Health Law Daily Wrap Up, CIVIL MONEY PENALTIES—DAB DECISIONS: Board affirms $1.8 million total CMP in connection with coffee burn incident, (Apr 28, 2026)

By Justin Marcus Smith, J.D.

Injuries do not need to occur before they might be deemed foreseeable.

An administrative law judge (ALJ) did not err in upholding a CMS determination that a skilled nursing facility (SNF) was not in substantial compliance with accident-prevention regulation 42 C.F.R. § 483.25(d), affirmed the HHS Departmental Appeals Board (DAB). The Board found substantial evidence supported the ALJ and CMS findings that the risk of hot coffee spills to an epileptic resident, in particular, was foreseeable given his documented impairments. Although the resident’s private nurse served the coffee to the resident, the SNF was still ultimately responsible for resident safety and unrestricted access to coffee makers that brewed at temperatures higher than the facility’s target temperature. The record also reflected that the SNF did not take steps to mitigate immediate jeopardy for 272 days after the burn incident. The per-day penalty of $6,550 was not unreasonable because it was near the minimum permissible amount for immediate jeopardy noncompliance (Potomac Falls Health & Rehab Center, DAB No. 3220, Doc. No. A-21-47 (Dec. 22, 2025)).

Background. The case arose on June 23, 2016, when the private sitter gave a cup of coffee to a resident who suffered from epilepsy, traumatic brain injury, and other conditions. The resident had standing orders to receive honey-thickened coffee with each meal. While holding the coffee, the resident had an epileptic seizure, and the coffee spilled on him. A nurse noted the burn, applied a cold compress, and notified a doctor. The doctor ordered a “wound consult.”

In March 2017, a state agency survey team issued a statement of deficiencies. The K-level deficiency, Tag F323, cited the SNF for violating 42 C.F.R. § 483.25(d)(3) by failing to provide an environment free of hazards and to prevent accidents to the residents, resulting in immediate jeopardy. The dining rooms had an industrial coffee machine that brewed coffee at temperatures far exceeding the standard range specified on the SNF’s own tracking form for months after the burn incident. Residents and visitors could help themselves to the coffee at any time, regardless of a resident’s cognitive status or physical limitation.

CMS determined that the SNF was not in substantial compliance with accident-prevention regulation 42 C.F.R. § 483.25(d) from June 23, 2016, through March 21, 2017. The total civil money penalty (CMP) was $1,806,750. The SNF requested a reduction of the CMP for financial hardship; CMS reduced the total CMP by 20 percent to $1,445,400 and approved a payment plan.

The SNF requested an ALJ hearing. The SNF disputed the legal and factual basis for the alleged immediate jeopardy deficiency, whether it existed for 272 days, and the reasonableness of the CMP imposed. The ALJ issued a written decision on February 16, 2021, ruling that the SNF was not in substantial compliance, the CMS immediate jeopardy determination was not clearly erroneous, and the CMP was reasonable.

Appeal. The SNF appealed to the DAB. On appeal, the Board applied the substantial evidence standard to the ALJ’s disputed findings of fact, searched for any errors on questions of law, and applied the abuse of discretion standard to procedural rulings.

Noncompliance. The ALJ based the determination that the SNF was noncompliant with 42 C.F.R. § 483.25(d) on substantial evidence, and the determination was not legally erroneous. The Board cited another case involving burns from hot coffee spills. Second degree burns in that matter required lengthy treatment. The Board upheld the ALJ and CMS determinations that the regulation required the facility to examine its practices for serving hot liquids, assess the danger to individual residents, identify and take reasonable precautions to mitigate risk, and monitor the effectiveness of safety measures.

The instant SNF argued that none of its at-risk residents, apart from the one resident, had ever experienced a burn, whereas the case the ALJ cited dealt with three burns. However, the ALJ found state surveyor evidence in the record that the SNF served coffee at temperatures much hotter than what the SNF’s own dietician testified to be the target serving temperature of 140 to 150 degrees Fahrenheit. The SNF’s expert submitted a professional journal article suggesting that 136 degrees is an optimal temperature for coffee.

Substantial evidence also supported the ALJ finding of a plainly apparent accident hazard. For example, coffee spilled at hotter than 160 degrees will cause severe injury.

Foreseeability. Substantial evidence also supported that the risk of hot coffee spills to the resident, in particular, was foreseeable given his documented impairments. Injuries do not need to occur before they might be deemed foreseeable, but the ALJ found the SNF did not mitigate the risk by reducing the brewing temperature of the coffee and taking other measures until March 22, 2017. The SNF was not in substantial compliance until then. Until the survey, the SNF was not consistently logging coffee temperatures. There was also substantial evidence the SNF should have evaluated the residents for hot liquid risk. The SNF’s administrator admitted it had not done an investigation to put a prevention plan in place. The Board has repeatedly confirmed that facility failure to implement measures in facility policies and resident care plans to comply with quality-of-care regulations at 42 C.F.R. § 483.25 constitutes noncompliance.

