                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-1603


SUNBRIDGE CARE AND REHABILITATION FOR PEMBROKE,

                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. (A-08-7)


Argued:   March 26, 2009                     Decided:    July 22, 2009


Before MOTZ and AGEE, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     SunBridge Care and Rehabilitation – Pembroke (“SunBridge”),

a skilled nursing facility that provides care to Medicare and

Medicaid    beneficiaries      in       North    Carolina,     appeals      the   final

decision by the Secretary of the U.S. Department of Health and

Human Services (“HHS”) to assess civil monetary penalties for

its failure to comply with certain federal health and safety

regulations.        An    agency    of    HHS,    the     Centers    for   Medicare    &

Medicaid    Services      (“CMS”),       made    the    initial     determination     of

non-compliance and assessed the civil monetary penalties.                         These

determinations were upheld by both an Administrative Law Judge

(“ALJ”) and the Departmental Appeals Board (“DAB”).                           For the

reasons set forth below, we affirm.



                                           I.

     SunBridge       is    a   skilled          nursing     facility       located    in

Pembroke, North Carolina.               Among the responsibilities SunBridge

undertakes    is    to    transport      its     wheelchair-bound       residents     to

various medical appointments in a van owned and operated by the

facility.     The van is specially equipped, including with safety

belts, to ensure that the residents remain in their wheelchairs

while being transported.

     On    August    8,    2005,    a    Sunbridge       van   was   transporting      a

resident (“Resident 1”) when the driver made a sudden traffic

                                           3
stop.        Although       the    parties   disagree     as      to   what   actually

happened, Resident 1 either slipped out of his wheelchair or was

thrown against the safety belt.                  He suffered minor injuries to

his arm and shoulder.              His wife, who was following the van in

her car, claims that she saw “her husband going head first out

of the wheelchair” and found him on the floor of the van with no

safety belt on and with the wheelchair resting on top of him.

(Admin. R. (“A.R.”) 842.)

      On March 3, 2006, another Sunbridge van driver noticed that

an 84-year-old resident she was transporting (“Resident 3”) had

slid out of her wheelchair onto the van floor. 1                           The driver

stopped the van and attempted to return the resident to her

wheelchair but, when unable to do so, called the Sunbridge nurse

on   duty.         The   on-duty     nurse   instructed     the    driver     to   leave

Resident 3 on the van floor, place a pillow under her head,

cover her with a blanket, and return to the facility – which the

driver     did.       Resident     3   was   transferred     to    the   hospital       by

ambulance and, while being examined for a broken leg, died of an

apparent cardiac event.

      In     May    2006,    these     accidents   became      the     subject     of   an

investigation when the North Carolina Department of Health and


      1
        The administrative record also includes complaints
involving Resident 2, which are not relevant to this appeal.



                                             4
Human     Services       (“NC    HHS”)    responded    to   a   complaint     about

SunBridge.     Through a contract with CMS, NC HHS investigated

these two events as part of a survey of Sunbridge’s compliance

with federal health and safety regulations. 2               42 U.S.C. § 1395aa;

42 C.F.R. § 488.10(a)(1).             Under the applicable regulations, NC

HHS must identify any deficiencies, determine their seriousness,

and     recommend    a     remedy    to    address    them. 3       42   C.F.R.   §§

488.404(b), 488.408.

