SUBJECT: Lebanon Nursing and Rehabilitation Center,

Petitioner,

Centers for Medicare & Medicaid Services

REMAND OF
ADMINISTRATIVE LAW JUDGE DECISION

Lebanon Nursing and Rehabilitation Center (Lebanon) appealed the July 18, 2003 decision of Administrative Law Judge (ALJ) Steven T. Kessel sustaining the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a civil money penalty (CMP) on Lebanon of $400 per day for the period February 21 through March 21, 2001. Lebanon Nursing and Rehabilitation Center, DAB CR1069 (2003) (ALJ Decision). CMS had imposed the CMP based on a survey by the Ohio Department of Health (State agency) that found that Lebanon was not in substantial compliance with the Medicare participation requirement at 42 C.F.R. � 483.25(h)(2). That section provides that the facility "must ensure" that "each resident receives adequate supervision and assistance devices to prevent accidents." The ALJ decided the case without an in-person hearing, granting CMS's motion for summary judgment, which Lebanon opposed on the ground that there were genuine issues of material fact on which it was entitled to a hearing. The ALJ determined that Lebanon did not raise any disputes of material fact and that the undisputed facts supported the imposition of the CMP.

As discussed below, we conclude that Lebanon raised some genuine disputes of material fact (including with respect to "facts" the ALJ determined were material but undisputed). Therefore, Lebanon was entitled to a hearing, and summary judgment in favor of CMS was not appropriate. For the most part, the disputed facts are the bases for conflicting expert opinions, in declarations proffered by the parties, regarding the adequacy of the supervision and the appropriateness of the assistance devices provided by Lebanon to two of its residents. Determining "adequacy" and "appropriateness" here involves interpreting each resident's records to determine what Lebanon knew about the nature of the risks and to evaluate what Lebanon did to address those risks. Lebanon's nurse expert claimed to have personal knowledge and familiarity with the residents, as well as to have investigated one of the key incidents. In rejecting her declarations as "not persuasive," the ALJ failed in some key respects to view this and other evidence in the light most favorable to Lebanon, as required for summary judgment purposes. While arguably no genuine dispute on the issue of noncompliance would be raised if the facts alleged in the declarations were clearly inconsistent with the residents' treatment records, here the evidence in the records as a whole is subject to different interpretations on certain key points. This case is thus distinguishable from other cases where the records unambiguously showed that a facility did not provide supervision and/or assistance devices consistent with a resident's plan of care.

Moreover, in determining that the CMP amount was reasonable, the ALJ concluded that the facts he considered material and undisputed show a relatively high degree of culpability, but disregarded undisputed facts, as well as evidence, that would tend to reduce the degree of culpability, when viewed in the light most favorable to Lebanon.

Finally, although CMS had the initial burden of showing that there was no dispute of material fact, neither CMS in its motion nor the ALJ in his decision addressed whether there was any dispute of fact material to the issue of the duration of the remedy.

Accordingly, without reaching the merits of the disputes, we remand this case to the ALJ for further proceedings, consistent with our decision.

Legal Background

Lebanon is a skilled nursing facility (SNF) that participates in the Medicare program. The regulatory requirements for SNFs and other longterm care facilities participating in Medicare are set forth at 42 C.F.R. Part 483.

Compliance with the participation requirements is determined through surveys performed by state agencies under contract with CMS. Survey results are reported in a "Statement of Deficiencies." 42 C.F.R. � 488.325(a).

A CMP may be imposed against a facility that is not in "substantial compliance" with one or more participation requirements. 42 C.F.R. � 488.408(d). A facility is not in "substantial compliance" with a participation requirement if it is found to have a deficiency that results in actual harm to a resident or poses a risk of more than minimal harm to resident health and safety. 42 C.F.R. � 488.301. A CMP in the range of $50-$3,000 per day may be imposed for one or more deficiencies that do not constitute "immediate jeopardy" but that either cause actual harm or create the potential for more than minimal harm. 42 C.F.R. � 488.438(a). Within the applicable range, the regulations provide a number of factors to be considered by CMS in determining an appropriate CMP amount. These factors are the facility's history of noncompliance, its financial condition, its culpability for the cited deficiencies, the scope and severity of those deficiencies, and the relationship between or among the deficiencies. 42 C.F.R. � 488.438(f)(3), incorporating by reference 42 C.F.R. � 488.404.

