SUBJECT: St. Catherine's Care Center of Findlay, Inc.,

Petitioner,

Centers for Medicare & Medicaid Services

REMAND OF
ADMINISTRATIVE LAW JUDGE DECISION

St. Catherine's Care Center of Findlay, Inc., (St. Catherine's), a long-term care facility participating in the Medicare and Medicaid programs, appealed the June 14, 2004 decision of Administrative Law Judge (ALJ) Carolyn Cozad Hughes sustaining the determination of the Centers for Medicare & Medicaid Services (CMS) to impose remedies including civil money penalties (CMPs) on St. Catherine's. St. Catherine's Care Center of Findlay, Inc., DAB CR1190 (2004) (ALJ Decision). The CMPs amounted to $4,550 per day for the period April 11 through 17, 2001 and $600 per day for the period April 18 through May 2, 2001. In addition to the CMPs, remedies included a denial of payment for new admissions (DPNA) from April 27 through May 2, 2001, and loss of approval to conduct a Nurse Aide Training and Competency Evaluation Program (NATCEP) for two years beginning April 11, 2001. The ALJ granted CMS's motion for summary judgment. She concluded that St. Catherine's failed to raise any genuine issues of material fact requiring an in-person hearing. She further concluded that the undisputed facts established as a matter of law that St. Catherine's was not in substantial compliance with 42 C.F.R. § 483.25(h)(2), which requires that the facility ensure that each resident receives "adequate supervision and assistance devices to prevent accidents," and that the amounts of the CMPs were reasonable in light of those facts.

For the reasons stated below, we conclude that, while many facts were indeed undisputed, St. Catherine's raised genuine disputes of fact material to determining whether the supervision provided was adequate under section 483.25(h)(2). 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. Based on that standard, we conclude that we must remand for the ALJ to provide a hearing in this matter.

Legal Background

The regulatory requirements for long-term care facilities that participate in Medicare or Medicaid 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 (SOD). 42 C.F.R. § 488.325(a).

The regulatory requirement at issue here addresses the quality of care provided to residents and reads, in relevant part, as follows:

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.

* * *

(h) The facility must ensure that -

* * *

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

42 C.F.R. § 483.25(h)(2).

A CMP is among the remedies which 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). A CMP in the range of $3,050-$10,000 per day may be imposed for one or more deficiencies that constitute "immediate jeopardy." 42 C.F.R. § 488.438(b).

The regulations provide a number of factors to be considered by CMS in determining an appropriate CMP amount within each applicable range. 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.

A facility has a right to appeal a finding of noncompliance that results in imposing of specific remedies, including CMPs. 42 C.F.R. § 498.3(b)(12). A facility entitled to a hearing may request review by an ALJ assigned to the Departmental Appeals Board and may then seek review of an ALJ decision by the Board itself. 42 C.F.R. §§ 498.40, 498.44, 498.80.

Case Background

The following background information is drawn from the ALJ Decision and the record before the ALJ and summarized here for the convenience of the reader, but should not be treated as new findings. An extended survey conducted by the Ohio Department of Health, completed on April 11, 2001, determined that St. Catherine's was not in substantial compliance with nine participation requirements, including 42 C.F.R. § 483.13(b), cited at the immediate jeopardy level under Tag F223 ⁽¹⁾ relating to resident abuse. CMS Ex. 14, at 1-36; Petitioner (P.) Ex. 5, at 1-36. A follow-up visit on April 19 found that immediate jeopardy had been abated but noncompliance continued. CMS agreed with the state findings and imposed the remedies described above by letter dated April 25, 2001, also noting that the $600 per day CMP would continue until substantial compliance was achieved or the facility was terminated. The State found in a second follow-up visit that the facility had achieved substantial compliance on May 3, 2001, and the CMP was discontinued as of that date.

St. Catherine's challenged the survey findings at an informal dispute resolution (IDR) proceeding at the state level, resulting in an amended statement of deficiencies (SOD). P. Ex. 1. The amended SOD removed the abuse findings under Tag F223 and instead cited a deficiency based on the same factual allegations but under Tag F324 (42 C.F.R. § 483.25(h)(2)) relating to the quality of care of supervision for accident prevention. ⁽²⁾ See CMS Ex. 9, at 3 (for original SOD).

In its amended motion for summary judgment dated January 8, 2004, CMS contended that uncontroverted facts demonstrated St. Catherine's noncompliance with Tag F324 "due to widespread and recurring occurrence of violent and unrestrained behaviors between residents and . . . inadequate supervision within the facility." CMS Amended Motion at 1. The motion and accompanying memorandum did not address any of the other deficiency findings directly but contended that St. Catherine's "bald denials as to the findings underlying the deficiencies do not suffice to create a genuine issue of material fact." Id. ⁽³⁾ CMS identified 13 numbered factual findings which it asserted were undisputed and formed a sufficient basis to demonstrate noncompliance with Tag F324. CMS Memorandum in Support of Amended Motion at 3-4. ⁽⁴⁾

ALJ Decision

The ALJ made four numbered findings of fact and conclusions of law (FFCLs), one of them with five sub-headings, in the Discussion section of the ALJ Decision as follows:

FFCL IV.A. Summary disposition is appropriate because Petitioner has not demonstrated any dispute over genuine issues of material fact.

FFCL IV.B. From April 17, 2001, until May 2, 2001, the facility was not in substantial compliance with program participation requirements, specifically, 42 C.F.R. § 483.25 (Quality of Care).

1. The facility provided inadequate psychiatric services to its mentally ill residents.

2. Neither federal reimbursement practices nor state screening practices relieves a facility of its responsibility to provide its residents with necessary care and services.

3. Although a facility may not ultimately be able to prevent an acute episode, it must still provide treatment and services aimed at preventing those episodes.

4. The behavioral episodes that occurred here were foreseeable.

5. Apparent inconsistencies between Dr. Braumiller's declarations and Petitioner's other evidence are not material and need not be resolved.

FFCL IV.C. The facility conditions posed immediate jeopardy to resident health and safety.

FFCL IV.D. The amount of the CMP imposed against Petitioner, $4,550 per day for the seven days of immediate jeopardy, and $600 per day for 15 days of substantial noncompliance, is reasonable.

ALJ Decision at 7, 10, 21, 24, 26, 28, 30, 31. The ALJ based FFCL IV.B on findings involving Residents 15, 18, and 32, as well as incidents involving other residents.

In its request for review of the ALJ's Decision, St. Catherine's disputed all adverse FFCLs.