      Following      the        survey,   NC   HHS    issued    a   Statement     of

Deficiencies in which it determined that SunBridge was not in

substantial compliance with two health and safety regulations,

      2
       As part of the Medicare and Medicaid programs, SunBridge
must   substantially    comply  with  the   health   and    safety
requirements   set   forth   in the  Social   Security   Act   and
implementing regulations. 42 U.S.C. § 1395i-3(a)-(d); 42 C.F.R.
§§ 483.1-483.75.     To ensure that a facility fulfills those
requirements, HHS conducts surveys on a regular basis, as well
as in response to complaints about a facility.       42 U.S.C. §
1395i-3(g); 42 C.F.R. §§ 488.308, 488.332.          Although CMS
administers the Medicare and Medicaid programs, MacKenzie Med.
Supply, Inc. v. Leavitt, 506 F.3d 341, 343 (4th Cir. 2007), HHS
may contract with state entities to conduct a survey. 42 U.S.C.
§ 1395aa; 42 C.F.R. § 488.10(a)(1).
      3
       The degree of seriousness ranges from deficiencies that
result in “[n]o actual harm with a potential for minimal harm”
to those that pose “[i]mmediate jeopardy to resident health or
safety.” 42 C.F.R. § 488.404(b)(1). A facility is deemed to be
in substantial compliance with the health and safety regulations
if its deficiencies “pose no greater risk to resident health or
safety than the potential for causing minimal harm.” 42 C.F.R.
§ 488.301. Potential remedies include a civil monetary penalty,
which CMS may assess on a “per day” or “per instance” basis. 42
U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.430, 488.438(a).



                                           5
one governing accident hazards, 42 C.F.R. § 483.25(h)(1), and

one governing administration, 42 C.F.R. § 483.75.                        NC HHS found

that    Sunbridge’s        non-compliance      posed      “immediate     jeopardy    to

resident health or safety” from March 6, 2006, to May 11, 2006,

and less than immediate jeopardy from May 12, 2006, to June 19,

2006.        Among    other    remedies,       NC   HHS    recommended,      and    CMS

ultimately assessed, civil monetary penalties against SunBridge

of $4,000 per day for the period of immediate jeopardy and $50

per    day   for     the   period   of   non-immediate           jeopardy,   totaling

approximately $270,000.

       SunBridge requested a hearing on CMS’s determination.                        42

C.F.R. § 498.40.           On June 5, 2007, an ALJ heard the matter and

subsequently affirmed the determination.                       In sum, the ALJ held

that (1) SunBridge failed to comply substantially with 42 C.F.R.

§ 483.25(h)(1) because it misused the van’s safety belts while

transporting residents in wheelchairs; (2) SunBridge failed to

comply substantially with 42 C.F.R. § 483.75 because it did not

adequately      investigate      the     accidents        or    ensure    that   staff

members followed the prescribed emergency procedures; (3) the

finding of immediate jeopardy was not clearly erroneous; and (4)

the amount of the civil monetary penalties was reasonable.                           On

October 9, 2007, SunBridge appealed the ALJ’s decision to the

DAB, which affirmed for essentially the same reasons.



                                           6
      SunBridge timely petitioned this court for review.                                For our

purposes,    the       DAB’s        decision       constitutes        the    final       agency

decision.       42 U.S.C. § 1320a-7a(e); 42 C.F.R. § 498.90(c)(1).

We    exercise     jurisdiction         pursuant          to   42     U.S.C.       §§    1395i-

3(h)(2)(B)(ii) and 1320a-7a(e).



                                           II.

      In the petition for review, SunBridge raises four issues: 4

(1)   whether    HHS    has     the    authority       to      regulate      motor      vehicle

travel;   (2)    whether        HHS     applied      an     improper        burden-shifting

framework    that       required        the        facility      to    demonstrate            its

compliance      with    the     regulations          by    a    preponderance           of    the

evidence;    (3)    whether          substantial      evidence        demonstrates           that

SunBridge    was       not     in     substantial         compliance        with     the      HHS

regulations; and (4) whether the civil monetary penalties were

upheld on grounds other than those identified by CMS. 5


      4
       Though SunBridge’s briefing incorporated argument in its
lengthy Statement of Facts, we address only those arguments
contained in the argument section itself.      Fed. R. App. P.
28(a)(9)(A) (requiring the argument section of the opening brief
to contain the “appellant’s contentions and the reasons for
them”).
      5
       In the final decision, the DAB also rejected SunBridge’s
argument that the determination of immediate jeopardy was
clearly erroneous.     SunBridge waives this claim on appeal
because it failed to raise the claim in its opening brief. Fed.
R. App. P. 28(a)(9)(A).    The argument was readily available at
the time of briefing, United States v. Leeson, 453 F.3d 631, 638
(Continued)
                                               7
                                          A.