Under 42 C.F.R. Part 498, there is a right to request a hearing by an ALJ assigned to the Departmental Appeals Board and a right to request review of an ALJ decision by the Board itself. The hearing procedures in Subpart D of Part 498 generally contemplate that the ALJ will fix a time for an oral hearing at which witnesses will testify and may be cross-examined (unless the parties have waived their right to a hearing in writing). A requirement affording the opportunity for an oral hearing is not contravened by a summary judgment if there are no genuine issues of material fact, however. Everett Rehabilitation and Medical Center, DAB No. 1628 at 3 (1997), citing Travers v. Shalala, 20 F.3d 993, 998 (9^th Cir. 1994). Thus, in reviewing a case where an ALJ did not either obtain a written waiver or hold an oral hearing, we may nonetheless uphold the decision if the affected party either had conceded all of the material facts or proffered testimonial evidence only on facts which, even if proved, clearly would not make any substantive difference in the result. Big Bend Hospital Corp., DAB No. 1814 (2002), aff'd, Big Bend Hospital Corp. v. Thompson, No. P-02-CA-030 (W.D. Tex. Jan. 2, 2003).

Whether summary judgment is appropriate is a legal issue that we address de novo, viewing the proffered evidence in the light most favorable to the non-moving party. See Crestview Parke Care Center, DAB No. 1836 (2002). Although the Federal Rules of Civil Procedure (FRCP) are inapplicable in this administrative proceeding, we are guided by those rules and by judicial decisions on summary judgment in determining whether the ALJ properly granted summary judgment. See Thelma Walley v. Inspector General, DAB No. 1367 (1992). ⁽¹⁾

Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986). The party moving for summary judgment bears the initial burden of demonstrating that there are no genuine issues of material fact for trial and that it is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. This burden may be discharged by showing that there is no evidence in the record to support a judgment for the non-moving party. Id. at 325. If a moving party carries its initial burden, the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.' " Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (quoting FRCP 56(e)). To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact -- a fact that, if proven, would affect the outcome of the case under governing law. Id. at 586, n.11; Celotex, 477 U.S. at 322 (moving party is entitled to summary judgment if the party opposing the motion "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial"). Finally, in order to demonstrate a genuine issue, the opposing party must do more than show that there is "some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, at 587.

Under the applicable substantive law, CMS has the initial burden of coming forward with evidence on any disputed facts showing that the provider was not in substantial compliance with Medicare participation requirements. However, the provider bears the ultimate burden of persuasion that it was in substantial compliance with those requirements. See South Valley Health Care Center, DAB No. 1691 (1999), aff'd, South Valley Health Care Center v. HCFA, 223 F.3d 1221 (10^th Cir. 2000); see, also, Batavia Nursing and Convalescent Center, DAB No 1904 (2004).

Consequently, if CMS in its summary judgment motion has asserted facts that would establish a prima facie case that the facility was not in substantial compliance, the first question is whether the facility has in effect conceded those facts. If not, the next question is whether CMS has come forward with evidence to support its case on any disputed fact. If so, the facility must aver facts and proffer evidence sufficient to show that there is a genuine dispute of material fact. The facts on which the facility proffers evidence are not necessarily limited to facts that directly controvert the facts asserted by CMS since additional facts may be sufficient as a basis for determining that the facility was in substantial compliance. Ultimately, if the proffered evidence as a whole, viewed in the light most favorable to the facility, might cause a rational trier of fact to reach an outcome in favor of the facility, summary judgment on the issue of substantial compliance is not appropriate.

Moreover, where the duration of a per day CMP or the reasonableness of the amount of the CMP are at issue, an ALJ may not dispose of the case entirely on a summary judgment motion without considering whether there is a genuine dispute of fact material to resolving those issues.

Case Background

The following background information is drawn from the ALJ Decision and the record before the ALJ.