Standard of Review

Whether summary judgment in favor of CMS was appropriate is a legal issue that we must examine de novo. See, e.g., Madison Health Care, Inc., DAB No. 1927 (2004). ⁽⁵⁾

Standard for Summary Judgment

Since we determine the appropriateness of summary judgment de novo, we need not resolve St. Catherine's arguments about whether the ALJ properly articulated or applied the standard for summary judgment. Instead, we briefly set out here the correct standard for summary judgment in skilled nursing facility cases, which we then apply in our analysis. See also Madison Health Care, Inc., DAB No. 1927 (2004); Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004); Crestview Parke Care Center, DAB No. 1836 (2002), rev'd on other grounds sub nom, Crestview Parke Care Center v. Thompson, 373 F.3d 743 (6th Cir. 2004).

The Board has long recognized that the right to a hearing in these matters is a statutory one, and hence not lightly to be abrogated. See, e.g., Glen Rose Medical Center Nursing Home, DAB No. 1852 (2002)(reversing dismissal of hearing request); Alden Nursing Center-Morrow, DAB No. 1825, at 10 (2002), and cases cited therein; Section 1128A of the Act; 5 U.S.C. §§ 554(a), 556(d), 557 ("on the record" hearings); 42 C.F.R. Part 498 (oral hearing generally provided absent written waiver). Appeals nevertheless may be resolved without an oral hearing under certain circumstances. Crestview Parke Care Center v. Thompson, 373 F.3d 743, at 750, citing Fed. R. Civ. P. 56. ⁽⁶⁾ A requirement affording the opportunity for an oral hearing is not contravened by summary judgment if there is no genuine issue of material fact, such that any proffered testimonial evidence goes only to facts which, even if proved, would not alter the legal result. Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997), citing Travers v. Shalala, 20 F.3d 993, 998 (9^th Cir. 1994); 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986), Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The non-moving party will not prevail against a summary judgment motion by mere denials, but must furnish evidence of a dispute concerning a material fact. Id. at 586, n.11; Celotex, 477 U.S. at 322. Ultimately, summary judgment lies "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party . . . ." Matsushita, 475 U.S. at 587. The Board spelled out how this analysis proceeds in a Part 498 proceeding in Lebanon:

[I]f 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.

Lebanon at 5. The ALJ is required, at this stage, to draw all reasonable inferences supported by the evidence in favor of the non-moving party. See Madison at 5-6, and cases cited therein. Nevertheless, the ALJ need not resolve a purely legal dispute in favor of the non-moving party.

In this section, we first explain why we reject several arguments made by St. Catherine's asserting legal error in the ALJ Decision. We then discuss the evidence proffered by St. Catherine's to demonstrate the existence of genuine disputes of material fact and explain why we conclude that that proffer was sufficient to defeat the summary judgment motion.

1. Preliminary legal arguments raised by St. Catherine's are without merit.

A. CMS's failure to present affidavits is not fatal.

St. Catherine's contended that CMS presented "nothing" on which summary judgment could be entered in CMS's favor because CMS did not present declarations or affidavits. In addition, St. Catherine's asserted that the summary judgment standard set out above somehow changes in a way more favorable to St. Catherine's because CMS did not produce such testimonial evidence. Thus, according to St. Catherine's, the facility "has no burden of proving substantial compliance just because CMS produces its survey report and some facility records without even so much as a declaration of somebody who feels that a regulatory requirement has not been met." St. Catherine's Br. at 7.

This argument is erroneous. The Board has long held that CMS does not need to present evidence to support its prima facie case with respect to any of CMS's factual findings that are not timely disputed by the facility. Sanctuary at Whispering Meadows, DAB No. 1925 (2004); see also Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd Hillman Rehabilitation Center v. United States, No. 98-3789 (GEB)(D.N.J. May 13, 1999). The corollary is that an ALJ may rely, in evaluating the appropriateness of summary judgment, on factual findings in the SOD which are not placed in dispute by the facility. Further, the SOD may constitute evidence on specific disputed facts as to which, if material, the facility must proffer sufficient evidence to show a genuine dispute requiring a hearing.

The Board explained the role of the SOD, in response to a similar argument in another case, as follows:

The key but unstated premise of this argument is that the SOD was not "evidence," and therefore CMS could not prevail to the extent it was relying on that document to establish material facts. . . . We reject this premise. The SOD is a contemporaneous record of the survey agency's observations and investigative findings, and we have made it clear that CMS may make a prima facie showing of noncompliance based on that document if the factual findings and allegations it contains are specific, undisputed, and not inherently unreliable. Glenburn Home, DAB No. 1806, at 25 (2002) . . .

Guardian Health Care Center, DAB No. 1943, at 14 (2004) (citations omitted). Therefore, it was not error for CMS, and the ALJ, here to rely on the SOD as sufficient support for factual findings which the facility did not specifically dispute and as evidence relevant to the facts which the facility asserted were in dispute.

Nor was CMS necessarily obliged to present declarations or affidavits even as to material factual matters that were identified by the facility as disputed. If the facility failed to proffer evidence sufficient that a rational trier of fact could find in the facility's favor on a material fact, CMS could still prevail without presenting declarations or affidavits based on the SOD or other documentary evidence such as medical records. Here, CMS presented the facility's own records in support of findings made by the surveyors based on review of those records, which, along with the SOD itself, do constitute evidence. There is no additional requirement that "somebody" offer a declaration that he or she "feels" a requirement has not been met.

Furthermore, we conclude that the ALJ correctly rejected St. Catherine's claim, raised again on appeal, that CMS "bears all burdens of production, proof and persuasion" at the summary judgment stage. ALJ Decision at 8; see St. Catherine's Br. at 6. As discussed above, neither the assignment of burdens of proof in the case nor the standard for summary judgment requires CMS to present evidence if St. Catherine's has conceded a fact or failed to timely dispute it.

Under the federal rules (which we use as guidance), a 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. CMS could discharge this initial burden by showing that no facts material to determining noncompliance were disputed, or that, at the time of the motion, there was no or insufficient evidence proffered with respect to disputed material facts to support a judgment for the non-moving party. If CMS carried its initial burden, moreover, St. Catherine's was required to "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)). What CMS did in its motion was sufficient to shift the burden to St. Catherine's to come forward with specific facts showing a genuine issue for trial. (Of course, even if it was not sufficient, that is irrelevant here since we conclude that St. Catherine's did show that there are genuine disputes of material fact.)

We note, moreover, that, in evaluating summary judgment, it is not wholly irrelevant that St. Catherine's has the ultimate burden of persuasion in the proceeding. What is different at the summary judgment stage is that the facility need not yet show that it has met its burden, but only that a rational trier of fact could find for the facility under the most favorable, reasonable construction of the proffered evidence.

We thus reject St. Catherine's position regarding CMS's burden, and conclude that summary judgment is not precluded simply by CMS's failure to produce affidavits or declarations.

B. The PASARR screening process does not reduce the facility's responsibility to care appropriately for residents whom it accepts.

