Crestview Parke Care Center v. Tommy Thompson; United States Department of Health and Human Services

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0196P (6th Cir.)
File Name: 04a0196p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CRESTVIEW PARKE CARE
CENTER,
Petitioner,
v.
TOMMY THOMPSON; UNITED
STATES DEPARTMENT OF
HEALTH AND HUMAN
SERVICES,
Respondents.
X
-
-
-
->
,
-
-
-
-
-
-
-
N
No. 02-4084
On Petition for Review from an Order of the
Department of Health & Human Services.
No. A-02-62.
Argued: December 5, 2003
Decided and Filed: June 28, 2004
Before: KENNEDY, MARTIN, and MOORE, Circuit
Judges.
2 Crestview Parke Care
Center v. Thompson et al.
No. 02-4084
_________________
COUNSEL
ARGUED: Geoffrey E. Webster, Columbus, Ohio, for
Petitioner. Robert C. Stephens, UNITED STATES
DEPARTMENT OF HEALTH & HUMAN SERVICES,
OFFICE OF THE GENERAL COUNSEL, REGION V,
Chicago, Illinois, for Respondents. ON BRIEF: Geoffrey E.
Webster, Columbus, Ohio, for Petitioner. Robert C.
Stephens, UNITED STATES DEPARTMENT OF HEALTH
& HUMAN SERVICES, OFFICE OF THE GENERAL
COUNSEL, REGION V, Chicago, Illinois, for Respondents.
MOORE, J., delivered the opinion of the court, in which
MARTIN, J., joined. KENNEDY, J. (pp. 28-31), delivered a
separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Petitioner
Crestview Parke Care Center (“Crestview”), a skilled nursing
facility, appeals an order holding Crestview responsible for a
$27,600 civil money penalty (“penalty”). Following several
inspections of Crestview’s Cincinnati facility in 1999,
Respondent Centers for Medicare and Medicaid Services
(“CMS”) determined that Crestview violated several
regulations and levied a penalty against Crestview. Crestview
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.

-- 1 of 16 --

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

-- 2 of 16 --

No. 02-4084 Crestview Parke Care
Center v. Thompson et al.
5
who set a hearing date for September 18, 2001. The parties
participated in a prehearing telephone conference on
September 10, 2001, during which the ALJ admitted all the
exhibits that had already been tendered into evidence. The
ALJ attempted to delve deeper into the exact nature of
Crestview’s claims, but found that Crestview’s attorneys were
unable to answer many of her questions regarding the
contours of its appeal.
Tragedy followed on September 11th, forcing the
postponement of both the prehearing conference call and the
hearing itself. The parties resumed their prehearing
teleconference on September 19, 2001. The ALJ learned
during the phone call that the parties had failed to stipulate to
any factual matters. The ALJ consequently ordered the
parties to draft prehearing briefs that would more clearly
outline the facts and the legal arguments to be made at the
hearing. The ALJ also asked the parties to append all witness
affidavits and declarations to these prehearing briefs. The
ALJ stated clearly that the record at this point was closed.
The parties then exchanged prehearing briefs. CMS filed
its prehearing brief on October 19, 2001, asking for a
summary affirmance of the penalty because there were no
disputes of material fact. Crestview filed its prehearing brief
on November 29, 2001. It challenged all of the facts as
presented by CMS and attached declarations from Julie
Hrybiniak, the Regional Administrator for Crestview and
Alejandro Bayalan, the Food Service Manager at Crestview.
Crestview also filed a declaration from accountant Bert
Cummins, who had not been previously listed as a witness.
Cummins’s declaration purported to show that Crestview was
unable to pay the penalty. CMS filed its Reply Brief on
December 17, 2001, and simultaneously filed a Motion for
Summary Judgment, asserting that “there is no material issue
of fact, and an adequate factual and legal basis clearly exists
for the [penalty] that was imposed.” Joint Appendix (“J.A.”)
at 279 (Mot. Sum. J.). CMS attached two new declarations,
6 Crestview Parke Care
Center v. Thompson et al.
No. 02-4084
which responded to Crestview’s “means to pay” argument,
and also asserted that Crestview waived its “means to pay”
argument because it did not discuss its financial condition in
its original hearing request.
On December 12, five days before receiving CMS’s reply
brief and motion for summary judgment, the ALJ informed
the parties that after reviewing the prehearing briefs and
accompanying declarations, she had “determined that an in-
person hearing is unnecessary and that this matter can be
decided on the basis of the written submissions, declarations,
and exhibits,” because the written record demonstrated that
“certain material facts . . . are not in dispute.” J.A. at 277
(ALJ Letter 12/12/01). A week later, Crestview objected to
the cancellation of the hearing.
The ALJ granted CMS’s motion for summary judgment on
February 4, 2002, concluding that the facility was not in
substantial compliance and that the penalty was reasonable.
At the outset, the ALJ rejected Crestview’s argument that the
cancellation of the in-person hearing was improper. The ALJ
then assessed the evidence on each of the alleged deficiencies,
ruling that the facility was not in substantial compliance. In
analyzing the reasonableness of the amount of the penalty, the
ALJ ruled that Crestview had not properly presented the issue
of its ability to pay because Crestview had not discussed its
financial condition in its request for a hearing. The ALJ also
refused to admit the declaration of Bert Cummins because it
had not been listed as an exhibit before December 4, 2000.
Partially taking into account the facility’s history of failing to
satisfy several regulations, the ALJ concluded that the amount
of the penalty was reasonable. Crestview appealed the
decision to the HHS Departmental Appeals Board (“DAB”),
which affirmed the ALJ’s decision in its entirety on July 24,
2002. See 42 C.F.R. §§ 488.408(g)(1), 498.5(k) (establishing
the appeals process). Crestview petitioned us to review the
DAB’s decision on October 15, 2002. We have jurisdiction

