Rehabilitation Center at Hollywood Hills, DAB No. 3052 (2021)

REMAND OF ADMINISTRATIVE LAW JUDGE DECISION

Rehabilitation Center at Hollywood Hills, LLC (Petitioner), a Florida skilled nursing facility (SNF), appealed the January 16, 2019 decision of an administrative law judge (ALJ), Rehabilitation Center at Hollywood Hills, LLC, DAB CR5232 (ALJ Decision).  The ALJ concluded that the Centers for Medicare & Medicaid Services (CMS) was entitled to summary judgment on its claims that:  (1) Petitioner was not in substantial compliance with multiple Medicare participation requirements from September 10 through September 13, 2017; (2) Petitioner’s noncompliance placed residents in “immediate jeopardy”; and (3) remedies imposed by CMS for the alleged noncompliance – including a per-day civil money penalty of $20,965 and termination of Petitioner’s Medicare provider agreement – were reasonable and lawful.

The Medicare compliance issues in this case relate to the loss of central air conditioning in Petitioner’s facility on September 10, 2017 and the deaths of multiple residents on the morning of September 13, 2017 – deaths that the local medical examiner attributed to heat stroke or heat exposure.  We conclude that Petitioner has raised genuine factual disputes material to resolving those compliance issues, precluding any grant of summary judgment concerning the validity of CMS’s remedies.  We therefore vacate the January 16, 2019 decision and remand the case to the ALJ for further proceedings consistent with this decision.

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Legal Background

To participate in the Medicare program, a SNF must be in “substantial compliance” with the requirements in 42 C.F.R. Part 483, subpart B.1   42 C.F.R. §§ 483.1(b), 488.400.  A SNF is not in substantial compliance when it has a “deficiency” – that is, a failure to meet a Medicare participation requirement – that creates at least the potential for more than minimal harm to one or more residents.  Id. § 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 verified through onsite surveys performed by state health agencies.  Id. §§ 488.10, 488.11(a).  A state agency reports any “deficiency” (a “failure to meet a participation requirement”) it finds in a Statement of Deficiencies.  Id. §§ 488.301 (defining “deficiency”), 488.325(f)(1).  A Statement of Deficiencies also indicates the survey agency’s assessment of the “seriousness” of any cited deficiency, including whether a deficiency constitutes lack of substantial compliance.  See id.§ 488.404(a).  Seriousness is a function of scope (whether a deficiency is “isolated,” constitutes a “pattern,” or is “widespread”) and severity (whether a deficiency has created a “potential for” only “minimal harm,” a potential for “more than minimal harm,” resulted in “[a]ctual harm,” or placed residents in “immediate jeopardy”).  Id.§ 488.404(b).  The most severe deficiency is that which puts one or more residents in “immediate jeopardy.”  See id. § 488.438(a) (authorizing the highest per-day CMPs for immediate-jeopardy-level noncompliance); Woodland Oaks Healthcare Facility, DAB No. 2355, at 2 (2010) (citing authorities).

CMS may impose one or more remedies on a SNF that is found to be out of substantial compliance.  42 C.F.R. §§ 488.400, 488.402(b)-(c), 488.406.  Authorized remedies include termination of a SNF’s provider agreement.  Id. §§ 488.406, 488.456.  “A single deficiency is sufficient to warrant termination if the deficiency causes the facility to be out of substantial compliance (that is, if the deficiency creates at least the potential for more than minimal harm).”  Rosewood Living Ctr., DAB No. 2019, at 3 (2006) (internal quotation marks omitted); 42 C.F.R. § 488.456(b)(1) (authorizing CMS to

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terminate a SNF’s provider agreement if the SNF is not in substantial compliance, “regardless of whether or not immediate jeopardy is present”).  In addition to – or in lieu of – termination, CMS may impose civil money penalties (CMPs) or other “alternative” remedies.  See 42 C.F.R. §§ 488.330(b)(2)(ii), 488.406(a), 488.408(b).2

A SNF may challenge a determination of noncompliance that led to the imposition of a remedy by requesting an ALJ hearing and appealing any unfavorable ALJ decision to the Departmental Appeals Board (Board).  42 C.F.R. §§ 488.408(g)(1), 498.3(b)(13), 498.5(b)-(c).3

Case Background4

During the afternoon of Sunday, September 10, 2017, in the immediate wake of Hurricane Irma, Petitioner lost electric power to its central air conditioning system.  CMS Ex. 1, at 1.  That system remained inoperable (due to power loss) for 62 consecutive hours, through the morning of September 13, 2017.  Id. at 1, 3.Outdoor temperatures recorded near Petitioner’s facility from September 11 through the morning of September 13, 2017 ranged from the high 70s (77-79℉) during early morning hours, to the high 80s or very low 90s (87-91℉) at other times of the day.  See CMS Ex. 1, at 7-8; CMS Motion of Summary Judgment and Prehearing Brief (MSJ) at 17 (citing CMS Ex. 56); Pet.’s Request for Review (RR) at 10 (citing P. Ex. 44).

Shortly after losing its central air conditioning, in an effort maintain comfortable and safe temperatures for residents, Petitioner installed portable air conditioners (what the parties sometimes refer to as “spot coolers”) in the hallways of its two-story facility.  CMS Ex.

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1, at 3-4.In order to circulate the cooled air generated by the portable air conditioners, Petitioner also placed fans in the hallways and residents’ rooms, although many of the fans were not acquired until Tuesday, September 12, 2017.  See CMS Ex. 1, at 4; P. Ex. 3, ¶¶ 49, 71-75;CMS Ex. 94, at 33, 195; CMS Ex. 98, at 97-99.

During the evening of September 12 and early morning hours of September 13, 2017, several residents whose rooms were on the west wing of the facility’s second floor developed hyperthermia (above-normal body temperature).  CMS Ex. 1, at 11, 14, 15, 20, 22; CMS Ex. 100, at 17-19.  Eight of those residents – identified here as Residents 1 through 8 – died on September 13, either in Petitioner’s facility or shortly after being taken to the hospital that day; medical records and autopsy reports identify heat stroke or heat exposure as the residents’ cause of death or final diagnosis.5   See CMS Ex. 1, at 12, 14-23, 29-33; MSJ at 8, 10-12, 14-15 (citing exhibits).  Prior to September 13, Residents 1 through 8 suffered from serious pre-existing medical conditions, including cardiovascular and pulmonary disease, and were bedridden or needed the staff’s help to move about.  Most also had dementia or other severe cognitive impairment.  See CMS Ex. 1, at 8, 12-13, 15-19, 21; MSJ at 7-16 (citing residents’ clinical records).

Starting at about 6:00 a.m. on September 13, 2017, Petitioner’s other residents were evacuated to a nearby hospital.6   CMS Ex. 1, at 2, 23.  Shortly after the evacuation, the Florida Agency for Health Care Administration (AHCA) conducted a Medicare compliance survey of Petitioner.  See CMS Ex. 1,at 1.  Finding that Petitioner’s residents had been “exposed to increasingly excessive heat” after September 10, and that such exposure “caused 8 vulnerable residents to have severe heat-related conditions” resulting in their deaths, AHCA determined that Petitioner was not in substantial compliance with multiple Medicare participation requirements from September 10 through September 13, 2017.  Id. at 1-2, 25-26, 33-34, 49-50.  AHCA further found that Petitioner’s noncompliance had placed residents in immediate jeopardy.  Id.

Based on AHCA’s survey findings, CMS imposed a $20,965 per-day CMP and terminated Petitioner’s Medicare participation effective October 13, 2017.  CMS Ex. 3.  Meanwhile, AHCA initiated an administrative proceeding to revoke Petitioner’s Florida nursing home license.  See Nov. 8, 2017 Request for Hearing (filed with Civil Remedies Division), ¶ 8.

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Petitioner requested an ALJ hearing to contest CMS’s enforcement action.  CMS responded with a motion for summary judgment.  In support of the motion, CMS submitted residents’ clinical records; security camera video; deposition and hearing testimony from the state administrative (license revocation) proceeding; and various other material.

As grounds for its summary judgment motion, CMS alleged that from September 10 through September 13, 2017, Petitioner was not in substantial compliance with the following Medicare participation requirements:  42 C.F.R. § 483.10(i), which requires a SNF to maintain a “safe, clean, comfortable and homelike environment” for each resident; 42 C.F.R. § 483.12,7 which provides, in relevant part, that a resident “has the right to be free from . . . neglect . . . as defined in this subpart”8 ; 42 C.F.R. §§ 483.24 and 483.25, whose prefatory text states general principles relating to “quality of life” and “quality of care”; and 42 C.F.R. § 483.70, which requires a SNF to be administered “effectively and efficiently” to ensure the well-being of each resident.  See MSJ at 5, 16, 20.

