SUBJECT: Alden-Princeton Rehabilitation and Health Care Center,

Petitioner,

Centers for Medicare & Medicaid Services

REMAND OF
ADMINISTRATIVE LAW JUDGE DECISION

Alden-Princeton Rehabilitation and Health Care Center (Alden-Princeton), a nursing facility participating in the Medicare and Medicaid programs, appealed the July 8, 2004 decision of Administrative Law Judge (ALJ) Anne E. Blair sustaining the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a $3,050 per instance civil money penalty (CMP) on Alden-Princeton. Alden-Princeton Rehabilitation and Health Care Center, CR1196 (2004) (ALJ Decision). In addition to the CMP, CMS imposed the remedy of loss of approval to conduct a Nurse Aide Training and Competency Evaluation Program. The ALJ granted CMS's motion for summary judgment. She concluded that Alden-Princeton failed to raise any genuine issue of material fact requiring an in-person hearing. She further concluded that the undisputed facts established as a matter of law that Alden-Princeton 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 CMP amount was reasonable in light of those facts. The ALJ also concluded that CMS's determination of immediate jeopardy was not clearly erroneous and that the amount of the CMP was reasonable.

As explained below, we conclude that summary judgment was not appropriate here because Alden-Princeton raised genuine disputes of material fact and the proffered evidence as a whole, viewed in the light most favorable to Alden-Princeton, might cause a rational trier of fact to find in its favor. Accordingly, we remand the case to the ALJ for further proceedings, including an oral hearing if necessary.

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. The requirement at issue here, section 483.25(h)(2), 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.

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(h) The facility must ensure that -

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

In Woodstock Care Center, the Board analyzed the wording, context, and history of section 483.25(h)(2) and, based on that analysis, set out a framework for evaluating allegations of noncompliance with that requirement. Woodstock Care Center, DAB No. 1726, at 25-30 (2000)(citing 54 Fed. Reg. 5316, 5332 (February 2, 1989)), aff'd, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6^th Cir. 2003). The Board determined that although section 483.25(h)(2) does not hold a facility strictly liable for accidents that occur, it does require the facility to take reasonable steps to ensure that a resident receives supervision and assistance devices designed to meet his or her assessed needs and to mitigate foreseeable risks of harm from accidents. Id.; see also Odd Fellow and Rebekah Health Care Facility, DAB No. 1839 (2002). A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an "adequate" level of supervision and assistance devices under all the circumstances. See Woodstock Care Center at 28-35. What is "adequate" depends, of course, on the resident's ability to protect himself or herself from harm. Id.

Compliance with the participation requirements is determined through surveys performed by state agencies under contract with CMS. Based on survey findings, surveyors prepare a Statement of Deficiencies (SOD) which identifies and describes each failure to meet a participation requirement. 42 C.F.R. § 488.325(a). The State survey agency assesses the seriousness of deficiencies on a scale that considers scope (whether the deficiency is isolated, pattern, or widespread) and severity (how great a harm, or potential for harm, is presented by the deficiency). 42 C.F.R. § 488.404. Deficiencies which pose "immediate jeopardy" are the most severe. "Immediate jeopardy" is defined as "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.

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. "Noncompliance," in turn, is defined as "any deficiency that causes a facility to not be in substantial compliance." 42 C.F.R. § 488.301.

If CMS decides to impose a CMP, it may impose the CMP for either the number of days the facility is not in substantial compliance (a per day CMP), or "for each instance that [the] facility is not in substantial compliance" (a per instance CMP). 42 C.F.R. § 488.430(a). A per instance CMP must be in the range of $1,000 - $10,000 per instance. 42 C.F.R. § 488.438(a)(2). A per day CMP must be in the range of $3,050-$10,000 per day for one or more deficiencies that constitute "immediate jeopardy" and $50-$3,000 for one or more non-immediate jeopardy deficiencies. 42 C.F.R. § 488.438(b).

