Rehab at River's Edge, DAB No. 3163 (2024)

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Rehab at River’s Edge (Petitioner), a skilled nursing facility (SNF), appeals to the Departmental Appeals Board (Board) from an administrative law judge (ALJ) decision, Rehab at River’s Edge, DAB CR5296 (2019) (ALJ Decision). The ALJ upheld by summary judgment a determination by the Centers for Medicare & Medicaid Services (CMS) to impose a per-instance civil money penalty (CMP) of $20,505 for Petitioner’s alleged noncompliance from March 23, 2018 through April 20, 2018 with the Medicare participation requirement stated in 42 C.F.R. § 483.60.¹ We affirm the ALJ Decision.

Legal Background

Section 1819 of the Social Security Act (Act) and 42 C.F.R. Part 483 govern SNFs’ participation in the Medicare program. State agencies survey facilities for compliance or noncompliance with Medicare requirements for long term care facilities. Act §§ 1819(g), 1864; 42 C.F.R. §§ 488.10, 488.11, 488.330(a). Substantial compliance means that no identified deficiency places residents at risk of more than minimal harm, and noncompliance means lack of substantial compliance. See 42 C.F.R. § 488.301 (defining “Deficiency,” “Noncompliance,” and “Substantial compliance”).

After surveying a SNF, surveyors complete a Statement of Deficiencies that reports information about all of the survey’s negative findings. 42 C.F.R. § 488.110(i)(1). The Statement of Deficiencies cites each deficiency by a “prefix tag and regulatory citation, followed by a summary of the deficiency and supporting findings.” Id. § 488.110(i)(4). Surveyors signify each deficiency’s “seriousness,” meaning its severity and scope, per a matrix containing designations from “A” (least serious) to “L” (most serious). Donelson Place Care & Rehab. Ctr., DAB No. 3046, at 2 n.2 (2021); see also W. Care Mgmt. Corp., DAB No. 1921, at 4 (2004) (displaying matrix). “Immediate jeopardy,” the highest level of seriousness, “means a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious

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injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301.

The Medicare participation requirement at 42 C.F.R. § 483.60 states:

The facility must provide each resident with a nourishing, palatable, well-balanced diet that meets his or her daily nutritional and special dietary needs, taking into consideration the preferences of each resident.

Paragraph (e) of section 483.60 further provides:

(e) Therapeutic diets. (1) Therapeutic diets must be prescribed by the attending physician.
(2) The attending physician may delegate to a registered or licensed dietitian the task of prescribing a resident’s diet, including a therapeutic diet, to the extent allowed by State law.

CMS may impose one or more enforcement “remedies” on a SNF found to be out of substantial compliance. Act § 1819(h); 42 C.F.R. §§ 488.400, 488.402(b)-(c), 488.406. Available remedies include a per-instance CMP. Act § 1819(h)(2)(B)(ii); 42 C.F.R. §§ 488.406(a)(3), 488.430(a). Per-instance penalties “will be in the range of $1,000-$10,000 as adjusted annually” under 45 C.F.R. Part 102. 42 C.F.R. § 488.438(a)(2). During the pertinent period, the authorized range for per-instance CMPs was from $2,097 to $20,965. 45 C.F.R. § 102.3 (table). CMS sets CMP amounts by considering specified factors. 42 C.F.R. §§ 488.404, 488.438(b), (f).

A SNF may challenge a per-instance CMP by requesting a hearing before an ALJ and, if still dissatisfied, by appeal to the Board. 42 C.F.R. §§ 488.408(g)(1), 498.3(b)(13)-(14), 498.5(c), 498.80.

Case Background²

I. Resident 11’s initial history at the facility

Petitioner is a SNF in Raritan, New Jersey. CMS Ex. 16, at 1. The facility’s enforcement history includes “J” level deficiencies, signifying immediate jeopardy, in 2014 and 2015, and “F” and “G” level deficiencies in 2017. Id. at 2-3; ALJ Decision at 6-7.

Petitioner admitted Resident 11, a 98-year-old woman, on December 28, 2017, then again on January 25, 2018. CMS Ex. 3, at 12; P. Ex. 11, at 3. Resident 11’s initial diagnoses were Alzheimer’s Disease, hypertension, and atherosclerotic heart disease, and later

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included “dysphagia, oropharyngeal phase.” CMS Ex. 7, at 1.

“Dysphagia” means difficulty swallowing. CMS Ex. 17, at 1; CMS Ex. 21, at 1. Neurologic, pulmonary, and cardiac disease are risk factors for development of dysphagia. CMS Ex. 20, at 7; CMS Ex. 22, at 1. Dysphagia can lead to aspiration of ingested material into the trachea (windpipe). CMS Ex. 21, at 1. Management of oropharyngeal dysphagia often requires a multidisciplinary approach involving a speech-language pathologist (SLP). CMS Ex. 20, at 6, 9; CMS Ex. 21, at 6. The SLP “makes recommendations regarding management, but the primary physician must support these recommendations and in some cases, will translate these recommendations into orders to nursing staff.” CMS Ex. 18, at 2.

A dysphagia diagnosis can prompt an alteration of diet to pureed food, which “requires no chewing,” is relatively easy to swallow, and “is unlikely to cause permanent obstruction in the lungs if aspirated, thus making it a safer consistency than liquids or solid food.” CMS Ex. 18, at 3. Pureed food is prepared in a blender. CMS Ex. 19, at 2. In contrast, a “mechanical soft” diet can include, for example, meats that require some chewing but are ground or well cooked to make chewing them easier. CMS Ex. 18, at 5; CMS Ex. 19, at 2. Clinicians may restrict thin liquids and substitute thicker liquids in a dysphagic patient’s diet to protect against aspiration. CMS Ex. 18, at 4.

Resident 11 received dysphagia therapy under the direction of a physician and SLP from January through March of 2018. CMS Ex. 15, at 4-10; P. Ex. 7. A diet of pureed solids and nectar thick liquids was one of Petitioner’s “Precautions” for treating Resident 11’s dysphagia from January 27 through March 15, 2018, when Petitioner upgraded the resident’s diet to mechanical soft. P. Ex. 7, at 5-19, 21-25, 27-38, 48; see also ALJ Decision at 3; CMS Ex. 5, at 3.

II. Resident 11’s hospitalization and SNF readmission in March 2018

On March 18, 2018, Petitioner’s staff observed Resident 11 to be “drowsy and unresponsive” and reported the status change to the resident’s physician, who ordered the resident’s hospitalization. CMS Ex. 5, at 6; CMS Ex. 23, at 1; CMS Ex. 25, at 154. On March 20, 2018, a SLP evaluated Resident 11 and noted “[m]oderate to severe oral and suspected pharyngeal dysphagia.” CMS Ex. 24, at 10; CMS Ex. 25, at 61; see also CMS Ex. 6, at 4; CMS Ex. 25, at 28-30, 161. The SLP observed “[n]o overt signs & symptoms of aspiration” but assessed a “[m]oderate” aspiration risk. CMS Ex. 25, at 29. The SLP recommended: “Pureed solids and HONEY thick liquids. All liquid via tsp. Maintain aspiration precautions. 1:1 feeding assistance. Meds crushed in puree.” CMS Ex. 24, at 10; CMS Ex. 25, at 61. Resident 11’s physician approved the recommended diet and the hospital entered a diet order of “Pureed Thickened Liquids – Honey, No Straw Medical Nutrition Protocol.” CMS Ex. 25, at 159. On March 21, 2018, an SLP administered clinical dysphagia therapy to Resident 11 and noted: “Current diet is

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pureed solids and honey thick liquids which is her baseline,” along with “strict aspiration precautions.” CMS Ex. 24, at 15-16. The SLP noted Resident 11 was “without overt signs/symptoms of aspiration.” CMS Ex. 25, at 64.

On the evening of March 22, 2018, the hospital discharged Resident 11 back to Petitioner’s SNF with diagnoses of altered mental status and encephalopathy. CMS Ex. 6, at 2, 5; CMS Ex. 24, at 143; CMS Ex. 25, at 5, 13. The transfer form indicated that Resident 11 was in no pain but needed oxygen by nasal cannula. CMS Ex. 6, at 2. The form stated both that Resident 11 was on a “[m]echanically altered diet,” and that the resident’s diet order was for “Pureed Thickened Liquids - Honey, No Straw Medical Nutrition Protocol.” Id. at 2-3, 5.

Resident 11 arrived at Petitioner’s facility after dinner, so did not eat that meal there. CMS Ex. 3, at 13; CMS Ex. 29, at 5. At 11:06 p.m., Resident 11’s primary physician ordered a “No Added Salt (NAS) diet” of “Chopped texture, Nectar Thick consistency.” CMS Ex. 10, at 11; see also CMS Ex. 8, at 3 (recording physician order as “No Added Salt (NAS) diet Mechanical Soft texture, Nectar Thick consistency”).

III. The events of March 23, 2018

Petitioner’s records show that March 23, 2018, the day after Resident 11’s return from the hospital, began unremarkably. At 7:41 a.m. Resident 11 was “awake, alert and responsive” and had no complaints of pain or discomfort and “no respiratory distress.” CMS Ex. 5, at 6. A 9:16 a.m. progress note documented a physician’s assessment, after consultation, that Resident 11 was “eating ok” on readmission and appeared generally “comfortable” on current physical examination. CMS Ex. 5, at 4-5.