The Board rejected the SNF’s arguments that supervision and assistance devices were unnecessary because the resident drank thousands of cups of hot coffee without any untoward events until the burn incident. The SNF knew the risk of seizure in this instance. Care planning called for the resident to be free from injury from seizure activity.

Other residents had their own cognitive or motor impairments, and the burn risk of coffee was obvious. Resident risk evaluation must be periodic and standardized, and the injured resident’s care plans did not specify mobility limitation or seizure risk with hot liquids for over four years before the burn incident. The SNF only initiated a care plan to have the resident remain free from hot liquid burns during the initial survey.

Although the resident had a private duty sitter, the SNF was still ultimately responsible for providing care and services and ensuring resident safety under 42 C.F.R. § 483.25(d), but the dining room support program did not address accidental hot liquid spills. The Board has also affirmed that serving coffee in un-lidded cups poses a risk of accidental harm to residents, or at least residents who have certain impairments, but the SNF did not have sip spout lids.

Credibility determinations. The SNF presented no reason to overturn the ALJ assessment of surveyor credibility. The ALJ had authority and permissible grounds for finding the SNF’s witnesses, including one of its experts, less credible than CMS’s surveyor witnesses. The Board also rejected the SNF’s contention that the ALJ relied on hearsay. The ALJ also permissibly noted that the SNF lacked credibility in claiming that no other burns occurred during the 272 days before it returned to substantial compliance because the SNF did not appear to have had a tracking mechanism at all times. In any event, it was not the role of the Board to re-weigh evidence of noncompliance. That is the hearing officer’s responsibility.

Regulatory meaning. The absence of regulatory language specifying a maximum safe temperature for hot coffee or requiring cup lids was not a basis for reversing the CMS noncompliance determination. Again, foreseeability was key under 42 C.F.R. § 438.25(d). The ALJ did not commit legal error by excessively deferring to agency interpretation of the applicable regulations. Neither party identified any ambiguity. The SNF’s choice to set its own hot liquid service temperature range between 140 and 150 degrees did not conflict with any State Operations Manual provision. The Board also rejected the SNF’s claim that CMS forced it to violate residents’ rights to coffee as they preferred it. The surveyor never told the SNF they had to lower the brewing machine temperature. The SNF chose that step before even presenting its first plan of correction when other options were available, like moving the machines where residents could not access them or letting the coffee cool a bit before serving it. The regulations the SNF cited were irrelevant, and the SNF did not prove that CMS dictated any measures that prevented reasonable accommodation of resident preferences, or that accommodating some residents would not endanger others.

Evidentiary considerations. The ALJ did not err by not issuing subpoenas to two non-testifying surveyors. The ALJ applied the plain language of the subpoena regulation. The SNF did not file a written subpoena request. CMS withdrew its written testimony because it no longer worked for the state survey agency. The SNF also did not establish that a subpoena was reasonably necessary for full presentation of its case.

The ALJ did not err by excluding video evidence of the president and secretary of the resident council. The ALJ excluded the video because there was no transcript and submitting it was essentially an effort to circumvent the cross-examination requirement. The SNF did not specify a basis for error or prejudice.

Immediate jeopardy. The CMS determination of immediate jeopardy was not clearly erroneous. The SNF raised several challenges, including that the burn was approximately dime-sized, but there was no dispute that the resident suffered a serious burn injury. The record showed it resulted in an open wound that took weeks to heal, left scarring, and physical pain as well as apprehension about drinking coffee. The Board rejected any contention that a second-degree burn is necessarily a minor injury.

There was also substantial evidence to support a finding of likely serious harm to the SNF’s other residents at the time of the survey. The immediate jeopardy assessment resulted from hot coffee still being served despite the resident’s prior coffee burn without completion of any intervening investigation or plan of correction to temperatures that could cause tissue injury to vulnerable residents.

The CMS determination of the duration of immediate jeopardy was not clearly erroneous. As the ALJ summarized, the SNF essentially did nothing to prevent the risk of future accidents with respect to the injured resident, even after he was burned, and continued to serve coffee to residents at temperatures exceeding 150 degrees for months after the burn incident until March 22, 2017.

The SNF also did not show clear error under governing law, even if the burn incident was the only one during the immediate jeopardy period. After the burn incident, the SNF had no evident planning procedures to prevent future scaldings to any vulnerable resident. The SNF failed to show implementation of sufficient corrective measures before the date CMS identified as the end-date of the immediate jeopardy period.

CMP reasonableness. The per-day CMP was not unreasonable. The SNF did not argue before the ALJ that the per-day CMP of $6,550 was inappropriate for immediate jeopardy compliance based on any factors other than the existence of immediate jeopardy. The amount was very close to the minimum permissible amount of $6,394. It could have been as high as $20,965. The record showed a history of noncompliance and various cited deficiencies. The Board reviewed only the per-day CMP for reasonableness, not the total amount. The total CMP amount was a function of the duration of immediate jeopardy, which the Board upheld.

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