Beverly Healthcare Lumberton v. Leavitt

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-1447

BEVERLY HEALTHCARE LUMBERTON,

Petitioner,

v.

MICHAEL O. LEAVITT, Secretary of the United States
Department of Health & Human Services; UNITED STATES
DEPARTMENT OF HEALTH & HUMAN SERVICES,

Respondents.

On Petition for Review of an Order of the United States
Department of Health & Human Services. (C-06-20; A-07-134)

Argued: May 13, 2009 Decided: July 22, 2009

Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.

Petition for review denied by unpublished per curiam opinion.

ARGUED: Joseph L. Bianculli, HEALTH CARE LAWYERS, PLC,
Arlington, Virginia, for Petitioner. Erica Cori Matos, UNITED
STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, Atlanta, Georgia,
for Respondents. ON BRIEF: Peter D. Keisler, Assistant Attorney
General, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Thomas R. Barker, Acting General Counsel, Dana J. Petti, Chief
Counsel, Region IV, UNITED STATES DEPARTMENT OF HEALTH & HUMAN
SERVICES, Atlanta, Georgia, for Respondents.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Beverly Healthcare Lumberton (Beverly) challenges

civil money penalties (CMPs) imposed by the Centers for Medicare

& Medicaid Services (CMS) for violations of the Medicare and

Medicaid statutes and regulations. These penalties were

sustained by an administrative law judge (ALJ), with minor

adjustments, and affirmed by the Departmental Appeals Board

(DAB) of the U.S. Department of Health and Human Services.

Because we find no reversible error in the DAB’s decision, we

deny Beverly’s petition for review.

I.

Beverly is a skilled nursing facility located in North

Carolina that participates in both the Medicare and Medicaid

programs. The North Carolina Department of Health and Human

Services (the state survey agency), the agency in charge of

surveying healthcare facilities that participate in Medicare and

Medicaid, conducted a complaint survey against Beverly that

ended August 4, 2005. The survey found that Beverly was not in

substantial compliance with three requirements for participation

in Medicare and Medicaid programs. Specifically, Beverly was

found to have (1) failed to provide an environment free of

abuse, in violation of 42 C.F.R. § 483.13(b); (2) failed to

report and investigate allegations of abuse, in violation of 42

2
C.F.R. §§ 483.13(c)(2), (3); and (3) failed to develop and

implement policies to prevent abuse of residents, in violation

of 42 C.F.R. § 483.13(c).

These violations stemmed primarily from an incident

that took place April 9, 2005, involving one of Beverly’s

residents, George Hunt 1 . Hunt was an 87-year-old man with a

history of insomnia, falls, and dementia. Hunt had fractured

his hip in a fall in December of 2004, which resulted in a

physician ordering a soft safety belt to help restrain Hunt in

his wheelchair. In the early morning of April 9, 2005, Hunt was

sitting in his wheelchair at the nurse’s station when he removed

the soft waist restraint belt keeping him in the wheelchair and

became combative with the two nurses at the station, Marilyn

Marino and Octavia Taylor. Both nurses attempted to prevent

Hunt from falling and to persuade him to relinquish the waist

restraint, which he continued to hold. The nurses called a

nursing assistant, Charles Robinson, to come and assist them

because the nursing assistant who was present was too small to

handle Hunt. While attempting to subdue Hunt, Robinson grabbed

Hunt’s right arm and tried to get the restraint out of Hunt’s

1
The description of the incident by the ALJ and DAB was
taken primarily from a nurse’s note prepared by Nurse Marilyn
Marino shortly after the incident. Because the complaint survey
uncovered multiple complaints, the resident at issue here is
sometimes referred to in the record as Resident #2, or R2.

3
left hand. After Hunt pulled his arm away and refused to

release the restraint to Robinson, one of the nurses asked

Robinson to let go of Hunt’s arm, and then managed to persuade

Hunt to give up the restraint. Robinson then “grabbed [Hunt’s]

arms roughly” while the nurses re-applied the restraint. Admin.

App’x A at 369; Admin. App’x B at 450. After the restraint was

back in place, Robinson released Hunt’s arms, but Hunt then

removed the restraint for a second time. Robinson “then tried

to grab [Hunt’s] arms but [Hunt] started swinging at him.”

Admin. App’x A at 370; Admin. App’x B at 451. At that point,

Robinson “grabbed both of [Hunt’s] wrists and would not let go.”