-- 3 of 16 --

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

-- 4 of 16 --

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

-- 5 of 16 --

No. 02-4084 Crestview Parke Care
Center v. Thompson et al.
11
42 U.S.C. § 1320a-7a(c)(2) (emphasis added). The statute
clearly includes the “magic words” that invoke the panoply of
procedures described by the formal-adjudication provisions
of the APA.
In conjunction with the use of the statutory language “on
the record,” the regulations regarding CMS hearings strongly
imply that an in-person, oral evidentiary hearing is generally
required. Under the statutory authority to publish rules and
regulations, see 42 U.S.C. § 1302(a), HHS has promulgated
regulations concerning administrative hearings. The
regulations establish “procedures for reviewing initial
determinations that CMS makes.” 42 C.F.R. § 498.3(a)(1).
“[I]nitial determinations” encompass: (1)“a finding of
noncompliance that results in the imposition of a remedy
specified in § 488.406 of this chapter,” id. at § 498.3(b)(13),
and (2) “[t]he level of noncompliance found by CMS in a
[skilled nursing facility] or [nursing facility], but only if a
successful challenge on this issue would affect . . . the range
of [penalty] amounts that CMS could collect.” Id. at
§ 498.3(b)(14)(i); see also id. at § 488.406 (granting CMS
authority to levy penalties). The regulations further state,
“Under the circumstances specified in § 431.153 (g) and (h)
of this chapter, [a nursing facility] has a right to a hearing
before an ALJ, to request Board review of the hearing
decision, and to seek judicial review of the Board's decision.”
Id. at § 498.5(k); see also id. at § 488.330(e)(3)(ii) (stating
that the “provisions of part 498 . . . apply when the following
providers,” including skilled nursing facilities, “request a
hearing on . . . certification of noncompliance leading to an
enforcement remedy”).
Subpart D of part 498 establishes the regulations for CMS
hearings and strongly suggests that oral hearings are required.
Only one regulation in this subpart actually uses the term
“oral hearing,” but the statutory requirement that hearings be
“on the record” implies that the term “hearing,” as used
throughout this subpart of the regulations, refers to a formal
12 Crestview Parke Care
Center v. Thompson et al.
No. 02-4084
adjudicatory hearing, which includes an in-person component.
Section 498.66 states, “If the affected party waives the right
to appear and present evidence, the ALJ need not conduct an
oral hearing,” except during certain circumstances that are
inapplicable here. Id. at § 498.66(b). This provision
powerfully implies that if the affected party does not waive
the right to present evidence, the ALJ must conduct an oral
hearing. Other regulations lead to the same conclusion. They
fix a time and place for the hearing and a method for
changing the time and place. Id. at §§ 498.52, 498.53. They
describe the conduct of the hearing. Id. at §§ 498.60(a) (“The
hearing is open to the parties and their representatives . . . .”);
498.60(b)(1) (“The ALJ . . . receives in evidence the
testimony of witnesses and any documents that are relevant
and material.”); 498.60(b)(3) (“The ALJ decides the order in
which the evidence and the arguments of the parties are
presented and the conduct of the hearing.”). The regulations
also contain procedures for the receipt of evidence, id. at
§ 498.61, and rules governing witness testimony. Id. at
§ 498.62.
HHS has created an internal procedure that provides an
alternative to in-person, oral hearings. The HHS procedure
reads,
An in-person hearing (i.e., a hearing at which witnesses
are called and testify) is not the only vehicle for the
[ALJ] to hear and decide the case. If, after giving the
parties the opportunity to present their views, the judge
determines that there are no genuine issues of material
fact, the judge might decide the case based on the
undisputed facts and the applicable law. If there are
genuine issues of material fact which can be decided on
the basis of documentary evidence, the judge might
proceed without an in-person hearing.
Dep’t of Health & Human Servs., Dep’t Appeals Bd.,
Civil Remedies Div., Procedures, at 1, available at