St. Catherine's asserted that the residents involved in the episodes here were screened under the Ohio Preadmission Screening and Annual Resident Review (PASARR) ⁽⁷⁾ instrument that is required by federal law and that the residents were approved for nursing home placement. St. Catherine's then reasoned, based on statements in declarations which it submitted, that PASARR screening implied that the level of supervision provided at the facility in which the residents were placed was appropriate to their needs. St. Catherine's Br. at 27. St. Catherine's conceded that the PASARR screen did not "relieve the facility of its regulatory responsibility," but argued that PASARR approval did "indicate the suitability of these persons" for placement in a skilled nursing facility rather than "some other place with more restrictive regulatory or legal requirements regarding supervision." Id. at 30. Hence, St. Catherine's relied on the evidence of PASARR screening as sufficient evidence of adequate supervision in itself to preclude summary judgment against St. Catherine's on this tag.

The Board has considered the relevance of PASARR screening to the adequacy of supervision provided by a nursing facility to mentally ill residents in several prior cases. As the Board has noted, PASARR review provides assurance that the facility may admit the resident without triggering federal requirements prohibiting placement in nursing homes of mentally ill persons who do not require the level of care provided in such facilities. Woodstock Care Center, DAB No. 1726, at 41 (2000), aff'd, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003). Such a review does not guarantee that a particular facility can and will provide the level of supervision that the resident needs and certainly does not undercut evidence of later events as to the resident's actual needs and treatment at the facility. See id., and Vandalia Park, DAB No. 1940 (2004).

We conclude that, at best, the PASARR approval in the summary judgment context can be construed to suggest that the facility could assume that the residents needed skilled nursing services and were acceptable for initial placement. It does not aid in establishing that the supervision provided by the facility was adequate for their particular needs, especially where the residents involved were in the facility for a significant period of time so that individual assessments could and should have been made of their needs and the facility's ability to meet them.

C. No "causal link" is required to establish whether supervision was adequate to prevent accidents.

St. Catherine's argued that the ALJ misinterpreted the regulation at 42 C.F.R. § 483.25(h)(2) by inferring inadequate supervision from the mere occurrence of an injury or assault, thereby reading out of the regulation any requirement of a "causal link" between the lack of supervision and an accident. St. Catherine's Br. at 24. The Board has expressly rejected similar arguments in several prior decisions because the regulation on its face does not require any "causal link." See, e.g., Vandalia Park, DAB No. 1940, at 19 (2004); Madison Health Care, Inc., DAB No. 1927, at 8-9 (2004), and cases cited therein.

The Board held in those cases that the regulatory standard requires "adequate supervision and assistance devices to prevent accidents" but does not require a link to an actual accident or injury. Under that standard, the circumstances of an accident may evidence a lack of adequate supervision, but the occurrence of an accident or an injury is not, in itself, a prerequisite to finding a deficiency. Failure to ensure that the residents receive supervision adequate to prevent accidents may be shown even where no accident has occurred, for example, where a facility has failed to provide the supervision it determined was needed based on a resident assessment and reflected in the plan of care. Conversely, while the mere fact of an accident does not necessarily show that supervision was inadequate, that may be a reasonable inference from the accident, absent evidence to the contrary. Since there is no need to show that an accident occurred, there is no requirement to show a causal link between the lack of adequate supervision and any accident that did occur.

D. The ALJ did not impose strict liability.

The ALJ concluded that St. Catherine's own proffered witnesses conceded that the "conduct, in fact, happened" and reasoned that whether "undisputed incidents of assault, attempted assault, and other behaviors establish a 'want of supervision,' and, thus, substantial noncompliance is a legal issue, not a question of fact that would require an in-person hearing." ALJ Decision at 10 (footnote omitted). Finding that the facility did not deny that some residents behaved aggressively, the ALJ concluded that supervision was inadequate. St. Catherine's argued that the ALJ effectively applied a strict liability standard, inconsistent with past Board decisions, and that her decision should be overturned on this basis.

We agree with St. Catherine's that the mere existence of aggressive behavior or altercations between residents does not conclusively establish that the supervision was inadequate to prevent accidents.

Section 483.25(h)(2) requires the facility to ensure that each resident receives adequate supervision to prevent accidents in accordance with the comprehensive resident assessment and plan of care. The Board has previously concluded, based on the regulatory history, that this provision does not require that no accidents ever occur. ⁽⁸⁾ To apply the provision it may be necessary to consider: (1) the nature of foreseeable accident risks; (2) the extent and nature of the supervision actually provided and other measures taken by the facility that may have impacted on the level and kind of supervision needed; and (3) whether additional or alternative methods of supervision or other measures could reasonably have been adopted by the facility which would have been likely to reduce those risks. Evidence which may establish these material facts may be found in medical records or care plans (which identify individual resident needs and steps to address those needs) and in general facility policies. These sources represent the facility's contemporaneous assessment of adequate supervision and care. In addition, relevant evidence relating to the adequacy of supervision may be found from professional standards of quality and from expert opinions. These sources provide guidance as to generally recognized assessments of appropriate care. The evidence relevant to resolving these issues about the adequacy of the supervision is seldom clear and consistent enough to make a hearing unnecessary. For this reason, summary judgment is particularly unsuited in most cases for resolving issues arising under section 483.25. ⁽⁹⁾

In this case, the undisputed facts regarding episodes in which mentally ill residents had violent or aggressive interactions are not the only facts material to determining compliance with section 483.25. Resident altercations or assaults, especially recurrent episodes, may well raise an inference that the supervisory measures chosen were not sufficient, were not well-implemented, or were ineffective. In themselves, however, such episodes do not establish inadequate supervision where the facility raises genuine disputes about the nature and context of the "conduct" involved (relevant to assessing the foreseeability of accidents resulting from such interactions and the potential for harm absent adequate supervision), and about what the facility actually did to prevent and respond to behavioral episodes and what other steps should reasonably have been undertaken to provide the required quality of care under all the circumstances. The events may have been unforeseeable or may not have been preventable by any reasonable alternative methods or the facility may have adopted reasonable measures responsive to the risks as they developed, even if those measures ultimately failed to prevent all potentially harmful physical interactions among residents. ⁽¹⁰⁾ Thus, St. Catherine's concession that certain events occurred was not enough in itself to end the inquiry.

Contrary to what certain statements in the ALJ Decision seem to suggest, however, the ALJ apparently did not ultimately apply a strict liability test to find noncompliance. The body of her decision actually discusses in considerable detail her conclusions about measures which the facility might have taken but did not take and which she concluded would have resulted in more effective supervision.

In sum, while we agree with St. Catherine's that applying a strict liability test would be improper, we do not agree that the ALJ Decision should be overturned on this basis. Thus, we turn next to what evidence St. Catherine's offered and whether, viewing the evidence in the light most favorable to St. Catherine's, together with all favorable inferences which can reasonably be drawn from that evidence, St. Catherine's has raised a genuine dispute of material fact.