CMS contended in its motion that Petitioner was not in substantial compliance with 42 C.F.R. § 483.10(i) because “excessive heat” in its facility between September 10 and 13 created an “unsafe” and uncomfortable environment for residents, especially those who lived on the second floor.  MSJ at 16-17, 20 (stating that “excessive heat was produced and present for approximately three days”); see also id. at 5-6 (asserting that residents were exposed to “increasingly excessive heat” after the facility lost central air conditioning).  In support of that claim, CMS cited:

• records of the outdoor temperatures during the four-day period, which were “very high” according to CMS (MSJat 17-18);
• statements by a physician, continuous care nurse, police officers, paramedics, and others who described temperatures inside the facility on September 12 or 13 as hot (MSJ at 18-19 (citing exhibits); CMS Reply to Pet.’s Response to MSJ at 6 (citing exhibits));

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• text messages and security camera video suggesting that staff and residents experienced discomfort with the temperatures during the relevant period (MSJ at 3, 19 (citing CMS Ex. 60, at 14, 23 and CMS Ex. 45));
• testimony by engineer William Crawford during the state administrative proceeding that the portable air conditioners installed by Petitioner lacked sufficient cooling capacity to keep temperatures in the facility at or below 81℉, and that hot exhaust from those units was not vented to the outside, or to a ventilated space, but instead discharged to enclosed space between the first and second floors, contributing to the heat inside the building (MSJ at 3, 17-19 (citing, inter alia, CMS Ex. 93, at 22, 24, 26-27, 46-49, 54, 98-99, 105-07, 117, 132-33, 141-42, 144));
• deposition testimony by Petitioner’s expert on heat-related illness concerning the facility’s “radiant heat load” (MSJat 19 (citing CMS Ex. 100, at 38, 86-87));
• autopsy findings by the county medical examiner indicating that eight facility residents died of heat stroke or heat exposure on September 13 (MSJ at 16); and
• deposition testimony by two of Petitioner’s experts suggesting that heat exposure contributed to the deaths of one or more of Petitioner’s residents (MSJ at 20 (citing CMS Ex. 100, at 16-17, 104-07, 113; and CMS Ex. 101, at 244-45)).

In support of its claim that Petitioner was noncompliant with its obligation under section 483.12 to keep residents “free from neglect,” and with the general quality-of-life and quality-of-care requirements in sections 483.24 and 483.25, CMS alleged that, after losing its central air conditioning, Petitioner failed to identify who among its residents was most susceptible to heat-related illness.  MSJ at 6-7.  CMS also pointed to clinical records and other evidence of the care delivered to certain residents during the relevant period.  For example, CMS cited nursing records for Resident 5 which document a blood pressure reading at 5:00 p.m. on September 12 but allegedly no other vital-sign measurements between then and the time that staff found him deceased (at around 6:30 a.m. on September 13).  MSJ at 7, 12-13 (citing CMS Ex. 22, at 24, 33, and 42).  CMS also cited security camera video that, according to CMS, shows Petitioner’s staff entering Room 226, where Residents 4 and 5 lived, only four times between 6:59 p.m. on September 12 and 5:11 a.m. on September 13.  MSJ at 10-11, 12, 13 (citing CMS Exs. 118-24).  CMS asserted that, on all four occasions, the video reflects that staff did not bring ice, water, or nursing equipment into the room and “either . . . entered the room with purposes other than resident care, or did not stay in the room long enough to provide care or assess the resident conditions.”  MSJ at 13.  In addition, CMS noted that although clinical records for Resident 6 – who was found deceased in his room at around 6:30 a.m. on September 13 – show that his vital signs were taken by a nurse at 1:42 a.m. that

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morning, and that his pulse was measured at 8:56 p.m. on September 12, “no video footage shows any nursing staff entering Room 229 around those times,” and “no nursing progress notes were documented for 8 days prior to his death.”  MSJ at 14.  CMS also alleged that “no close monitoring was provided” for Resident 7 (who died at 7:54 a.m. on September 13), citing a clinical record indicating that the resident’s vital signs were taken at 10:34 p.m. on September 12 but not reflecting any later vital-sign checks by Petitioner’s staff.  MSJ at 15 (citing CMS Ex. 31, at 47).

In support of its claim that Petitioner was noncompliant with 42 C.F.R. § 483.70, CMS contended that it was “obvious” that Petitioner did not use its resources “effectively and efficiently” given the “tragic but preventable” deaths on September 13, 2017.  MSJ at 20-21.  CMS further contended that its immediate jeopardy finding for each deficiency citation was not clearly erroneous; that the CMP imposed on Petitioner was reasonable in light of the applicable regulatory factors; and that it was legally authorized to terminate Petitioner’s Medicare provider agreement based on any of the deficiencies alleged in its motion.  MSJ at 21-23.

Petitioner filed a brief and supporting exhibits opposing CMS’s summary judgment motion, contending that there were genuine disputes of material fact, including disputes about whether temperatures inside the facility were comfortable and safe; the “efficacy and proper venting of the spot coolers”; whether its staff “should have been able to identify the high-risk residents and take precautions to prevent heat strokes”; whether residents were “neglected” (Petitioner asserted that its staff did “everything reasonable” to ensure resident well-being, including increasing staff-to-resident ratios after September 10, 2017, “continually monitor[ing] the ambient indoor facility temperatures,” and “properly hydrating” and “continuously monitor[ing] [residents] for any changes in their conditions”); and the reliability of security camera video as evidence of the nursing staff’s activities.  Pet.’s Response to CMS’s Motion for Summary Judgment (MSJ Response) at 3, 6-8, 11, 15, 16, 17-19, 21-22, 24.  Petitioner’s supporting exhibits included (additional) security camera video (P. Exs. 79-82); affidavits from its administrator, physical plant manager, director of nursing,9 and nightshift nursing supervisor (P. Exs. 2-5); deposition and hearing testimony from the state administrative proceeding (P. Exs. 22, 97-113, 119); and affidavits from experts in heating, ventilation, and air conditioning (Nicholas R. Ganick); nursing home administration, operations, and management (David R. Devereaux); emergency planning and management (Dennis S. Mileti); geriatric medicine (David Dosa, M.D.); pathology (Jeffrey M. Jentzen, M.D.); climatology (Andrew Grundstein, Ph.D.); and heat-related illnesses and injury (Douglas James Casa, Ph.D.) (P. Exs. 8-14, 120).

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In connection with its opposition to CMS’s summary judgment motion, Petitioner moved to exclude several CMS exhibits (or portions thereof) on the ground they contained facts, information, or opinions that were “not considered by the AHCA surveyors during [its]  survey” or “discussed anywhere within the Statement of Deficiencies.”  See Pet.’s Objections to CMS’s Lists of Proposed Exhibits and Witnesses, ¶¶ 8-9.10   Petitioner objected to CMS exhibits on various other grounds, including lack of relevance, but provided no factual or legal analysis supporting those objections.  Id., ¶¶ 14-15. Petitioner asserted in its brief to the ALJ opposing summary judgment that CMS’s motion “exceeds the intended scope of this proceeding, making inaccurate allegations never touched upon or that are squarely contrary to allegations in the [Statement of Deficiencies].”  MSJ Response at 2.

The ALJ’s Decision

Before addressing the merits of CMS’s motion for summary judgment, the ALJ denied Petitioner’s motion to exclude from the record evidence of facts or opinions not considered by the survey agency or mentioned in the Statement of Deficiencies.  ALJ Decision at 5-7.11   In doing so, the ALJ noted that the Board “has repeatedly and definitively rejected” the view that findings in a Statement of Deficiencies limit the nature or scope of evidence that may be admitted, or facts that may be proved, in a subsequent administrative appeal of CMS’s noncompliance determination.  Id. at 5.12

The ALJ also found that Petitioner had violated an instruction in her initial pre-hearing order.  ALJ Decision at 5.  The instruction in question stated that “[i]f a party’s argument relies on a particular exhibit, the party must cite the exhibit number and relevant page number.”  Nov. 15, 2017 Initial Pre-Hr’g Order ¶ 7.  The pre-hearing order warned a party that if it “fail[ed] to comply with any order including this order,” then the ALJ could impose sanctions on the party pursuant to section 1128A(c)(4) of the Social Security Act.  Id. ¶ 11.  Section 1128A(c)(4) authorizes an “official conducting a hearing” to sanction “any party . . . for failing to comply with an order or procedure . . . or other misconduct as would interfere with the speedy, orderly, or fair conduct of the hearing,” provided that the sanction “reasonably relate[s] to the severity and nature of the

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failure or misconduct.”  42 U.S.C. § 1320a-7a(c)(4).13  A permissible sanction under section 1128A(c)(4) could include “prohibiting a party from introducing certain evidence or otherwise supporting a particular claim or defense.”  Id. § 1320a-7a(c)(4)(B).