-- 6 of 16 --

No. 02-4084 Crestview Parke Care
Center v. Thompson et al.
13
http://www.hhs.gov/dab/civil/procedurescms.html (last
visited Feb. 3, 2004). This rule constitutes an interpretive
rule that is “issued by an agency to advise the public of the
agency’s construction of the statutes and rules which it
administers.” Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87,
99 (1995) (quotation omitted). “Interpretive rules do not
require notice and comment[;] . . . they also do not have the
force and effect of law and are not accorded that weight in the
adjudicatory process.” Id. We generally give substantial
deference to an agency’s interpretations of its own
regulations. St. Francis Health Care Ctr. v. Shalala, 205
F.3d 937, 943 (6th Cir. 2000). However, this deference is
limited when an interpretation is “plainly erroneous or
inconsistent with the [published] regulation.” Id. at 944
(quoting Harris County Hosp. Dist. v. Shalala, 64 F.3d 220,
221 (5th Cir. 1995)). The reason for this limited deference is
to prevent agencies from gaming the rulemaking provisions
of the APA, see 5 U.S.C. § 553, by creating interpretive
regulations that undercut regulations passed through notice-
and-comment rulemaking.
Our deference to the HHS’s interpretive rule, which is akin
to the summary judgment standard contained in Federal Rule
of Civil Procedure 56, depends on whether the interpretive
rule can be reconciled with the CMS regulations that carry the
force of law. On its face, the internal procedure appears
inconsistent with the statutory and regulatory provisions
because the procedure offers an alternative to an in-person
hearing, yet the plain meaning of “on the record” in the
statute and the implications of the regulations suggest that
there is only one vehicle for an ALJ to decide a case: an oral
evidentiary hearing.
Nonetheless, it would seem strange if disputes could not be
decided without an oral hearing when there are no genuine
issues of material fact. Given that federal district courts can
decide cases as a matter of law without an oral hearing when
it is clear there are no genuine material disputes to be resolved
14 Crestview Parke Care
Center v. Thompson et al.
No. 02-4084
in a trial, it would be bizarre if administrative agencies, which
are in many respects modeled after the federal courts and
which indeed often have more informal proceedings than
federal courts, could not follow a similar rule. See Fed. R.
Civ. P. 56; 1 Richard J. Pierce, Administrative Law § 8.3, at
542 (“Even when an agency is required by statute or by the
Constitution to provide an oral evidentiary hearing, it need do
so only if there exists a dispute concerning a material fact.”).
It may make as good, if not more, policy sense to have a
standard for summary judgment in HHS administrative
proceedings as it does to have one in federal court
proceedings. See Puerto Rico Aqueduct & Sewer Auth. v.
EPA, 35 F.3d 600, 605-07 (1st Cir. 1994) (describing the
structure and validity of administrative summary judgment
and stating, “summary judgment often makes especially good
sense in an administrative forum, for, given the volume of
matters coursing through an agency’s hallways, efficiency is
perhaps more central to an agency than to a court”).
Furthermore, the Supreme Court has upheld the use of
summary procedures in other administrative contexts,
although only when a party fails to convince an agency at the
threshold that the agency should waive a rule or regulation
that would otherwise prevent the party from adjudicating its
claim. Weinberger v. Hynson, Westcott & Dunning, Inc., 412
U.S. 609, 621 (1973); Fed. Power Comm’n v. Texaco, Inc.,
377 U.S. 33, 39-45 (1964). Therefore, HHS’s interpretive
rule allowing ALJs to grant summary judgment without an in-
person hearing is valid.
2. The ALJ Erred By Granting Summary Judgment
Without an In-Person Hearing
While HHS’s interpretive rule is valid, we hold that it was
improperly applied here, and thus summary judgment was not
proper. Consequently, we remand this case to the ALJ for an
oral hearing. The ALJ erred both procedurally and
substantively in deciding the case without an oral hearing.

