Morris View Healthcare Center, DAB No. 3149 (2024)

PARTIAL REMAND OF ADMINISTRATIVE LAW JUDGE DECISION

Morris View Healthcare Center (Petitioner), a skilled nursing facility (SNF) that participates in the Medicare program, has appealed a decision of an Administrative Law Judge (ALJ) granting summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS).  Morris View Healthcare Center, DAB CR6304 (2023) (ALJ Decision).  The ALJ Decision upheld a determination by CMS to impose a per-instance civil money penalty (CMP) of $17,210 on Petitioner based on a survey finding that Petitioner was not in substantial compliance with Medicare participation requirements in 42 C.F.R. § 483.25(d).  The underlying determination involved two residents:  an impaired resident who eloped through an unlocked and unmonitored exit door on September 3, 2022, and was later discovered unresponsive in a field across the street and pronounced dead shortly thereafter; and an at-risk resident who developed aspiration pneumonia after being given unthickened milk on May 27, 2022.

We have reviewed the record on a de novo basis.  For the reasons explained below, we conclude that the alleged deficiencies involving the resident (R206) who eloped cannot be resolved on summary judgment due to unresolved evidentiary objections and requests to cross-examine witnesses, uncertainty about the scope of the record evidence, and disputes of material fact.  However, for the reasons explained below, we conclude as to the second resident (R191) that Petitioner was not in substantial compliance with the requirements in 42 C.F.R. § 483.25(d) based on undisputed material facts and summary judgment was appropriate.  Finally, we conclude an evaluation of the reasonableness of the CMP is premature given our determination that summary judgment was improper as to one alleged deficiency.  Accordingly, we vacate the entry of summary judgment in part, affirm in part, and remand this matter to an ALJ for further proceedings consistent with this decision.

Legal Background

Section 1819 of the Social Security Act (Act) and the regulations in 42 C.F.R. Part 483

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govern a SNF’s participation in the Medicare program.¹  To participate in Medicare, a SNF must be in “substantial compliance” with Medicare participation requirements.  A SNF is not in substantial compliance when it has a “deficiency” – that is, a failure to meet a participation requirement – that creates at least the potential for more than minimal harm to one or more residents.  42 C.F.R. § 488.301 (defining “Substantial compliance” as “a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm”).  The term “noncompliance,” as used in the applicable regulations, is synonymous with lack of substantial compliance.  Id. (defining “Noncompliance”).

Compliance with Medicare participation requirements is evaluated through onsite surveys performed by state survey agencies, which report their findings.  Id. §§ 488.10(a), 488.11, 488.18, 488.20, 488.305-310.  Surveyors who find substandard care or services prepare and provide to the SNF and CMS a Statement of Deficiencies (SOD) that organizes deficiency findings by alpha-numeric “tags” corresponding to regulatory requirements and CMS guidance.  See id. § 488.110(i)(4), (j), (k); see generally CMS Pub. 100-07, State Operations Manual, Chapter 7, Survey and Enforcement Process for Skilled Nursing Facilities and Nursing Facilities, (this can be found at, https://www.cms.gov/regulations-and-guidance/guidance/manuals/downloads/som107c07pdf.pdf (last visited Aug. 20, 2024)).  CMS may impose one or more enforcement remedies, including a per-day and/or per-instance CMP, on a SNF that is not in substantial compliance with a Medicare participation requirement.  42 C.F.R. §§ 488.400, 488.402(b)-(c), 488.406, 488.410, 488.412.  Remedies may include a CMP regardless of whether or not the deficiencies constitute immediate jeopardy.  Id. §§ 488.408(d)(1)(iv), 488.408(e)(1)(iv), 488.430(a).

When CMS imposed the remedies here, the authorized range for a per-instance CMP was $2,400 to $23,989.  Id. §§ 488.438(a)(2), 488.408(d)(1)(iv), 488.408(e)(1)(iv), 488.408(e)(2)(ii); 45 C.F.R. § 102.3 (table).  CMS sets the CMP within that range based on, among other factors, the “seriousness” of the noncompliance.  42 C.F.R. §§ 488.404(a)-(b), 488.438(f)(3).  Seriousness is a function of the scope of noncompliance (whether it is “isolated,” constitutes a “pattern,” or is “widespread”) and severity (whether it has created a “potential for” harm, resulted in “[a]ctual harm,” or placed residents in “immediate jeopardy”).  Id. § 488.404(b).  The most serious noncompliance is that which puts one or more residents in “immediate jeopardy,” defined to mean “a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  Id. § 488.301.

A SNF may challenge a determination of noncompliance that has resulted in the imposition of an enforcement remedy by requesting an ALJ hearing and appealing any

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unfavorable decision by the ALJ to the Board.  42 C.F.R. §§ 488.408(g)(1), 498.3(b)(13), 498.5(b)-(c).  A SNF may also contest the reasonableness of the amount of any CMP imposed.  Logan Healthcare Leasing, DAB No. 3036, at 3 (2021) (citing Lutheran Home at Trinity Oaks, DAB No. 2111, at 21 (2007)).  A SNF may not, however, contest CMS’s finding about the “level of noncompliance” (e.g., a finding of immediate jeopardy) except in limited circumstances, such as when a successful challenge would affect the range of CMP amounts that CMS may impose.  42 C.F.R. § 498.3(b)(14).

At issue here are the quality-of-care requirements in 42 C.F.R. § 483.25.  The prefatory language of section 483.25 provides:  “Quality of care is a fundamental principle that applies to all treatment and care provided to facility residents.  Based on the comprehensive assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices[.]”  Section 483.25(d) imposes specific obligations upon a facility related to accident hazards and accidents, as follows:

The facility must ensure that – 

(1) The resident environment remains as free of accident hazards as is possible; and (2) Each resident receives adequate supervision and assistance devices to prevent accidents.

Standard of Review

Our standard of review on a disputed conclusion of law is whether the ALJ’s decision is erroneous.  Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s Participation in the Medicare and Medicaid Programs, “Completion of The Review Process,” ¶ (c), https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html (last visited Aug. 20, 2024).

We review whether summary judgment is appropriate de novo.  Logan at 11.  “Summary judgment is appropriate where the [reviewer] is satisfied that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986) (internal quotation marks omitted).  A dispute of fact is “material” if its resolution might affect the case’s outcome under the governing law.  Logan at 11.  A party may demonstrate the absence of a genuine dispute by presenting specific evidence on a particular issue or by pointing out “an absence of evidence to support the non-moving party’s case.” Celotex at 325.  “To defeat an adequately supported summary judgment motion, the nonmoving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under

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governing law.”  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010), aff’d, 405 F. App’x 820 (5th Cir. 2010).  In order to demonstrate a genuine issue, the opposing party must do more than show that there is “some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”  Meridian Nursing Center, DAB No. 2265, at 4 (2009) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)), aff’d, 604 F.3d 445 (7th Cir. 2010).

In evaluating a party’s motion for summary judgment, we view the record in the light most favorable to the non-moving party (here, Petitioner, the party that did not prevail before the ALJ on summary judgment) and give that party the benefit of all reasonable inferences.  Logan at 12 (citing Pearsall Nursing & Rehab. Ctr., DAB No. 2692, at 5 (2016); Matsushita, 475 U.S. at 587; U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962)).  Drawing factual inferences in the light most favorable to the non-moving party does not, however, require that a reviewer draw unreasonable inferences or accept the non-moving party’s legal conclusions.  Id. (citing Brightview Care Ctr., DAB No. 2132, at 10 (2007); Cedar Lake Nursing Home, DAB No. 2344, at 7 (2010), aff’d, 619 F.3d 453 (5th Cir. 2010)).  Inferences based on speculation are not reasonable.  Id. (citing Dumas Nursing & Rehab., L.P., DAB No. 2347, at 18 (2010)).  Nor may the adjudicator make credibility determinations or weigh the evidence when deciding a summary judgment motion.  Id.

The Board may vacate a summary judgment and remand when the ALJ did not view the evidence in the light most favorable to the non-movant, did not draw all reasonable inferences in favor of the non-movant, and erroneously concluded that no material facts were in dispute. 42 C.F.R. § 498.88(a); Medford Care Ctr., DAB No. 3040, at 11 (2021).

I.        The undisputed material facts establish that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) (Tag F689) when facility staff gave unthickened milk to a resident at-risk for aspiration causing the resident actual harm.

Case Background²

A.        Medical history.

R191 was initially admitted to the facility on September 16, 2021, and most recently readmitted on June 9, 2022, with diagnoses including but not limited to gastro-esophageal reflux disease without esophagitis.  CMS Ex. 47, at 1-2.  On May 12, 2022, a physician placed R191 on a puree texture diet of regular liquid consistency.  CMS Ex. 49, at 5.

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R191 subsequently had two “choking” episodes during meals, and a Speech Therapy plan of care stated that therapy was “necessary for safe swallowing” or else R191 was “at risk for aspiration/malnutrition.”  CMS Ex. 55, at 4.  On May 26, 2022, a physician placed R191 on a puree texture, nectar thick liquid consistency diet.  CMS Ex. 49, at 7; CMS Ex. 46, at 20.  On May 27, 2022, a physician “downgraded” R191 to puree texture, honey thick liquid consistency diet.  CMS Ex. 49, at 9; CMS Ex. 46, at 20.  Later that same day, R191 was admitted to a hospital with possible aspiration pneumonia.  CMS Ex. 52, at 6; P. Ex. 17, at 8.

The hospital record indicates that Petitioner was concerned that R191 might have aspirated because R191 “is supposed to be on a thick liquid diet due to [R191’s] aspiration risk but was given unthickened milk yesterday.”  P. Ex. 17, at 8.  R191 was assessed with “[s]uspect aspiration pneumonia given his risk for aspiration.”  Id. at 12.  R191’s discharge paperwork, dated June 9, 2022, indicated “as per EMS [Emergency Medical Services], [R191] is normally on a thickened liquid diet but was given unthickened milk at some point today and aspirated on it.”  CMS Ex. 52, at 8 (italics and internal quotation marks omitted).

B.        Results of investigations into R191’s aspiration incident.

Petitioner conducted an internal investigation, and the New Jersey State Department of Health (NJDOH) conducted a recertification and complaint investigation survey at Petitioner’s facility from August 31, 2022 through September 21, 2022.  CMS Ex. 2, at 1; CMS Ex. 56; CMS Ex. 62-63; see also CMS Ex. 1.

Petitioner’s internal investigation, dated June 8, 2022, revealed that R191’s current diet “indicated honey thick liquid” and R191 was “provided regular thin liquids.”  CMS Ex. 56, at 2.  Petitioner’s internal “Thickened Liquids” policy and procedure updated in May 2022, noted a dot system on the resident’s door name tag with “H” to indicate honey thickened liquids and the dot system legend could be located at the nursing station and dayroom; dietary “meal tickets” will indicate fluid consistency; and a list of residents on altered consistency diets will be maintained daily and as needed at the nursing station.  CMS Ex. 60, at 7.  Additionally, Petitioner’s policy noted that it is the responsibility of the nursing department to monitor between-meal beverages and fluids given with medications, and that a “[l]ist of residents on altered consistency diets will be maintained daily and as needed at the nursing station.”  Id. at 7, 9; see also CMS Ex. 1, at 130.  Finally, the internal investigation indicated that video footage³ showed a certified nursing assistant (CNA) opening and placing “what appears to be a milk carton in front of [R191],” who was “seen sitting at the table drinking milk” while “[t]hree other employees are present in the dayroom,” when the activity aide appeared to check R191, leave the room, and return with R191’s licensed practical nurse (LPN).  CMS Ex. 56, at 1.