The State agency conducted a complaint survey of Lebanon on February 21, 2001, during the course of which it determined that Lebanon had failed to provide its residents with adequate supervision and assistance devices to prevent accidents, in violation of section 483.25(h)(2). Tag F324 of the Statement of Deficiencies identified incidents involving two residents - Resident 39 and Resident 57 - as a basis for this deficiency finding. ALJ Decision at 1; CMS Ex. 9 (Revised Statement of Deficiencies).

CMS notified Lebanon on May 10, 2001 that it was not in substantial compliance with Medicare and Medicaid participation requirements and that the cited deficiencies had resulted in actual harm to residents that was not immediate jeopardy. CMS also advised Lebanon of its decision to impose a $500 per day CMP effective February 21, 2001. ⁽²⁾ A revisit survey was performed on March 22, 2001. Based on the findings of that survey, CMS determined that Lebanon had achieved substantial compliance as of that date. Accordingly, CMS informed Lebanon that the total CMP imposed was $11,600 (equal to $400 per day for the 29 days beginning on February 21 and continuing through March 21). ALJ Decision at 2; CMS Exs. 13 and 14.

Lebanon appealed CMS's determination to the ALJ. An in-person hearing was convened on March 20, 2003. However, the ALJ recessed the hearing because there was no court reporter present. Subsequently, CMS moved for summary judgment, alleging that there was no dispute regarding the facts underlying the deficiency finding. Lebanon opposed the motion, alleging that there remained issues of credibility and genuine issues of material fact, and that CMS was not entitled to judgment as a matter of law. Both parties relied on medical records and written witness declarations submitted as proposed exhibits prior to the date the case was scheduled for hearing. CMS submitted a declaration from Amy Hunter, Assistant District Office Supervisor, Ohio Department of Health, and from Surveyor Bernadette M. Poole (CMS Exs. 30 and 31). ⁽³⁾ Lebanon submitted a declaration from Gregory Carpenter, D.O., Lebanon's Medical Director (P. Ex. 3), and two declarations from its Director of Nursing, Kimberley Berner, RN,C (P. Exs. 4 and 5, dated 9/9/02 and 5/26/03). ALJ Decision at 2.

ALJ Decision

The ALJ made four numbered findings of fact and conclusions of law (FFCLs):

FFCL 1. Summary disposition is appropriate.

FFCL 2. Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(h)(2).

FFCL 3. Petitioner's noncompliance persisted during a period that began on February 21, 2001, and which ran through March 21, 2001.

FFCL 4. It is reasonable to impose civil money penalties of $400 for each day of the period that began on February 21, 2001, and which ran through March 21, 2001.

ALJ Decision at 3, 6, and 14.

The ALJ based FFCL 2 on findings involving both Resident 39 and Resident 57.

In its request for review of the ALJ Decision, Lebanon disputed all four FFCLs. Lebanon argued that it was entitled to an evidentiary hearing on the issue of whether it substantially complied with the requirement of participation at 42 C.F.R. � 483.25(h)(2) since there were material facts in dispute. In addition, Lebanon argued that the facts alleged by CMS, even if true, did not establish that Lebanon failed to substantially comply with this requirement. Lebanon also took exception to the ALJ's finding that the CMP amount was reasonable and that the period of the CMP should run through March 21, 2001.

Whether summary judgment in favor of CMS was appropriate is a legal issue that we must examine using the summary judgment principles discussed above. On that issue, the ALJ's analysis does not withstand close scrutiny.

We first note that, although the ALJ concluded that certain facts alleged in the survey report and disputed by Lebanon were irrelevant and immaterial, CMS did not take the position in its motion that they were not material. Instead, CMS treated them as essential elements of its case. Nearly all are facts which each of the CMS witnesses treat as part of the basis for the opinion that Lebanon was not in substantial compliance with 42 C.F.R. � 483.25. Since CMS had the initial burden to show that there was no dispute of material fact, this at least raises a question of whether Lebanon fairly knew that it not only needed to show that these facts were genuinely disputed, but also to explain why they were material. Moreover, since the CMS experts' opinions did not differentiate among the alleged bases for their opinions, cross-examination at a hearing could serve the purpose of sorting out whether their opinions would change if their factual assumptions were wrong. Unlike cases where a facility sought a hearing merely to cross-examine surveyors in hopes of eliciting some helpful fact or opinion, Lebanon seeks here to establish that the opinions were based on an erroneous or incomplete view of the facts and that more weight should be given to its expert's opinion because the CMS witnesses are not credible and had no personal knowledge of the residents. ⁽⁴⁾

