Both parties appealed from the October 27, 1998 decision of Administrative Law Judge (ALJ) Steven T. Kessel in Beverly Health and Rehabilitation -- Spring Hill, DAB CR553 (1998)(ALJ Decision). The ALJ upheld the determination of the Health Care Financing Administration (HCFA) to terminate the participation of Beverly Health and Rehabilitation -- Spring Hill (Spring Hill) in the Medicare program effective June 2, 1998. The ALJ reduced the amount of a civil money penalty (CMP) imposed by HCFA because he found that the evidence on the record supported a finding that Spring Hill was not in substantial compliance with the participation requirements, but not a finding that immediate jeopardy existed. HCFA had determined to impose a CMP in the amount of $10,000 per day beginning May 7, 1998 and running through June 1, 1998. The ALJ reduced the CMP to $1000 per day. We uphold the ALJ Decision.

Background

Skilled nursing facilities like Spring Hill are generally subject to annual surveys by surveyors from a state survey agency to determine whether they are in compliance with federal participation requirements. See 42 C.F.R. �488.308(a). Where deficiencies are found in a survey, the state survey agency and HCFA assess the seriousness of the deficiencies on a scale that considers scope (how isolated or widespread the deficiency is) and severity (how great the harm or potential for harm the deficiency causes). 42 C.F.R. �488.404. The findings are reported on a standard form (called a "2567") which identifies specific deficiencies and assigns "tag" numbers. In order to be found in "substantial compliance," a provider must have no deficiencies that pose a risk to resident health or safety greater than "the potential for causing minimal harm." 42 C.F.R. �488.301.⁽¹⁾ At the other extreme, the most serious deficiencies are those determined to constitute immediate jeopardy. "Immediate jeopardy" is defined in the regulations as a situation in which a provider's noncompliance "has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." Id.

Based on the determination as to scope and severity of deficiencies and other relevant factors, the state agency and HCFA select among available remedies. 42 C.F.R. ��488.404, 488.406 and 488.408. The choice of remedy and the factors considered in selecting the remedy are not subject to appeal, but the facility may appeal the noncompliance findings leading to the imposition of a remedy. 42 C.F.R. �488.402(g). Regardless of the remedy imposed, the facility must submit a plan of correction unless the deficiencies identified are isolated and present no more than a potential for minimal harm. 42 C.F.R. �488.402(d).

HCFA's determinations in this case were based on the results of compliance surveys at Spring Hill conducted by the Florida State survey agency on May 4-7, 1998 and on May 27-29, 1998. Both surveys found that Spring Hill was not in substantial compliance with federal requirements for participation in the Medicare program and that the noncompliance was severe enough to create a state of immediate jeopardy for residents of Spring Hill. Based on these surveys, the State recommended and HCFA imposed a termination effective June 2, 1998 and a CMP of $10,000 per day from the end of the first survey until the termination date.

After a hearing, the ALJ concluded that the findings of immediate jeopardy were not supported by the evidence in the record. ALJ Decision at 2. However, he also found that Spring Hill failed to disprove the evidence of other "relatively serious" deficiencies or to show that those deficiencies were corrected before the termination date. ALJ Decision at 2, 50. The unrebutted deficiencies included failing to perform the complete systematic assessments of residents' needs that are required by federal statute and regulations as a basis to plan effectively for individual care. Spring Hill offered no evidence at all to contradict a number of deficiency findings, including creating a safety hazard by leaving bed wheels unlocked, failing to provide certain residents with therapy or devices recommended for them, failing to obtain written agreements before sending residents to outside service providers, and neglecting to provide required information to residents. Consequently, the ALJ found that HCFA had an adequate basis to terminate Spring Hill, but that the CMP should be reduced to $1000 per day.

Arguments of the Parties

As a preliminary matter, Spring Hill moved to dismiss HCFA's appeal on the grounds that no statutory authority underlies the regulations providing HCFA with a right of appeal from adverse ALJ decisions. Further, Spring Hill argued that the Departmental Appeals Board (Board) should exercise its discretion and decline to hear HCFA's appeal, even if we were not persuaded that we lacked jurisdiction to hear it, because HCFA raised no "broad policy or procedural issues that are exportable to other cases." Motion to Dismiss at 10.

In its brief on appeal, Spring Hill itself attacked the ALJ Decision on seven (sometimes interrelated) grounds. See Spring Hill Brief on Appeal (Br.) at 1-4. First, Spring Hill argued that it had no prior notice either that HCFA relied on the non-immediate jeopardy deficiencies as a basis for termination or that the termination would take effect unless the non-immediate jeopardy deficiencies had been corrected before the June 2, 1998 termination date. Second, Spring Hill argued that, even if HCFA has authority generally to terminate a provider with deficiencies short of immediate jeopardy, the ALJ was limited to reviewing HCFA's determination based on the rationale given by HCFA and that, as it asserted in regard to its notice argument, the sole basis for HCFA's determination to terminate Spring Hill rested on the findings of immediate jeopardy. Third, Spring Hill contended that the ALJ erroneously believed that he lacked authority to rescind the termination where it was based on unsupported factual findings. For these reasons, Spring Hill maintained that the ALJ should have overturned the termination once he found no evidence of immediate jeopardy.

Fourth, Spring Hill argued that the ALJ was obligated to remand to HCFA for a redetermination as to the appropriate remedy based on the facts as he found them, if he did not rescind the termination outright. Fifth, Spring Hill attacked the procedures followed by HCFA in determining to terminate Spring Hill. Sixth, Spring Hill challenged the factual basis of the ALJ's findings that the facility had been shown to have any deficiencies with a potential for more than minimal harm.

Additionally, Spring Hill asserted that terminating it where no immediate jeopardy findings were sustained resulted in unfairly treating it more harshly than any similarly-situated facility and was inconsistent with HCFA's policies and procedures. In this regard, Spring Hill sought and was granted permission to submit additional evidence at the appeals stage.⁽²⁾ 42 C.F.R. �498.86(a); Rulings on Motion to Accept New Evidence and Other Matters (Apr. 13, 1999).

In its appeal, HCFA raised three exceptions to the ALJ Decision. First, HCFA argued that no evidence supported the ALJ's finding that Spring Hill was in substantial compliance with 42 C.F.R. section 483.10(b)(11) (one of the immediate jeopardy findings, cited under Tag 157 in both surveys, that the ALJ overturned). HCFA Brief on Appeal (Br.) at 13. Second, in relation to another overturned immediate jeopardy finding cited as Tag 224 (regarding Resident 2 in the revisit survey), HCFA challenged the "ALJ's finding that professional nursing standards encompass no duty or right to question orders of a physician." Id. at 14. Third, HCFA argued that, because of the seriousness of the deficiencies at the facility, the ALJ should not have reduced the CMP to $1000.

In our analysis, we address first the motion to dismiss, then the legal and procedural arguments proffered by Spring Hill, then the attacks of both parties on the ALJ's factual findings on particular deficiencies, and finally HCFA's exception to the amount of the CMP.

Standard of Review

Our standard of review of an ALJ decision on a disputed issue of law is whether the ALJ decision is erroneous. Our standard of review on a disputed issue of fact is whether the ALJ decision as to that fact is supported by substantial evidence on the record as a whole.

1. The motion to dismiss HCFA's appeal is denied.

Spring Hill moved to dismiss HCFA's appeal of the ALJ Decision on the grounds that HCFA has no statutory authority to grant itself a right to appeal unfavorable ALJ decisions where the governing statute confers such appeal rights only on providers. Spring Hill Motion to Dismiss at 2. Spring Hill conceded that regulations "appear to give HCFA the right to appeal." Id. In fact, the regulations expressly provide that "[e]ither of the parties has a right to request Departmental Appeals Board [Board] review of the ALJ's decision or dismissal order . . ." 42 C.F.R. �498.80.

Even were there merit in Spring Hill's claim that the regulations permitting HCFA to seek review of ALJ decisions lacked statutory authority, Spring Hill has pointed to no authority for the Board to overturn a regulation of the Secretary. In any case, Spring Hill did not provide persuasive support for its claim that the regulatory review scheme exceeds the Secretary's authority under the Social Security Act (Act). First, the Secretary has ample statutory authority to issue regulations necessary to efficiently administer the programs involved here. See, e.g., sections 1102(a) and 1871(a) of the Act. Second, the Act provides that "an institution or agency dissatisfied" with certain determinations of the Secretary "shall be entitled to a hearing thereon by the Secretary . . . to the same extent as is provided in section 205(b) . . . ." Section 1866(h) of the Act. Spring Hill argued that the last section authorizes appeals only by dissatisfied providers and therefore precludes appeals by HCFA. This is an unreasonable reading of the statutory language which names only the parties authorized to initiate a hearing request in the first instance. It would be illogical for the Secretary to seek a hearing in the first instance to review a determination made by the Secretary's agent. However, nothing in this section suggests that the hearing process once initiated may not include an opportunity for further review at an administrative appeals level for both parties.

Section 205(b) (as referenced by Section 1866(h)) empowers the Secretary to "hold such hearings and conduct such investigations and other proceedings as the [Secretary] may deem necessary or proper . . . ." This provision is sufficiently broad to authorize creation of a two-tiered process with proceedings beyond the initial hearing stage, including review of the ALJ decision at an administrative appeal level at the request of either party.

Spring Hill argued that section 205(b) also speaks in terms of individuals seeking review of unfavorable determinations by the Commissioner (which, in this context, means the Secretary). See Spring Hill Motion to Dismiss at 7; section 1866(h)(1) of the Act. This argument misunderstands the relationship of sections 1866(h)(1) and 205(b). Section 1866(h)(1) provides that hearings by the Secretary are available to any "institution or agency" dissatisfied with an initial determination "to the same extent as provided in section 205(b)." The parties to the hearings under section 1866(h)(1) are not restricted to individuals. Otherwise, providers who are not individuals, but institutions, as is Spring Hill, would be precluded. The Board acts for the Secretary in the hearing process by issuing the final agency decisions in appeals.