-- 7 of 16 --

No. 02-4084 Crestview Parke Care
Center v. Thompson et al.
15
a. Procedural Error
The procedure employed by the ALJ was inconsistent with
the interpretive rule. The ALJ canceled the in-person hearing
on December 12, 2001, after the record had been closed and
both parties had filed prehearing briefs, but before any motion
for summary judgment had been filed. The prehearing briefs,
to which all affidavits and declarations were appended, were
designed only to give the ALJ a better idea of what to expect
during the hearing, to state the facts that each party intended
to prove at the hearing, and to explain how the evidence
would help to prove these facts. See J.A. at 143 (Order to
Submit Briefing). There was no warning that these briefs
would be used to determine whether an in-person hearing
should occur, and the phrasing of the order requesting the
briefs did little to reduce the expectancy of a hearing.
b. Substantive Errors
Summary disposition of this case without an oral hearing
was also improper because there were indeed genuine issues
of material fact that may have impacted the determination of
whether the penalty was reasonable. The penalty was levied
against Crestview because of multiple different infractions.
We hasten to note that Crestview has not disputed every
alleged deficiency. While Crestview challenges each aspect
of the grant of summary judgment, which held that the
penalty was reasonable, it is clear that for several of the acts
of noncompliance there are no disputes or genuine issues of
material fact.
(i) Undisupted Deficiencies
First, there was no dispute that Crestview failed to provide
adequate emergency power. During the August 12, 1999,
survey, the Crestview staff was unable to start the emergency
generator on three separate occasions. There was also no
indication that the generator had been tested on a weekly
16 Crestview Parke Care
Center v. Thompson et al.
No. 02-4084
basis, as is required. Crestview’s response that the generator
had always worked before the “unknown and unexplained,”
J.A. at 263 (Hrybiniak Decl.), failure to start in front of the
inspector does not contradict the basic observation that the
generator’s malfunction deprived Crestview of the ability to
provide emergency power.
Second, there is no factual dispute regarding all but one of
the twenty-seven alleged housekeeping violations. To
counter the surveyors’ reports of these violations, Crestview
presented evidence of cleaning schedules, procedures, and
duties in an attempt to demonstrate that the facility is “clean,
safe, and well maintained.” J.A. at 264 (Hrybiniak Decl.).
This evidence established only that Crestview failed in the
execution of its procedures, because the surveyors’
observations showed that the facility was noncompliant.
Crestview’s contention that the facility may be observed as
unclean at any time because the facility is constantly being
used does not rebut the evidence of noncompliance amassed
during the survey.
Third, Crestview has not offered evidence challenging most
of the alleged food-service deficiencies. The ODH observed
seventeen different violations of the regulation that skilled
nursing facilities “[s]tore, prepare, distribute, and serve food
under sanitary conditions.” 42 C.F.R. § 483.35(h)(2). While
Crestview challenged seven of the alleged violations, offering
alternative rationales for the infractions, Crestview presented
no evidence challenging the other ten deficiencies aside from
general statements of Crestview’s diligence in storing and
preparing food in a sanitary fashion, which do little to contest
specific claims of noncompliance.
Fourth, Crestview presented no evidence to contest its
failure to provide at least twelve hours of in-service training
each year for its nurse aides. 42 C.F.R. § 483.75(e)(8)(i).
Crestview’s 1998 records indicate that fourteen of twenty-
nine nurse aides received less than twelve hours of in-service