The ALJ found that Petitioner did not comply with the pre-hearing order’s instruction concerning exhibit citations because its brief opposing summary judgment “cite[d] generally to exhibits but include[d] no page numbers, making it difficult (in some cases impossible) to determine the exact evidence upon which it relies for any proposition.”  ALJ Decision at 5.  The ALJ further found that Petitioner’s “fail[ure] to comply with [her] order ha[d] interfered with the speedy and orderly conduct of these proceedings,” and that Petitioner had “waived its right to rely on any evidence not cited in accordance with [her] order.”  Id.  Notwithstanding those findings, the ALJ indicated that she had “generally reviewed the cited exhibits as much as practicable, looking for the relevant evidence that might support [her] finding a material fact in dispute.”  Id.

Turning to the case’s Medicare compliance issues, the ALJ found the following facts to be undisputed:

• “The air-conditioning failed” (ALJ Decision at 31);
• When its central air conditioning failed, Petitioner’s “staff did not assess its residents to determine who was most susceptible to heat-related illnesses” and failed to “plan for [residents’] ongoing care” (id. at 7, 31);
• “The facility had no back-up plan in place to protect residents if temperatures exceeded safe levels, which it determined to be 81°F” (id. at 32);
• “Although the facility installed some spot coolers in the hallways, it provided no cooling devices for the resident rooms” (id.);
• Although Petitioner “knew that exposing residents to temperatures above 81°F would jeopardize resident health and safety,” it “did not monitor the temperatures in the resident rooms and . . . offered no evidence as to what those temperatures were” (id. at 32, 35);
• “Staff did not follow physician orders or resident care plans” (id. at 7);

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• “During the period the facility was without air-conditioning, at least nine residents living on Two-West [the second floor’s west wing] suffered from extreme hyperthermia” (id. at 32);
• “Environmental heat stress contributed to the deaths of at least three of those residents:  R2, R7, and R8” (id.); and
• Petitioner “did not maintain complete, accurate, and reliable records” (id.).

Based on these facts, the ALJ concluded that “from at least” September 10 through September 13, 2017, Petitioner did not provide residents with a “safe and comfortable environment” in violation of 42 C.F.R. § 483.10(i); did not meet its obligation under 42 C.F.R. § 483.12 to keep residents free from “neglect”14 ; failed to deliver care and services meeting the quality-of-life and quality-of-care standards in 42 C.F.R. §§ 483.24 and 483.2515 ; failed to use its resources effectively and efficiently in violation of 42 C.F.R.
§ 483.70; and failed to “maintain complete, accurate, readily accessible, and systematically organized medical records on each resident” in violation of 42 C.F.R. § 483.70(i).  ALJ Decision at 7-8, 18, 32-33.  The ALJ further held that CMS’s determination that Petitioner’s deficiencies had placed residents in immediate jeopardy was “not clearly erroneous.”  Id. at 33.  In addition, the ALJ determined that Petitioner “fail[ed] to produce admissible evidence establishing a material fact in dispute” concerning the compliance issues in the case and had merely raised “metaphysical doubts” or asked her to “draw unreasonable inferences.”  Id. at 4-5.  Finally, the ALJ sustained, as “reasonable,” the CMP imposed by CMS on Petitioner and held that she had “no authority to review CMS’s choice of termination as an additional remedy” for Petitioner’s noncompliance.  Id. at 33-35.

Petitioner’s Request for Review and CMS’s Response

In its request for review Petitioner contends that the ALJ ignored or failed to recognize “numerous” genuine disputes of material fact, including a dispute about the safety of temperatures inside the facility and about whether its staff neglected residents.  See Pet.’s Request for Review (RR) at 6, 10, 23-24; Reply Br. at 3-5.  Petitioner further contends that evidence in the record demonstrates that it acted reasonably, appropriately, and diligently in trying to keep its residents safe and comfortable after losing its central air conditioning on September 10, 2017.  RR at 2, 25-26 (quoting P. Exs. 7 and 10).

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Petitioner also objects to the ALJ’s finding that it violated the initial pre-hearing order by failing to include precise citations to the record in its brief opposing CMS’s summary judgment, and that the ALJ failed to justify a sanction for the supposed violation.  RR at 6-9.

CMS responds that summary judgment is proper because there is “overwhelming” evidence of Petitioner’s noncompliance and “absolutely no material fact in dispute in this case.”  Response Br. at 1, 3.  CMS also submits that, contrary to Petitioner’s suggestion, the ALJ did not impose a sanction on Petitioner for failing to cite exhibit page numbers in its brief.  Id. at 6-8.

Standard of Review and Parties’ Burdens on Summary Judgment

We review de novo an ALJ’s decision to grant summary judgment.  Medford Care Ctr., DAB No. 3040, at 10 (2021).  Summary judgment is appropriate “when the record shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”  Id. (internal quotation marks omitted).

The proponent of summary judgment has the initial burden to show the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law.  Oak Ridge Ctr., DAB No. 2913, at 7-8 (2018).  The proponent may discharge its burden to show the absence of a genuine factual 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.”  Medford Care Ctr. at 11 (internal quotation marks and citation omitted).  “To overcome an adequately supported motion for summary judgment, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.”  Id. (internal quotation marks and citations omitted).

“In deciding a motion for summary judgment, the tribunal must not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts, as would be proper when sitting as a fact-finder after a hearing, but instead should construe the record in the light most favorable to the nonmovant and avoid the temptation to decide which party’s version of the facts is more likely true.”  Id. (internal quotation marks and citations omitted).  Thus, “[w]hen a skilled nursing facility is the non-moving party, it need not show that it has met its burden of persuasion on ultimate issues (e.g., whether it was in substantial compliance) in order to defeat a motion for summary judgment; rather, the facility need only show that a rational trier of fact could find for the facility under the most favorable, reasonable construction of the proffered evidence.”  Id. (internal quotation marks and citations omitted).

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Analysis

As our background narrative indicates, the bases for CMS’s summary judgment motion are claims that Petitioner was not in substantial compliance with Medicare participation requirements in 42 C.F.R. §§ 483.10(i), 483.12, 483.24, 483.25, and 483.70.  With respect to each of those compliance issues, we conclude below either that CMS failed to meet its summary judgment burdens, or that Petitioner proffered evidence sufficient to create a genuine dispute of material fact.16   We express no view about the relative weight of the parties’ evidence concerning disputed material facts; we merely hold that those disputes cannot properly be resolved at this stage of the case.17

1. Preliminary and procedural matters

Before addressing the compliance issues raised by CMS, we address a few subsidiary matters.  To begin, we summarily affirm the ALJ’s denial of Petitioner’s motion to exclude certain exhibits.  We do so because Petitioner does not dispute the ruling, and because the ruling on its face reflects no error of fact or law and is consistent with Board precedent.  Cf. Horace Bledsoe, M.D., et al., DAB No. 2753, at 10 (2016) (summarily affirming an ALJ's legal conclusion that the appellant made no “meaningful attempt to challenge”); Amber Mullins, N.P., DAB No. 2729, at 5 (2016) (“Failure to articulate at least some disagreement with the bases for the ALJ decision permits the Board to summarily affirm the ALJ’s findings of fact and conclusions of law.”).

Second, we find it unnecessary to address Petitioner’s contentions about the validity of a section 1128A(c)(4) sanction.  Whether Petitioner committed a sanctionable violation of the initial pre-hearing order in connection with its opposition to CMS’s summary

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judgment motion is now moot because we decide here that summary judgment is improper and the case must be remanded for further proceedings on the merits of the disputed compliance issues.  The opportunity for the parties to present or elicit in-person testimony and to submit additional written argument based on the entire hearing record supersedes the summary judgment brief which was at issue before the ALJ.  Moreover, we concur with CMS that the ALJ did not actually impose – or at minimum did not make clear she was imposing – a section 1128A(c)(4) sanction.  Although she found that Petitioner had violated the initial pre-hearing order, that the violation interfered with the speedy and orderly conduct of the proceedings, and that she had authority to “prohibit a party from relying on certain evidence” (italics added) as a sanction for violation of the order, the ALJ did not state that she was imposing that prohibition (or specify the exhibits covered by the prohibition, assuming it had been imposed).  Nor did the ALJ expressly find that any sanction met the statutory condition that it “reasonably relate to the severity and nature of the failure or misconduct.”  Rather than imposing a sanction, the ALJ merely found that Petitioner had “waived its right to rely on evidence not cited in accordance with my order.”  ALJ Decision at 5 (italics added).  That finding is unsupported.  “Waiver is the voluntary, intentional relinquishment of a known right.”  Smith v. R.J. Reynolds Tobacco Co., 880 F.3d 1272, 1280 (11th Cir. 2018).  The ALJ cited no evidence and provided no analysis demonstrating that Petitioner intentionally and knowingly gave up its right to rely on certain evidence.