And, again, the entirely logical assignment of the opportunity to initiate a hearing process to the party dissatisfied with a determination of the Secretary (which would otherwise stand unchallenged) does not define the scope of the subsequent appeals process. As to that, section 205(b) allows the Secretary discretion to shape such "other proceedings," beyond the initial hearing stage, as may be necessary for efficient administration.

The cases cited by Spring Hill for the proposition that providing appellate review of ALJ decisions except upon request of a dissatisfied provider exceeds statutory authority are inapposite. Cf. Spring Hill Motion to Dismiss at 4-5. None of them involve internal administrative review or appeal processes. Spring Hill further contended that the Secretary has not consistently provided such appeal rights to HCFA under section 205(b) and that doing so serves no purpose. Spring Hill Motion to Dismiss at 8-9. Since we find that section 205(b) is broad enough to permit the Secretary to include a two-tiered hearing process, including an opportunity for further review on request of the agency party, it is not clear what relevance there would be to a determination that the Secretary had not provided the identical appeals system at all times or in every kind of proceeding under section 205(b). Furthermore, there have been opportunities provided for further review of decisions initiated by the agency, rather than the affected party, in other section 205(b) proceedings, such as reviews of ALJ decisions in Medicare cases initiated by the Appeals Council. See 20 C.F.R. �404.969, made applicable by 42 C.F.R. ��405.724 and 405.856.

Spring Hill argued that, even if the Board concluded it had jurisdiction to hear appeals by HCFA from ALJ decisions or lacked authority to review whether the regulation granting such appeals had a statutory basis, the Board should exercise its discretion to dismiss HCFA's request for review here. Besides reiterating the position, rejected above, that granting the review would exceed statutory authority, Spring Hill also argued that the Board had "no compelling reason" to grant review because HCFA's appeal addressed "narrow fact issues that have no broader application to other cases." Spring Hill Motion to Dismiss at 4. Spring Hill offered no basis for the position that HCFA's appeals should only be heard when they present broad legal or policy issues.

The Board has discretion to "dismiss, deny, or grant" a request by HCFA for review of an ALJ decision. 42 C.F.R. �498.83(a). The Board serves as an adjudicatory body determining facts and applying law on a case-by-case basis on appeals of ALJ decisions reviewing HCFA's initial determinations, rather than as a policy-making entity to address questions of general interest. Thus, Board review (of provider participation appeals) is triggered only by request of a party dissatisfied with an ALJ decision and only as to specific issues, findings of fact or conclusions of law with which that party disagrees. 42 C.F.R. ��498.80 and 498.82. The Board then issues the final agency decision, acting on behalf of the Secretary. In this context, Spring Hill's contention that the Board should reject HCFA's appeal because the issues it raises are case-specific makes no sense.

2. Spring Hill had adequate notice that (1) the termination was based on the survey findings, which showed Spring Hill was not in substantial compliance, not on the immediate jeopardy findings alone, and (2) the termination would take effect on June 2, 1998.

Spring Hill argued that it lacked notice that HCFA's termination rested on any basis other than the immediate jeopardy findings. We find that HCFA gave adequate notice that it imposed the remedies based on the lack of substantial compliance shown by the survey, and not based on the finding of immediate jeopardy alone.

We first examine whether HCFA's letter to Spring Hill imposing the termination in fact provided adequate notice of the basis and effective date of the termination remedy. The May 19, 1998 letter stated that the survey conducted beginning on May 7, 1998 had found that Spring Hill's facility "was not in substantial compliance" and that the conditions "constituted immediate jeopardy to resident health or safety." HCFA Ex. 5, at 1. The letter stated that the Statement of Deficiencies (2567) from that survey had already been furnished and that several amendments had been made. Id. The letter then notified Spring Hill that, "[b]ased on these survey findings," the State had recommended (and HCFA agreed) that remedies, including termination, should be imposed on Spring Hill. Id. The letter further stated as follows:

A facility must meet the pertinent provisions of Sections 1819 and 1919 of the Social Security Act and be in substantial compliance with each of the Requirements for Long Term Care Facilities . . . in order to participate as a skilled nursing facility in the Medicare program and as a nursing facility in the Medicaid program.

On May 7, 1998, a survey was conducted at your facility by the Florida State Survey Agency to determine compliance with Federal requirements for nursing homes participating in the Medicare and Medicaid programs. This survey found that your facility was not in substantial compliance with the participation requirements and that conditions in your facility constituted immediate jeopardy to resident health or safety. [The letter then references several additions made by HCFA and the State Survey Agency to the statement of deficiencies originally provided to Spring Hill.]

* * *

Remedies Imposed

We concur with the Florida State Agency's recommendations. The following remedies will be imposed on the dates indicated.

Termination

Your Medicare provider agreement will be terminated on June 2, 1998. We will also notify the State Medicaid agency to terminate your Medicaid provider agreement.

Id. at 1-2 (emphasis added).

The letter went on to state that a CMP of $10,000 was being imposed "as a result of your facility's noncompliance as evidenced by the findings of the May 7, 1998 survey." Id. at 2. The letter stated that the amount might be reduced if HCFA found that the "jeopardy has been removed, but noncompliance continues." Id. In addition, Spring Hill was ordered to submit a plan of correction by May 21, 1998 and advised that failure to submit an acceptable plan "will result in the termination of your provider agreement." Id.

We find that, on the face of this letter, HCFA made clear that the remedies imposed, including termination, were based on the lack of substantial compliance found by the survey, and not, as Spring Hill now claims, on the finding of immediate jeopardy alone. The basis referred to was the lack of substantial compliance evidenced by survey findings in the aggregate. In addition, the letter pointed out that only facilities in substantial compliance with each of the participation requirements are entitled to participate in the federally-funded programs. This language should not have led Spring Hill to believe that its participation would be restored merely by correcting the most egregious deficiencies (nor by a finding that some but not all deficiencies were incorrectly cited). Therefore, the letter provided adequate notice that the remedy did not rest solely on the immediate jeopardy findings. Cf. ALJ Decision at 49.

Further, the assertion in the letter that remedies are being applied based on "noncompliance found during surveys," rather than tying a particular remedy to particular deficiencies, is in accordance with HCFA's enforcement regulations generally. The basis for imposition of remedies set out in the regulations is "noncompliance found during surveys" and one or more remedies (including termination) may be applied for each deficiency or "for all deficiencies constituting noncompliance." 42 C.F.R. �488.402(b) and (c). The reasoning behind this approach was explained in the preamble to the regulations which stated that "setting forth specific sanctions to be applied for each deficiency . . . or group of deficiencies would defeat the whole purpose of providing maximum flexibility to both the Secretary and to the states" and, furthermore, that "remedies are imposed for noncompliance in a facility, rather than for deficiency 'a' or 'b' or 'c,' etc." 59 Fed. Reg. 56,169 (Nov. 10, 1994).

This conclusion is also consistent with our decision in Desert Hospital, DAB No. 1623 (1997). In that case, we considered remedies which HCFA imposed in a letter stating they were the result of a survey which found the facility was not in substantial compliance and listing only two specific deficiencies, which were the ones found to constitute substandard quality of care. Id. at 2-3, 8-9. These two deficiencies had been corrected by the time of a resurvey but the facility remained out of compliance with some other requirements. Id. at 3-4. HCFA contended that the remedies imposed (including denial of payment for new admissions) in the letter took effect and were based on the entire survey and could be ended only by a finding of substantial compliance. Id. at 8-9. We rejected Desert Hospital's assertion that this letter did not provide sufficient notice that HCFA's remedies were based on the survey findings in the aggregate and that the remedy was too harsh given the relatively few remaining deficiency findings. Id. at 8-12. While the situations were not identical (since Desert Hospital involved substandard quality of care findings that were corrected rather than immediate jeopardy findings that were invalidated), nevertheless, in the present case as well, the mere fact that HCFA's notice letter specifically mentions some of the most egregious of a survey's findings does not imply that HCFA is basing any remedies imposed on only the specifically-mentioned findings. Both substandard quality of care and immediate jeopardy findings can have legal ramifications apart from the selection of the specific remedies imposed, so HCFA has reason to specifically record its concurrence with those findings even though basing its imposition of remedies on the lack of substantial compliance. See, e.g., id. at 9; see 42 C.F.R. ��488.410, 488.414. The Board has held that a notice letter which indicates that HCFA is concurring in the survey findings in the 2567 already provided to the facility that in turn sets out the basis for the noncompliance determination is sufficient notice. See Birchwood Manor Nursing Center, DAB No. 1669 (1998).

Spring Hill argued that this case was distinctive in that the notice letter "made no explicit mention of the Statement of Deficiencies and instead explicitly stated that termination was being imposed based on a finding of immediate jeopardy." Spring Hill Reply Br. at 5, n.2. Spring Hill mischaracterised the substance of the notice which it received before imposition of the termination. The content of HCFA's letter above, while noting that the deficiencies found presented immediate jeopardy, plainly references the survey finding that Spring Hill was not in substantial compliance and refers to the Statement of Deficiencies resulting from the survey. Our conclusion that the letter gave adequate notice that the basis of the termination was not limited to the immediate jeopardy deficiencies is reinforced by the statement in the letter that the correction of the immediate jeopardy conditions (without the achievement of substantial compliance) could result in a lowering of the rate of the CMP. If HCFA had intended that termination be applied only to address the immediate jeopardy findings, it could have structured the remedies to relieve Spring Hill of the termination as well, if immediate jeopardy were removed. HCFA did not choose to do so. That choice of how to structure remedial action is not appealable.

Further, Spring Hill's own actions suggest that it had actual notice of the broader basis for the remedies imposed on it, however unwelcome. Thus, in its initial letter requesting a hearing, Spring Hill framed the dispute in terms of substantial compliance, evidencing its awareness that the relevant issue for rescission of the remedies was the presence of substantial compliance, not the absence of immediate jeopardy. Furthermore, Spring Hill sought, ultimately unsuccessfully, to narrow the issues before the ALJ to the immediate jeopardy. See ALJ Order at 2 (June 15, 1998). Its attempt to get HCFA's consent to remove the other deficiencies from the case further illustrates that Spring Hill was conscious that more than the immediate jeopardy findings was potentially at issue and hence that Spring Hill had adequate notice of the case against it.

