two thousand and seventeen six zero seven eight one avalon place trinity verses united states department of health and human services you may proceed with your argument first became an associate justice on the u s supreme court in his very first opinion he authored what i believe for this particular case is very telling quote agency discretion is the lifeblood of the administrative pro but unless we make the requirements for agency action strict and demanding the strength of a modern government can become a monster that rules with no practical limits on its discretion against this backdrop avalon place trinity as the court is aware is a nursing home that participates in the medicare and medicaid programs most nursing homes financial viability depends upon government funding unfortunately at least in the state of texas where avalon place twenty is located the medicare medicaid medicaid reimbursement rights fluctuate between the forty seventh and forty eight lowest in the country it's one of the most heavily regulated if not the most heavily regulated industries in the country and with good reason nursing home service one of the most vulnerable if the if not the most vulnerable segments of our population because of the heavy regulation nursing homes such as that one place are subject to survey their annual surveys for licensing regulation and compliance with medicare conditions of participation there are complaints surveys when somebody calls in a complaint to the state hotline and there are what's called incident investigations which are pursuant to an incident that perhaps the facility has reported pursuant to state mandated reporting fireman's once these surveys are conducted if the surveyor who unfortunately sometimes don't even have any long term care experience and if the surveyors come in and determine that the regulations or the conditions of participation were not met they cite deficiencies and those deficiencies then can have monetary consequences per day fines per instance spying so in this case we were dealing with the per day farai that was or i think right at ninety thousand dollars the way for calculating or the method of calculating these penalties was increased unilaterally by the agency a couple of years ago if these penalties were to be imposed now they would probably be upwards of four or five hundred thousand dollars misrule john thank you for that sort of setting them the background yes your honor just so i can understand procedurally we have surveyors who found deficiencies yes there was a nail jay who conducted hearing made findings then there was an appeal to the appeals board correct me from getting the terminology wrong yes or to the to the full departmental up to the full departmental appeals board upheld the findings and now you before us yes or because in a case involving a c m s monetary fine such as we have here want to get the stana review right first or get yours if you agree with me yes or if there's substantial evidence supporting those findings by the a l j i mean we're it's over right is that right i don't think it's right simple your honor and that's one of the reasons that we asked it to come and visit our great today tell me tell me i recognise certainly i would really be remiss in not admitting that in seeking to overturn agency decision on a petition for review as the petitioner i have a monumental task i have a huge uphill task because of the deferential standard but i don't think judge duncan that it's quite as simple as saying if there's substantial evidence our inquiry in spirit because there are other ways that the findings of the arbitrary and capricious and within those two parts of the deferential standard which are distinct and separate from substantial evidence there are requirements and it's our position that we don't think the rulings were supported by substantial evidence but you never have to get that far ok well i understand your argument to be focused on the substantial evidence but i'm open to hearing what other well actually we we believe that there is a a tie in between the substantial evidence in this case based on these particular facts can we drill down please i want to ask you about you're concerned that that that your client did not know that the patient was risk right because they didn't know from the treat from the their appeal notes because they didn't have their appeal notes whether they were created after the fact is fabrications or if there is some miscommunication why they didn't have them sure judge my client on the day that this resident resident over seventy three was admitted his fall risk was risk was assessed and he was assessed at a minimal risk he obtained a score of seven and in the record there's the page that has that scoring and what that number means is a minimal fall risk probably i believe the evidence in the record from jackie stevens and by know was that most residents in the nursing home present some fall risk the question is was he such a fall risk that different interventions needed to be in play or different levels of supervision were required other than what the nursing home was providing him and the therapy records contain drastically different assessment than what the people at the nursing home our employee saw they didn't the transfer records indicate that he needed help with walking and toileting only in in terms of getting him from the bed to the walker the transfer is getting him set up i believe there is no more that the thing that was happening in this situation no your honor he had already made it in terms of the incident that occurred he had already made it into the bathroom he did with what's called a rolling walker and the nurse aide observed him was in the room when he physically got to the bathroom she'd gotten him gotten him dressed he said he needed to use the restroom before they left for the doctor's appointment she watched him