However, at 1:13 p.m., the Registered Dietitian electronically signed a “Nutrition/Dietary Note” stating in pertinent part:

Diet order is NAS Mechanical Soft with Nectar Thick Liquids – recently upgraded from puree on 3/15 prior to hospital stay. Spoke with nursing today – resident had difficult time with lunch today – puree tray ordered instead. Recommend to downgrade diet to NAS Puree with NTL until SLP can reevaluate. SLP aware.

CMS Ex. 5, at 3. The Registered Dietitian prepared a Dietary Alert Sheet to notify the attending physician and nursing supervisor of Resident 11’s “chewing difficulties” with “trouble swallowing,” and recommended a SLP evaluation and diet downgrade to “NAS Puree [with] NTL.” CMS Ex. 10, at 5. The resident’s physician ordered, “Downgrade resident’s diet to NAS puree with Nectar thick liquid.” CMS Ex. 8, at 2. A 4:16 p.m. nursing progress note confirmed Resident 11 was “on puree diet and nectar thick, total assist with feeding.” CMS Ex. 5, at 3.

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At suppertime on March 23, 2018, one certified nursing assistant (CNA) mentioned to another, CNA 1, who would be feeding Resident 11, that the resident’s diet had been downgraded. CMS Ex 1, at 6-7; CMS Ex. 3, at 5; CMS Ex. 12, at 21. CNA 1 saw that Resident 11’s supper tray “contained Tuna fish sandwich, macaroni salad, Nectar thick soup, and nectar thick regular milk.” CMS Ex. 3, at 5; see also id. at 14, 18. CNA 1 “removed the bread aside,” then “took a spoonful of the soup and mixed it with a little portion of the tuna fish.” CMS Ex. 3, at 5-6. After feeding Resident 11 “about two spoons,” CNA 1 heard Resident 11 cough, “stopped feeding her immediately,” moved the tray aside and called the treating nurse. CMS Ex. 3, at 6; see also id. at 14, 18. The treating nurse asked CNA 1 not to feed Resident 11 further, and CNA 1 left the room. CMS Ex. 3, at 6; see also id. at 14.

The CNA who had been working with CNA 1 checked the tray after Resident 11 had stopped eating from it and “saw tuna fish and soup.” CMS Ex. 3, at 10-11; see also id. at 14. “At this time, the family had come,” asked whether Resident 11 had eaten, and “looked at the tray.” CMS Ex. 3, at 11; see also id. at 15.

The RN supervisor evaluated Resident 11 approximately twenty minutes later. CMS Ex. 3, at 7, 12-13. The nurse observed that Resident 11, despite receiving oxygen, could not communicate, was drooling, and had labored breathing, bluish lips, and crackles in both lungs. CMS Ex. 3, at 7, 13. Resident 11 also had elevated heart and respiration rates and low blood pressure and oxygen saturation. CMS Ex. 3, at 8. By about 5:45 p.m., nursing staff observed Resident 11 sitting “lethargic and in respiratory distress,” and an “[a]udible goggling noise could be heard from the throat.” CMS Ex. 9, at 5.

Resident 11 received supplemental oxygen but died at approximately 7:00 p.m., as facility staff were preparing to call emergency services. CMS Ex. 3, at 8, 13; CMS Ex. 9, at 5. An RN assessed that “[t]he problem was a cardiopulmonary distress related to possible aspiration.” CMS Ex. 9, at 5. Resident 11’s death certificate listed the causes as cardiorespiratory arrest, aspiration, and swallowing dysfunction. CMS Ex. 26.

IV. Petitioner’s internal investigation

Petitioner conducted an internal investigation. CMS Ex. 3. Assembled documentation included interview notes (summarized above); Resident 11’s dietary ticket for supper on March 23, 2018, id. at 2, 20; an Incident Report and investigative “follow up” note, id. at 17-18; and disciplinary documentation, id. at 21.

Resident 11’s dietary ticket for supper on March 23, 2018 listed soup, entree, vegetable, dessert, condiment, and beverage. Id. at 2, 20. The soup was “PUR CHIC NOODLE” and the entree was “PUR TUNA SLD ON CROISSANT.” Id. The menu did not list macaroni salad. Id.

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The Incident Report noted “Physician Orders: 3/23/18 downgrade to pureed, nectar bev[erage] texture.” Id. at 17. The Incident Report stated that CNA 1 had served Resident 11 “thickened soup/pureed + small portion of tuna,” and “[o]ther food items on tray included macaroni salad.” Id. An investigative “follow up” note summarized that the “tray served included pureed soup, tuna sandwich, thickened milk, mac[a]roni salad,” and the “[m]eal tray served was not as per order of 3/23/18 as clarified by” the Registered Dietician that day. Id. at 18.

A disciplinary record documented CNA 1’s suspension for having “served pureed soup + tuna from a plate of mechanical soft diet.” Id. at 21. “Corrective [m]easures needed to continue employment” were education of the CNA “to reject tray that’s inconsistent with meal ticket” and “[d]on’t select from tray; reject whole tray.” Id.

V. Family investigation and complaint

On March 29, 2018, a member of Resident 11’s family called a hospital social worker and requested information on the resident’s diet at the time of discharge. CMS Ex. 25, at 14. The social worker answered it was “pureed with honey thick.” Id. The family member notified the social worker that Resident 11 had expired at Petitioner’s facility “when she aspirated on a mechanical soft diet.” Id.

On July 27, 2018, Resident 11’s son and daughter-in-law complained to the New Jersey Department of Health (State Agency) that on March 23, 2018, Resident 11 expired from having “[a]spirated on food” and “[c]hoked on Mechanical soft food.” CMS Ex. 14, at 1-2. The son reported, “My wife and I arrived at the rehab center to visit my mother on Friday 3/23/2018 at 5:40 pm.” Id. at 6. An aide showed them Resident 11’s tray, which contained “some tuna fish and a small cup” that was “half full of macaroni.” Id. The son said the resident was “supposed to have pureed food,” and “observed the tray a second time to confirm that we saw the tuna fish and macaroni” on it. Id. On entering Resident 11’s room, the resident’s son saw “her mouth open with the tuna coming out of her mouth,” and heard “coughing/wheezing as if something was stuck in her chest.” Id. at 7. The son’s wife sponged Resident 11’s tongue with thickened water. Id.; CMS Ex. 1, at 8. A nurse arrived, rendered no treatment, and “walked out.” CMS Ex. 14, at 7. The nursing supervisor then appeared, confirmed the resident was “aspirating because of the food,” and performed suctioning, but within ten minutes Resident 11 died. Id.

VI. The State Agency’s complaint survey and the CMP

In response to the family’s complaint, the State Agency performed an on-site survey of Petitioner’s facility on August 8, 10, and 13 of 2018. CMS Ex. 27, at 1-2. The responsibilities of the surveyor, who was a RN, included interviewing Petitioner’s staff, requesting and reviewing records, discussing findings with the surveyor’s supervisor, and

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drafting the Statement of Deficiencies. CMS Ex. 27, at 2, 11; see also CMS Ex. 12.

Petitioner’s Food Service Director and cook explained to the surveyor that when the kitchen receives a new diet order from nursing staff, the diet is entered into a computer, a ticket generates, and the resident’s diet changes accordingly at the next meal. CMS Ex. 1, at 11; CMS Ex. 12, at 7. Petitioner provided a “Dietary Communication” form dated March 23, 2018, which directed a diet downgrade for Resident 11 to “NAS puree [with] Nectar thick liquids.” CMS Ex. 10, at 6.

Petitioner also gave the surveyors dietary documents that differentiated pureed, ground, and chopped food textures. CMS Ex. 10, at 2, 17-20. Pureed food is “smooth in texture like mashed potatoes.” Id. at 20. Printed instructions for preparing “PUR TUNA SLD on CROISSANT” were to place whole milk and “TUNA SALAD on CROISSANT” into a “blender or food processor; blend until smooth adding additional liquid/thickener to obtain pudding-like consistency.” Id. at 2, 15. The instructions allowed substitution of bread crumbs for sliced bread. Id. at 15.

The surveyor interviewed CNA 1 in detail about the events of March 23, 2018. CMS Ex. 1, at 6-7. CNA 1 learned before serving supper that Resident 11’s “diet was downgraded” but not “that the resident was to receive a puree diet.” CMS Ex. 1, at 6-7. CNA 1 said “he compared the meal being served to the items listed on the resident’s meal ticket,” they “matched,” and they included “tuna fish between two slices of white bread, macaroni salad, nectar thickened soup and nectar thickened milk.” CMS Ex. 1, at 7. CNA 1 described the tuna’s texture as “dry, flaky.” CMS Ex. 12, at 22. CNA 1 began to feed the resident but “noticed that the tuna fish on the bread was dry,” so “removed some of the tuna fish off the bread and mixed it with some of the soup and fed the resident a small spoonful of the tuna and soup mixture.” CMS Ex. 1, at 7. CNA 1 fed the resident “two small spoonfuls of tuna fish and soup mixture,” and “the resident swallowed the tuna fish mixture” but then “began to cough.” CMS Ex. 1, at 7. CNA 1 “immediately stopped feeding the resident and reported this information to” a nurse, who “told him to stop feeding the resident and he did.” CMS Ex. 1, at 7.