3. The ALJ's review was not limited to determining whether the immediate jeopardy findings were valid.

In an argument closely linked to its claim that it lacked notice of other issues, Spring Hill argued that the sole issue before the ALJ in regard to the termination was the validity of the immediate jeopardy findings, rather than the lack of substantial compliance. Spring Hill Br. at 12-13. Spring Hill contended that HCFA's action "must be measured by what the agency actually did, not what it might have done, could have done or had the discretion to do," and that what HCFA did here was to impose a "fast-track termination" based on the immediate jeopardy findings that the ALJ overturned. Id. HCFA responded again that the termination remedy was based on all of the deficiencies, not only on the most serious ones, and that the scope of the hearing always included all the deficiencies. HCFA Resp. to Spring Hill Appeal at 2-5.

The argument before us that the scope of the hearing before the ALJ was limited to the validity of the immediate jeopardy findings is not consistent with the course of the proceeding or the positions taken by Spring Hill below. Spring Hill's initial hearing request stated that it disagreed with five determinations. Spring Hill hearing request at 1-2 (May 21, 1998). In addition to disputing the finding of immediate jeopardy and the appropriateness of the remedies in relation to the level of noncompliance, Spring Hill disagreed that the deficiencies cited in the May 7, 1998 survey "were valid," "constituted valid findings" of lack of substantial compliance, or "constituted noncompliance" with participation requirements. Id.

We already have concluded that the remedies imposed (including termination) were based on the lack of substantial compliance, not just on the immediate jeopardy findings. We conclude further that Spring Hill placed at issue before the ALJ the validity of all the survey findings, not merely the immediate jeopardy determination. Therefore, the ALJ was correct in treating the issue regarding termination as whether the survey findings provided a basis for HCFA's action, rather than addressing only whether the immediate jeopardy findings were valid.⁽³⁾

Much of Spring Hill's complaint is based on the immediate imposition of the termination remedy, without an opportunity to make corrections and seek a re-survey. The termination was imposed on a 23-day fast track (within 23 calendar days of the last date of the survey), so that it became effective on June 2, 1998. This process generally applies only in situations involving immediate jeopardy. See 42 C.F.R. �488.410. Relying on provisions of the HCFA's State Operations Manual (SOM), Spring Hill asserted that "HCFA policy is generally to halt a fast-track termination if immediate jeopardy is removed prior to the termination date." Spring Hill Reply Br. at 4, citing SOM, Appendix P and �7309. However, the cited provisions do not support Spring Hill's claims that HCFA had established such a policy.

Section 7309 details the time frames applicable to a fast-track termination in immediate jeopardy situations and states that where the facility has corrected the immediate jeopardy but not achieved substantial compliance, it "may be given some additional time (up to 6 months from the last day of the survey) to achieve substantial compliance." SOM, �7309 (emphasis added). This provision merely establishes that HCFA would have had the authority to delay the termination had the revisit found correction of the immediate jeopardy. Nothing in it obliges HCFA to reconsider the remedy if the immediate jeopardy conditions are corrected but substantial compliance is not achieved, nor does it address the circumstances here where the findings on appeal differ from the findings at the survey.

HCFA might indeed have selected a different time frame for the termination, or even a different remedy, had the State surveyors not found in the initial survey that conditions at the facility presented an immediate jeopardy to residents' health and safety. Further, HCFA might well have elected to delay termination had the revisit found correction of the immediate jeopardy conditions. However, the speculation that HCFA might have acted differently had circumstances been different does not imply that HCFA was compelled to alter its choice of remedy because some of the deficiencies were overturned on appeal.⁽⁴⁾ As Spring Hill acknowledged, the same SOM states flatly that "termination is always an option that may be imposed for any noncompliance." SOM �7556; see Spring Hill Resp. Br. at 5.⁽⁵⁾ The SOM states that termination procedures must be completed within 23 days where immediate jeopardy is found and not removed, and must be completed within six months where lack of substantial compliance is found and not corrected. Id. Spring Hill failed to identify any provision in the SOM that suggests that termination must not be made effective within a 23-day time frame or must be rescinded if immediate jeopardy is later found not to have existed when that remedy was imposed.

Spring Hill also contended that it lacked notice that it would face termination if it had not corrected all deficiencies as of May 27, 1998 when the facility was revisited. Spring Hill based this contention on the State's acceptance of the facility's plan of correction which specified that the immediate jeopardy deficiencies would be corrected by May 21, 1998 and the remaining deficiencies by June 22nd. Further, Spring Hill contended that the distinction in dates was initiated by the State survey agency having placed a June 22nd correction date for some of the deficiencies on the face of the 2567 Statement of Deficiencies. Spring Hill Br. at 33; Spring Hill Ex. 26. Spring Hill characterized the result as a "two-tiered" track, in which the correction of the immediate jeopardy deficiencies before June 2, 1998 would have resulted in a "date certain" of June 22 by which to correct the other deficiencies and achieve substantial compliance.⁽⁶⁾

The problem with this scenario is that, regardless of what may have been the intention of the surveyors at the first survey, federal remedies are imposed by HCFA.⁽⁷⁾ HCFA did not provide a "date certain" by which Spring Hill could achieve substantial compliance and avoid termination. That HCFA might have chosen to do so if the revisit had resulted in a finding that the immediate jeopardy deficiencies had been corrected is merely speculation. HCFA could as well have concluded that the remaining deficiencies were sufficiently serious in the particular circumstances involved here to justify termination, a result that is more likely given its position before us that not only is termination appropriate on the remaining deficiencies but that the CMP should be increased to $3000 per day.

Most significantly, Spring Hill never alleged that it had achieved substantial compliance. On May 21, 1998, Spring Hill sent a letter to the State survey agency alleging that the immediate jeopardy deficiencies had all been corrected and that the remaining deficiencies would all be corrected by June 22, 1998. Spring Hill Ex. 28, at 16. Although the letter states that it is intended to serve as a credible allegation of compliance, it is clear from the face of this letter that it alleged only that some corrections had been made, not that substantial compliance had been achieved as a result. While Spring Hill argued that the fact that the revisit was limited to assessing correction of the immediate jeopardy findings demonstrated that a two-tiered remedy was intended, the limited revisit can be as easily explained by the fact that Spring Hill had alleged correction only of those specific deficiencies (and the revisit was worthwhile because correction of those deficiencies could have reduced the applicable CMP).

Certainly, the State agency's acceptance of Spring Hill's plan of correction alone could not convert the termination already imposed into a termination contingent on the results of a revisit. Regardless of the remedies imposed, all facilities which are found to be out of substantial compliance are required to submit a plan for correcting deficiencies. 42 C.F.R. �488.408(f). Mere acceptance of a plan of correction does not establish substantial compliance. See, e.g., 42 C.F.R. ��488.440(h) and 488.454(a)(1), Cross Creek Health Care Center, DAB No. 1665, at 3 (1998).

It is true that the State agency could have recommended and HCFA could have imposed a termination to take effect by a date certain unless compliance had been achieved. However, that was not the remedy recommended or imposed here. Spring Hill did not identify any authority for the proposition that the mere submission of a required plan of correction could itself convert an immediate imposition of a remedy into a "date certain" remedy. This proposition would place in the hands of providers rather than the enforcement agencies the choice of how and within what time frame to respond to deficiency findings, which is clearly inconsistent with the congressional purpose in enacting nursing home enforcement legislation.

The SOM supports this conclusion by providing that even credible allegations of compliance are "intervening actions that do not postpone or delay [the] termination timetable." SOM �3016. Clearly, mere plans for future correction would therefore not suffice to delay termination. As the SOM flatly states, "only compliance can rescind a termination action." Id. Since Spring Hill never achieved and never claimed to have achieved substantial compliance, it may not demand that HCFA rescind the termination.

4. The ALJ correctly found that he was without authority to rescind a termination for which HCFA had shown an adequate legal basis.

Spring Hill argued that the ALJ erred in concluding he had no authority to rescind the termination under the regulation. Spring Hill Br. at 25-30. Spring Hill contended that the authority to review an initial determination to terminate provided by 42 C.F.R. section 498.3(b)(7) necessarily includes authority to determine whether the reasons for the termination are sufficient and to rescind the remedy if the reasons are shown to be inadequate. Spring Hill Br. at 27.

The ALJ correctly determined that he had no authority to decide whether termination was an appropriate remedy given the particular facts of this individual case. ALJ Decision at 49. The regulations specifically limit review by the ALJ (or the Board) of HCFA's selection of an appropriate remedy in a particular case from the range of alternative remedies legally available to it. 42 C.F.R. ��488.408(g)(2), 498.3(d)(11).⁽⁸⁾ Furthermore, providers may appeal a survey finding of noncompliance leading to imposition of a remedy (including termination), but not HCFA's selection of a particular remedy to address the noncompliance or HCFA's evaluation of the level of noncompliance based on the seriousness of the particular deficiencies found. See 42 C.F.R. ��488.408(g), 498.3(b)(12) and (13), 498.5(b); see also 59 Fed. Reg. 56,116, 56,121, 56,159 (Nov. 10, 1994). As explained in the preamble, the effect of these regulations is that "providers have the opportunity to appeal certifications of noncompliance leading to an enforcement remedy but, with the one exception noted below [i.e., where the level of noncompliance determines which range of CMP applies], do not have the opportunity to appeal either the level of noncompliance or the enforcement choice made by HCFA or the State." 59 Fed. Reg. at 56,178.⁽⁹⁾

Spring Hill conceded that the regulations limit review of HCFA's exercise of discretion to choose remedies but argued that these limits were not relevant because the reasons given in the notice for its termination were "falsehoods." Spring Hill Br. at 28. This argument depends on the contention, which we reject, that Spring Hill was notified that it would be terminated because of the immediate jeopardy findings, rather than as result of its lack of substantial compliance.

