Crestview Parke v. Thompson

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 28, 2004
• Docket: 02-4084
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Crestview Parke Care No. 02-4084 ELECTRONIC CITATION: 2004 FED App. 0196P (6th Cir.) Center v. Thompson et al. File Name: 04a0196p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Geoffrey E. Webster, Columbus, Ohio, for _________________ Petitioner. Robert C. Stephens, UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, CRESTVIEW PARKE CARE X OFFICE OF THE GENERAL COUNSEL, REGION V, CENTER , - Chicago, Illinois, for Respondents. ON BRIEF: Geoffrey E. Petitioner, - Webster, Columbus, Ohio, for Petitioner. Robert C. - No. 02-4084 Stephens, UNITED STATES DEPARTMENT OF HEALTH - & HUMAN SERVICES, OFFICE OF THE GENERAL v. > COUNSEL, REGION V, Chicago, Illinois, for Respondents. , - TOMMY THOMPSON; UNITED MOORE, J., delivered the opinion of the court, in which - MARTIN, J., joined. KENNEDY, J. (pp. 28-31), delivered a STATES DEPARTMENT OF - separate opinion concurring in part and dissenting in part. HEALTH AND HUMAN - SERVICES, - _________________ Respondents. - - OPINION N _________________ On Petition for Review from an Order of the Department of Health & Human Services. KAREN NELSON MOORE, Circuit Judge. Petitioner No. A-02-62. Crestview Parke Care Center (“Crestview”), a skilled nursing facility, appeals an order holding Crestview responsible for a Argued: December 5, 2003 $27,600 civil money penalty (“penalty”). Following several inspections of Crestview’s Cincinnati facility in 1999, Decided and Filed: June 28, 2004 Respondent Centers for Medicare and Medicaid Services (“CMS”) determined that Crestview violated several Before: KENNEDY, MARTIN, and MOORE, Circuit regulations and levied a penalty against Crestview. Crestview Judges. requested a hearing to dispute the penalty. The parties filed briefs and gathered evidence in advance of a hearing, but the ALJ declined to hold an in-person hearing, believing that the written record was sufficient to adjudicate the matter. CMS filed a motion for summary judgment, which the ALJ granted, reasoning that no genuine issues of material fact existed regarding any of Crestview’s alleged acts of noncompliance.

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The ALJ upheld the penalty, finding it to be reasonable. condition demonstrates that they were unavoidable.” Because genuine issues of material fact do exist as to some of 42 C.F.R. § 483.25(c)(1). Resident 68 had two pressure sores the acts of noncompliance, and it was thus improper not to and did not have pressure-relieving devices. Resident 93 was hold an in-person evidentiary hearing, we VACATE the order observed wearing pillowed heel protectors that were and REMAND for an in-person, evidentiary hearing on the contaminated with dried serosanginous drainage. Fourth, the disputed material issues as we outline below. ODH alleged that Crestview failed to “[s]tore, prepare, distribute, and serve food under sanitary conditions,” I. FACTS AND PROCEDURE 42 C.F.R. § 483.35(h)(2), noting seventeen different food- related violations, including dirty equipment, dried food Crestview, a skilled nursing facility, is periodically spills, and potentially botulinus food containers. Fifth, the surveyed by the CMS in order to assure compliance with ODH found that Crestview failed to provide the annual twelve Medicare and Medicaid regulations. On August 12, 1999, the hours of in-service training that were “sufficient to ensure the Ohio Department of Health (“ODH”), which often examines continuing competence of nurse aides,” 42 C.F.R. skilled nursing facilities for CMS, see 42 C.F.R. § 488.20(a), § 483.75(e)(8)(i), for fourteen of the twenty-nine nurse aides completed a Life Safety Code survey of Crestview’s employed at Crestview. Cincinnati facility. The ODH surveyors determined that Crestview violated a federal regulation requiring emergency On August 30, 1999, the ODH informed Crestview that it lighting because Crestview’s emergency generator failed to was noncompliant and recommended to CMS that it impose start. See 42 C.F.R. § 483.70(b)(1). a penalty of $400 per day unless Crestview remedied the problems by October 2, 1999. ODH revisited the facility on The following day, the ODH investigators returned and October 5, 1999. It discovered not only that Crestview had discovered numerous additional infractions. First, the ODH failed to remedy the deficiencies discovered during the found that Crestview had failed to provide “[h]ousekeeping August inspections, but also that it had committed twelve and maintenance services necessary to maintain a sanitary, additional housekeeping violations. CMS imposed the $400 orderly, and comfortable interior.” 42 C.F.R. § 483.15(h)(2). per-day penalty. See 42 U.S.C. § 1395i-3(h)(2)(B)(ii) (giving The surveyors pinpointed fifteen different infractions, the HHS Secretary the authority to impose penalties not to including a hole in the tile floor of a restroom, missing ceiling exceed $10,000 per day of noncompliance). A fourth tiles, and dirty showers. Second, the ODH found that some inspection on October 21, 1999, demonstrated that Crestview residents did not receive care and services necessary “to attain had remedied the problems and achieved substantial or maintain the highest practicable physical, mental, and compliance. On November 19, 1999, CMS informed psychosocial well-being, in accordance with the Crestview that it owed $27,600 for sixty-nine days of comprehensive assessment and plan of care. 42 C.F.R. noncompliance. § 483.25. Specifically, two residents (Residents 44 and 90), needed elbow or heel protectors to ward off pressure sores, Crestview appealed its penalty on December 30, 1999, in but were observed lying on their beds without these accordance with HHS regulations. See 42 C.F.R. protectors. Third, Crestview failed to ensure that “[a] resident §§ 498.40(a)(1), 498.5(k). The case was assigned to an ALJ, who enters the facility without pressure sores does not but just before the filing of the final exhibit and witness lists develop pressure sores unless the individual’s clinical in December 2000, the case was reassigned to a different ALJ, No. 02-4084 Crestview Parke Care 5 6 Crestview Parke Care No. 02-4084 Center v. Thompson et al. Center v. Thompson et al.