2. St. Catherine's offered specific evidence sufficient to raise genuine disputes of material fact.

In reviewing whether St. Catherine's raised genuine disputes of material fact, it is important to bear in mind the narrow scope of facts alleged by CMS to be both material and undisputed. CMS alleged 13 specific material undisputed facts which it asserted to be a sufficient basis for its amended motion for summary judgment. The ALJ Decision contained an extensive recitation of additional facts in this case, extending far beyond those alleged by CMS to be undisputed. We discuss at some length in section 5 of this decision the ALJ's reliance on facts beyond those which CMS identified as undisputed, but we note at the outset that we assume that other facts contained in the ALJ Decision were disputed by St. Catherine's since CMS did not allege that they were undisputed.

The 13 specific allegedly undisputed facts primarily related to episodes of maladaptive behavior by mentally ill residents, some of them violent interactions with other residents. ⁽¹¹⁾ CMS did not directly allege that facts relating to the level of supervision provided or that required to prevent accidents were undisputed. St. Catherine's did not dispute the occurrence of the episodes listed by CMS in its amended motion (although it did dispute the surveyors' characterizations of other episodes not included in the motion). St. Catherine's contended that its staff's supervision in fact prevented any significant harm from the violent outbursts through generally prompt and effective interventions. St. Catherine's also presented evidence disputing that the level and kind of supervision it provided was not adequate or that other measures were reasonably available that would have reduced the foreseeable risks of accidents. ⁽¹²⁾

St. Catherine's presented evidence that, while the illnesses of the residents made it foreseeable that they might experience "exacerbations," particular episodes cannot be predicted and do not necessarily give advanced warning, so that staff must react quickly and aggressively to events as they occur. See, e.g., Braumiller Decl. I passim (Oct. 11, 2002) (consulting psychiatrist). St. Catherine's also presented evidence that the measures it took to supervise residents who behaved violently met the standard of care. Specifically, Dr. Braumiller averred that the facility's supervision and environment were arranged to protect both staff and other residents "to the highest practicable extent" and the facility had rules and procedures that "protected facility residents from their own or others' conduct." Braumiller Decl. II, at 1-2 (Feb. 12, 2004). He also stated his expert opinion as to the particular episodes cited by CMS that the supervision provided "was proper, as was the timeliness and appropriateness of interventions attempted." Id. at 2. He asserted that appropriate interventions included implementation of PRN (as-needed) medication orders based on nurses' judgment. Braumiller Decl. I, at 1-2. St. Catherine's proffered evidence which suggested that PRN medications were in fact provided to the resident in at least some of the episodes cited. See, e.g., P. Ex. 6, at 2, 3, 35, 40. It would be possible to infer from St. Catherine's evidence that the medication served to control the behavior in many cases. Id. Dr. Braumiller opined that, where PRN medication fails to resolve the episode, the resident's physician should be contacted, and the resident may need to be transported to a hospital. Braumiller Decl. I, at 2. Again, St. Catherine's proffered evidence that tended to show that residents were at times transported to hospitals or psychiatric institutions if PRN medication or other interventions were unsuccessful in controlling their behavior. See, e.g., P. Ex. 6, at 4, 6, 54, 72.

Dr. Braumiller stated his overall opinion that St. Catherine's "has done an excellent job with the limited resources available of preparing the staff, the nurses, the aides to prevent occurrences of assaultive behavior and have utilized to the best of their efforts every mechanism possible . . . Other than the measures implemented by [the facility], there is nothing really it can do except hold a resident against his will and medicate him to try to control him. Sometimes, that is even utilized to keep patient [sic] safe, then they should be transported to the nearest facility where they can be monitored more carefully." Braumiller Decl. I, at ¶ 7. He also asserted that hospitals are able to implement practices that would be unacceptable in a nursing home environment and that "constant and 'closer' supervision" would often be counterproductive as it can "heighten the frequency of maladaptive behaviors. . . ." Braumiller Decl. II, at ¶ 8.

This evidence and the reasonable inferences which could be drawn from it create genuine disputes of material fact about whether the measures taken by the facility to address violent behavioral episodes were adequate under applicable standards of care to prevent accidents and whether other additional or alternative measures were reasonably available and more likely to reduce risks.

St. Catherine's proffered additional evidence tending to show that the staff persons involved in the episodes cited by CMS and in the care of the relevant residents were all, or almost all, trained in a specific methodology for intervening nonviolently to defuse developing crisis situations that arise in caring for aggressive mentally ill residents. See, e.g., P. Ex. 8 (instructor information for the Nonviolent Crisis Intervention Program, or CIP). The trainer for this program, who asserted that she had been present during the events referenced by the surveyors, offered an expert opinion that "the level of supervision provided to the [relevant] residents . . . was appropriate, reasonable, the most practicable, and comported with the standard of care for staff," and specifically that the supervision during the incidents was proper, timely and appropriate. Colliflower Decl. at 3.

St. Catherine's further contended that, in addition to having been trained in CIP, the staff followed a graduated series of steps to prevent or control violent behaviors. Laura Colliflower averred that the facility "had a privilege system of rewards and benefits for the residents," "consistently attempted to intervene and/or try to redirect the resident" when behavior occurred, and, if that failed, would monitor the resident and/or provide medication to sedate the resident. Colliflower Decl. at 2-3.

St. Catherine's also proffered a declaration from Thomas J. Schindler, as an expert witness on standards of care for compliance requirements in nursing homes. He opined that the "level of supervision provided to the residents discussed in the tag F-324 citation was appropriate, reasonable, the most practicable and comported with the standard of care for staff" and specifically asserted that "the supervision provided by the facility at the time of each of the instances alleged . . . was proper, as was the timeliness and appropriateness of the interventions attempted." Id. at ¶ 5. He noted that most incidents involved very brief encounters and that staff were able to prevent many from escalating. He pointed in particular to the facility's "privilege system of rewards and benefits for the residents" and to the staff's CPI training by certified trainers which meant, according to Mr. Schindler, that "these persons knew how to appropriately identify behaviors and intervene to prevent assaults and acts of unreasonable aggression when they could." Id. at ¶ 5(d). He gave the following summary of what he considered the appropriate action taken by the facility to prevent assaults:

[T]he facility consistently attempted to intervene and/or redirect the resident. Where that would not work, the facility would monitor and/or try to sedate the resident. The interventions were graduated as circumstances warranted. where the interventions for acute episodes of escalating behavior were ineffective, the staff either monitored the resident or were able to convince the resident to take medication to lessen the chance of an incident.

Id. at ¶ 5(e).

