SUBJECT:

Medina Nursing Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Petitioner, Medina Nursing Center (Petitioner or facility), is a long term care facility certified to participate in the Medicare and Medicaid programs as a provider of services. Following surveys completed June 23, 2005 and July 26, 2005, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with a number of program requirements. Petitioner timely appealed the survey findings. The parties subsequently resolved all outstanding disputes arising from the surveys, except one: the facility's compliance with 42 C.F.R. � 483.25(h)(2) (quality of care - failure to prevent accidents), cited on the July survey documents at Tag F324. For this alleged deficiency, CMS found immediate jeopardy to resident health and safety, and imposed a $3,050 per instance civil money penalty (CMP).

CMS now moves for summary judgment, which Petitioner opposes. For the reasons set forth below, I find that this case presents no genuine issue of material fact requiring an in-person hearing, and summary judgment is therefore appropriate. I also find that the facility was not in substantial compliance with 42 C.F.R. � 483.25(h)(2), and I affirm the $3,050 per instance CMP.

I. Background

In these consolidated cases Petitioner appeals surveys completed by the Illinois Department of Public Health on June 23, 2005, and July 26, 2005. The parties have resolved most of their differences and now dispute just one survey finding: that the facility did not ensure that each resident receives adequate supervision to prevent accidents (Tag F324), cited following the complaint investigation/survey completed July 26, 2005. CMS Ex. 1; Stipulation to Limit Issues for Hearing (received April 17, 2005).

CMS has filed an initial brief (CMS Br.) and a Motion for Summary Affirmance (CMS MSJ), accompanied by 25 exhibits (CMS Exs. 1-25). Petitioner has filed its own initial brief (P. Br.) and a Response to CMS's Motion for Summary Affirmance (P. Resp.), with 14 exhibits (P. Exs. 1-14). In the absence of any objections, and for the purpose of resolving this motion for summary affirmance, I admit CMS Exs. 1-25, and P. Exs. 1-14.

Responding to Petitioner's submissions, CMS asked leave to file a reply, as well as one additional exhibit, CMS Ex. 26. In CMS's view, one of Petitioner's factual assertions - that the facility's Director of Nursing (DON) twice asked that an agency nurse (identified as Z2) be provided orientation - is based on a misreading of surveyor notes, and CMS sought to clarify those notes. Petitioner has objected, arguing that it made no factual error, and that its assertion is based on the DON's own written declaration. As discussed below, in considering summary judgment, I accept as true Petitioner's factual assertions. I therefore find that the DON asked that Z2 be given orientation. However, I find this fact not material. (See discussion, below). CMS's reply serves no purpose, and I therefore decline to consider it or CMS Ex. 26.

II. Issues

�I consider first whether summary judgment is appropriate.

�On the merits, the issue before me is whether the facility was in substantial compliance with program requirements, specifically 42 C.F.R. � 483.25(h)(2), on July 5, 2005, when one of its residents eloped.

�Although the parties dispute whether Petitioner has preserved a challenge to the reasonableness of a $3,050 per instance CMP, I find that the issue is properly before me.

�As the parties recognize, I have no authority here to consider whether CMS's immediate jeopardy finding is clearly erroneous.

III. Discussion

A. Summary disposition is appropriate because this case presents no dispute over genuine issues of material fact. ⁽¹⁾

Summary judgment is appropriate when the application of the law to a set of undisputed facts reasonably supports only one ultimate conclusion. Richardson v. New York State Dep't. of Corre. Serv., 180 F.3d 426, 437-38 (2d Cir. 1999). The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law, or by showing that the non-moving party has presented no evidence "sufficient to establish the existence of an element essential to its case, and on which it will bear the burden of proof at trial." Livingston Care Center v. United States Dep't of Health and Human Services, 388 F.3d 168, 173 (6^th Cir. 2004), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To avoid summary judgment, the nonmoving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986). See also Vandalia Park, DAB No. 1939 (2004), and Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004).