who set a hearing date for September 18, 2001. The parties which responded to Crestview’s “means to pay” argument, participated in a prehearing telephone conference on and also asserted that Crestview waived its “means to pay” September 10, 2001, during which the ALJ admitted all the argument because it did not discuss its financial condition in exhibits that had already been tendered into evidence. The its original hearing request. ALJ attempted to delve deeper into the exact nature of Crestview’s claims, but found that Crestview’s attorneys were On December 12, five days before receiving CMS’s reply unable to answer many of her questions regarding the brief and motion for summary judgment, the ALJ informed contours of its appeal. the parties that after reviewing the prehearing briefs and accompanying declarations, she had “determined that an in- Tragedy followed on September 11th, forcing the person hearing is unnecessary and that this matter can be postponement of both the prehearing conference call and the decided on the basis of the written submissions, declarations, hearing itself. The parties resumed their prehearing and exhibits,” because the written record demonstrated that teleconference on September 19, 2001. The ALJ learned “certain material facts . . . are not in dispute.” J.A. at 277 during the phone call that the parties had failed to stipulate to (ALJ Letter 12/12/01). A week later, Crestview objected to any factual matters. The ALJ consequently ordered the the cancellation of the hearing. parties to draft prehearing briefs that would more clearly outline the facts and the legal arguments to be made at the The ALJ granted CMS’s motion for summary judgment on hearing. The ALJ also asked the parties to append all witness February 4, 2002, concluding that the facility was not in affidavits and declarations to these prehearing briefs. The substantial compliance and that the penalty was reasonable. ALJ stated clearly that the record at this point was closed. At the outset, the ALJ rejected Crestview’s argument that the cancellation of the in-person hearing was improper. The ALJ The parties then exchanged prehearing briefs. CMS filed then assessed the evidence on each of the alleged deficiencies, its prehearing brief on October 19, 2001, asking for a ruling that the facility was not in substantial compliance. In summary affirmance of the penalty because there were no analyzing the reasonableness of the amount of the penalty, the disputes of material fact. Crestview filed its prehearing brief ALJ ruled that Crestview had not properly presented the issue on November 29, 2001. It challenged all of the facts as of its ability to pay because Crestview had not discussed its presented by CMS and attached declarations from Julie financial condition in its request for a hearing. The ALJ also Hrybiniak, the Regional Administrator for Crestview and refused to admit the declaration of Bert Cummins because it Alejandro Bayalan, the Food Service Manager at Crestview. had not been listed as an exhibit before December 4, 2000. Crestview also filed a declaration from accountant Bert Partially taking into account the facility’s history of failing to Cummins, who had not been previously listed as a witness. satisfy several regulations, the ALJ concluded that the amount Cummins’s declaration purported to show that Crestview was of the penalty was reasonable. Crestview appealed the unable to pay the penalty. CMS filed its Reply Brief on decision to the HHS Departmental Appeals Board (“DAB”), December 17, 2001, and simultaneously filed a Motion for which affirmed the ALJ’s decision in its entirety on July 24, Summary Judgment, asserting that “there is no material issue 2002. See 42 C.F.R. §§ 488.408(g)(1), 498.5(k) (establishing of fact, and an adequate factual and legal basis clearly exists the appeals process). Crestview petitioned us to review the for the [penalty] that was imposed.” Joint Appendix (“J.A.”) DAB’s decision on October 15, 2002. We have jurisdiction at 279 (Mot. Sum. J.). CMS attached two new declarations, No. 02-4084 Crestview Parke Care 7 8 Crestview Parke Care No. 02-4084 Center v. Thompson et al. Center v. Thompson et al.

over the appeal of a final DAB decision pursuant to 42 U.S.C. demonstrate that a genuine issue exists, as there must be § 1320a-7a(e). See also 42 C.F.R. § 498.90(a)(1). evidence on which the factfinder, in this case the ALJ, could reasonably find for the nonmoving party. Anderson v. Liberty II. ANALYSIS Lobby, Inc., 477 U.S. 242, 251 (1986). Crestview presents several different issues on appeal. First, B. Crestview’s Procedural Challenges it alleges various procedural errors. Second, it claims that the ALJ improperly cancelled the in-person hearing for the same Crestview unavailingly asserts that the ALJ made several reason that a grant of summary judgment was unjustified: procedural errors unrelated to the denial of the in-person there are genuine disputes of material fact for several of the hearing. First, Crestview asserts that “[the ALJ]’s biased and alleged deficiencies. Third, it contends that the ALJ erred in prejudicial” behavior merits reversal. Pet. Br. at 13. analyzing the reasonableness of the amount of the penalty Crestview apparently believes that the ALJ blamed Crestview because the ALJ refused to consider Crestview’s “ability to for several long delays in the proceedings. This argument is pay” argument and the ALJ accounted for the facility’s past without support. The ALJ blamed both parties for the long history of noncompliance. While Crestview may be incorrect delay between the closing of the record and the scheduling of about its first and third arguments, it is correct that the ALJ the in-person hearing. J.A. at 23 (ALJ Decision). improperly cancelled the hearing because there are certain Additionally, the ALJ was relatively lenient with Crestview; genuine issues of material fact that warrant a hearing as Crestview was given a two-day extension for the filing of its explained below. Consequently, we vacate the ALJ’s order prehearing brief and a two-week extension for the filing of its and remand for further proceedings. brief in opposition to summary judgment, even though Crestview had clearly missed the twenty-day window for A. Standard of Review filing a response to CMS’s summary judgment motion. We review de novo a grant of summary judgment. Logan Second, Crestview suggests that it was denied an adequate v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001). chance to respond to CMS’s summary judgment motion Summary judgment is appropriate “[i]f the pleadings, because it was not permitted to submit any evidence in depositions . . . and admissions on file, together with the response to issues raised by CMS. Pet. Br. at 7. It is not clear affidavits . . . show there is no genuine issue as to any precisely what new issues CMS raised in its summary material fact and the moving party is entitled to a judgment as judgment motion to which Crestview wished to respond via a matter of law.” Fed. R. Civ. P. 56(c). CMS, as the movant, new affidavits or declarations, excluding the issue of has the burden of establishing that no genuine issues of Crestview’s ability to pay, which was initially raised by material fact exist. Logan, 259 F.3d at 566. The evidence Crestview itself. CMS did not receive any evidentiary must be viewed in the light most favorable to the nonmoving advantage. The ALJ had forbidden both parties from adding party, but that party “must set forth specific facts showing new exhibits after December 4, 2000, and the ALJ that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); specifically discounted the new declarations that accompanied Richards v. Consol. Rail Corp., 330 F.3d 428, 432 (6th Cir. CMS’s reply brief. 2003). The mere existence of a “scintilla of evidence” supporting the nonmoving party is not sufficient to No. 02-4084 Crestview Parke Care 9 10 Crestview Parke Care No. 02-4084 Center v. Thompson et al. Center v. Thompson et al.