In addition, St. Catherine's placed in the record a letter and attachments which Ms. Sue Fretz (who became the facility administrator after the time of the survey) submitted as part of the state IDR process. P. Ex. 6. Ms. Fretz addressed each of the incidents, not denying that altercations occurred but disputing some of the details of what took place and highlighting portions of the nurses' notes illustrating staff interventions. Id. at 1-9, and record citations therein. Ms. Fretz asserted essentially that the behavior unit was "specifically developed to address residents with mental health issues," that such residents were expected to behave inappropriately at times, that the facility developed appropriate plans of care for the residents' behaviors, that the staff "intervened to maintain the safety of all involved residents, and that community health services were used to transport or discharge residents for whom the facility's interventions were no longer effective. P. Ex. 6, at 4-5; see also id. at 6, 8.

St. Catherine's also provided evidence that it had an established policy at the relevant time period for addressing instances in which one resident abuses another. P. Ex. 5, at 53. The policy provided for the following measures:

Social Services will counsel both residents involved and make appropriate recommendation or initiate necessary interventions and services.
The attending physician of both residents must be notified of the incident, and an order for a psychological or psychiatric evaluation and treatment will be requested as appropriate for both residents involved.
The family member/sponsor of both residents must be notified.
Both resident[s] should be monitored closely for an appropriate length of time necessary to determine if the abusive resident presents a risk of causing/inflicting further harm or abuse.
If necessary, steps will be taken to discharge the abusive resident to a more appropriate care setting.

Id.

While CMS alleged under tag F223 in its original SOD that St. Catherine's failed to follow this policy, it did not raise this contention either in its amended SOD on the tag at issue or in its amended motion for summary judgment. Compare P. Ex. 5, at 7-8, with P. Ex. 1, at 21-26; CMS Memorandum in Support of Amended Motion at 2-4. There was evidence in the record which, if believed, would tend to show that the policy was implemented as part of the facility's management of possible risks of aggressive resident behavior. For example, even the original SOD acknowledged that the social worker confirmed that she performed crisis intervention and counseled offending residents about inappropriate behavior. P. Ex. 5, at 7-8. There was evidence that some residents were discharged after incidents. Id. at 3-5. ⁽¹³⁾ Similarly, St. Catherine's proffered some evidence that suggests, for example, that the facility did provide social services counseling to residents after incidents, did notify physicians and families of incidents, did obtain medication orders or changes after some events, did record monitoring of residents involved in episodes, and did discharge some residents whose behavior was not controlled by other measures. Hence, St. Catherine's placed in dispute the CMS allegations on whether it followed its own policy as to resident-to-resident altercations.

Two residents were involved in the majority of incidents to which CMS referred in its list of undisputed facts: Residents 15 and 18. CMS asserted that Resident 15 "physically abused other residents on seven occasions" between February 7 and April 6, 2001. CMS Memorandum in Support of Amended Motion at 3. As noted, St. Catherine's did not dispute that the events recorded in the nursing records occurred, but disputed that any of the episodes evidenced inadequate supervision or placed residents at risk of harm. ⁽¹⁴⁾ St. Catherine's argued that the medical records indicated, and its witness opined, that the resident was successfully redirected without causing any injury or was administered medication and quickly calmed in most cases. St. Catherine's asserted that this outcome demonstrated the general effectiveness of the facility's approaches to protecting residents. See, e.g., P. Ex. 6, at 2-5.

St. Catherine's submitted a care plan for Resident 15 that it argued demonstrated supervision and other measures consistent with all requirements. P. Ex. 6, at 30-31. The care plan included typed entries, dated December 5, 2000, to address the resident's behavioral issues, such as redirection by staff, medication as needed, physician consultations for medication adjustments, and acting to ensure safety for him and "all other residents during acute phase of behavior." The care plan also included additional handwritten entries which were not dated. ⁽¹⁵⁾ The ALJ recognized that a care plan was in place for Resident 15 but her discussion appeared to draw inferences adverse to St. Catherine's in her review of the care plan even though other more favorable inferences could reasonably be drawn. See ALJ Decision at 12-13. The ALJ stated that Resident 15 had not yet exhibited "physically abusive behavior symptoms" when the care plan was originally drafted. The ALJ noted that nurses' notes over the next two months described mood swings, agitation, and verbal aggression culminating in the first noted instance of physical aggression on the morning of February 7, 2001. Id. at 13. The ALJ found no evidence that the facility "revisited his care plan or took any other specific actions to prevent recurrence of the February 7 incident" when the resident was readmitted on February 15. Id. The ALJ thus inferred that the care plan was not altered to address the escalation of aggressive behavior. An inference more favorable to St. Catherine's could, however, reasonably be drawn from the care plan. Since the plan included handwritten additions to the typed measures originally set out in the care plan, one could infer that the facility was thereby modifying the plan to address the problems that arose after the original plan was developed in December 2000, including the February 7^th incident.

As to Resident 18, CMS's statement of undisputed facts made the following assertions:

On February 15, 2001, Resident 18 tried to strangle Resident 15. . . .

On February 25, 2001, Resident 18 was involved in an altercation in which he punched another resident in the stomach. . . . On February 27 he hit a facility CNA [certified nurse aide] for no apparent reason. . . .

On April 5, Resident 18 picked up a chair and hit another resident with it and punched another resident.

CMS Memorandum in Support of Amended Motion for Summary Judgment at 3-4. As with Resident 15, St. Catherine's argued that the nurses' notes concerning the recorded episodes could often be interpreted as showing that prompt intervention in fact prevented any serious harm and that appropriate monitoring was provided. St. Catherine's Br. at 17-18. ⁽¹⁶⁾ For example, in the incident in which a resident struck Resident 18 after stating that Resident 18 had punched him earlier, the nurses' notes reported that Resident 18 had been observed to be agitated and had been medicated PRN in an effort to forestall problems and that, when the episode occurred, the residents "were separated [and] each counseled on inappropriate behavior" P. Ex. 6, at 59. Viewing the notes in the light most favorable to St. Catherine's, one could reasonably infer that residents were separated by a nurse who was present and supervising the residents at the time of the incident, that the facility had previously identified Resident 18's agitated state and taken steps to address it in an effort to reduce the likelihood of an altercation occurring, and that the facility had followed its policy on altercations by then counseling both residents. These inferences are favorable to St. Catherine's since they would support a finding that adequate supervision was being provided. Yet, the ALJ instead either drew inferences unfavorable to St. Catherine's from this evidence or, at least, did not consider the evidence as relevant to supervision. At a later stage, the ALJ might well be justified in drawing alternative reasonable inferences unfavorable to St. Catherine's from this (and other) evidence, but in the context of summary judgment, it was improper to do so.