As noted, the regulations reserve the discretion to choose an appropriate remedy to HCFA whenever a provider is found not to be in substantial compliance. In promulgating the regulations, HCFA clearly contemplated the situation in which a provider might be terminated without immediate jeopardy deficiencies and even when immediate jeopardy findings were overturned, so long as the provider was not in substantial compliance:

[I]n the case of provider agreement terminations, even if a facility were able to successfully contest a conclusion that immediate jeopardy exists, the agency could still proceed with the termination action since the agency's authority to bring such an action is not limited to immediate jeopardy cases, but may span all noncompliant facility behavior. As has been agency policy for many years, the determination of what remedy to seek is beyond challenge in light of the government's fundamental necessity to protect the welfare of facility residents as expeditiously as possible. This is especially the case with respect to provider agreement terminations since residents may be at considerable risk even where there is no immediate jeopardy.

59 Fed. Reg. at 56,178 (emphasis added). For this reason, the regulations provide that "HCFA . . . may terminate a facility's provider agreement if a facility . . . [i]s not in substantial compliance regardless of whether or not immediate jeopardy is present." 42 C.F.R. �488.456 (b)(1).

The ALJ's description of the remaining deficiencies at Spring Hill as a "relatively widespread dereliction of duty" evokes precisely the situation envisioned in the preamble. ALJ Decision at 50. Spring Hill cited no source of authority for either the ALJ or the Board to determine that a different or lesser remedy would suffice in place of that selected by HCFA to address its assessment of the risks to residents.

5. The ALJ had sufficient authority to remand in an appropriate case but had no obligation to do so here.

Spring Hill argued that the ALJ erred by failing to remand the case to HCFA to redetermine the appropriate remedy, if any. HCFA responded that the ALJ had no authority to remand and that such orders would serve only to permit improper review of the choice of remedy and to "stymie the enforcement process." HCFA Resp. to Spring Hill Appeal at 22-24.

While the ALJ was clearly correct that he could not overturn a legal termination, that conclusion does not resolve whether the ALJ had authority to remand the matter to HCFA for it to consider whether termination remained the remedy of choice in light of the facts as developed during the hearing process. We conclude that the regulations provide the ALJ with sufficient authority to remand a case to HCFA in the situation where the factual basis of the deficiency findings as resolved at the hearing is so substantively different that the ALJ is uncertain whether HCFA would choose the same remedy under the circumstances as found. However, exercise of that authority by the ALJ is discretionary, and we find no abuse of discretion in what the ALJ did here.

The regulations specifically mention remand in two places. First, the ALJ may remand at any time before issuing a decision if requested by HCFA with the concurrence of the affected party. 42 C.F.R. �489.78. Further, where there are new issues, the ALJ may, upon request or on his own motion, in lieu of a hearing on new issues, remand the case to HCFA for consideration of the new issues and issuance of a determination, directing that the case then be returned to the ALJ, if appropriate, for new proceedings. 42 C.F.R. �498.56(d). The ALJ may consider (and remand to HCFA for consideration of) new issues, even where HCFA has not made an initial determination on them. 42 C.F.R. �498.56(a)(2). However, the ALJ may not consider any issue that "arose on or after . . . [t]he effective date of the termination of a provider agreement." 42 C.F.R. �498.56(b)(1).

Under the first provision, the ALJ is free to ask whether HCFA would request remand to reconsider the remedy in light of the significantly different findings after the hearing. The second provision might also be applicable since a "new issue" existed in this case in the sense that HCFA had not separately addressed in an initial determination the appropriate remedy for the totality of the deficiencies as demonstrated at the hearing and found by the ALJ, as distinct from the constellation of deficiencies reported by the surveyors.⁽¹⁰⁾

Even without a specific provision on point, we conclude that it would be within the authority of the ALJ to inquire "fully into all of the matters at issue" for the ALJ to seek to ascertain through remand or otherwise whether the position of the agency on the appropriate remedy has been altered as a result of the facts developed during the appeal process. See 42 C.F.R. �498.60(b)(1). Such a remand does not equate to reviewing the choice of remedy.

Further, we do not believe that enforcement would be stymied by the use of such remand orders in those instances in which the facts developed before the ALJ are so discontinuous with the findings on which HCFA's initial determination was based as to cause the ALJ to question whether the determination is still supported by HCFA. The ALJ is free to retain jurisdiction and to make efficient arrangements for any remaining hearing process required after HCFA's reconsideration. Nothing requires HCFA to conduct a lengthy process (and presumably, having been a party in the appeal process, HCFA would already have before it all relevant facts and the findings of the ALJ). Should the choice of remedy change, the result might be a settlement or withdrawal of the appeal or a narrowing of the issues remaining to litigate. If the same remedy is still selected, then any claim that HCFA's choice of remedy was not based on the facts as developed on appeal would be foreclosed. Given these considerations, a remand may in some circumstances be the most expeditious means to prompt enforcement of an appropriate remedy.

However, while we conclude that Spring Hill is correct that the ALJ had sufficient authority to remand, we disagree with Spring Hill's conclusion that the ALJ was obligated to remand. Spring Hill contended that the ALJ's failure to remand amounted to a usurpation of HCFA's discretion to determine the appropriate remedy. If the ALJ had no authority to review the choice of the remedy, according to Spring Hill, it follows that he could neither overrule nor uphold it. Spring Hill Br. at 40. Relying on SEC v. Chenery Corp., 318 U.S. 80 (1943), Spring Hill argued that the ALJ's decision not to remand amounted to upholding the termination based on an unfounded presumption about what HCFA might have done in exercising discretion when faced with a set of facts about which HCFA never in fact took action. Further, Spring Hill argued that HCFA had never exercised its discretion in the first instance because the regulations state that HCFA will either impose temporary management or terminate a provider agreement or both whenever one or more deficiencies are found that constitute immediate jeopardy. 42 C.F.R. �488.408(e)(2)(i). Thus, Spring Hill argued that HCFA exercised no effective discretion to choose the remedy because its response to immediate jeopardy was mandatory and it never reconsidered when facts were proven showing that no immediate jeopardy existed. Spring Hill Br. at 37.

In its presentation, Spring Hill overlooked the fact that, while requiring at a minimum that a termination or temporary management remedy be imposed in cases of immediate jeopardy, the regulations do not require termination in cases of immediate jeopardy and permit additional remedies (such as CMPs), so that clearly the choice of remedies here did involve some exercise of discretion. Further, termination is discretionary with HCFA whenever a facility is not in substantial compliance. Section 1866(b)(2)(A) of the Act; 42 C.F.R. ��488.408(c)(3), (d)(3), and (e)(2)(ii).

We find nothing in the regulations that mandates remand whenever immediate jeopardy findings are overturned. Clearly, HCFA did exercise discretion within its authority in the first instance by selecting among the available remedies based on the deficiencies found at the

survey. The fact that HCFA was constrained to include termination or temporary management among the remedies selected does not mean that HCFA did not exercise discretion. If HCFA believed that the evidence presented at the hearing altered its assessment of the appropriate remedy, it had regulatory mechanisms available to request a remand to reconsider or to reopen on its own initiative. See 42 C.F.R. ��498.78, 498.30. In the absence of a request to remand should he reverse the immediate jeopardy findings, the ALJ could reasonably assume that HCFA continued to believe that the remedy imposed was appropriate to address the deficiencies found in the survey and sustained by the ALJ, despite the reversal of those survey deficiencies that underlay the immediate jeopardy finding. It is clear that this assumption was correct in the present case given that HCFA appealed the ALJ's factual findings and continued to strongly defend the termination remedy before us. Thus, HCFA asserted that it "did not elect to let the facility continue to participate, because numerous deficiencies revealed during the annual survey of May 4-7 posed substantial risks to residents . . . [and the] admitted failures to conduct individualized, comprehensive assessments and to write care plans were, by themselves, time bombs for the residents." HCFA Resp. Br. at 14.

Furthermore, Spring Hill did not demonstrate that it ever sought to have the ALJ remand the matter to HCFA. Although Spring Hill presented the remand issue as if only the issuance of the ALJ's decision raised the question of how to resolve the appropriate remedy in light of the altered factual findings, this picture omits the fact that Spring Hill and HCFA were present at the hearing in which the facts were presented. While Spring Hill plainly sought to have the termination overturned outright, it could also have requested that, if the ALJ found a basis to impose a remedy, he remand to HCFA to reconsider the appropriate remedy. Given that neither party sought a remand from the ALJ and given the position taken by HCFA in this case, as well as the clear basis in the record to find that HCFA had authority to terminate Spring Hill, we find no error in the decision of the ALJ to uphold the remedy without remanding.

6. We find that HCFA's procedures in deciding what remedies to impose on Spring Hill are not subject to review.

Spring Hill attacked the procedures followed by the State surveyors and by HCFA in the course of terminating Spring Hill. Spring Hill Br. at 43-50. Specifically, Spring Hill contended that the ALJ erred in sustaining a termination that was imposed in violation of procedures set out in the regulations and the SOM (Appendix P) which constrained HCFA's discretion. Id.⁽¹¹⁾ Further, Spring Hill objected that the SOM set out standard procedures that HCFA routinely applied to other providers and that the termination of Spring Hill absent immediate jeopardy was inconsistent with the agency's customary practice. Id. at 30-35. In this section, we conclude that Spring Hill did not show that HCFA violated applicable procedures and that, in any case, the ALJ correctly found that HCFA's procedures are not subject to review. In the next section, we address Spring Hill's claim that its treatment by HCFA was somehow disparate.