In applying these basic principles to cases arising under 42 C.F.R. � 483.25(h)(2), the Departmental Appeals Board (Board) has recognized situations in which summary judgment is appropriate. Among them are cases where undisputed facts establish that the facility has identified and planned for a risk, but not followed its own plan in attempting to prevent accidents. Windsor Health Care Center, DAB No. 1902 (2003), aff'd, Windsor Health Center v. Leavitt, 2005 WL 858069 (6^th Cir. April 13, 2005); see also, Lebanon at 2, 9; St. Catherine's Care Center at Findlay, DAB No. 1964, at 13 (2005). This is such a case.

Here, CMS alleges as undisputed fact - and presents evidence to establish - that Resident 1 (R1) was admitted to the facility on July 4, 2005. She was identified as at high risk for elopement, and was fitted with an electronic monitoring device. On her second day there, she exited the facility, setting off the alarm. Staff heard the alarm, and one staff member, identified as Employee 22 (E22), looked outside and observed two residents, R1 and R9. R9 also wore a monitoring device. Assuming that R9, who was allowed outside, had set off the alarm, the staff member simply turned the alarm off. He did not recognize R1 as a resident at risk for elopement. Fifteen minutes later, two off-duty facility employees happened upon R1 walking along the road and returned her to the facility, uninjured.

Petitioner does not dispute these facts, but sets forth some additional facts describing in greater detail its efforts to protect R1, and argues that it "took all reasonable steps necessary" to ensure that she was adequately supervised. P. Br. at 10. As discussed below, I accept all of the facility's factual assertions (although not its ultimate legal conclusion). I draw all reasonable inferences in the light most favorable to the facility. In doing so, I conclude that the facility adequately assessed R1's risk for accidents (which was high), and had in place an adequate plan to reduce that risk and prevent accidents, in light of R1's condition and needs, as required by 42 C.F.R. � 483.25(h)(2). See Lebanon; Windsor; Woodstock Care Center, DAB No. 1726 (2000), aff'd Woodstock Care Center v. Thompson, No. 01-3889 (6^th Cir. Nov. 17, 2003) (unpublished). However, on July 5, 2005, facility staff did not follow the plan, and R1 successfully eloped. Although returned to the facility uninjured, her unsupervised departure from the facility put her in significant danger.

This case is not Lebanon or its progeny (St. Catherine's Care Center of Findlay; Vandalia Park; Madison Health Care, Inc., DAB No. 1927 (2004)), in which the Board found factual disputes as to the degree of resident risk and the appropriateness of the facility's plans to address that risk. Here, CMS has proffered undisputed facts and evidence demonstrating that, on July 5, 2005, the facility failed to follow its own plan for providing R1 adequate supervision. Petitioner has not shown material facts in dispute, nor that a different conclusion can reasonably be drawn from the undisputed facts. CMS is therefore entitled to summary judgment. See Windsor at 12.

B. On July 5, 2005 the facility did not provide R1 with adequate supervision to prevent accidents and was therefore not in substantial compliance with the program participation requirement set forth at 42 C.F.R. � 483.25(h)(2).

Under the statute and "quality of care" regulation, each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychological well-being, in accordance with the resident's comprehensive assessment and plan of care. Social Security Act, section 1819(b); 42 C.F.R. � 483.25. The regulation imposes on facilities an affirmative duty designed to achieve favorable outcomes "to the highest practicable degree." Windsor at 16 - 17; Woodstock at 25 - 30. Among other specific requirements, the facility is required to "take reasonable steps to ensure that a resident receives supervision and assistance devices designed to meet his or her assessed needs and to mitigate foreseeable risks of harm from accidents." 42 C.F.R. � 483.25(h)(2); Windsor at 5; Asbury Center at Johnson City, DAB No. 1815, at 12 (2002); Koester Pavilion, DAB No. 1750, at 25 - 26 (2000); Woodstock at 25. The regulation requires the facility to anticipate what accidents might befall a resident and to take steps - increased supervision or the use of assistance devices - to prevent them. Guardian Health Care Center, DAB No. 1943, at 18 (2004).

A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an "adequate" level of supervision under all the circumstances.

Windsor, at 5.