In his decision, the ALJ set out and distinguished the "contentions" made by CMS and certain alleged "prima facie facts" with respect to each resident (including "facts" that he attributed to Lebanon's exhibits, but which are allegations made in the CMS declarations regarding matters such as medication side effects). He concluded that the "foregoing facts describe a prima facie case of failure by Petitioner to provide its residents with supervision necessary to prevent accidents." He then went on to say:

The inference that I draw from the facts presented by CMS about Resident No. 39 is that the resident sustained a fall on November 26, 2000, because Petitioner's staff failed to supervise the resident consistent with the resident's limitations and needs. The prima facie facts show that Resident No. 39 was at great risk for falling. The resident's gait and balance were so impaired that she needed assistance in ambulating. Her dementia affected her judgment. Moreover, on November 26, 2000, the resident's ability to balance and steady herself were further impaired as a consequence of her left hand being heavily bandaged and her wearing mittens and flexible wrist restraints. Petitioner's staff was well-aware of these limitations. Yet, on November 26, 2000, a nurse's aide left the resident alone, in a standing position. Consequently, the resident fell.

I draw a substantially identical inference from the facts presented by CMS about Resident No. 57. This resident sustained a fall on February 11, 2001, because Petitioner's staff failed to take appropriate actions to prevent the resident from falling from her bed. The staff knew that the resident was at a great risk for falling from bed. She had fallen from bed twice in the month prior to February 11, 2001. The staff also knew that the interventions that they had implemented to prevent the resident from falling from bed were ineffective. Placing a wheelchair and a walker next to the resident's bed after the January 16, 2001 fall did nothing to protect the resident against falling subsequently. Notwithstanding, the resident was left alone in bed on February 11, 2001, without additional protections against falling having been implemented. On that date, she fell from her bed and was injured.

ALJ Decision at 9 -10 (emphasis added). He further determined that Lebanon "has not offered any facts which contradict or rebut the facts on which CMS relies to make its case" and "relies on the opinions of Ms. Berner in order to refute CMS's assertions." ALJ Decision at 10.

As Lebanon pointed out, however, much of what CMS relied on as "facts" are statements about the residents' needs and status that CMS inferred from parts of the resident assessments or from the investigation reports of the fall incidents. Unlike other cases in which we have upheld summary judgment rulings, this is not a case where the undisputed facts establish that the facility did not follow its own plan of care for a resident. See, e.g., Windsor Health Care Center, DAB No. 1902 (2003). Nor is this a case where the undisputed facts show that the facility failed completely to identify a fall risk of which it should have known or that it had no plan to address an identified risk. Instead, this case involves interpreting records of two residents, to determine what was the nature of their risk for accidents, whether Lebanon could have reasonably foreseen accidents that did occur, and whether the supervision and assistance devices Lebanon provided were "adequate" and "appropriate" to prevent those accidents. Lebanon offered its own expert opinion, by its Director of Nursing, who claimed personal knowledge and familiarity with the residents, and who offered a different reading of the records and the risks involved, focusing on different parts of the records and on the results of her own investigation of the incident involving Resident 39. Compare Livingston Care Center, DAB No. 1871, at 11-12, n. 4 (2003) (declarant did not aver she was personally involved in [resident's] care or that she had discussed the problem with persons responsible for the care). Contrary to what the ALJ said, the Berner declarations do aver some facts that contradict the allegations made by CMS, including by incorporating by reference Lebanon's response to the survey report. More important, Lebanon pointed to evidence in the record and proffered testimony, based on Ms. Berner's knowledge and investigation and a physician's opinion, which, viewed in the light most favorable to Lebanon, undercut the inferences drawn by the CMS experts and the ALJ about the nature of the risks and incidents and the mental and physical status of the residents at the time of the incidents in question.