Third, the ALJ based her decision in part on grounds not identified in CMS’s summary judgment motion, including alleged shortcomings in medical record-keeping and emergency preparedness planning, and an alleged failure to follow physician orders and plans of care.  See ALJ Decision at 7 (“Staff did not follow physician orders or resident care plans.”), 18, 32-33 (concluding that Petitioner “fail[ed] to maintain complete, accurate, and reliable records,” and had “deficiencies in planning for the loss of air-conditioning”).  The Board has held that “an ALJ may not grant summary judgment on a ground not alleged by the moving party without providing adequate notice and an opportunity to show that a genuine dispute of material fact exists.”  Daniel H. Kinzie, IV, M.D., DAB No. 2341, at 6 (2010).  We see no indication that the ALJ notified Petitioner that summary judgment might be granted in whole or part because of deficient recordkeeping, emergency planning, or failure to follow care plans and physician orders.  We are disinclined for that reason to uphold a grant of summary judgment reliant on those grounds.

Finally, we note that the Board was unable, using available media players, to open and play a substantial number of video (.mp4) files proffered by the parties, including files cited by CMS in support of its summary judgment motion.  In addition, some of CMS’s video files (CMS Exhibits 140-145) were not uploaded to DAB E-File.  The inaccessibility of some video files made it impossible for the Board to independently assess both CMS’s claim that Petitioner neglected certain residents during the evening of September 12 and early morning of September 13, 2017, and Petitioner’s rejoinder that

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the video was unreliable evidence of what care its staff provided on those (and other) days.  On remand, the ALJ should take steps to ensure that all video evidence proffered by the parties is accessible via DAB E-File and can be played using a broadly available Windows-based media player.  (Such steps might include permitting resubmission of some files and giving the parties an opportunity to object to the resubmission on the ground that it is at variance with the original file.)

2. Comfortable and safe temperature levels – 42 C.F.R. § 483.10(i)

Title 42 C.F.R. § 483.10(i) states that each resident has a right to a “safe, clean, comfortable and homelike environment,” and that such an environment must include, as provided in paragraph six, “[c]omfortable and safe temperatures levels.”  Paragraph six further states that “[f]acilities initially certified after October 1, 1990 must maintain a temperature range of 71 to 81℉.”  42 C.F.R. § 483.10(i)(6).  The resident “environment” includes “all the spaces where the facility is responsible for the resident,” such as residents’ rooms.  Liberty Nursing & Rehab. Ctr. – Mecklenberg Cty., DAB No. 2095, at 8 (2007) (quoting, with approval, a passage from the appealed ALJ decision), aff’d, 294 F. App’x 803 (4th Cir. 2008).

The record does not indicate whether Petitioner was initially certified to participate in Medicare after October 1, 1990, so it is unclear whether Petitioner can be found noncompliant with section 483.10(i) solely based on whether temperatures in the resident environment ever exceeded the 81-degree threshold specified in the regulation.  However, CMS proffered uncontested evidence that, as a matter of fact, temperatures exceeding that threshold posed a risk of harm to residents.  See CMS Ex. 100 (Casa Deposition), at 36-37; P. Ex. 9 (Casa Aff.).  Moreover, that evidence shows that Petitioner’s own staff determined that it was necessary to keep temperatures at or below 81℉ in order to ensure resident comfort and safety.  See, e.g., CMS Ex. 94 (Carballo Dep.), at 122-23, 247-48 (indicating that Petitioner’s administrator assumed that the facility was subject to the regulatory requirement that temperatures be maintained at 71 to 81℉, and that staff would have moved residents “most susceptible to overheating” from any space where the temperature exceeded that range).

As indicated above, CMS proffered evidence that Petitioner did not maintain comfortable and safe temperatures for at least some residents.  However, Petitioner proffered evidence specifically disputing that claim, including:

• An affidavit by its plant manager stating that the portable air conditioners installed on September 10 had devices which measured the ambient air temperature (P. Ex. 3, ¶ 59); that as he walked through the facility on September 11 and 12, he “continuously . . . observe[d] that ambient temperatures” reflected on those devices “were always in the 70’s” (id., ¶¶ 59, 64); that he periodically measured temperatures in the facility using a “temperature gun” but “never recorded any

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temperature readings in the facility over 80 degrees [using that device], even in the hottest parts of the day” with “[m]ost of the temperature readings . . . in the high 70s” (id., ¶¶ 60, 71 (stating that temperature readings he took in the building during the morning and early evening of September 12 were 77-79℉)); that he “did not perceive the building to be hot” (id., ¶ 72); and that “no one was complaining to me about the temperature in the building being hot, and no one appeared to be sweating profusely or anything like that” (id.);

• An affidavit by its administrator stating that he monitored the temperatures displayed on the portable air conditioners (P. Ex. 2, ¶ 24); that those temperatures never exceeded 80℉, including “at any time through my departure from the building around 11:00 p.m.” on September 12 (id., ¶¶ 24, 45); that his “own perception was that the building was a little warmer than normal facility temperature (around 76 to 78 degrees) but . . . was not uncomfortably warm or hot” (id., ¶ 45); that at no point on September 11 or 12 did a health professional, resident, or resident’s family member report to him or to the state health officials agency any problem with temperatures inside the facility (id., ¶¶ 30, 45);
• An affidavit by Petitioner’s overnight shift nursing supervisor stating that when his shift ended at 7:00 a.m. on September 12, he reported to the day-shift supervisor that “everything was stable, and other than being slightly warmer than usual, everything was going fine” (P. Ex. 5,¶ 19); that at the start of his next shift – at 7:00 p.m. on September 12 – he was told that the facility “had acquired some additional fans that had been distributed to residents and that the residents were all stable” (id.,¶ 23); that the temperature in the facility at the beginning of his September 12th shift was “the same as the day before” (id., ¶ 25); that the temperature at 1:30 a.m. and at approximately 3:06 a.m. on September 13 was “warm, but not hot” and had not changed since the beginning of his shift (id., ¶¶ 27, 28, 32, 39); and that during his overnight shifts on September 11 and 12, he “checked on patients myself as I walked through the facility and they all seemed to be safe and comfortable” (id. ¶¶ 7-8, 16);
• Deposition testimony of:
  • a former resident who lived on the second floor during the relevant period and who testified that she had a fan in her room and that she did not feel uncomfortable with the temperature when she was asked to leave the facility (on September 13) or on any previous day (P. Ex. 105, at 2 (pages 6-8));
  • a physician who visited a first-floor resident on September 12 and testified that the building was not “excessively hot” on that occasion (P. Ex. 98, at 4 (page 10));

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  • a first-floor resident who recalled that she felt “flushed” but not “hot” in her first-floor room, and that staff brought her a fan, gave her water, and tried to make her comfortable (P. Ex. 109, at 3 (page 9));
  • a family member of the same first-floor resident who reported that he visited on September 11 and found “fans wherever they needed to be.”  He stated the facility “accommodated what needed to be done” and that he “didn't feel any warmer with or without the regular air conditioning units.”  He further testified that, when he returned around 3:00 p.m. on September 12, the temperature in the resident’s room was “[n]o different” (P. Ex. 108, at 4 (page 15) and 5 (page 20));
• An affidavit by engineer Nicholas Ganick (a heating, air conditioning, and ventilation expert) who testified that the portable air conditioners installed by Petitioner “could [have] be[en] expected to maintain” temperatures in the building’s “corridors” at 75-77℉; that Petitioner’s placement of large and small fans throughout the facility (including residents’ rooms) was a “reasonable strategy” to enhance the cooling capacity of the spot coolers; and that, contrary to the testimony of CMS’s expert, heat from the portable air conditioners on the first floor was properly vented and effectively “dissipated” in the space on the first floor and only negligibly increased the heat on the second floor (P. Ex. 12, ¶¶ 11, 15);
• An affidavit by a climatologist who, using a scientific model for predicting perceived indoor “thermal comfort,” estimated that during the relevant period, the “reasonable range of perceived comfort levels” for Petitioner’s residents “would have been slightly warm in the worst-case scenario and slightly cool in the best-case scenario.”  P. Ex. 8, ¶¶ 26, 27, 30-39, 41.  The climatologist explained that although some non-residents perceived temperatures to be hotter, the differences in perception could be explained by different levels of physical activity and metabolic rates.  Id., ¶¶ 15, 26, 40.