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Petitioner and the surveyor(s) conducted interviews with Petitioner’s staff, revealing:

• Petitioner’s Registered Dietician (RD) stated that the “dot system” was used to identify residents who were on an altered diet consistency, which meant that “if a resident was on a mechanically altered diet, the facility would place dots by the resident’s bedroom doors” and “a blue dot meant that the resident was on a thickened liquid.”  CMS Ex. 1, at 119.  However, the blue dot “did not differentiate between the different types of liquid consistencies,” such as honey thickened, and Petitioner “utilized a diet binder on each unit in which the dietary aide or [the RD] would send a list of residents to each unit every day” with diet and liquid consistency information.  Id. at 120.  The RD would email the Unit Manager, Unit Clerk, and Director of Nursing (DON) with the daily diets “and the Unit Managers would communicate the resident’s diet and liquid consistencies to the staff and speak to them directly if there were changes.”  Id.  The RD further explained that resident meal trays came with a ticket of diet and liquid consistency for food and drinks but “did not speak to how the snacks were delivered to the unit.”  Id.
• The Corporate Food Service Director (FSD), J.F., stated that milk came into the kitchen already thickened with honey consistency and explained that when Petitioner had “a diet change PO, the nurse would document the diet change in the computer system, an e-mail would be sent to the FSD, Diet Technicians (DT), and RD.”  CMS Ex. 1, at 120-21; see also CMS Ex. 56, at 2.  The DT would then “create the new diet ticket in the meal tracker system” and “make sure the PO in the meal tracker system matched the diet order in the resident’s electronic medical record.”  CMS Ex. 1, at 121.  For R191, “there is an order from 5/26 10:19am for nectar thick liquids and an order from 5/27 10:31am for honey thick liquids.”  CMS Ex. 56, at 2.
• The DT stated that “she was responsible for updating the resident’s diet, any dietary changes, snack entr[ies], food preferences, and allergies into the computer system,” and that she was also responsible for printing out snack labels.  CMS Ex. 1, at 123.  The DT “downloaded a list of the residents on thickened liquids daily and e-mailed the list to the Unit Managers, DON, Infection Control Nurse, and RD.”  Id.
• The DON stated that “the CNA [J.J.] who gave the resident the thin whole milk no longer worked at the facility.”  CMS Ex. 1, at 123; see also CMS Ex. 56, at 2.  The DON also stated that J.J. “failed to ask the nurses what diet the resident was on” and “gave [R191] the wrong liquid consistency and that was what caused [R191] to aspirate.”  CMS Ex. 1, at 127.  The DON further stated that “there were many things that [J.J.] could have done, he could have asked the nurse and he could have

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• double checked.”  Id. at 127-28.  The surveyor noted that J.J. was “unavailable for an interview.”  Id. at 129.
• J.J., interviewed with the DON during the internal investigation, did “not recall passing out milk” to R191, but recalled “seeing [R191] drinking milk and being surprised that he is on regular milk.”  CMS Ex. 56, at 2.  J.J. stated that he knew “pretty much every resident’s dot on their doors,” which was how J.J. identified residents on “alternative fluid consistencies.”  Id.
• A recreation aide, L.S., also interviewed with the DON, recalled R191 “drinking milk out of a ‘red’ carton,” and that R191 was “spitting up liquid and coughing.”  CMS Ex. 56, at 2.  L.S. did not know who provided the milk and did not know the process of identifying residents on alterative fluid consistencies.  Id.
• R191’s LPN, L.W., stated that “the [Speech-Language Pathologist] and physician had downgraded [R191’s] diet from nectar to honey thickened liquids the day of the incident.”  CMS Ex. 1, at 129; CMS Ex. 56, at 2.  L.W. further stated that another staff member informed L.W. that R191 was “drinking milk and then . . . started coughing” at which time L.W. went into the dayroom and noted R191 was coughing and spitting up, but R191 “was unable to spit out the fluid” and the LPN heard “gurgles” or “crackles” when L.W. “auscultated [R191’s] lungs.”  See CMS Ex. 1, at 129; CMS Ex. 56, at 2.
• On September 20, 2022, Petitioner’s Administrator was interviewed and stated that the incident occurred due to “human error.”  CMS Ex. 1, at 130.

The internal investigation concluded that R191 “received the incorrect fluid consistency during snack time” and the “incident most likely occurred due to lack of knowledge [by staff] regarding proper protocols in verifying fluid consistencies.”  CMS Ex. 56, at 2.

The survey determined that Petitioner failed to provide R191 with the appropriate liquid consistency and follow Petitioner’s Policy and Procedure for thickened liquids, at the level of immediate jeopardy (Tag F689) effective May 27, 2022.  CMS Ex. 62, at 3.

On September 13, 2022, the survey team notified the Administrator of an immediate jeopardy finding of past non-compliance from May 27, 2022 through May 31, 2022, stating on May 27, 2022, R191’s diet was “downgraded to regular puree honey thickened liquids,” and “at 2:26 PM, in the dayroom,” R191’s CNA provided R191 with “thin whole milk” shortly before a recreation aide observed R191 spitting up liquid and coughing.  CMS Ex. 53, at 1; see also CMS Ex. 62, at 3, 35.  An acceptable plan of correction was received on September 14, 2022, which included that all residents with altered diets were identified as at risk; the facility’s “Thickened Liquids Policy and Procedure” was updated on May 31, 2022; staff were in-serviced on the updated Policy

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and Procedure regarding altered diets/fluids starting on May 31, 2022; and a list of residents who were on altered diets/fluids was placed in a binder at each nursing station. CMS Ex. 54, at 1; CMS Ex. 62, at 35.  The surveyors determined the facility removed the immediate jeopardy situation concerning this incident effective September 14, 2022.  CMS Ex. 62, at 3.

C.        CMS’s notice of imposition of remedies and Petitioner’s appeal.

On November 10, 2022, CMS notified Petitioner of the imposition of penalties as a result of the survey, noting that the surveyors “found situations of Immediate Jeopardy and Substandard Quality of Care” that “had been removed on September 8, 2022,” but “noncompliance continued to exist as a result of other uncorrected deficiencies.”⁴  CMS Ex. 2, at 1.  CMS imposed, among other remedies, a “Per Instance” CMP of $17,210 “based on the Immediate Jeopardy and Substandard Quality of Care at Federal Tag F0689” – “Free of Accident Hazards/supervision/devices” and 42 C.F.R. § 483.25(d)(1)-(2), which concerned both R191 and R206.  Id. at 2.⁵

On January 6, 2023, Petitioner filed a request for hearing (RFH), contesting “the validity of the cited deficiency, the scope and severity thereof, and the associated CMP” and disagreeing “that the conditions during the survey represented Immediate Jeopardy and Substandard Quality of Care.”  RFH at 1.  Regarding R191, Petitioner asserted that its staff “were educated about the ‘dot system’ generally,” and immediately “following the incident, the CNA involved received a disciplinary warning for failure to follow instructions” and was subsequently terminated.  Id. at 3.

CMS filed a pre-hearing brief and motion for summary judgment asserting R191, who was at risk for aspiration, was not provided “with the appropriate liquid consistency” and Petitioner failed to follow its “policy and procedure for thickened liquids.”  CMS’ Mot. Summ. Judg. at 2.  CMS asserted these failures, among others, violated 42 C.F.R. § 483.25(d)(1)-(2) and constituted immediate jeopardy to support the CMP of $17,210, and further asserted that these determinations are supported by the record and no genuine issues of material fact are in dispute.  Id. at 2.  CMS filed 70 proposed exhibits and identified two proposed witnesses.  CMS Ex. List; CMS Witness List.  CMS submitted declarations of both proposed witnesses, A.M.R. and R.K., members of the NJDOH survey team, which recount the survey findings addressed above.  CMS Exs. 68, 70.

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Petitioner filed a pre-hearing brief and opposition to summary judgment, asserting that there are multiple relevant issues of material fact in dispute, such that summary judgment is inappropriate.  P.  Opp’n to CMS’ Mot. Summ. J. at 33.  Specifically, Petitioner asserted that the testimony of Petitioner’s witnesses “and that of the surveyors are diametrically opposed with regard to the planning and carrying out of dietary orders.”  Id. at 34.  Petitioner filed 31 proposed exhibits and identified seven proposed witnesses.  P. List of Proposed Exs.; P. Witness List.  Petitioner also requested to cross-examine both of CMS’s witnesses.  P. Req. to Cross-Examine Witnesses.

D.        ALJ Decision.

The ALJ entered summary judgment in favor of CMS, sustaining the CMP of $17,210.  ALJ Decision at 1.  The ALJ stated that it is “unnecessary that I rule on the admissibility of exhibits because I grant summary judgment” and “I cite to some of the exhibits in this decision but only to illustrate material facts that are undisputed.”  Id.  The ALJ indicated the decision was based “entirely on undisputed facts” and found “that the undisputed material facts amply support CMS’s assertions.”  Id. at 3.  Finally, the ALJ also found that Petitioner “failed to raise facts or arguments that create a legitimate dispute concerning its compliance.”  Id.

With regard to R191, the ALJ noted that Petitioner’s investigation “confirmed that R191 had been given unthickened milk,” which “most likely occurred due to lack of knowledge regarding proper protocols in verifying fluid consistencies.”  Id. at 8.  The ALJ found that these “facts establish that Petitioner failed to protect R191 from harm,” which “is evident noncompliance with 42 C.F.R. § 483.25(d)(2).”  Id.  The ALJ accepted as true Petitioner’s assertions that “it had policies and systems in place for assessing and caring for residents with special diets,” “that there is nothing in the record establishing those policies and systems to be inadequate,” and that “human error was the cause of providing unthickened milk to R191.”  Id. at 9.  The ALJ found, however, that “deficient care resulting from human error plainly is a failure to protect a resident from an accident hazard” and a “skilled nursing facility assumes responsibility for all of the acts of its employees committed during the course of their employment.”  Id. (citing 42 C.F.R. § 484.25(d)(2); Cherrywood Nursing & Living Ctr., DAB No. 1845 at 8, 14 (2002)).

We will address the ALJ’s findings regarding immediate jeopardy noncompliance later in this decision.

Analysis of the Alleged Deficiency Involving R191

Petitioner asserts that the ALJ Decision granting summary judgment “was not appropriate in this matter when numerous genuine issues of material fact remain in dispute.”  Brief in Support of Request for Review (RR) at 1.  Petitioner contends the ALJ Decision was

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“largely biased” because the ALJ “relied heavily” on CMS’ exhibits while ignoring Petitioner’s exhibits, including “testimony from multiple witnesses, some of whom are experts in the relevant fields of nursing and medicine,” and “den[ied] Petitioner of the opportunity to cross-examine the CMS surveyor.”  Id. at 3.

With regard to R191, Petitioner does not dispute any material facts, but rather argues that 42 C.F.R. § 483.25(d)(2) is inapplicable because it “does not relate to a physical hazard or assistance devices,” and, instead, the aspiration was “the result of human error” by a Certified Nursing Assistant, which occurred despite “sufficient and comprehensive facility systems designed to anticipate and reduce the risk of accidents.”  Id. at 14.  Finally, Petitioner argues that the F689 Tag should not be assigned a scope and severity of “J” nor is “Immediate Jeopardy” appropriate, stating that the “incident involving R191 was an isolated incident.”  Id. at 15.

CMS argues in its response that Petitioner “fails to identify a single genuine dispute of material fact or instance of legal error in the ALJ’s Decision.”  CMS Response at 2.  CMS asserts that it is undisputed that R191 was on a physician-ordered honey thickened liquid diet and Petitioner’s staff “provided R191 unthickened milk resulting in R191 choking and being admitted to the hospital.”  Id.