The Food Service Director, when interviewed with the facility Administrator and Director of Nursing, told the surveyor “that puree tuna was not served on bread” but instead would “be served alone on a plate,” and “only regular consistency tuna fish would be served on bread.” CMS Ex. 1, at 10-11; see also CMS Ex. 12, at 49 (noting Food Service Director exclaimed, “Puree tuna cannot go on bread!”). When the Administrator suggested that perhaps in this case the kitchen had served pureed tuna on bread, the Food Service Director countered, “[I] never saw that in my life.” CMS Ex. 12, at 49; see also Resp’t’s Pre-Hr’g Br. & Mot. for Summ. J. (CMS Br. to ALJ) at 21-22. In a separate interview, a cook stated that “puree tuna fish would not be served on bread unless the bread was puree” also. CMS Ex. 1, at 11; see also CMS Ex. 12, at 52-53 (interview notes).

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The surveyor also spoke with the nursing supervisor on duty on March 23, 2018. CMS Ex. 1, at 7-8. The nursing supervisor recounted being called to the unit to assess Resident 11 and finding “that the resident was having difficulty breathing,” while a family member at bedside reported that “the resident may have aspirated (food/fluid inhaled into lungs) during dinner.” Id. The nursing supervisor “did not see any remnants of food inside the resident’s mouth,” including after suctioning it. Id. at 8.

On completing the survey on August 13, 2018, the State Agency issued a Statement of Deficiencies citing Petitioner under Tag F808 for noncompliance with 42 C.F.R. § 483.60(e).³ CMS Ex. 1, at 2. The State Agency assessed the deficiency’s scope and severity at level “J” with immediate jeopardy beginning on March 23, 2018. Id. at 1-2. The State Agency determined that the facility had failed to provide Resident 11, who had a history of dysphagia and difficulty swallowing, “with the correct physician ordered therapeutic diet.” Id. at 1. Specifically, on March 23, 2018, a CNA fed Resident 11 “a mechanical soft diet instead of the physician ordered puree diet,” whereupon “the resident started coughing and developed difficulty breathing,” deteriorated rapidly, and died of “[c]ardiorespiratory arrest secondary to aspiration.” Id. The State Agency found immediate jeopardy corrected on April 20, 2018, “when the facility implemented new dietary policy and procedures and completed facility wide education.” Id. at 1-2.

On September 19, 2018, CMS imposed on Petitioner a one-time, per-instance CMP of $20,505 under Tag F808 for Petitioner’s noncompliance with 42 C.F.R. § 483.60(e) from March 23, 2018 through April 20, 2018. CMS Ex. 2, at 1. The scope and severity level of the deficiency was “J,” signifying immediate jeopardy. Id.

VII. Proceedings before the ALJ and the Board

On November 16, 2018, Petitioner requested an ALJ hearing. Request for Hearing (RFH) at 1. Petitioner argued the deficiency was “cited without basis” and “clearly erroneous” and disputed the CMP amount as “unreasonable.” Id. at 2-3.

The ALJ informed the parties, by order, “what they must do to present evidence and arguments in this case.” Acknowledgment & Pre-Hr’g Order at 1 (Pre-Hr’g Order). The order advised the parties that the ALJ would assume they did not desire cross-examination unless they “affirmatively” requested it. Id. at 6. The ALJ would “decide each motion for summary disposition according to the principles of Rule 56 of the Federal Rules of Civil Procedure and applicable case law.” Id. at 4.

CMS moved for summary judgment and submitted 29 proposed exhibits, including

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written testimony from the State Agency surveyor and two proposed expert witnesses. CMS Br. to ALJ; CMS Exs. 27-29. CMS argued that Petitioner was not in substantial compliance with four regulations: 42 C.F.R. §§ 483.24 (concerning quality of life), 483.25(d) (concerning accidents), 483.25(g)(3) (concerning therapeutic diet), and 483.60 (concerning food and nutrition services). CMS Br. to ALJ at 1-2, CMS Ex. 27, at 3; CMS Ex. 28, at 2; CMS Ex. 29, at 2. CMS stated that the originally cited violation of section 483.60(e) (Tag F808) “was in error, and has been replaced by” the citations to sections 483.24 (Tag F309), 483.25(d) (Tag F323), 483.25(g)(3) (Tag F325), and 483.60 (Tag F360). CMS Br. to ALJ at 2, 11-12, 14, 17. CMS argued that Petitioner “violated all four of the named regulations,” yet “only one deficiency finding is needed to uphold CMS’ CMP.” Id. at 2. CMS stated the question for decision was whether Petitioner’s “noncompliance with CMS regulations by feeding [Resident 11] non-pureed tuna in contravention of her physician’s orders, had the potential to cause more than minimal harm.” Id. at 20-21. “The answer,” CMS argued, “is unquestionably yes.” Id. at 21.

Petitioner submitted 15 proposed exhibits, including written declarations from an employee at Petitioner’s facility and two proposed expert witnesses, and opposed summary judgment by arguing that “numerous genuine issues of material fact remain in dispute.” P.’s Pre-Hr’g Br. & Opp. to CMS Mot. for Summ. J. (P. Br. to ALJ) at 1. Allegedly disputed facts concerned what diet the hospital prescribed for Resident 11 on discharge on March 22, 2018, and whether the resident received the physician-ordered pureed diet at supper the next day. Id. at 8, 14-16, 18-20. Petitioner objected to CMS’s assertion of deficiencies based on newly cited regulations. Id. at 2, 14, 18. Petitioner also contended the CMP amount was unreasonable and clearly erroneous. Id. at 22.

Both parties asked for cross-examination. CMS’s request to question Petitioner’s witnesses was conditional, “should [CMS’s] motion for summary judgment be denied.” Resp.’s Req. to Cross-Examine P.’s Witnesses. Petitioner asked to question CMS’s witnesses and argued that to grant CMS summary judgment without letting Petitioner cross-examine the surveyor “seems inherently unfair.” P. Br. to ALJ at 2, 19, 22.

The ALJ issued a written decision granting summary judgment for CMS and sustaining the $20,505 CMP. ALJ Decision at 1. The ALJ did not admit any exhibits into evidence, but cited several either to “illustrate” undisputed facts or to address “unsupported or irrelevant” factual allegations. Id. The ALJ identified the case’s only material issues as “whether the undisputed material facts establish that Petitioner failed to comply substantially with 42 C.F.R. § 483.60 and whether CMS’s remedy determination is reasonable,” and deemed CMS’s allegations concerning sections 483.24, 483.25(d), and 483.25(g)(3) to be “irrelevant.” Id. at 2. The ALJ found that the evidence was “unclear” as to Resident 11’s diet on readmission to Petitioner’s SNF on March 22, 2018, but established “unequivocally that the resident was supposed to be receiving only pureed food as of March 23, 2018.” Id. at 3. The ALJ further found “no dispute that on the evening of March 23, 2018, a nursing assistant at Petitioner’s facility” fed Resident 11

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“non-pureed tuna, violating an order that the resident be fed only pureed food.” Id. at 2. “That action,” the ALJ concluded, “endangered the health and safety of the resident and it contravened the requirement of 42 C.F.R. § 483.60 that a skilled nursing facility provide each of its residents with a diet that meets the resident’s special dietary needs.” Id. The ALJ also determined the CMP was reasonable given the deficiency’s “extremely serious” nature, the “series of errors that led to” it, and Petitioner’s unchallenged “history of serious noncompliance with participation requirements.” Id. at 6.

Petitioner appealed to the Board, both parties filed briefs, and the record now is closed.

Standard of Review

The questions of whether a genuine dispute of material fact exists and whether summary judgment is appropriate are legal questions subject to de novo review. Timothy Onyiuke, M.D., DAB No. 3092, at 6, 13 (2023); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010), aff’d per curiam, 405 F. Appx. 820 (5th Cir. 2010); Guidelines - Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s Participation in the Medicare and Medicaid Programs (Guidelines), (last visited Nov. 26, 2024), https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/participation/index.html. “The determination of whether a CMP amount is reasonable is a conclusion of law, not a finding of fact,” so also is subject to de novo review. See Cedar Lake Nursing Home, DAB No. 2344, at 12 (2010); accord Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703, at 13 n.6 (2016).

“Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.” Cedar Lake at 2. “The party moving for summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact for trial and that it is entitled to judgment as a matter of law.” Id. Once the movant carries that burden, “the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.” Dumas Nursing & Rehab., L.P., DAB No. 2347, at 4 (2010). “In deciding whether there is a genuine dispute of material fact, we view proffered evidence in the light most favorable to the non-moving party.” Kimbrell Colburn, DAB No. 2683, at 4-5 (2016). “[W]e accept that party’s evidence as true and give that party the benefit of all reasonable inferences,” but we need not “accept unreasonable or speculative inferences or the non-moving party’s legal conclusions.” Adel A. Kallini, MD, DAB No. 3021, at 11 (2020).