go from the bed or the area beside the b to the bathroom and he was fine she asked him if he needed any additional help he replied no he asked for privacy to use the restroom and there are also nurse aid records in terms of toileting that states he was independent and told him ok what the incident report when was that completed that says he has a history of falls the incident report was not until after i think a day or two after the incident occurred there was perhaps  discussion with hospital staff or additional family members there was certainly nothing in the nursing home records to indicate there was a history of falls prior to this time his wife didn't indicate that and so you think that the whole thing depends on the  therapy not your own i don't a k i think that the more pivotal piece of information is the statement from dr david mendell the treating physician who had seen him a week before this incident and who saw him at six thirty in the evening on the night before the incident occurred the following morning and one of the conditions that dr mann dale was treating him for milo dysplastic syndrome that is not something that even appears anywhere other than perhaps to mention it there is no discussion of that diagnosis anywhere in judge hughes initial opinion and that's where we think that she failed is in not looking at that diagnosis not looking at what medication he was given on the evening or the afternoon scuse me of march the twenty seventh just before this incident occurred the doctor had made a change to his treatment plan because of this particular diagnos medication he was given is a medication called procrit and we discussed that in the briefing just because he was stronger because he had had this medicine at how is that the be all and end all if that there are a that he was contrary evidence comes from a physician and i think we can take guidance from the social security cases such as the minors versus that fell in newton versus that fell decisions from this core understand that that we often defer to physician witness in the hearing however this case she required to be submitted on preval testimony meaning we're not allowed to call witnesses you only present them for purposes of cross examination and c m s did not request to cross examine dr mendell on his statement so therefore we would not have been she had it absolutely she had it and she said made comments as did the as did the board when the case went to them the doctor mendell was not in the best position to know the names of his residents because he wasn't there on a daily basis in our point was he was there the night before at six thirty he had seen him a week before he saw him the night before he had a conversation with them he observed his ambulation status he observed his mental status and he reached the conclusion that he did not require assistance when he was in the bathroom and the other issue that we have your honor is if a resident asked for privacy it's residents right they have the right to ask for privacy they have the right to refuse help when when the nurse say brand offered help and he said no that was absolutely his right not withstanding now they say that you can overrule their rights for safety reasons if there was a valid safety reason however we have a statement of a physician saying he was perfectly safe brandy had watched him walk to the bathroom with the rolling walker and he was there and he was fine she said do you need any help he said no please shut the door she said i'll be right out here and she was for maybe i think the timeline is three or four minutes somewhere around that time frame and she comes back in and he's on the floor half in and half out of the bathroom does not bring us to the therapist notes that recommend that you have supervision spoke with the person in that there be office to confirm they were not even created until after resident number seventy three was dead and that's the problem i go back to the abuse of discretion standard of review judge  response to your earlier question one of the key prongs in the abuse of discretion standard of review the gets away from strict deference is did the agency or the ale j rely on factors that we're never intended  fabricated i mean i don't know if we should quibble over this but you could say that they hadn't yet been typed up so they didn't have and that's just as good for you if they hadn't yet been typed you don't have to show that there's some kind of conspiracy drama here to you well they don't have to show that you didn't have them and they weren't given to your people who aren't aware of this absolutely and what we used to show that we didn't have them is the mission that they weren't even creating they didn't exist at the time maybe they were going to be somebody's recording that had to be transcribed or whatever it could be a benign thing it could be but the point being there was no communication because what's in our records is one communication by the therapist on the twenty seventh the afternoon of the twenty seventh saying he seemed tired during therapy to which the nurse responded we've got a new medication we're aware of that he's going to the doctor tomorrow here's the diagnosis here's the medication he's been given this afternoon and why we're on top of this they given the medication he reacts positively to it the doctor sees him at six thirty in the evening and documents in his know what his findings are what was he making credibility determinations about who to believe on these issues the notes existed you know about the notes oh i think she did make a credibility determination but could she make a credibility determination if she didn't hear from the people the therapist it's our opposition that she shouldn't have there w they didn't testify by dept written questions even did they i did not are not in the record at all they are and i just have the notes with