A facility has a right to appeal a finding of noncompliance that results in imposition of specific remedies, including CMPs. 42 C.F.R. § 498.3(b)(13). The level of noncompliance found by CMS in a skilled nursing facility or nursing facility is also appealable (1) if a successful challenge would affect the range of CMP amounts that CMS could collect (where CMS imposes a per day CMP) or (2) if a finding of substandard quality of care results in the loss of approval of the facility's nurse aide training program. 42 C.F.R. § 498.3(b)(14). Substandard quality of care is defined as "one or more deficiencies related to participation requirements under § 483.13, Resident behavior and facility practices, § 483.15, Quality of life, or § 483.25, Quality of care of this chapter, which constitute either immediate jeopardy to resident health or safety; a pattern of or widespread actual harm that is not immediate jeopardy; or a widespread potential for more than minimal harm, but less than immediate jeopardy, with no actual harm." 42 C.F.R. § 488.301.

A facility may request a hearing before 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.

Standards for Summary Judgment

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. Windsor Health Center v. Leavitt, No. 04-3018, at 5 (6^th Cir. Apr. 13, 2005); Crestview Parke Care Center v. Thompson, 373 F.3d 743, 750 (6^th Cir. 2004). 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). Under the Federal Rules of Civil Procedure (FRCP), ⁽¹⁾ 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. 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. Matsushita, 475 U.S. 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 Nursing and Rehabilitation Center, DAB No. 1918 (2004):

[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 Health Care, Inc., DAB No. 1927, at 5-6 (2004), and cases cited therein. Nevertheless, the ALJ need not resolve a purely legal dispute in favor of the non-moving party. See White Lake Family Medicine, P.C., DAB No. 1951, at 14 (2004).

Case Background

On December 7, 2001, Alden-Princeton notified the Illinois Department of Health (State survey agency) that one of its residents had eloped from the facility on that date. The State survey agency conducted an incident report investigation on January 7, 2002 and on January 10, 2002 conducted an extended survey. Based on the survey, the State survey agency determined that Alden-Princeton had not been in substantial compliance with 42 C.F.R. § 483.25(h)(2) on December 7 and that its noncompliance posed immediate jeopardy.

In its motion for summary judgment, CMS took the position that summary judgment was warranted because there are no disputed facts regarding the elopement of the resident (Resident 1 or R-1). CMS stated that the undisputed facts "are largely derived from the facility's own records . . . ." Motion for Summary Judgment at 2, citing CMS Exs. 5-8 and CMS Ex. 10. CMS also cited the SOD prepared by the State survey agency for the extended survey as well as the surveyor's notes (CMS Exhibits 1 and 11).

CMS alleged that the following facts were shown by the documents it cited: Resident 1 was an 83-year-old man who resided in a secure dementia unit on the third floor of Alden-Princeton. He had diagnoses including "Severe dementia-Alzheimer's type" and was documented by the facility as requiring supervision when he was off the unit. Alden-Princeton prepared a plan of care for Resident 1 dated August 17, 2001 to address his "potential for elopement." On November 29, Alden-Princeton identified Resident 1 as having wandering behavior during four to six of the last seven days. Alden-Princeton's nurses documented that on November 5 and December 3, 2001, Resident 1 was opening alarmed doors, although not going out of them. ⁽²⁾ On December 7, Resident 1 left the facility through the unalarmed front door without the knowledge of facility staff and without any supervision, wearing only a shirt and pants. Motion for Summary Judgment at 3. CMS's motion continued:

Alden-Princeton had policies and procedures that were designed to prevent R-1 and its other wandering, cognitively impaired residents from leaving the facility unsupervised. But on the morning of December 7, Alden-Princeton's system to prevent elopement failed because it did not actually implement its procedures. Alden-Princeton conducted its own investigation, which was confirmed by the surveyor. The investigation revealed that R-1 had to pass the third floor nurses' station, enter an elevator that was operable only with a coded key pad, pass the first floor nurses' station and pass the receptionist's desk (where photos of residents known to be elopement risks were kept) before he could leave through Alden-Princeton's unalarmed first floor door. But Alden-Princeton admittedly failed to have its procedures in place and insure that each of these checks, designed to keep R-1 from leaving the facility, were in place. For example, making the receptionist responsible for ensuring that one of the residents at risk of elopement does not leave the facility only works when the receptionist is present, not distracted by other tasks, and paying attention to the persons leaving the building.