We address Petitioner’s arguments in detail below and conclude that the undisputed material facts establish that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1) and (d)(2), and that the ALJ did not err in granting summary judgment for CMS, in connection with the noncompliance findings concerning R191.

A.        Requirements for substantial compliance with 42 C.F.R. § 483.25(d).

The regulation at section 483.25 obligates a facility to make “quality of care,” a fundamental principle applicable “to all treatment and care provided to facility residents.”  “Based on the comprehensive assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with . . . the comprehensive person-centered care plan” and “the resident’s choices.”  Id.

To that end, section 483.25(d)(1) (formerly section 483.25(h)(1)),⁶ obligates a facility to provide a resident environment that is “as free of accident hazards as is possible.”  This requirement “places a continuum of affirmative duties” on the facility.  Logan at 13 (citing Maine Veterans’ Home - Scarborough, DAB No. 1975, at 6 (2005)).  A facility must identify and remove hazards, where possible, or where the hazard is unavoidable because of other resident needs, manage the hazards by reducing accident risks to the extent possible.  Logan at 13; see also Meridian Nursing Ctr., DAB No. 2265, at 3 (2009), aff’d sub nom., Fal-Meridian, Inc. v. United States Dep’t of Health & Human

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Servs., 604 F.3d 445 (7th Cir. 2010).

To provide a resident “adequate supervision” consistent with section 483.25(d)(2), a facility has flexibility to choose how to supervise a resident “as appropriate to its circumstances and to employ reasonably necessary measures to comply with the regulation”; however, “the measures chosen must be able to reduce known or foreseeable accident risks to the highest practicable degree.”  Logan at 13 (emphasis added); see also Heritage Plaza Nursing Ctr., DAB No. 2829, at 6, 20 (2017) (quoting Century Care of Crystal Coast, DAB No. 2076, at 6-7 (2003) and Lifehouse of Riverside Healthcare Ctr., DAB No. 2774, at 15 (2017)); Windsor Health Care Ctr., DAB No. 1902, at 5 (2003) (supervision or other accident-prevention measures taken must be “adequate” “under all the circumstances”), aff’d, 127 F. App’x 843 (6th Cir. 2005); Del Rosa Villa, DAB No. 2458, at 19 (2012) (whether a facility complied with section 483.25(h)(2) depends on whether it took all reasonable and practicable measures to identify, evaluate, and reduce or eliminate the foreseeable risk of an accident), aff’d, 546 F. App’x 666 (9th Cir. 2013); Libertywood Nursing Ctr., DAB No. 2433, at 7 (2011) (“ensuring” adequate supervision involves identifying and minimizing safety risks), aff’d, 512 F. App’x 285 (4th Cir. 2013); Clermont Nursing & Convalescent Ctr., DAB No. 1923, at 21 (2004) (section 483.25(h)(2) requires a facility to eliminate or reduce a known or foreseeable “risk of accident to the greatest degree practicable”), aff’d, 142 F. App’x 900 (6th Cir. 2005).

“The federal requirements are based on an ‘outcome-oriented’ approach, in which the regulations establish outcomes facilities must achieve, but provide each facility with flexibility to select methods to achieve them that are appropriate to its own circumstances and needs.”  Logan at 13 (citing Azalea Court, DAB No. 2352, at 9 (2010), aff’d, 482 F. App’x 460 (11th Cir. 2012)).  Accordingly, the “failure to take measures that are reasonably necessary, under the circumstances, to achieve an outcome required by the regulation . . . to ensure that the resident environment remains as free of accident hazards as is possible and that residents receive supervision adequate to prevent accidents” may establish “noncompliance, even though the regulation does not specify the particular measures that the facility must or may take to achieve these outcomes.”  Id. (citing Azalea Court at 9 (emphasis in original)).

B.        The ALJ did not err in granting summary judgment as to the noncompliance findings concerning R191 based on undisputed facts.⁷

The Board and federal courts have permitted ALJs to decide cases without a hearing, using summary judgment procedures, when there are no genuine disputes of material fact.  Vandalia Park, DAB No. 1939, at 5-6 (2004); see also Lebanon Nursing & Rehab. Ctr., DAB 1918, at 3 (2004) (citing Everett Rehabilitation and Medical Center, DAB No.

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1628, at 3 (1997) and Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994)).  Whether a genuine dispute of material fact exists is itself a question of law, Timothy Onyiuke M.D., DAB No. 3092, at 13 (2023) (citing Emery Cnty. Care & Rehab. Ctr., DAB No. 3006, at 6 (2020)), and thus an issue that the Board reviews de novo.  In doing so, “we may nonetheless uphold the decision if the affected party either had conceded all of the material facts or proffered testimonial evidence only on facts which, even if proved, clearly would not make any substantive difference in the result.”  Big Bend Hospital Corp., DAB No. 1814, at 15 (2002) (emphasis omitted), aff’d, Big Bend Hospital Corp. v. Thompson, No. P-02-CA-030 (W.D. Tex. Jan. 2, 2003), aff’d, 88 Fed. Appx. 4 (5th Cir. 2004) (per curiam).

The question before us in this case is whether CMS, as the moving party, demonstrated the absence of a genuine dispute of material fact.  See Oak Ridge Ctr., DAB No. 2913, at 30 (2018).  We conclude it did.

Petitioner does not dispute that, contrary to the resident’s plan of care and facility policies and procedures, a member of its staff provided unthickened milk to R191, resulting in aspiration.  Instead, Petitioner argues that R191’s aspiration was “the result of a single human error” by a CNA, J.J., which occurred despite “sufficient and comprehensive facility systems designed to anticipate and reduce the risk of accidents.”  RR at 14.  However, the Board has previously found that the fact that the resident managed to consume some food and drink that could have caused aspiration “was itself evidence that facility staff was not providing adequate supervision to prevent such an accident[;]” and “even one isolated instance of non-compliance having a potential for more than minimal harm may be the basis for finding that a facility is not substantially complying with the applicable participating requirement.”  Meridian at 13, 16 (citing Ridge Terrace, DAB No. 1834, at 7 (2002)).

Moreover, as the ALJ correctly determined, Petitioner was responsible for its employee’s failure to prevent R191 from consuming unthickened liquid.  ALJ Decision at 9; see Cherrywood at 10 (“The Board has consistently held that a facility cannot disavow responsibility for the actions of its employees.”).  Petitioner is responsible for its staff’s failure to comply with its “policy in place for determining which residents needed specialized diets” and the facility’s own appropriate assessment of “R191 as needing a specialized diet.”  ALJ Decision at 9.  The Board has repeatedly found that a SNF is responsible for the conduct of its staff, agents, and employees.  See Kindred Transitional Care & Rehab – Greenfield, DAB No. 2792, at 11-14 (2017) (finding SNF facing CMPs for violating Medicare participation requirements liable for prohibited misconduct or inaction of its agents, and noting that “[t]he statute acts to impose responsibility on facilities for the misconduct of their staff and agents in violation of federal participation standards, even that of which facility owners or management may not be aware”); see also Life Care Ctr. of Gwinnett, DAB No. 2240, at 13 n.9 (2009) (“[T]he Act and regulations make a facility responsible for the actions of its staff because it is those

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actions which comprise the care the residents receive.”) (internal quotation marks omitted); Cherrywood at 9 (finding that where there was no genuine dispute that the SNF’s “employees caused the resident’s injuries, as a result of their failure to comply with the resident’s care plan,” the SNF was “responsible for its failure to comply”).

Before the Board, Petitioner asserts that Tag F689, signifying noncompliance with 42 C.F.R. § 483.25(d)(1)-(2), is “improper for an aspiration incident” because it “does not relate to a physical hazard or assistance devices.”  RR at 14.  Petitioner did not brief this argument before the ALJ and is not permitted to raise new issues for the first time before the Board.  See Guidelines, “Completion of the Review Process,” ¶ (a) (“The Board will not consider . . . issues which could have been presented to the ALJ but were not.”); see also Consulate Healthcare of Jacksonville, DAB No. 3119, at 17 (2023).  This issue is not properly before the Board and, therefore, is rejected for that reason alone.

Even if this issue were properly before the Board, we would reject the argument because it is without merit.  Petitioner first misstates the regulation, which addresses “accident” hazards not “physical” hazards, 42 C.F.R. § 483.25(d)(1), and ignores the fact that section 483.25(d)(2) includes both “adequate supervision” and “assistance devices.”  Second, unthickened milk is an accident hazard based on R191’s prescribed diet and Petitioner’s employee did not adequately supervise R191 by failing to ensure that R191 was not provided unthickened milk in accordance with the prescribed diet.

Petitioner does not dispute that a carton of unthickened milk was provided to R191 by its staff, which itself created an accident hazard for a resident who was at risk for aspiration.  Petitioner, therefore, did not ensure that R191’s environment remained as free of accident hazards as is possible as required by section 483.25(d)(1).  Moreover, the fact that the aide was able to obtain unthickened milk for R191 contrary to the resident’s plan of care, and R191was then allowed to consume the milk, despite the presence of multiple staff members in the room, shows a lack of adequate supervision and intervention.  Petitioner, therefore, did not ensure that R191 received adequate supervision to prevent accidents as required by section 483.25(d)(2).

Nevertheless, Petitioner argues the ALJ erred by ignoring Petitioner’s exhibits, including testimony from witnesses.  RR at 3.  However, the ALJ accepted “all of Petitioner’s assertions as true,” including that Petitioner had adequate policies and systems in place for addressing residents with special diets and that “human error was the cause of providing unthickened milk to R191.”  ALJ Decision at 9.  None of Petitioner’s witnesses dispute that R191 was provided unthickened milk by J.J., a member of Petitioner’s staff, which resulted in aspiration and subsequent hospitalization.

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Based on our de novo review of all the evidence proffered by the parties, including exhibits that CMS objected to,⁸ we find there is no genuine issue of material fact regarding the noncompliance findings concerning R191.  The undisputed facts establish that Petitioner did not ensure that R191’s environment remained as free of accident hazards as is possible and did not ensure that R191 received appropriate liquids in accordance with the prescribed diet, or adequate supervision to prevent the accidental consumption of unthickened milk.

Therefore, we conclude that a rational trier of fact, even viewing the record in the light most favorable to Petitioner and drawing all reasonable inferences in its favor, could not find that Petitioner was in substantial compliance with section 483.25(d)(1) or (d)(2) with regard to the quality of care provided to R191.

The ALJ’s procedural error in not explaining why cross-examination was denied, discussed below, does not preclude us from finding that summary judgment was appropriate regarding the noncompliance concerning R191.  Petitioner only challenges the application of section 483.25(d)(1) or (d)(2) to the facts associated with this noncompliance finding, rather than the accuracy of the facts themselves.  Under those circumstances, a hearing is unnecessary.  See Vandalia Park at 14 (stating that issue “does not require a hearing” where “there is no dispute of material fact, but at most a purely legal argument”).

Similarly, we see no prejudicial error in the ALJ’s decision not to make evidentiary rulings admitting or excluding any exhibits as the only evidentiary objections were by CMS, the prevailing party, and they do not involve relevant facts pertaining to R191.  Finally, we also reject Petitioner’s allegation that the ALJ’s decision was “largely biased,” as Petitioner alleges, see RR at 3, based on the ALJ’s assessment of the record evidence.  See A Samuel’s Christian Home Care, DAB No. 3043, at 20-21 (2021) (“That the ALJ determined summary judgment for CMS was appropriate is not proof of bias against Petitioner or bias in favor of CMS.  Petitioner has done nothing more than raise bare allegations of bias on the part of the ALJ who issued the decision before us.  We flatly reject the baseless allegations.”), appeal dismissed, No. 21-CV-1143, 2024 WL 1346671 (W.D. Pa. Mar. 29, 2024).

