SUBJECT: Glenburn Home,

Petitioner,

Centers for Medicare & Medicaid Services

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Glenburn Home (Glenburn) requested review of the decision by Administrative Law Judge Steven T. Kessel in Glenburn Home, CR794 (2001)(ALJ Decision). That decision sustained the determination of the Centers for Medicare & Medicaid Services (CMS) to impose remedies against Glenburn, including a civil money penalty (CMP) in the amount of $1,000 and a denial of payment for new admissions (DPNA).⁽¹⁾ CMS had issued several determinations based on a series of surveys of Glenburn to determine whether it was in substantial compliance with Medicare and Medicaid requirements for long-term care facilities. Glenburn alleged that the ALJ had committed a procedural error in treating motions by the parties as motions for summary disposition based on documentary submissions and, therefore, determining that Glenburn had waived its right to an oral hearing. Each party asserted, moreover, that the ALJ should have granted summary judgment, as a matter of law, in its favor.

Based on our analysis set out below and summarized here, we vacate the ALJ Decision and remand for further clarification of the issues and for an oral hearing (if not specifically waived by Glenburn in writing). We further order that the proceedings in this case, which was docketed by the Civil Remedies Division (CRD) as C-01-346, and in Glenburn's request for hearing docketed as C-01-610 be consolidated for further proceedings consistent with our decision.

Our decision is based on the following conclusions, among others:

• The ALJ decided issues that were not properly before him, based on an incomplete record. The request for hearing assigned CRD Docket No. C-01-346 is dated January 16, 2001 and relates to a notice of determination dated November 17, 2000. The ALJ Decision, however, addressed a deficiency finding made in the CMS determination issued on February 13, 2001. Glenburn appealed that determination in a request for hearing dated April 13, 2001, which was docketed as CRD Docket No. C-01-610 and which was assigned to a different ALJ. The ALJ did not consider the April 13, 2001 hearing request in reaching his decision.
  
  
• The ALJ Decision treated the deficiency that was the basis for the CMP of $1,000 (imposed for a deficiency on January 3, 2001) as though it were also the basis for the imposition of the DPNA for one day, January 31. The record indicates, however, that the basis for the DPNA was different and was contested by Glenburn.
  
  
• The ALJ's conclusion to the effect that Glenburn had waived its right to an oral hearing lacks sufficient support. The governing procedural regulations provide that "[i]f an affected party wishes to waive its right to appear and present evidence at the hearing, it must file a written waiver with the ALJ." 42 C.F.R. § 498.66. While a motion for a decision on a written record could in some circumstances reasonably be read as constituting such a waiver, those circumstances are not present here.
  
  
• The ALJ evaluated the issue of whether an in-person hearing was requested and needed with respect to the deficiency on which the CMP was based without considering Glenburn's April 13 request for a hearing with respect to that deficiency. That request, as indicated above, had been separately docketed and therefore was in a different case file.
  
  
• The ALJ failed to rule on the issue of when Glenburn achieved substantial compliance with applicable requirements (which affects the imposition of the DPNA). There is no indication in the record that was transmitted to us for CRD Docket No. C-01-346 that the parties resolved this issue on their own.
  
  
• The ALJ's failure, on the whole, to clarify with the parties the scope of what was in dispute and the nature of their motions was prejudicial to Glenburn, which could have reasonably thought that it had not waived its right to appear and to present evidence at an oral hearing.⁽²⁾

Our decision also addresses the key legal issues raised by the parties about the substantive analysis in the ALJ Decision. While the Board would not reach these issues if raised in the context of an interlocutory appeal of a denial of a motion for summary judgment, here resolution of the issues is necessary in order to determine the appropriate action on review of an ALJ decision. Based on our analysis, we conclude that-

• The ALJ did not err by failing to grant summary judgment to Glenburn based on alleged insufficiency of the survey findings;
  
• The ALJ did not err in concluding that a fire hazard may also be an "accident hazard" within the meaning of 42 C.F.R. § 483.25(h)(1); and
• The ALJ did not err in concluding that Glenburn had raised genuine disputes of material fact and, therefore, denying summary judgment as a matter of law to CMS.

Our numbered conclusions on these issues are set out below.

Legal Background

Requirements for long-term care facilities that seek to participate in the Medicare program as a skilled nursing facility under section 1819 of the Social Security Act (Act), or in the Medicaid program as a nursing facility under section 1919 of the Act, are set out at 42 C.F.R. Part 483. The general "quality of care" requirement at section 483.25 provides that --

Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.

More specifically, subsection 483.25(h)(1) provides that the facility "must ensure" that the "resident environment remains as free of accident hazards as is possible." In addition, under the general requirements for "physical environment," subsection 483.70(a) provides that "the facility must meet the applicable provisions of the 1985 edition of the National Fire Protection Association's Life Safety Code" except that certain facilities may be considered in compliance if they meet earlier editions of the code.

Compliance with these requirements is determined through the survey and certification process, set out at 42 C.F.R. Part 488, Subpart E. Surveys are generally conducted by a state survey agency under an agreement with HCFA (although HCFA may itself conduct surveys and revisits). Subpart F of Part 488 specifies the remedies that may be imposed by HCFA (or a state where appropriate) based on a finding that a facility is not in substantial compliance with the requirements. Factors that must be considered in selecting what remedy to impose include the seriousness of the deficiencies, including whether the deficiencies constitute immediate jeopardy, and whether the deficiencies are isolated, constitute a pattern, or are widespread. 42 C.F.R. § 488.404. "Immediate jeopardy" is defined to mean --

a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

42 C.F.R. § 488.301.

One of the available remedies is a CMP. CMS may impose a CMP for the number of days of noncompliance (in which case the amount of the CMP will range from $3,050 to $10,000 per day for deficiencies constituting immediate jeopardy to the facility's residents). 42 C.F.R. §§ 488.408; 488.438(a)(1)(i). CMS may also impose a "per instance" CMP, ranging from $1,000 to $10,000 per instance. 42 C.F.R. §§ 488.438(a)(2). Other available remedies include a mandatory DPNA and termination from the program. 42 C.F.R. §§ 488.406; 488.417. In addition, a state must withdraw approval of a facility's nurse aide training and competency evaluation program (NATCEP) under certain circumstances, including if the facility has been subject to a DPNA. 42 C.F.R. §§ 483.151(b)(2) and (e)(1). The resulting ban on an NATCEP is for two years.