Motion for Summary Judgment at 7-8. ⁽³⁾ CMS stated that the ALJ should therefore "find that, as a matter of law, based on the undisputed facts, there was a basis for CMS's imposition of a remedy in this case." Id. at 8. CMS also asserted that its determination that the deficiency rose to the level of immediate jeopardy was not clearly erroneous, stating:

It was not clearly erroneous to determine that Alden-Princeton's noncompliance with § 483.25(h)(2) in allowing R-1, a cognitively impaired man, to leave the facility unsupervised and wearing only a shirt and pants on a December morning in the city of Chicago, created a situation in which R-1 was likely to suffer serious injury, harm, impairment or even death.

Id. at 10.

Alden-Princeton opposed CMS's motion on the ground that there were material issues of disputed fact (described later in this decision). Alden-Princeton's proffer of evidence included the affidavit of its Regional Director, who participated in the facility's investigation of the December 7 incident in which Resident 1 eloped. P-RMSJ Ex. 1 (Affidavit of Risa Glantz). In addition, Alden-Princeton listed ten proposed witnesses, including Ms. Glantz, and stated that their testimony would include such matters as an explanation of facility policies and procedures, an explanation of the incident in question, industry standards of care, resident record review, the clinical condition of Resident 1 and observations of him on the day he eloped, and an explanation of the facility door alarm systems, maintenance policies and procedures and door alarm checks on December 7. Petitioner's List of Proposed Witnesses, dated 10/15/02. ⁽⁴⁾

The ALJ Decision

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

A. Summary judgment is appropriate in this case because neither party has demonstrated any dispute over genuine issues of material fact.

B. The evidence supports a finding that Petitioner failed to comply substantially with participation requirements.

C. CMS's classification of immediate jeopardy for Petitioner's substantial noncompliance is not clearly erroneous.

D. The amount of the per instance CMP assessed against Petitioner, $3,050, is reasonable.

ALJ Decision at 3, 5, 10, and 11.

In the text discussing FFCL A, the ALJ stated that since she could "think of no testimony from witnesses that could add to" the undisputed material facts in the case, summary judgment is appropriate. Id. at 4. She did not discuss Alden-Princeton's proffered testimony.

In the text discussing FFCL B, the ALJ found that Alden-Princeton had foreseen that a resident would be able to enter a coded elevator, stating that "I can only assume" that one of the reasons the facility had placed the nurses' station near the elevator doors on the third floor "was to monitor who was exiting and entering the elevator." ALJ Decision at 10. The ALJ further found that Alden-Princeton "obviously had foreseen the possibility that a resident might try to elope through the unalarmed front door" since "[i]t had placed the photographs of those residents at-risk for elopement near the front door." Id. The ALJ concluded that Alden-Princeton did not take all practicable steps to prevent the events that resulted in Resident 1's elopement since it failed to assure "that a staff member would be monitoring either the third floor elevator or the front door for possible passage of the photographed individuals." Id.

In its request for review of the ALJ Decision, Alden-Princeton disputed FFCLs A-D.

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.

1. Alden-Princeton raised genuine disputes of material fact.

The Board has previously observed that summary judgment may be appropriate in cases arising under the quality of care requirement in section 483.25(h)(2) "[i]f 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 . . . ." St. Catherine's Care Center of Findlay, Inc. at 13, n.9. In such cases, it may be reasonable to infer that the plan, or procedures, adopted by the facility to address an identified risk reflect the facility's determination as to what is necessary to address the risk under the applicable standard of care. Where such an inference is made, a facility's failure to follow its procedures is on its face a failure to substantially comply with the requirements of section 483.25(h)(2). Cf. Spring Meadows Health Care Center, DAB No. 1966, at 20 (2005) (upholding ALJ decision for CMS where facility failed to provide neurological assessments of resident following head injury, consistent with its own policy, stating that "[w]hen a facility adopts a policy that calls on the nursing staff to take affirmative actions to safeguard resident health and safety, it is reasonable to infer (in the absence of evidence to the contrary) that the facility did so because such actions are necessary to attain or maintain resident well-being").