-- 8 of 16 --

No. 02-4084 Crestview Parke Care
Center v. Thompson et al.
17
1Instead, Crestview argued that, as a new owner who acquired
control on August 1, 1999, it is not respo nsible for the previous ope rator’s
employees and whether those employees received sufficient training.
This argum ent fails as a matter o f law, because “[a] facility may no t avoid
a remedy on the basis that it underwent a change of ownership,” 42 C.F.R.
§ 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
of Silver Spring v. Health Care Fin. Admin., Docket No. A-98-94, CR536,
DAB No. 1683, 1999 WL 985363 (H.H.S.) at 7 (Apr. 13, 1999) (“ [A]
facility’s history remains a relevant consideration after a change of
ownership, but do es not foreclo se a new owner from rebutting the
presumptio n that the facility’s history remains predictive of likely future
compliance.”). In purchasing the facility, Crestview assumed
respo nsibility for the noncomp liance history of its predecessor-in-interest,
and such previous noncom pliance is one fa ctor that CMS may consider
in assessing the amount of a penalty even though Crestview may not have
been directly responsible for the failure to abide by the guiding
regulations. Whatever diligence Crestview may have exhibited in moving
towards compliance serves only to rebut the presumptio n that a facility’s
history tends to predict its future behavior.
training in that year. Crestview did not offer any evidence
that these aides actually received the statutorily required
training.1
(ii) Disputed, but Nonmaterial Deficiencies
Factual disputes attend several of the other alleged acts of
noncompliance, but some of these disputes are not material.
The initial two disputes involve the cleanliness of the facility
environment in general, see 42 C.F.R. § 483.15(h)(2), and of
the dietary services in particular, see 42 C.F.R. § 483.35.
Summary judgment as to the violation of these regulations
was nonetheless proper because these disputes are not
material. First, of the twenty-seven alleged sanitary
housekeeping violations, there is a factual dispute concerning
the cleanliness of the ice-machine. Second, there is a factual
dispute regarding seven of the seventeen food preparation
infractions. In its opinion, the ALJ assumed that Crestview
had not committed these disputed violations, as is proper
18 Crestview Parke Care
Center v. Thompson et al.
No. 02-4084
2It is unclear whether the physician’s orders referred to by both
parties and the ALJ constitute the “plan of care.” The exhibits in the Joint
Appendix to which the parties refer (Resident 44’s file is Crestview
Exhibit 1, Resident 90’s file is Crestview E xhibit 2) contain do cuments
respe ctively entitled “Physician’s Order” (which mentions the phrase
“plan of care”) and “Care Plan.” See J.A. at 342-44, 347-49 (Resident 44
File); J.A. at 356-59, 367-74 (R esident 90 File).
when evaluating whether summary judgment should be
granted. Nonetheless, the ALJ concluded that Crestview still
violated the applicable regulations because the large number
of undisputed observations demonstrated that Crestview was
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
in reaching this conclusion: the cumulative undisputed
infractions suffice to show that Crestview stood in violation
of the guiding regulations, even though some of the instances
of unsanitary conditions may not have occurred.
(iii) The Alleged Disputes Regarding Patient Care
The most serious potential genuine disputes of material fact
concern the care of four patients at Crestview’s facility
(Residents 44, 68, 90, and 93). For Residents 44 and 90,
Crestview allegedly failed to “provide the necessary care and
services to attain or maintain the highest practicable physical,
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
without elbow and heel protectors at multiple times during the
days of observation, even though physicians had ordered the
protectors to be worn at all times because of the high danger
of pressure-sore development.2 Crestview responds by
arguing: 1) the residents did not “need” the protectors
because the protectors would not prevent the development of
unavoidable sores and because other treatments, such as the
use of pressure-relief mattresses, were employed to prevent
the development of sores; and 2) the protectors were not

-- 9 of 16 --

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

-- 10 of 16 --

No. 02-4084 Crestview Parke Care
Center v. Thompson et al.
21
3It is possible that adhering to a plan of care pursuant to the general
language of § 483.25 may conflict with other regulations incumbent upon
a facility. For example, if a competent patient consistently refuses to wear
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
significant to the resident.” 42 C.F.R. § 483.15(b)(3).
was a justifiable reason for the violation of § 483.25.3
Lacking any other guidance from HHS aside from its
statements in Woodstock and progeny, we conclude that
§ 483.25 is not a strict-liability regulation.
Crestview has presented some evidence that Residents 44
and 90 were observed without their ordered skin protectors
because the residents removed or shifted the protectors or the
staff members removed the protectors to provide other
treatment. Crestview’s evidence in this vein is not strong,
chiefly because Crestview has failed to point to any patient
records or preserved staff observations of such behavior, but
the relative weakness of the evidence in comparison with the
observations by the ODH surveyors is not a proper
consideration on summary judgment. Upon remand, the ALJ
may conclude in fact that Crestview has not proven it acted
reasonably in failing to adhere to these residents’ plans of
care. Nonetheless, taking the evidence in the light most
favorable to Crestview, a genuine dispute of material fact
exists regarding the violation of § 483.25. Summary
judgment without an in-person hearing on the issue of the
asserted violations involving these two residents was thus
improper.
For Residents 68 and 93, Crestview was cited for failing to
prevent the development of avoidable new pressure sores and
to provide the necessary treatment to promote healing of
preexisting sores. 42 C.F.R. § 483.25(c)(2). To counter the
observations of pressure sores on Resident 68, Crestview
introduced evidence that Resident 68’s pressure sores were
22 Crestview Parke Care
Center v. Thompson et al.
No. 02-4084
clinically unavoidable. Crestview also asserted that Resident
68 rested on a pressure-relieving mattress to help avoid
pressure sores and that the pressure sore observed on the left
elbow was successfully treated within thirty days. J.A. at 254
(Pet. Prehearing Br.); J.A. at 265 (Hrybiniak Decl.). As
regards Resident 93, Crestview presented evidence that the
“dirty” protector reapplied to Resident 93’s heel never made
contact with his skin, because his foot was rebandaged, such
that the allegedly “dirty” protector did not contribute to the
development of any pressure sores. J.A. at 255 (Pet.
Prehearing Br.); J.A. at 265 (Hrybiniak Decl.). Crestview did
not offer any evidence to dispute the surveyor’s observation
that a dirty heel protector was earlier applied directly against
Resident 93’s open pressure sore before the nurse rebandaged
the sore and placed the dirty protector against the clean
bandage.
Crestview appears not to dispute that Resident 68 was not
wearing heel protectors, but such a “concession” does not
negate the existence of a genuine dispute of material fact.
The evidence as presented, and taken in the light most
favorable to Crestview, shows that Crestview took measures
to halt the development of avoidable pressure sores and to
promote the healing of existing sores. Crestview claims that
the pressure sores were unavoidable and that it succeeded in
treating other pressure sores affecting Resident 68. Whether
these sores were unavoidable and whether Crestview
succeeded in preventing and treating the sores are factual
questions that should not have been resolved in a summary
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
our conclusion that summary judgment (and thus disposition
without a hearing) is improper in the face of disputes of
material fact.
The same cannot be said of Crestview’s evidence regarding
Resident 93. Crestview has failed to dispute the surveyor’s