the date on it and then we have the person say i got i did not have these at the time they did not and they did not in fact exist at the time so that's the only thing the judge had exactly and that's our position that the testimony from ms stevens and ms binah was not something that the only of the evidence we have is that it sometimes an answer the question only evidence that we have is that it was created after the fact it did not exist at the time and if in fact that's the case and it wasn't communicated then it is tantamount to a fabricated document which congress does not intend for agencies to rely on in order to meet either the abuse of discretion standard facility did not act as a financial compliance with federal regulations as required for participation in the medicaid medicare programs and also the imposition of the eighty one thousand six hundred fifty dollars civil money penalty is reasonable as  would they know so because that he was a fall risk in the restroom apart from the therapy yes i mean as you pointed out the resident was transferred into the facility for a short term he was not there for a short term basis to undergo  ifically occupational therapy and physical therapy and to return home the transfer records clearly state he had a history of faults he needed assistance with walking sitting toileting due to risk of his plan of treatment for outpatient rehabilitation again the sole reason he entered the facility to begin with indicated he was a power risk and able to react safely to the challenges of the ballots this is all in the record beginning at page ten six hundred thirty one seventy two thirty one it that the court seems to have discounted the doctor's testimony which was the most current information and it was a physician the dop the judge did not discount she just did not give it the weight that petitioner wishes that she had the doctor's notes was merely that a note it was an unsworn statement and it was an observation but the doctor all these things are on sworn statements the transfer notes all these things you've been talking about right when the doctor's notes arms in your correct right so there's no less than those other things right with a doctor's note wasn't based on an actual evaluation of the resident the doctor was scheduled to see the resident the very next day at the request of his wife w indicated that there was a decline and she had concerns about his issues and also that the occupational therapist and physical therapist had indicated to the staff and it's uncontested they spoke with the director of nursing as well as the assistant director of nursing that there is a decline so much to the extent he fell in my lap today he needs to be supervised right and when the doctor saw when the doctor encountered the resident they were passing the nurse's station there was more of an exchange of pleasantries the doctor did not evaluate him and the doctor and his own no where is the record for that because this is completely different that the there where you are just a minute ago in great detail so where why do you believe that they just passed each other at the nurse's station and th evaluation a new medicine were not a sign doctor's note is that thirty nine seventy two of the record of appeal and seven o three where it's they he was not aware of the their pistols characterization of the condition of the resident he was not aware of the concern of his short term memory loss because the record also reflects that he could not recall things after five minutes and this was not conveyed to him by the facility staff and our position is to the extent that he was not made aware or that there was no two or even her into the clinical record in an untimely i'm not going to say fabrication because we won't concede just because they were done a day late that they were fabricated the onus is still on the facility the facility is responsible for securing services which includes occupational and physical therapy but how can you say that this is even true about the therapy note because if there's no one there to stand up for the note that at the time that these treatments had occurred and that these were actual observations and you've got someone who says they're created after the fact probably for purposes of cup with a preparation for litigation issues or investigations then how how can we rely upon the point that you just made you depends upon the fact the services had incurred in these observations were made and those people are not in this record and your honor our position is and it's based on the record and uncontested by the director of nursing that this information was communicated to the conceded that the facility had no mechanism or procedure in place for the therapist to timely report or what the timeline would be for that reporting and again if that were a requirement and the occupational and they were cited for not administering the facility in a way to obey to avoid harm to its residents and based on the facts in the record the fact that he was a risk of fall and the deference that was i'm sorry not the deference but the review by the da b in looking at this looked at the record as a whole which clearly that short term period that the resident was in the facility there's a clear glaring indication that he is at risk and there were communications although not on assistant director of nursing at page twelve in thirty to sixty five and the director of nursing at thirty nine seventy six through thirty nine seventy seven and they'll say that it was conveyed to the staff repeatedly and glaring statement and again to the extent that it was pivotal it was a brief exchange and the doctor does it that he was not aware of anything that was going on in our submission to you is that onus or that burden was the responsibility i'm sorry for the facility to convey that in taking care of a charge of a compliment wait a second