We recognize that the behavior of the mentally ill residents described in the record here is disturbing and can be seen as out-of-control and dangerous to themselves and others. In addition to the violent outbursts described under tag F324, the nurses' notes document profanity, verbal threats, racial slurs, and various kinds of bizarre activity (such as jumping about, pacing, pilfering food or other items, and making delusional statements). See P. Ex. 6 passim. It was not disputed that physical altercations between residents occurred and that injuries ensued in at least some instances. The concerns of the surveyors and of CMS for the safety of the residents were not trivial. The adequacy of the measures adopted by the facility in response to the multiple documented incidents is subject to considerable question. For all these reasons, the ALJ understandably viewed the scenario before her as troubling.

The evidence proffered by St. Catherine's, however, read in the most favorable light, nevertheless establishes genuine disputes about whether the measures taken by the facility fell short of what should reasonably have been done to prevent foreseeable harm from the sometimes violent behavioral manifestations of its mentally ill residents. Notably, the declarations provide expert opinion on the measures in the residents' care plans and the interventions undertaken by staff and on what other options, if any, existed. The declarants also assert in some instances personal knowledge of how facility policy and practices were implemented and what individual needs, symptoms, and medical conditions the residents had. The ALJ may ultimately find, as she suggested, that the contemporary written resident records conflict with some of the assertions made in Administrator Fretz's letter and determine that the written records should be given more weight. The ALJ may also find the opinion testimony unpersuasive. As we discuss below, however, this is not the proper stage to evaluate the relative merits of the parties' evidence. In cataloguing the evidence proffered by St. Catherine's here, we do not imply any opinion on the weight to be given the evidence ultimately.

The ALJ based her conclusion that the plans and interventions reported by St. Catherine's must be inadequate under the regulation partly on the opinion that St. Catherine's "efforts do not even rise to the level of services the Board deemed inadequate in Woodstock." ALJ Decision at 23-24 (emphasis in original). The critical distinction between Woodstock and the present case lies not in comparing the efforts made by the two facilities but in comparing the procedural posture of the cases. In Woodstock, the Board applied a substantial evidence test to uphold the ALJ's Findings of Fact and Conclusions of Law reached after a full hearing. As discussed herein, the tasks of both the ALJ and the Board are quite different in the summary judgment context.

We conclude that St. Catherine's evidence sufficed to raise genuine disputes of fact material to the core question of whether St. Catherine's provided supervision (and/or other measures) adequate to prevent foreseeable risks of accidents caused by the aggressive behavior of these residents.

3. Credibility assessments are not proper in a summary judgment proceeding.

The decision-maker's role in evaluating a summary judgment motion is to determine whether a genuine dispute has been presented on any material factual issues assuming the truth of the evidence presented, but not to weigh conflicting evidence on such disputed issues to decide which party's case is more persuasive. Madison Health Care, Inc., DAB No. 1927, at 6 (2004). The non-moving party at this stage need only set out such argument and evidence as, viewed in the most favorable light, could lead a rational trier of fact to find for it on an issue material to the outcome of case, but need not convince the actual decisionmaker that its case will prevail. The same evidence that suffices to preclude summary judgment may thus very well ultimately fail to persuade in final analysis.

The ALJ Decision contains statements that appear to be inconsistent with the summary judgment standard, including many negative statements about the credibility and persuasiveness of declarations submitted by St. Catherine's. The ALJ Decision states, for example, that the ALJ accepted for purposes of the motion before her "the facts articulated in the Fretz submissions, although not the conclusions that Administrator Fretz and Petitioner's witnesses draw from those facts." ALJ Decision at 11-12. The ALJ may properly reach independent conclusions on pure issues of law even at the summary judgment stage. The issues here, however, are not purely legal. While we agree that the ALJ may reject legal conclusions from St. Catherine's witnesses, she may not reject reasonable inferences drawn from the factual proffers of those witnesses at this stage. In rejecting Ms. Fretz's professional opinions as to the adequacy of the care provided, the ALJ Decision points out that Ms. Fretz was not yet in the facility at the time of the survey or of the events cited in the SOD and hence relied on her review of facility treatment records. As the ALJ Decision acknowledges, however, the surveyors also relied on record review, not personal knowledge. Both the surveyors and Ms. Fretz relied on selected portions of the records to illustrate their opinions about what the recorded episodes indicated about the foreseeable risks to residents, offered interpretations about how the recorded events related to the residents' care plans and the facility's policies and practices, and opined about the applicable standards of care for supervising this population. Yet, it appears that greater weight was given to the interpretations of the surveyors in the SOD. A rational trier of fact could reasonably rely on the contrary interpretations of Ms. Fretz to draw inferences favorable to St. Catherine's. ⁽¹⁷⁾

The ALJ Decision also refers to Dr. Braumiller's declarations as having "unexplained inconsistencies between his assertions and the rest of the medical record," and as "less than precise in describing the particular basis for his opinions." ALJ Decision at 28-29. The decision cites as an example of an inconsistency that Dr. Braumiller asserted that he was "generally familiar with the delivery of care" to the three residents involved and had his own personal observations and knowledge about them, but finds it "unequivocally" established from the treatment records and the Fretz letter that Dr. Braumiller did not examine or treat Residents 15 or 18. It may be that Dr. Braumiller is incorrect in stating that he had personal knowledge of Residents 15 and 18, but his statement to that effect is not necessarily inconsistent with the treatment records. It may be that he visited other residents and observed these two residents as well, without treating or examining them, or that he became aware of the two residents in another context. Further, his general familiarity with their care may arise from record review and information made available to him by others, both sources reported in his declarations. The ALJ Decision further describes Dr. Braumiller's declarations as "difficult to understand" and lacking "coherence." Id. at 26. The perceived problems with the Braumiller declaration were ultimately found not to be material. Id. at 28-29. Nevertheless, the pervasive negative comments in the ALJ Decision about St. Catherine's declarations leaving the indelible impression that the ALJ evaluated their credibility and weight and found both wanting.

Many of the observations in the ALJ Decision might well be appropriate factors to consider in ultimately evaluating how much weight to give various evidence. That process should occur after the record has been fully developed and submitted for decision. At that point, weighing conflicting evidence and determining relative credibility is indeed a core and appropriate task of the ALJ to which we accord considerable deference. Meadow Wood Nursing Home, DAB No. 1841, at 8 (2002); see also Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004). The problem here is not what the ALJ did but when she did it. At the early stage of proceedings represented by the summary judgment motion here, it was premature to resolve evidentiary conflicts - the only appropriate task was identifying whether genuine factual disputes existed about issues material to the outcome of the case.

4. Factual findings which were not alleged by CMS as undisputed material facts were not an appropriate basis for granting summary judgment to CMS.

We are also concerned that the ALJ Decision relies heavily on several specific findings about St. Catherine's residents, the care provided, and the events that occurred, even though CMS did not rely on these findings in its summary judgment motion. The ALJ's reliance on these findings is problematic because it is not clear that the ALJ would have granted summary judgment but for that reliance. In our de novo review, we decline to go beyond the findings which CMS identified in its list of undisputed facts supporting summary judgment and on which CMS relied for its motion. ⁽¹⁸⁾ Since CMS did not assert that any other factual allegations were undisputed material facts, St. Catherine's did not have a fair opportunity to show either that these other factual allegations were disputed or that they were not material. Factual allegations on which CMS did not rely as undisputed in moving for summary judgment therefore cannot fairly be relied on as a basis for granting summary judgment.