When she was admitted to the facility on July 4, 2005, R1 was 79 years old, and suffering from senile dementia. She was ambulatory. CMS Ex. 17, at 2; P. Ex. 11, at 1 (Wittbecker Decl.). The facility assessed her risk for wandering and concluded that the risk was "severe." CMS Ex. 14, at 2; P. Ex. 1, at 26; P. Ex. 11, at 2 (Wittbecker Decl.). She was fitted with an electronic monitoring device. CMS Ex. 14, at 5; CMS Ex. 17, at 2; P. Ex. 1, at 10; P. Ex. 11, at 2 (Wittbecker Decl.); P. Ex. 13, at 1 (K. Oksnevad Decl.). The device, a bracelet, was clearly visible. CMS Ex. 17, at 3; P. Ex. 1, at 11.

The electronic monitoring device was part of the facility's sophisticated alarm system. When an alarm sounded, panels at the front and back of the facility identified which door had been exited, and provided the device code of the particular resident who had set off the alarm. The facility's policy required staff to check the device code number on the alarm panel to determine which resident had caused the alarm to sound. Staff were not to shut off the alarm until that resident was found. P. Ex. 10, at 2-3. Nursing staff had been trained to follow this policy at in-service training programs conducted on January 28, 2004, October 6, 2004, and April 7, 2005. P. Ex. 10, at 3. (H. Oksnevad Decl.); CMS Ex. 17, at 3; P. Ex. 1, at 11; CMS Ex. 18; CMS Ex. 19; CMS Ex. 21, at 6; P. Ex. 1, at 30 et seq.; P. Exs. 2, 3, 4, 5; P. Ex. 11, at 3 (Wittbecker Decl.). ⁽²⁾

On each shift, the certified nurse's aide (CNA) assigned to care for R1 was provided a sheet describing R1's needs, including her use of an electronic monitoring device, and her propensity to wander. CMS Ex. 17, at 2; P. Ex. 1, at 10.

Petitioner concedes that the facility supplemented its nursing staff with personnel supplied by an agency called Super Nurs, LLC. Petitioner provided the agency with copies of the facility's policies and procedures regarding wandering residents and door alarms. Under the terms of their contract, the agency agreed to educate its employees on the facility's policies and procedures. CMS Ex. 17, at 3; P. Ex. 1, at 11; CMS Ex. 20, at 2; P. Ex. 11, at 2-3 (Wittbecker Decl.).

At the time of R1's elopement, a facility CNA named Nick Schwab, identified in facility documents as E12, was assigned to care for her. A licensed practical nurse (LPN), identified as Z2, was also assigned to care for her. Z2 was an agency nurse, employed by Super Nurs, LLC. P. Ex. 11, at 2 (Wittbecker Decl.). Notwithstanding the contract provisions, and, notwithstanding the facility's specific requests, Z2 had not attended the facility's orientation program, and had not been properly trained in facility procedures. See P. Resp. at 9; P. Ex. 11.

On July 5, 2005, CNA Schwab escorted R1 to the TV lounge at approximately 5:30 p.m. He then went on his dinner break. Z2 was still on duty. P. Ex. 12, at 2 (Schwab Decl.). Although Z2 should have known that R1 required supervision, she apparently did not. She did not check on her, did not look for her, and was not aware that she was missing after she left. CMS Ex. 17, at 5; P. Ex. 1, at 13.

The alarm system was in good operating order on July 5, 2005. P. Ex. 10, at 2 (H. Oksnevad Decl.). At approximately 5:45 p.m. R1 exited the facility and the alarm sounded immediately. ⁽³⁾ An employee identified as E22 responded. E22 was not part of the team that had direct responsibility for R1, but he had attended the facility's in-service training sessions that addressed how staff should respond to an alarm. E22 observed both R1 and R9 outside. He did not recognize R1, and assumed that R9 had activated the door alarm. Contrary to facility policy, he did not check the device code number. He turned the alarm off and took no further action. CMS Ex. 17, at 3-4; P. Ex. 1, at 11-12; P. Ex. 13, at 2 (K. Oksnevad Decl.). R1 wandered around the courtyard for a few minutes, and then left the facility grounds.

At about 6:00 p.m. that evening, two off-duty facility employees, Registered Nurse Dawn Stockdale and CNA Nancy Bettis, were driving north on Center Street, and noticed R1 walking on the left shoulder of the road. They put her in the car, and returned her to the facility unharmed. P. Ex. 14, at 2 (Stockdale Decl.); CMS Ex. 1, at 2; CMS Ex. 9, at 9; CMS Ex. 14, at 6.