A facility may appeal a certification of noncompliance leading to an enforcement remedy, but may not appeal the choice of remedy or the finding that deficiencies pose immediate jeopardy. 42 C.F.R. § 488.408(g); 498.3(b)(12); 498.3(d)(10). A determination with respect to the level of noncompliance may be appealed only if a successful challenge on this issue would affect the range of CMP amounts that CMS could collect. 42 C.F.R. §§ 498.3(b)(13); 498.3(d)(10); 488.438(e). CMS's determination as to the level of noncompliance "must be upheld unless it is clearly erroneous." 42 C.F.R. § 498.60(c). This includes CMS's finding of immediate jeopardy. Woodstock Care Center, DAB No. 1726, at 9, 38 (2000).

Under 42 C.F.R. Part 498 procedures, 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. The hearing may be preceded by a prehearing conference "for the purpose of delineating the issues in controversy, identifying the evidence and witnesses to be presented at the hearing, and obtaining stipulations accordingly." § 498.47. Any prehearing conference is followed by an order "setting forth the results of the prehearing conference, including the agreements made by the parties as to the facts not in controversy, the matters to be considered at the hearing, and the issues to be resolved." § 498.50. Even if no prehearing conference is held, the parties are entitled to notice of the general and specific issues to be resolved at the hearing, at least 10 days prior to the scheduled date. § 498.52. The procedures recognize that new issues between the parties may arise after the prehearing conference and thus expressly provide that "the ALJ may, at the request of either party, or on his or her own motion, provide a hearing on new issues that impinge on the rights of the affected party" unless certain time limits apply and so long as proper notice is given. § 498.56.

The procedural provision at section 498.66 provides:

(a) Waiver procedures. (1) If an affected party wishes to waive its right to appear and present evidence at the hearing, it must file a written waiver with the ALJ.
(2) If an affected party wishes to withdraw a waiver, it may do so, for good cause, at any time before the ALJ mails notice of the hearing decision.
(b) Effect of waiver. If the affected party waives the right to appear and present evidence, the ALJ need not conduct an oral hearing except in one of the following circumstances:
(1) The ALJ believes that the testimony of the affected party or its representatives or other witnesses is necessary to clarify the facts at issue.
(2) [CMS] shows good cause for requiring the presentation of oral evidence.

In Hillman Rehabilitation Center, DAB No. 1611 (1997), this Board reversed an ALJ decision that had placed the ultimate burden of persuasion on CMS (then HCFA) to establish that a rehabilitation agency that had previously entered into a Medicare provider agreement no longer met the conditions for participation, and therefore could be terminated from the program. Based on the relevant statutory and regulatory language, prior administrative and court decisions, and the underlying purpose of protecting Medicare beneficiaries, this Board rejected the ALJ's rationale for placing the burden on CMS. The Board concluded that the procedural concerns expressed by the ALJ could be addressed in a manner more consistent with the relevant provisions and underlying purpose. The Board held the following:

FFCL 1A. HCFA must set forth the basis for its determination terminating a provider with sufficient specificity for the provider to respond, including the basis for any finding that a condition-level deficiency exists. The provider must then identify which of the findings material to the determination the provider disputes, and must also identify any additional facts the provider is asserting.

FFCL 1B. At the hearing, HCFA has the burden of coming forward with evidence related to disputed findings that is sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case that HCFA had a legally sufficient basis for termination.

FFCL 1C. At the hearing, the provider has the burden of coming forward with evidence sufficient to establish the elements of any affirmative argument or defense which it offers.

FFCL 1D. The provider bears the ultimate burden of persuasion. To prevail, the provider must prove 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.

Hillman at 8; see also Hillman at 9-10.

The Board decision was upheld in Hillman Rehabilitation Center v. United States, No. 98-3789 (GEB) (D.N.J. May 13, 1999). Subsequently, this Board determined in Cross Creek Health Care Center, DAB No. 1665, at 13, n.10 (1998), that the rationale in Hillman applies in the context of CMPs imposed on long-term care facilities.

The ALJ Decision

In his decision, the ALJ reached four numbered conclusions, as follows:

1. It is appropriate to decide this case based on the parties' written submissions.
2. Petitioner failed to comply substantially with the requirements of a federal participation requirement at 42 C.F.R. § 483.25(h)(1).
3. CMS may impose remedies, including a per-instance civil money penalty, against Petitioner.
4. A per-instance CMP in the amount of $1000 is reasonable.

In support of the first conclusion, the ALJ Decision atates:

It is appropriate to decide this case based on what the parties have submitted to me. Although the parties have styled their respective motions as motions for summary disposition, it is more appropriate to consider them as motions for disposition based on a written record. There are disputed issues of material fact in this case and I would have scheduled an in-person hearing to receive evidence about those issues had either party asked for one. However, neither party asserts that it desires an in-person hearing and both parties are content to rest their cases on their written submissions.

ALJ Decision at 2. The ALJ did not identify the record on which he was basing his decision, nor cite to any document in the record in support of his conclusion that the parties were "content to rest their cases on their written submissions."

On appeal, Glenburn asserted, among other things, that the ALJ erred by treating the parties' motions as requesting disposition on the written record. According to Glenburn, its understanding of the process was that, if the ALJ determined there were disputed issues of material fact, Glenburn would have a further opportunity to submit evidence on the disputed issues. Glenburn further contended that the ALJ erred by not granting Glenburn's motion for summary disposition. Glenburn requested alternatively that we decide the case in Glenburn's favor, permit Glenburn to present additional evidence before us, or remand for an evidentiary hearing.

In response, CMS argued that Glenburn had raised no genuine dispute of material fact and that the ALJ erred by not granting summary judgment, as a matter of law, in favor of CMS. CMS did not point to anything showing that the parties had consented to a decision on the written record, but, instead, claimed that the way the ALJ characterized the parties' motions was "harmless error." CMS Response at 3.

Under the guidelines the Board has adopted for cases under Part 498, the standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record. The standard of review on a disputed issue of law is whether the ALJ decision is erroneous. The bases for modifying, reversing or remanding an ALJ decision include the following: a finding of material fact necessary to the outcome of the decision is not supported by substantial evidence; a legal conclusion necessary to the outcome of the decision is erroneous; the decision is contrary to law or applicable regulations; a prejudicial error of procedure (including an abuse of discretion under the law or applicable regulations) was committed.