       SunBridge argues that HHS lacks the authority to regulate

motor vehicle travel.         Although SunBridge correctly notes that

the    Social    Security    Act     and       42   C.F.R.       §    483.25        do    not

specifically      mention   motor    vehicles,       this    court      has     recently

held   that     HHS   reasonably    interpreted       section        483.25(h)(1)          to

authorize       the   issuance      of     citations        to       skilled        nursing

facilities      for    violations        arising    from     the       use     of        motor

vehicles.     Liberty Nursing & Rehab. Ctr. – Mecklenburg County v.

Leavitt, 294 F. App’x 803, 804 n.2 (4th Cir. 2008) (per curiam)

(holding that this regulation should be “interpreted as broadly

as is necessary to protect residents in all locations under the



n.4 (4th Cir. 2006), yet Sunbridge mentioned it only in the
reply brief. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d
337, 356 n.8 (4th Cir. 2009) (citing Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999)).           The
Government’s only mention of this issue consists of a two-page
summary of the DAB’s conclusions. Thus, the Government would be
prejudiced by the consideration of this issue because it lacked
an adequate opportunity to respond. Cavallo v. Star Enter., 100
F.3d 1150, 1152 n.2 (4th Cir. 1996) (holding that consideration
of an issue first argued in the reply brief “would be unfair to
the appellee and would risk an improvident or ill-advised
opinion on the legal issues raised” (internal quotation marks
and citation omitted)).    Even if we deem SunBridge to have
properly raised the immediate jeopardy argument, we note that
this argument lacks merit.     The determination of “immediate
jeopardy” was not clearly erroneous because the record contains
substantial evidence that SunBridge’s noncompliance with the
health and safety regulations “caused, or . . . [was] likely to
cause, serious injury, harm, impairment, or death to a resident”
under 42 C.F.R. § 488.301.



                                           8
facility’s control, including facility vehicles” and that “[i]t

would be incongruous to hold that residents travel at their own

risk when the facility to which they have entrusted their care

transports    them   off-site”).          We        find    that   reasoning     and

conclusion equally applicable here. 6

     SunBridge argues that this interpretation deprived it of

notice and due process.       We disagree.            SunBridge had sufficient

notice because the statute and section 483.25(h)(1) are broad

enough   to   encompass    motor   vehicle      travel.          Due   process   was

afforded because Sunbridge participated in a hearing before the

ALJ and an appeal before the DAB.

                                     B.

     SunBridge    contends    that   HHS   applied          an   improper   burden-

shifting framework that required the facility to demonstrate its

compliance    with   the   regulations         by    a     preponderance    of   the

evidence.     SunBridge argues that this framework violates the

Administrative Procedure Act (“APA”), which generally places the

ultimate burden of proof on “the proponent of a rule or order.”

5 U.S.C. § 556(d).


     6
       We do not accord precedential value to our unpublished
opinions, see Collins v. Pond Creek Mining Co., 468 F.3d 213,
219 (4th Cir. 2006), and certainly not to those of other courts.
In this case, involving an area of the law in which few courts
have published opinions, we cite unreported opinions simply to
demonstrate that other courts share our own views on the legal
questions presented; we do not cite them as precedent.


                                     9
      A    burden-shifting      framework     applies     to    cases    involving

alleged noncompliance with HHS regulations, Hillman Rehab. Ctr.

v. Health Care Fin. Admin., DAB No. 1611, 1997 HHSDAB LEXIS 547,

at *12-13 (1997), aff’d sub nom. Hillman Rehab. Ctr. v. U.S.

Dep’t of Health and Human Servs., No. 98-3789 (GEB), 1999 WL

34813783 (D.N.J. May 13, 1999), as well as to the assessment of

civil     monetary    penalties.      Cross     Creek   Health    Care    Ctr.    v.

Health Care Fin. Admin., DAB No. 1665, 1998 HHSDAB LEXIS 65, at

*25-26 (1998).        CMS initially bears the burden of making out a

prima facie case that it has a legally sufficient basis for its

action.     Hillman, 1997 HHSDAB LEXIS 547, at *12.                If CMS makes

out a prima facie case, the burden shifts to the provider to

“com[e]     forward     with    evidence    sufficient     to    establish       the

elements of any affirmative argument or defense.”                   Id. at *13.

The     facility     “bears    the   ultimate    burden    of    persuasion[,]”

proving “by a preponderance of the evidence on the record as a

whole that it is in substantial compliance with the relevant

statutory and regulatory provisions.”             Id.