Fully crediting the testimony and sworn statements of Petitioner’s proposed witnesses, and viewing that evidence in the light most favorable to Petitioner, a reasonable trier of fact could find that Petitioner maintained temperatures in the facility within a range that the regulation deems – and that Petitioner’s staff reasonably thought was – comfortable and safe. We therefore cannot sustain the grant of summary judgment on the claim that Petitioner failed to provide comfortable and safe temperatures. The ALJ may, of course, conclude on remand that Petitioner’s witnesses are not credible or persuasive on this issue; that the weight of the evidence establishes that temperatures were not in fact comfortable and safe in some areas of the resident environment (such as residents’ rooms on the second floor); and that its staff knew or had reason to know of that circumstance.

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In addressing whether Petitioner maintained comfortable and safe temperatures for its residents, the ALJ did not always view the record in the light most favorable to Petitioner.  For example, although the ALJ found that Petitioner did not place fans in residents’ rooms or take other steps to keep the rooms cool (see ALJ Decision at 10), there is some evidence that Petitioner placed fans in residents’ rooms on September 12.  See P. Ex. 109, at 9; P. Ex. 3, ¶ 23; P. Ex. 94, at 33, 111-12, 218-220.  In addition, the ALJ discounted an implication by some of Petitioner’s witnesses that conditions in the hallways or other common areas of the facility approximated conditions in residents’ rooms.  See CMS Ex. 94 (Carballo Dep.), at 136 (stating that temperature readings on the thermostats of the portable air conditioners were relied upon as a “proxy for the ambient temperature within the patient rooms”).  Based on testimony by a law enforcement officer that he “couldn’t feel the cold air [from a portable air conditioner] unless you were 6 inches away from the vent, a foot at most” (CMS Ex. 80, at 25), the ALJ inferred that ambient temperatures farther away from the portable air conditioners, such as temperatures in residents’ rooms, were higher than 81℉.  ALJ Decision at 13 (asserting that “maintaining an 81℉ temperature in what should be the coolest area of the facility (near the spot cooler) means that the temperatures are higher elsewhere”).  That inference may be a reasonable one, but it is an inappropriate basis for summary judgment because it disfavors Petitioner, the non-moving party.  “[A]t the summary judgment stage, the [adjudicator] may draw only reasonable inference[s] favorable to the non-movant.”  Cf. Oak Ridge Ctr. at 33 (emphasis in original) (vacating summary judgment on the issue of immediate jeopardy where ALJ made adverse inferences about the nursing staff’s “persistent inability” or “unwillingness” to comply with physician orders).

The ALJ stated that Petitioner “had an affirmative duty to measure” temperatures in residents’ rooms and “to document its measurements,” and that it was undisputed that its staff failed to do so.  ALJ Decision at 9, 30.  However, section 483.10(i) does not require a SNF to produce temperature records in order to demonstrate substantial compliance with section 483.10(i).  A SNF may establish such compliance with other, indirect or circumstantial, evidence of the temperature levels.  Of course, on remand, the ALJ may weigh Petitioner’s failure to document the temperatures in residents’ rooms in deciding whether Petitioner carried its burden to show substantial compliance with section 483.10(i).  At this stage, however, the question is not whether Petitioner carried its burden of persuasion but whether there is any genuine factual dispute material to resolving the compliance issue.  Madison Health Care, Inc., DAB No. 1927, at 11 (2004).

3. 42 C.F.R. § 483.12 – right to be free from neglect

Disputes of material fact also preclude summary judgment on CMS’s claim that Petitioner violated 42 C.F.R. § 483.12, which states that a resident has a right to be free from, among other things, “neglect.”  A facility violates a resident’s right to be free from

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neglect when it fails to “provide goods and services . . . that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.”  42 C.F.R. § 483.5 (defining “neglect”).

There is no dispute that, when Petitioner lost central air conditioning and indoor temperatures rose above their usual levels, Petitioner’s residents required nursing and other services to ensure they remained comfortable and did not develop heat-related illness.  CMS Ex. 69 (discussing the susceptibility of the elderly to heat-related illness); CMS Ex. 100 (Casa Dep.) at 39-41, 134-139 (describing why the elderly are at greatest risk for heat-related illness and stating such persons require regular monitoring of sweating patterns, core body temperature, respiratory rate, and blood pressure).  There is also no dispute that the facility was aware of residents’ risk for developing heat-related illness and of the need to minimize that risk until its central air conditioning system was restored.  CMS Ex. 95 (Castro Dep.) at 45 (acknowledging residents’ vulnerability to heat-related illness after loss of central air conditioning); CMS Ex. 96 (Colin Dep.) at 38 (acknowledging importance of monitoring residents’ temperatures because of elderly residents’ compromised ability to self-regulate their temperatures).  In this context, CMS’s allegation of resident neglect presented two general issues:  (1) what “goods and services” were “necessary” to avoid harm to residents from the elevated temperatures while the facility was without central air conditioning?; and (2) did the facility provide, or timely and consistently provide, those goods and services?  A resolution of these issues may depend on whether one accepts Petitioner’s claim that it maintained temperatures in the residents’ environment at or below 81℉, the level that the facility regarded as the maximum comfortable and safe level.  For purposes of assessing summary judgment as to the neglect issue, we accept Petitioner’s claim that it maintained temperatures at or below 81℉ in all parts of the resident environment during the relevant period.

In its summary judgment motion, CMS was not clear or precise about what goods and services, or interventions, it believed were “necessary” to avoid harm to Petitioner’s residents following the loss of central air conditioning.  However, its motion implied that, even if temperatures did not exceed the 81-degree threshold, Petitioner needed to keep residents hydrated and periodically check their temperatures and other vital signs (although CMS did not indicate how often that should have been done).  See MSJ at 12-16 (discussing Residents 5, 6, 7).  Citing security camera video and clinical records, CMS alleged that Petitioner failed to provide, or provide with sufficient frequency, these services to some residents.  MSJ at 12-13 (asserting, for example, that “available video footage shows” that staff entered the room where Residents 4 and 5 lived “only four times” in the space of approximately ten hours and on each occasion “did not stay in the room long enough to provide care or assess the resident conditions”).  CMS also alleged that “when the AC stopped working,” the nursing staff should have determined who among Petitioner’s residents was most susceptible to dehydration and heat-related illness

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based on their specific preexisting conditions or medication use but that the staff did not do so.  MSJ at 6-7.

Petitioner proffered evidence sufficient to raise a genuine dispute about whether its staff neglected residents.  Petitioner’s Director of Nursing testified in a deposition that after the facility lost central air conditioning, she instructed her staff to provide ice and water to residents every hour; to “frequently” monitor the residents’ clinical status; and to report any change in the resident’s condition.  CMS Ex. 95, at 38-39, 44, 46, 54.  Petitioner’s administrator testified that he “personally observed that these orders were carried out and the nursing staff rounded on patients frequently and provided residents with ice water.”  P. Ex. 2, ¶ 26.  Petitioner’s night-shift supervisor testified that the facility’s staff (including a physician assistant) checked residents’ temperatures every two hours, monitored their blood pressure on a “regular basis,” and provided hydration every hour.  CMS Ex. 96, at 37-38, 39-40, 44 (acknowledging that it was important to monitor residents’ body temperatures because of elderly residents’ compromised ability to self-regulate those temperatures).  In addition, Petitioner’s expert on heat-related illness suggested that the nursing staff should not be faulted for failing to assess each resident’s susceptibility to heat-related illness because there are no “clear guidelines” about how to perform such assessments.18  P. Ex 9, ¶ 13.f  (stating that “[t]hese issues need to be studied with clear guidelines on how to identify . . . risk factors” that make certain individuals “more susceptible and vulnerable to heat conditions or the loss of air conditioning”).

