Health Law Daily Wrap Up, ADMINISTRATION OF MEDICARE/MEDICAID PROGRAMS—DAB DECISIONS: SNF’s one instance of deficient pain assessment did not establish noncompliance, (Jun 3, 2026)

By WK Editorial Staff

Facilities may remain in substantial compliance where a lapse in pain management does not create more than minimal harm risk.

An administrative law judge (ALJ) of the HHS Departmental Appeals Board (DAB) determined that a skilled nursing facility (SNF) remained in substantial compliance with 42 C.F.R. § 483.25(k) despite a single violation involving pain management, concluding that the deficiency did not pose a risk for more than minimal harm and therefore could not support enforcement remedies. The ALJ reversed CMS’s determination of noncompliance and vacated a per-instance civil money penalty and related sanctions (Preferred Care at Old Bridge LLC, DAB No. CR6859, Doc. No. C-21-983 (Mar. 16, 2026)).

Background. Allegations arose that the SNF failed to adequately manage pain for a single resident during wound care and a bed transfer. The resident, an elderly individual with significant comorbidities, required ongoing pain management and exhibited inconsistent and atypical pain-related behaviors, including vocalizations that did not consistently correlate with pain. The care plan prescribed both scheduled opioid medication and as-needed analgesics, alongside nonpharmacological interventions and routine reassessment protocols. The ALJ focused on whether staff responded appropriately when the resident vocalized during a bed transfer. The record established that certified nurse aides continued the transfer without pausing to obtain a nurse assessment despite the resident’s vocalizations, which included expressions such as “ow.” CMS found that the SNF staff’s conduct deviated from professional standards, which required stopping the transfer and obtaining a clinical assessment when a resident exhibited signs potentially indicative of pain. As a result, CMS determined that the failure constituted a regulatory violation.

Minimal harm threshold. However, the ALJ noted that noncompliance requires more than the mere existence of a violation; it requires proof that the deficiency posed a risk for more than minimal harm. The evidence demonstrated that immediately prior to the transfer, the resident had been assessed as having no pain using a validated observational scale. Earlier in the day, staff had responded to potential pain by administering medication, attempting additional medication when warranted, and consulting the resident’s physician after unsuccessful administration. The physician, despite being aware of the resident’s symptoms, did not order additional pain interventions but instead directed monitoring and a psychiatric evaluation, indicating clinical uncertainty as to whether observed behaviors reflected pain.

Although SNFs are required to ensure that residents receive pain management consistent with professional standards of practice, comprehensive person-centered care plans, and resident preferences, substantial compliance exists when deficiencies pose no greater risk than minimal harm. However, even where a regulatory violation occurs, CMS lacks authority to impose remedies unless the deficiency creates a risk for more than minimal harm.

The ALJ found that, in this context, the failure to stop the transfer and obtain a nurse assessment did not create a likelihood of harm beyond a minimal level. The resident had recently been assessed, pain had been addressed earlier in the day, and the physician had not identified a need for additional analgesia. The decision also noted that CMS did not present expert evidence establishing that the resident experienced actual harm or that the lapse materially increased risk. The absence of such evidence weighed against the finding of noncompliance.

The ALJ noted that with respect to wound care, there was evidence that the SNF staff assessed the resident using appropriate tools, including observational methods when the resident could not provide numeric pain ratings. The ALJ credited testimony that the resident did not exhibit signs of pain immediately before or during the procedure. The ALJ rejected CMS’s position that prophylactic medication was required in all circumstances, finding no evidence that professional standards mandated premedication where the resident was not exhibiting pain and where prescribed medications were ordered on an as-needed basis. As such, the SNF’s actions were found to be consistent with its policy and professional standards.

Because the only substantiated deficiency, namely the failure to pause a transfer to obtain a pain assessment, did not present a risk for more than minimal harm, the facility remained in substantial compliance.

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