We find no error in the ALJ’s conclusion that no dispute of material fact precluded the entry of summary judgment for CMS, as a matter of law, with regard to the noncompliance findings concerning R191.

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II.        We are unable to resolve the noncompliance findings concerning Resident 206 (R206) on summary judgment because there are genuine issues of disputed material facts.

Case Background

A.        The September 2022 incident resulting in the death of Resident 206.

Following a traumatic brain injury (TBI), R206 was “unable to care for himself,” and was living with his wife, who was his caregiver.  CMS Ex. 45, at 109, 119.  Subsequently, R206’s wife suffered a serious head injury and was hospitalized.  Id.  As a result of his wife’s hospitalization, R206 was admitted to Petitioner’s facility on November 6, 2020, initially for sub-acute rehabilitation (SAR).  CMS Ex. 5, at 1.  R206’s diagnoses on admission included but were not limited to epilepsy, dementia, TBI with craniotomy, head injury, anxiety disorder, and mood disorder.  Id. at 1-2; see also P. Ex. 11, at 1.  Subsequently, R206 was diagnosed with rhabdomyolysis⁹ on November 3, 2021, and depression on April 21, 2022.  Id.

On November 23, 2020, R206 was moved to a room on Unit 1A.  CMS Ex. 45, at 109; see also CMS Ex. 5, at 1 (reflecting R206 was located on Unit 1A, room 1113-2).  R206’s wife was admitted to Petitioner’s facility on November 17, 2020, discharged on November 30, 2020, readmitted on December 1, 2020, and transferred to R206’s room on December 18, 2020.  P. Ex. 1; CMS Ex. 45, at 74, 84.  R206’s wife was re-hospitalized on at least two occasions in 2022.  See CMS Ex. 45, at 43 (June 7, 2022 Physician’s Progress Note), 49 (February 17, 2022 Nurses’ Notes).

On September 5, 2022, Petitioner reported to NJDOH that R206 eloped from the facility on Saturday, September 3, 2022, at approximately 10:30 a.m., police later located him across the street from the facility with a faint pulse, and he was pronounced dead at 4:16 PM.  CMS Ex. 26, at 4, 7, 11.  The surveyors later summarized that R206 “was able to independently exit the facility unattended, without the staff’s knowledge, through an unlocked door.”  CMS Ex. 1, at 103.

B.        Petitioner’s Facility.

A brief summary of the facility’s layout assists in understanding the relevant events of September 3, 2022.  Petitioner’s facility has four floors (designated Ground Floor, First Floor, Second Floor, and Third Floor).  CMS Ex. 65; P. Ex. 2.  The lower three floors have four wings (A, B, C, D) surrounding a central enclosed courtyard area, in a modified

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diamond shape.  See CMS Ex. 65; P. Ex. 2.  Unit A, on the front left, and Unit B, on the front right, are long, straight diagonal corridors on either side of the front lobby containing resident rooms, with a nurse’s station located midway in each corridor.  Id.  Unit C on the right, and unit D on the left, form the middle and rear wings of the facility (and on the topmost Third Floor, Units C and D are the only wings).  P. Ex. 2 at 5.  Units C and D consist of two corridors, approximately half the length of units A and B, joined at a 90-degree angle at the back of the facility, with a rear patio area joining them at the back (annotated on floorplans as “rear lobby”).  See CMS Ex. 65; P. Ex. 2 at 1-3.  The Unit 1D nursing station is located on the First Floor at the juncture of the two 1D corridors, at the back of the building, in a straight line from the Unit 1A nursing station.  CMS Ex. 65, at 2; P. Ex. 2, at 2.  Unit 1C contains no resident rooms and has no nursing station, but instead contains other service areas, including the Veteran’s Affairs (VA) clinic lobby.  See id; see also CMS Ex. 33, at 2.  There is an enclosed walkway from the front lobby to the rear patio, within the central open courtyard, with an atrium in the middle, with gardens surrounding the atrium.  See id.

The room where R206 and his spouse lived in Unit 1A was two rooms away from the Unit 1A nursing station, and seven rooms away from the front lobby area.  On September 3, 2022, the Unit 1D Manager (UM 1D) observed R206’s vacant wheelchair in front of the Unit 1D nurses’ station.  CMS Ex. 26, at 4 (Petitioner’s Reportable Event Record (RE)).  UM 1D notified the Unit 1A Manager (UM 1A), and a search was initiated.  CMS Ex. 26, at 4.  The time of the event was noted as 10:30 a.m.  Id. at 1.

C.        Medical Documentation and Care Plan.

i.         Psychiatric History & Progress Notes.

R206’s initial psychiatry evaluation completed a week after arrival at the facility noted a history of dementia, “pleasantly confused and calm on exam. Very forgetful, easily redirected[,] no behavioral issues since admission.”  P. Ex. 11, at 1.  R206 exhibited signs and symptoms of memory loss and confusion, a history of fair/poor attention and concentration, poor insight, poor judgment, and fair impulse control.  Id. at 1-3.  One week later, R206 was noted to have a history of “wandering hallways” and was “easily redirectable,” as well as anxious, with labile mood, episodes of agitations and mood swings; R206 was prescribed Depakote for mood swings.  P. Ex. 12, at 1, 4.

Psychiatry assessments from February 2021 until March 2022 noted R206 had memory loss and confusion, with delusions; poor attention, concentration, insight, and judgment; and anxiety; and from April 2022 until August 2022, poor impulse control.  P. Ex. 12, at 9, 11-12 (Feb. 18, 2021), 13, 15-16 (July 27, 2021), 17, 19-20 (Sept. 16, 2021), 21, 23-24 (Nov. 2, 2021), 25, 27-28 (Feb. 1, 2022), 29, 31-32 (Feb. 17, 2022), 33, 35-36 (Feb. 24, 2022), 37, 39-40 (Mar. 3, 2022), 41, 43-44  (Apr. 21, 2022), 45, 47-48 (June 16, 2022), 49, 51-52 (Aug. 29, 2022); CMS Ex. 19, at 1, 3-4 (July 26, 2022).

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ii.         Quarterly Assessments & Elopement risk assessments.

R206’s initial elopement risk assessment was effective on December 16, 2020.  CMS Ex. 41, at 20; P. Ex. 5.  He was assessed as an elopement risk, as the assessment: indicated “Resident is confused and frequently wanders in wheelchair . . . off the unit into other nursing units, unaware of his whereabouts;” noted R206 had one or more predisposing diseases, was disoriented at all times, had poor safety environment awareness, and had no history of elopement; and indicated there was no “transient medical cause (room change, new environment, family dynamics) contributing to increased confusion.”  CMS Ex. 41, at 20; P. Ex. 5.  R206 was given a WanderGuard¹⁰ device that same day, for safety precautions and a care plan was created.  CMS Ex. 13, at 2; P. Ex. 13, at 4.

Quarterly assessments offered by Petitioner for February and May 2021 both noted R206 suffered from a history of 1-2 falls within the past three months, but both also noted that a “Wander/elopement alarm” was not used.  P. Ex. 6, at 8, 12, 24, 28 (emphasis added).¹¹  The elopement portions of those assessments again contained the same noted behaviors/history and noted that R206 had more than 120 days without elopement and no history of elopement, concluding that R206 was not an elopement risk.  P. Ex. 6, at 13-14, 29-30.

The August 5, 2021 quarterly assessment contained the same noted behaviors/history, but concluded that R206 was at risk for elopement.  P. Ex. 6, at 62; CMS Ex. 9. at 14.  Moreover, the assessment again noted that a wander/elopement alarm was not used, as did the August 4, 2021 Minimum Data Set Resident Assessment and Care Screening (MDS).  P. Ex. 6, at 60; CMS Ex. 6, at 39; CMS Ex. 9, at 12.  The November 4, 2021 quarterly assessment contained the same noted behaviors/history, concluding that R206 was not at risk for elopement and again noting that a wander/elopement alarm was not used.  P. Ex. 6, at 78-79 (emphasis added).  However, the November 4, 2021 MDS indicated that the wander/elopement alarm was used daily.  CMS Ex. 8, at 44.

The elopement section of the February 3, 2022 quarterly assessment is blank.  See CMS Ex. 7, at 1, 13-14; P. Ex. 6, at 83, 95-96.

A March 29, 2022 Discontinue Order reflects the WanderGuard was discontinued on that

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same day, after a physician determined that R206 was no longer at risk.  CMS Ex. 29.  The care plan was marked “RESOLVED” regarding the elopement risk that same day, as were all goals, interventions, and tasks associated with that risk.  CMS Ex. 13, at 2; P. Ex. 13, at 4.

The unsigned elopement section of the May 5, 2022 quarterly assessment offered by Petitioner noted that R206 had one or more predisposing diseases, was ambulatory or used a wheelchair, had intermittent confusion, and was responsive to re-direction/cueing, as well as that R206 had greater than 120 days without elopement and no history of elopement.  P. Ex. 6, at 111-12.  The elopement assessment concluded that R206 was not at risk for elopement, and also noted that a wander/elopement alarm was not used.  Id. at 110, 112.  The fall risk portion of the assessment further indicated that R206 had “[i]ntermittent confusion ([d]iminished safety awareness/[p]oor impulse control,” no falls in the past three months, and was “chairbound.”  Id. at 106.  The May 5, 2022 quarterly assessment, provided to the surveyors at the time of the survey and offered by CMS, contains no completed elopement or fall risk sections.  CMS Ex. 10, at 2.

The unsigned elopement section of the August 4, 2022 quarterly assessment offered by Petitioner again noted that R206 had one or more predisposing diseases, was ambulatory or used a wheelchair, was alert, and was responsive to re-direction/cueing, as well as that R206 had greater than 120 days without elopement and no history of elopement.  P. Ex. 6, at 127-28.  The assessment concluded that R206 was not at risk for elopement, and again noted that a wander/elopement alarm was not used.  Id. at 126, 128.  The signed activity assessment further noted that R206 liked “touring the building” and the unsigned fall risk assessment again indicated R206 had “[i]ntermittent confusion ([d]iminished safety awareness/[p]oor impulse control,” had no falls in the past three months and was “chairbound.”  Id. at 120, 122.  The August 4, 2022 quarterly assessment, provided to the surveyors at the time of the survey and offered by CMS, contained a signed activity assessment noting that R206 liked “touring the building,” but no completed elopement or fall risk sections.  CMS Ex. 11, at 1-2.¹²

Evaluations of R206’s “walk-in corridor, locomotion off-unit, and locomotion on-unit” performance for the 14-day period between August 24, 2022 and September 3, 2022, noted on multiple occasions that R206 was independent with no help or staff oversight at any time.  CMS Ex. 40, at 1-3.  On several other occasions, it was noted R206 required extensive assistance, with staff providing weightbearing support; and on a few other occasions, it was noted R206 needed limited assistance or supervision.  Id.

R206’s resident care plan initiated on December 16, 2020, noted “[a]t risk for elopement

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due to wandering [related to] cognitive impairment, confusion, and dementia” with a goal that R206 “[w]ill not leave the facility unsupervised,” and an initial target date of May 13, 2021.  P. Ex. 13, at 4-6.  Interventions/Tasks included:

• Assess for change in behavior.
• Observe for unsafe behaviors. Redirect as needed.
• Provide with program of activities that minimize the potential for wandering.
• WanderGuard in place. Observe for placement and proper functioning each shift.