i thought they submitted the whole thing that said he had been seeing and he had been good he had this illness that required this medication and he examined and put on the new i thought there's a lot that was all in the record in the written papers that was initially but again the resident was only there for short term and they can that that their initial assessment of him in the minimal minimum data  status report and all of this to assess him as a low risk fall very early on and by week two in fact by militias the doctor visit the night before that supposedly in detail no less than a doctor visit the night before the doctor's visit was scheduled the day after the fall ok this is a big record battle and this is going to be decided on the record because you understand they just said that he had seen him the night of before the fall and that is what i'm at and correct there was not an evaluation or saying that there's a there's at a minimum a dispute i guess over that point and we'll hear from the other side on both the doctorate seen him prior to the week of the fall but the doctor was not aware of what was the decline or the a decline based on nurse's notes and all of that wasn't conveyed to him and when his wife requested an appointment for him which was going to occur the day after the fall the doctor really saw him in passing the day prior to the fall and just through his verbal exchange that he looked fine to me that sort of thing but it wasn't an evaluation and he wasn't the doctor states was not aware of everything that was going on in the concerns of his  well you seem to be making some hay on the fact that the doctor didn't testify more the doctor couldn't have testified under the procedures of the court right though the doctor could have testified he was not called by the  r could not call him according to opposing counsel is that true yet another thing the judge disagree about could they could not call him he could only be called on cross by you all the way i'm not you know the underlying in the way the the judges rules are set up your correct she allows for cross examination of witnesses but the agency could have called him the petitioner submitted his note and they have clearly not all him could they you're correct yes ok so it's no neither here nor there that he didn't otherwise testify because he couldn't of your correct yes and as a mission to you is that barring his testimony the record is r m i'm sorry whether or not he was allowed that the statement that he prison it again describes an encounter the day before so he had and he admits no clear indication of what the residence condition was at that time specific to the petitioners assertions of the new medication again to the extent that this was a miracle drug that was going to rehabilitate the president this also should have been chronicled in the clinical record to show how it was either helping or not if you look at the transcript in there says it wasn't a miracle drug but it was noted as a side effect to or a side effect to give energy but there wouldn't be some substantial change overnight because he was just prescribed the drug specific to the their piss notes again in the the facility had no mechanism in place for that there appears to annotate this but they did communicate it and again that's in the record and can test hypothetically if we are not able to consider that there are p notes because they it's their only record evidence shows that they didn't exist at the time of the  cannot consider those notes and if your citations here do not show that the facility was well aware that he was a what was the term used to a big glaring glaring fall risk then ken is there anything else that would allow us to find substantial evidence or do you concede that you would lose i think if you do not consider that there are no it's i think just the fact that the facility is charged with the care and well being and the hospital trying again he was there for a short period of time we're not looking at a year we're looking at two weeks barely two weeks that he was in the facility and at the concern of his wife at the concern in the notes he was unable to recall information after five minutes with the transfer records referred no this is actually the clinical record with an avalon ok sir a march nineteenth note stated that he required assistance for his toilet use and quote unquote set have a chance to discuss it but i think her contention is the facility was not or do not have an obligation to assess him assess him again until after he died is when it they would have been due but our position is based on not only his transfer records but what the nurses notes reflect the facilities nurses notes reflect independent of the therapist and the fact that the doctor's day all information regarding this patient was not communicated to him the onus is still on the facility to provide entered your saying and who did that us a correct the facility that did it based on hospital transfer records but at that time you are correct your honor that it was not a significant risk profiles but if you look at the the day to day note as indicated in the record clearly he was on the decline to the extent that his wife asked for an appointment and would have some concern about what was going on with his ability  regulations as required for participation in the program to the extent that the petitioner argues it was the the fault of the administrate judge or they were precluded from doing certain things is our position that the there are numerous opportunities and number of opportunities excuse me afford it to the petitioner to state any objections related to its it's in writing to preserve here as it were before you and regard to any bias or prejudice and just any systemic issues that it may allege in its brief regarding what the review process is again this court today is charged with whether the department