly argues that the ALJ erred by disregarding
evidence that conflicted with Nurse Marino’s note, and the
facility attempts to characterize Robinson’s conduct as “poor
technique,” rather than abuse.
Beverly’s arguments notwithstanding, we cannot say
that either the ALJ’s or the Secretary’s decision was
unsupported by substantial evidence. Nurse Marino’s note, which
was the most contemporaneous description of the incident, states
that nursing assistant Robinson roughly handled an elderly
resident in a manner the nurse found excessive. Robinson
grabbed and held the resident’s arms at least twice, and there
is no dispute that this contact resulted in injury. While there
is also evidence that cuts in Beverly’s favor –- for instance,
the Social Security Administration concluded that the abuse
12
allegation was unsubstantiated –- it was for the ALJ to make
determinations in the proceeding before him as to the weight of
evidence and credibility of witnesses. He chose to credit Nurse
Marino’s note over later statements, and that note alone, due to
its thoroughness and proximity to the event, was sufficient to
constitute substantial evidence of abuse.
2.
Beverly was also cited for violating 42 C.F.R.
§ 483.13(c)(2), which requires participating facilities to
“ensure that all alleged violations involving mistreatment,
neglect, or abuse . . . are reported immediately to the
administrator of the facility and to other officials in
accordance with State law.” Further, facilities must promptly
investigate all allegations of abuse and “[t]he results of all
investigations must be reported to the administrator or his
designated representative and to other officials in accordance
with State law . . . within 5 working days of the incident.” 42
C.F.R. § 483.13(c)(4). Under North Carolina law, facilities are
required to file an initial “24-hour report” within twenty four
hours of an alleged incident of abuse and also a “five day
report” following a fuller investigation. 10A N.C. Admin. Code.
13D.2210(b), (d).
There is no doubt that Beverly failed to timely report
each of the cited incidents. The twenty-four hour report for
13
the April 9, 2005, incident was filed on April 12 (two days
late), and the five day report was filed on April 15 (one day
late). The March 22, 2005, complaint was not documented until
April 8 (sixteen days late), and its five day report was not
filed until May 24 (two months late). The April 8, 2005, report
of a nursing assistant yelling at a resident had an undated
twenty-four hour report on file, but its five day report was not
filed until April 19 (six days late). Thus, there was
substantial evidence to support the ALJ’s conclusion that
Beverly had violated the reporting requirements.
Beverly asserts that the late reporting of the
incident involving nursing assistant Robinson was not a
violation because the allegations were ultimately
unsubstantiated and because DON Thompson filed the reports
within twenty-four hours and five days, respectively, of
learning of the incident herself. Both arguments must fail.
First, it is the allegation that triggers the responsibility to
report. Cedar View Good Samaritan, DAB No. 1897, at 11 (2003).
Even if the ALJ found there was no abuse, Beverly’s failure to
promptly investigate and report the allegation violated 42
C.F.R. § 483.13(c)(2) and 10A N.C. Admin. Code. 13D.2210(b),
(d). Second, it is irrelevant that the DON did not learn of the
incident for two days. The federal statute requires a report
within five days of the incident, while the state statute
14
requires reports within one and five days of when the health
care facility (not a specific person) learns of the allegation –
- which in this case occurred when the resident, Hunt, alerted
Nurse Marino to his injury. See 42 C.F.R. § 483.13(c)(2); 10A
N.C. Admin. Code. 13D.2210(b), (d). Thus, the time at which
Thompson learned of the incident is irrelevant to the deadline
for filing the required reports.
3.
Finally, Beverly was cited for violating 42 C.F.R.
§ 483.13(c), which states that facilities “must develop and
implement written policies and procedures that prohibit
mistreatment, neglect, and abuse of residents.” CMS found that
Beverly had failed to follow proper procedures related to
immediately reporting allegations of abuse against residents to
the facility administrator. The ALJ found that Beverly had
failed to follow its own procedures –- which provide that “any
associate (employee) who suspects that a resident has been
abused must immediately notify the executive director
(administrator) and appropriate state agencies in accordance
with law” -- by not timely reporting the three incidents
outlined above. J.A. at 303. The ALJ further concluded that
these failures to implement Beverly’s own policies “indicate[d]
a wider systemic problem in the facility,” and that “the failure
15
to actually implement facility policy against abuse and neglect
leaves residents at real risk for serious harm.” J.A. at 308.
Beverly argues that the ALJ’s determination is
improper for three reasons. First, it asserts that its
employees did not fail to follow procedure because the procedure
is only triggered when someone actually suspects an abuse has
occurred. This argument has little traction, however, because
federal law requires Beverly’s procedures to require
investigation of all allegations of abuse, not just those that
facility employees believe are legitimate. See 42 C.F.R.
§ 483.13(c)(2). Beverly thus violated § 483.12(c) either by not
having adequate reporting policies or by having them and failing
to follow them. Second, Beverly argues that it is pointless to
punish the two-day delay in reporting the Robinson incident to
the state survey agency because no one was working at the agency
over the weekend. This misses the point, however, since
Beverly’s primary failure was the lack of reporting to the
facility administrator and DON so that proper action could be
taken. Instead, the DON did not learn of the incident for two
days while Robinson continued to work at Beverly. Third,
Beverly argues that the ALJ should not have concluded that the
three incidents at issue constituted a systemic pattern, and
contends instead that these were isolated incidents. We
conclude, however, that Beverly’s multiple failures to report
16
allegations of abuse over a short period, spanning roughly two
months, amounted to substantial evidence on which the ALJ could
properly base his finding of a systemic violation.
B.