The parties dispute the distance R1 traveled. CMS says she was found a half mile away from the facility. CMS Ex. 24, at 3 (Conley Decl.). Petitioner says that she was "approximately one block from the facility." P. Ex. 1, at 4; P. Ex. 14, at 2 (Stockdale Decl.). I accept Petitioner's assertion. Petitioner has not challenged CMS's claim that Center Street is a two-lane state highway (Highway 70) with a speed limit of 45 mph, and that R1 had obviously crossed this road. CMS Ex. 24, at 3 (Conley Decl.). Nor does Petitioner challenge CMS's claim that no one in the facility even realized R1 was missing until RN Stockdale and CNA Bettis fortuitously happened upon her as they were driving down the road and returned her to the facility.

The facility subsequently suspended E22 for three days. P. Ex. 13, at 3 (K. Oksnevad Decl.).

Petitioner acknowledges that Z2 and E22 failed to follow the facility's policies and procedures for responding to the alarms and protecting residents. Petitioner argues that it nevertheless did everything possible to prevent R1's elopement, and that, by holding it accountable for the failings of its employees, CMS applies an unreasonable strict liability standard. Petitioner thus suggests that, so long as its administrative staff made reasonable efforts to train its staff and contract workers, it should not be accountable for their individual failures. I reject Petitioner's flawed reasoning.

Petitioner correctly notes that the regulation does not impose upon facilities an absolute liability standard. The facility is liable only if it fails to take reasonable steps to prevent foreseeable risks of harm. Windsor at 5; Woodstock at 25-30. But here, R1's elopement was plainly foreseeable; the facility anticipated it, and took some measures to prevent it, including assigning CNA Schwab to monitor her. It was also foreseeable that CNA Schwab would take a dinner break, and the facility should reasonably have had a back-up plan in place. Petitioner suggests that it had such a plan, but is vague about the details. The agency nurse, Z2, apparently had some responsibility, but she was not even aware that R1 was an elopement risk. Nor was she familiar with the facility's alarm systems.

Petitioner concedes that Z2 failed in her obligation to monitor R1's whereabouts, but argues that it could not reasonably have foreseen her inadequacies, having justifiably relied upon her employing agency, Super Nurs, LLC, to ensure that she understood facility procedures. ⁽⁴⁾ Such reliance is misplaced. While facilities are free to contract with outside agencies for professional services, they are still ultimately responsible for ensuring the adequacy of those services. See 42 C.F.R. � 483.75(h)(2). Moreover, since agency nurses are less likely to know a facility's residents and routines, a facility that engages them has a heightened obligation to monitor their qualifications, and to provide them with necessary orientation and supervision. Barn Hill Care Center, DAB CR902, at 21, aff'd, DAB No. 1848 (2002). Petitioner makes much of the fact that its DON twice asked that Z2 attend orientation, but this fact hardly strengthens its case. The facility should have known that Z2 failed to attend the training, and should have corrected that problem.

I recognize that the facility had in place what appears to have been a reasonably effective alarm system; but no alarm system substitutes for effective staff supervision. Asbury Center at Johnson City at 13. From 5:30 p.m., when CNA Schwab left her in the TV lounge, until sometime after 6:00 p.m., when she returned to the facility, no staff person was monitoring R1's activities. Leaving unsupervised for this period a resident at such high risk for elopement falls short of the level of supervision required to satisfy 42 C.F.R. � 483.25(h)(2).

The facility is also accountable for the errors of its employees, including E22's failure to follow facility procedures in responding to an alarm. As the Board noted in Emerald Oaks:

[An] employer cannot disown the consequences of the inadequacy of the care provided by the simple expedient of pointing the finger at [the employee's] fault, since she was the agent of her employer empowered to make and carry out daily care decisions.

DAB No. 1800, at 7 no. 3 (2001). See also Barn Hill, DAB No. 1848, at 18 (no "human error" exception to the regulatory requirements).