Analysis

The scope of Petitioner’s appeal is relatively narrow. Petitioner focuses “on only the deficiency which the ALJ deemed to be relevant” – Petitioner’s alleged noncompliance

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with 42 C.F.R. § 483.60 – and the reasonableness of the CMP. P. Br. at 4, 6; see ALJ Decision at 2. Petitioner concurs with the ALJ that it was not necessary to decide “whether or not the finding of Immediate Jeopardy was appropriate.”⁴ P. Br. at 3; see ALJ Decision at 5. Petitioner also concurs with the ALJ that it was unnecessary to reach a conclusion on Resident 11’s cause of death in order to determine whether or not Petitioner was compliant. P. Br. at 7. As CMS correctly states, “[t]he only question related to harm” here is whether “the violation in question had the potential to cause more than minimal harm.” CMS Br. at 9 n.3. See 42 C.F.R. § 488.301 (“Noncompliance means any deficiency that causes a facility to not be in substantial compliance,” and “[s]ubstantial compliance means . . . that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.”) (emphasis added); Perry Cnty. Nursing Ctr., DAB No. 2555, at 15 (2014) (“[T]he occurrence of actual harm to a resident is not a prerequisite for finding a SNF noncompliant with a Medicare participation requirement, even at the immediate jeopardy level.”), aff’d, 603 F. App’x 265 (5th Cir. 2015); Va. Highlands Health Rehab. Ctr., DAB No. 2339, at 11 (2010) (“The absence of actual harm is not a basis for reversing a finding that a facility failed to substantially comply with a participation requirement.”).

Petitioner asserts several errors by the ALJ. First, Petitioner argues it should receive “a full hearing, with an opportunity to cross-examine the witnesses of CMS.” P. Br. at 1. Second, Petitioner asserts that summary judgment “was not appropriate in this matter where numerous genuine issues of material fact remain in dispute.” Id. Finally, Petitioner asserts the CMP was unreasonable. Id. at 4.

We hold the ALJ did not err by deciding this case without a hearing and by summary judgment for CMS, which carried its burden to show there is no genuine dispute of material fact while Petitioner did not carry its burden of rebuttal. We find no factual or legal basis to disturb the ALJ’s determinations that Petitioner was not in substantial compliance with 42 C.F.R. § 483.60 from March 23, 2018 through April 20, 2018, and that the CMP amount was reasonable.

I. The ALJ did not err in deciding this case without conducting a hearing.

Petitioner asserts its “rights to an actual hearing and the ability to confront the witness[es] providing sworn testimony,” claiming those “vital rights were summarily denied by the ALJ in granting summary judgment.” P. Br. at 4-5. Petitioner objects that the ALJ “heavily relied” on the testimony of CMS’s witnesses without letting Petitioner cross-examine them. Id. at 3. Petitioner asserts it “is entitled to confront the [CMS] witnesses who cite new deficiencies at a full hearing.” Id. at 4. Petitioner complains that the ALJ Decision “relies entirely upon the statements of a surveyor [whose] testimony is subject

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to dispute and who has not been subject to cross-examination.” Id. at 21.

We recognize a SNF’s general right to an evidentiary hearing to challenge a CMP imposed for alleged noncompliance with Medicare participation requirements. In such matters, section 1128A of the Act affords a hearing right, which the regulations at 42 C.F.R. Part 498 implement. Vandalia Park, DAB No. 1939, at 5 (2004). “The hearing procedures in Subpart D of Part 498 generally contemplate that the ALJ will fix a time for an oral hearing at which witnesses will testify and may be cross-examined.” Lebanon Nursing & Rehab. Ctr., DAB No. 1918, at 3 (2004) (emphasis added).

However, an oral hearing is not required if, as in this case, there are no genuinely disputed issues of material fact. Id.; see also Livingston Care Ctr., DAB No. 1871, at 7 (2003) (stating that Board precedent makes “clear that a hearing is not required if, as happened here, the non-moving party . . . fails to dispute the material facts”), aff’d, 388 F.3d 168 (6th Cir. 2004). “To convene an in-person hearing where,” as here, “no proffered evidence would have any effect on the outcome would be an empty formalism and a waste of administrative and litigant resources.” Big Bend Hosp. Corp., DAB No. 1814, at 15 (2002), aff’d, No. 8-02-CA-030 (W.D. Tex. Jan. 2, 2003), aff’d per curiam, 88 F. App’x 4 (5th Cir. 2004).

A. The ALJ did not rely on CMS witness testimony to establish any disputed material fact.

We reject Petitioner’s claim that the ALJ improperly relied on the testimony of CMS witnesses without allowing Petitioner to cross-examine them, because the ALJ demonstrably did not rely on testimony from any CMS witness to resolve any material factual dispute. The ALJ Decision cites to the proffered testimony of only one CMS witness (Dennis Ruscello, Ph.D.), and only once, as support for the uncontroverted fact that “the resident had a diagnosis of dysphagia, a condition consisting of an inability to swallow food in a normal manner.” ALJ Decision at 2 (citing CMS Ex. 28, at 3-5). The ALJ did not even cite to the Statement of Deficiencies generated from the work of the State Agency surveyor. As discussed below, the ALJ resolved the disputed issues in CMS’s favor by relying instead on other, ample non-testimonial exhibits, many of which were Petitioner’s own records turned over to the State Agency during the survey. See ALJ Decision at 2-4 (citing CMS Exs. 3, 5-7, 8, 10, 12, 14-15, 17-19, 20, 24-25; P. Ex. 12); CMS Ex. 27, at 3, ¶ 6 (identifying CMS Exs. 3-5, 7-10, and 15 as “[a] true and correct copy of the records obtained from the Facility”).

Summary judgment is permissible where, as here, “the ALJ did not rely on CMS affidavits in resolving the controverted factual issue[s] but rather on the documentary record” as “submitted by both parties.” Big Bend at 12-13. “Cross-examination serves the purpose of testing the credibility and reliability of assertions of sources relied on by the opposing party.” Id. at 15. No authority “compels provision of an in-person hearing

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if the proffered testimony would not make a difference and the decision does not depend on the credibility of witnesses for whom cross-examination is sought.” Id. at 17; see also Garden City Med. Clinic, DAB No. 1763, at 11 (2001) (stating that “failure to permit cross-examination of affiants whose testimony was challenged reduces the reliability of that testimony” and warrants remand “unless there is other substantial evidence supporting the ALJ’s decision” and “sufficient other evidence to support the ALJ’s” findings of fact and conclusions of law) (emphasis added).

We also reject Petitioner’s claim that CMS’s assertion of “new deficiencies” not cited in the Statement of Deficiencies entitles Petitioner to confront CMS’s witnesses. See P. Br. at 4. The ALJ Decision rests entirely on one such “new” deficiency: noncompliance with 42 C.F.R. § 483.60 (rather than its paragraph (e), as originally cited in the Statement of Deficiencies). Petitioner rightly acknowledges that “CMS may be permitted to add new deficiencies at the time of briefing.” Id. A statement of deficiencies is “a notice document” not meant to be exhaustively detailed, and surveyors “are professionals trained to assess compliance with participation requirements but not to necessarily display the drafting skills of attorneys.” Pac. Regency Arvin, DAB No. 1823, at 9-10 (2002). Accordingly, the Board has ruled that CMS may raise new allegations at the pre-hearing exchange stage and by summary judgment motion, based on the same facts that supported a previously cited violation, as that timing gives the non-federal party sufficient notice to prepare a responsive defense. See Livingston Care at 20-21.

We also see no genuine dispute of material fact that Petitioner could have generated by questioning CMS witnesses, including the surveyor, on the permissible and timely substitution of 42 C.F.R. § 483.60 in place of its component paragraph (e), and of Tag F360 in place of Tag F808. “[A]rguing over which tag surveyors used does nothing to aid [a facility] in carrying its burden to establish that the facts on which CMS relied in citing it with a violation . . . are inaccurate.” Avalon Place Trinity, DAB No. 2819, at 11 (2017), aff’d per curiam, 761 Fed. Appx. 407 (5th Cir. 2019); see also W. Care at 30 (holding “the survey agency’s erroneous citation of” a regulation’s previous codification “did not violate [the complaining facility’s] rights”). Thus, we see no error in the ALJ’s assessment that “CMS gave Petitioner adequate notice of its amended allegation” and there was “no prejudice to Petitioner.” ALJ Decision at 2.

This is not a case in which petitioner “disputes the credibility of the surveyor’s factual account” by, for example, alleging “misunderstanding” and “mischaracterization” in connection with the surveyor’s interview of a key witness. See Shiloh First Health Care, Inc., DAB No. 3123, at 15 (2023). Petitioner faults only the extent and conclusions of the surveyor’s investigation, not the accuracy of the facts the surveyor recorded. Before the ALJ, Petitioner criticized the surveyor’s claim that Petitioner served Resident 11 “dry, flaky” tuna on March 23, 2018 as “based upon interviewing one staff member.” P. Br. to ALJ at 12 (emphasis added). Petitioner complained “the surveyor made a decision based upon review of very little evidence,” did not observe or inquire about “the making of the

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pureed tuna fish salad versus regular tuna,” and “entirely discounted [CNA 1’s] explanation that he mixed the tuna with nectar-thickened soup.” Id. at 19. Petitioner objected that “[s]urveyors cannot pick and choose what portions of the resident’s record to consider . . . and expect that they will not be subject to cross-examination.” Id. at 20-21. Petitioner repeats those criticisms on appeal. P. Br. at 14, 23, 25.