The regulations set out factors to be considered in selecting remedies, beginning with the seriousness of the deficiencies found. The SOM organizes the evaluation of the seriousness of deficiency findings by levels of severity and scope and identifies remedies to be applied accordingly. SOM �7400 and Appendix P, at Part V (June 1995). Spring Hill argued that the highest category of deficiency upheld by the ALJ would only have subjected it normally (under the guidelines in the SOM) to remedies in category 2 (which include denial of payment remedies and CMPs of up to $3,000 per day). Hence, it argued that even if HCFA had a legal basis to terminate whenever a provider was found not in substantial compliance, HCFA's established policies constrained its discretion to do so. This argument overlooked the language of the very manual section on which Spring Hill relied, which provides for a case-by-case consideration of the importance of every deficiency within the context of a specific facility:

OBRA 1987 mandated the elimination of the preexisting hierarchical participation requirements and their replacement with a system capable of detecting and responding to deficiencies with any participation requirement. Therefore, the new nursing home enforcement protocol/procedures are based on the premise that all requirements must be met and enforced. These requirements take on greater or lesser significance depending on the specific circumstances and resident outcomes in each facility.

SOM �7400B. In addition, the manual section reaffirms, in discussing the categories of remedies, that "[t]ermination may be imposed by the State or HCFA at any time when appropriate." SOM �7400E. We find nothing in this manual section that precludes HCFA from applying termination as a remedy where deficiencies are upheld that fall within category 2. Furthermore, the regulations that assign alternative remedies to categories 1-3 specifically state that these remedies are to be imposed "instead of, or in addition, to termination of the provider agreement." 42 C.F.R. �488.408(b).

Spring Hill made several other procedural complaints, none of which we find persuasive. It claimed to lack advance notice of the "reasons for, and effective date of the termination" because the reasons of which it was notified, i.e., immediate jeopardy conditions, were erroneous. Spring Hill Br. at 46; 42 C.F.R. �489.53(c). This argument cannot stand in light of our conclusion above that Spring Hill was notified that the basis for its termination was a survey which found it not in substantial compliance, not just the immediate jeopardy findings. Further, Spring Hill cited various policy statements indicating that a fast-track termination will be extended if a facility removes immediate jeopardy deficiencies. Spring Hill Br. at 46-47 and cites therein. In particular, Spring Hill claimed that the preamble to the enforcement regulations established that even where the immediate jeopardy findings are removed by appeal rather than corrective action, the "remedy would not be imposed." 59 Fed. Reg. at 56,178 (Nov. 10, 1994).

The language quoted from the preamble, however, is taken out of context. HCFA was addressing the effect of informal dispute resolution on the immediate imposition of temporary management. HCFA recognized that a later ruling in such a proceeding that the agency had erred in finding immediate jeopardy would have little effect, since the temporary management would already have been instituted and the facility have either achieved substantial compliance or been terminated. Id. Nevertheless, HCFA rejected suggestions to provide prior hearings even in such cases because of the overriding need to protect residents. Id. Plainly, this does not conflict with our earlier conclusion that the termination is not invalidated simply because the later-overturned immediate jeopardy findings caused the termination to be applied on a faster track than might otherwise have been used.

Nothing cited by Spring Hill mandates that a noncompliant facility must always be provided with an opportunity to correct before a remedy may be applied. The statute and regulations permit HCFA to delay terminating the provider agreements of noncompliant facilities for up to six months after a survey first finds them out of substantial compliance, if the deficiencies do not pose immediate jeopardy. Section 1819(h)(2)(C); 42 C.F.R. �488.412(a); see also 42 C.F.R. �488.450. They do not require that facilities be granted six months to make corrections before complying. In fact, that option is permissible only on several conditions, including the state survey agency finding alternative remedies "more appropriate to impose" than termination (which it did not do here). 42 C.F.R. �488.412(a). If the required conditions for continued participation are not present or correction is not achieved, termination is then required. 42 C.F.R. �488.12(b) and (d).

Ultimately, Spring Hill's allegations about HCFA's failure to follow normal procedures amount to another way of asserting that the wrong remedy was imposed on it or the remedy was imposed on it too quickly, because the immediate jeopardy findings were wrong. Spring Hill continued to insist that, because it believes that a different remedy or time frame would have been chosen if immediate jeopardy were not mistakenly found by the surveyors, the ALJ and this Board must override the application of the remedies and rescind the termination. But in the final analysis, as noted above, the regulations expressly provide that HCFA may terminate a provider agreement if a facility is not in substantial compliance with the requirements of participation, "regardless of whether or not immediate jeopardy is present . . . ." 42 C.F.R. �488.456(b)(1); see also 42 C.F.R. �489.53(a).⁽¹²⁾ These regulations are based on the statutory provision at section 1866(b)(2) that permits the Secretary to terminate an agreement after determining that the "provider fails to comply substantially" with program requirements. See also 1819(h)(2)(A) and (h)(5). Thus, we conclude that Spring Hill's position is without merit.

7. We reject Spring Hill's claim of inequitable treatment.

As noted above, Spring Hill argued that, in terminating it despite findings that no immediate jeopardy existed, HCFA treated it unfairly because other providers with deficiencies of similar seriousness were not subjected to immediate termination. Spring Hill presented as new evidence on appeal to us a study for which it contracted with an economist and researcher, Charles McKeen Cowles, to show that fast-track termination of facilities whose deficiencies did not pose immediate jeopardy was contrary to HCFA's established custom. Spring Hill Motion to Admit Evidence at 3, and Att. 1 (Mr. Cowles' resume) to Motion Ex. 1 (Mr. Cowles's Affidavit). We ruled that the evidence would be admitted and permitted HCFA to respond to its merits. Rulings on Motion to Accept New Evidence and Other Matters (Apr. 13, 1999).

Mr. Cowles reported that he had reviewed data in a HCFA database recording information on all nursing homes terminated involuntarily since the current enforcement regime was initiated in 1995. Mr. Cowles's Affidavit at 3. From his review of the reasons for termination coded into this database, he found that 85 facilities were involuntarily terminated. Id. at 4. He further reviewed the survey deficiency and safety code histories of these facilities and reported that 71 of them had deficiencies classified at level G or above. Id. Of the remaining 14 terminated with only deficiencies lower than G in the most recent annual survey, six had deficiencies at a higher level in surveys performed in response to complaints and the other eight had a pattern of multiple deficiencies in every prior survey. Id. at 5. From these data, he concluded that Spring Hill was unique in being terminated with a compliance record in which no deficiencies existed above the G level and no prior surveys found deficiencies. Id.

Although HCFA attacked Mr. Cowles's credentials to evaluate the reasons for termination of nursing homes, it did not dispute the accuracy of the statistical data reported. See HCFA Response to DAB Order. However, even assuming the accuracy of the information reported, its relevance is limited, since HCFA's exercise of discretion to select a remedy to impose on this nursing home given its lack of substantial compliance is not governed by the enforcement choices made in other cases. This is so in part precisely because the nature and pattern of problems are unique in every case. The regulations clearly do not contemplate a mechanical application of a formula based solely on the rating of the highest deficiency on a grid. HCFA has indicated in the regulations and in the preamble explaining them that it would consider, "among other factors," the nature of and relationship among the deficiencies found and would reserve the ability to consider what matters were appropriate in a particular situation. See 42 C.F.R. ��488.404, 488.408. Mr. Cowles's report does not include any details about, for example, the number or nature of or the interrelationship among deficiencies found in particular instances. The bare information that he considered about the compliance history of other terminated facilities falls far short of establishing whether or not any of them were "similarly-situated" to Spring Hill.

In any event, as we have found in other programs in which the federal agency is charged with protecting vulnerable recipients from incompetent or otherwise inappropriate providers, selective enforcement by the agency, including any alleged failure to take equally harsh steps against other similarly noncompliant service providers, may not itself be made to constitute a defense or a bar to future enforcement actions. See, e.g., Rural Day Care Ass'n, DAB No. 1489, at 94-95 (1994), aff'd Rural Day Care Ass'n v. Shalala, Civ. No. 2:94-CV-40-BO (E.D.N.C. 1995). Thus, in the context of the Head Start program for providing services to preschool children, we pointed out that to hold --

that by not terminating some grantees ACF [the Administration for Children and Families] set a standard that any violations committed by those grantees were immaterial in any context would make a mockery of the legal obligations imposed on grantees. . . . ACF cannot be deprived of either its power or its responsibility to monitor the Head Start program and enforce its requirements simply because ACF officials decided not to act in some instances or even if they neglected to act in some cases which might also have been meritorious. To conclude otherwise would require the federal government to "throw good money after bad" and to continue indefinitely to fund ineffective, incompetent or non-complying programs because it had once begun to do so. . . . If the termination of a grantee is justified by its failings, it is hardly a defense that someone else should be terminated first.

Id. at 95. The same reasoning applies to any alleged previous laxity that HCFA may have shown in not terminating other nursing homes, even if, as Spring Hill suggested, they had deficiencies analogous to those found at its own facility. As HCFA contended, nothing in its prior enforcement choices can require it to continue to make payments to a nursing home which has been found to have engaged in deficient practices sufficient to put its residents at risk of more than minimal harm as Spring Hill has been found to have done. HCFA Resp. to DAB Order at 5.

We therefore reject Spring Hill's argument that the termination should be rescinded based on its allegations of inequitable treatment.

8. We reject challenges by both parties to the ALJ's factual findings concerning the deficiencies.

Spring Hill objected to the basis for the CMP sustained by the ALJ on the ground that his factual findings in regard to tags 272, 273, 274, and 279 were not supported by substantial evidence. Spring Hill Br. at 51-61. Spring Hill described these four tags as involving an alleged failure by Spring Hill to make assessments and care plans for residents on federally-prescribed forms and argued that HCFA failed to show that any such failure created a potential for more than minimal harm. Further, Spring Hill argued that the ALJ improperly presumed the existence of a potential for more than minimal harm, and that, since such potential was an issue of fact that constituted part of HCFA's prima facie case, presuming its existence wrongly placed the burden of proving an element of HCFA's prima facie case on Spring Hill.

These tags are based on participation requirements for comprehensive resident assessments which require that, within specified time frames (basically within 14 days of new admissions or significant changes in condition, and at least once a year), the facility must use a State-specified resident assessment instrument to evaluate at least eighteen specific areas of functioning. 42 C.F.R. �483.20(b). The facility must then maintain these assessments for at least 15 months and use them to develop plans of care for the resident. 42 C.F.R. �483.20(d). These regulations reflect the statutory obligation for facilities to perform "a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity" using a State-specified instrument and a minimum data set (MDS) to be defined in the Secretary's regulations. Sections 1819(b)(3) and 1919(b)(3) of the Social Security Act.