Third, Crestview suggests that CMS’s motion for summary record.” Chem. Waste Mgmt., Inc. v. EPA, 873 F.2d 1477, judgment was “untimely and unauthorized.” Pet. Br. at 9. 1481-82 (D.C. Cir. 1989); 1 Richard J. Pierce, Administrative There is no basis for this claim, as there is nothing to prevent Law § 8.2, at 536-39 (collecting cases) (4th ed. 2002). The CMS from filing such a motion with its reply brief or at any Supreme Court has also implied that formal adjudication other time. Furthermore, CMS’s prehearing brief asked ALJ procedures are only necessary when a statute uses the magic Hughes to grant CMS a summary affirmance, putting words “on the record.” Cf. United States v. Fla. E. Coast Ry., Crestview on notice of what was to come. 410 U.S. 224, 237-38 (1973) (holding that formal rulemaking procedures prescribed by 5 U.S.C. §§ 556, 557 are required C. The ALJ’s Summary Disposition of Crestview’s Claim only when a statute mandates that rules be made “on the record”); Vt. Yankee Nuclear Power Corp. v. Natural Res. Evaluating Crestview’s claim that it had a right to an in- Def. Council, Inc., 435 U.S. 519, 548 (1978) (ruling that person hearing plunges us deep into the thicket of statutes, courts cannot require an agency to use more formal published regulations, and interpretive rules governing rulemaking procedures than those required by statute); PBGC administrative hearings conducted by CMS. The first v. LTV Corp., 496 U.S. 633, 654-55 (1990) (upholding an question is whether the ALJ could resolve Crestview’s appeal informal agency adjudication without an oral hearing when of the penalty without conducting an in-person hearing. The the statute did not require a hearing to be on the record). second subsequent question is whether, assuming an in- person hearing is not always required, the ALJ properly The statute authorizing the imposition of penalties on denied Crestview an in-person hearing in this particular case. skilled nursing facilities, such as Crestview, requires CMS to We answer the first question in the affirmative, but the second hold a hearing “on the record.” If skilled nursing facilities in the negative: HHS’s interpretive rule for summary fail to meet an “applicable requirement,” the HHS Secretary proceedings is valid, but the ALJ misapplied it to Crestview’s “may impose a civil money penalty in an amount not to appeal. exceed $10,000 for each day of noncompliance.” 42 U.S.C. § 1395i-3(h)(2)(B)(ii). “The provisions of section 1320a-7a 1. The Right to an In-Person Hearing of this title (other than subsections (a) and (b)) shall apply to a [penalty] . . . in the same manner as such provisions apply The starting point is the Administrative Procedure Act to a penalty or proceeding under section 1320a-7a(a) of this (“APA”), which establishes a detailed set of procedures for title.” Id. The referent section provides, formal agency adjudications. These procedures mirror the elements of a judicial trial and establish the proper method of The Secretary shall not make a determination adverse to conducting an oral evidentiary hearing. See 5 U.S.C. any person under subsection (a) or (b) of this section §§ 554(a), 556(d), 557. Agencies need only employ this set until the person has been given written notice and an of formal adjudication procedures if there is an “adjudication opportunity for the determination to be made on the required by statute to be determined on the record after record after a hearing at which the person is entitled to opportunity for an agency hearing.” 5 U.S.C. § 554(a). be represented by counsel, to present witnesses, and to Lower courts have explicitly held that a formal adjudication cross-examine witnesses against the person. featuring an oral evidentiary hearing is required by the APA only when a statute explicitly calls for a hearing “on the No. 02-4084 Crestview Parke Care 11 12 Crestview Parke Care No. 02-4084 Center v. Thompson et al. Center v. Thompson et al.

42 U.S.C. § 1320a-7a(c)(2) (emphasis added). The statute adjudicatory hearing, which includes an in-person component. clearly includes the “magic words” that invoke the panoply of Section 498.66 states, “If the affected party waives the right procedures described by the formal-adjudication provisions to appear and present evidence, the ALJ need not conduct an of the APA. oral hearing,” except during certain circumstances that are inapplicable here. Id. at § 498.66(b). This provision In conjunction with the use of the statutory language “on powerfully implies that if the affected party does not waive the record,” the regulations regarding CMS hearings strongly the right to present evidence, the ALJ must conduct an oral imply that an in-person, oral evidentiary hearing is generally hearing. Other regulations lead to the same conclusion. They required. Under the statutory authority to publish rules and fix a time and place for the hearing and a method for regulations, see 42 U.S.C. § 1302(a), HHS has promulgated changing the time and place. Id. at §§ 498.52, 498.53. They regulations concerning administrative hearings. The describe the conduct of the hearing. Id. at §§ 498.60(a) (“The regulations establish “procedures for reviewing initial hearing is open to the parties and their representatives . . . .”); determinations that CMS makes.” 42 C.F.R. § 498.3(a)(1). 498.60(b)(1) (“The ALJ . . . receives in evidence the “[I]nitial determinations” encompass: (1)“a finding of testimony of witnesses and any documents that are relevant noncompliance that results in the imposition of a remedy and material.”); 498.60(b)(3) (“The ALJ decides the order in specified in § 488.406 of this chapter,” id. at § 498.3(b)(13), which the evidence and the arguments of the parties are and (2) “[t]he level of noncompliance found by CMS in a presented and the conduct of the hearing.”). The regulations [skilled nursing facility] or [nursing facility], but only if a also contain procedures for the receipt of evidence, id. at successful challenge on this issue would affect . . . the range § 498.61, and rules governing witness testimony. Id. at of [penalty] amounts that CMS could collect.” Id. at § 498.62. § 498.3(b)(14)(i); see also id. at § 488.406 (granting CMS authority to levy penalties). The regulations further state, HHS has created an internal procedure that provides an “Under the circumstances specified in § 431.153 (g) and (h) alternative to in-person, oral hearings. The HHS procedure of this chapter, [a nursing facility] has a right to a hearing reads, before an ALJ, to request Board review of the hearing decision, and to seek judicial review of the Board's decision.” An in-person hearing (i.e., a hearing at which witnesses Id. at § 498.5(k); see also id. at § 488.330(e)(3)(ii) (stating are called and testify) is not the only vehicle for the that the “provisions of part 498 . . . apply when the following [ALJ] to hear and decide the case. If, after giving the providers,” including skilled nursing facilities, “request a parties the opportunity to present their views, the judge hearing on . . . certification of noncompliance leading to an determines that there are no genuine issues of material enforcement remedy”). fact, the judge might decide the case based on the undisputed facts and the applicable law. If there are Subpart D of part 498 establishes the regulations for CMS genuine issues of material fact which can be decided on hearings and strongly suggests that oral hearings are required. the basis of documentary evidence, the judge might Only one regulation in this subpart actually uses the term proceed without an in-person hearing. “oral hearing,” but the statutory requirement that hearings be “on the record” implies that the term “hearing,” as used Dep’t of Health & Human Servs., Dep’t Appeals Bd., throughout this subpart of the regulations, refers to a formal Civil Remedies Div., Procedures, at 1, available at No. 02-4084 Crestview Parke Care 13 14 Crestview Parke Care No. 02-4084 Center v. Thompson et al. Center v. Thompson et al.