Admin. App’x A at 370. Admin App’x B at 451. Nurse Marino then

suggested that Hunt needed to go to bed, as it was past

midnight. Robinson “angrily answered, ‘He’s not going to bed,’”

and then wheeled Hunt to his room to clean and change him

because he had become incontinent either before or during the

incident. Admin. App’x A at 370; Admin. App’x B at 451.

About ten minutes later, Robinson returned with Hunt,

who had been cleaned and changed. Hunt “appeared upset” and his

“eyes were watery and his lips were quivering.” Admin. App’x A

at 370; Admin. App’x B at 451. Hunt then pointed to his wrist

and said to Nurse Marino, “you broke my heart.” Admin. App’x A

at 370, B at 451. Nurse Marino observed redness and edema on

Hunt’s wrists three to four inches up his forearm, as well as

4
redness on his hand. Hunt told Nurse Marino that it hurt, and

when she touched his wrist he pulled away and said “ow.” Admin.

App’x A at 370-71. When Nurse Marino returned the next morning

(April 10), Hunt showed her his right arm, which had dark

bruises on the wrist. Nurse Marino had begun preparing a

nurse’s note on the day of the incident, April 9, 2005, and

completed the note on April 11, 2005. Robinson continued to

work over the weekend and provided care to multiple residents,

including Hunt, without further incident.

The Director of Nurses (DON) at Beverly, Roxanne

Thompson, was not contacted on the date of the incident.

Thompson learned of it when she came in to work on Monday, April

11, and she then reviewed the weekend incident log. That same

day she began a routine investigation into the incident and

received Nurse Marino’s note. In a follow-up interview

conducted by the North Carolina surveyor, Thompson said that had

she been on duty at the time of the incident, Robinson would

have been suspended immediately. Instead, Robinson was

suspended on April 11 and subsequently terminated on April 14.

However, Thompson’s investigation ultimately concluded that

Robinson had not abused the resident. Thompson finished her

report and filed it with the state survey agency on April 12,

2005. She also filed a required “five day report” on April 15,

2005.

5
 The complaint survey that concluded on August 4, 2005,

also cited two other incidents. On March 22, 2005, a family

member of another resident 2 at Beverly filed a grievance

asserting that a nursing assistant had told the resident that

she “better not turn the call light back on again” because the

nurses were short staffed. Admin. App’x A at 394; Admin. App’x

B at 465. The action was documented on April 8, 2005, and the

five day report was filed on May 24, 2005. By that time, the

nursing assistant involved in the incident no longer worked at

Beverly for unrelated reasons.

In the remaining incident, on April 8, 2005, a third

nursing assistant was reported for yelling at a resident 3 . The

nursing assistant involved was suspended on April 11, 2005, and

terminated on April 14, 2005. A twenty-four hour report found

in Beverly’s files was undated and the five day report for the

incident was dated April 19, 2005.

The state agency took no action on these initial

reports. The citations at issue were instead issued by State

Surveyor Patrick Campbell, who arrived at Beverly’s facility on

July 27, 2005, to investigate an unrelated complaint of

2
This resident is referred to as Resident #1, or R1, in the
record.
3
This resident is referred to as Resident #3, or R3, in the
record.

6
inadequate care. Campbell had been sent to investigate a

complaint that involved care provided by his own sister, who was

a nurse at Beverly’s facility. This conflict of interest should

have disqualified Campbell from proceeding with the survey, but

the conflict was unknown to Beverly at the time. After

reporting that he could not substantiate the complaint he was

sent to investigate, Campbell proceeded, apparently of his own

initiative, to begin a search of unrelated records at Beverly.

In the course of that search, Campbell found Nurse Marino’s note

on the April 9 incident. Upon completing his investigation on

August 4, 2005, Campbell cited Beverly for the three violations

listed above, based primarily upon Nurse Marino’s note and

subsequent interviews.

The state survey agency then recommended that the

Secretary of the U.S. Department of Health and Human Services

(Secretary), through the Centers for Medicare & Medicaid

Services (CMS), impose penalties against Beverly. CMS found

that Beverly was not in substantial compliance with 42 C.F.R.