The ALJ's statement about what he "infers" from the "prima facie facts" presented by CMS may be enough to establish that CMS made a prima facie case, but is not enough to support summary judgment in favor of CMS. Where the evidence relied on by CMS is ambiguous or inconsistent with other evidence in the record, what the ALJ might infer from the facts as presented by CMS is irrelevant, even if reasonable. For purposes of summary judgment, the ALJ must view the proffered evidence as a whole, drawing the inferences in the light most favorable to Lebanon, unless no rational trier of fact could draw those inferences.

When viewed in the light most favorable to Lebanon, the proffered evidence with respect to Resident 57, in particular, paints a picture different from that in the ALJ Decision. First, the ALJ identifies the accident risk at issue as the risk of Resident 57 "falling from bed." He apparently based this on the CMS allegation that two of the prior incidents had been falls from bed and the implication that the final incident on February 11 was a fall from bed. The Berner declarations describe the risk differently, however, based on her reading of the record and familiarity with the resident. The risk as she saw it was that "the resident's strong willed self determination demanded that she would get out of bed with or without assistance, with or without devices, if she decided to" and that the incident of February 11 was "an attempted self transfer that was complicated by a cardiac episode producing syncopy," not a fall out of bed. P. Ex. 4, at 4-5 (emphasis in original). This view is supported by the following in the record:

• The first incident for Resident 57 was attributed to a syncope attack, which occurred as she was walking sideways with a plate in her hand in the dining room on December 30, 2000, and staggering and falling backwards after a period of increased agitation. P. Ex. 2, at 4. Among other measures in response to this incident, Lebanon obtained a restraint order for side rails, which were reported as in place a the time of the second incident, on January 16, 2001. P. Ex. 2, at 1. The second incident was described as happening when the side rails were up during an attempted self-transfer, and the resulting assessment indicated that she was not able to process to not "get out of bed" without assistance. P. Ex. 2, at 8, 24. Lebanon obtained a physician's order to place a locked wheelchair by one side of the bed and her walker on the other side "to enable support if tries unassisted transfers." P. Ex. 2, at 25. The resident had been receiving ambulation retraining from a physical therapist since January 5, 2001. P. Ex. 4, at 5, 27. The next incident, on January 31, she was found "sitting upright on floor next to bed." P. Ex. 2, at 12. (Although this incident was treated as a fall, there was no injury, nor any finding in the record about how she got there.)



• The survey report found no interventions after the January 31 incident, but Lebanon's response to the survey report points to new interventions by the Falls Committee, related to their evaluation of what caused the incident -- putting her to bed too early. The documentation of the Falls Committee meeting shows that the new intervention was to keep her up in her wheel chair (for which she had a "lap buddy") "after dinner as tolerated" and to get her up out of bed if she was restless "to allow close observation." P. Ex. 2, at 12, 25. (As discussed below, the ALJ treats this intervention as tantamount to no intervention at all since it would not protect her from falling from bed, but a rational trier of fact could defer to the Falls Committee's judgment that, if she were not in bed during the time periods when she was exhibiting the agitation that may have led her to attempt to self-transfer out of bed, this would mitigate her risk of falls.)



• The Falls Committee report of the February 11, 2001 incident describes symptoms consistent with the Berner declarations and says that the resident "attempted to transfer/ambulate." P. Ex. 2, at 15. Thus, a finding other than the ALJ's finding that she had "fallen out of bed" is permissible from the record. CMS did not find that the interventions planned as a result of the previous incidents were not in place at the time of this incident, and Lebanon proffered evidence that they were. See, e.g., P. Ex. 4, at 6, and exhibits cited therein.
  

The parties' key dispute with respect to this resident was clearly over the appropriateness of the planned use of the wheelchair and walker as an intervention. Lebanon proffered evidence that this intervention was ordered by a physician, after being recommended by the Falls Committee, which included, among others, the physical therapist who was providing therapy to the resident. P. Ex. 4, at 4-5; P. Ex. 2, at 8. Lebanon also proffered Ms. Berner's expert opinion, which she said was based on personal knowledge and familiarity with the resident, that the intervention was appropriate and would not, as the CMS witnesses asserted, encourage the resident to get out of bed. P. Ex. 4, at 4-5. She also stated her opinion, based on her personal knowledge and reading of the record, that the resident had sufficient cognitive abilities to use these devices to brace herself. Id. at 5.