      Nevertheless, this burden-shifting framework operates only

when the evidence stands in equipoise.                  Century Care of the

Crystal Coast v. Leavitt, 281 F. App’x 180, 184 n.1 (4th Cir.

2008) (per curiam) (citing Fairfax Nursing Home, Inc. v. U.S.

Dep’t of Health & Human Servs., 300 F.3d 835, 840 n.4 (7th Cir.

2002)).     In this case, as discussed below, the evidence is not

                                       10
in equipoise because the record contains substantial evidence of

SunBridge’s noncompliance with the regulations.                      Consequently,

the burden-shifting framework does not apply to these facts, and

we need not address whether it violates the APA.

                                       C.

      SunBridge next challenges the findings of fact underlying

HHS’s    conclusion       that     Sunbridge       was   not    in     substantial

compliance with the health and safety regulations.                    We accept as

conclusive HHS’s findings of fact “if supported by substantial

evidence on the record considered as a whole.”                        42 U.S.C. §

1320a-7a(e).      Substantial evidence is “such relevant evidence as

a    reasonable    mind    might    accept     as    adequate    to     support   a

conclusion.”       Richardson v. Perales, 402 U.S. 389, 401 (1971)

(internal quotations and citation omitted).                     “It consists of

more than a mere scintilla of evidence but may be somewhat less

than a preponderance.”           Laws v. Celebrezze, 368 F.2d 640, 642

(4th Cir. 1966).

                                       1.

      SunBridge contends that HHS failed to identify substantial

evidence demonstrating a violation of 42 C.F.R. § 483.25(h)(1),

which requires a facility to “ensure that . . . [t]he resident

environment remains as free of accident hazards as is possible.”

We conclude that there is ample evidence that SunBridge was not

in   substantial    compliance      with    this    regulation    because    staff

                                       11
members improperly fastened the safety belts of residents in

wheelchairs.

     First,       the    record        shows    that      the      safety        belts   worked

properly    when        buckled    to     the       floor    behind        the     wheelchair.

Several technical bulletins, photographs, and figures, including

some submitted by SunBridge itself, indicate that the safety

belts,    which    were        attached    to       the     van    sidewall,        should   be

strapped across the resident’s lap and then buckled onto the

floor behind the wheelchair.               In this fashion, the belt secures

both the wheelchair and the resident.                         A member of the NC HHS

survey     team     also        indicated,          in      both     the     Statement       of

Deficiencies and her testimony before the ALJ, that she watched

a SunBridge staff member demonstrate how a resident could not

slide out of a wheelchair if the safety belt was buckled behind

the wheelchair.          By contrast, the demonstration also showed that

if the safety belt was buckled in front of the wheelchair, a

resident could not be secured across the waist and therefore

could    slide    out     of    the     wheelchair.             Furthermore,         SunBridge

produced no evidence that the safety belts worked properly when

buckled in front of the wheelchair.

     Second,      substantial          evidence       shows        that    SunBridge      staff

members routinely buckled the safety harnesses in front of the

wheelchair.        The     NC    HHS    surveyor         indicated        that    she    watched

SunBridge perform a safety demonstration during which a driver

                                               12
buckled    the     safety      belt    in     front     of    the     wheelchair.          The

surveyor    also       noted    that    a    driver     had    admitted          that   safety

harnesses could not be buckled behind the wheelchairs whenever

at least four wheelchairs were in the van, which occurred at

least     three    times       per    week.         SunBridge        also    proffered      no

documentary       evidence      that    staff       members     buckled       safety     belts

behind wheelchairs or were trained specifically on the use of

safety belts for wheelchair-bound residents.

      Finally,      Sunbridge        argues     that    there        is    not   substantial

evidence that the harm to the residents was foreseeable.                                   Me.

Veterans’    Home      –    Scarborough        v.   Ctrs.      for    Medicare      Medicaid

Servs.,    DAB    No.      1975,     2005     HHSDAB    LEXIS        54,    at   *11    (2005)

(holding that the regulation regarding accidents applies only to

those risks of harm that are forseeable).                        To determine whether

a facility has complied with section 483.25(h)(1), a court may

“evaluat[e] whether the facility has addressed foreseeable risks

by identifying and removing hazards, where possible, or, where

the   hazard      is    unavoidable         because     of    other        resident     needs,

managing the hazard by reducing the risk of accident to the

extent possible.”           Id. at *17-18.