Id. at 4-5.  The target date for the goal was revised in May and August of 2021, and again in February and March 2022, with a determination of “RESOLVED” on March 29, 2022.  Id.  Although the care plan indicates revisions in May and August of 2022, the risk, goal and all interventions and tasks reflect a resolved date of March 29, 2022.  Id. at 4.

The care plan also addressed “Cognition/Communication” indicating R206 had “impaired cognitive function and impaired thought processes [related to] Dementia;” “impaired decision making;” and “[Altered Mental Status] AMS,” with goals including R206 being able to “communicate his basic needs to the staff on a daily basis” and “develop skills to cope with cognitive decline and maintain safety.”  P. Ex. 13, at 20-27; see also CMS Ex. 13, at 9.  These goals were initiated on November 8, 2020, and re-initiated on December 13, 2021 with target dates ranging from May 13, 2021 to November 11, 2022.  Id.  CMS Ex. 13 noted that any goals that were not resolved were “CANCELLED” as of September 6, 2022.  CMS Ex. 13, at 1, 3-11, 14-16, 18-22.  There was no resolution date or “CANCELLED” annotations for these goals in P. Ex. 13.  Related interventions included:

• Communicate and discuss concerns with resident, family, and caregivers.
• Keep the resident’s routine consistent.
• Monitor/document/report as needed any changes in cognitive function.
• Provide a program of activities that accommodates the resident’s abilities.

P. Ex. 13, at 20; CMS Ex. 13, at 9.

The care plan further noted that R206 was “at risk for falls” related to gait/balance problems and “impaired mobility,” with goals including that R206 will be “free of falls” and “not sustain serious injury.”  P. Ex. 13, at 28-36; CMS Ex. 13, at 10.  These goals were initiated on November 8, 2020, and re-initiated on December 13, 2021, with target dates ranging from May 13, 2021 to November 11, 2022.  Id.  This portion of the care plan was “CANCELLED” on September 6, 2022.  See CMS Ex. 13, at 10; but see P. Ex. 13, at 28-35 (no resolution date for these goals).  Related interventions included:

• Ensure the resident is wearing appropriate footwear when ambulating or mobilizing in w/c.

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• Evaluate for and provide appropriate adaptive equipment or devices.
• Keep call light and personal items within reach.
• Provide “the resident with a safe environment.”

CMS Ex. 13, at 10-11.

D.      Results of investigations into R206’s death.

Petitioner and CMS investigated R206’s elopement and death, and both incorporated information contained in the Morris Township Police Department report (Police Report).  See CMS Exs. 1 (CMS Survey Statement of Deficiencies (SOD)); 26 (Petitioner’s Reportable Event); 24 (Police Report).

R206’s predisposing physiological factors included confusion, impaired memory, and recent changes in medication, and predisposing situational factors included ambulating without assistance with wheelchair as assistive device.  CMS Ex. 26, at 9; see also CMS Ex. 24, at 1 (Police Report indicating Petitioner’s staff described R206 as “being unable to walk and in declining health condition.  He mostly maneuvered via wheel[]chair but was able to walk,” as well as that R206 left his wheelchair behind and was “unlikely to have been able to make it far walking under his own power” based on his medical conditions).

i.      Staff member interviews and video surveillance reviews.

Staff members who were present and observed R206 on the morning of his elopement were interviewed and provided the following details:

• CNAs:
  • CNA G.A. stated R206 self-propelled “to the nurses’ station asking for breakfast” at approximately 6:50 a.m.  CMS Ex. 26, at 5.  R206 declined a snack and “went back to his room.”  Id. at 5-6.  Sometime later, CNA G.A. again “observed [R206] in the hallway” and advised R206 “again [of] the breakfast delivery time,” and R206 “verbalized understanding and continued back to unit 1A.”  Id. at 6.
  • CNA M.B. (R206’s primary) observed R206 around 7:00 a.m. “doing [R206’s] ‘normal routine’ (sitting in the doorway of his room, self-propelling in the hallway)” and after securing her belongings and arriving at the 1A nurses’ station, saw R206 “down the hall” headed toward unit 1B and notified the CNA for that unit.  CNA M.B. later provided R206 a.m. care, “noted him to have completed breakfast and receive medications from his nurse,” and noted he was “last seen ‘around 10 something.’”  Id. at 5.

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• CNA M.D., who worked in Unit 1B, observed R206 “self-propelling in his wheelchair in the hallway towards 1B,” after being notified by CNA M.B., and assisted R206 via wheelchair back to R206’s room.  Id.
• Unit Monitors (UMs):
  • UM 1A (LPN M.F.) stated that R206 “was confused and could not put a complete sentence together;” “had a history of going to different areas on the first floor,” and liked to sit in the atrium, which was closed a few weeks prior because it was under construction, but “was not exit seeking to [LPN M.F.’s] knowledge.”  CMS Ex. 1, at 108-9.  LPN M.F. further stated that R206 knew mealtimes, medication times, staff, and other residents but “would not have been safe to live in community based on [R206’s] cognitive status” and “needed oversight.”  Id.
  • UM 1D (LPN N.C.) “observed [R206] ambulating on [Unit 1D] while doing med[ication] pass.  [Upon arriving] back at the nurse’s station [LPN N.C.] observed an empty wheelchair, checked the tag and noticed it belonged to [R206].”  CMS Ex. 26, at 5.  LPN N.C. immediately notified UM 1A (LPN M.F.).  Id.  LPN N.C. was advised by another resident that R206 “attempted to exit through the patio but it was locked.”  Id.  LPN N.C. followed the direction that the other resident indicated R206 went [Unit 1C], and “noted the exit door at the end of the hall was unlocked” before exiting through the door to search the perimeter of the facility.  Id.
  • After being notified by LPN N.C. of R206’s empty wheelchair, LPN M.F. conducted a search but was unable to locate R206, notified security, reception, all other units, and administration.  CMS Ex. 26, at 5.  After an initial search of the facility and nearby outside facilities, 911 was contacted.  Id.  LPN M.F. further stated that during her search accompanied by officers, the “exit door [was] noted to be unlocked.”  CMS Ex. 26, at 5.  LPN M.F. further stated that the local police department for another town was notified to go to the Administrator’s home to obtain surveillance camera access “due to Administrator’s [religious observance] and unable to answer phone.”  Id.
• The Dietary Aid (DA)¹³ stated that “while in the [unit 1D] hallway passing the patio,” the DA observed R206 “by the patio trying to open the door.”  CMS Ex. 26, at 5; CMS Ex. 1, at 104-105.  R206 stopped him and asked him to open the door.  Id.  The DA informed R206 that the DA “was unable to do so” so R206

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• “continued walking toward the unit.”  Id.  The DA stated that he did not think this was “an odd behavior . . . figured [R206] wanted to sit outside.”  CMS Ex. 1, at 105.

The police report states notice of a missing resident from Petitioner’s facility was received at 12:20 p.m. on September 3, 2022.  CMS Ex. 24, at 1; see also CMS Ex. 27, at 1 (911 email notification reflecting the call to 911 was placed at 12:14 p.m.).  The police report noted that LPN M.F. stated R206 was provided medication “between approximately 10:00-10:15,” then “was seen in the hallway of unit 1D within the complex,” and “[a]fter this point, he was not seen again.”  CMS Ex. 24, at 1.  The report noted that Petitioner’s staff described R206 as “being unable to walk and in declining health condition.  He mostly maneuvered via wheel[]chair but was able to walk,” as well as that R206 left his wheelchair behind and was “unlikely to have been able to make it far walking under his own power” based on his medical conditions.  Id.  The police searched the exterior of the facility with a K-9 unit, released a broadcast to all surrounding towns, and notified the Morris County Prosecutor’s Office missing persons unit, but R206 was not initially located.  Id. at 2.

Petitioner’s staff was unable to access the surveillance video footage because the Administrator was not at the location and was unreachable by phone due to religious beliefs.  Id. at 2.  Accordingly, the police went to the Administrator’s residence and the Administrator provided the password, such that after “approximately two hours being on scene, the surveillance footage was accessed.”  Id.

Each investigation also reviewed the video surveillance footage.  It showed R206 was ambulating on Unit 1D at approximately 10:08 a.m., opened and closed a closet door, then “continued towards [the rear] patio door, stopped to converse with dietary staff while pointing towards patio door, continued towards kitchen/dietary hallway [which is Unit 1C], opened and closed dentist office [door] and proceeded to end of the hallway.”  CMS Ex. 26, at 4-5; CMS Ex. 1, at 105-106; CMS Ex. 24, at 2.  R206 was last seen on the video footage at 10:10 a.m.  CMS Ex. 26, at 5; but see CMS Ex. 24, at 2 (police report of the video reflects that R206 was last seen at approximately 10:12 a.m.).¹⁴

ii.      Additional information from the NJDOH survey.

On September 7, 2022, the surveyors, along with the Administrator, Assistant Administrator, and Maintenance Director (MD), observed the location where R206 exited the facility.  CMS Ex. 1, at 103-04.  Petitioner’s Administrator informed the surveyors that R206 was not wearing a WanderGuard when he exited the door to stairwell #4 on the first floor [Unit 1C] of the facility.  Id. at 104; see also CMS Exs. 24, at 2; 26, at 4; 33, at

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2; 65, at 2; 68, at 6, ¶ 24, 11-12 ¶ 40.  The surveyors “observed a horizontal metal bar on the top of the door and a keypad next to the door” and that the door was locked.  CMS Ex. 1, at 104.  The MD waved a tool by the keypad and an alarm sounded, indicating that the WanderGuard keypad system was functioning.  Id.  The Administrator stated that the door was a “delayed egress maglock and either the maglock system malfunctioned or the keypad itself malfunctioned when [R206] exited the building,” and that since R206 “exited the facility, the keypad, and the maglock were both replaced and were now ‘new.’”  Id.; see also CMS Ex. 17 (photographs of hallway, door, and lock mechanism).

The following day, a surveyor interviewed the Security Supervisor (SS), who “stated that there was no keypad to the left of stairwell #4 prior to” September 5, 2022, the day the repairs were done, and prior to September 5, 2022, “there was no lock on the door, and you could just walk out.”  CMS Ex. 1, at 110.  The SS further stated that “the security guards that were assigned to work at the facility had no responsibility of monitoring cameras.”  Id.  The technician who serviced the property on September 5, 2022, was interviewed via telephone and “confirmed that the [WanderGuard] was not keeping the door locked,” specifically noting that a WanderGuard “in the vicinity” would “lock the door, but the relay to keep the door locked was not working.”  Id. at 111.  The technician further noted that “there was no keypad on the left wall of the door before they put one in,” and that the WanderGuard “keypad was on the opposite wall before the door.”  Id.

Petitioner had a “Wandering/Elopement” policy, which was revised in January 2022, stating, “Upon admission, annually, and when there is a significant change in status” the resident will be assessed for wandering/elopement risk, and “[a]ny resident identified to be a risk for wandering” will be provided with a WanderGuard and an appropriate plan of care will be developed.  CMS Ex. 30, at 1.

After reviewing the video, the surveyors asked the Administrator, “What should be done if the resident has wandering behavior and was confused?”  CMS Ex. 1, at 106.  The Administrator responded “that residents had wandering behaviors, but it did not indicate that the resident was exit seeking [elopement].”  Id.  The surveyors then asked the DON, “What does it mean when a resident wanders?”  Id.  The DON replied that “a resident did not always remain in one place” and interventions to decrease wandering behavior included re-directing the resident, providing diversional activities, providing time in the day room, and providing the resident with verbal cues as to where they are.  Id. at 106-107.  The DON further indicated that if a resident had a history of wandering and displayed that behavior, it should be included in the resident’s care plan (CP).  Id. at 107.