The Statement of Deficiencies indicated that files for sixteen residents (all of whom had been in the facility for more than fourteen days) were reviewed and found to lack at least some elements of complete assessments. HCFA Ex. 3, at 19-27. The ALJ found that Spring Hill did not dispute the underlying facts, asserting only that no potential for more than minimal harm had been shown. ALJ Decision at 42. The ALJ rejected Spring Hill's rebuttal evidence that the assessments it did perform for these residents were "adequate and appropriate" as failing to show that the residents received the assessments that the law requires. ALJ Decision at 43.

Despite Spring Hill's characterization, the deficiency findings were not based on a simple failure to use particular forms. Spring Hill did not present the missing elements of the assessments in some other format. Although Spring Hill argued that some assessments or care plans were located outside the residents' treatment records or were stored in computer files that had not been printed out, no supporting documentation to establish this claim was presented at the hearing. The ALJ correctly found that the surveyors' assertion that the required assessments were not in the records was enough to shift the burden to Spring Hill to show that they nevertheless had been completed, and that Spring Hill failed to carry this burden. ALJ Decision at 43-45.

Spring Hill asserted, however, that HCFA was also required to prove a "causal nexus between the failure to use the prescribed federal forms and potential for harm to the sixteen targeted residents here." Spring Hill Br. at 54. Spring Hill charged that HCFA had failed to prove this element of its prima facie case and that the ALJ merely assumed the existence of the requisite potential for harm. Spring Hill alleged that the ALJ "presumed" the potential for harm by concluding, improperly in Spring Hill's view, that the assessment requirement implied a conclusion by Congress that failure to perform such assessments could threaten harm to residents. Spring Hill Br. at 54.

The ALJ's conclusion that the deficiencies found at Spring Hill threatened more than minimal harm was not based merely on the purpose implied in the statutory requirement for thorough assessments. He did recognize that Congress emphasized the need for assessments, because the care provided might not otherwise be orderly and systematic in addressing the residents' needs. ALJ Decision at 42-43. As we discuss below, the statutory requirement is, indeed, in itself, evidence that some significant harm may be anticipated from the failure to comply, unless the concerns that Congress addressed by this requirement were likely to have been met in some other manner by the facility in the circumstances presented. But in this case, the potential for more than minimal harm was supported by evidence on the record in the testimony of the surveyors. Thus, Ms. Rebstock specifically testified, after talking to the director of nursing at the facility who did not know where the assessments were, that she concluded that their absence presented a risk of harm for "any resident with any kind of significant problem." Tr. at 144. She explained that the assessments are intended to follow "a logical sequence" in which the collection of an MDS triggers in-depth evaluations of a resident's problem areas, without which "you cannot have a meaningful care plan or treatment plan to meet their needs." Id. The surveyors had reviewed medical records for 16 of 86 residents and found that all 16 were lacking elements required for a complete assessment. HCFA Ex. 3, at 19-27. Some residents had no MDS at all; some had MDS documentation that showed a need for further assessments that were not completed; some had no comprehensive care plans to address their needs. Id.

We therefore disagree with Spring Hill's assertion that the ALJ created an unfavorable presumption of harm or shifted the burden of proof on a threshold issue improperly from HCFA to the provider. Instead, he correctly found that HCFA had made a prima facie case, and in weighing the conflicting evidence, he concluded that Spring Hill failed to rebut the evidence presented in support of these deficiency findings. ALJ Decision at 40, 42-44. We are not called upon to reassess the evidence ab initio on this factual question, but only to ascertain whether there is substantial evidence on the record as a whole to support the ALJ's assessment. We find that the record clearly suffices to support the ALJ's conclusion. For this reason, we find that the case of N.L.R.B. v. Fluor Daniel, 161 F.3d 953 (6th Cir. 1998), discussed at length in Spring Hill's brief, is not relevant. Spring Hill Br. at 52.

Spring Hill also complained that the assessment of more than minimal risk was not sufficiently tied to proof of actual risk to the specific residents named. However, the essential nature of the deficiencies involved in part dictates that it is unlikely that the precise impact on a particular resident can be specified. That is, the problem with failing to do complete assessments by either not gathering the basic data that would trigger the need for in-depth assessments or not performing the follow-up assessment is that the facility fails to create the record that would document what needs those residents had that may have gone unmet or inadequately met.

It is not a matter of simply presuming that every participation requirement had a purpose intended by Congress to be met so that every deficiency must by definition present some risk. Rather, the ALJ found that the nature of the deficiencies here presented a particular risk of the kind contemplated by Congress, in exposing all the residents at the facility to risk of their needs going undiscovered because of the failure to institute and follow a systematic needs assessment program. See ALJ Decision at 42-45. Furthermore, the ALJ correctly concluded that evidence that the facility did assess some needs of some residents, even in some cases quite intensively, does not alter the risk presented by the absence of systematic documentation of needs assessments. See ALJ Decision at 43.

Furthermore, Spring Hill failed to present any evidence whatsoever to rebut HCFA's presentation of surveyors' findings regarding other deficiencies. ALJ Decision at 40-42, 45-46. These unrebutted deficiencies include:

(1) Tag 203 (three residents were discharged or transferred without adequate notice);

(2) Tag 205 (in two cases, residents who were transferred were not given required information about whether a bed would remain available for them to return);

(3) Tag 246 (a resident with a seizure disorder was not provided needed help with positioning and physical support);

(4) Tag 311 (residents were not provided with recommended restorative ambulation therapy nor, in one case, with a required hand splint);

(5) Tag 323 (residents' beds had unlocked wheels that presented a safety hazard); and

(6) Tag 500 (residents were sent to an outside dialysis provider without a required written agreement to cover the care to be provided).⁽¹³⁾

An additional deficiency was cited under Tag 490 based on the failure of the facility administrator to implement systems to meet the needs of residents. The factual basis of this deficiency was derived from the failure of the facility, after nine months in operation, to have recognized and corrected its inadequacies in the areas of assessments and care plans, notices to residents, and agreements with outside suppliers. HCFA Ex. 3, at 35; ALJ Decision 46-47. Before the ALJ, Spring Hill offered some argument in opposition to this deficiency finding but did not deny the factual underpinnings. We agree with the ALJ that Spring Hill did not effectively rebut HCFA's case against it as to this deficiency.

These deficiencies were all cited at scope and severity levels indicating at least a potential for more than minimal harm and would in themselves suffice to support the conclusion that Spring Hill was not in substantial compliance with participation requirements. See HCFA Ex. 3. Thus, the deficiencies as to which Spring Hill offered no evidence before the ALJ and no substantive argument on appeal would themselves provide a basis for the remedies imposed on Spring Hill.

We turn next to HCFA's factual arguments. HCFA challenged the ALJ's finding that Spring Hill was in substantial compliance with Tag 157 in relation to its treatment of a resident who experienced weight loss which the surveyors concluded was not properly reported to her physician. HCFA Br. at 16; see 42 C.F.R. �483.10(b)(11). HCFA argued that Spring Hill had presented "no evidence" regarding this finding. HCFA Br. at 16. This argument misrepresents the record. On appeal, HCFA focussed almost entirely on the question of whether the resident's physician was notified of her weight as recorded on a particular date; and HCFA treated as entirely irrelevant the extensive evidence cited by the ALJ of monitoring, interventions, and physician involvement related to the nutritional status of the resident. See ALJ Decision at 15-19.

The ALJ correctly concluded that, because the regulations do not specify how the requirement to notify a physician of a resident's deterioration must be implemented, he had to consider the course of the facility's treatment of the resident in consultation with the physician to determine if the actions alleged in the 2567 would, if proved, constitute a failure to comply with this requirement. Id. at 17. The allegations in the 2567 also covered a wider set of dates during two periods when the resident was in the facility. HCFA Ex. 3, at 4-6. The ALJ found that the weight loss recorded on April 8th was part of an ongoing decline resulting from severe agitation and dementia which had been observed by the physician and as to which the facility and the physician had been attempting numerous assessments and interventions in an attempt to maintain nutrition and hydration. ALJ Decision at 18-19. Based on the resident's treatment records and the testimony of the physician who treated the resident during one of her stays in the nursing home, the ALJ concluded that there was "no failure to notify" her physicians and they were "aware of the resident's nutrition status and her weight loss." ALJ Decision at 18. It is not our role to substitute our evaluation of the evidence for that of the ALJ, but only to determine whether his factual findings are supported by substantial evidence in the record. We conclude that, regardless of whether a specific notification of the weight recorded on April 8th was made to this resident's physician, there was substantial evidence in the record to support the ALJ's conclusion that the facility did not fail to consult with the resident's physician about a significant change in her health status as required by the cited regulation. See 42 C.F.R. �483.10(b)(11).

In regard to deficiency findings under Tag 224 during the revisit survey, HCFA attacked what it characterized as the ALJ's conclusion that facility nurses had no obligation to question the orders of private physicians in the case of a resident who was ultimately hospitalized for abdominal symptoms. HCFA Br. at 21. This issue involved Resident 2 who suffered from an intestinal disorder. The surveyors found that Spring Hill's staff failed to adequately address the resident's bowel obstruction. HCFA Ex. 10, at 11-12. The testimony of the nurse surveyor (Mr. Fuller) presented by HCFA about the diagnosis and treatment of this resident, in support of the findings in the 2567, was challenged by the testimony of two physicians presented by Spring Hill, along with the notes of nursing care provided to the resident. Compare Tr. at 281-325 (Fuller) and HCFA Ex. 10, at 8-12 with Tr. at 604-662 (Dr. McGrew) and 804-69 (Dr. Robinson) and Spring Hill Ex. 22. The ALJ found the evidence presented by Spring Hill credible in establishing that nothing in the physician's diagnosis and treatment of the resident was "objectively wrong" in a way that demanded Spring Hill's staff to "second guess" it. ALJ Decision at 25-28. The ALJ also rejected HCFA's formulation of the applicable standard to evaluate whether nursing staff improperly abdicated professional responsibility for challenging medical treatment decisions of a physician. Id. For the reasons discussed below, we find that the ALJ's factual findings regarding this patient are supported by substantial evidence on the record and we conclude that the ALJ applied the proper standard.

