Immediate Jeopardy Finding Fails Due To Lack Of Fact-Finding Specific Analysis

A Department Appeals Board (DAB) order upholding the finding of an immediate jeopardy level violation and the imposition of $3,500 per day civil money penalty (CMP) against a skilled nursing facility (SNF) was vacated by the Eighth Circuit Court of Appeals because the DAB's finding was based on pure speculation and not supported by substantial evidence contained in the administrative record. The case focuses on the care provided to an 86-year-old female resident in declining health who ultimately died.

The Eight Circuit found that the state agency and CMS based their immediate jeopardy level charges on six interrelated deficiencies, not based on the failure to investigate bruises observed during three-day period prior to transfer to the hospital emergency room. According to the court, the administrative law judge and the DAB, in effect, convicted the SNF based on a violation not charged, yet the DAB made no fact-specific analysis of the immediate jeopardy issue and cited no facts raising an inference that the SNF's failure to investigate a doctor's statement more promptly or thoroughly increased the risk of abuse. As a result, the DAB's order of immediate jeopardy and imposition CMPs was vacated. HHS was also directed to expunge all references to findings of immediate jeopardy level noncompliance by the SNF in HHS and CMS records that are accessible by any means to the public and ensure that the state survey agency does the same.

Grace Healthcare of Benton v. CMS, 8th Cir., Dec. 21, 2009.