      Substantial          evidence    indicates        that    SunBridge         failed    to

address the foreseeable risk that the misuse of the safety belts

posed to residents in wheelchairs.                     SunBridge should have known

to conduct an investigation into the use of the safety belts

                                              13
because the wife of Resident 1 reported to SunBridge, via a

social worker, that she had witnessed “her husband going head

first out of the wheelchair” and had seen “the wheelchair on top

of her husband, who didn’t have a seat belt on.”                       (A.R. 842.)

SunBridge    also     should     have    known      to   engage   in     such     an

investigation      after   the   accident        involving   Resident      3,    who

Sunbridge    admits    slid    down     in    her   wheelchair.        SunBridge’s

claims that the DAB imposed “per se regulatory liability” or

“strict liability” for the accidents are meritless.                    Substantial

evidence shows that the risk was foreseeable because SunBridge

could have identified it either through a routine demonstration

of the safety belts or through adequate investigations into the

accidents involving Residents 1 and 3.

                                         2.

       SunBridge argues that CMS offered no evidence to support a

violation of 42 C.F.R. § 483.75, which requires a facility to

“use   its   resources     effectively        and   efficiently   to    attain    or

maintain     the    highest      practicable         physical,    mental,        and

psychosocial well-being of each resident.”                “[A]n administrative

deficiency is a derivative finding, based on the presence of

other deficiencies.”        Century Care, 281 F. App’x at 186; accord

Asbury Ctr. v. U.S. Dep’t of Health & Human Servs., 77 F. App’x

853, 857 (6th Cir. 2003).             In this case, as discussed above,



                                         14
there is substantial evidence that SunBridge violated section

483.25(h)(1), governing accidents.

        The     record     also     contains         substantial         evidence       that

SunBridge was not in substantial compliance with section 483.75.

In particular, SunBridge failed to adequately investigate the

accidents involving Residents 1 and 3.                        Sunbridge’s corporate

manual        directs    supervisors      to       “immediately      investigate         the

accident to determine the . . . cause” and to take steps “to

eliminate        that     cause.”        (A.R.      449.)         Although       SunBridge

investigated        the     accidents,        it     merely    interviewed          a    few

witnesses and examined whether the safety belts were in working

order.        These investigations were inadequate because they did

not inquire whether staff members used the safety belts properly

for wheelchair-bound residents and did not identify the cause of

the accidents.

        There is also substantial evidence that SunBridge failed to

follow prescribed emergency procedures.                       SunBridge’s corporate

manual    requires       drivers    to   be    trained      “on    how    to    report    an

accident and what to do at the scene.”                     (A.R. 449.)         This manual

also prohibits drivers from moving injured persons “if likely to

cause    further        injury.”     (A.R.         449.)      Despite     the     manual’s

training requirements, the record indicates that some employees

were ignorant of such emergency procedures.                        Furthermore, there

is evidence that the driver and the on-duty nurse disregarded

                                           15
those emergency procedures after the accident involving Resident

3.   Contrary to the prohibition against moving injured persons,

the driver attempted to return Resident 3 to her wheelchair.

When this attempt proved unsuccessful, the driver called the on-

duty nurse.     The on-duty nurse, without having examined Resident

3 personally to determine the extent of her injuries, instructed

the driver to leave the resident on the floor of the van, place

a pillow under her head, cover her with a blanket, and return to

the facility.     Thus, we find there was substantial evidence to

support a violation of 42 C.F.R. § 483.75.

                                   D.

     Finally, SunBridge contends that HHS violated the APA and

ignored relevant case law by upholding the assessment of the

civil monetary penalties 7 on theories other than those identified

in the Statement of Deficiencies or presented by CMS.                We find

this contention to be without merit.

     SunBridge    claims   that   it    lacked   timely     notice   of   the

alleged deficiencies, as mandated by the APA.         The APA “requires

procedural fairness in the administrative process.”                  Rapp v.