Petitioner also questioned the reliability of security camera video cited by CMS to support its claim of resident neglect.  See Dec. 20, 2018 Motion Regarding Surveillance Video.  Petitioner asserted that it had identified “numerous gaps” and anomalies in the video (as specified in its Petitioner’s Exhibit 81); that there were “numerous examples” of the “video stopping with staff or residents in the frame, then a gap of some length, and then a new video starting with staff members gone or in another area”; and that “[t]hese types of videos most certainly contained motion during the gaps.”  Id. at 2.  Petitioner also argued that testimony by a Hollywood Police Department detective (who is also a certified forensic computer examiner) during the state administrative proceeding supports its view that the video cannot be considered reliable.  Id. at 3-4.  (That testimony was attached as Exhibit A to Petitioner’s Motion Regarding Surveillance Video.)  We are

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unable to assess these contentions because we cannot access the video upon which CMS principally relies (namely, CMS Exhibits 118-124 and 145).19

On remand, the ALJ may, of course, find that CMS’s evidence of resident neglect is more persuasive.  She may, for example, discount testimony by Petitioner’s employees because it lacks sufficient corroboration in residents’ clinical records.  Such weighing of the evidence cannot properly be done in the summary judgment context.  Vandalia Park, DAB No. 1939, at 11 (2004) (“[S]ummary judgment is not the proper stage for determination of credibility or to weigh a party’s evidence.”); Laboratorio Concordia Lugaro, DAB No. 3029, at 14 (2021) (citing case law holding that the presence or absence of corroboration relates to the credibility and weight of evidence).

4. 42 C.F.R. §§ 483.24 and 483.25 – quality of life; quality of care

We next consider the ALJ’s conclusion that Petitioner was noncompliant with 42 C.F.R. §§ 483.24 and 483.25.  Section 483.24, titled “Quality of life,” states in its prefatory paragraph that “[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident’s comprehensive assessment and plan of care.”  In accordance with this “fundamental principle” (which “applies to all care and services provided to facility residents”), subsection (a) of the regulation requires a SNF to provide each resident with “appropriate treatment and services,” consistent with the resident’s “needs and choices” and “comprehensive assessment,” in order to “maintain or improve” the resident’s “ability to carry out “activities of daily living” (ADLs) – such as hygiene, mobility, and communication – specified in subsection (b).  42 C.F.R. § 483.24(a).  The regulation also obligates a SNF to have an “ongoing program to support residents in their choice of activities” (that is, activities other than ADLs) and that is designed to support each resident’s physical, mental, and psychosocial well-being.  Id. § 483.24(c).

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Section 483.25, titled “Quality of care,” states in its prefatory paragraph that, “[b]ased 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.”  The Board has held that the quality-of-care principle generally “obligate[s] the [facility] to furnish the care and services set forth in a resident’s care plan, to implement doctors’ orders, to monitor and document the resident’s condition, and . . . to follow its own resident care policies.”  Heritage House of Marshall Health and Rehab., DAB No. 3035, at 10 (2021) (internal quotation marks omitted).20

CMS’s summary judgment motion stated legally insufficient grounds for its claim that Petitioner violated sections 483.24 and 483.25.  More specifically, the motion failed to specify what CMS thought were the “necessary care and services” for residents’ “quality of life” that Petitioner failed to provide during the relevant period.  MSJ at 2 (alleging that Petitioner failed to provide “quality of care” but omitting to indicate how Petitioner failed provide “quality of life” as defined in section 483.24).  The motion also failed to indicate how Petitioner failed to provide, as section 483.25 requires, “treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices.”  CMS merely suggested that any failure by Petitioner to meet its obligation under section 483.12 to keep residents free from neglect also constituted a violation of the requirements in sections 483.24 and 483.25.  See MSJ at 5 (stating that Petitioner’s noncompliance with sections 483.12, 483.24, and 483.25 was “linked” and indicating that all three regulations were violated because Petitioner “failed to ensure that all residents . . . were free from neglect while the facility’s central AC system was inoperable”).

The ALJ found Petitioner noncompliant with the “quality-of-care regulation” because its staff “did not follow physician orders or resident care plans” for Residents 3 and 4.  ALJ Decision at 7, 18-19, 20.  The evidence supporting that finding is inconclusive, however, or at least in dispute.  With respect to Resident 3, the ALJ found that “[n]o one recorded her temperature at all on September 11[, 2017] – the first full day that the facility was without air conditioning,” even though her “care plan instructed staff to take her vital signs daily.”  Id. at 18-19 (citing CMS Ex. 14, at 258 (physician order chart)).  Although a vital-signs chart for Resident 3 shows no temperature check having been performed on September 11 (CMS Ex. 14, at 252), a different chart – an “Offline Administration

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Record” – indicates that a nursing staff member took the resident’s temperature that day and recorded it as 97℉ (id. at 286).  With respect to Resident 4, the ALJ found that Petitioner did not take his temperature from 12:17 a.m. on September 8, 2017 (when his temperature was 98℉) until 3:20 a.m. on September 12 (when it was 98.6℉) despite an apparent physician order for “daily vital signs.”  See ALJ Decision at 18, 20 (citing CMS Ex. 17, at 246 (physician order chart)).  Like Resident 3’s treatment administration records, Resident 4’s are inconsistent:  a vital-signs chart, covering the period from September 1 through September 13, lacks any temperature checks for September 9, 10, or 11.  CMS Ex. 17, at 256-60.  However, an “Offline Administration Record” indicates that Petitioner’s staff took Resident 4’s temperature on those three days, as ordered.  Id. at 271.  The inconclusive clinical records present a genuine factual dispute about whether Petitioner carried out physician orders or plans of care in violation of section 483.25 and thereby preclude a grant of summary judgment to CMS on that basis.

5. 42 C.F.R. § 483.70 – facility administration

Title 42 C.F.R. § 483.70 states, in its prefatory paragraph, that a facility “must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.”  “The central focus of [this overarching requirement] is facility administration” – that is, how the facility should be governed, managed, or operated in certain respects.  Avalon Place Trinity, DAB No. 2819, at 31 (2017) (emphasis in original), aff’d, 761 F. App’x 407 (5th Cir. 2019).  “[I]n appropriate circumstances, a finding that a SNF was noncompliant with [the general administration requirement21 ] may be derived from findings of noncompliance with other participation requirements.”  Life Care Ctr. of Tullahoma, DAB No. 2304, at 45 (2010), aff’d, 453 F. App’x 610 (6th Cir. 2011); Madison Cty. Nursing Home, DAB No. 2895, at 8-9, 12-13 (2018) (finding that repeated noncompliance with the prohibition on misappropriation of resident assets was evidence that the facility lacked “supervisory and administrative mechanisms” in violation of the overarching administration requirement).

The ALJ concluded that Petitioner was noncompliant with section 483.70 based on her findings that Petitioner was noncompliant with sections 483.10(i), 483.12, and other provisions.  ALJ Decision at 33 (stating that the administration deficiency “derives from its substantial noncompliance in other areas”).  Because we are vacating those other noncompliance findings (for reasons already stated), we must vacate the conclusion that Petitioner was noncompliant with section 483.70 to the extent it rests on those other findings.

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We also vacate that conclusion because it is inconsistent with the summary judgment standard.  The ALJ stated that she “reasonably concluded” that Petitioner had violated section 483.70 because it was “so out of compliance with [other] program requirements that its residents [were] placed in immediate jeopardy.”  ALJ Decision at 33 (citation and internal quotation marks omitted).  In other words, the ALJ apparently inferred from the nature and seriousness of other alleged deficiencies that they were the product of ineffective or inefficient governance or management.  Even if that inference, plainly adverse to Petitioner, was reasonable, it cannot be the basis for granting summary judgment because, at the summary judgment stage, the ALJ may draw only reasonable inference[s] favorable to the non-movant.”  Oak Ridge Ctr. at 33 (emphasis in original).

The ALJ also found Petitioner noncompliant with 42 C.F.R. § 483.70 because of what she called “deficiencies in planning for the loss of air-conditioning,” including a failure to “plan for [residents’] ongoing care when the facility lost its air-conditioning” and not having a “back-up plan in place to protect residents if temperatures exceeded safe levels.”  ALJ Decision at 32-33.  As noted, we are disinclined to sustain the remedies on that basis because CMS did not allege shortcomings in emergency-planning in its motion for summary judgment.  Other circumstances also give us pause.  For one, it is unclear what legal or other standard the ALJ applied in deciding that Petitioner had “deficiencies” in planning for power disruption and a consequent loss of central air conditioning.22   In addition, the record contains evidence – including affidavits or deposition testimony of its administrator, plant manager, and others – sufficient to raise a genuine dispute about whether Petitioner’s pre-hurricane planning was adequate:

• Petitioner’s administrator testified that the facility had an approved Comprehensive Emergency Management Plan (CEMP) in place prior to the events at issue in the case; that “[i]n preparation for the hurricane season in 2017,” the facility’s staff “held meetings and drills . . . to ensure that [it] would be prepared for any hurricane event consistent with all applicable federal, state, and local emergency management rules”; and that “[d]uring the approach of Hurricane Irma, Hollywood Hills activated its hurricane preparedness plans” and “held leadership

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meetings to discuss preparations and ensure that [the facility] had sufficient staffing and food, water, and supplies to be self-sufficient in the aftermath of a major hurricane.”  P. Ex. 2, ¶¶ 10-12.