Below, we first address the procedural errors made by the ALJ and why we conclude they were prejudicial. We next address the key legal issues raised by the parties' motions and explain why we conclude that the ALJ did not err, as a matter of law, by failing to grant either motion.

1. The ALJ addressed issues that were not properly before him, based on an incomplete record.

In order to evaluate whether the ALJ properly proceeded to decision without an oral hearing, we reviewed the record transmitted to us as the record for the ALJ Decision. For the reasons explained in this section, we conclude that the ALJ decided issues that were not properly before him, based on an incomplete record.

In order to explain our conclusion here, as well as our further conclusions below, we first set out the chronology of surveys of Glenburn, the resulting determinations, and the parties' motions and other submissions on which the ALJ Decision was based. This chronology is based on events described by both parties and/or the relevant documents submitted by the parties and included in the record for the ALJ Decision. As explained later, some of the parties' related submissions were not included in that record.

• On October 31, 2000, the Indiana State Department of Health (ISDH) completed a standard health survey of Glenburn. The survey findings alleged that Glenburn was not in substantial compliance with the participation requirements.



• On November 6, 2000, ISDH performed a Life Safety Code (LSC) survey of Glenburn. The survey findings alleged that Glenburn was not in substantial compliance with the federal LSC requirements.



• In a notice dated November 17, 2000, ISDH notified Glenburn that 1) the remedy of a directed inservice was imposed effective November 19, 2000; and 2) a mandatory DPNA and a NATCEP ban would be imposed effective January 31, 2001 if Glenburn did not achieve substantial compliance by that date.



• On January 4, 2001, ISDH completed a revisit performed as a follow-up to the October 31 standard health survey. ISDH found that Glenburn still had not achieved substantial compliance. One of the deficiencies found in this survey was cited under Tag F323, based on 42 C.F.R. § 483.25(h)(1) (the provision related to accident hazards).⁽³⁾ This deficiency (related to use of electric heaters in a lounge in which two residents were temporarily housed) is the one deficiency addressed in the ALJ Decision.



• On January 10, 2001, ISDH performed a revisit to the November 6 LSC survey.



• By letter dated January 16, 2001, Glenburn submitted a request for hearing with regard to the November 17 notice from IDPH proposing to impose a DPNA effective January 31 and an NATCEP ban based on the October 31, 2000 survey findings. This request for hearing was assigned CRD Docket No. C-01-346.
  
  
• By letter dated January 19, 2001, ISDH notified Glenburn that 1) if Glenburn was not in substantial compliance by January 31, the DPNA and NATCEP bans would be imposed effective that date; and 2) if Glenburn was not in substantial compliance by May 1, 2001, it would be terminated from participation in the Medicare and Medicaid programs.



• On January 30, 2000, ALJ Mimi Leahy was assigned the request for hearing on the November 17 determination (CRD No. C-01-346) and a procedural order was issued at her direction. Among other things, the order set a 60-day deadline for the parties to confer and to file at least one of the submissions listed in the order. One of the alternatives was a "notice of issues for which summary judgment will be requested."



• On February 1, 2001, ISDH performed a revisit to the standard health survey completed January 4.
  
  
• On February 8, 2001, Docket No. C-01-346 was reassigned to ALJ Kessel.



• By notice dated February 13, 2001, CMS notified Glenburn that CMS had determined, among other things, that the deficiency finding under Tag F323 in the survey completed January 4 constituted immediate jeopardy, but that the immediate jeopardy situation had been abated as of January 3. CMS said that it had determined to impose a CMP in the amount of $1,000.
  
  
• On February 20, 2001, ISDH performed a LSC revisit.



• By letter dated February 22, 2001, CMS notified Glenburn that the imposition of remedies outlined in its February 13, 2001 notice would remain in effect until Glenburn achieved substantial compliance with the LSC requirements. By letter of the same date, ISDH notified Glenburn that that ISDH had found that Glenburn was in substantial compliance with the federal LSC requirements effective February 20.
  
  
• By letter dated March 23, 2001, CMS notified Glenburn that, as the result of the health revisit on February 1 and the LSC revisit on February 20, CMS had determined that Glenburn had achieved substantial compliance with respect to the former on February 1, 2001 and with respect to the latter on January 18, 2001. CMS notified Glenburn that it was imposing a CMP of $1,000 for for one day (January 3) and a DPNA for one day (January 31).⁽⁴⁾



• On March 30, 2001, CMS submitted a document titled "Notice of Issue For Which Summary Affirmance Will Be Requested" (CMS Notice of Issue). The cover letter referenced CRD Docket No. C-01-346. The CMS Notice of Issue mentioned the various surveys, and most, but not all, of the resulting determination notices. The submission identified as the "Issue With Respect To Which HCFA will Seek Summary Judgment" the following:

Whether substantial evidence supports HCFA's determination that Glenburn was not in compliance with the applicable law and/or regulations on January 3, 2001 and, if so, whether the amount of the CMP was reasonable. Specifically, whether on January 3, 2001 Glenburn was in violation of 42 C.F.R. § 483.25(a)(3)(F312, Quality of Care), 42 C.F.R. § 483.25(h)(1)(F323, Quality of Care), 42 C.F.R. § 483.25(m)(2)(F333, Quality of Care), 42 C.F.R. § 483.65(b)(3)(F444, Infection Control), and/or 42 C.F.R. § 483.70(f)(F463, Physical Environment).

CMS Notice of Issue at 2-3.⁽⁵⁾

• By letter dated April 6, 2001, Glenburn submitted what it styled "Petitioner's Response to HCFA's Notice of Issue for Which Summary Affirmance Will Be Requested." The cover letter cited CRD Docket No. C-01-346. Glenburn stated it was filing its response "in support of Respondent's notice" but was offering its response "to further clarify the facts for the record and the issues for briefing . . . ." Glenburn provided a more detailed recounting of the events since the October 31 survey. After describing the February 13 notice, Glenburn stated: "Prior to April 13, 2001, Glenburn Home will file a Request for Hearing with regard to [the] notice issued by HCFA on February 13, 2001." Response at 3 (emphasis added). Glenburn identified three "Issues With Respect to Which Glenburn Home Will Seek Summary Judgment," as follows:
  

  1. Whether the deficiencies cited by the ISDH in its January 4, 2001 resurvey findings for Glenburn Home constituted noncompliance with the Medicare/Medicaid requirements of participation with respect to Tags F312, F323, F333, F353, and F444.