http://www.hhs.gov/dab/civil/procedurescms.html (last in a trial, it would be bizarre if administrative agencies, which visited Feb. 3, 2004). This rule constitutes an interpretive are in many respects modeled after the federal courts and rule that is “issued by an agency to advise the public of the which indeed often have more informal proceedings than agency’s construction of the statutes and rules which it federal courts, could not follow a similar rule. See Fed. R. administers.” Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, Civ. P. 56; 1 Richard J. Pierce, Administrative Law § 8.3, at 99 (1995) (quotation omitted). “Interpretive rules do not 542 (“Even when an agency is required by statute or by the require notice and comment[;] . . . they also do not have the Constitution to provide an oral evidentiary hearing, it need do force and effect of law and are not accorded that weight in the so only if there exists a dispute concerning a material fact.”). adjudicatory process.” Id. We generally give substantial It may make as good, if not more, policy sense to have a deference to an agency’s interpretations of its own standard for summary judgment in HHS administrative regulations. St. Francis Health Care Ctr. v. Shalala, 205 proceedings as it does to have one in federal court F.3d 937, 943 (6th Cir. 2000). However, this deference is proceedings. See Puerto Rico Aqueduct & Sewer Auth. v. limited when an interpretation is “plainly erroneous or EPA, 35 F.3d 600, 605-07 (1st Cir. 1994) (describing the inconsistent with the [published] regulation.” Id. at 944 structure and validity of administrative summary judgment (quoting Harris County Hosp. Dist. v. Shalala, 64 F.3d 220, and stating, “summary judgment often makes especially good 221 (5th Cir. 1995)). The reason for this limited deference is sense in an administrative forum, for, given the volume of to prevent agencies from gaming the rulemaking provisions matters coursing through an agency’s hallways, efficiency is of the APA, see 5 U.S.C. § 553, by creating interpretive perhaps more central to an agency than to a court”). regulations that undercut regulations passed through notice- Furthermore, the Supreme Court has upheld the use of and-comment rulemaking. summary procedures in other administrative contexts, although only when a party fails to convince an agency at the Our deference to the HHS’s interpretive rule, which is akin threshold that the agency should waive a rule or regulation to the summary judgment standard contained in Federal Rule that would otherwise prevent the party from adjudicating its of Civil Procedure 56, depends on whether the interpretive claim. Weinberger v. Hynson, Westcott & Dunning, Inc., 412 rule can be reconciled with the CMS regulations that carry the U.S. 609, 621 (1973); Fed. Power Comm’n v. Texaco, Inc., force of law. On its face, the internal procedure appears 377 U.S. 33, 39-45 (1964). Therefore, HHS’s interpretive inconsistent with the statutory and regulatory provisions rule allowing ALJs to grant summary judgment without an in- because the procedure offers an alternative to an in-person person hearing is valid. hearing, yet the plain meaning of “on the record” in the statute and the implications of the regulations suggest that 2. The ALJ Erred By Granting Summary Judgment there is only one vehicle for an ALJ to decide a case: an oral Without an In-Person Hearing evidentiary hearing. While HHS’s interpretive rule is valid, we hold that it was Nonetheless, it would seem strange if disputes could not be improperly applied here, and thus summary judgment was not decided without an oral hearing when there are no genuine proper. Consequently, we remand this case to the ALJ for an issues of material fact. Given that federal district courts can oral hearing. The ALJ erred both procedurally and decide cases as a matter of law without an oral hearing when substantively in deciding the case without an oral hearing. it is clear there are no genuine material disputes to be resolved No. 02-4084 Crestview Parke Care 15 16 Crestview Parke Care No. 02-4084 Center v. Thompson et al. Center v. Thompson et al.

a. Procedural Error basis, as is required. Crestview’s response that the generator had always worked before the “unknown and unexplained,” The procedure employed by the ALJ was inconsistent with J.A. at 263 (Hrybiniak Decl.), failure to start in front of the the interpretive rule. The ALJ canceled the in-person hearing inspector does not contradict the basic observation that the on December 12, 2001, after the record had been closed and generator’s malfunction deprived Crestview of the ability to both parties had filed prehearing briefs, but before any motion provide emergency power. for summary judgment had been filed. The prehearing briefs, to which all affidavits and declarations were appended, were Second, there is no factual dispute regarding all but one of designed only to give the ALJ a better idea of what to expect the twenty-seven alleged housekeeping violations. To during the hearing, to state the facts that each party intended counter the surveyors’ reports of these violations, Crestview to prove at the hearing, and to explain how the evidence presented evidence of cleaning schedules, procedures, and would help to prove these facts. See J.A. at 143 (Order to duties in an attempt to demonstrate that the facility is “clean, Submit Briefing). There was no warning that these briefs safe, and well maintained.” J.A. at 264 (Hrybiniak Decl.). would be used to determine whether an in-person hearing This evidence established only that Crestview failed in the should occur, and the phrasing of the order requesting the execution of its procedures, because the surveyors’ briefs did little to reduce the expectancy of a hearing. observations showed that the facility was noncompliant. Crestview’s contention that the facility may be observed as b. Substantive Errors unclean at any time because the facility is constantly being used does not rebut the evidence of noncompliance amassed Summary disposition of this case without an oral hearing during the survey. was also improper because there were indeed genuine issues of material fact that may have impacted the determination of Third, Crestview has not offered evidence challenging most whether the penalty was reasonable. The penalty was levied of the alleged food-service deficiencies. The ODH observed against Crestview because of multiple different infractions. seventeen different violations of the regulation that skilled We hasten to note that Crestview has not disputed every nursing facilities “[s]tore, prepare, distribute, and serve food alleged deficiency. While Crestview challenges each aspect under sanitary conditions.” 42 C.F.R. § 483.35(h)(2). While of the grant of summary judgment, which held that the Crestview challenged seven of the alleged violations, offering penalty was reasonable, it is clear that for several of the acts alternative rationales for the infractions, Crestview presented of noncompliance there are no disputes or genuine issues of no evidence challenging the other ten deficiencies aside from material fact. general statements of Crestview’s diligence in storing and preparing food in a sanitary fashion, which do little to contest (i) Undisupted Deficiencies specific claims of noncompliance. First, there was no dispute that Crestview failed to provide Fourth, Crestview presented no evidence to contest its adequate emergency power. During the August 12, 1999, failure to provide at least twelve hours of in-service training survey, the Crestview staff was unable to start the emergency each year for its nurse aides. 42 C.F.R. § 483.75(e)(8)(i). generator on three separate occasions. There was also no Crestview’s 1998 records indicate that fourteen of twenty- indication that the generator had been tested on a weekly nine nurse aides received less than twelve hours of in-service No. 02-4084 Crestview Parke Care 17 18 Crestview Parke Care No. 02-4084 Center v. Thompson et al. Center v. Thompson et al.