• Petitioner’s plant manager stated in his affidavit that, prior to September 10, 2017, as Hurricane Irma approached, he rented portable air conditioners in the event that the facility temporarily lost power to its central air conditioning system, even though that precaution “was not required under the [facility’s] CEMP or by any law, rule, or regulation.”  P. Ex. 3, ¶¶ 21, 23-27.  The plant manager further stated that he “originally wanted to rent twenty spot coolers” but that he was able to obtain only ten as they were in “short supply” because of the “approaching storm.”  Id., ¶ 25.
• Petitioner’s emergency preparedness expert stated in an affidavit that Petitioner “acted reasonably and appropriately” under all the circumstances, citing examples of what he considered “good emergency improvised/ad hoc planning,” including “procuring in advance alternate cooling devices such as spot coolers and fans,” and noting that Petitioner was hindered by communication failures in Florida’s emergency response system and the absence of clear legal guidance and standards for preparing and responding to the loss of electrical power and consequent loss of central air conditioning.  P. Ex. 13, ¶¶ 13-28, 32.

Petitioner also proffered some evidence that its staff planned for the “ongoing care” of residents after losing central air conditioning:  the Director of Nursing testified that the plan was to perform “continuous monitoring” of patients, and that she instructed her staff to perform such monitoring, to offer or provide hydration every hour, and to report any “clinical changes” to her and to the resident’s physician.  CMS Ex. 119, at 18.  Finally, there is some evidence of contingency planning by Petitioner, contrary to the ALJ’s finding that it lacked a “back-up” plan:  in deposition testimony, Petitioner’s administrator implied that, in the event that temperatures in parts of the resident environment exceeded 81℉ (which the facility regarded as the maximum safe level), staff would have moved all portable air conditioners to a space on the first floor and moved residents to that space.  CMS Ex. 94, at 122-23.

6. 42 C.F.R. § 483.70(i)(1) – medical records

The ALJ found that Petitioner’s medical records were “unreliable” and “did not, completely and accurately, document resident progress,” rendering Petitioner noncompliant with 42 C.F.R. § 483.70(i)(1).  See ALJ Decision at 7, 17-18, 26-27, 31, 32.  In relevant part, section 483.70(i)(1) states that, “[i]n accordance with accepted professional standards and practices, the facility must maintain medical records on each resident that are,” among other things, “complete” and “accurately documented.”  Section 483.70(i) does not state what constitutes a “complete” medical record, although it

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provides that a medical record “must contain,” among other information or documents, the resident’s “assessments,” “the comprehensive plan of care,” and “progress notes” of licensed professionals.  42 C.F.R. § 483.70(i)(5).

As noted earlier, CMS’s summary judgment motion alleged no medical-recordkeeping deficiency.  And some of the ALJ’s findings or commentary suggest she did not view the evidence concerning that topic in the light most favorable to Petitioner.23   In addition, although section 483.70(i)(1) contemplates that a facility’s compliance should be assessed in light of “accepted professional standards and practices,” the ALJ’s findings reflect no consideration of such standards and practices and whether and in what ways Petitioner’s medical record-keeping deviated from them.24  In light of these circumstances, we think it preferable that any issue concerning Petitioner’s compliance with section 483.70(i)(1) be addressed on remand, outside the summary judgment context.

Moreover, the completeness and accuracy of Petitioner’s medical records is an issue intertwined with the question of whether Petitioner actually provided residents with the nursing and other care it claimed to have provided after losing its central air conditioning.  See CMS Ex. 91 (Declaration of Anne Sosiak, R.N.), at 86-88, 100, 154-57, 243-44, 251-55 (discussing absence of documentation of certain nursing care); CMS Ex. 92 (Declaration of Katherine Allen), at 85, 101-04, 121, 137, 143, 267, 276-77 (same).  In

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the summary judgment context, we must accept, as true, testimony by Petitioner’s employees (see, e.g., P. Ex. 2, ¶ 26) that such care was provided.  Of course, the ALJ may on remand consider whether any failure to document, or adequately document, that care warrants an inference that the care was not provided as claimed.

A final observation:  The circumstances presented in this case are unquestionably tragic with the loss of multiple lives in the midst of the crisis created by the hurricane.  We have concluded that summary judgment is not an appropriate vehicle here for resolving the questions about the facility’s actions/omissions in planning for and responding to the crisis or in providing care to its residents.  That conclusion does not imply any opinion about how those questions should be resolved and in no way minimizes the severity of the situation.  On the contrary, the seriousness of the events and its impact on residents calls for a thorough neutral exploration of all the facts and evidence without the constraints imposed by the use of summary judgment.

Conclusion

For the reasons stated above, we vacate the grant of summary judgment to CMS and remand the case to the ALJ for further proceedings in accordance with this decision.