Petitioner’s unsupported complaints about the survey create no genuine dispute of material fact. As the ALJ recognized, unrebutted evidence confirmed that the pudding-like or mashed-potato-like pureed tuna salad that Resident 11 should have received for dinner on March 23, 2018, per Petitioner’s own protocols, was not the tuna on bread that every eyewitness reported the resident actually received. ALJ Decision at 3-5. As for thoroughness, the surveyor requested from Petitioner and reviewed a comprehensive set of “all facility records relating to the Resident’s care and condition leading up to and following her death,” many of which are CMS exhibits. See CMS Ex. 27, at 2, ¶¶ 3, 5 (describing records requested and reviewed); id. at 3, ¶ 6 (identifying CMS Exs. 3-5, 7-10, and 15 as “records obtained from the Facility”). The surveyor also based the Statement of Deficiencies on detailed, documented interviews with numerous facility employees, not just CNA 1. CMS Ex. 12 (containing notes of interviews with Administrator, Director of Nursing, Food Service Director, and other dietary and nursing staff). The surveyor asked the kitchen for a “test tray” containing both a pureed and a regular tuna fish sandwich, observed and sampled both, and found the former was “smooth” and “served inside a bowl without any bread,” while the latter was “flaky and gritty” and served on “white bread.” CMS Ex. 1, at 5. The surveyor acknowledged CNA 1’s claim to have “fed the Resident about two spoonfuls of nectar thickened soup mixed with tunafish,” then thoroughly explained why Petitioner nevertheless did not substantially comply with 42 C.F.R. § 483.60. CMS Ex. 27, at 5-7, ¶¶ 12-14. That conclusion was factually consistent with undisputed record evidence that Petitioner itself suspended CNA 1 for the “offense” of having served “pureed soup + tuna from a plate of mechanical soft diet” foods. See CMS Ex. 3, at 21. In sum, Petitioner may not create a dispute of material fact and claim entitlement to cross-examination by making unsupported assertions that mischaracterize the record evidence.

Furthermore, criticizing a surveyor’s methodology is no basis for reversing a noncompliance finding by CMS in any event. “[T]he Board has consistently held that allegations of inadequate survey performance are irrelevant to ALJ or Board review of CMS’s noncompliance and remedy determinations.” Avon Nursing Home, DAB No. 2830, at 11 (2017); see also Lifehouse of Riverside Healthcare Ctr., DAB No. 2774, at 12 (2017) (“We reject the premise that the viability or validity of CMS’s enforcement action against a SNF for alleged violation of Medicare participation requirements stands or falls on the quality of the underlying state agency survey.”)

Thus, because the ALJ did not rely on CMS witness testimony to establish any disputed material fact, the ALJ did not err by deciding this case without holding a hearing.

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B. Petitioner’s witnesses raised no genuine dispute of material fact.

Petitioner’s proposed witness testimony did not generate any dispute of material fact that would require a hearing. A dispute of fact is only “material” if resolving it “might affect the case’s outcome under the governing law.” A Samuel’s Christian Home Care, DAB No. 3043, at 7 (2021); see also Blossomwood Med., P.C. & Vytautas Pukis, M.D., DAB No. 2914, at 9 (2018) (“[F]or a factual dispute to preclude summary judgment, it must be material.”), aff’d sub nom. Pukis v. Ctrs. for Medicare & Medicaid Servs., No. 5:19-CV-00232, 2020 WL 5632970 (N.D. Ala. Sept. 21, 2020). When reviewing a case where an ALJ did not hold an oral hearing, the Board may “uphold the decision if the affected party,” like Petitioner in this case, has “proffered testimonial evidence only on facts which, even if proved, clearly would not make any substantive difference in the result.” See White Lake Fam. Med., P.C., DAB No. 1951, at 11 (2004).

1. The testimony of Petitioner’s proposed fact witness raised no genuine dispute of material fact.

The written testimony of Petitioner’s sole proposed fact witness, R.M., creates no genuine dispute of material fact. See P. Ex. 12. Petitioner describes R.M. as “a supervisor cook” at the facility; CMS identifies R.M. as Petitioner’s “Food Service Director.” P. Br. at 14, CMS Br. at 3, 11. R.M. admits that Resident 11’s entree for that evening was “a tuna fish sandwich along with a soup, a salad, and a beverage item.” P. Ex. 12, at 1. R.M. asserts “[t]here is no way the tuna could be dry, flaky or anything other than moist and fine as we use plenty of mayonnaise,” and CNA 1’s “adding the soup to the already prepared tuna fish salad would have made the consistency very similar to pureed consistency.” Id. at 2.

The ALJ did not err in determining that R.M.’s “purported facts,” even if assumed to be true, “do not rebut the facts adduced by CMS showing that on the evening in question the resident received non­pureed tuna.” ALJ Decision at 4. R.M. did not state that Resident 11 received the physician-ordered pureed diet on March 23, 2018, and the ALJ was not obligated to accept R.M.’s speculation about the possible consistency of the non-pureed tuna salad that Petitioner actually served to the resident. See W. Care at 48 (upholding ALJ’s rejection of SNF’s contention that it was “possible” facility “could have” rendered certain undocumented care, because “a factfinder is not obligated to indulge in such speculation”). As the ALJ recognized, Petitioner’s written policies required pureed tuna to “be combined with liquid in a blender and pureed until it attained a pudding-like consistency,” and the record, including R.M.’s declaration, supplies no evidence that Petitioner in fact prepared Resident 11’s March 23, 2018 supper entree in that way. ALJ Decision at 4 (citing CMS Ex. 10, at 15). An ALJ does not err in denying an in-person hearing when, as here, the petitioner “proffered no testimonial evidence that, even if credible, would be material” to the issues in dispute. Big Bend at 6.

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2. The testimony of Petitioner’s proposed expert witnesses raised no genuine dispute of material fact.

We reject Petitioner’s contention that the ALJ erred by not considering the expert testimony Petitioner submitted in this “medically complex” case. P. Br. at 7, 17-20. Both Gail E. Rader, RN, MSN, CALA, and Vipul C. Mody, M.D., offered various medical opinions, but most have no bearing on the issues the ALJ actually decided.⁵ For example, Nurse Rader opines that Petitioner’s nursing staff “correctly documented the orders received” and “properly assessed” Resident 11 upon the resident’s readmission on March 22, 2018. P. Ex. 11, at 17, ¶¶ 67-68. Yet, as the ALJ explained, the question of Petitioner’s noncompliance with 42 C.F.R. § 483.60 turned on the events of the following day instead. ALJ Decision at 3. Dr. Mody described Resident 11’s terminal symptoms as consistent with “symptoms of pulmonary edema,” and “acute heart failure,” yet could not “state conclusively” what caused Resident 11’s death and had “not been asked to do so.” P. Ex. 13, at 14-15, ¶¶ 61-62. Regardless, CMS could (and did) establish noncompliance without proving whether Petitioner’s acts or omissions caused Resident 11 to die or even suffer any actual harm. See Perry Cnty. at 15; Va. Highlands at 11; Livingston Care at 18 (“[A] showing of actual harm is not necessary to support a deficiency finding and enforcement action under the regulations.”).

Nurse Rader and Dr. Mody each declared a “professional opinion” on only two issues that are germane to the ALJ Decision. First, both Nurse Rader and Dr. Mody testified that “Resident 11 was provided with the physician-ordered diet on March 23, 2018.” P. Ex. 11, at 17-18, ¶ 70; P. Ex. 13, at 14, ¶ 59. Second, both Nurse Rader and Dr. Mody testified that “the deficiency cited by the surveyor 42 C.F.R. 483.60(e)(1)(2) is not supported by the evidence.” P. Ex. 11, at 19, ¶ 79; P. Ex. 13, at 15, ¶ 63. Their testimony created no genuine factual dispute requiring a hearing, because Petitioner “mistakes the conclusory opinions of its affiants for evidence of material fact.” See Senior Rehab. at 6.

Nurse Rader’s opinion that Resident 11 received the physician-ordered diet on March 23, 2018, lacks any factual support, is wholly conclusory, and thus creates no genuine dispute of material fact. Nurse Rader acknowledges, consistent with evidence from Petitioner’s own records, that a 4:16 p.m. nursing note on March 23, 2018 “correctly” identified Resident 11’s diet as “puree with nectar thickened liquids,” but the resident’s dinner tray that day “included a tuna fish sandwich [and] macaroni salad.” P. Ex. 11, at 10-11, ¶¶ 42, 45; see CMS Ex. 3 at 3, 5-6, 14, 17-18; CMS Ex. 5, at 3. Self-evidently, neither a

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sandwich nor macaroni met Resident 11’s special dietary needs for pureed foods only. Nurse Rader admits that, from this tray, Resident 11 received from Petitioner a “small amount of food.” P. Ex. 11, at 18, ¶ 73. Nurse Rader’s conclusory opinion that the resident nevertheless “was provided with the physician-ordered diet on March 23, 2018,” id. at 18, ¶ 70, is flatly irreconcilable with these concessions and the record evidence. The Board has upheld summary judgment when a facility provides only such “generalized and conclusory opinions,” which “do not create a genuine dispute of material fact.” Senior Rehab. at 19 n.11; accord Heritage House of Marshall Health & Rehab., DAB No. 3035, at 15 (2021).