R206’s primary care physician (PCP) was also interviewed by the survey team and stated that R206 “had a fair amount of confusion with day-to-day tasks, but was easily re-directed” when confused.  CMS Ex. 1, at 107.  The PCP “never knew [R206] to have exit seeking behaviors at the facility” but there were many room changes during the COVID-19 Pandemic and R206 “would get confused and needed to be re-directed back to the

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location of [his] room, so staff placed a [WanderGuard] on R206.”  Id.  The PCP further told the surveyors that prior to arriving at Petitioner’s facility when R206’s spouse was injured and, in the hospital, “[R206] stayed at home and wandered around their home.”  Id. at 108.  The PCP never personally observed, nor heard from staff, that R206 wandered and the PCP assumed “that was why the [WanderGuard] was discontinued, because for the most part [R206] stayed in [his] room.”  Id.  The PCP further stated that R206’s wandering behavior “was not exactly a chronic issue, it was an issue [R206] had in the past . . . that would always be something that should be monitored.”  Id.

The surveyor also interviewed R206’s psychiatric nurse practitioner who stated that R206 “had diagnoses of depression, dementia, and mood disorders and was absolutely confused,” as well as that R206 “had periods of knowing where [R206] was and at times did not.”  CMS Ex. 1, at 110; see also CMS Ex. 68, at 10-11, ¶ 37.

iii.      Investigatory conclusions and CMS notice of imposition of remedies.

Petitioner’s internal investigation concluded the incident “was unforeseeable and unpredictable as [R206] did not exhibit exit seeking behaviors nor was” R206 acting out of “normal routine.”  CMS Ex. 26, at 6.  The internal investigation noted that the “[e]xit door locking mechanism malfunctioned however, [WanderGuard] system in place and functioning for residents with high risk of elopement.”  Id.  Follow-up actions included that security was posted at the “unlocked exit door.”  Id.

The survey concluded that Petitioner failed to ensure R206 was appropriately supervised and monitored to ensure his safety and failed to follow the facility’s Policy and Procedure for wandering/elopement, at the level of immediate jeopardy for Tag F689 effective September 3, 2022.  CMS Ex. 1, at 1-3.

On September 7, 2022, the survey team notified the Administrator of an immediate jeopardy finding, stating that on September 3, 2022, Petitioner:

failed to supervise and monitor a cognitively impaired resident who had Dementia and TBI and could independently ambulate.  [R206] had a history of elopement risk, wandering, and actual exit seeking on 09/03/22, when [R206] proceeded down the 1D hallway and stopped and asked the dietary staff to open the patio door to let the resident out.

The resident was able to exit the facility out an unlocked door . . . the resident proceeded approximately 300 yards and was [later] found . . . by police who initiated CPR until paramedics came . . . and was later pronounced expired [shortly thereafter].  [R206’s] care plan failed to address specific interventions for [R206] who was cognitively impaired

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with TBI who was able to ambulate independently and had a history of wandering and was identified as an elopement risk.

CMS Ex. 31, at 1-2.

Petitioner’s immediate jeopardy removal plan included an updated elopement policy, adding a provision stating, “Residents who are NOT identified as high risk on elopement assessment, but MAY be at risk for wandering based on cognition/ambulatory status will be care planned for wandering risk.”  CMS Ex. 32, at 2.

CMS notified Petitioner of the imposition of remedies on November 10, 2022, including a per-instance CMP of $17,210, in connection with the noncompliance findings identified in the survey.  CMS Ex. 2.  With regard to R206, the noncompliance identified in the survey was summarized as follows:  “The facility failed to ensure . . . a resident with moderate cognitive impairment, who was at risk for elopement, and had a known history of wandering and exit seeking behavior was appropriately supervised and monitored to ensure safety . . . and staff failed to follow their facility’s policy and procedure on Wandering/Elopement.”  CMS Ex. 1, at 99-100.

E.      Petitioner’s request for an ALJ hearing.

Petitioner’s RFH asserted that R206, “who exited through the unlocked door,” was “not at risk for elopement and did not have a recent history of wandering or exit-seeking.”  RFH at 2 (emphasis added).  Petitioner stated, “Immediately after the administrator was made aware of the unsecured exit, staff were re-assigned to provide 24-hour monitoring of the exit” until the “lock was repaired,” and that this “was an isolated issue, specific to this one door.”  Id.

CMS filed a pre-hearing brief and motion for summary judgement, asserting that R206, who was at risk for elopement and had a history of wandering and exit seeking behavior, “was able to exit the building unsupervised through an unlocked door.”  CMS’ Mot. Summ. Judg. at 1.  CMS asserted these failures violated 42 C.F.R. § 483.25(d)(1)-(2) and constituted immediate jeopardy to support the CMP of $17,210, and further asserted that these determinations are supported by the record and no genuine issues of material fact are in dispute.  Id. at 2.  CMS filed 70 proposed exhibits and identified two proposed witnesses.  CMS Ex. List; CMS Witness List.  CMS submitted declarations of both proposed witnesses, A.M.R. and R.K., members of the NJDOH survey team, which recount the survey findings addressed above.  CMS Exs. 68, 70.

As indicated above, Petitioner filed a pre-hearing brief and opposition to summary judgment, asserting that there are multiple relevant issues of material fact in dispute, such that summary judgment is inappropriate.  P.  Opp’n to CMS’ Mot. Summ. J. at 33.  Specifically, Petitioner asserted that the testimony of Petitioner’s witnesses “and that of

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the surveyors are diametrically opposed with regard to care planning and the eventual elopement.”  Id. at 34.  Petitioner identified 31 proposed exhibits but filed only 30, and identified seven proposed witnesses, including one expert witness, G.R., a registered nurse.¹⁵  P. List of Proposed Exs.; P. Witness List.  Petitioner also requested to cross-examine both of CMS’s witnesses.  P. Req. to Cross-Examine Witnesses.

CMS objected to nine of Petitioner’s proposed exhibits; requested that the ALJ not allow Petitioner to call Dr. J.P. as a witness, as no proposed written direct testimony had been submitted; and requested to cross-examine all of Petitioner’s proposed witnesses.  CMS Obj. to P. Proposed Exs. and Witnesses and Req. to Cross-Examine (CMS Obj.).  Specifically, CMS objected to P. Exs. 6, 24-27, and 29 for lack of foundation; and P. Exs. 1, 15, and 19 as irrelevant.  See CMS Obj. at 2-8.  The ALJ made no evidentiary rulings but given that we are vacating and remanding this portion of the ALJ’s decision, these evidentiary objections should be resolved by the ALJ on remand to the extent that the evidence concerns noncompliance findings concerning R206.

F.      ALJ Decision.

The ALJ entered summary judgment in favor of CMS, stating that the decision was based “entirely on undisputed facts” and “that the undisputed material facts amply support CMS’s assertions.”  ALJ Decision at 1, 3.  The ALJ also found that Petitioner “failed to raise facts or arguments that create a legitimate dispute concerning its compliance.”  Id.

In reaching the decision, the ALJ accepted Petitioner’s evidence that its staff had concluded R206 posed no risk of elopement or wandering “as true for purposes of deciding whether I should grant CMS’s summary judgment motion.”  Id. at 4.  The ALJ stated that discontinuing the WanderGuard “did not end the staff’s duty to protect R206 against the dangers posed by dementia, confusion, and unsteadiness” and R206 “had significant cognitive deficits that put [R206] at risk when [traveling] about Petitioner’s facility unaccompanied.”  Id.  The ALJ further stated that the “risks were compounded by the size of the facility and by locations within the facility” where a “confused resident might become lost,” as well as “Petitioner’s failure to secure and police an exit and its staff’s failure to monitor security footage.”  Id.  The ALJ found that the risks that R206 would become lost or encounter a hazardous situation “existed even if he was traveling with a purpose and not attempting to elope or wander.”  Id.

The ALJ found that Petitioner’s staff should have addressed potential hazards in its facility, stating that the corridors of Petitioner’s facility and “the places to which they connect present ample opportunities for a confused and demented resident to become lost

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or to navigate into trouble.”  Id. at 5.  The ALJ further determined that R206’s quarterly assessments and care plan did not address these risks and hazards in connection with R206’s impairments.  Id.

The ALJ found the testimony of Petitioner’s expert witness, G.R., did not bar the issuance of summary judgment because G.R. was not a fact witness and “was not present at Petitioner’s facility on September 3, 2022, and had no role in providing care to R206.”  Id. at 6.  The ALJ further noted that G.R.’s testimony addressed whether R206 was properly assessed as an elopement risk or prone to wander but did “not address Petitioner’s broader responsibility.”  Id. at 6-7.

The ALJ concluded that the “unlocked and unguarded door enabled not just R206 to elope, but any other person desiring to leave,” and that because no one at the facility had access to the surveillance footage at the time of the incident “a resident could have walked out undetected, and that elopement might have remained undetected for hours.”  Id.  The ALJ found that no “dispute of fact exists as to whether the door locking mechanism worked on that date” based on Petitioner’s own investigation and that Petitioner’s “failure to secure the exit door and to monitor security footage was a general failure to protect residents against accident hazards, not just a failure to provide care to R206,” which “violates the requirements of 42 C.F.R. § 483.25(d).”  Id. at 7-8.

Analysis of the Alleged Deficiency Involving R206

The issue before us is whether the record, viewed in the light most favorable to Petitioner, shows that there is no genuine issue as to any material fact, and that CMS is entitled to judgment as a matter of law.  While many of the essential facts are undisputed, there are unresolved evidentiary issues, as well as material inconsistencies and contradictions in the record that make summary judgment inappropriate with regard to the noncompliance findings concerning R206.

A.      The ALJ erred in deciding this matter on summary judgment with regard to the noncompliance findings concerning R206.

Petitioner asserts that “numerous genuine issues of material fact remain in dispute,” and asserts the right “to cross-examine witnesses.”  RR at 1-2.  Specifically, Petitioner disputes that R206’s elopement was foreseeable.  Id. at 10-11.  Petitioner asserts that “not one MDS assessment . . . identified Resident 206 exhibiting any wandering behavior during the look back periods” before removal of his WanderGuard.  Id. at 6.  Petitioner points to proffered evidence that “there was no indication at any time Resident 206 was exit seeking or attempted to leave the facility by himself.”  Id. (citing P. Exs. 24-25).  “R206’s Care Plan is timely, well documented evidence,” Petitioner argues, “that although he was initially ordered a WanderGuard, over time, he became oriented to the Facility and was not an elopement risk.”  Id. at 13 (citing P. Ex. 28).  Petitioner also

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contends the ALJ Decision was “largely biased” because the ALJ “den[ied] Petitioner of the opportunity to cross-examine the CMS surveyor” and relied heavily on CMS’s exhibits while ignoring Petitioner’s exhibits, including “testimony from multiple witnesses, some of whom are experts in the relevant fields of nursing and medicine.”  Id. at 3.  Petitioner did not object to any of the evidence proffered by CMS but requested to cross-examine the two surveyors.  Id. at 16.

The ALJ’s standing order concerning a summary judgment motion and request to cross-examine witnesses stated in part:

I will decide the motion according to the principles of Rule 56 of the Federal Rules of Civil Procedure.  Under the rule, a party moving for summary judgment need not offer supporting affidavits or exhibits (although it may do so) but must set forth the material facts it contends are not in dispute.  To avoid summary judgment, the opposing party must come forward with admissible evidence establishing a dispute of material fact.

*  *  *  *

A party has the right to cross-examine any witness for the opposing party.  Cross-examination must be within the scope of the witness’s written direct testimony.

*  *  *  *

A hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and, in compliance with this order, the opposing party asks to cross-examine.  A party must then produce the designated witness for cross-examination at the hearing.