1. On October 4, 2016, CMS issued a final rule amending the Medicare participation requirements for long-term care facilities published in 42 C.F.R. Part 483, subpart B. Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688 (Oct. 4, 2016). Most of the amended participation requirements, including those upon which CMS’s summary judgment motion and the ALJ’s decision rest, took effect on November 28, 2016, several months prior to the events that led to the enforcement action against Petitioner. Id. at 68,688, 68,696-97.
• back to note 1
2. A per-day CMP may be imposed for the “number of days a facility is not in substantial compliance with one or more participation requirements.” 42 C.F.R. § 488.430(a). A per-day CMP must be imposed within specified ranges: an upper range for immediate-jeopardy-level noncompliance; and a lower range for noncompliance below the immediate-jeopardy level of severity. Id. §§ 488.408(d)(1)(iii), 488.408(d)(3)(ii), 488.438(a)(1). When the compliance survey in this case was performed (October 2017), the upper range was $6,394 to $20,965, and the lower range was $105 to $6,289. See id. § 488.438(a)(1); 45 C.F.R. § 102.3 (table) (Oct. 1, 2017).
• back to note 2
3. CMS’s decision about what type of remedy to impose based on a valid determination of noncompliance is a discretionary act not subject to ALJ or Board review. 42 C.F.R. § 488.408(g)(2) (stating that a SNF “may not appeal the choice of remedy, including the factors considered by CMS or the State in selecting the remedy”); Emerald Oaks, DAB No. 1800, at 39 (2001). A SNF may, however, contend in an administrative appeal that the amount of a CMP imposed is unreasonable in light of certain regulatory factors. Capitol Hill Cmty. Rehab. & Specialty Care Ctr., DAB No. 1629, at 5 (1997).
• back to note 3
4. The facts stated in this background narrative are undisputed based on the record developed so far before the ALJ. They are provided to give context to our analysis but do not constitute findings of fact. On remand, the ALJ will make new findings of fact after any further record development that is required based on our decision.
• back to note 4
5. CMS asserted in its April 30, 2018 motion for summary judgment (MSJ) that four additional residents, Residents 9 through 12, died of “environmental heat exposure,” MSJ at 3, but their circumstances were not cited by CMS as grounds for its motion.
• back to note 5
6. Petitioner’s census numbered 141 residents at the time. CMS Ex. 1, at 1.
• back to note 6
7. CMS’s summary judgment motion cites paragraph (a)(1) of 42 C.F.R. § 483.12. That paragraph prohibits “abuse,” corporal punishment, and involuntary seclusion – none of which is alleged to have occurred. The language establishing a resident’s right to be free from “neglect” is found in section 483.12’s prefatory text.
• back to note 7
8. For purposes of section 483.12, “neglect” is defined to mean “the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.” 42 C.F.R. § 483.5.
• back to note 8
9. Petitioner’s director of nursing adopted or affirmed testimony she gave during the state administrative proceeding. See P. Ex. 4; CMS Ex. 95.
• back to note 9
10. Petitioner asserted in its brief to the ALJ opposing summary judgment that CMS’s motion “exceeds the intended scope of this proceeding, making inaccurate allegations never touched upon or that are squarely contrary to allegations in the [Statement of Deficiencies].” MSJ Response at 2.
• back to note 10
11. The ALJ did not rule on Petitioner’s other evidentiary objections.
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12. The ALJ relied on the following Board decisions: Life Care Ctr. of Bardstown, DAB No. 2479, at 7 (2012) (“[A]n ALJ does not err in permitting issues to be raised during the hearing that were not clearly raised on the [Statement of Deficiencies] provided the facility has notice and a meaningful opportunity to be heard on those issues”), aff’d, 535 F. App’x 468 (6th Cir. 2013); and Pacific Regency Arvin, DAB No. 1823, at 9 (2002) (rejecting the ALJ’s treatment of a Statement of Deficiencies as “rigidly framing the scope of evidence to be admitted concerning any allegation relating to a cited deficiency” and as “requiring formal amendment of the [Statement of Deficiencies] to allow any additional supporting evidence”).
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13. Section 1819(h)(2)(B)(ii)(I) of the Act (42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I)) makes section 1128A(c)(4) applicable to administrative appeals of civil money penalties imposed on skilled nursing facilities. Kermit Healthcare Ctr., DAB No. 1819, at 3 (2002).
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14. Like CMS’s summary judgment motion, the ALJ’s decision cites paragraph (a)(1) of section 483.12, which forbids a SNF from using “verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.” ALJ Decision at 7. The ALJ did not find that Petitioner had violated those prohibitions.
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15. In three places, the ALJ’s decision states that Petitioner had violated subsections (k) and (l) of 42 C.F.R. § 483.25. ALJ Decision at 3, 7, 31. Those subsections require a SNF to provide necessary “pain management” and “dialysis.” CMS did not allege, and the ALJ did not find, a violation of either of those requirements.
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16. In its appeal brief, CMS suggests that we consider whether the ALJ’s “findings” were supported by “substantial evidence.” See Response Br. at 8 (asserting that the ALJ’s factual findings “are supported by substantial evidence on the record as a whole”) and 16 (requesting that the Board affirm the ALJ decision “given the substantial evidence of [Petitioner’s] noncompliance”). The question on review in this appeal, however, is not whether the ALJ made factual findings supported by substantial evidence, but whether any genuine dispute of material fact exists, and whether CMS is entitled to judgment as a matter of law. Cf. Oak Ridge Ctr. at 30 (observing that CMS’s argument on the substantive compliance issue was compromised by a “misunderstanding” of the review standard applicable to a grant of summary judgment).
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17. On remand, the ALJ need not evaluate or weigh every factual allegation or piece of evidence in the record. However, she should, as appropriate for a decision on the merits after a hearing (or after an opportunity for a hearing is waived), explain why evidence tending to conflict with her noncompliance findings is not credible or persuasive or is otherwise deserving of less weight than the evidence cited in support of those findings. Columbus Nursing & Rehab. Ctr., DAB No. 2398, at 15 (2011) (stating that an ALJ “is not required to discuss every piece of evidence” but should “provide sufficient analysis of that evidence” so that the Board can provide a “meaningful review, without simply substituting [its] judgment” for that of the ALJ); Lake Park Nursing & Rehab. Ctr., DAB No. 2035, at 18 (2006) (an ALJ “is not required to discuss evidence that does not detract from [her] findings”).
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18. In its briefs to the ALJ, CMS did not cite evidence of any nursing-care standard justifying its assertion that Petitioner should have assessed residents’ relative vulnerability to heat-related illness. MSJ at 5-6. While implying Petitioner’s most vulnerable residents required interventions besides the ones that Petitioner claimed to have implemented, CMS did not indicate what those additional interventions were or at what point they should have been implemented.
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19. CMS asserted before the ALJ that the “lack of resident care” reflected in the video of room 226 (where Residents 4 and 5 lived) is consistent with the “absence of documentation” of such care. CMS Resp. to Pet.’s Motion Regarding Surveillance Video at 5. However, the record contains some written documentation of nursing care during the hours purportedly covered in the video, raising additional questions (not resolved by the ALJ) about whether the video is a complete and accurate rendering of the nursing staff’s activities in room 226 during those hours. For example, although the video purportedly shows no staff entering room 226 to deliver care between 10:12 p.m. on September 12 and 4:56 a.m. on September 13 (see MSJ at 13), a clinical record reflects that staff checked Resident 4’s vital signs at 1:28 a.m. on September 13. CMS Ex. 17, at 239, 256. Other clinical records indicate that Petitioner’s nursing staff delivered care to Resident 5 beginning at 10:45 p.m. on September 12, including: checking the resident’s air mattress (CMS Ex. 22, at 49-50); “[o]ffload[ing] heels while in bed” (id.); “[t]urn and reposition” (id.); “apply barrier cream to sacrum” (id. at 49); providing nutrition (id. at 44); pain monitoring (id.); “Enteral Feeding: Tube site care” (id. at 40); and “[f]lush peg tube” (id.).
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20. The Board’s holdings applying the general quality-of-care principle are based on the version of section 483.25 that was in effect prior to November 28, 2016. Prior to that date, section 483.25’s prefatory paragraph contained the language that currently appears in section 483.24: “Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.” 42 C.F.R. § 483.25 (Oct. 1, 2016).
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21. Prior to November 2016, the general administration requirement was found in 42 C.F.R. § 483.75. 81 Fed. Reg. 68,688, 68,784 (Oct. 4, 2016).
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22. Title 42 C.F.R. § 483.73 generally requires a SNF to “comply with all applicable Federal, State and local emergency preparedness requirements.” Under that regulation, the foundation of a facility’s emergency planning and response is its “emergency preparedness plan,” which must be reviewed and updated “at least annually,” “[b]e based on and include a documented, facility-based and community-based risk assessment,” and “[i]nclude strategies for addressing events identified by the risk assessment.” 42 C.F.R. § 483.73(a)(1)-(2). The regulation also requires a facility to have “policies and procedures” based on the emergency preparedness plan that address various topics, such as “[a]lternate sources of energy to maintain . . . [t]emperatures to protect resident health and safety.” Id. § 483.73(b)(1)(ii). There is evidence (including deposition testimony of Petitioner’s administrator) that Petitioner had an approved emergency preparedness plan in place during the relevant period (see CMS Ex. 94, at 53-54 and P. Ex. 20) and the ALJ made no findings about the plan’s content or implementation.
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23. For example, the ALJ found that Petitioner had violated section 483.70(i)(1) in part because its nursing staff “essentially stopped taking and recording . . . vital signs” after the facility lost central air conditioning. ALJ Decision at 17. In support of that finding, the ALJ cited exhibits containing clinical records for Residents 2, 3, 4, 6, and 7. Id. (citing pages from CMS Exhibits 9, 14, 17, 26, and 31). However, those exhibits do not confirm that Petitioner’s staff “stopped taking and recording” vital signs during the relevant period. Rather, they indicate (or at least appear to indicate) that staff continued to take residents’ vital signs at least daily. See CMS Ex. 9, at 38, 43, 49-50, 54-56, 67, 77 (records of Resident 2’s vital signs taken on September 10, 11, and 12); CMS Ex. 14, at 252, 271-72, 286 (records of Resident 3’s vital signs taken on September 10, 11, and 12); CMS Ex. 17, at 256-57, 271 (records of Resident 4’s vital signs taken on September 10, 11, and 12); CMS Ex. 26, at 14, 25-26, 31-32, 39, 42, and 50 (records of Resident 6’s vital signs taken on September 11, 12, and 13); CMS Ex. 31, at 47, 64-65, 78 (records of Resident 7’s vital signs taken on September 10, 11, and 12); CMS Ex. 91, at 154 (surveyor acknowledgment that vital signs were taken to some extent during the relevant period). The ALJ also stated that the “parties agree” that Petitioner’s “record-keeping was abysmal,” and that, during the state administrative hearing, Petitioner’s Director of Nursing “severely criticized” two nurses who had “left everything undocumented.” ALJ Decision at 17. However, Petitioner expressed no opinion about the completeness or accuracy of its medical records because that issue was not raised in CMS’s summary judgment motion. In addition, the Director of Nursing’s statement that “everything” had been “undocumented” refers to evidence that two nurses who worked on the second floor during the overnight shift on September 12 left the facility on the morning of September 13 without completing their medical-record documentation but returned the next day to do so. See CMS Ex. 116, at 156-57, 195, 225-26; ALJ Decision at 31.
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24. Although the ALJ noted the “sparsity” or infrequency of narrative “progress notes” entered by the nursing staff for Residents 6 and 7, see ALJ Decision at 21-22, the ALJ did not determine what role those notes played in Petitioner’s medical record-keeping system. Nor did she consider whether other material in the residents’ medical records (such as progress notes written by physicians, therapists, and other practitioners) constituted adequate or “complete” documentation of the residents’ clinical status and “progress” toward meeting treatment and other goals.
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