The ALJ Decision indicates in some places that the ALJ viewed this dispute as irrelevant because Lebanon knew, as of January 31, 2001, that "the placement of these devices did nothing to deter the resident from falling out of bed." ALJ Decision at 13. As discussed above, however, Lebanon proffered evidence that it did not evaluate the risk to the resident as the risk of "falling out of bed." Lebanon also proffered evidence that its evaluation of the causes of the January 31 fall led it to conclude that the walker and wheelchair were not wholly ineffective in addressing her risk of falling and that the fall was caused because Resident 57 was put to bed too early. P. Ex. 4, at 5. More important, Lebanon pointed to the evidence in the record that it did plan for and implement other steps to address the risk that were related to the Fall Committee's evaluation of the reason for the January 31 fall, and that the cause of the incident on February 11 was not because of a failure of the wheelchair or walker to provide her support in getting out of bed or in ambulating once out of bed. Id. at 4-5, and exhibits cited therein. The ALJ Decision dismissed the evidence about the cause of the February 11 fall as irrelevant to the issue of whether Lebanon "was doing enough to protect Resident 57." ALJ Decision at 13. Yet, the evidence, viewed most favorably to Lebanon, is relevant to the reasonableness of its staff relying on the wheelchair and walker, together with the other interventions it had implemented, to address the risk as Lebanon staff saw it at the time.

Elsewhere in his decision, including in his analysis of Lebanon's culpability, the ALJ suggested that Lebanon's staff had "failed to address the risk" to Resident 57 by failing "to provide additional assistance . . . when their interventions proved themselves to be ineffective." ALJ Decision at 15. Yet, the evidence Lebanon proffered, viewed in the light most favorable to it, presents a different picture from the ALJ's findings about what Lebanon knew or should have known about the risk at the time, whether Lebanon in fact knew or should have known that the intervention was ineffective, and whether Lebanon was disregarding the risk or taking reasonable steps to address it.

Moreover, while in part of his decision the ALJ treated as immaterial the parties' dispute over whether alternative remedies would have been appropriate for this resident, he elsewhere accepted the CMS view that "at the very least, Petitioner could have placed padding on the floor next to the resident's bed [or] . . . lowered the bed to minimize the distance between the bed and the floor [or] . . . put an alarm in the resident's bed." ALJ Decision at 13. Lebanon's evidence that caretakers with knowledge of the resident determined that these options would have been more harmful than beneficial to the resident was sufficient to raise a genuine dispute about this issue, however. We also note that CMS ultimately did not dispute that the resident was in fact placed in the room closest to the nurses station. The ALJ Decision totally disregards this undisputed fact, even though the survey report identifies this as an appropriate step to protect the resident. The ALJ Decision also treats as wholly irrelevant the undisputed fact that Lebanon planned to keep the resident out of bed longer in the evening and whenever she was restless, an intervention that, viewed in the light most favorable to Lebanon, could be considered an increased level of supervision that would decrease the likelihood that she would attempt on her own to get out of bed.

Ultimately, the ALJ's conclusions about Resident 57 rest primarily on the fact of the incidents alone. While actual falls are relevant in determining the nature of the accident risk and what a facility knew or reasonably should have known about the risk, the mere fact of a fall as an outcome is not determinative where other evidence is presented on the adequacy of what was provided under the individual circumstances. In particular, the Board has recognized that, in determining what steps to take, a facility needs to evaluate whether the steps would constitute a restraint that might lead to diminishment in resident functioning, contrary to the intent of the regulations. See, e.g., Woodstock Care Center, DAB No. 1726, at 31-32 (2000). The evidence proffered by Lebanon here, viewed most favorably to it, shows that it was conscious of the restraint issue and that, at the time Lebanon determined how to address the resident's risk, it viewed several of the alternative measures the CMS witnesses said Lebanon should have implemented to be unnecessary restraints that would have affected the resident's perception of her dignity and increased her emotional distress and agitation or that the alternative measure (specifically, a body alarm) would be ineffective for this resident. See, e.g., P. Ex. 4, at 4-6.