appeals board apply the proper legal standard is certainly  position that it did look at the record was substantial evidence and just assessing again the short term that the resident was in the facility and the progression of his the kind unfortunately and the fact that a nurse who wasn't quite familiar with him and there is testimony in the record that there are other nurses who assisted him who said he never asked to be left alone he never asked for privacy he always requests that the assistance coupled with the wife's concern and requesting the doctor's visit and the doctor position that he didn't have this information before him and wasn't aware and the fact that he saw him in passing and didn't have a chance to evaluate him before the failing ball we think that the record is substantial and that being that the decision of the department appeals board was not arbitrary and capricious the record as a whole is based on substantial evidence and while this decision is not ideal to the petitioner is not so impossible that this court should not affirm it and i see i have a little bit more i think your honor this petitioners exhibit fourteen pages seven o two and seven o three of the record i think the text probably appears on seven zero three seven zero two is likely the cover page to whom it may concern a march twenty seven two thousand and thirteen at approximately six thirty pm i doctored david mendell spoke with resident seventy three at the nurses station at avalon place trinity resident seventy three had emulated using his walker to the nurses station from his room number four sixty one resident seventy three confirmed his appointment at nine am on march twenty eighth two thousand and thirteen that my clinic knowledge to resident seventy three i would see him in the morning at his appointment present seventy three emulated back to his room using his walker resident seventy three did not appear to be in any distress i reviewed his chart in his lab or with the director of nursing and job i know are in the director of nursing and i discuss resident seventy three in there were no concern he was alert and oriented and able to make his needs known resident seventy three was able to be left unattended in the bathroom he was independent with his activities of daily living dr david mendell ok so i understand  on march the twentieth in the doctor's note you will see from dr mandela he recommended an additional follow up with the hematology just on colleges for the malo dysplastic syndrome it's a condition that attacks the red blood cells in your body and can make you weak he had recommended a follow up of that he had said until that can happen i'm going to schedule a point there for the twenty eighth i'll see you in a week in the meantime we will start this drug program and the nurse's note on march the twenty seventh the day before th indicate he's given forty thousand units of procrit he has a very positive result to that it's later that evening that he's in his walker me with his walker up to the nurse's station and that is the result in the note that i just read to you where he sees him and he says how he emulates how his mental state appears what he has and what he is not able to do i do want to point out one thing the seven sided you page twelve of the record as evidence for something that the director of nursing admitted page twelve of the record is not an admission by the director of nursing that is part of judge hughes opinion and how judge hughes construed the evidence in our pits our position in this case that judge hughes was wrong in the way she analyze the evidence and what we have here also that's not true if you look at the nurse's notes the only communication from the therapy staff is on the afternoon of the twenty seventh when the therapy director susan barnes calls a nurse name andrea bell and says he was a little bit tired in his therapy session today  it's not surprising he's got a doctor's appointment in the morning we've got this medication we're about to give him this afternoon we're on top of this we're going to get this taken care of then the nurse notes indicate they give the procrit he has positive results by six thirty in the evening he was going to visit the doctor and incidentally the record the testimony from jackie stephenson angel by no shows they were both at the nurses desk when dr mandela saw resident number seventy three so we administrative law judges to set their own pre hearing order for how these cases proceed there is one judge who still does not do it that way he still does the traditional you call the witness you do direct cross recross and the limits it to one rec unfortunately judge duncan after the lapse in appropriations in two thousand and thirteen the budget for h h s was significantly affected and funding for administrative law judge travel was stopped when that stopped that's when we saw the switch to more of the judges going to pre filing because we don't have these hearings in person anymore they're done by video conference and believe that pre filing requirement is an effort that's made by the judges to streamline the the proceedings and there can be debate about whether it's good or bad but it is something the agency gives the individual judge discretion to decide and those orders are not subject to objection by the party why didn't avalon call the called the therapist on cross there wasn't a separate statement from the therapist or medical or you don't have to have a have to statement to you yes you can't call anybody if there's a if there's documents that they've authored you can't calm across cannot not under the pre filing requirements the only people that can be called on a cross or people for whom a written direct statement and that's how do you challenge documents then it's difficult and as a practical matter when we challenge them we're told the federal rules of evidence don't