I find immaterial the "reasonableness" of E22's surmising that R9 had set off the alarm. Regardless of who set off the alarm, he observed a vulnerable resident outside the facility unsupervised, and took no action to protect her. His failure to act was arguably "reasonable" only because R1 was a new resident, and he did not recognize her. But, ironically, her status as a new resident only increased her risk of elopement. It was therefore particularly important for the facility to advise its staff of her status, which it failed to do. Even if I agreed that E22 acted reasonably, based on the information he had, I would nevertheless fault the facility for failing to provide him the information he needed to protect R1 from accidents.

I note also that the facility disciplined E22 for failing to follow the proper procedure when the door alarm sounded. He was suspended for three days. According to the Employee Disciplinary Report, he should have investigated the residents he observed, and specifically checked to see if they were allowed outside unattended. CMS Ex. 9, at 4, 7; CMS Ex. 14, at 4. As the Board noted in Windsor, a facility's decision to reprimand responsible staff following an accident suggests that the facility recognized that staff failed to exercise adequate supervision. Windsor at 10.

Finally, Petitioner emphasizes that R1 returned to the facility unharmed. This was indeed fortunate, but actual harm is not a prerequisite for a finding of substantial noncompliance under 42 C.F.R. � 483.25(h)(2). As I have noted in a similar context, "critical to preventing accidents is a facility's recognition that a wandering resident might elope, and that a frail and confused resident is at increased risk when outside the facility without supervision." Lake Park Nursing and Rehabilitation Center, DAB CR1341, at 12 (2005). See also 42 C.F.R. � 488.301 (facility is not in substantial compliance if its deficiencies pose the potential for more than minimal harm). Here, R1's departure put her at risk, and that risk was compounded by the facility's proximity to a state highway where the speed limit was 45 mph. That she crossed the highway unsupervised placed her at even greater risk.

Thus, because the facility did not adequately supervise R1, placing her at significant risk of suffering an accident and potentially serious injury, it was not in substantial compliance with 42 C.F.R. � 483.25(h)(2).

C. I have no authority to review the finding of immediate jeopardy.

Because the facility was not in substantial compliance with program requirements, CMS has the authority to impose a remedy, and I have no authority to review CMS's choice, in this case, a per instance CMP. 42 C.F.R. � 488.438(e)(2); 42 C.F.R. � 498.3(b)(13); see also 42 C.F.R. � 488.408(g)(2). Section 498.3(b) of 42 C.F.R. sets out those determinations (called "initial determinations") that are reviewable. The level of noncompliance - here, the immediate jeopardy finding - is reviewable only if a successful challenge would affect either: 1) the range of CMP amounts, or 2) a finding of substandard quality of care that results in the loss of approval of the facility's nurse aide training program.

The penalty imposed here is a per instance CMP, for which the regulations provide only one range ($1,000 to $10,000), so the level of noncompliance does not affect the range of the civil money penalty. 42 C.F.R. � 488.438(a)(2). See Aase Haugen Homes, Inc., DAB CR1273, at 4 (2005), aff'd, DAB No. 2013, at 3 (2006).

With respect to the loss of nurse aide training, an immediate jeopardy finding based on quality of care (42 C.F.R. � 483.25) carries with it a finding of "substandard quality of care" which could result in the loss of approval of a facility's nurse aide training program. 42 C.F.R. �  488.301. However, Petitioner does not have a nurse aide training program, and has not had such a program approved since 1981. CMS Ex. 25 (Berriman Decl.). Thus, the level of noncompliance found here has no impact on any nurse aide training program.

Petitioner acknowledges these limits to my jurisdiction, but complains bitterly that CMS "deliberately" imposed a per instance CMP for the sole purpose of preventing the facility from challenging the level of noncompliance. According to Petitioner, the legislature never intended for CMS to impose such "manipulative and prejudicial tactics when they enacted the regulations," and my declination to review the finding compromises the facility's due process rights "and the laws of equity." P. Resp. at 10. Nevertheless, I have no authority to review Constitutional challenges, and these proceedings are governed by federal statute and regulation, not common law principles of equity. ⁽⁵⁾

D. I find reasonable the imposition of a $3,050 per instance CMP.

CMS argues that Petitioner's hearing request did not challenge the amount of the CMP. In fact, Petitioner's November 25, 2005 hearing request contests "the remedies imposed and/or recommended, including, but not limited to, a per-instance civil money penalty of $3,050." I therefore consider the issue.