Nor does Nurse Rader’s testimony generate any dispute of material fact by asserting that CNA 1 fed Resident 11 little of the tuna and none of the macaroni. See P. Ex. 11, at 11, ¶ 46 (“He did not feed Resident No. 11 any other food items from the tray other than the small spoonful of nectar thickened soup mixed with a small amount of tuna fish salad.”), 18, ¶ 73 (“The factual record reflects that Resident No. 11 received one teaspoon of tuna fish salad mixed with nectar thickened soup and nothing else from the dinner tray except for this small amount of food on the evening of her expiration.”). As an initial matter, during Petitioner’s internal investigation CNA 1 admitted to having fed Resident 11 more than that – “about two spoons” – and illustrated the “small portion of tuna I fed her at a time.” CMS Ex. 3, at 6, 19 (emphasis added). Moreover, Nurse Rader’s testimony appears intended to support an inference that the portion of non-pureed food Petitioner fed to Resident 11 was so small that it posed no risk of more than minimal harm and Petitioner therefore was substantially compliant. Yet even assuming CNA 1 fed Resident 11 only a single spoonful of tuna (mixed with nectar thickened soup) from the tray, that is because the resident immediately coughed, rapidly developed symptoms including labored breathing, respiratory distress, and throat “goggling,” and died within two hours. See CMS Ex. 3, at 5-8; CMS Ex. 9, at 5. Petitioner’s treatment records for Resident 11 show that, during a therapeutic trial of a mechanical soft diet in February 2018, even a single “bolus” of unpureed food, specifically a “cut up banana,” was enough to prompt an “[i]mmediate cough.” P. Ex. 7, at 20. The record, including Nurse Rader’s testimony, supports no reasonable inference that the portion of non-pureed food Petitioner fed Resident 11 was so tiny that it posed no risk of more than minimal harm. See Cedar Lake at 7 (“[A]n ALJ (or the Board on de novo review) is required to draw only reasonable inferences in the light most favorable to the non-moving party when determining whether to grant summary judgment.”) (underlining replaced with italics).

Petitioner also is not entitled to any reasonable inference of substantial compliance based on Nurse Rader’s assertion that CNA 1’s mixture of tuna fish salad with soup is “very similar to the preparation of the tuna fish for a pureed diet.” See P. Ex. 11, at 12, ¶ 51; P. Br. at 16 (“The process of mixing a small amount of tuna fish salad with pureed soup prior to serving is very similar to the preparation of the tuna fish for a pureed diet,” which is “relevant evidence” regarding “the central issue” of whether Petitioner was compliant with 42 C.F.R § 483.60.) (citing P. Ex. 11). Hand-moistening a spoonful of tuna salad

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with thickened soup is self-evidently not very similar to – and certainly not the same as – machine-blending the tuna salad with liquid milk and bread or bread crumbs until “smooth,” as Petitioner’s pureeing procedures require. See CMS Ex. 10, at 15. Petitioner’s intended inference relies not on record evidence but on conclusory statements and speculation; therefore, it is not reasonable. Where, as here, a SNF has cited “absolutely no evidence to support the inferences it wishes us to draw,” we conclude that “no genuine dispute of material fact exists” and “[a] party may not avoid summary judgment based on conclusory or speculative statements.” Dumas Nursing at 18; see also Logan Healthcare Leasing, LLC, DAB No. 3036, at 12 (2021) (“Inferences based on speculation are not reasonable.”).

Nurse Rader’s further opinion, that the evidence does not support the originally cited deficiency under 42 C.F.R. § 483.60(e), cannot create a triable dispute of fact because the opinion is neither material nor factual in nature. As Nurse Rader acknowledged, the State Agency surveyor ultimately did not rely on section 483.60(e), nor did CMS or the ALJ. See P. Ex. 11, at 13, ¶ 54, and 19, ¶ 79; CMS Ex. 27, at 3, ¶ 8; ALJ Decision at 2. Therefore, Petitioner’s compliance or noncompliance with that regulation is not material. Furthermore, “[t]he question of whether [a SNF] was in substantial compliance is ultimately one of law, not of fact,” and “[t]he ALJ makes this determination, not the witnesses.” Kingsville Nursing & Rehab. Ctr., DAB No. 2234, at 10 (2009). Thus, “at the summary judgment stage, an ALJ may properly ‘reject legal conclusions from [a facility’s] witnesses.’” NMS Healthcare of Hagerstown, LLC, DAB No. 2803, at 40 (2017) (quoting St. Catherine’s Care Ctr. of Findlay, Inc., DAB No. 1964, at 41 (2005)).

Dr. Mody’s written testimony, like Nurse Rader’s, created no genuine dispute of material fact requiring a hearing, despite Petitioner’s contrary contentions. See, e.g., P. Br. at 18 (asserting Dr. Mody’s testimony contained “key analysis” as to whether there is any “material fact in dispute with regard to the initial cited regulation, 42 CFR 483.60 (e)(1)(2)”). Dr. Mody’s declaration largely overlaps that of Nurse Rader and shares the same shortcomings. Compare P. Ex. 11, at 2-7, ¶¶ 5-7, 11-14, 17-25, 27 with P. Ex. 13, at 2-6, ¶¶ 5-7, 11-15, 18-26, 28 (containing identical text).

Dr. Mody’s opinion that “Resident 11 was provided with the physician-ordered diet on March 23, 2018” cannot create any genuine dispute on that point because it is wholly conclusory and irreconcilable with undisputed facts. See P. Ex. 13, at 14, ¶ 59. Dr. Mody, like Nurse Rader, acknowledges that the 4:16 p.m. nursing note on March 23, 2018 “correctly” identified Resident 11’s diet as “puree with nectar thickened liquids,” yet at suppertime Petitioner fed Resident 11 “tuna fish salad mixed with nectar thickened soup.” P. Ex. 13, at 9, ¶ 41, and 14, ¶ 60. Dr. Mody further hedges that “[i]f the resident was fed a small teaspoon of tuna fish salad, mixed with nectar thickened soup, then physician orders continued to be followed.” See id. at 13, ¶ 53 (emphasis added). Again, the ALJ was not obligated to entertain any witness’s speculation about what might have happened. See Cardiac Imaging Assocs. A Med. Corp., DAB No. 3133, at 12 (2024)

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(stating that “unsupported arguments . . . cannot rebut” documentary evidence and “[s]peculative inferences also are not evidence”); W. Care at 68 (“[S]peculation is insufficient to meet [a SNF’s] evidentiary burden.”).

Dr. Mody’s opinion that “the deficiency cited by the surveyor 42 C.F.R. 483.60(e)(1)(2) is not supported by the evidence” shares the same defects as Nurse Rader’s. P. Ex. 13, at 15, ¶ 63. Neither the surveyor, CMS, nor the ALJ ultimately relied on section 483.60(e), so the opinion is immaterial. Also, Dr. Mody attempted to draw a legal conclusion that the ALJ must draw. A case is suitable for summary judgment when, as here, there were no genuinely disputed material facts but only “opposing conclusions as to whether, applying the regulatory requirements to the undisputed facts, the facility was or was not in substantial compliance.” Senior Rehab. at 6; see also Logan Healthcare at 1, 8 (affirming summary judgment was appropriate when, as “the ALJ noted, many arguments concerned the legal significance of facts, not the existence of facts”); Bartley Healthcare Nursing & Rehab., DAB No. 2539, at 8 (2013) (“Summary judgment is not inappropriate merely because the parties proffer differing opinions on the ultimate legal issue . . . .”).

Thus, the ALJ did not err in concluding that Petitioner’s evidence, including witness testimony, showed no dispute of material fact. For all of the reasons discussed above, the ALJ did not err in deciding this case without holding a hearing.

II. The ALJ did not err in deciding this case by summary judgment.

Petitioner argues that “[t]he legal standards for the granting of summary judgment were disregarded by the ALJ” in two respects. P. Br. at 25. First, Petitioner claims the ALJ erroneously failed to admit Petitioner’s exhibits into evidence and give them due consideration when determining whether there was a genuine dispute of material fact. See id. at 7 (objecting that “none of Petitioner’s 15 exhibits, comprising well in excess of 150 pages of relevant facts and sworn testimony were received into evidence or considered by the ALJ in his Decision”); id. at 21 (“It was an erroneous decision to rule that the Petitioner’s timely filed exhibits would not be admitted into evidence, and to grant summary judgment when so many issues of material fact . . . remain in dispute.”); id. at 21-22 (“The ALJ may propose that he drew all reasonable inferences in favor of the non-moving party, but . . . [c]ould he have done so when he refused the entirety of Petitioner’s Exhibits?”); id. at 25 (“The basis for this Request For Review lies in the granting of a Motion For Summary Judgment while shutting out all evidence submitted by the Petitioner.”). Second, and relatedly, Petitioner asserts that the ALJ’s reliance “wholly and exclusively upon the Exhibits of CMS, is erroneous.” Id. at 2; see also id. at 4 (complaining of ALJ’s “unilateral reliance upon the Exhibits submitted by CMS”).