§§ 483.13(b), (c), and (c)(2), (3) and that Beverly’s violations

constituted “immediate jeopardy” to its residents during the

period from April 9 to April 14, 2005 (when nursing assistant

7
Robinson was terminated). 4 As a result, CMS imposed a CMP of

$3,050 a day for April 9 through April 14, 2005. CMS also found

a continuing violation, at a lower severity level, for which it

imposed a CMP of $1,000 a day for April 15 through August 4,

2005. 5 The daily penalties ceased accruing on August 4, when

Beverly submitted a plan of action stating that all staff had

been “in-serviced” on proper policy regarding abuse allegations.

Beverly also stated that it had completed a review of all

grievances between January 1, 2005, and August 4, 2005, to

ensure they had all been reported and investigated.

Beverly requested a hearing, and the case was heard

before an ALJ. The ALJ sustained all of CMS’s findings, with

the sole exception that he applied the $3,050 CMP from April 9

through April 11, 2005, rather than through April 14, because he

concluded that “immediate jeopardy” had ended once Robinson was

suspended. Beverly appealed to the DAB, which affirmed the

ALJ’s decision in its entirety. On April 3, 2008, Beverly filed

4
Each deficiency is placed in one of four severity
categories: (i) no actual harm with potential for minimal harm;
(ii) no actual harm with potential for more than minimal harm
that is not immediate jeopardy; (iii) actual harm that is not
immediate jeopardy, and (iv) immediate jeopardy to resident
health or safety. 42 C.F.R. § 488.404(b)(1). Deficiencies are
also classified as “isolated,” “constitut[ing] a pattern,” or
“widespread.” Id. § 488.404(b)(2).
5
CMS also imposed other penalties not at issue here.

8
a petition to reopen the DAB’s decision pursuant to 42 C.F.R.

§ 498.100, which the DAB summarily denied on May 2, 2008.

Beverly then filed a petition for review in this court under 42

U.S.C. § 1320a-7a(e).

II.

Beverly raises four challenges to the Secretary’s

imposition of CMPs. First, Beverly contends that the Secretary

failed to establish any of the three alleged violations.

Second, Beverly argues that the Secretary erred in his

determination as to the level of non-compliance (immediate

jeopardy). Third, Beverly asserts that the CMPs imposed are

unreasonable. Finally, Beverly maintains that the DAB erred in

overlooking the state surveyor’s conflict of interest.

A.

CMS’s findings of fact are conclusive “if supported by

substantial evidence on the record considered as a whole.” 42

U.S.C. § 1320a-7a(e). The Supreme Court has described

“substantial evidence” in other contexts as “such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971) (National Labor Relations Act). CMS may impose CMPs

(among other remedies) when it determines that a long-term care

facility has failed to substantially comply with participation

9
requirements. 42 U.S.C. § 1395i-2(h)(2)(B)(ii) (“The Secretary

may impose a civil money penalty in an amount not to exceed

$10,000 for each day of noncompliance.”); 42 C.F.R. 488.301

(“Noncompliance means any deficiency that causes a facility to

be not in substantial compliance.”). “Substantial compliance”

is defined as a “level of compliance with the requirements of

participation such that any identified deficiencies pose no

greater risk to resident health or safety than the potential for

causing minimal harm.” 42 C.F.R. § 488.301. We address each of

the alleged violations in turn.

1.

Beverly was cited for violating 42 C.F.R. § 483.13(b),

which prohibits abuse of residents. Facilities participating in

Medicare and Medicaid programs are forbidden from using “verbal,

mental, sexual, or physical abuse, corporal punishment, or

involuntary seclusion.” 42 C.F.R. § 483.13(c)(1)(i). See also

§ 483.13(b). The U.S. Department of Health and Human Services

(USHHS) defines “abuse” as “the willful infliction of injury,

unreasonable confinement, intimidation, or punishment with

resulting physical harm, pain, or mental anguish.” 42 C.F.R.

§ 488.301. The Secretary’s interpretive guidelines state that a

resident has been physically abused when (1) physical contact

was made (2) that was intentional or careless, (3) there was

resulting harm or a likelihood of physical injury, pain, or

10
death to the resident, and (4) there was a lack of reasonable

justification for the contact. USHHS State Operations Manual at

6-4, available at

http://www.michigan.gov/documents/mdch/bhs_ch6_mom_abuse_etc_223

590_7.pdf. There is a “presumption that physical abuse has

occurred whenever there has been some type of impermissible or

unjustifiable physical contact with a resident that has resulted

in injury or harm to the resident.” Id. The USHHS manual

includes “squeezing . . . any part of the resident’s body” as an

example of potentially abusive treatment. USHHS State

Operations Manual at 6-4. However, the manual also states that

physical contact during care, comfort, or assistance is

permissible when “the type of contact involved and the amount of

force used are absolutely necessary in order to provide care.”