training in that year. Crestview did not offer any evidence when evaluating whether summary judgment should be that these aides actually received the statutorily required granted. Nonetheless, the ALJ concluded that Crestview still training.1 violated the applicable regulations because the large number of undisputed observations demonstrated that Crestview was (ii) Disputed, but Nonmaterial Deficiencies not in substantial compliance with 42 C.F.R. §§ 483.15, 483.35. As a matter of law, we cannot say that the ALJ erred Factual disputes attend several of the other alleged acts of in reaching this conclusion: the cumulative undisputed noncompliance, but some of these disputes are not material. infractions suffice to show that Crestview stood in violation The initial two disputes involve the cleanliness of the facility of the guiding regulations, even though some of the instances environment in general, see 42 C.F.R. § 483.15(h)(2), and of of unsanitary conditions may not have occurred. the dietary services in particular, see 42 C.F.R. § 483.35. Summary judgment as to the violation of these regulations (iii) The Alleged Disputes Regarding Patient Care was nonetheless proper because these disputes are not material. First, of the twenty-seven alleged sanitary The most serious potential genuine disputes of material fact housekeeping violations, there is a factual dispute concerning concern the care of four patients at Crestview’s facility the cleanliness of the ice-machine. Second, there is a factual (Residents 44, 68, 90, and 93). For Residents 44 and 90, dispute regarding seven of the seventeen food preparation Crestview allegedly failed to “provide the necessary care and infractions. In its opinion, the ALJ assumed that Crestview services to attain or maintain the highest practicable physical, had not committed these disputed violations, as is proper mental, or psychosocial well-being, in accordance with the comprehensive assessment and plan of care.” 42 C.F.R. § 483.25. The ODH surveyors observed Residents 44 and 90 1 Instead, Crestview argued that, as a new owner who acquired without elbow and heel protectors at multiple times during the control on August 1, 1999, it is not respo nsible fo r the previous ope rator’s days of observation, even though physicians had ordered the employees and whether those employees received sufficient training. protectors to be worn at all times because of the high danger This argum ent fails as a matter o f law, because “[a] facility may no t avoid of pressure-sore development.2 Crestview responds by a remedy on the basis that it underwent a change of ownership,” 42 C.F.R. arguing: 1) the residents did not “need” the protectors § 488 .414 (d)(3 )(i); see also 42 C.F.R. § 488 .438 (f) (includ ing facility’s past culpability as a factor in determining am ount o f penalty); CarePlex because the protectors would not prevent the development of of Silver Spring v. Health Care Fin. Admin., Docket No. A-98-94, CR536, unavoidable sores and because other treatments, such as the DAB No. 1683, 1999 WL 985363 (H.H.S.) at 7 (Apr. 13, 1999) (“ [A] use of pressure-relief mattresses, were employed to prevent facility’s history remains a relevant consideration after a change of the development of sores; and 2) the protectors were not ownership, but do es not foreclo se a new owner from rebutting the presu mptio n that the facility’s history remains predictive of likely future compliance.”). In purchasing the facility, Crestview assumed 2 respo nsibility for the noncomp liance history of its predecesso r-in-interest, It is unclear whether the physician’s ord ers referred to by both and such p revious non com pliance is one fa ctor that CMS may consider parties and the ALJ constitute the “plan of care.” The exhibits in the Joint in assessing the amount of a penalty even though Crestview may not have Appendix to which the parties refer (Resident 44’s file is Crestview been directly responsible for the failure to abide by the guiding Exhibit 1, Resident 90’s file is Crestview E xhibit 2) contain do cuments regulations. Whatever diligence Crestview may have exhibited in moving respe ctively entitled “Physician’s Order” (which mentions the phrase towards compliance serves only to rebut the presumptio n that a facility’s “plan of care”) and “Care Plan.” See J.A. at 342-44, 347-49 (Resident 44 history tends to predict its future behavior. File); J.A. at 356-59, 367-74 (R esident 90 File). No. 02-4084 Crestview Parke Care 19 20 Crestview Parke Care No. 02-4084 Center v. Thompson et al. Center v. Thompson et al.