We hold that the ALJ did not err in applying the legal standards for summary judgment. The ALJ advised the parties that the principles of Federal Rule of Civil Procedure 56 would apply to their summary judgment motions. See Pre-Hr’g Order at 2. Under those

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principles, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that are irrelevant or unnecessary will not be counted.” Id. The Board, like the ALJ, treats summary judgment practice under Rule 56 “as a source of guidance.” Brightview Care Ctr., DAB No. 2132, at 9 (2007). Accordingly, and as further discussed below, the ALJ did not ignore Petitioner’s evidence, but instead supportably concluded that it did not generate any genuine dispute of material fact.

A. The ALJ did not commit reversible error by not admitting the parties’ exhibits into the record

We first reject Petitioner’s claim that the ALJ erred by not admitting Petitioner’s exhibits into evidence. The ALJ found there were no disputed material facts without ruling on the admissibility of either party’s exhibits or receiving them into the record, and it is true that “[t]he Board has long held that this approach to summary judgment is problematic.” Medford Care Ctr., DAB No. 3040, at 18 (2021); see Ill. Knights Templar Home, DAB No. 2274, at 5-6 (2009). An ALJ addressing a summary judgment motion for which evidence was proffered in support or in opposition must consider all the evidence in determining whether a genuine dispute of material fact exists. Ill. Knights at 6. Yet in doing so, the ALJ need not necessarily admit the evidence into the record if “there are no outstanding evidentiary objections and no questions about the admissibility of exhibits proffered by the parties.” Medford at 18. No such questions or objections are apparent in this case. The Board has upheld entry of summary judgment without admission of a petitioner’s exhibits when, as in this case, the ALJ apparently “saw nothing in them to contradict the facts CMS asserts are undisputed, drawing every reasonable inference in Petitioner’s favor.” Sandra E. Johnson, CRNA, DAB No. 2708, at 10-11 (2016). Regardless of the ALJ’s handling of the parties’ exhibits, we ourselves reviewed all of them in conducting our analysis, and after performing that review we agree with the ALJ’s conclusion that CMS is entitled to judgment in its favor as a matter of law. Accordingly, we see no error here.

B. The ALJ did not improperly disregard Petitioner’s evidence or improperly rely solely on CMS’s evidence.

We also reject Petitioner’s claims that the ALJ ignored Petitioner’s evidence. See P. Br. at 25. We “will not presume that the ALJ ‘ignored’ evidence merely because the ALJ did not specifically discuss it.” Cheryl Ackerman, MD, DAB No. 3050, at 13 (2021). In order to create disputes about the survey findings summarized in the Statement of Deficiencies, and to defeat CMS’s adequately supported summary judgment motion, Petitioner “needed to do more than simply deny the findings; it needed to submit relevant counter-evidence,” but Petitioner did not do so. See Southpark at 6 (emphasis added).

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We acknowledge that Petitioner submitted numerous exhibits, but summary judgment is permissible when a facility disputing a survey’s factual findings has “submitted evidence only about facts that we consider immaterial to the outcome.” See id. Based upon our own thorough review of Petitioner’s proposed exhibits, we consider this to be such a case. Petitioner’s Exhibits 1, 2, and 4 are January 2018 hospital records for Resident 11, and Petitioner’s Exhibits 3 and 8 are medical publications on pulmonary edema. P. Exs. 1-4, 8. Petitioner apparently intends these exhibits to show that Resident 11 was suffering ailments that continued until, and might have contributed to, the resident’s death. See, e.g., P. Br. at 8. The ALJ drew any permissible inference from that evidence in Petitioner’s favor by describing Resident 11 as already “gravely ill” by March 23, 2018, but also correctly treated that fact as immaterial. ALJ Decision at 2. As the ALJ explained, “[t]he parties disagree whether feeding the resident non-pureed tuna was the cause of her choking and death,” but “[i]t is unnecessary that I resolve this dispute in order to grant summary judgment.” ALJ Decision at 5. “The deficiency in this case lies in Petitioner’s failure to provide Resident #11 with the diet that was ordered for her by her physician,” not the “consequences” of any such failure, including whether it caused the resident’s death or even any actual harm, as the ALJ correctly explained. Id.; see also 42 C.F.R. § 488.301; Perry Cnty. at 15; Va. Highlands at 11.

Petitioner’s remaining non-testimonial exhibits tend only to confirm further the lack of disputed material facts. Petitioner’s Exhibit 5, a screening form for Resident 11’s readmission to the SNF in January 2018, has no apparent relevance unless to confirm Petitioner’s knowledge of Resident 11’s chewing and swallowing difficulties and special dietary needs long before the fatal events of March 23, 2018. See P. Ex. 5, at 4. Petitioner’s Exhibit 6, a February 1, 2018 Minimum Data Set assessment, confirms Resident 11’s diagnosis of oropharyngeal dysphagia and need for assistance with eating. P. Ex. 6, at 1, 15, 17, 23. Petitioner’s Exhibit 7, a SLP Evaluation & Plan of Treatment, records resident’s “cough” response during two mechanical soft diet assessments in February 2018. P. Ex. 7, at 20, 26. Petitioner’s Exhibit 9, the SNF’s March 2018 readmission screening form for Resident 11, merely duplicates part of CMS Exhibit 7 and includes a directive for Resident 11 to receive a “[p]ureed diet with nectar thickened liquids.” See P. Ex. 9, at 5; CMS Ex. 7, at 7.

“The fact that the ALJ was not persuaded by Petitioner’s evidence does not equate to the ALJ not considering it.” Med-Care Diabetic & Med. Supplies, Inc., DAB No. 2764, at 20 (2017). After careful review of the entire record, we conclude the ALJ did not improperly disregard Petitioner’s evidence but instead supportably determined that it did not rebut CMS’s evidence or generate any dispute of material fact.

III. The ALJ did not err in determining that Petitioner was not in substantial compliance with 42 C.F.R. § 483.60.

The pertinent regulation, 42 C.F.R. § 483.60, requires: “The facility must provide each

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resident with a nourishing, palatable, well-balanced diet that meets his or her daily nutritional and special dietary needs, taking into consideration the preferences of each resident.”

A. CMS established a prima facie case of noncompliance.

CMS met its burden of presenting a prima facie case that Petitioner was noncompliant with 42 C.F.R. § 483.60. As the ALJ summarized, “What is at issue is what actually occurred on the evening of March 23, 2018,” and “CMS offered an eyewitness account to support its assertion that the resident received non-pureed tuna on that evening.” ALJ Decision at 5. Specifically, CMS presented CNA 1’s admission “that he served the resident non-pureed tuna,” a fact that the resident’s son, another eyewitness of that evening’s events, corroborated. Id. at 4 n.1, 5; see CMS Ex. 3 at 5-6; CMS Ex. 12, at 21-22; CMS Ex. 14, at 6-7; see also Pac. Regency at 14 (“[C]orroboration is relevant to assessing the reliability of hearsay proffered in an administrative hearing.”). The Statement of Deficiencies further documents that Resident 11’s “family was at the resident’s bedside” on March 23, 2018 and Petitioner’s Director of Nursing received and investigated a complaint from “a family member for Resident #11” who “voiced concerns about the resident receiving an incorrect dinner meal tray on 3/23/2018.” CMS Ex. 1, at 4-5; see Southpark at 6 (stating Statement of Deficiencies may constitute prima facie evidence). These eyewitness accounts, even without CMS’s abundant additional evidence discussed above, establish a prima facie case that Petitioner fed Resident 11 non-pureed, non-prescribed food for supper on March 23, 2018, thereby not meeting “her daily nutritional and special dietary needs” as section 483.60 requires.

B. Petitioner did not rebut CMS’s prima facie case or generate any genuine dispute of material fact as to Petitioner’s noncompliance

Petitioner argues that it was “substantially compliant with all Medicare participation requirements,” P. Br. at 4, and asserts several allegedly disputed material facts that should have prevented entry of summary judgment for CMS. Petitioner claims “material disputes with regard to the discharging instructions from the hospital on March 22, 2018.” Id. at 22. Petitioner also claims material disputes as to “exactly what was fed to Resident #11 at dinner on March 23, 2018,” including whether “the tuna fish salad was pureed consistency,” whether “the meal ticket matched the tray delivered,” and whether “the food as fed to Resident #11, matched the physician order.” Id.

We reject Petitioner’s claim of any dispute of material fact concerning Resident 11’s hospital discharge instructions on March 22, 2018. The ALJ characterized those instructions as “unclear,” ALJ Decision at 3, and we see no error in that assessment, as the hospital transfer form variously described Resident 11’s diet as “[m]echanically altered” but not “[s]pecial,” and as pureed with honey-thickened liquids. CMS Ex. 6, at 2-3, 5. However, the ALJ correctly found that ambiguity to be immaterial, because other

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record facts “establish unequivocally that the resident was supposed to be receiving only pureed food as of March 23, 2018.” ALJ Decision at 3. Petitioner admits that “on March 23, 2018, the nurse correctly assessed and recommended that a pureed diet should be served” and that information “was communicated to the physician who concurred.” P. Br. at 12-13. Resident 11’s new dietary orders for pureed-only food and nectar-thick liquid were undisputedly in place by the afternoon of March 23, 2018, before Petitioner served supper to Resident 11. CMS Ex. 5, at 3.