In the instant case, CMS alleged in its motion for summary judgment that Alden-Princeton failed to follow its own procedures for addressing the risk identified in Resident 1's plan of care that the resident would elope, in violation of section 483.25(h)(2). According to CMS, it was undisputed that those procedures included having someone at the third-floor nurses' station monitor the elevator at all times and having someone at the first-floor receptionist's desk monitor the front door at all times. In response to CMS's motion, however, Alden-Princeton disputed that these were its procedures. With respect to whether it had a procedure for having someone at the third-floor nurses' station monitor the elevator, Alden-Princeton asserted that Resident 1-

was placed on a secure floor, with alarmed internal doors and elevator secured with a coded keypad. R-1 was also closely monitored by staff, as evidenced by the fact that staff had checked R-1's room ten minutes after his 9:00 a.m. medication. R-1 had never previously attempted or succeeded in entering the secured third floor elevator. The facility had no reason to consider additional security measures for the elevator, concerning R-1 or any other resident on that floor.

Petitioner's Response to CMS' Motion for Summary Judgment at 5. With respect to whether it had a procedure for having someone at the first-floor receptionists' desk monitor the front door, Alden-Princeton asserted that Resident 1's "photo was posted at the front reception desk as a potential for elopement, as part of the facility's overall policy and procedures, but this was not the primary means for supervising R-1." Id. at 6. Although this statement could have been clearer, Alden-Princeton appears to be saying that although it posted photos of residents at risk for elopement at the first-floor receptionist's desk, it did not intend that a receptionist be continuously monitoring the front door.

CMS now takes the position that it is not material whether Alden-Princeton's procedures included having someone at the third-floor nurses' station monitor the elevator because Alden-Princeton's "receptionist admittedly failed to observe that Resident 1 was leaving the building . . . ." CMS response to appeal at 8. The undisputed fact that Resident 1 eloped without being observed by the receptionist is not sufficient to support CMS's motion for summary judgment, however, since Alden-Princeton disputed that it had a procedure requiring its receptionist to monitor the front door at all times.

CMS also argues that Alden-Princeton "knowingly waived" the opportunity to dispute CMS's allegation that Alden-Princeton's procedures included having someone at the third-floor nurses' station monitor the elevator since Alden-Princeton "did not present contrary evidence below." CMS response to appeal at 8. As detailed below, however, in the proceeding before the ALJ, Alden-Princeton proffered both documentary evidence and testimony to support its position.

Accordingly, we conclude that Alden-Princeton raised genuine disputes of material fact.

2. Summary judgment is not appropriate because the proffered evidence as a whole, viewed in the light most favorable to Alden-Princeton, might cause a rational trier of fact to find in Alden-Princeton's favor.

Both parties proffered evidence regarding Alden-Princeton's procedures for preventing elopement. As explained below, we conclude that this evidence, viewed in the light most favorable to Alden-Princeton, might cause a rational trier of fact to conclude that Alden-Princeton had neither a procedure requiring someone at the third-floor nurses' station to monitor the elevator at all times nor a procedure requiring someone at the first-floor receptionist's desk to monitor the front door at all times. Since these disputed facts were the basis for CMS's motion for summary judgment, Alden-Princeton is entitled to a hearing.