  2. Whether the ISDH's January 4, 2001 resurvey findings for Glenburn Home substantiated the scope and severity of noncompliance cited by HCFA in its February 13, 2001 notice.

  3. Whether the ISDH appropriately determined Glenburn Home's effective date for substantial compliance with Medicare/Medicaid requirements for participation to be February 20, 2001.

  Response at 4.

• On April 12, 2001, the CRD Staff Attorney assigned to Docket No. C-01-346 gave notice of a briefing schedule, using dates to which the parties had agreed. This schedule was modified by ALJ Kessel, by notice dated April 24, because Glenburn had identified issues in addition to those in the CMS Notice of Issue. The new schedule contemplated simultaneous "motions for summary disposition," responses to the motions, and replies by both parties, with both parties' replies due not later than July 6, 2001.



• By letter dated May 9, 2001, CMS submitted what it called a "Motion for Summary Affirmance" (CMS Motion) and "supporting Exhibits." The cover letter referenced CRD Docket No. C-01-346. We describe this motion and its basis more fully below.



• By letter dated May 11, 2001, referencing CRD Docket No. C-01-346, Glenburn submitted "Petitioner's Brief in Support of Its Motion for Summary Disposition" (Glenburn Brief). We describe Glenburn's arguments in this brief more fully below. Glenburn also submitted exhibits in support of its brief. The background section of the brief, among other things, stated: "On April 13, 2001, Glenburn Home filed a Request for Hearing with regard to this notice issued by HCFA on February 13, 2001." Brief at 4 (emphasis added).



• Glenburn submitted "Petitioner's Response to [CMS]'s Motion for Summary Disposition," dated June 15, 2001 (Glenburn Response). This response cited CRD Docket No. C-01-346 and is described in more detail below.



• By letter dated June 15, 2001, referencing CRD Docket No. C-01-346, CMS submitted its "Response to Petitioner's Motion for Summary Disposition" (CMS Response) and an additional supporting Exhibit.
  

• By letter dated July 6, 2001, CMS notified ALJ Kessel that CMS did not intend to submit a separate reply to Glenburn's Response to CMS' Motion for Summary Affirmance.



• On July 11, 2001, ALJ Kessel issued his decision.

There is nothing in the record transmitted to us as the record for the ALJ Decision indicating that any procedural steps were taken by ALJ Kessel between the CMS notice that it did not intend to submit a reply to Glenburn's response and issuance of the ALJ Decision. Although the revised briefing schedule also accorded Glenburn an opportunity to submit a reply by July 6, no such reply is included in the record, nor is there any record of whether Glenburn waived its right to reply or simply did not meet the July 6 deadline.

The most glaring omission from the record, however, is Glenburn's request for hearing with respect to the February 13 determination to impose the $1000 CMP based on the deficiency on January 3 found in the revisit survey completed January 4. As indicated by underlining above, Glenburn had first referred to its intent to file such a request and later identified its request as dated April 13.

We inquired of the Civil Remedies Division whether such a request had in fact been timely filed and whether it had been made part of the record for the ALJ Decision but inadvertently omitted from the copy transmitted to us. In response, we were provided with the following:

• A copy of the April 13 request for hearing, challenging the deficiency findings and conclusions of law in the surveys of October 31, November 6, January 4, and January 10, and the determination of immediate jeopardy, leading to the imposition of the CMP, the DPNA, loss of NATCEP for two years, and potential termination from the Medicare and Medicaid programs;
  
  
• A copy of an acknowledgment letter, issued April 30, 2001 in response to the April 13 request, stating that the request was assigned CRD Docket No. C-01-610 and was assigned to ALJ Jose A. Anglada;
  
  
• A copy of a Joint Motion for Consolidation of Appeals, dated June 28, 2001, requesting that ALJ Anglada join CRD Docket No. C-01-346 with CRD Docket No. C-01-610; and



• A copy of an order issued by ALJ Anglada on July 30, 2001, denying the motion to consolidate on the basis that ALJ Kessel had issued a decision in CRD Docket No. C-01-346 on July 11, 2001 and that, since the "issues in dispute in Docket No. C-01-346 have been adjudicated on the merits, there is nothing to consolidate at this time."
  

The parties' joint motion identified the February 13 notice from CMS imposing remedies as a matter before ALJ Anglada and the November 17 determination by ISDH as the matter before ALJ Kessel, and the record shows that this is correct. Thus, the order was mistaken. The ALJ Decision did not address any deficiencies found in the October 31 survey that was the basis for the November 17 determination. Rather, the ALJ Decision addressed a deficiency found in the revisit survey completed January 4 (that is, the deficiency under Tag 323 related to use of electric heaters) that was one basis for the determination issued February 13. That was an issue before ALJ Anglada, not before ALJ Kessel. Moreover, notice of the $1000 CMP was not given until the February 13 determination, the one assigned to ALJ Anglada.

We note that, while the procedural regulations authorize an ALJ to add to a proceeding certain issues arising after filing of a request for hearing on a related determination, ALJ Kessel did not invoke those procedures in this case. See 42 C.F.R. § 498.56.In sum, the issue ALJ Kessel addressed in the ALJ Decision was not properly before him, nor did he have all of the parties' submissions to consider in evaluating what was in dispute with regard to the $1000 CMP.

2. The DPNA remedy was not imposed based on the deficiency addressed in the ALJ Decision and thus could not be upheld based on that deficiency.

As the above history indicates, the DPNA was imposed for one day (January 31). The November 17 notice had informed Glenburn that a DPNA would be imposed effective January 31, based on the findings of the October 31 survey, if Glenburn did not achieve substantial compliance by January 31. Although the ISDH notice apparently indicated that substantial compliance was not achieved until February 20, the notice dated March 23 from CMS indicated that Glenburn had achieved substantial compliance with the LSC requirements on January 18 and the health requirements on February 1 (and thus the DPNA effective on January 31 was "discontinued" the same day). HCFA Ex. 5. The loss of NATCEP for two years was because of imposition of the DPNA. Id.⁽⁶⁾

CMS nowhere specifically asserted that the deficiency addressed in the ALJ Decision (found under Tag 323 in the survey completed January 4) was also a basis for finding that Glenburn had not achieved substantial compliance until February 1. Indeed, the March 23 notice referred to the CMP as being for one day, January 3, and the DPNA as being for January 31. Id.