Standing Order at 3, 5.

i.      The ALJ’s failure to rule on the admissibility of the proffered exhibits was error.

The ALJ found it unnecessary to rule on the admissibility of the proffered exhibits “because I grant summary judgment.”  Id. at 1.  The Board has long held that this approach to summary judgment is problematic.  See, e.g., Illinois Knights Templar Home, DAB No. 2274, at 5-6 (2009).  The Board has affirmed summary judgment even when the ALJ declined to “admit” the parties’ exhibits because there were no unresolved evidentiary objections and the Board was able to determine, as part of its de novo review, that the proffered exhibits created no genuine issue of material fact. See, e.g., Blair Allen Nelson, M.D., DAB No. 3024, at 5 n.6 (2020); Arkansas Health Group, DAB No. 2929,

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at 5 n.3 (2019).  However, the Board has indicated the inability to uphold summary judgment where the ALJ made “no determination about the scope of the record evidence in total, did not determine the admissibility of CMS’s exhibits, and did not ‘receive’ any exhibits into the record.”   Shiloh First Heath Care, Inc., DAB No. 3123, at 15 (2023) (internal quotation marks omitted) (citing Medford Care at 18-19).  CMS objected to nine of Petitioner’s proposed exhibits, six of which related to R206.  See CMS Obj.  The basis of CMS’s objection was lack of foundation for:  P Ex. 6 (Annual Assessment– November 2021 with all quarterly assessments for R206); portions of P. Exs. 24-25, 27 (Expert Witness Report, Expert Witness Declaration, and Declaration of the DON); and portions of P. Ex. 29 (Declaration of the LPN serving as the UM for R206 on the date of elopement).  CMS Obj. at 2-7.  CMS also objected to P. Ex. 1 (Census sheet for R206’s wife) for irrelevance.  Id. at 7.

We are unable to review the entire record in the light most favorable to Petitioner because the ALJ did not “receive” any exhibits into the record or define the scope of the record by resolving pending objections to numerous exhibits.  We decline to resolve the evidentiary objections made before the ALJ, and due to the uncertainty of the extent of the admissible record evidence, we are unable to sustain any finding of noncompliance concerning R206 on summary judgment.  On remand, the ALJ should consider and determine the admissibility of all of Petitioner’s exhibits.  See Medford Care, at 19 (citing Shiloh, at 7 n.6).

ii.      Petitioner requested to cross-examine the surveyors.

The ALJ decision did not acknowledge Petitioner’s request to cross-examine the surveyors or provide any explanation as to why Petitioner’s request to cross-examine was denied, other than to state “I base my decision entirely on undisputed facts.”  ALJ Decision at 3.

“The right to a hearing in these matters is a statutory one,” and the Part 498 regulations “generally contemplate that the ALJ will hold an oral hearing at which witnesses will testify and may be cross-examined (unless the parties have waived their right to a hearing in writing).”  Vandalia Park at 5.  It is a “fundamental principle that short-circuiting the right to a hearing is disfavored.”  Id. at 20.

In Garden City Medical Clinic, DAB No. 1763 (2001), Petitioner disputed the facts alleged in the affidavits provided by the agency as support for its position and raised questions about the affiants’ qualifications and the data upon which they based their opinions (involving statistical analysis of proficiency testing for clinical testing certification).  The Board overturned the summary judgment and remanded the case back to the ALJ, holding “once cross-examination is requested, the ALJ must either grant the request or explain why cross-examination is not required.  Failing that, the ALJ could not reasonably rely upon the affiants’ testimony as ‘undisputed.’”  Id. at 11-12.  The Board

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found the ALJ erred in denying the request for a hearing as Garden City raised a genuine dispute of material fact and “[g]iven the heavy reliance placed by the ALJ on the testimony of [the agency] affiants,” the ALJ should address the request for an opportunity to cross-examine those witnesses.  Id. at 11-13.

Here, the ALJ’s failures to grant or to address Petitioner’s request for cross-examination in the decision were error.  The “requirement affording the opportunity for an oral hearing is not contravened by a summary judgment if there are no genuine issues of material fact.”  Lebanon Nursing & Rehab. Ctr., DAB No. 1918, at 3 (2004).  Here however, material facts were in dispute with regard to the surveyors’ findings.  We find the ALJ erred in deciding this case on summary judgment because whether R206 had a propensity to wander or was an elopement risk are material facts, and there was a genuine dispute between the parties as to these material facts.

iii.      There was a genuine dispute of material fact as to whether R206 exhibited wandering behavior or was an elopement risk.

Internal inconsistencies in the ALJ Decision reflect the existence of a genuine dispute of material fact as to whether R206 had behavioral propensities that rendered Petitioner’s care deficient.  The proffered evidence shows the surveyors cited Petitioner for failing to “ensure that a resident with moderate cognitive impairment who was at risk for elopement was appropriately supervised and monitored to ensure safety and follow the facility’s Policy and Procedure for wandering/elopement.”  CMS Ex. 1 at 1-2; see also CMS Ex. 31.  Petitioner’s expert witness prepared a report providing “expert professional opinion” about the findings of the complaint survey.  See P. Ex. 24.  That report includes a definition of “wandering” found in the Minimum Data Set Assessments (MDS), which states:

the act of moving (walking or locomotion in a wheelchair) from place to place with or without a specified course or known direction.  Wandering may or may not be aimless.  The wandering resident may be oblivious to his or her physical or safety needs.  The resident may have a purpose such as searching to find something, but he or she persists without knowing the exact direction or location of the object, person, or place.  The behavior may or may not be driven by confused thoughts or delusional ideas (e.g., when a resident believes she must find her mother, who staff know is deceased).  Wandering may be a pursuit of exercise or a pleasurable leisure activity, or it may be related to tension, anxiety, agitation, or searching.

Id. at 4 (italics omitted).

The ALJ attempted to circumvent the disputed evidence regarding “wandering” by accepting for the purpose of summary judgment, Petitioner’s proffered evidence “that its

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staff had assessed R206 on several occasions after August 2021 for propensity to elope the facility or for wandering and had concluded that the resident posed no risk for either behavior.”  ALJ Decision at 4. Additionally, the ALJ did not find that Petitioner’s staff “erred in March 2022 by discontinuing R206’s WanderGuard [or] question staff’s assessments that the resident did not show a propensity to elope or to wander.”  Id.  The ALJ ruled that “even if [R206] had no demonstrated propensity to elope or to wander,” that did not end the staff’s duty to protect R206 against the substantial dangers posed by his dementia, confusion, and unsteadiness that “put him at risk when he traveled about Petitioner’s facility unaccompanied.”  Id. (finding a potential for harm if R206 were “to become lost or to encounter a hazardous situation” after leaving his room) (emphasis added).  We find the ALJ’s analysis in this regard to be erroneous.

Petitioner presented argument and proffered evidence asserting that R206 “was able to communicate his needs to staff and understand others”; not one MDS assessment during the relevant time periods identified R206 as exhibiting any wandering behavior; and R206’s elopement was not foreseeable, as “there was no indication R206 exhibited exit-seeking behavior, nor is there any evidence that [R]206 ever left or attempted to leave Unit 1A or Unit 1D.”  P. Ex. 25, at 10, ¶ 31; RR at 10 (emphasis added); P. Ex. 27, at 2, ¶ 7 (DON’s Declaration stating “[WanderGuard] bracelet was ordered for [R026] on December 16, 2020, this was never ordered as a result of exit-seeking behavior or threats of elopement.  The order was related to this resident becoming confused and disoriented shortly after admission.”).

However, CMS pointed to evidence of 2020 and 2021 elopement risk assessments that “found R206 had one or more predisposing diseases for elopement, was ambulatory or in a wheelchair, was disoriented at all times, and had poor safety environment awareness,” and concluded that R206 was at risk for elopement.  CMS Mot. for Sum. J. at 4 (citing CMS Ex. 41, at 20; CMS Ex. 9, at 13-14).  R206’s care plan from December 2020 until March 29, 2022, also stated he was “at risk for elopement due to wandering [related to] cognitive impairment, confusion, and dementia” and included a goal that R206 “will not leave the facility unsupervised.”  P. Ex. 13, at 4-6 (emphasis added).  Similarly, the care plan identified interventions including “[o]bserve for unsafe behaviors [and] [r]edirect as needed,” which support that R206’s behavior put him at risk.  Id. at 4-5.  The ALJ did not address these genuine disputes of material fact.

Additionally, while the parties agreed there was no elopement assessment performed in February 2022, there was disputed evidence as to whether there had actually been any elopement assessments performed in May and August of 2022.  Compare CMS Exs. 10-11 (showing partially completed quarterly assessments, not including elopement assessment) with P. Ex. 6 at 111-112, 127-128 (unsigned, completed quarterly elopement assessments).  During the survey, the DON acknowledged that assessments should have been done at the time the WanderGuard was discontinued, and in May and August of 2022, but her declaration does not address these assessments.  See CMS Exs. 68, at 9, ¶

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34; Ex. 61, at 7; P. Ex. 27.

Moreover, the ALJ did not articulate the difference between “wandering” and “traveling about the facility unaccompanied,” and we see no clear distinction, which we address below.  The ALJ relied upon evidence that “risks existed even if [R206] was traveling with a purpose and not attempting to elope or to wander.”  Id. at 4.  Yet the ALJ specifically cited “Petitioner’s failure to secure and police an exit and its staff’s failure to monitor security footage” – that is, to prevent an elopement – as failures by Petitioner that unacceptably compounded the risks to the resident.  Id.  In essence, the ALJ faulted Petitioner for not protecting R206 against risks he foreseeably might encounter while wandering or attempting to elope – yet inconsistently claimed to credit Petitioner’s proffered evidence that R206 was not a wandering or elopement risk.

We find the ALJ’s description of R206 moving about the facility or “traveling with a purpose” as a distinction without a difference from “wandering,” particularly considering the MDS definition of “wander” noted above.  Petitioner relies on the proffered documented assessments implementing that same definition, as well as an expert witness’s interpretation of those assessments, that did not identify R206 as exhibiting any wandering behavior in all but two assessments.  See RR at 6, citing to P. Ex. 25, at 10, ¶ 31; see also P. Ex. 6.  The evidence in the record contains a clear dispute between the parties as to whether R206’s behavior constituted wandering, a material fact regardless of whether there was a pre-existing or current risk of elopement, which cannot be decided on summary judgment.

Petitioner concludes that R206’s elopement on September 3, 2022 was an unavoidable accident as defined in the State Operations Manual (SOM), CMS Pub. 100-07.¹⁶  RR at 13.  While the elopement may well have been accidental, whether it was foreseeable or avoidable cannot appropriately be resolved by summary judgment based on this record.  Furthermore, even if R206 may have been deemed “non-exit seeking” prior to September 3, 2022, the evidence available from that day indicates R206 attempted to open, or actually opened, multiple doors on unit 1D, asked an employee to open the patio door, and then removed his mask and continued to proceed into Unit 1C, where he opened three more doors, the last one allowing him to exit the facility.  This behavior is relevant to the issues involved in this case, including the question of foreseeability, and should be fully developed and analyzed by the ALJ on remand.