Yet, for example, the ALJ Decision went beyond the undisputed facts listed by CMS as material with respect to Resident 18 and discussed in some detail a variety of other behaviors by Resident 18. ALJ Decision at 17-19. Some of this material appeared in the SOD, but was not relied on by CMS in seeking summary judgment. Other descriptions were excerpted from nurses' notes but were not relied on even in the SOD. ⁽¹⁹⁾

Similarly, FFCL IV.B.1 in the ALJ Decision states that the "facility provided inadequate psychiatric services to its mentally ill residents," and the accompanying analysis states that "no psychiatrist even set foot in the facility between January 19, 2001, and April 16, 2001." ALJ Decision at 21. CMS did not allege these "facts" were undisputed or were material to this tag, and the record at this point does not establish either as undisputed. Even though the ALJ cited to record references to certain consulting psychiatrists who failed to visit the residents in the facility in accordance with their agreements, she did not identify undisputed evidence that no psychiatrist visited during that time. The SOD makes no reference under this tag to the adequacy of psychiatric services or to the infrequency of psychiatrists' on-site visits. Nor does CMS's list of allegedly undisputed material facts establishing noncompliance with this tag include any factual claim about the lack of psychiatric visits. CMS Memorandum in support of its Amended Motion for Summary Judgment at 3-4.

The ALJ Decision suggests that it was obvious that these mentally ill patients required "psychiatric interventions and oversight" to control their behavioral symptoms, and that the lack of on-site visits sufficed to prove that such interventions and oversight did not occur. ⁽²⁰⁾ The ALJ Decision does not explain specifically how this finding relates to the adequacy of supervision to prevent accidents, but it would not be unreasonable to suppose that close psychiatric management of behavioral symptoms would be likely to reduce the frequency and severity of behaviors that might endanger the resident or others and hence reduce the need for staff supervision. It was nevertheless inappropriate for the ALJ to base her grant of summary judgment on factual findings which were not relied on by the moving party, CMS, which had the initial burden of going forward to demonstrate that there were no disputes of material fact.

5. At the summary judgment stage, inferences favorable to CMS may not properly be drawn from the undisputed facts where the facility has presented evidence from which one could reasonably draw a contrary inference.

CMS alleged that it was undisputed that no residents had behavior management plans, but did not identify what it meant by a "behavior management plan" or how the absence of such plans was material. The ALJ Decision nevertheless relies heavily on the absence of such plans to conclude that the residents' assaultive behavior was not adequately supervised. Apparently, the ALJ inferred from the undisputed absence of documents denominated "behavior management plans" that the facility had not raised a genuine dispute about whether it took practicable steps to plan for the risks of violent outbursts. Although a facility's failure to develop plans to address foreseeable problem behavior by mentally ill residents may be well relevant to whether supervision of the residents is adequate, St. Catherine's proffered evidence tending to show that the residents had individual plans of care in effect addressing behavioral issues. St. Catherine's Br. at 13; see, e.g., P. Ex. 6, at 31. CMS did not allege that St. Catherine's failed to follow these care plans. As noted above, it was also not disputed that staff were trained in a crisis intervention program, discussed above, which included planned behavior interventions. In addition, St. Catherine's offered some evidence that the facility had a system of privileges and rewards aimed at controlling problem behavior. Schindler Decl. at ¶5(a). The ALJ may after a hearing conclude that these interventions did not constitute adequate behavior modification approaches, or did not suffice to establish adequate supervisory oversight of the behaviors, or were not adequately implemented. Resolving the conflict in the evidence about behavior management planning unfavorably to St. Catherine's at this stage was inappropriate, however.

The ALJ Decision also drew improper inferences from the undisputed fact that the sheriff was summoned more than once to transport residents involved in the cited events to acute psychiatric facilities, concluding that this meant that the situation at St. Catherine's was out of control. St. Catherine's proffered evidence that tended to undercut the reasonableness of this inference. Specifically, St. Catherine's submitted some evidence that the facility understood that the local mental health department required all transports of residents for mental health reasons to be made with assistance from the sheriff's department. P. Ex. 6, at 9. The manner of transport may not, therefore, reflect the severity of the behavior or risks presented but rather be a matter of policy on the part of the mental health and sheriff's departments. Again, we do not imply that St. Catherine's has proven that this is the case, only that its evidence is susceptible to such an inference, which must therefore be drawn at this stage.

Conclusion

Based on the analysis explained above, the ALJ Decision is reversed, and the matter is remanded for further proceedings consistent with this decision.

Cecilia Sparks Ford

Donald F. Garrett

Judith A. Ballard
Presiding Board Member

1. CMS identified each failure to meet a participation requirement by an alpha-numeric "tag" corresponding to the section of the regulation in 42 C.F.R. Part 483 which contains that requirement. CMS State Operations Manual, App. P. Chap. IV.

2. This change in the tag/regulation involved has been the source of significant confusion in the record. CMS's original motion for summary judgment was argued as if the original abuse tag were still at issue. The ALJ directed CMS to file an amended motion, but later noted that even the amended motion referenced the unamended version of the SOD. ALJ Decision at 4, and n.3. In addition, portions of the declarations submitted by St. Catherine's are still couched in terms responsive to the abuse charges rather than to the accident prevention charges. Given this confusion, caused at least in part by CMS, some of the evidence proffered by St. Catherine's, such as declarations couched in terms of abuse, must be evaluated liberally to determine if it also relates to factual matters material to the quality of care tag.

3. The subsequent briefs below and on appeal, as well as the ALJ Decision, are limited to the single deficiency on which immediate jeopardy was found. We therefore reach no conclusions as to what facts are in dispute in relation to any of the other deficiency findings.

4. The list actually goes up to the number 12 but contains two items numbered six.

5. St. Catherine's referred in its brief to the Board's usual standard of reviewing ALJ decisions to determine whether factual findings are supported by substantial evidence. St. Catherine's Br. at 4. This standard of review is inapplicable in summary judgment cases.

6. While the Federal Rules of Civil Procedure (FRCP) do not directly apply here, they provide helpful guidance as to how to apply a summary judgment rule analogous to the cited federal rule. Here, the ALJ notified the parties in an order that, while even FRCP Rule 56 allows summary judgment motions "with or without supporting affidavits," the context of this case indicated that "accompanying the motion with supporting affidavits, if not strictly necessary, would certainly be the better practice." ALJ Order at 2, n.1 (Dec. 4, 2003). Thus, the parties had notice that the ALJ would be guided, though not bound, by the principles of FRCP Rule 56.