observed on the patients because the residents moved, shifted, which required a facility to “ensure that . . . [e]ach resident or displaced the protectors or because the protectors were receives adequate supervision and assistance devices to removed by staff to provide treatment. J.A. at 252-54 (Pet. prevent accidents.” Id. at 589 (quoting 42 C.F.R. Prehearing Br.); J.A. at 264-65 (Hrybiniak Decl.). We § 483.25(h)(2)). We affirmed the DAB’s imposition of a emphatically reject Crestview’s first argument. Crestview penalty. Id. at 590. In the administrative decision below, the cannot defend an alleged failure to adhere to a physician’s DAB had held “that the regulatory standard does not amount orders by contending that those orders are incorrect or to strict liability or require absolute success in an obviously misguided. If the staff of a facility believes that a resident difficult task . . . [and] that an element of reasonableness is does not need protectors or some other treatment ordered by inherent in the regulation’s requirements.” Woodstock Care a physician, the proper course of action is to rework the Ctr. v. Health Care Fin. Admin, Docket No. A-2000-32, CR patient’s comprehensive plan of care in a venue other than 623, DAB No. 1726, 2000 WL 900609 (H.H.S.), at 19 (May HHS’s administrative appeals process. Barring such revision, 30, 2000) (quotation omitted). Subsequent DAB decisions a facility must follow the plan of care. have confirmed this holding as it applies to § 483.25(h)(2), the regulation governing accident prevention. Josephine Crestview’s second argument is different, because it posits Sunset Home v. CMS, Docket No. A-03-85, CR 1038, DAB that the patients themselves interfered with the No. 1908, 2004 WL 714959, at 10 (Feb. 9, 2004) (affirming implementation of a physician’s order. Crestview did not Woodstock and listing other cases that decline to impose strict dispute that the protectors were not on the residents, but rather liability). At least one ALJ has also ruled that strict liability presented evidence, solely in the form of an administrator’s does not control § 483.25(m)(2). See Living Ctr. West v. affidavit, that it did not violate § 483.25 because the residents CMS, Docket No. C-00-844, CR 988, 2002 WL 31906315 moved or shifted the protectors, the residents were (H.H.S.), at 9 (Dec. 18, 2002) (ruling that “[a]bsent . . . a uncooperative with care, or the staff removed to protectors to regulation or ruling of strict liability for any ‘missed dose’” provide other treatment. This evidence suggests not that the under 42 C.F.R. § 483.25(m)(2), the factual circumstances of doctor’s orders were inappropraite, but rather that Crestview the deficiency must be considered). did not fully execute them because of patient interference or because of the necessity of other intervening treatments. The lack of strict liability in § 483.25(h) does not Consequently, we must assess whether the mere fact that the automatically mean that a violation of the general language of surveyors saw two patients without heel protectors, which § 483.25 is not a strict-liability infraction, but the use of the were supposed to be worn at all times, by itself is a violation word “practicable” in § 483.25 suggests that a party can offer of § 483.25. In other words, is Crestview strictly liable such reasons for the failure to adhere to a comprehensive plan of that it cannot offer reasons for the observed deviations from care. The regulation employs the phrase “highest practicable the comprehensive plan of care? physical, mental, and psychosocial well-being,” 42 C.F.R. § 483.25 (emphasis added), which suggests that a There is, unfortunately, not a clear answer. In our lone case reasonableness standard inheres in the regulation. Similar to evaluating § 483.25, Woodstock Care Ctr. v. Thompson, 363 the word “adequate” in § 483.25(h)(2), “practicable” F.3d 583 (6th Cir. 2003), we noted that the HHS DAB did not intimates that it is possible for a petitioner to show that there employ a strict-liability standard when evaluating whether a provider achieved compliance under a subsection of § 483.25, No. 02-4084 Crestview Parke Care 21 22 Crestview Parke Care No. 02-4084 Center v. Thompson et al. Center v. Thompson et al.

was a justifiable reason for the violation of § 483.25.3 clinically unavoidable. Crestview also asserted that Resident Lacking any other guidance from HHS aside from its 68 rested on a pressure-relieving mattress to help avoid statements in Woodstock and progeny, we conclude that pressure sores and that the pressure sore observed on the left § 483.25 is not a strict-liability regulation. elbow was successfully treated within thirty days. J.A. at 254 (Pet. Prehearing Br.); J.A. at 265 (Hrybiniak Decl.). As Crestview has presented some evidence that Residents 44 regards Resident 93, Crestview presented evidence that the and 90 were observed without their ordered skin protectors “dirty” protector reapplied to Resident 93’s heel never made because the residents removed or shifted the protectors or the contact with his skin, because his foot was rebandaged, such staff members removed the protectors to provide other that the allegedly “dirty” protector did not contribute to the treatment. Crestview’s evidence in this vein is not strong, development of any pressure sores. J.A. at 255 (Pet. chiefly because Crestview has failed to point to any patient Prehearing Br.); J.A. at 265 (Hrybiniak Decl.). Crestview did records or preserved staff observations of such behavior, but not offer any evidence to dispute the surveyor’s observation the relative weakness of the evidence in comparison with the that a dirty heel protector was earlier applied directly against observations by the ODH surveyors is not a proper Resident 93’s open pressure sore before the nurse rebandaged consideration on summary judgment. Upon remand, the ALJ the sore and placed the dirty protector against the clean may conclude in fact that Crestview has not proven it acted bandage. reasonably in failing to adhere to these residents’ plans of care. Nonetheless, taking the evidence in the light most Crestview appears not to dispute that Resident 68 was not favorable to Crestview, a genuine dispute of material fact wearing heel protectors, but such a “concession” does not exists regarding the violation of § 483.25. Summary negate the existence of a genuine dispute of material fact. judgment without an in-person hearing on the issue of the The evidence as presented, and taken in the light most asserted violations involving these two residents was thus favorable to Crestview, shows that Crestview took measures improper. to halt the development of avoidable pressure sores and to promote the healing of existing sores. Crestview claims that For Residents 68 and 93, Crestview was cited for failing to the pressure sores were unavoidable and that it succeeded in prevent the development of avoidable new pressure sores and treating other pressure sores affecting Resident 68. Whether to provide the necessary treatment to promote healing of these sores were unavoidable and whether Crestview preexisting sores. 42 C.F.R. § 483.25(c)(2). To counter the succeeded in preventing and treating the sores are factual observations of pressure sores on Resident 68, Crestview questions that should not have been resolved in a summary introduced evidence that Resident 68’s pressure sores were fashion without a hearing. CMS certainly presented evidence that Crestview violated 42 C.F.R. § 483.25(c)(2), but CMS’s evidentiary effort with regards to Resident 68 only reinforces 3 our conclusion that summary judgment (and thus disposition It is possible that adhering to a plan of care pursuant to the general language of § 483.25 may conflict with other regulations incumbent upon without a hearing) is improper in the face of disputes of a facility. For example, if a competent patient consistently refuses to wear material fact. pro tectors, the facility may not be able to force that patient to do so because 42 C.F.R. § 483.15 mandates that a “resident has the right to . . . [m]ake choices about aspects of his or her life in the facility that are The same cannot be said of Crestview’s evidence regarding significant to the resident.” 42 C.F.R. § 483.15(b)(3). Resident 93. Crestview has failed to dispute the surveyor’s No. 02-4084 Crestview Parke Care 23 24 Crestview Parke Care No. 02-4084 Center v. Thompson et al. Center v. Thompson et al.