As evidence that Alden-Princeton had a procedure requiring that someone at the third-floor nurses' station monitor the elevator at all times, CMS relied on the SOD from the extended survey in January 2002 (CMS Exhibit 1), which notes at page 2 that "[t]he 3^rd floor elevator is located across from the nurses' station" and states that the third-floor nurses' station was one of "four check points" passed by Resident 1 "where he should have been stopped by staff." See CMS response to appeal at 7-8 (citing SOD and pointing to allegation in motion for summary judgment that Resident 1 had to pass by the third-floor nurses' station in order to leave the floor via the elevator). However, it does not necessarily follow from the apparently undisputed fact that one can see the elevator from the nurses' station that it was part of Alden-Princeton's procedures to have someone at the nurses' station monitor the elevator at all times. Another inference might be that Alden-Princeton was not relying on always having someone at the nurses' station monitor the elevator since the elevator had a coded keypad. Moreover, Alden-Princeton proffered the "Policy & Procedure" for "Wanderers (Elopement)" from its Operations Manual, which contains no mention of having someone at the third-floor nurses' station monitor the elevator. ⁽⁵⁾ CMS did not allege, nor proffer testimony, that Alden-Princeton had any generally applicable written procedures for preventing elopement other than those in the Operations Manual. ⁽⁶⁾ In addition, Alden-Princeton proffered Resident 1's plan of care, which contains no mention of having someone at the third-floor nurses' station monitor the elevator. ⁽⁷⁾ Alden-Princeton also proffered the affidavit of its Regional Director containing a description of the mechanisms used on the third floor to prevent elopement that is consistent with what Alden-Princeton asserted its procedures were. P-RMSJ Ex. 1 (stating that the floor on which Resident 1 resided "is secured by inside door alarms and an elevator which can be opened at the 3^rd floor only by entering a code on a keypad, which is not known to residents," that the door alarms were working properly, and that no door alarms sounded at the time Resident 1 left the floor). Finally, Alden-Princeton proffered testimony from its Regional Director and several other witnesses to explain its policies and procedures, which would presumably support its allegation that it was not part of its procedures for someone at the third-floor nurses' station to monitor the elevator at all times.

Viewing this evidence in the light most favorable to Alden-Princeton, we conclude that a rational trier of fact might conclude that Alden-Princeton did not have a procedure requiring someone at the third-floor nurses' station to monitor the elevator at all times.

As evidence that Alden-Princeton had a procedure requiring that someone at the first-floor receptionist's desk monitor the front door at all times, CMS apparently relied on the following statement in the SOD for the extended survey: "To leave the building through the front door, R1 had to pass by the receptionist's window. Posted on the wall, next to the window, . . . is a picture of R1 with five other residents who are known by the facility to be at risk for elopement." CMS Ex. 1, at 2. These pictures were presumably posted pursuant to the procedure in Alden-Princeton's Operations Manual that photos (or a list) of residents at risk for elopement will be placed at the receptionist's desk "for monitoring purposes." P. Ex. 2, at 2. CMS also proffered Resident 1's plan of care, which states in part "Provide Picture of Res @ front desk." CMS Ex. 7, at 1. However, while one could infer from the Operations Manual and the plan of care that it was part of Alden-Princeton's procedure to have the receptionist observe the front door at all times to ensure that no one in the photos was exiting, this is not the only possible inference. One could also infer, consistent with Alden-Princeton's assertion that this was a "back-up" procedure, that Alden-Princeton placed the photos at the receptionist's desk so that in the event the receptionist (or other facility staff) observed someone who appeared to be a resident exiting the front door, the receptionist would have a means of verifying this. ⁽⁸⁾ Alden-Princeton's Operations Manual does not expressly state that the receptionist will monitor the front door at all times. Moreover, CMS did not proffer any evidence such as expert testimony about what "monitoring" means. In addition, the testimony Alden-Princeton proffered on its policies and procedures would presumably support Alden-Princeton's allegation regarding the limited nature of its procedure for placing photos at the receptionist's desk.

Viewing this evidence in the light most favorable to Alden-Princeton, we conclude that a rational trier of fact might conclude that Alden-Princeton did not have a procedure requiring that someone at the first-floor receptionist's desk monitor the front door at all times.

We note that Alden-Princeton also disputed CMS's allegation that it was foreseeable that Resident 1 might elope in the manner that he did if Alden-Princeton did not follow its procedures. See Petitioner's Response to CMS' Motion for Summary Judgment at 6 (stating that Resident 1's elopement was a "[f]luke"). ⁽⁹⁾ It is unnecessary for us to consider whether this raises a dispute of material fact since we conclude that there is a dispute of material fact as to what Alden-Princeton's procedures were. For the same reason, it is unnecessary for us to consider whether Alden-Princeton raised a genuine dispute of material fact when it disputed CMS's allegation that Alden-Princeton's failure to follow its procedures rose to the level of immediate jeopardy. ⁽¹⁰⁾ Whether the ALJ needs to have a hearing on these issues may depend upon whether CMS disputes the factual allegations made by Alden-Princeton regarding foreseeability.