CMS imposed a per instance penalty of $3,050, which is at the lower end of the range ($1,000 to $10,000) for per instance penalties, and, relative to the facility's potential liability, a small amount of money. 42 C.F.R. �  488.438(a)(2).

In reviewing the reasonableness of the CMP, I consider whether the record evidence supports the finding that a $3,050 penalty is at a level "reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the other factors involved." Barn Hill Care Center at 21; Community Nursing Home, DAB No. 1807, at 22 (2002); Emerald Oaks at 9; CarePlex of Silver Spring, DAB No. 1683, at 8 (1999). The "other factors involved" include: 1) the facility's history of noncompliance; 2) the facility's financial condition; 3) factors specified in 42 C.F.R. � 488.404; and 4) the facility's degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating factor. 42 C.F.R. � 488.438(f). The factors in section 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility's prior history of noncompliance in general and specifically with reference to the cited deficiencies. ⁽⁶⁾

There is no evidence that the facility has a history of noncompliance. The facility does not claim that its financial condition would be jeopardized if it had to pay a $3,050 CMP.

With respect to the other factors, I find that the deficiency was serious and the staff culpable. R1's safety was jeopardized, not by a single staff error but by multiple errors. Among other failings, the facility effectively left this vulnerable individual unsupervised while the responsible staff member took his dinner break. It allowed an agency nurse to work even though she failed to attend the appropriate orientation, and had not reviewed facility policies and procedures for protecting residents from elopement. When the unsupervised resident managed to leave the facility, other staff did not follow appropriate procedures for responding to the alarm she set off.

In light of these factors, I find reasonable this fairly minimal CMP.

IV. Conclusion

For the reasons discussed above, I find that the facility was not in substantial compliance with program participation requirements, specifically 42 C.F.R. � 483.25(h)(2), on July 5, 2005, when one of its residents eloped from the facility. I find reasonable the $3,050 per instance CMP.

Carolyn Cozad Hughes

Administrative Law Judge

1. I make Findings of Fact and Conclusions of Law (Findings) to support my decision in this case. I set forth each Finding, in italics and bold, as a separate heading.

2. CMS points out apparent discrepancies in the facility instructions to staff: during the July 21, 2005 inservice, staff were instructed not to turn off the alarm until "the situation is under control," which presumably means that the resident has been located. CMS Ex. 19, at 3-4. But the April 2005 inservice omits these instructions. CMS Ex. 18, at 3. For purposes of resolving this motion, however, I accept Petitioner's representation that it consistently instructed staff not to shut off the alarm until the resident was found.

3. Some of the documents submitted set the time of the elopement at 7:00 p.m. P. Ex. 1, at 11; CMS Ex. 17, at 3. There is no dispute that R1 exited the door, setting off the alarm, at 5:45 p.m. See P. Resp. at 5; CMS Br. at 2.

4. Of course, this does not fully explain why Z2 was unaware that R1 was an elopement risk. Although the facility notes that it provided the CNAs with a sheet containing such information, it has not explained how the nurses and other staff were informed. It is undisputed that many staff members (including Z2 and E22) did not know that R1 was an elopement risk.

5. In fact, the facility probably benefits from CMS's decision to limit the CMP in this way. Given the facility's failings, described above, CMS might well have imposed a substantial per diem CMP, where the range only starts at $3,050 per day. Moreover, were the immediate jeopardy determination reviewable, it seems highly unlikely that Petitioner could establish as "clearly erroneous" the conclusion that serious injury, harm or even death is likely when an elderly demented woman elopes, crosses a state highway, and walks along its shoulder.

6. Petitioner asserts that a "genuine issue of material fact exists as to whether the amount of the PICMP is reasonable" (P. Resp. at 12), but does not identify that material fact. I resolve any disputes or ambiguities in Petitioner's favor (e.g. compliance history) and nevertheless conclude, based on the undisputed facts, that a $3,050 CMP is reasonable.