observation that a dirty heel protector had been applied D. The Amount of the Penalty directly against an open pressure sore. That the same dirty heel protector was later reapplied over clean bandages does There are two issues germane to the distinct issues of the not remedy the initial instance of unclean treatment of reasonableness of the penalty amount: (1) Crestview’s ability pressure sores. In evaluating Crestview’s noncompliance to pay and (2) whether the ALJ can consider the facility’s with § 483.25(c)(2), the ALJ did not consider the history of noncompliance in evaluating the reasonableness of appropriateness of applying the dirty heel protector to the a penalty levied against a new owner. resident’s bandaged feet, but rather focused on the initial application of the protector to an open sore. Because 1. Ability to Pay Crestview failed to challenge this observation, there is no genuine dispute of material fact regarding the violation of Crestview asserts that the imposition of a $400 per-day § 483.25(c)(2) with regards to Resident 93. penalty was unreasonable because it cannot afford to pay the penalty. Crestview’s argument fails for two reasons. First, c. Conclusion the ALJ justifiably refused to evaluate this claim because Crestview did not raise it in its initial hearing request. In its In sum, the ALJ’s error in applying the HHS rule that hearing request, Crestview never mentioned its financial governs the cancellation of in-person hearings sprang from its condition, in derogation of the regulation that hearing misapplication of the summary judgment standard, and the requests must identify the specific issues with which the party dissent falls into the same trap. In evaluating whether disagrees. 42 C.F.R. § 498.40(b); see Cmty. Nursing Home summary judgment is proper, we do not weigh the evidence, v. CMS, Docket No. A-01-86, CR 770, DAB No. 1807, 2002 but rather view the evidence in the light most favorable to WL 125182 (H.H.S.), at 9 (Jan. 11, 2002) (holding that Crestview to divine the existence of a genuine dispute of untimely arguments regarding ability to pay are deemed material fact. With regards to the care of Patients 44, 68, and waived). Crestview disingenuously charges that the ALJ 90 the ALJ, and the dissent, evaluate the strength of spurned Crestview’s financial-condition argument even Crestview’s evidence relative to CMS’s evidence, but it is though CMS raised the issue of ability to pay in its motion for clear such a comparison is improper at this stage of the summary judgment, but such protestations ignore the reality proceedings. Crestview offers evidence and several different that CMS discussed ability to pay only in response to arguments for why its actions were in compliance with the Crestview’s novel introduction of the argument in its applicable regulations, and CMS proffers different evidence: prehearing brief. this is a factual dispute at its essence. This factual dispute makes the cancellation of an in-person hearing improper, but Second, given that the ALJ properly refused to admit the it does not prevent the ALJ from ruling against Crestview Cummins declaration (because it was tendered after the upon remand. In reexamining this case, the ALJ may closing of the record), Crestview presented no evidence of an conclude that a $400-per-day penalty is reasonable. The ALJ inability to pay. Crestview did not introduce the Cummins should determine whether the resolution of the disputed declaration until nearly a year after the parties exchanged deficiencies in juxtaposition with the deficiencies for which exhibit and witness lists and the record was considered Crestview is undeniably responsible justify the enforcement closed. Crestview’s arguments that CMS gained an unfair of the penalty. advantage because CMS submitted additional declarations to No. 02-4084 Crestview Parke Care 25 26 Crestview Parke Care No. 02-4084 Center v. Thompson et al. Center v. Thompson et al.

rebut Cummins’s declaration falls flat because ALJ Hughes that such history is no longer a valid predictive factor of excluded CMS’s new evidence, as well as Crestview’s. the facility’s ability to achieve and maintain compliance Moreover, even if Cummins’s declaration were a part of the (for example, following a change of ownership where the record, summary judgment was still proper. While new owner “cleans house”) the burden of proof is on the Cummins’s declaration suggests that Crestview in fact was new owner to demonstrate that poor past performance no suffering from heavy losses, “financial losses, even if they are longer is a predictive factor. severe, are not enough by themselves to establish an inability of a provider to pay a civil money penalty.” Wellington Medicare and Medicaid Programs; Survey, Certification and Specialty Care & Rehab. Ctr. v. Health Care Fin. Admin., Enforcement of Skilled Nursing Facilities and Nursing Docket No. C-97-252, CR548, 1998 WL 673818 (H.H.S.), at Facilities, 59 Fed. Reg. 56,116, 56,174 (Nov. 10, 1994) 18 (Sept. 15, 1998). The proper standard for ability to pay is (emphasis added) (quoted by CarePlex of Silver Spring v. whether the penalty amount would put the facility out of Health Care Fin. Admin., Docket No. A-98-94, CR536, DAB business. Milpitas Care Ctr. v. CMS, Docket No. A-02-139, No. 1683, 1999 WL 985363 (H.H.S.), at 7 (Apr. 13, 1999)); CR932, DAB No. 1864, 2003 WL 974618 (H.H.S.), at 12 see also CarePlex, at 7 (“[This language] presupposes that the (Feb. 5, 2003). Crestview never asserted that paying the facility’s history remains a relevant consideration after a $27,000 penalty would put it out of business, and thus its change of ownership, but does not foreclose a new owner ability-to-pay argument must fail. from rebutting the presumption that the facility’s history remains predictive of likely future compliance.”). Crestview 2. The Facility’s History of Noncompliance cannot be penalized for noncompliance that is the responsibility of prior owners in the sense that a penalty Crestview also contends that the ALJ erred when it cannot be levied against Crestview for such noncompliance accounted for the facility’s history of noncompliance in by others. But, according to the regulations, Crestview can be evaluating Crestview’s penalty. There was no error, and on charged a $400 penalty, as opposed to a $350 penalty, based remand the ALJ can again take into account the facility’s upon “[t]he facility’s history of noncompliance.” 42 C.F.R. history of violations when considering the reasonableness of § 488.438(f)(1). The regulations clearly demonstrate that the the penalty. The guiding regulations permit exactly such ALJ did not err when it accounted for the facility’s past consideration of past noncompliance: “In determining the deficiencies, regardless of ownership. Naturally, upon amount of penalty, CMS does . . . take into account . . . remand, Crestview can rebut the presumption that past (1) The facility’s history of noncompliance, including noncompliance accurately predicts future problems. If repeated deficiencies.” 42 C.F.R. § 488.438(f)(1). In Crestview can show that it “cleaned house” when it acquired adopting its regulations, the HHS specifically stated, this particular facility, the facility’s history of past noncompliance may no longer be a factor, but conducting A facility’s prior compliance history should be such an analysis is not our task today. considered regardless of a change in ownership. A facility is purchased “as is.” The new owner acquires the III. CONCLUSION compliance history, good or bad, as well as the assets. While we agree that after consideration of the facility’s The ALJ erroneously misinterpreted HHS regulations by compliance history, [CMS] or the State may conclude deciding the case without an oral hearing because genuine No. 02-4084 Crestview Parke Care 27 28 Crestview Parke Care No. 02-4084 Center v. Thompson et al. Center v. Thompson et al.