The ALJ Decision contains no specific analysis of whether the evidence would permit inferences different from the inferences he in fact drew. The ALJ's statement that he found the Berner "opinions not to be persuasive" (ALJ Decision at 11) further supports our conclusion that the ALJ erred by failing to view the evidence as a whole (and the inferences drawn from it) in the light most favorable to Lebanon. The issue for summary judgment is not whether Lebanon has offered evidence that persuades a particular trier of fact, but whether it has proffered evidence sufficient to show there is a genuine dispute of material fact. Moreover, the proffered testimony was not solely opinion testimony; instead, Ms. Berner said her statements were based on personal knowledge and familiarity with residents.

Further, given the extent to which resolving the issues here depends on evaluating the resident's needs and the adequacy of the steps taken to meet those needs, we conclude that the ALJ's error in granting summary judgment was prejudicial to Lebanon. As a result of the error, Lebanon was denied the opportunity to cross-examine the CMS experts on the bases for their opinions and to establish why its expert drew different inferences, based in part on her personal knowledge of and familiarity with the resident. Our conclusion does not imply that we necessarily think that Lebanon will prevail on these issues, but only that Lebanon presented enough to defeat the motion for summary judgment. Moreover, a factor in our conclusion is that, even if the disputed facts were not material on the issue of substantial compliance, a finding in Lebanon's favor on the disputed facts would affect evaluation of the degree of culpability, a factor to be considered in determining the reasonableness of the amount of the CMP.

Similarly, with respect to Resident 39, we conclude that the ALJ erred in determining that all of the material facts were undisputed. First, some of the "prima facie facts" about Resident 39 which the ALJ himself considered undisputed and material and from which he inferred that Lebanon was not in substantial compliance were in fact disputed. Examples of this include the following:

• The ALJ found, as a "prima facie fact", that the Resident 39's "gait and balance were so impaired that she needed assistance in ambulating." ALJ Decision at 10. The ALJ appeared to infer from this (but did not specifically state) either that this also meant she could not stand, even holding onto a bed frame, or that, if she let go of the bed frame, she would likely fall. Lebanon provided Ms. Berner's opinion, based on her personal knowledge and familiarity with the resident as well as the record and her investigation of the incident, that there was no reasonable cause to anticipate that it was not safe for the nurse aide to leave the resident alone in a standing position, supported by holding onto the bed frame, while the nurse aide went across the hall to obtain an incontinence brief. P. Ex. 4, at 3. In support, she cited documents in the record, including a physician consultant's report that the resident "ambulates without any support" and a resident assessment (done closer in time to the incident than the assessment on which CMS relied), indicating that the resident could at times ambulate in her room with supervision only. P. Ex. 4, at 2, and exhibits cited therein. ⁽⁵⁾



• The ALJ treated it as undisputed that Resident 39 was wearing restraints at the time of the incident. ALJ Decision at 10. Ms. Berner's declaration asserts, based on her investigation of the incident (including interviews with the staff that were present), that Resident 39 was not restrained at the time of the incident and that she was not wearing a sling or other device that would impair her ability to balance herself. P. Ex. 5, at 1.



• The ALJ treated it as undisputed that Resident 39's cognitive deficits impaired her judgment to a degree that she could not follow simple instructions. ALJ Decision at 10. Ms. Berner's declaration stated her opinion to the contrary, based on her personal knowledge and familiarity with the resident, and on what the record showed of the resident's mental status just prior to the fall. P. Ex. 4, at 5. Some of the resident assessments from before the key incident on November 26, 2000 indicate that the resident may have been able to follow simple instructions for a short period, if repeated. P. Ex. 1, at 38, 43; see, also, at 45-47 (plan of care). Since it is undisputed that the nurse aide left the resident only to obtain an incontinence brief "across the hall," the issue of the resident's ability to follow the instruction to hold onto the bed frame is material.