The ALJ reviewed the patient's records and found extensive documentation of contacts with the doctor and assessments by the facility staff. ALJ Decision at 24; Spring Hill Ex. 22. The resident's treating physician, Dr. McGrew, testified at the hearing that he did not believe that the resident had a bowel obstruction based on the symptoms that were apparent at the time that he prescribed medication (Lomotil, a bowel paralytic) which the surveyors felt was inappropriate. Compare Tr. at 640-646 with HCFA Ex. 10, at 8-12. Dr. McGrew testified that the nursing staff was in regular contact with him concerning the resident's care and treated the resident appropriately. Tr. at 605-608. In its briefing, HCFA misstated or ignored some portions of the record. For example, HCFA described an abdominal x-ray of May 22, 1998 as indicating a "probable" bowel obstruction where the actual report was "worrisome" for small bowel obstruction but not determinative. Compare HCFA Br. at 21 with Spring Hill Ex. 22, at 45, 190 and Tr. at 844-848. HCFA did not effectively address medical testimony presented by Spring Hill to the effect that the x-ray results were not diagnostic for bowel obstruction in light of the full clinical picture at the time of the contested treatment. Tr. at 645-46. Further, HCFA did not effectively counter evidence that the treatment goal agreed to by the family and physicians for the resident in question (who was also severely demented) was palliative comfort care. See Tr. at 648-4. Consequently, the medical testimony presented by Spring Hill was that the treatment provided would have been the same even had a bowel obstruction been diagnosed, since aggressive intervention had been ruled out and the medication used would have tended to made the resident more comfortable. Tr. at 610-11, 644-647. After careful review of the record below, we find that substantial evidence supports the ALJ's factual findings concerning the treatment of this patient.

Contrary to HCFA's argument, the ALJ did not conclude that nursing staff have no responsibility to exercise professional judgment in questioning physicians' instructions that appear to jeopardize a patient. Compare HCFA Br. at 25-26 with ALJ Decision at 25. He clearly distinguished the situation as presented at the hearing from cases where nurses could determine, based on their professional training and expertise, that the treatment ordered was contraindicated by the patient's medical signs or that medication was prescribed in an erroneous dosage. ALJ Decision at 25. Instead, what the ALJ found here was that the medical signs were equivocal and required a subjective decision by the physician to determine diagnosis, and that the care ordered by the physician followed from the diagnosis which he made (gastroenteritis, possibly resulting from antibiotics). Id. The ALJ did not suggest that physicians' actions are beyond challenge by nurses but only that nurses are not required to challenge those judgments that physicians make which are "uniquely within the skill and training of the physician." ALJ Decision at 25. Essentially, HCFA simply failed to demonstrate that the care ordered by the physician was incompetent or jeopardized the patient, and therefore HCFA did not establish any violation of a nursing standard to question incompetent or dangerous practice.

HCFA cited to the American Nurses Association (ANA) Code for Nurses as a standard which required the nursing staff to object to the treatment of this resident. The ANA Code does not state that nurses must question all judgments of physicians based on ambiguous medical evidence, but rather that nurses must "safeguard the health and safety of the client" by taking "appropriate action regarding any instances of incompetent, unethical, or illegal practice by any member of the health care team . . . or any actions on the part of others that places the rights or best interests of the client in jeopardy." HCFA Ex. 25, at 5. The ALJ interpreted this standard as requiring a challenge to only those decisions that a professional with the training and expertise of a nurse would be able to evaluate as incompetent and jeopardizing a patient, but not every subjective judgment of a physician. As an issue of fact, he found that a "preponderance of the evidence does not support an assertion that Dr. McGrew made an incorrect diagnosis" and that the "prescription was reasonable assuming Dr. McGrew's diagnosis to be reasonable." ALJ Decision at 27. On this basis, the ALJ rejected HCFA's recasting of the dispute as involving a failure to challenge prescription of a contraindicated drug, because he found that the drug prescribed was contraindicated only if the diagnosis had been bowel obstruction. Id. at 26-27. Given those facts, he concluded that, applying the standard as interpreted above, nothing in the situation presented to the nursing staff required it to challenge Dr. McGrew's instructions. Having found that the factual findings are supported by substantial evidence, we find no error in the ALJ's interpretation of the applicable standard.

HCFA argued that the ALJ's interpretation would make "nursing homes that follow patently dangerous orders from private physicians . . . immune from sanction." HCFA Br. at 27. HCFA argued that this conclusion was in conflict with our decision in Cross Creek that a physician's order alone does not absolve a facility from its independent responsibility to provide care in compliance with participation requirements. Cross Creek Health Care Center, DAB 1665, at 11. Cross Creek involved a regulation on patient restraints that explicitly imposed on the facility a responsibility to maintain its residents free from restraints "imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms." 42 C.F.R. �483.13(a). The Board agreed with the ALJ in Cross Creek that a doctor's order for a restraint is persuasive evidence of an expert's opinion on medical necessity. DAB 1665, at 11. However, the Board also held that this evidence alone did not absolve the facility from its own independent obligation to be certain that its use of restraints on the resident is not imposed for purposes barred by the regulations (such as for its own convenience) and to fulfill its other regulatory responsibilities which are not directly applicable to the doctor (such as consulting with the resident or surrogate and respecting the resident's right to refuse medical treatment). Id.

The holding in Cross Creek is entirely consistent with our analysis here and the ALJ Decision in this case. The facility had no regulatory obligation to dispute the doctor's medical judgment in resolving an ambiguous set of medical indicators to arrive at a diagnosis or to challenge a treatment order that was not on its face inappropriate for the diagnosis. A nursing facility does have an independent obligation to plan for and provide services to meet the medical needs of each resident to help each resident maintain the highest practicable physical well-being. Section 1819(b)(2) of the Social Security Act. In the case of the resident at issue here, substantial evidence in the record supports the ALJ's determination that the doctor's diagnosis and treatment were not inconsistent with the plan of care arrived at for this resident, in consultation with the family as surrogate decision-makers, to seek only to maintain physical comfort because aggressive treatment was undesirable. To impose a requirement that the facility override the diagnostic judgment of the resident's doctor and the wishes of the family in such a situation would fly in the face of the regulatory provisions requiring consultation with residents or their surrogates about all treatment decisions and guaranteeing the right to refuse undesired medical treatment. 42 C.F.R. �483.10(b)(4) and (d)(2).

HCFA argued that orders for supportive care only do not excuse a facility from questioning a doctor's order which is "affirmatively harmful." HCFA Reply Br. at 6-7. However, this argument simply continued to insist on the assumption that the diagnosis reached was patently wrong and the treatment ordered harmful on its face. We have found that the ALJ had substantial evidence to support his conclusion to the contrary. See ALJ Decision at 25-30. The treatment record was reviewed by a second physician, Dr. Robinson, who strongly corroborated the treating physician's testimony that the symptoms displayed by the resident were consistent with the diagnosis, the treatment given was appropriate in light of the care plan, and the facility staff had no basis to question the diagnosis or treatment. Tr. at 804-69. HCFA offered no conflicting physician testimony.

We conclude that the ALJ's factual findings were supported by substantial evidence on the record as a whole.

9. We uphold the amount of the CMP imposed by the ALJ.

Having found that no immediate jeopardy existed, the ALJ had to revisit the amount of the CMP, originally set at $10,000 per day, since the regulations generally permit a CMP greater than $3050 per day only in cases of immediate jeopardy. 42 C.F.R. �488.438(a)(1). Having found a basis for HCFA to impose remedies, the ALJ could not review the decision to impose a CMP or reduce the CMP to zero, but was required to impose a CMP between $50 and $3000 per day. 42 C.F.R. �488.438(e)(1) and (2). In determining what amount within that range was reasonable, the ALJ was obliged to consider only the same regulatory factors that HCFA may consider in setting a CMP amount. 42 C.F.R. �488.438(e)(3).

In his decision, the ALJ stated that he considered the appropriate factors. ALJ Decision at 50. In particular, he relied on evidence of the seriousness of the deficiencies found and on the absence of past problems with Spring Hill's performance. Id. He found that the deficiencies that he had sustained were "relatively serious in nature," especially the lack of complete assessments and plans of care, which had been shown to be a "necessary prerequisite" for providing appropriate care to individual residents.

As a factual matter, HCFA disputed the ALJ's description of Spring Hill's prior compliance record as "unblemished." HCFA Reply Br. at 7-9; ALJ Decision at 50. The ALJ based this conclusion on the undisputed facts that Spring Hill had no evidence of deficiencies when it was first certified about eight months before the first survey at issue here and that no intervening findings of deficiencies were on the record. HCFA hotly disputed that passing an initial certification survey suffices to show a "wonderful history of compliance." HCFA Reply Br. at 8. Further, HCFA argued that the only evidence as to Spring Hill's prior performance was the evidence in the deficiency findings to the effect that assessments and care plans were not properly done from the initiation of operations, because the administrator was unaware of the requirements. Id.

As a matter of law, HCFA argued that the absence of prior deficiency findings is not a permissible reason for leniency, since the listed factors include only a history of "noncompliance." HCFA Br. at 30, citing 42 C.F.R. �488.438(f)(1). In addition, HCFA argued that the ALJ should have considered Spring Hill's "culpability" as a factor to increase the amount. HCFA Br. at 30.⁽¹⁴⁾ Based on these arguments, HCFA sought to have the CMP increased to the maximum amount permissible ($3000 per day). HCFA Br. at 31.