USHHS State Operations Manual at 6-5. When the contact occurs

“in the course of attempting to restrain a resident’s behavior

in an emergency,” it is permissible if “both the type of contact

involved and the amount of force used are reasonably necessary

in order to prevent that resident from injuring himself/herself,

injuring another person, or damaging property.” Id.

The ALJ’s conclusion that Robinson’s conduct amounted

to abuse was based almost exclusively on Nurse Marino’s note,

which the ALJ found to be “the most complete and reliable

account concerning the incident.” J.A. at 301. The ALJ found

11
that Robinson treated the elderly resident in an “angry manner”

that was “not accidental or necessary in providing care and

services to the resident. In fact, it was intentional and

retaliatory.” J.A. 302. The ALJ also accepted Nurse Marino’s

description of the resident’s physical injury. According to the

ALJ, the only reasonable interpretation of Nurse Marino’s note

was that the incident constituted abuse. In making this

finding, the ALJ chose not to credit later interviews in which

nurses and nursing assistants who were involved, including Nurse

Marino, said that they did not consider Robinson’s conduct

abusive. Beverly argues that the ALJ erred by disregarding

evidence that conflicted with Nurse Marino’s note, and the

facility attempts to characterize Robinson’s conduct as “poor

technique,” rather than abuse.

Beverly’s arguments notwithstanding, we cannot say

that either the ALJ’s or the Secretary’s decision was

unsupported by substantial evidence. Nurse Marino’s note, which

was the most contemporaneous description of the incident, states

that nursing assistant Robinson roughly handled an elderly

resident in a manner the nurse found excessive. Robinson

grabbed and held the resident’s arms at least twice, and there

is no dispute that this contact resulted in injury. While there

is also evidence that cuts in Beverly’s favor –- for instance,

the Social Security Administration concluded that the abuse

12
allegation was unsubstantiated –- it was for the ALJ to make

determinations in the proceeding before him as to the weight of

evidence and credibility of witnesses. He chose to credit Nurse

Marino’s note over later statements, and that note alone, due to

its thoroughness and proximity to the event, was sufficient to

constitute substantial evidence of abuse.

2.

Beverly was also cited for violating 42 C.F.R.

§ 483.13(c)(2), which requires participating facilities to

“ensure that all alleged violations involving mistreatment,

neglect, or abuse . . . are reported immediately to the

administrator of the facility and to other officials in

accordance with State law.” Further, facilities must promptly

investigate all allegations of abuse and “[t]he results of all

investigations must be reported to the administrator or his

designated representative and to other officials in accordance

with State law . . . within 5 working days of the incident.” 42

C.F.R. § 483.13(c)(4). Under North Carolina law, facilities are

required to file an initial “24-hour report” within twenty four

hours of an alleged incident of abuse and also a “five day

report” following a fuller investigation. 10A N.C. Admin. Code.

13D.2210(b), (d).

There is no doubt that Beverly failed to timely report

each of the cited incidents. The twenty-four hour report for

13
the April 9, 2005, incident was filed on April 12 (two days

late), and the five day report was filed on April 15 (one day

late). The March 22, 2005, complaint was not documented until

April 8 (sixteen days late), and its five day report was not

filed until May 24 (two months late). The April 8, 2005, report

of a nursing assistant yelling at a resident had an undated

twenty-four hour report on file, but its five day report was not

filed until April 19 (six days late). Thus, there was

substantial evidence to support the ALJ’s conclusion that

Beverly had violated the reporting requirements.

Beverly asserts that the late reporting of the

incident involving nursing assistant Robinson was not a

violation because the allegations were ultimately

unsubstantiated and because DON Thompson filed the reports

within twenty-four hours and five days, respectively, of

learning of the incident herself. Both arguments must fail.

First, it is the allegation that triggers the responsibility to

report. Cedar View Good Samaritan, DAB No. 1897, at 11 (2003).