Since he viewed these matters as undisputed (though not immaterial), the ALJ did not determine whether the evidence on which Lebanon relied, viewed in the light most favorable to it (including any reasonable inferences drawn from the evidence) was sufficient to raise a genuine dispute of fact.

The ALJ Decision also recognized that there were numerous factual disputes regarding the circumstances of Resident 39's fall. The ALJ analyzed each of these individually and determined that, even assuming the facts asserted by Lebanon were true, each was "irrelevant" to the issue of whether Lebanon was in substantial compliance. Some of the disputes (such as whether the resident was dizzy and/or sleepy at the time of the incident) relate to factors the nursing staff was to observe the resident for under the plan of care, so they are arguably relevant to whether Lebanon was providing services in accordance with the plan of care. P. Ex. at 49. Moreover, since the ALJ identified as a "prima facie fact" that Resident 39 had taken drugs that could make her dizzy or drowsy, resolving this dispute in Lebanon's favor could arguably undercut any inference that her ability to maintain her balance was impaired by the medications. Even if these disputes were not material on the substantial compliance issue, however, CMS and the surveyors were clearly relying on these alleged circumstances as a basis for their evaluation of Lebanon's culpability. (Indeed, CMS did not take the position in its motion for summary judgment that these alleged circumstances were immaterial, even on the issue of substantial compliance, and the CMS declarations do not distinguish what alleged facts the CMS experts were relying on to establish a deficiency and what alleged facts they cited only to buttress their conclusions or to show culpability.) Cumulatively, if not rebutted by Lebanon, the alleged circumstances would be highly relevant in evaluating Lebanon's culpability, especially since this case involves only one deficiency and only two residents.

In discussing the reasonableness of the CMP amount, the ALJ concluded that the undisputed facts showed "a relatively high degree of culpability." ALJ Decision at 15. As discussed above, however, the ALJ viewed some facts as undisputed that were in dispute and also was drawing inferences from undisputed facts that were not the only reasonable inferences from the record as a whole, viewed in the light most favorable to Lebanon. The ALJ also failed to consider, in evaluating the degree of culpability, the undisputed facts regarding Resident 57's room placement and other interventions that Lebanon undisputedly planned for and implemented.

Finally, we note that the ALJ Decision is completely silent on whether the duration was in dispute, as indeed, is the CMS motion for summary judgment although CMS had the initial burden to show that there was no dispute of material fact. Lebanon claimed in its request for review that it did dispute the duration, and the ALJ should address this issue on remand.

Conclusion

For the reasons above, we reverse the ALJ's determination that summary judgment in favor of CMS was appropriate and remand the case to the ALJ for further proceedings.

Cecilia Sparks Ford

Donald F. Garrett

Judith A. Ballard
Presiding Board Member

1. While we held in Glenburn Home, DAB No. 1806 (2002)that an ALJ may not reasonably hold a petitioner to the procedural requirements of FRCP Rule 56, without giving notice that these procedures will apply, the ALJ here did give notice that he would apply Rule 56.

2. This amount was based on the findings of four deficiencies that had been made at the February 21 survey. CMS reduced the penalty amount to $400 per day after three of the four deficiency findings were deleted as a consequence of the informal dispute resolution proceeding.

3. The ALJ Decision incorrectly identifies CMS Ex. 30 as a declaration from David Thompson.

4. The CMS declarants admitted some technical errors about dates in the survey report. In addition, CMS ultimately conceded that, contrary to what the survey report said or implied, Resident 57 was placed in a room near the nurses station, and Lebanon did plan for new interventions after the incident with Resident 57 preceding the key one at issue. While we do not necessarily agree with Lebanon that these errors undercut the witnesses' credibility, the errors do draw into question the care the surveyors took in reviewing the residents' records and in reporting the survey findings. This is one reason why we think this case would benefit from a hearing at which Lebanon has an opportunity to test whether different facts might lead the declarants to change or modify their opinions.

5. The ALJ refers to the resident being left "unattended," which he appears to equate with being left unsupervised. In other cases, however, nurse experts have testified about levels of supervision that do not necessarily mean being right next to the resident and which clearly are different from assisting the resident.