Glenburn's April 13 request for hearing specifically disputed all of the deficiency findings in the surveys and revisits leading to the February 13 notice. Glenburn apparently dropped from the issues for summary disposition the issue it had previously identified about the ISDH findings that substantial compliance was not achieved until February 20, given that CMS did not adopt this finding. We could find no indication in the record for Docket No. C-01-346, however, that Glenburn had conceded the basis for the DPNA and loss of NATCEP (that is, that Glenburn was not in substantial compliance in earlier surveys and did not achieve substantial compliance until February 1).

Finally, we note that the CMS Notice of Issue referred only to the CMP and did not indicate that CMS at the time thought that the deficiencies on which the CMP was based were also the basis for other remedies. While the CMS Motion asked the ALJ to conclude that there was a basis for imposition of the "remedies," the Motion did not address the basis for the DPNA for January 31.

3. The ALJ's conclusion to the effect that Glenburn had waived its right to an oral hearing lacks sufficient support.

As mentioned above, the governing procedural regulations provide that "[i]f an affected party wishes to waive its right to appear and present evidence at the hearing, it must file a written waiver with the ALJ." 42 C.F.R. § 498.66. We do not read this as necessarily requiring filing of a written statement specifically waiving this right. If a motion for a decision on a written record clearly indicates that the affected party intends for the ALJ to issue a dispositive decision based solely on any undisputed facts and/or documentary evidence admitted into the record, such a motion may be sufficient to constitute a written waiver. Moreover, this Board and courts have held that the right to an evidentiary, in-person hearing is not contravened by summary judgment if there are no genuine disputes of material fact. Everett Rehabilitation and Medical Center, DAB No. 1628 (1997), citing Travers v. Shalala, 20 F.3d 993, 998 (9^th Cir. 1994). Thus, in reviewing a case where an ALJ failed to 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.

In this particular case, however, the ALJ concluded that there were disputed issues of material fact. Moreover, the parties' submissions (including the April 13 request for hearing and the joint motion for consolidation) are insufficient to support a conclusion that Glenburn either had no right to an oral hearing or had waived that right. Instead, the submissions read as a whole support Glenburn's assertion before us that Glenburn reasonably thought that if the ALJ denied both parties' motions and determined there were disputed issues of material fact, a hearing would be held.

The CMS Notice of Issue identified one issue for what the notice referred to as either "summary affirmance" or "summary judgment." As indicated above, CMS framed the issue as "[w]hether substantial evidence supports [the CMS] determination that Glenburn was not in substantial compliance . . . on January 3 . . ." Notice at 2-3.⁽⁷⁾

Glenburn's April 6 response to this notice identified three differently stated issues with respect to which Glenburn would seek "Summary Judgment." Glenburn's first two issues related to whether the "resurvey findings" constituted noncompliance with the requirements and substantiated the scope and severity level found by CMS in its February 13 determination. The parties' agreed briefing schedule was for a CMS "Motion for Summary Affirmance," followed by a response from Glenburn and a reply by CMS.

The revised briefing schedule contains the first reference to "summary disposition." While courts sometimes use the terms "summary judgment" and "summary disposition" interchangeably, the Federal Rules of Civil Procedure use the term "summary judgment" and thus that term comes with a common understanding of what is expected, for example, to show that there is a genuine issue of material fact in order to defeat a motion for summary judgment submitted in federal court. In any event, the reference to summary disposition did not indicate that the ALJ at that point viewed the parties as seeking disposition on the written record if he determined there were disputes of material fact.

The CMS Motion of May 9 added confusion, not only regarding what type of ruling CMS sought but what was at issue. For example, CMS asserted, "Many of the facts upon which this case turns are undisputed and, as a result, the ALJ should find that Glenburn's practices posed the potential for more than minimal harm to residents of the facility (42 C.F.R. § 488.404(b)(1)(ii)), and affirm summarily the CMP of $1,000 as well as the denial of payment for new admissions." Under the heading "Standard of Review," CMS stated that summary judgment is "appropriate with respect to those issues that raise no questions as to any material fact and with respect to which the moving party is entitled to judgment as a matter of law." CMS went on, however, to state that to defeat Glenburn's "Motion for Summary Affirmance and prevail on its own Motion for Summary Affirmance, [CMS] need only demonstrate that Glenburn has failed to prove by a preponderance of the evidence that it was in substantial compliance with 42 C.F.R. § 483.25(h)(1) at the time of the January 4, 2001 survey." CMS Motion at 5. Under "Factual Background," CMS did not identify any facts as undisputed. Instead, CMS cited to its supporting Exhibits. In its argument, CMS contended that section 13-5.2.2 of the Life Safety Code Handbook (submitted as CMS Exhibit 9) explicitly "prohibits portable space heating devices such as the Lakewood heaters Glenburn used to heat the room where [residents] R5 and R7 lived and slept," and that the safety tag (submitted in CMS Ex. 8, at 4) advised of a fire hazard. CMS Motion at 6. CMS further argued that the LSC's "categorical ban on devices such as the Lakewood heaters constitutes presumptive proof that these units pose 'accident hazards' under 42 C.F.R. § 483.25(h)(1)," that the fact that one of these residents suffered from dementia further increased the risk of accidents, and that CMS had set the per-instance CMP at the lowest possible amount. Id. at 6-7. CMS concluded that "that portion of this appeal pertaining to the deficiency cited at F323 during the survey ended January 4, 2001 raises no disputed issue of fact such as would require resolution through a testimonial hearing," that CMS "has demonstrated that Glenburn cannot meet its burden of establishing by a preponderance of the evidence that it was in substantial compliance with 42 C.F.R. § 483.25(h)(1)" with respect to the survey completed January 4, and that "the ALJ should conclude, as a matter of law, that there was a basis for HCFA's imposition of the disputed remedies, deny Glenburn's Motion for Summary Affirmance and grant HCFA's Motion for same." Id. at 8.