As we read the ALJ Decision, it is not in conflict with the points that HCFA presented. To say that no prior blemish appeared on Spring Hill's record does not amount to a claim that its prior history was "wonderful," but only a conclusion that nothing recorded about its previous performance presented additional concerns beyond those raised by the present deficiencies. The ALJ did not indicate that he reduced the CMP he would otherwise have imposed by treating the absence of prior deficiency findings as mitigating, but only that his "determination to impose a substantial civil money penalty" was "tempered in some respect." ALJ Decision at 50. This comment is also consistent with simply recognizing that there was no history of noncompliance which would have demanded a higher penalty amount. While the ALJ made no explicit finding about culpability, he stated that the evidence showed a "relatively widespread dereliction of duty . . . which put at risk the health and well being" of several residents. ALJ Decision at 50. Thus, he considered the responsibility of the provider in selecting the amount of the CMP.

Spring Hill argued that no CMP could properly be imposed on it for some of the same reasons that it argued that the termination could not be sustained. Specifically, Spring Hill contended that HCFA's normal procedures would have provided an opportunity to correct its deficiencies before any CMP was imposed absent immediate jeopardy and that its treatment in this regard too was unfairly disparate from that of other providers. Spring Hill Resp. Br. at 54. We reject these arguments for the same reasons we found them without merit in regard to the termination.

Spring Hill also contended that no CMP should be imposed based on the deficiencies upheld by the ALJ because it believed it had until June 22, 1998 to correct those deficiencies. This argument ignores section 488.440(a) which provides that a CMP may start as early as the date the facility was first out of compliance.

Spring Hill also cited to guidance issued on December 16, 1996 from HCFA to its Regional Offices ending a moratorium on certain CMPs and indicating that CMPs are "most effective" for more serious instances of noncompliance. Id. at 55-56, and attachment 3. Even if HCFA concluded that CMPs were most effective in certain types of cases, nothing in the guidance bars HCFA from concluding that a CMP is appropriate in a particular situation. Furthermore, the ALJ found that the deficiencies here were indeed "relatively serious." ALJ Decision at 50.⁽¹⁵⁾ Spring Hill pointed to no basis for us to revisit HCFA's conclusion that a CMP was appropriate in this case.

As far as HCFA's objection to the amount of the CMP imposed by the ALJ, no scientific formula can be applied to ascertain the precise amount of a CMP that will serve the remedial purposes of the Act in a particular case. We disagree with HCFA's assertion that a CMP of $1000 per day is a "slap on the wrist," and consider it a significant penalty amount, in light of the range of CMPs applicable in non-immediate jeopardy cases. Cf. HCFA Br. at 31. In arriving at it, the ALJ considered the appropriate factors and made findings which are supported by substantial evidence in the record as whole. We will not second-guess the amount at which he arrived. We find that $1000 per day is a reasonable CMP and should be imposed for the period set out in HCFA's notice letter.

For the reasons explained above, we uphold and affirm all the findings of fact and conclusions of law below, and sustain the ALJ Decision.

1. Each deficiency is rated as to severity (based on an assessment of the effects of the deficiency in causing actual harm or threatening potential harm) and scope (based on the number of residents potentially or actually affected) and assigned a letter category from A-I. See State Operations Manual (SOM), �7400 and Appendix P, Part V (June 1995). A finding of any deficiencies assigned a category higher than A would demonstrate lack of substantial compliance.

2. In addition to its motion to dismiss and its exceptions to the ALJ Decision, Spring Hill complained that it had been prejudiced by the ALJ's refusal to grant motions which it had made before him. Specifically, the ALJ denied Spring Hill's motion to dismiss the CMP and vacate the termination on the grounds that the procedures followed were unlawful and the enforcement regulations improperly promulgated and unconstitutionally applied. In addition, the ALJ denied Spring Hill's motion to dismiss for inadequate notice. Since the substance of the motions is largely repeated in the other arguments made by Spring Hill on appeal, we do not separately address the ALJ's denials of these motions. As is clear from the discussion below, since Spring Hill's arguments before us are without merit, it follows that the ALJ did not err in denying Spring Hill's motions.

3. The ALJ did state at one point that HCFA "based" the termination on the incorrect conclusion that Spring Hill was deficient at the immediate jeopardy level and that HCFA "normally" does not terminate so quickly where the deficiencies are less serious. ALJ Decision at 49. However, he clearly recognized that HCFA had no obligation to allow additional time to a deficient facility to make corrections regardless of the level of the deficiencies and that the decision whether termination was appropriate in these unique circumstances was HCFA's alone. Id. Thus, we do not believe that the ALJ's statement implied that he believed the "basis" for the termination to be only those deficiencies which he had overturned.

4. Similarly, the provisions cited by Spring Hill from Appendix Q of the SOM to the effect that an immediate termination is appropriate "only when a clear, immediate and serious threat exists and the provider is unable to remove the threat expeditiously" address only whether a fast-track termination should be imposed prospectively where conditions have already been corrected, which was not the situation here. SOM, Appendix Q, at Q-4; see Spring Hill Resp. Br. at 2. As discussed elsewhere, the question before the ALJ and us is only whether HCFA had a basis to terminate, not the choice of an alternative sanction or remedy.

5. In fact, Spring Hill acknowledges in the same brief that regulations authorize HCFA to terminate facilities in the absence of immediate jeopardy, while noting that Spring Hill does not concede that HCFA had such authority notwithstanding the regulations. Spring Hill Resp. Br. at 5, n.6. However, Spring Hill did not challenge those regulations in its appeal to the Board, and those regulations are consistent with the Secretary's authority under section 1866(b)(2)(A) of the Act, which empowers the Secretary to terminate a provider agreement after determining that "the provider fails to comply substantially" with the agreement or the applicable law and regulations. While section 1819(h)(4) requires termination or immediate corrective action when immediate jeopardy is found, this is not inconsistent with permitting termination in other circumstances, and the statute as a whole, and its legislative history, clearly intended this result.

6. In cases not involving immediate jeopardy findings and where the facility does not have a history as a poor performer, the SOM provides for the state agency to set a "date certain" by which the facility may make corrections and achieve substantial compliance, rather than facing immediate imposition of remedies. SOM �7313.

7. Notably, Spring Hill did not establish that the State agency ever recommended that Spring Hill be given until June 22, 1998 to make any corrections, regardless of the notations on the 2567 about correction dates. Also, the 2567 resulting from the revisit completed on May 29, 1998 contains no references to any anticipated correction dates. HCFA Ex. 10.

8. These provisions do not preclude the Board or an ALJ from reviewing whether a remedy imposed is in fact one that is legally available to HCFA.

9. The Board has recognized in other cases that the regulations do not preclude an ALJ from making findings about the scope or severity of a particular deficiency where the factual underpinnings of the deficiency have been altered by the results of the hearing. For example, a survey had found a deficiency to be widespread based on multiple incidents in which the surveyors believed the standard of care was violated but the ALJ found only one incident to be substantiated. Lake City Extended Care Center, DAB No. 1658, at 13-14, n. 16 (1998). The ALJ could properly conclude that the deficiency was isolated rather than widespread, since HCFA's initial determination as to the scope of the deficiency was not the issue. Id.; cf. Cross Creek Health Care Center, DAB No. 1665, at 17-18 (1998)(where the ALJ overturns some of the findings, he may reduce but may not expand the scope of the deficiency as determined for that deficiency by HCFA.)

10. Although the hearing and the ALJ Decision in this case obviously occurred after the date of termination, we do not consider that the new issue "arose" after that date. That is because the deficiencies proven at the hearing and found by the ALJ were the actual circumstances that existed at the time of the surveys in question. These were not new events or circumstances that arose after the termination (such as a change of ownership or alteration to the physical plant at some point after termination).

11. Before the ALJ, Spring Hill had contended that the surveyors should have conducted the survey pursuant to criteria at Subpart C of 42 C.F.R. Part 488, rather than under protocols established in Appendix P of the SOM, arguing that the latter was not properly promulgated. The ALJ held that he had no authority to consider this issue, and we have previously rejected the same argument in another case. ALJ Decision at 10; Golden State Manor and Rehabilitation Center, DAB 1597 at 15-23 (1996). On appeal, Spring Hill took the position instead that HCFA failed to follow the procedures in the SOM for determining when immediate termination will be pursued, but Spring Hill asserted that it did not thereby concede that the SOM was validly promulgated. Spring Hill Resp. Br. at 2, n.2. Since Spring Hill failed to present any argument regarding the validity of the SOM before us, we do not address this question further.

12. The regulations allow terminations based on immediate jeopardy to be effective with as little as two days' notice, instead of the normal minimum notice of 15 days. 42 C.F.R. �489.53(c). Spring Hill was notified on May 19, 1999 of its termination effective June 2, 1999, providing it 15 days' notice, so that this distinction was irrelevant here.

13. The descriptions of the factual findings above are brief summaries for the convenience of the reader, since Spring Hill offered no contest to them on appeal. For more details concerning the substance of these violations, please refer to the 2567 (HCFA Exhibit 3) and the ALJ Decision.

14. HCFA cited our decision in Lake City for the proposition that a failure to conduct proper assessments and planning without explanation establishes culpability for this purpose. Lake City Extended Care Center, DAB No. 1658, at 25 (1998). Lake City does not provide support for HCFA's position on the proper amount of the CMP here. The deficiencies as to which "some degree of culpability" was found in Lake City were not limited to incomplete assessments and care plans, dealing instead with the management of high temperatures. See DAB No. 1658, at 11-16, 25. Further, the CMP in Lake City was reduced, as result of finding that immediate jeopardy had not been proven, from $7500 to $500, half of what the ALJ imposed on Spring Hill. Id. at 26.

15. The HCFA guidance "encouraged" selecting a CMP as a remedy for deficiencies classed as "G, H or I," in the scope and severity rating system used by HCFA, and stated that "other remedies may be more appropriate for deficiencies in boxes D, E, and F when no substandard quality of care is present." Spring Hill Resp. Br. at attachment 2, p.2. These suggestions do not on their face suffice to support Spring Hill's claim that it met none of the criteria to impose any CMP simply because the highest level deficiency sustained by the ALJ was at level F. Id. at 56. (The descriptions of the scope and severity levels for different grid levels is at 45 Fed. Reg. 56,183.)