7. We use this term because the parties and the ALJ used it, but we note that the word "annual" was deleted from federal law in 1996. See Pub. L. 104-315. The current acronym is "PASRR."

8. The Board has articulated the requirements of section 483.25(h)(2) in numerous decisions. Northeastern Ohio Alzheimer's Research Center, DAB No. 1935 (2004); see also Tri-County Extended Care Center, DAB No. 1936 (2004); Odd Fellow and Rebekah Health Care Facility, DAB No. 1839 (2002); Woodstock Care Center, DAB No. 1726, at 28 (2000), aff'd, Woodstock Care Center v. Thompson, 363 F.3d 583 (6^th Cir. 2003).

9. This does not mean that the undisputed facts will never be sufficient as a matter of law to establish noncompliance with section 483.25(h)(2). If a facility concedes that it identified a risk in the resident assessment and that it either failed to plan for the risk or failed to follow its own plan, summary judgment may be appropriate. Where, however, CMS is challenging whether the steps the facility took were sufficient to meet the risks, summary judgment is particularly problematic (even in those cases where it is undisputed that an accident occurred).

10. For example, as discussed below, many of the medical records describing altercations also describe interventions by staff. St. Catherine's argued that this evidenced adequate supervision since it shows staff were present and took interventions that for most part successfully redirected residents and prevented any serious injuries. In addition, St. Catherine's disputed the severity and characterizations of some of the interactions presented by CMS. The ALJ rejected these areas of inquiry as not material but they are relevant to assessing the supervision provided and that required.

11. In addition, CMS alleged that it was undisputed that St. Catherine's lacked behavior management plans for its residents. We discuss this particular allegation later in this decision.

12. We agree with the ALJ that mere denials by the opponent of a summary judgment motion or conclusory remarks by its declarants averring the existence of a dispute are not enough to show a genuine dispute of material fact. Cf. ALJ Decision at 7. Thus, the vague generalities in some of St. Catherine's declarations that, for example, facility staff "did not aid, abet, sanction, tolerate or instigate [or] provide means, methods or tools for assaults," do not raise a dispute of material fact. The Board has pointed out that such claims are strikingly weak, given that facility staff have "an affirmative duty to intervene and supervise these behaviorally impaired residents in a manner calculated to prevent them from causing harm to themselves and each other." Vandalia Park at 18. St. Catherine's proffered more evidence than this, however, as we discuss herein.

13. We recognize that a dispute of fact may well remain as to whether the facility discharged residents whenever it was necessary and appropriate to do so. CMS may well prevail on this point by showing that residents should have been discharged earlier in light of escalating behaviors or that additional residents should have been discharged based on evidence that the interventions attempted did not successfully manage their behavior. Nevertheless, at the summary judgment stage it is inappropriate to weigh the relative persuasiveness of conflicting evidence on this issue once the facility has shown evidence of a genuine dispute.

14. While CMS's motion identified all seven occasions as involving physical abuse, the medical records show that some instead involved verbal threats, hallucinatory speech, and/or general agitation. All these behaviors may well suggest a need to plan interventions to address the manifestations of the resident's illness in order to prevent hazards to the resident or to others around him. Here, however, St. Catherine's presented evidence placing in dispute whether its response to verbal aggression among its residents met applicable standards of care. For example, St. Catherine's noted that nurses charted Resident 15's behavior at 30-minute intervals at the time he was making hallucinatory threats "to prevent him acting out aggressively or acting on his verbal expressions," until he was calmed after medication. See St. Catherine's Response to Summary Judgment Motion at 7, and record citations therein. We make no finding about whether this level of supervision was adequate to prevent accidents in the circumstances of a mentally-ill, agitated resident; rather, we find here as in other areas discussed above that St. Catherine's raised a genuine dispute about what measures were called for and whether those taken met the requirements.

15. The original typed care plan showed eight approaches to behavioral symptoms while ten more were shown in handwritten comments. P. Ex. 6, at 30-31.

16. While St. Catherine's did not dispute the recorded episodes of physical and sometimes violent behavior, it did dispute some of CMS's characterizations of the nature and severity of some of the behaviors, as going beyond the record and hence overstating the risk of any foreseeable harm to the residents involved. For example, St. Catherine's pointed to CMS's description of Resident 18 trying to "strangle" another resident where the nurses' notes state that the resident briefly put his hands around the other resident's neck and then was "easily separated" and redirected by staff. Also, St. Catherine's did not concede that Resident 18 punched another resident in the stomach but only that the other resident asserted that in explaining his own aggression toward Resident 18. P. Ex. 6, at 59. St. Catherine's challenged the reliability of this hearsay report. St. Catherine's Response to Summary Judgment Motion at 11. These facts are material to assessing what foreseeable risks were presented by the residents' behavioral manifestations and whether the measures taken by the facility were adequate in the circumstances to prevent accidents resulting from those behaviors.

17. The ALJ also criticized as "evidentiary piggybacking" the fact that St. Catherine's did not submit a written declaration from Ms. Fretz, and yet its declarants expressly concur in and incorporate the contents of Ms. Fretz's letter. Of course, CMS did not submit written declarations from its surveyors or from any other witnesses. It is not clear why it would be improper per se for witnesses to agree with or adopt statements from Ms. Fretz's earlier letter even where St. Catherine's did not offer Ms. Fretz herself as a witness.

18. The ALJ also appeared to make other findings adverse to St. Catherine's without citing to any supporting portion of the record or explaining how those findings contributed to her grant of summary judgment. For example, the ALJ recited the specific dosages of an anticonvulsant and two antipsychotic medications prescribed for Resident 15 on January 19^th by his attending physician as "[u]nquestionably . . . a powerful combination of drugs." ALJ Decision at 12. She offered no basis for this description or indication of any alternative regime to which she was comparing this combination, nor any explanation of why this change in medications was not an appropriate part of the management of this resident. In the next paragraph, the ALJ characterizes the resident's behaviors "thereafter" as "severe" but it is unclear if she implies that somehow the record of the residents' behavior after the medication change reflected a problem with the physician's treatment, the inadequacy of supervision, or simply the course of the resident's illness.

19. In addition to violent outbursts cited in the SOD but not the summary judgment motion, many incidents discussed by the ALJ related to behavior other than physical aggression by the resident toward others, such as noncompliance with his diabetic diet, inappropriate touching (particularly one hearsay report by a female resident), elopement attempts, and pounding on doors or tables. ALJ Decision at 17-19.

20. The ALJ noted that 64 facility residents were prescribed psychoactive medications according to facility records, but apparently considered this evidence as showing only mental illness rather than psychiatric intervention. Cf. ALJ Decision at 21, n.17. In addition, the records cited in the ALJ Decision contain references to calls to psychiatrists and to alterations in medications.