-- 11 of 16 --

No. 02-4084 Crestview Parke Care
Center v. Thompson et al.
23
observation that a dirty heel protector had been applied
directly against an open pressure sore. That the same dirty
heel protector was later reapplied over clean bandages does
not remedy the initial instance of unclean treatment of
pressure sores. In evaluating Crestview’s noncompliance
with § 483.25(c)(2), the ALJ did not consider the
appropriateness of applying the dirty heel protector to the
resident’s bandaged feet, but rather focused on the initial
application of the protector to an open sore. Because
Crestview failed to challenge this observation, there is no
genuine dispute of material fact regarding the violation of
§ 483.25(c)(2) with regards to Resident 93.
c. Conclusion
In sum, the ALJ’s error in applying the HHS rule that
governs the cancellation of in-person hearings sprang from its
misapplication of the summary judgment standard, and the
dissent falls into the same trap. In evaluating whether
summary judgment is proper, we do not weigh the evidence,
but rather view the evidence in the light most favorable to
Crestview to divine the existence of a genuine dispute of
material fact. With regards to the care of Patients 44, 68, and
90 the ALJ, and the dissent, evaluate the strength of
Crestview’s evidence relative to CMS’s evidence, but it is
clear such a comparison is improper at this stage of the
proceedings. Crestview offers evidence and several different
arguments for why its actions were in compliance with the
applicable regulations, and CMS proffers different evidence:
this is a factual dispute at its essence. This factual dispute
makes the cancellation of an in-person hearing improper, but
it does not prevent the ALJ from ruling against Crestview
upon remand. In reexamining this case, the ALJ may
conclude that a $400-per-day penalty is reasonable. The ALJ
should determine whether the resolution of the disputed
deficiencies in juxtaposition with the deficiencies for which
Crestview is undeniably responsible justify the enforcement
of the penalty.
24 Crestview Parke Care
Center v. Thompson et al.
No. 02-4084
D. The Amount of the Penalty
There are two issues germane to the distinct issues of the
reasonableness of the penalty amount: (1) Crestview’s ability
to pay and (2) whether the ALJ can consider the facility’s
history of noncompliance in evaluating the reasonableness of
a penalty levied against a new owner.
1. Ability to Pay
Crestview asserts that the imposition of a $400 per-day
penalty was unreasonable because it cannot afford to pay the
penalty. Crestview’s argument fails for two reasons. First,
the ALJ justifiably refused to evaluate this claim because
Crestview did not raise it in its initial hearing request. In its
hearing request, Crestview never mentioned its financial
condition, in derogation of the regulation that hearing
requests must identify the specific issues with which the party
disagrees. 42 C.F.R. § 498.40(b); see Cmty. Nursing Home
v. CMS, Docket No. A-01-86, CR 770, DAB No. 1807, 2002
WL 125182 (H.H.S.), at 9 (Jan. 11, 2002) (holding that
untimely arguments regarding ability to pay are deemed
waived). Crestview disingenuously charges that the ALJ
spurned Crestview’s financial-condition argument even
though CMS raised the issue of ability to pay in its motion for
summary judgment, but such protestations ignore the reality
that CMS discussed ability to pay only in response to
Crestview’s novel introduction of the argument in its
prehearing brief.
Second, given that the ALJ properly refused to admit the
Cummins declaration (because it was tendered after the
closing of the record), Crestview presented no evidence of an
inability to pay. Crestview did not introduce the Cummins
declaration until nearly a year after the parties exchanged
exhibit and witness lists and the record was considered
closed. Crestview’s arguments that CMS gained an unfair
advantage because CMS submitted additional declarations to