Glenburn's June 15 response to the CMS Motion specifically challenged the CMS statement of the issue as whether "Glenburn cannot meet its burden of establishing by a preponderence of the evidence that it was in substantial compliance." Instead, Glenburn said, the issue is whether CMS made a prima facie case. Glenburn argued that neither the provision in the LSC Handbook on which CMS relied as prohibiting space heaters in resident sleeping areas nor the manufacturer's warning on the safety tag were "presumptive proof" of a violation of § 483.25(h)(1). While challenging the CMS position on other grounds, Glenburn also specifically said that it disputed that it had violated the LSC.

Glenburn's May 11 brief in support of its own motion focused on the sufficiency of the ISDH findings in the survey report as a basis for the CMS determination. Glenburn challenged the ISDH survey findings in part on procedural grounds, arguing both that ISDH had not properly documented its findings (including that the report failed to identify any actual or potential harm to residents) and that findings of violations of the LSC must be made in an LSC survey (which did not find a violation here). As a legal matter, Glenburn challenged the sufficiency of the survey findings as a basis for a finding of noncompliance with 42 C.F.R. § 483.25(h)(1), relying on Board decisions that a determination of whether a facility has taken steps to ensure that the physical environment is "as free of accident hazards as is possible" must be made on a case-by-case basis and on its legal argument that section 483.25(h)(1) refers to "accident hazards," not "fire hazards," and was not intended to include fire hazards since they are covered by the LSC requirements.

Glenburn's brief further said Glenburn would "show that the ISDH's finding and HCFA's subsequent determination is in error and that Glenburn Home is entitled to summary disposition as a matter of law." Glenburn Brief at 2. The "Standard of Review" section in this brief stated: "A finding of summary disposition is appropriate when there are no disputed issues of material fact, leaving the only questions to be decided with respect to applying the law to the undisputed facts" and "is also appropriate when the party filing the motion must prevail as a matter of law even if the disputed facts are resolved in favor of the other party." Glenburn Brief at 5. Glenburn's description of the undisputed facts, however, focused on the facts about what was said in the survey report. For example, Glenburn noted that the survey report said only that the heater was "warm to the touch" (which is what one would expect of a space heater) and argued that the surveyor's reliance on the warning tag was misplaced because manufacturers make such statements to avoid liability, even if there is no real hazard.

Glenburn's brief further indicated that Glenburn may have thought that the process would involve two steps, first a finding of whether CMS did establish a prima facie case and, only then, the requirement for Glenburn to rebut that case. Citing this Board's decision in Hillman on the burden of proof, Glenburn's brief stated: "In order to be granted judgment on its Motion, Glenburn Home must prove that HCFA failed to establish a prima facie case that Glenburn Home's use of the Lakewood Unit in the room of Residents #5 and #7 did not substantially comply with the participation requirements for Tag F323." Glenburn Brief at 5. The brief goes on to say that "if HCFA is found to have established its prima facie case, Glenburn Home must rebut the prima facie case by proving, by a preponderance of the evidence, that it was in substantial compliance with the respective participation requirements." Id.

In general, while Glenburn described its challenge in terms of whether CMS had made a prima facie case, Glenburn's motion (read most favorably to Glenburn) is more in the nature of a challenge to the legal sufficiency of the survey findings as a basis for the CMS determination, even if they are accepted as true. Glenburn also, however, specifically disputed some of the findings or said that there was information CMS had failed to consider that was relevant to evaluating whether the space heaters were in fact an accident hazard that it was possible to avoid.

While Glenburn did not in its response to the CMS Motion specifically proffer testimonial evidence, this is not a case where Glenburn can fairly be said to have known that it must do so as part of a summary judgment procedure in order to preserve its right to a oral hearing.

In sum, the record on which the ALJ determined that Glenburn was "content with disposition on the written record" does not contain sufficient support for that conclusion and the ALJ erred in proceeding to decision on that basis.

4. The ALJ evaluated the issue of whether an in-person hearing was requested and needed with respect to the deficiency on which the CMP was based without considering Glenburn's April 13 request for a hearing with respect to that deficiency.

In evaluating whether Glenburn had requested an oral hearing on the deficiency on which the $1000 CMP was based and whether summary disposition on the written record was appropriate, ALJ Kessel apparently did not consider Glenburn's April 13 request for hearing. As mentioned above, that request had been assigned a different docket number and was assigned to a different ALJ. Moreover, it is nowhere mentioned in the ALJ Decision.

The April 13 request for hearing challenged all of the deficiencies on which CMS based its February 13 determination. The request stated that Glenburn would further its challenge by both testimony and documented evidence should this matter proceed to hearing, including, but not limited to the following:

1. Information from manufacturers regarding the safety of various items and materials used in Glenburn Home resident areas;
2. Statements of staff of Glenburn Home with respect to use of the various items and materials; and
3. Expert testimony regarding Glenburn Home's use of the foregoing various items as compared with the alleged deficiency.

April 13, 2001 Request at 4.⁽⁸⁾ The request also indicated that Glenburn reserved the right to include additional evidence, including the opinions of expert witnesses.

We note that the April 13 request for hearing was submitted after the parties had identified issues for what they had referred to initially as summary affirmance. Glenburn's statements in the request are inconsistent with the notion that the parties' agreement in response to the 60-day order contemplated a dispositive decision on all factual disputes on the written record and, at the very least, required clarification of the parties' intent before proceeding to decision.

Moreover, the proffer of testimony is relevant in evaluating whether Glenburn did raise genuine disputes of material fact requiring a hearing.⁽⁹⁾ Having already proffered such testimony, Glenburn could not know that its failure to repeat the offer in its response to the CMS Motion would be read as consent to a decision on the written record.

5. The ALJ erred by upholding CMS's imposition of the DPNA without addressing the issue of when Glenburn came into substantial compliance with applicable requirements.

As mentioned above, CMS proposed a DPNA effective January 31 and subsequently determined, based on the revisits of February 1 and February 20, that February 1 was the date on which Glenburn was in substantial compliance. Thus, CMS imposed the DPNA for one day, January 31. Glenburn challenged imposition of the DPNA and the deficiency findings on which it was based. There is no indication in the record for Docket No. C-01-346 that was transmitted to us that Glenburn dropped its challenge to the DPNA or conceded the survey findings on which it was based.