factual disputes exist for several of the alleged deficiencies. _____________________________________________ As a result, summary judgment was not appropriate. Therefore, we VACATE the order and REMAND for further CONCURRING IN PART, DISSENTING IN PART proceedings at the administrative level. Upon remand, an _____________________________________________ ALJ should conduct an oral, evidentiary hearing to determine whether the previously discussed disputed violations KENNEDY, Circuit Judge, concurring in part, and occurred. Then the ALJ should reassess whether the penalty dissenting in part. I agree with the majority that the ALJ can was reasonable. The facility’s history of noncompliance may grant a summary judgment without an in-person hearing and be taken into account, but a facility’s history of violations is I agree that Crestview’s argument about its ability to pay is neither dispositive nor irrebutable, as it is merely one factor without merit. However, I respectfully dissent from the that is to be considered. majority’s finding that there are unresolved factual disputes in this case. The majority found that the ALJ committed a procedural error by cancelling the in-person hearing on December 12, 2001 before any motion for summary judgment had been filed. In my opinion, the record before us does not support that legal conclusion. CMS stated in the conclusion to its Pre-Hearing Brief filed on October 19, 2001 that “should Crestview not raise a credible dispute to any material fact in its Response to CMS’ Pre-hearing Brief, then this tribunal should grant CMS a summary affirmance of its determinations in this matter.” CMS Pre-hearing Br. at 32. In my opinion, the ALJ was fully within her discretion when, upon receiving the parties’ pre-hearing briefs, she converted CMS’ Pre-hearing brief into a motion for summary judgment. Furthermore, CMS’ Reply Brief actually included a motion for summary judgment. It is true that the Reply Brief was not filed until December 17, 2001. However, the reply brief was already scheduled to be filed prior to the December 12, 2001 letter and, more importantly, the ALJ afforded Crestview an opportunity to respond, in writing, to the motion. I also disagree with the majority’s conclusions with respect to Residents 44, 68, and 90. Crestview argued, and the majority agrees, that genuine issues of material fact remain as to whether it provided necessary care and services to Residents #’s 44 and 90. However, the ALJ found, and No. 02-4084 Crestview Parke Care 29 30 Crestview Parke Care No. 02-4084 Center v. Thompson et al. Center v. Thompson et al.

Crestview does not dispute, that Resident #44's care plan avoidable pressure sores, and failed to ensure that a resident called for heel protectors at all times (with ankle rings) and having pressure sores received the treatment and services bilateral elbow protectors at all times, and that Resident #90's necessary to promote healing, prevent infection, and prevent care plan called for heel protectors, elbow protectors, and new sores from developing. More specifically, Resident #68 cone splint from 7 am to 7 pm. The survey also charged that was diagnosed with multiple sclerosis, dysphagia, iron on each of the three days of the August survey, at several deficient anemia, and dermatitis. As of July 23, 1999, her different times of the day, Patient #44 was observed without pressure sores had healed. Her physician ordered pillowed protectors and Resident #90, who had a history of skin pressure relieving devices on both feet and both elbows at all breakdowns, was observed sleeping without such protectors times. Resident #68 was unable to position herself. On two and seated in chairs on two occasions without elbow different days, the surveyor observed Resident #68 without a protectors. The regulations require that the facility provide relieving device on her left elbow. On August 11, 1999, the care “in accordance with the comprehensive assessment and surveyor observed that Resident #68 had pressure sores on her plan of care.” 42 C.F.R. § 483.25. Crestview, in contesting left hip, left buttock area, and left elbow. I agree with the these two charges before the ALJ, indicated its position was ALJ that: that the protective pads were removed by the staff to check and access the skin. No specific witnesses were mentioned to The facility is obliged to go beyond what seems substantiate that claim. Nor do the disclosures of Crestview’s reasonable to, instead, always furnish what is necessary administrative and nursing personnel contain any reference to to prevent new sores unless clinically unavoidable, and this claim. Hrybiniak, in her disclosure, does mention that to treat existing ones as needed. Koester, DAB No. residents do remove protectors. She also states that whether 1750, at 32. Allowing Resident #68, a high-risk protectors are needed is a nursing judgment and that they are individual to lie, unprotected, on vulnerable points, in not needed when patients are in bed on a pressure relieving contravention of physician orders, does not establish that mattress. Crestview’s brief in response to the motion for the facility took “all necessary precautions.” summary judgment argues only that the protective pads were not needed because the patients were on pressure-relieving Crestview Parke Care Ctr., DAB CR867, at 28. mattresses. The ALJ found that the claim that the protectors were removed for examination or bathing was unsupported In summary, these Residents had specific needs that were and refuted by the circumstances of the observations, and that addressed in their physicians’ orders. Crestview did not it was a violation of the regulations to fail to carry out the comply with those orders. I would end the inquiry at this doctors’ directions. The ALJ also noted that these patients’ point. The majority, on the other hand, has decided to allow records include no notations that these patients removed other Crestview to essentially challenge the “wisdom” and/or protecting pads. The ALJ concluded that there was no “practicality” of those specific orders in the administrative material issue of fact with respect to whether the physicians’ hearing, and, in the case of Resident # 68, to argue whether a orders had not been complied with. violation of the physician’s orders was the actual cause of the pressure sore. This decision, in my view, would cause Crestview also argued, and the majority agrees, that shambles in the administrative oversight of the nursing genuine issues of material fact remain as to whether facilities because it frees these facilities from having to Crestview failed to ensure that one of its residents not develop comply with the physician’s orders. Instead of simply No. 02-4084 Crestview Parke Care 31 Center v. Thompson et al.

checking to see whether the facilities complied with the physicians’ orders, the ALJs will be required to conduct hearings to weigh the advantages and the disadvantages of the alternative courses of care provided by the facilities. In my opinion, disagreement with the necessity of strict compliance with physicians’ orders ought to be made in the discussions between the physicians and the facility administrators at the time of the physicians’ orders. Congress has authorized the ALJs to simply review the facilities’ compliance with the physicians’ orders; it did not authorize them to review the wisdom or the practicality of those orders.