U.S. Dep’t of Treasury, 52 F.3d 1510, 1519 (10th Cir. 1995).

Section 554(b)(3) provides that “[p]ersons entitled to notice of


     7
       SunBridge does not challenge          the   amount    of   the   civil
monetary penalties in this appeal.



                                   16
an agency hearing shall be timely informed of . . . the matters

of fact and law asserted.”              5 U.S.C. § 554(b)(3); see Clearwater

Finishing Co. v. NLRB, 670 F.2d 464, 468 (4th Cir. 1982).                               An

agency       contravenes      this     notice      provision     if    it    sustains    a

violation         different     from   any     that    is    clearly   listed    on   the

charging document.              See, e.g., Bendix Corp. v. FTC, 450 F.2d

534, 542 (6th Cir. 1971) (“an administrative agency must give a

clear statement of the theory on which a case will be tried”).

Notice       is    sufficient     as    long      as   the    party    “is    reasonably

apprised of the issues in controversy[] and is not misled.”                             St.

Anthony Hosp. v. U.S. Dep’t of Health and Human Servs., 309 F.3d

680,     708      (10th   Cir.     2002)       (internal      quotation      marks    and

citations omitted); accord Harman Mining Co. v. Layne, No. 97-

1385, 1998 U.S. App. LEXIS 21109, at *23 (4th Cir. Aug. 27,

1998).       To establish a violation of this provision, a party must

demonstrate that it did not fully and fairly litigate the issue

at     the    hearing     and    suffered         prejudice     from   the     allegedly

insufficient notice.            St. Anthony Hosp., 309 F.3d at 708; Yellow

Freight Sys., Inc. v. Martin, 954 F.2d 353, 358 (6th Cir. 1992).

       SunBridge claims that the ALJ overstepped his authority by

introducing his own novel theory for the deficiencies in his

decision, depriving it of the timely notice required by section




                                             17
554(b)(3). 8      SunBridge asserts that CMS based the deficiency

finding on a failure to provide supplemental lap belts yet the

ALJ upheld the civil monetary penalties based on the alleged

misuse of the existing safety belts in the van.                      As proof that

CMS relied on the absence of supplemental lap belts for the

deficiency      finding,       SunBridge      claims    that   CMS     accepted         a

compliance      plan     requiring       the      installation       and    use        of

supplemental lap belts.

     We disagree with Sunbridge’s characterization and find that

the Statement of Deficiencies satisfies the notice provision of

the APA.       The Statement of Deficiencies clearly indicates that

SunBridge    “failed     to    provide     safe   transportation      for   2     of    2

residents”     and     would    remain   out      of   compliance    with   section

483.25(h)(1) until it implemented a method that would “safely

secure residents for transportation.”                  (J.A. 6.)      Furthermore,


     8
       In the Statement of Facts, SunBridge also claims that
counsel for CMS introduced a novel theory for the administration
deficiency at the hearing by alleging a deficiency based on the
inadequacy of Sunbridge’s emergency procedures.        SunBridge
complains that this deficiency was not raised in either the
Statement of Deficiencies or the prehearing pleadings and only
arose in CMS’s opening statement at the hearing.        Although
SunBridge neglected to raise this particular claim in the
argument section of the opening brief, we consider it because it
relates to the notice issue.      Nevertheless, we reject this
argument because the Statement of Deficiencies manifestly
provides adequate notice inasmuch as it states that SunBridge’s
staff members were not properly trained “on procedures to follow
at the time of an emergency.” (J.A. 25.)



                                         18
the Statement of Deficiencies describes two specific incidents

that involved wheelchair-bound residents who were not securely

buckled into the SunBridge van and notes that staff members were

uncertain of the proper method for buckling wheelchairs into the

van.         Contrary   to     SunBridge’s     claim,    the    Statement        of

Deficiencies never identifies the absence of supplemental lap

belts as the basis of the deficiency.                Thus, the Statement of

Deficiencies       provided    SunBridge     with    adequate       notice   that

improper use of the safety belts was the basis of the accident

hazard deficiency.



                                     III.

       For   the   foregoing    reasons,     the   decision    of   the    DAB   is

affirmed.

                                                                          AFFIRMED




                                      19