Regarding the allegedly disputed fact of what Petitioner fed Resident 11 on March 23, 2018, we agree with the ALJ’s assessment that “Petitioner offers no facts that rebut the nursing assistant’s admission that he fed the resident non-pureed tuna on that date.” ALJ Decision at 4. We recognize the record contains two different meal tickets describing the supper entree Resident 11 should receive on March 23, 2018, as either “PUR TUNA SLD on CROISSANT” or “PUR TUNA SLD SANDWICH.” CMS Ex. 3, at 2; CMS Ex. 10, at 4. As the surveyor noted, it is “unclear why [Petitioner] provided two meal tickets for the Resident’s March 23, 2018 supper.” CMS Ex. 27, at 5 n.1. Regardless, the ALJ correctly recognized that a tuna salad sandwich, if properly pureed per Petitioner’s policies, would be served “by itself on a plate without bread” of any kind. ALJ Decision at 3 (citing CMS Ex. 12, at 49); see also CMS Ex. 10, at 15 (requiring machine-blending of tuna salad, together with milk and bread or bread crumbs, into a “pudding-like consistency”). As the ALJ also correctly recognized, CNA 1, who personally fed Resident 11 dinner on March 23, 2018, described the entree the resident did receive as a sandwich of “dry, flaky” tuna. ALJ Decision at 3; CMS Ex. 12, at 22. No other eyewitness to that evening’s events contradicts that description. See CMS Ex. 3, at 11, 14 (second CNA); CMS Ex. 14, at 7 (Resident 11’s son).

As the ALJ explained, CNA 1’s admission “that he served the resident non-pureed tuna is evidence of what actually occurred,” and Petitioner’s showing of “what typically occurs when its kitchen staff fills an order for a pureed diet does not rebut an eyewitness account of what actually happened.” ALJ Decision at 5. Evidence of Petitioner’s standard dietary practices in preparing pureed tuna salad did not create a genuine dispute of material fact because the ALJ need not “conclude that Petitioner’s staff followed a process simply because the process exists.” Id. The ALJ acknowledged the requirement “to draw all reasonable inferences favorable to” the party opposing summary judgment, but determined there were no facts supporting an inference that Petitioner’s staff served pureed tuna to Resident 11, given the unrebutted “eyewitness account that the resident received non-pureed tuna.” Id. Even staff who were not eyewitnesses confirmed that tuna salad, if pureed, “cannot go on bread,” and was “never ever” put on bread. CMS Ex. 12, at 49, 52; see also CMS Ex. 1, at 11 (summarizing staff statements that “only regular consistency tuna fish would be served on bread” and “puree tuna fish would not be served on bread”). Where, as here, a facility has not effectively “disputed the accuracy of the surveyor’s report” through the testimony of facility staff, the Board has affirmed summary judgment confirming noncompliance with the dietary services

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regulation. Bivins Mem’l Nursing Home, DAB No. 2771, at 10 (2017).⁶

In sum, uncontroverted evidence establishes that at supper on March 23, 2018, Petitioner’s CNA fed Resident 11 unpureed tuna salad with thickened soup while the physician’s order was for pureed food only. See CMS Ex. 3, at 5-6; CMS Ex. 5, at 3; CMS Ex. 8, at 2; CMS Ex. 12, at 22. Petitioner’s brief asserts that the dinner tray contained a “pureed tuna fish salad sandwich,” and “appears to have had the same pureed tuna salad . . . that would have been delivered on a strictly pureed tray,” but cites no evidence for either assertion. P. Br. at 13, 15-16 (emphasis added). CMS, by contrast, produced evidence that Petitioner’s kitchen staff insisted that they never served pureed tuna on bread. CMS Ex. 1, at 10-11; CMS Ex. 12, at 49, 52-53. Petitioner did not present contrary testimony from those employees, and “may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact.” Dumas Nursing at 4. Furthermore, Petitioner admits that Resident 11’s March 23, 2018 dinner tray included “macaroni salad” and “should not have contained a croissant,” and there is no evidence in the record that either item is consistent with a dietary order for pureed-only foods. P. Br. at 13, 16. Uncontroverted evidence shows that in disciplining CNA 1, Petitioner gave directions to reject a whole meal tray, and not select from it, if it is “inconsistent with [the] meal ticket.” CMS Ex. 3, at 21. Petitioner infers that “mixing a small amount of tuna fish salad with pureed soup prior to serving,” as CNA 1 did, “is very similar to the preparation of the tuna fish for a pureed diet.” P. Br. at 16. However, as discussed above, that inference is inconsistent with undisputed record evidence, and something allegedly “very similar” obviously is not the same. As CMS persuasively argues, “even when viewed in the light most favorable to Appellant, a ‘close enough’ defense does not raise a genuine issue of material fact.” CMS Br. at 14.

Thus, Petitioner did not rebut CMS’s prima facie case or generate any genuine dispute of material fact as to Petitioner’s noncompliance with 42 C.F.R. § 483.60.

IV. The ALJ did not err in determining that the CMP was reasonable.

“In deciding whether the CMP amount was reasonable, an [ALJ] or the Board may consider only the factors specified in 42 C.F.R. § 488.438(f).” Southpark at 12. We “presume that CMS considered the regulatory factors in choosing the CMP amount and that those factors support the penalty imposed.” Id. “Accordingly, it is not CMS’s burden to present evidence on each factor or to explain either how it weighed the factors or made its decision as to the amount of the CMP”; instead, the SNF bears the burden to demonstrate through argument and evidence that the CMP amount is unreasonable. Pearsall Nursing & Rehab. Ctr. – N., DAB No. 2692, at 11 (2016).

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The ALJ appropriately considered the relevant factors in 42 C.F.R. § 488.438(f). Concerning the “facility’s history of noncompliance,” per section 488.483(f)(1), the ALJ supportably found that Petitioner “has a history of serious noncompliance with participation requirements.” ALJ Decision at 6-7 (citing CMS Ex. 16). Concerning the deficiency’s seriousness per section 488.438(f)(3), the ALJ even-handedly found that Petitioner’s staff had not “willfully disregarded the resident’s dietary orders” yet had put the resident at “a very high risk for sustaining lethal consequences,” thus committing an “inadvertent” but “extremely serious” error. Id. at 6. Regarding Petitioner’s culpability per section 488.438(f)(4), CMS argued Petitioner “was culpable as they had multiple layers of mistakes” by kitchen and nursing staff (particularly failures to prepare the correct meal and check its correctness before serving it), which resulted in Resident 11’s receiving non-pureed food the evening the resident died. CMS Br. to ALJ at 23. The ALJ agreed, ALJ Decision at 6, and we perceive no error.

Petitioner has not met its burden to demonstrate that the CMP should have been lower. Petitioner asserts the CMP is “not reasonable” on the sole basis that “the facility was in substantial compliance with the Medicare requirements as evidenced by the record,” so CMS “had no basis” to impose a CMP “in any amount.” P. Br. at 4, 25. As discussed above, the ALJ supportably concluded that Petitioner was noncompliant with 42 C.F.R. § 483.60, and there is no asserted or apparent error in the ALJ’s assessment of the CMP’s reasonableness under the applicable factors in section 488.438(f).

Conclusion

We affirm the ALJ Decision.

Endnotes

¹ We apply the version of the regulations in effect in August 2018, when the relevant survey occurred. See Cahokia Nursing & Rehab. Ctr., DAB No. 2991, at 2 n.1 (2020).

² This section draws from the record to provide context. It does not replace or modify the ALJ’s findings.

³ Some documents in the record cite this provision as 42 C.F.R. § 483.60(e)(1)(2). See, e.g., CMS Ex. 1, at 2; CMS Ex. 2, at 1. However, section 483.60(e) consists entirely of its paragraphs (1) and (2). Citing to section 483.60(e) properly encompasses both paragraphs.

⁴ Immediate jeopardy findings are reviewable only under circumstances that do not exist here, as CMS argued, Petitioner has not disputed, and the ALJ confirmed. See 42 C.F.R. § 498.3(b)(14), (d)(10)(i)-(ii); CMS Br. to ALJ at 18; ALJ Decision at 5-6, 7 n.3.

⁵ Nurse Rader offered opinions both in a report, P. Ex. 10, at 11, and a declaration, P. Ex. 11, at 17-19. Only the declaration is admissible testimony, which “must be submitted in the form of an affidavit made under oath or as a written declaration that the witness signs under penalty of perjury for false testimony.” Pre-Hr’g Order at 5. We have reviewed the contents of the report and find it duplicative of other documents in the record, P. Ex. 10, at 2-11, including Nurse Rader’s declaration, compare P. Ex. 10, at 11 with P. Ex. 11, at 17-18.

⁶ Bivins cites to 42 C.F.R. § 483.35, which CMS subsequently recodified as 42 C.F.R. § 483.60 effective November 28, 2016. See Medicare & Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688, at 68,696-97, 68,828 (Oct. 4, 2016).