Even if the ALJ found there was no abuse, Beverly’s failure to

promptly investigate and report the allegation violated 42

C.F.R. § 483.13(c)(2) and 10A N.C. Admin. Code. 13D.2210(b),

(d). Second, it is irrelevant that the DON did not learn of the

incident for two days. The federal statute requires a report

within five days of the incident, while the state statute

14
requires reports within one and five days of when the health

care facility (not a specific person) learns of the allegation –

- which in this case occurred when the resident, Hunt, alerted

Nurse Marino to his injury. See 42 C.F.R. § 483.13(c)(2); 10A

N.C. Admin. Code. 13D.2210(b), (d). Thus, the time at which

Thompson learned of the incident is irrelevant to the deadline

for filing the required reports.

3.

Finally, Beverly was cited for violating 42 C.F.R.

§ 483.13(c), which states that facilities “must develop and

implement written policies and procedures that prohibit

mistreatment, neglect, and abuse of residents.” CMS found that

Beverly had failed to follow proper procedures related to

immediately reporting allegations of abuse against residents to

the facility administrator. The ALJ found that Beverly had

failed to follow its own procedures –- which provide that “any

associate (employee) who suspects that a resident has been

abused must immediately notify the executive director

(administrator) and appropriate state agencies in accordance

with law” -- by not timely reporting the three incidents

outlined above. J.A. at 303. The ALJ further concluded that

these failures to implement Beverly’s own policies “indicate[d]

a wider systemic problem in the facility,” and that “the failure

15
to actually implement facility policy against abuse and neglect

leaves residents at real risk for serious harm.” J.A. at 308.

Beverly argues that the ALJ’s determination is

improper for three reasons. First, it asserts that its

employees did not fail to follow procedure because the procedure

is only triggered when someone actually suspects an abuse has

occurred. This argument has little traction, however, because

federal law requires Beverly’s procedures to require

investigation of all allegations of abuse, not just those that

facility employees believe are legitimate. See 42 C.F.R.

§ 483.13(c)(2). Beverly thus violated § 483.12(c) either by not

having adequate reporting policies or by having them and failing

to follow them. Second, Beverly argues that it is pointless to

punish the two-day delay in reporting the Robinson incident to

the state survey agency because no one was working at the agency

over the weekend. This misses the point, however, since

Beverly’s primary failure was the lack of reporting to the

facility administrator and DON so that proper action could be

taken. Instead, the DON did not learn of the incident for two

days while Robinson continued to work at Beverly. Third,

Beverly argues that the ALJ should not have concluded that the

three incidents at issue constituted a systemic pattern, and

contends instead that these were isolated incidents. We

conclude, however, that Beverly’s multiple failures to report

16
allegations of abuse over a short period, spanning roughly two

months, amounted to substantial evidence on which the ALJ could

properly base his finding of a systemic violation.

B.

Beverly claims that CMS’s determination that the

alleged violations amounted to “immediate jeopardy” was in

error. In cases when a CMP is imposed, “CMS’s determination as

to the level of noncompliance . . . must be upheld unless it is

clearly erroneous.” 42 C.F.R. 498.60(c)(2). “Immediate

jeopardy” is defined in the Code of Federal Regulations as “a

situation in which the provider’s noncompliance with one or more

requirements of participation has caused, or is likely to cause,

serious injury, harm, impairment, or death to a resident.” 42

C.F.R. § 488.301. Thus, “[a] finding of immediate jeopardy

. . . does not require a finding of present harm, but also

encompasses a situation that is ‘likely to cause’ harm.”

Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002).

Under the clearly erroneous standard of review, the

ALJ reduced the length of the immediate jeopardy period by three

days, concluding that it had ended on April 11, 2005, rather

than April 14. We hold that this determination was itself not

clearly erroneous. Both Nurse Marino and Nurse Taylor

recognized that nursing assistant Robinson’s actions at the very

least might have constituted abuse. Yet the incident went

17
unreported for two days, during which time Robinson continued to

work at Beverly and give care to the resident he had allegedly

abused. The fact that no further harm occurred is irrelevant,

as only the possibility of harm is required under § 488.301.

CMS’s determination, and the ALJ’s reaffirmation, that the

potential harm was serious is also not clearly erroneous. The

record suggests that the resident was roughly handled by a

nursing assistant, that the nursing assistant’s actions may have

been punitive and retaliatory, and that the rough handling

resulted in obvious injury. It was not error for either CMS or

the ALJ to find the potential for serious harm in Robinson’s

continued interaction with Beverly’s residents.