The ALJ’s reliance on the broad duty to protect R206, or other similarly situated residents, from the risk of harm while moving about the facility unaccompanied omits

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essential aspects of this case.  Here, the specific deficiency identified during the survey stated Petitioner failed to “supervise and monitor” as well as develop a “care plan to address specific interventions” for R206, who was cognitively impaired “with Dementia and TBI and could independently ambulate . . . had a history of elopement risk, wandering, and actual exit seeking on September 3, 2022.”  CMS Ex. 31, at 1 (emphasis added). The facility’s duty explicitly involved appropriately addressing the foreseeable risks of harm from accidents where a cognitively impaired resident with a history of elopement risk based on wandering, moved about the facility unsupervised, and ultimately exited the facility through an unlocked and unmonitored door.   See Logan at 13; see also Glenoaks Nursing Ctr., DAB No 2522, at 7-8 (2013).  By nullifying the issue of whether R206 wandered or had a history of elopement risk for the purpose of deciding the case on summary judgment, the ALJ disregarded the very premise of the documented deficiency.

We cannot square the ALJ’s decision to uphold the findings of noncompliance cited by CMS while also “accepting” the facility’s assessments that R206 posed no risk of elopement or wandering.  On remand, the ALJ should provide an opportunity for both parties to cross-examine the witnesses and make a finding as to whether or not R206 “wandered” and whether the care plan protected him from foreseeable risks of harm.

III.      The ALJ did not err in not reviewing the immediate jeopardy finding but on remand should reassess the reasonableness of the CMP.

The ALJ stated that CMS determined that Petitioner’s noncompliance was so egregious as to be immediate jeopardy for residents of Petitioner’s facility.  The term “immediate jeopardy” is defined at 42 C.F.R. § 488.301 as noncompliance that causes, or is likely to cause, a resident or residents to suffer from serious injury, harm, impairment, or death.  ALJ Decision at 9.  The ALJ found it unnecessary to “address whether there was immediate jeopardy noncompliance” because CMPs “are determined based on regulatory factors that do not necessarily include a finding of immediate jeopardy.”  Id. at 9-10 (citing 42 C.F.R. §§ 488.438(a)(2), (f)(1)-(4) (incorporating 42 C.F.R. § 488.404 by reference)).  The ALJ further found that “the undisputed facts show Petitioner’s noncompliance to have been extremely serious,” as R206’s “unnoticed elopement may have caused his death” and R191 was “given unthickened milk, a likely proximate cause of the resident’s hospitalization and aspiration pneumonia.”  Id. at 10.

Petitioner contests any immediate jeopardy finding.  Before the ALJ, Petitioner contested the validity of the cited deficiencies, as well as their scope and severity, asserting that for immediate jeopardy to be cited, the surveyor “must identify factual evidence that supports the likelihood of [R206] eloping from the facility” and that the incident involving R191 was “an isolated incident, and no other residents were affected.”  P.  Opp’n to CMS’ Mot. Summ. J. at 2, 22, 32.  Before the Board, Petitioner asserts Tag F689 is improper for an accidental aspiration, and accordingly, “the scope and severity of

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the tag should be downgraded . . . since there will only be one incident allegedly in violation of 42 CFR § 483.25(d)(1)-(2), rather than two.”   RR at 15.  Petitioner further argues that neither incident alone should be considered immediate jeopardy, nor should the two be considered immediate jeopardy “when improperly cited together.”  Id. at 15.

A.      CMS’s immediate jeopardy finding is not subject to review because it did not affect the penalty range for the CMP.

The regulations expressly state that an action by CMS that is not an initial determination “and therefore not subject to appeal” includes “[t]he finding that the [SNF’s] deficiencies pose immediate jeopardy to the health and safety of residents.” 42 C.F.R. § 498.3(d)(10)(i).  There is an exception to this prohibition only if a successful challenge on this issue would affect . . . [t]he range of civil money penalty amounts that CMS could collect . . . .”  42 C.F.R. § 498.3(b)(14)(i).

CMS may impose one or more remedies on noncompliant facilities, including per-day and/or per-instance CMPs.  42 C.F.R. §§ 488.402(b)-(c), 488.406, 488.408(d)(1)(iii)-(iv), (e)(1)(iii)-(iv), 488.430(a), 488.438(a)(2).  When CMS imposes a per-instance CMP, it chooses an amount within the range designated for per-instance CMPs.  Id. §§ 488.408(d)(1)(iv), (e)(1)(iv), and (e)(2)(ii).  This range applies to a per-instance CMP, regardless of whether or not the deficiencies constitute immediate jeopardy.  Id.

The ALJ did not err in not reviewing the “immediate jeopardy” finding because it did not and could not affect the penalty range for this CMP.  See Fort Madison Health Ctr., DAB No. 2403, at 12 (2011) (“[T]he net effect of all these regulations is that challenges to the scope and severity are limited to only situations where the determination of immediate jeopardy results in a higher range of CMP . . . .”).  The remedy imposed determines the right to review. A determination of immediate jeopardy is not a “penalty or sanction” but “a determination of the level of the noncompliance that results in [the] imposition of one of the specified remedies.”  NMS Healthcare of Hagerstown, DAB No. 2603, at 9 (2014). Here, CMS imposed a per-instance CMP.  Accordingly, the penalty amount must be in the range set by regulation—which is the same whether or not the noncompliance was at the “immediate jeopardy” level.  42 C.F.R. §§ 488.438(a)(2), 488.408(e)(2)(ii).  The Board “is bound by the applicable regulations, and those regulations do not permit long-term care facilities to seek an ALJ hearing, or Board review, of an immediate jeopardy determination where, as here, CMS has imposed a per-instance CMP.”  NMS Healthcare, at 10; see also Madison County Nursing Home, DAB No. 2895, at 16-18 (2018).

B.      The reasonableness of the CMP requires reassessment on remand.

The ALJ stated Petitioner “has not offered additional arguments that directly address the penalty amount,” and the ALJ found the penalty amount of $17,210 is “within a permissible range of per-instance penalties” and “entirely reasonable in view of the 

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seriousness of Petitioner’s noncompliance.”  ALJ Decision at 10.  The CMP per-instance penalty range of $2,400 to $23,989 is the same regardless of whether the level of noncompliance includes immediate jeopardy.  Id. §§ 488.408(d)(1)(iv), 488.408(e)(1)(iv), 488.408(e)(2)(ii); 45 C.F.R. § 102.3 (table).

Petitioner asserts that CMS “had no basis to impose” a CMP in any amount because Petitioner was in substantial compliance with CMS requirements.  RR at 15.  However, as we have determined that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) with regard to R191, this argument is without merit.  Beyond this assertion, Petitioner does not dispute the amount of the CMP, but instead asserts that this is not “an Immediate Jeopardy” situation and that the scope and severity of the “J” tag for immediate jeopardy must be downgraded.  Id.  As noted, we do not review the immediate jeopardy determination in this case.  Nevertheless, because the per-instance CMP included both noncompliance findings, and we are remanding the case with regard to the noncompliance determination involving R206, we vacate the ALJ’s determination that the per-instance CMP was reasonable.

Conclusion

For the reasons stated above, we affirm the grant of summary judgment for CMS regarding the noncompliance finding concerning R191 but vacate the grant of summary judgment to CMS regarding the noncompliance finding concerning R206.

We remand the case back to the ALJ for further proceedings consistent with this decision.  On remand, the ALJ should address all unresolved evidentiary objections, determine the admissibility of the parties’ exhibits, offer the parties the opportunity for a hearing, and further develop the record as needed.  Furthermore, we provide the ALJ the opportunity to make findings of fact regarding the alleged noncompliance concerning R206 based on all of the evidence, evaluating weight and credibility, and drawing appropriate inferences, and to make a finding regarding the reasonableness of the CMP.

Endnotes

¹  Our analysis and decision are based on the participation requirements in effect in August and September 2022, when the survey supporting CMS’s enforcement action was performed.  Carmel Convalescent Hosp., DAB No. 1584, at 2 n.2 (1996) (applying the regulations in effect on the date of the survey and resurvey).

²  The background facts are drawn from the ALJ Decision and the record before the ALJ.  These facts are undisputed unless otherwise indicated.

³  The video footage is not in the record.

⁴  The surveyors had found immediate jeopardy “could be removed” effective September 8, 2022, regarding R206, and effective September 14, 2022, regarding R191.  CMS Ex. 1, at 2-3.  CMS did not explain why it adopted only the September 8, 2022 date in its determination, but we do not consider that issue, as neither party raised it and in any event the CMP was imposed on a per-instance rather than per-day basis.

⁵  The complete list of remedies included a Directed Plan of Correction (imposed – effective October 24, 2022), a Discretionary Denial of Payment for New Admissions (pending – effective November 23, 2022), Termination of Provider Agreement (pending – to be effective March 21, 2023), and a per instance CMP.  CMS Ex. 2, at 1-3.

⁶  There were no substantive changes to the language when, by 2016 regulatory amendment, sections 483.25(h)(1)-(2) were re-codified in sections 483.25(d)(1)-(2).  Logan at 13 n.11.

⁷  As will be discussed later, we need not review the “immediate jeopardy” finding because it did not and could not affect the penalty range for this CMP.

⁸  We need not resolve CMS’s objections to Petitioner’s exhibits that pertain to R191 (P. Exs. 15, 19, 26) because even if those documents were admitted into evidence, they do not raise any genuine issue of material fact. See CMS Obj. to P. Proposed Exs. and Witnesses and Req. to Cross-Examine (CMS Obj.) at 2, 7.

⁹  The National Institutes of Health (NIH) defines rhabdomyolysis as “a complex medical condition involving the rapid dissolution of damaged or injured skeletal muscle.”  See Rhabdomyolysis: Pathogenesis, Diagnosis, and Treatment (found at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4365849 (last visited Aug. 23, 2024)).

¹⁰  A WanderGuard device is designed to protect those at risk of elopement and generally has the ability to trigger alarms and lock monitored doors to prevent the individual from leaving a facility unattended.  See ALJ Decision at 4.

¹¹  CMS objected to P. Ex. 6 for lack of foundation.  See CMS Objection and Request to Cross-examine Proposed Witnesses (CMS Obj.), at 2-4.  Specifically, CMS asserted P. Ex. 6 “purports to be quarterly risk assessments for R206” which differ from the documents produced to surveyors at the time of the survey.  Id. at 2. CMS offered Quarterly Assessments for R206 for August 2021 (CMS Ex. 9), February 2022 (CMS Ex. 7), May 2022 (CMS Ex. 10), and August 2022 (CMS Ex. 11).

¹²  CMS Ex. 68, at 9, ¶ 34 (Declaration of Surveyor) and CMS Ex. 61, at 7 (Surveyor Notes) indicate the Director of Nursing (DON) informed the surveyors that the elopement risk assessments were not done in May and August of 2022 but should have been done according to policy (discussed further below).

¹³  Referred to as “Dietary staff” by Petitioner.  CMS Ex. 26, at 5.  For consistency purposes, we refer to this person as the “Dietary Aid (DA)” as per the survey.  CMS Ex. 1, at 104.

¹⁴  The surveillance video is not in the record, but information in the record indicates that the cameras captured live time and were accurately time stamped.  CMS Ex. 1, at 107.  We do not find the minor time discrepancies to be a factor in our review.

¹⁵  Petitioner’s exhibit list included Ex. 30, a declaration of Dr. J.P. (R206’s PCP).  See P. List of Proposed Exs. at 2; see also P. Ex. 5.  Dr. J.P. is also listed as a proposed witness.  P. List of Proposed Exs. at 2.  However, Petitioner did not actually file P. Ex. 30, and it is not contained in the CRD record.

¹⁶  Petitioner does not cite to a specific portion of the SOM, but we note that the definition cited is found in CMS Pub. 100-7, State Operations Manual (SOM) Rev. 225, dated Aug. 8, 2024, eff. Aug. 8, 2024, Appendix PP, F689, § 483.25(d) Accidents.  The language was not changed in the current revision.  This can be found at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf (last visited Aug. 27, 2024).