Glenburn did not pursue in its motion the issue it had identified with respect to the February 20 date which ISDH originally said was the date Glenburn achieved substantial compliance (but which Glenburn said was inconsistent with the survey findings on their face and which CMS did not adopt). Failure to pursue this issue as a basis for summary judgment, however, cannot reasonably be read as meaning that Glenburn abandoned its challenge to the DPNA altogether.

6. The ALJ's failure, on the whole, to clarify with the parties the scope of what was in dispute and the nature of their motions was prejudicial to Glenburn, which could have reasonably thought that it had not waived its right to appear and to present evidence at an oral hearing.

As discussed above, the hearing procedures in 42 C.F.R. Part 498 assume that there will be an oral hearing absent a written waiver and that the issues will be clearly identified before the hearing. Where both parties consent, an ALJ may modify these procedures in the interest of efficient resolution of the parties' dispute.

Here, there was a marked lack of clarity about what issues each party was raising, which ones were properly before this ALJ, whether the parties intended only partial or complete resolution through their motions, and what was the nature of the motions. The failure to clarify these matters was prejudicial to Glenburn.

For example, the ALJ stated that Glenburn had not disputed assertions by CMS that the Lakewood Unit, when operated, would become sufficiently hot that it might burn the exposed skin of an individual who came into contact with it and that the unit might ignite flammable substances after contact with the unit. As Glenburn pointed out on appeal, however, the survey findings did not did not specifically make these assertions. Glenburn framed the issues for summary judgment as related to the sufficiency of the survey findings, arguing that the survey findings found only that the heaters were "warm to the touch," that the surveyors had failed to consider relevant information specific to the Lakewood Unit and the flammability standards met by the materials exposed to it, and that the surveyors had failed to "document sufficient facts to illustrate the level of harm that has occurred or may occur." Glenburn Brief at 10-11, citing P. Ex. 5 (Principles of Documentation - 2000 for the Statement of Deficiencies). Moreover, the CMS Motion did not clearly assert that the Lakewood Unit could become sufficiently hot to burn residents or start a fire. Instead, CMS treated what it called the LSC's "categorical prohibition" on portable space heaters in resident sleeping areas as "presumptive proof" that the Lakewood Unit posed an accident hazard and relied on the LSC Handbook statement of the purpose of the prohibition (to prevent ignition of clothing, bedclothes, furniture and other furnishings). The only evidence specific to the Lakewood Unit on which CMS relied was the manufacturers' warning, which Glenburn challenged as based on the need for liability protection as opposed to representing whether the unit in fact posed a hazard. Even if Glenburn should have been able to infer from the arguments CMS made that CMS was asserting that the Lakewood Unit might burn residents or start a fire, one can draw inferences from what Glenburn said that Glenburn was asserting to the contrary. For example, Glenburn challenged whether one could presume that the Lakewood Unit was a hazard based on the LSC, given that the LSC Handbook specifically states that the possibility of ignition could be overcome by the design of a heating unit. Glenburn specifically asserted that the safety design features of the Lakewood Unit, including a thermal cut-off fuse, needed to be considered in evaluating compliance with the accident hazard regulation. Had the ALJ considered Glenburn's proffer of testimonial evidence and Glenburn's assertions in the light most favorable to Glenburn (as it reasonably expected he would), Glenburn would have had the opportunity to show that the Lakewood Unit was not in fact an accident hazard, for example, because the thermal cut off was at a temperature sufficiently low to avoid burning residents or causing a fire.

7. The ALJ did not err by failing to grant summary judgment to Glenburn based on alleged insufficiencies of the survey findings.

While we agree with Glenburn that the ALJ erred by treating its motion as consent for disposition on the written record, we do not agree that the ALJ should have granted summary judgment to Glenburn, as a matter of law, based on the alleged insufficiencies of the survey findings.

Glenburn's attack on the survey findings on their face fails to take into account all of those findings and the reasonable inferences that can be drawn from them. Read as a whole, the survey findings are sufficient to give rise to an inference that use of the Lakewood Units in resident sleeping areas meant that Glenburn had not taken adequate steps to ensure that the facility was as free of accident hazards as is possible.

For example, while the survey report does not specifically state that the Lakewood Unit was a portable space heater, it does mention that the unit was on wheels and finds that placement in the sleeping areas was prohibited by the LSC. As the ALJ found, the provision in the LSC prohiting use of portable space heaters in resident sleeping areas, as well as the manufacturers' warning (also mentioned in the survey findings), are sufficient to give rise to a rebuttable presumption that use of two Lakewood Units in a resident sleeping area was an accident hazard. We also agree with the ALJ that, contrary to what Glenburn argued, the survey findings that one of the temporary residents of the lounge in which the heaters were located had dementia and was agitated and moved a lot and that other residents with dementia wandered in that area are not irrelevant. Such residents could not be depended upon to know not to touch the unit or how to use it properly. Thus, unless the safety features of the Lakewood Unit are not dependent on appropriate use of the units (a fact which Glenburn should have a chance to prove), these findings should be considered in evaluating whether an accident hazard existed.

Moreover, Glenburn's procedural challenge to the survey findings lacks merit. Contrary to what Glenburn suggested, the CMS guidelines instructing surveyors to document their findings cannot reasonably be read as meaning that, to be valid, survey findings must include every piece of information that might be relevant to a facility's compliance. Also, while the survey findings did not specifically state what harm had occurred or might occur, they clearly implied that there was the possibility of fire and of contact with residents.

Finally, Glenburn's argument rests on the erroneous premise that CMS must make its prima facie case through the survey findings. As this Board's holdings in Hillman (set out above) indicate, if the survey findings are sufficiently specific and are undisputed, CMS may choose to rest on those undisputed findings, without doing more. Where, however, a facility raises disputes of material fact requiring an oral hearing, CMS is not limited to the survey findings, but may present other evidence in support of the survey findings to meet its burden of establishing a prima facie case.

8. The ALJ did not err in concluding that a fire hazard may also be an "accident hazard" within the meaning of 42 C.F.R. § 483.25(h)(1).

Glenburn also argued that the fact that another regulatory provision requires LSC compliance means that the term "accident hazards" in section 483.25(h)(1) should be read as excluding fire hazards and, therefore, Glenburn should prevail as a matter of law.