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. While the FRCP do not directly apply to proceedings under 42 C.F.R. Part 498, and were not made applicable to this proceeding by the ALJ, they provide helpful guidance as to how to apply a summary judgment rule analogous to FRCP Rule 56.

2. The nurses' notes show that the alarmed doors in question were on the third floor where the resident resided. CMS Ex. 8.

3. Alden-Princeton's Missing Person's Report stated that no one saw Resident 1 leave the floor, but that since all alarms were functioning properly, "it is believed that [Resident 1] was able to get on the elevator after someone got off on the third floor and was able to leave out of the front door (not alarmed) without being detected." CMS Ex. 10, at 4.

4. We have not required opponents of a summary judgment motion in Part 498 to submit proffered testimony in the form of an affidavit or signed declaration, as might be required if the procedures in FRCP Rule 56 applied or were made applicable. At a minimum, a facility's proffer must "identify the nature of the testimony it would present at a hearing." White Lake Family Medicine, P.C. at 15. A mere denial would not suffice to raise a genuine dispute of material fact requiring a hearing.

5. The procedures to prevent elopement in Alden-Princeton's Operations Manual include a floor and room assignment for individuals identified upon admission as potential wanderers "that will provide increased observation capabilities by staff"; an initial nursing assessment evaluating the resident for the "degree of wandering (e.g., room to room, floor to floor, or outside)"; communication of the potential for wandering to members of the nursing team "through the 24-hr. report"; addressing the potential for wandering in the resident's plan of care within 72 hours of admission; preparing an identification band "for the purpose of denoting potential for wandering"; and having the receptionist place "a photo of the resident at the receptionist desk for monitoring purposes and/or [maintain] a current list of wanderers." P. Ex. 2.

6. The ALJ apparently thought that neither party disputed the "facility's methods in place for preventing elopements" (ALJ Decision at 4) because only one set of procedures was placed in the record, without regard to what those procedures actually state or what Alden-Princeton intended.

7. Resident 1's plan of care lists the following interventions: "Monitor resident regularly," "Provide activities for resident," "Provide wristband," "Provide picture of [resident] @ front desk," "Redirect resident as needed," and "Report any attempts to elope promptly." CMS Ex. 7, at 1. Alden-Princeton clarified in response to an inquiry by the ALJ that the "wristband" referred to in the plan of care was the same as the "identification band" referred to in its Operations Manual, and not a device like a "wander guard." Petitioner's Submission of Requested Information at 1-2. CMS did not allege that Alden-Princeton failed to follow Resident 1's plan of care.

8. CMS did not specifically allege that Alden-Princeton failed to place either photos or a list at the receptionist's desk or that there was no receptionist at the desk when Resident 1 eloped.

9. Alden-Princeton proffered testimony in support of its position as well. For example, Alden-Princeton proffered the affidavit of its Regional Director that she had determined that the December 7 incident was "an unusual and isolated incident that had not previously occurred on the secured 3rd floor" based on her review of facility records and interviews with staff. P-RMSJ Ex. 1. In addition, Alden-Princeton proffered testimony from three witnesses about "standards of care" that may be relevant to whether additional safeguards beyond the steps Alden-Princeton took would be considered necessary to prevent Resident 1 or another resident from a secured floor from eloping. Further, Alden-Princeton's proffer of testimony from numerous witnesses about Resident 1's clinical condition and observations of him on the day he eloped would presumably address what level of supervision this resident needed at that time.

10. CMS and the ALJ both rested their analysis of immediate jeopardy solely on the likelihood of serious harm from the elopement of Resident 1 or another resident. Alden-Princeton's proffered evidence, however, is relevant to whether it was likely that Resident 1 or another resident would elope in the first instance. If Alden-Princeton showed that CMS was clearly erroneous in determining it was likely that a resident would elope, then the undisputed fact that serious harm was likely after elopement would be irrelevant to the immediate jeopardy determination.