42 C.F.R. § 498.60
Conduct of hearing
(a) Participants in the hearing. The hearing is open to the parties and their representatives and technical advisors, and to any other persons whose presence the ALJ considers necessary or proper.
(b) Hearing procedures. (1) The ALJ inquires fully into all of the matters at issue, and receives in evidence the testimony of witnesses and any documents that are relevant and material.
(2) If the ALJ believes that there is relevant and material evidence available which has not been presented at the hearing, he may, at any time before mailing of notice of the decision, reopen the hearing to receive that evidence.
(3) The ALJ decides the order in which the evidence and the arguments of the parties are presented and the conduct of the hearing.
(c) Scope of review: Civil money penalty. In civil money penalty cases—
(1) The scope of review is as specified in §§ 488.438(e), 488.845(h), and 488.1195(g) of this chapter; and
(2) CMS' determination as to the level of noncompliance of a SNF, NF, HHA, or hospice program must be upheld unless it is clearly erroneous.
Notes of Decisions
Cited in 17
cases, 2000–2018 · leading case: Liberty Commons Nursing v. Leavitt, 285 F. App'x 37 (4th Cir. 2008).
Liberty Commons Nursing v. Leavitt, 285 F. App'x 37 (4th Cir. 2008). “2007) (unpublished) (citing 42 C.F.R. § 498.60 ). In reviewing the facts, the ALJ determined that Resident’s advanced age, Alzheimer’s disease, and debilitating physical condition put her at risk of, inter alia, falling down, getting lost, or being hit by a car in the parking…”
Claiborne-hughes Health Ctr. v. Sebelius, 609 F.3d 839 (6th Cir. 2010). “The DAB has held that 42 C.F.R. § 498.60 (c)(2) “places the burden on the [skilled nursing facility]-a heavy burden, in fact-to upset CMS’s finding regarding the level of noncompliance.”
Rosewood Care Ctr. of Swanse v. Thomas E. Price, 868 F.3d 605 (7th Cir. 2017). “at 20 (citing 42 C.F.R. § 498.60 (c)(2)). 36 . Id. at 22 (internal quotation marks omitted).”
Grace Healthcare v. United States Dep't of Health, 603 F.3d 412 (8th Cir. 2010). “The DAB affirmed the ALJ’s finding of an immediate-jeopardy-level violation on the ground that Grace Healthcare failed to prove it was clearly erroneous, see 42 C. F.R. § 498.60(c)(2), and concluded the ALJ had discretion to ignore the other five immediate jeopardy…”
Greenbrier Nursing & Rehab. Ctr. v. U.S. Dep't of Health & Human Servs., Centers for Medicare & Medicaid Servs., 686 F.3d 521 (8th Cir. 2012). “Before the Secretary may impose a civil money penalty, she must give the facility written notice and an opportunity for a hearing on the record.”
South Valley Health Care Ctr. v. Health Care Fin. Admin., 223 F.3d 1221 (10th Cir. 2000). “” 42 C.F.R. § 498.60 (c)(2). The decision of the ALJ, in turn, is subject upon request to review by the Departmental Appeals Board (Board).”
Liberty Commons Nursing & Rehab Ctr. v. Leavitt, 241 F. App'x 76 (4th Cir. 2007). “” See 42 C.F.R. § 498.60 (2006). In light of the clear instructions in this regulation, which the Board unquestionably followed, we construe Liberty’s argument here to be either that (1) HHS lacks statutory authority to have issued this regulation, or (2) the regulation is…”
Beverly Healthcare Lumberton v. Leavitt, 338 F. App'x 307 (4th Cir. 2009). “” 42 C.F.R. 498.60(c)(2). “Immediate jeopardy” is defined in the Code of Federal Regulations *315 as “a situation in which the provider’s noncompliance with one or more requirements of pax'ticipation has caused, or is likely to cause, sei’ious injux-y, harm, impairment, or death…”
Neighbors Rehab. Ctr., LLC v. U.S. Dep't of Health & Human Servs., 910 F.3d 919 (7th Cir. 2018). “Turning to the immediate jeopardy question, he noted that, per 42 C.F.R. § 498.60 (c)(2), "CMS's determination that a deficiency constitutes immediate jeopardy must be upheld unless the facility shows that the determination is clearly erroneous.”
Life Care Ctr. of Bardstown v. Sec. of United States Dep't of Health & Human Servs., 535 F. App'x 468 (6th Cir. 2013). “42 C.F.R. § 498.60 (c)(2). The Center has failed to prove there was clear error in such finding.”
Grace Healthcare of Benton v. United States Dep't of Health & Human Servs., 589 F.3d 926 (8th Cir. 2009). “The DAB affirmed the ALJ’s finding of an immediate-jeopardy-level violation on the ground that Grace Healthcare failed to prove it was clearly erroneous, see 42 C.F.R. § 498.60 (c)(2), and concluded the ALJ had discretion to ignore the other five immediate jeopardy…”
Neighbors Rehab. Cente v. HHS (7th Cir. 2018). “Turning to the immediate jeopardy ques‐ tion, he noted that, per 42 C.F.R. § 498.60 (c)(2), “CMS’s deter‐ mination that a deficiency constitutes immediate jeopardy must be upheld unless the facility shows that the determina‐ tion is clearly erroneous.”
— 42 C.F.R. § 498.60(c)(2) — 2 cases
Grace Healthcare v. United States Dep't of Health, 603 F.3d 412 (8th Cir. 2010). “The DAB affirmed the ALJ’s finding of an immediate-jeopardy-level violation on the ground that Grace Healthcare failed to prove it was clearly erroneous, see 42 C. F.R. § 498.60(c)(2), and concluded the ALJ had discretion to ignore the other five immediate jeopardy…”
Beverly Healthcare Lumberton v. Leavitt, 338 F. App'x 307 (4th Cir. 2009). “” 42 C.F.R. 498.60(c)(2). “Immediate jeopardy” is defined in the Code of Federal Regulations *315 as “a situation in which the provider’s noncompliance with one or more requirements of pax'ticipation has caused, or is likely to cause, sei’ious injux-y, harm, impairment, or death…”
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