We reject this argument, as the ALJ implicitly did in reaching his conclusions. The plain meaning of the term "accident hazards" encompasses the hazard of accidentally starting a fire. Moreover, as CMS argued, Glenburn's reliance on examples of "accident hazards" in a CMS manual is misplaced, since the manual provision includes "frayed wires" as an example of an accident hazard. Glenburn could not have reasonably read the manual as excluding fire hazards as a type of accident hazard. Glenburn did not deny the CMS assertion that frayed wires could start a fire.

Finally, the purpose of the quality of care provisions is to ensure the highest practicable physical well-being of residents. Exposure to fire is inconsistent with meeting this goal. Moreover, if in fact a resident could burn her skin through accidental contact with the heating unit, this is a hazard and a threat to the resident's physical well-being apart from the threat of fire through contact of the unit with flammable materials.

9. The ALJ did not err in concluding that Glenburn had raised genuine disputes of material fact and, therefore, denying summary judgment to CMS.

On the other hand, we reject the CMS argument before us that the ALJ should have determined that CMS should prevail here, as a matter of law. We agree with the ALJ that the LSC Handbook prohibition is not conclusive on whether there is noncompliance with the provision at 42 C.F.R. § 483.25(h)(1).

Glenburn did timely raise disputes about whether Glenburn's use of the Lakewood Units in fact posed an accident hazard that it was possible to avoid. CMS argued that Glenburn did not meet the standard, set by Rule 56 of the Federal Rules of Civil Procedure, for showing that the disputes are genuine in order to avoid summary judgment. Under the circumstances of this case, however, it is unfair to hold Glenburn to this standard, given the confusion over the nature of the parties' motions and that no particular procedure was set. Moreover, Glenburn did proffer evidence (including testimonial evidence) not only about the safety design features of the Lakewood Unit and other factors, but also that its use of the units did not in fact violate the LSC. For purposes of summary judgment, this proffer must be viewed in the light most favorable to Glenburn.

We note that the ALJ viewed the question of application of the LSC as purely a legal matter, based on the plain language of the provision of the LSC Handbook submitted by CMS. Glenburn, however, was relying in part on the undisputed fact that Glenburn was not cited for its use of the Lakewood Units in the LSC surveys or revisits performed by ISDH and referred to above. Viewed most favorably to Glenburn, this at least raises some question about application of the provision, particularly since CMS did not specifically allege that surveyors have no discretion in applying the prohibition. CMS challenged Glenburn's reliance on the lack of citation by pointing out that the surveyors may not have known about use of the Lakewood Units. This is a possibility, and enough to establish that the lack of citation does not conclusively show that Glenburn was in compliance with the LSC. On the other hand, Glenburn should have an opportunity to show that the surveyors were aware of the use of the units and determined that Glenburn's use of them did not violate the LSC.

Finally, even if Glenburn does not show that it was in compliance with the LSC, CMS is mistaken that it would be impossible for Glenburn to rebut the presumption that noncompliance with the LSC constitutes noncompliance with the accident hazard provision at 42 C.F.R. § 483.25(h)(1). Having chosen to cite Glenburn under this provision and not to base its determination on the regulation requiring compliance with the LSC, CMS cannot fairly rely on the LSC as conclusively showing a violation. As Glenburn pointed out, the LSC Handbook itself indicates that the possibility of ignition could be overcome by design of a heating unit. Whether it was in this instance is a question of fact, not of law.

Conclusion

For the reasons stated above, we vacate the ALJ Decision and remand for further clarification of the issues and for an oral hearing (if not specifically waived by Glenburn in writing). We further order that the proceedings in this case, which was docketed by the Civil Remedies Division (CRD) as C-01-346, and in Glenburn's request for hearing docketed as C-01-610 be consolidated for further proceedings consistent with our decision.

Cecilia Sparks Ford

Marc R. Hillson

Judith A. Ballard
Presiding Board Member

1. The Health Care Financing Administration (HCFA) has been renamed the Centers for Medicare & Medicaid Services (CMS). See 66 Fed. Reg. 35,437 (July 5, 2001). Since "HCFA" was used to refer to the agency at the time that many of the actions at issue here were taken, some references from documents use the old acronym.

2. We recognize that cases in which numerous surveys were conducted (and multiple remedies proposed and then modified as a result of later surveys) may be confusing. Moreover, the parties clearly contributed to the confusion in this case, as outlined below. The need for a remand, nonetheless, could have been avoided here.

3. In the October 31 survey, one of the deficiencies found was also cited under Tag F323, but the factual findings were different from the deficiency cited under this tag in the survey completed January 4. CMS Ex. 1, at 24-25; CMS Ex. 4, at 5-7.

4. Both CMS and Glenburn described the CMP in their submissions as a "per-instance CMP." This term is not used in the March 23 notice, however. Instead, it states that the total amount due "represents the imposition of $1000 for 1 day on January 3, 2001." CMS Ex. 5, at 2.

5. We note that subsection 483.70(f), related to Tag F463, addresses the need for a resident call system, whereas subsection 483.70(a) is the provision referred to above requiring compliance with the LSC. CMS did not explain why it did not cite subsection 483.70(a), even though the ISDH findings under Tag F323 alleged that Glenburn was in violation of an LSC requirement.

6. We note that this letter erroneously stated that there is no right to appeal loss of an NATCEP. See 64 Fed. Reg. 39,937 (July 23, 1999), as corrected at 64 Fed. Reg. 43,295 (Aug. 10, 1999)

7. The reference to "substantial evidence" suggests that CMS initially sought the type of affirmance of its determination that is appropriate only for appellate-type review, but not for a de novo hearing. Past Board decisions, however, have held that the ALJ hearing on a CMS determination in these cases is a de novo review. See, e.g., Careplex of Silver Spring, DAB No. 1683, at 16-17 (1999). Whether CMS had substantial evidence to support its determination is irrelevant in a de novo review process, so resolving this issue in CMS's favor would not have disposed of the case.

8. We note that, in the January 16 request for hearing on the earlier determination, Glenburn also offered generally "the opinions of expert witnesses, if any" and, with respect to some of the deficiencies (all of which it contested), other witness testimony.

9. On appeal to us, Glenburn identified the proferred testimony and other evidence more specifically, including offering an affidavit from an expert employed by ISDH to perform LSC surveys.