Beverly claims that CMS’s determination that the
alleged violations amounted to “immediate jeopardy” was in
error. In cases when a CMP is imposed, “CMS’s determination as
to the level of noncompliance . . . must be upheld unless it is
clearly erroneous.” 42 C.F.R. 498.60(c)(2). “Immediate
jeopardy” is defined in the Code of Federal Regulations as “a
situation in which the provider’s noncompliance with one or more
requirements of participation has caused, or is likely to cause,
serious injury, harm, impairment, or death to a resident.” 42
C.F.R. § 488.301. Thus, “[a] finding of immediate jeopardy
. . . does not require a finding of present harm, but also
encompasses a situation that is ‘likely to cause’ harm.”
Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002).
Under the clearly erroneous standard of review, the
ALJ reduced the length of the immediate jeopardy period by three
days, concluding that it had ended on April 11, 2005, rather
than April 14. We hold that this determination was itself not
clearly erroneous. Both Nurse Marino and Nurse Taylor
recognized that nursing assistant Robinson’s actions at the very
least might have constituted abuse. Yet the incident went
17
unreported for two days, during which time Robinson continued to
work at Beverly and give care to the resident he had allegedly
abused. The fact that no further harm occurred is irrelevant,
as only the possibility of harm is required under § 488.301.
CMS’s determination, and the ALJ’s reaffirmation, that the
potential harm was serious is also not clearly erroneous. The
record suggests that the resident was roughly handled by a
nursing assistant, that the nursing assistant’s actions may have
been punitive and retaliatory, and that the rough handling
resulted in obvious injury. It was not error for either CMS or
the ALJ to find the potential for serious harm in Robinson’s
continued interaction with Beverly’s residents.
C.
Beverly next claims that the CMPs imposed by CMS are
unreasonable. Again, the Secretary’s findings (via CMS) must be
upheld if “supported by substantial evidence on the record
considered as a whole.” 42 U.S.C. § 1320a-7a(e). Further, when
a reviewing court concludes that the basis for imposing a CMP
exists, it “may not . . . [r]eview the exercise of discretion by
CMS . . . to impose a civil money penalty.” 42 C.F.R.
§ 488.438(e)(2). Nor may a reviewing court reconsider any of
the factors taken into account by CMS with respect to “the
amount of the penalty.” Id. at § 488.438(e)(3).
18
CMS can impose a CMP, not to exceed $10,000, for every
day that a facility is found not to be in substantial
compliance. 42 U.S.C. § 1395i-3(h)(2)(B)(ii). The appropriate
CMP is split into two ranges depending on the severity of non-
compliance. When immediate jeopardy is present, the daily CMP
can range from $3,050-$10,000. 42 C.F.R. § 488.438(a)(1)(i).
When there is no immediate jeopardy, but the deficiencies have
either caused actual harm or have the potential for more than
minimum harm, the daily CMP can range from $50 - $3,000. Having
found the three deficiencies listed above, CMS imposed a CMP of
$3,050 a day for April 9-14, 2005 -- the period for which it
found immediate jeopardy -- and a CMP of $1,000 a day for April
15-August 4, 2005. The ALJ changed the $3,050 CMP so that it
only ran from April 9 through April 11, 2005, based on his
finding that immediate jeopardy ended when Robinson was
suspended.
Because the $3,050 CMP for April 9 through April 11 is
the minimum penalty under the immediate jeopardy classification,
the CMP is reasonable as a matter of course once we have
concluded that the “immediate jeopardy” classification is
appropriate. It is also reasonable in duration because it
covers only the period during which Robinson remained at work at
Beverly. We also conclude that the $1,000 CMP for April 12
through August 4, 2005, is reasonable in both scope and
19
duration. The burden of proving that the CMP was unreasonable
fell on Beverly, Coquina Ctr. v. Ctrs. for Medicare & Medicaid
Servs., DAB 1860 at 32-33 (2002), yet Beverly made no specific
argument on this point. Even if it had, however, the CMP still
appears to be reasonable. It falls at the lower end of the
allowable range for violations that have caused harm or threaten
more than minimum harm, and we agree with the ALJ that the
amount “served the purpose of driving the facility back into
compliance.” J.A. 312. Further, it was reasonable for this CMP
to extend to August 4 because it was not until that day that CMS
could say with certainty that Beverly’s employees had been
properly “in-serviced” and that there were no additional
unreported allegations of abuse. Accordingly, the CMPs imposed
by CMS were reasonable.
D.
Finally, Beverly argues that the DAB erred when it
upheld CMS’s conclusions by overlooking the fact that Surveyor
Campbell completed his investigation at Beverly and testified
before the ALJ despite a clear conflict of interest. While
there is no doubt that Surveyor Campbell ignored an obvious
conflict of interest in proceeding with the survey that resulted
in the citations at issue, see 42 U.S.C. § 1395i-3(g)(1)(E)(2),
this does not affect our analysis. First, “inadequate survey
performance by a state does not -- (1) Relieve a [facility] of
20
its obligation to meet all requirements for program
participation; or (2) Invalidate adequately documented
deficiencies.” 42 C.F.R. § 488.318(b). Further, as the DAB
decision noted, the ALJ knew of the conflict of interest and
could weigh the credibility of Surveyor Campbell’s testimony
accordingly. In fact, the ALJ explicitly stated that he was
relying on evidence other than Campbell’s testimony. Had
Campbell been the government’s only witness, perhaps the ALJ’s
decision would be in doubt, but under the circumstances there
was substantial evidence to support the decision.
III.
In sum, we conclude that CMS’s determination that
Beverly violated 42 C.F.R. §§ 483.13(b), (c), and (c)(2), (3)
was supported by substantial evidence. We further conclude that
CMS’s finding of immediate jeopardy (as subsequently modified by
the ALJ) was also reasonable, as were the CMPs imposed for the
violations. Beverly’s petition for review is therefore
DENIED.
21