C.

Beverly next claims that the CMPs imposed by CMS are

unreasonable. Again, the Secretary’s findings (via CMS) must be

upheld if “supported by substantial evidence on the record

considered as a whole.” 42 U.S.C. § 1320a-7a(e). Further, when

a reviewing court concludes that the basis for imposing a CMP

exists, it “may not . . . [r]eview the exercise of discretion by

CMS . . . to impose a civil money penalty.” 42 C.F.R.

§ 488.438(e)(2). Nor may a reviewing court reconsider any of

the factors taken into account by CMS with respect to “the

amount of the penalty.” Id. at § 488.438(e)(3).

18
 CMS can impose a CMP, not to exceed $10,000, for every

day that a facility is found not to be in substantial

compliance. 42 U.S.C. § 1395i-3(h)(2)(B)(ii). The appropriate

CMP is split into two ranges depending on the severity of non-

compliance. When immediate jeopardy is present, the daily CMP

can range from $3,050-$10,000. 42 C.F.R. § 488.438(a)(1)(i).

When there is no immediate jeopardy, but the deficiencies have

either caused actual harm or have the potential for more than

minimum harm, the daily CMP can range from $50 - $3,000. Having

found the three deficiencies listed above, CMS imposed a CMP of

$3,050 a day for April 9-14, 2005 -- the period for which it

found immediate jeopardy -- and a CMP of $1,000 a day for April

15-August 4, 2005. The ALJ changed the $3,050 CMP so that it

only ran from April 9 through April 11, 2005, based on his

finding that immediate jeopardy ended when Robinson was

suspended.

Because the $3,050 CMP for April 9 through April 11 is

the minimum penalty under the immediate jeopardy classification,

the CMP is reasonable as a matter of course once we have

concluded that the “immediate jeopardy” classification is

appropriate. It is also reasonable in duration because it

covers only the period during which Robinson remained at work at

Beverly. We also conclude that the $1,000 CMP for April 12

through August 4, 2005, is reasonable in both scope and

19
duration. The burden of proving that the CMP was unreasonable

fell on Beverly, Coquina Ctr. v. Ctrs. for Medicare & Medicaid

Servs., DAB 1860 at 32-33 (2002), yet Beverly made no specific

argument on this point. Even if it had, however, the CMP still

appears to be reasonable. It falls at the lower end of the

allowable range for violations that have caused harm or threaten

more than minimum harm, and we agree with the ALJ that the

amount “served the purpose of driving the facility back into

compliance.” J.A. 312. Further, it was reasonable for this CMP

to extend to August 4 because it was not until that day that CMS

could say with certainty that Beverly’s employees had been

properly “in-serviced” and that there were no additional

unreported allegations of abuse. Accordingly, the CMPs imposed

by CMS were reasonable.

D.

Finally, Beverly argues that the DAB erred when it

upheld CMS’s conclusions by overlooking the fact that Surveyor

Campbell completed his investigation at Beverly and testified

before the ALJ despite a clear conflict of interest. While

there is no doubt that Surveyor Campbell ignored an obvious

conflict of interest in proceeding with the survey that resulted

in the citations at issue, see 42 U.S.C. § 1395i-3(g)(1)(E)(2),

this does not affect our analysis. First, “inadequate survey

performance by a state does not -- (1) Relieve a [facility] of

20
its obligation to meet all requirements for program

participation; or (2) Invalidate adequately documented

deficiencies.” 42 C.F.R. § 488.318(b). Further, as the DAB

decision noted, the ALJ knew of the conflict of interest and

could weigh the credibility of Surveyor Campbell’s testimony

accordingly. In fact, the ALJ explicitly stated that he was

relying on evidence other than Campbell’s testimony. Had

Campbell been the government’s only witness, perhaps the ALJ’s

decision would be in doubt, but under the circumstances there

was substantial evidence to support the decision.

III.

In sum, we conclude that CMS’s determination that

Beverly violated 42 C.F.R. §§ 483.13(b), (c), and (c)(2), (3)

was supported by substantial evidence. We further conclude that

CMS’s finding of immediate jeopardy (as subsequently modified by

the ALJ) was also reasonable, as were the CMPs imposed for the

violations. Beverly’s petition for review is therefore

DENIED.

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