-- 12 of 16 --

No. 02-4084 Crestview Parke Care
Center v. Thompson et al.
25
rebut Cummins’s declaration falls flat because ALJ Hughes
excluded CMS’s new evidence, as well as Crestview’s.
Moreover, even if Cummins’s declaration were a part of the
record, summary judgment was still proper. While
Cummins’s declaration suggests that Crestview in fact was
suffering from heavy losses, “financial losses, even if they are
severe, are not enough by themselves to establish an inability
of a provider to pay a civil money penalty.” Wellington
Specialty Care & Rehab. Ctr. v. Health Care Fin. Admin.,
Docket No. C-97-252, CR548, 1998 WL 673818 (H.H.S.), at
18 (Sept. 15, 1998). The proper standard for ability to pay is
whether the penalty amount would put the facility out of
business. Milpitas Care Ctr. v. CMS, Docket No. A-02-139,
CR932, DAB No. 1864, 2003 WL 974618 (H.H.S.), at 12
(Feb. 5, 2003). Crestview never asserted that paying the
$27,000 penalty would put it out of business, and thus its
ability-to-pay argument must fail.
2. The Facility’s History of Noncompliance
Crestview also contends that the ALJ erred when it
accounted for the facility’s history of noncompliance in
evaluating Crestview’s penalty. There was no error, and on
remand the ALJ can again take into account the facility’s
history of violations when considering the reasonableness of
the penalty. The guiding regulations permit exactly such
consideration of past noncompliance: “In determining the
amount of penalty, CMS does . . . take into account . . .
(1) The facility’s history of noncompliance, including
repeated deficiencies.” 42 C.F.R. § 488.438(f)(1). In
adopting its regulations, the HHS specifically stated,
A facility’s prior compliance history should be
considered regardless of a change in ownership. A
facility is purchased “as is.” The new owner acquires the
compliance history, good or bad, as well as the assets.
While we agree that after consideration of the facility’s
compliance history, [CMS] or the State may conclude
26 Crestview Parke Care
Center v. Thompson et al.
No. 02-4084
that such history is no longer a valid predictive factor of
the facility’s ability to achieve and maintain compliance
(for example, following a change of ownership where the
new owner “cleans house”) the burden of proof is on the
new owner to demonstrate that poor past performance no
longer is a predictive factor.
Medicare and Medicaid Programs; Survey, Certification and
Enforcement of Skilled Nursing Facilities and Nursing
Facilities, 59 Fed. Reg. 56,116, 56,174 (Nov. 10, 1994)
(emphasis added) (quoted by CarePlex of Silver Spring v.
Health Care Fin. Admin., Docket No. A-98-94, CR536, DAB
No. 1683, 1999 WL 985363 (H.H.S.), at 7 (Apr. 13, 1999));
see also CarePlex, at 7 (“[This language] presupposes that the
facility’s history remains a relevant consideration after a
change of ownership, but does not foreclose a new owner
from rebutting the presumption that the facility’s history
remains predictive of likely future compliance.”). Crestview
cannot be penalized for noncompliance that is the
responsibility of prior owners in the sense that a penalty
cannot be levied against Crestview for such noncompliance
by others. But, according to the regulations, Crestview can be
charged a $400 penalty, as opposed to a $350 penalty, based
upon “[t]he facility’s history of noncompliance.” 42 C.F.R.
§ 488.438(f)(1). The regulations clearly demonstrate that the
ALJ did not err when it accounted for the facility’s past
deficiencies, regardless of ownership. Naturally, upon
remand, Crestview can rebut the presumption that past
noncompliance accurately predicts future problems. If
Crestview can show that it “cleaned house” when it acquired
this particular facility, the facility’s history of past
noncompliance may no longer be a factor, but conducting
such an analysis is not our task today.
III. CONCLUSION
The ALJ erroneously misinterpreted HHS regulations by
deciding the case without an oral hearing because genuine

-- 13 of 16 --

No. 02-4084 Crestview Parke Care
Center v. Thompson et al.
27
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
proceedings at the administrative level. Upon remand, an
ALJ should conduct an oral, evidentiary hearing to determine
whether the previously discussed disputed violations
occurred. Then the ALJ should reassess whether the penalty
was reasonable. The facility’s history of noncompliance may
be taken into account, but a facility’s history of violations is
neither dispositive nor irrebutable, as it is merely one factor
that is to be considered.
28 Crestview Parke Care
Center v. Thompson et al.
No. 02-4084
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
KENNEDY, Circuit Judge, concurring in part, and
dissenting in part. I agree with the majority that the ALJ can
grant a summary judgment without an in-person hearing and
I agree that Crestview’s argument about its ability to pay is
without merit. However, I respectfully dissent from the
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

-- 14 of 16 --

No. 02-4084 Crestview Parke Care
Center v. Thompson et al.
29
Crestview does not dispute, that Resident #44's care plan
called for heel protectors at all times (with ankle rings) and
bilateral elbow protectors at all times, and that Resident #90's
care plan called for heel protectors, elbow protectors, and
cone splint from 7 am to 7 pm. The survey also charged that
on each of the three days of the August survey, at several
different times of the day, Patient #44 was observed without
protectors and Resident #90, who had a history of skin
breakdowns, was observed sleeping without such protectors
and seated in chairs on two occasions without elbow
protectors. The regulations require that the facility provide
care “in accordance with the comprehensive assessment and
plan of care.” 42 C.F.R. § 483.25. Crestview, in contesting
these two charges before the ALJ, indicated its position was
that the protective pads were removed by the staff to check
and access the skin. No specific witnesses were mentioned to
substantiate that claim. Nor do the disclosures of Crestview’s
administrative and nursing personnel contain any reference to
this claim. Hrybiniak, in her disclosure, does mention that
residents do remove protectors. She also states that whether
protectors are needed is a nursing judgment and that they are
not needed when patients are in bed on a pressure relieving
mattress. Crestview’s brief in response to the motion for
summary judgment argues only that the protective pads were
not needed because the patients were on pressure-relieving
mattresses. The ALJ found that the claim that the protectors
were removed for examination or bathing was unsupported
and refuted by the circumstances of the observations, and that
it was a violation of the regulations to fail to carry out the
doctors’ directions. The ALJ also noted that these patients’
records include no notations that these patients removed other
protecting pads. The ALJ concluded that there was no
material issue of fact with respect to whether the physicians’
orders had not been complied with.
Crestview also argued, and the majority agrees, that
genuine issues of material fact remain as to whether
Crestview failed to ensure that one of its residents not develop
30 Crestview Parke Care
Center v. Thompson et al.
No. 02-4084
avoidable pressure sores, and failed to ensure that a resident
having pressure sores received the treatment and services
necessary to promote healing, prevent infection, and prevent
new sores from developing. More specifically, Resident #68
was diagnosed with multiple sclerosis, dysphagia, iron
deficient anemia, and dermatitis. As of July 23, 1999, her
pressure sores had healed. Her physician ordered pillowed
pressure relieving devices on both feet and both elbows at all
times. Resident #68 was unable to position herself. On two
different days, the surveyor observed Resident #68 without a
relieving device on her left elbow. On August 11, 1999, the
surveyor observed that Resident #68 had pressure sores on her
left hip, left buttock area, and left elbow. I agree with the
ALJ that:
The facility is obliged to go beyond what seems
reasonable to, instead, always furnish what is necessary
to prevent new sores unless clinically unavoidable, and
to treat existing ones as needed. Koester, DAB No.
1750, at 32. Allowing Resident #68, a high-risk
individual to lie, unprotected, on vulnerable points, in
contravention of physician orders, does not establish that
the facility took “all necessary precautions.”
Crestview Parke Care Ctr., DAB CR867, at 28.
In summary, these Residents had specific needs that were
addressed in their physicians’ orders. Crestview did not
comply with those orders. I would end the inquiry at this
point. The majority, on the other hand, has decided to allow
Crestview to essentially challenge the “wisdom” and/or
“practicality” of those specific orders in the administrative
hearing, and, in the case of Resident # 68, to argue whether a
violation of the physician’s orders was the actual cause of the
pressure sore. This decision, in my view, would cause
shambles in the administrative oversight of the nursing
facilities because it frees these facilities from having to
comply with the physician’s orders. Instead of simply

-- 15 of 16 --

No. 02-4084 Crestview Parke Care
Center v. Thompson et al.
31
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.

-- 16 of 16 --