sproule and i have the privilege as morning of representing west texas l t c partners which is a company that owns and operates a group of nursing homes throughout the state of texas the facility that's in question in this particular case is cedar manor nursing home located in the san angelo area and the issues that we're here to discuss today are whether they be administrative law judge or the department of appeals board for the u s department of health and human services should have granted a motion for summary judgment against senior may or if material fact material disputed fact issues exist in the second issue is even if summary judgment was appropriate and even if there are no disputed issues of material fact the issue is whether the penalties were properly calculated in light of documentation provided by the state so that agency to the facility at the time of the second survey and i won't spend a lot of time on the background facts and of the case the court's been provided the briefs in the background facts and in detail pretty specifically in the briefs i will certainly answer any background questions that the court may have but just to summarize there were two certainties in this case conducted by surveyors from the texas department of aging and disability services and this significant your honour's because the state survey rs are the only ones who conducted surveys in this case they surveyed on behalf of state medicaid regulations federal medicare regulation so they basically stood in the shoes of c m s the federal agency there was no separate federal survey there were no separate federal enforcement actions levy no separate federal findings other than the findings that were made by the state survey and didn't see it's our position as set forth in our braves that there are disputed material fact issues for for both surveys one was in december of two thousand and thirteen one shortly thereafter in january of two thousand and fourteen i will certainly can see that it is a much closer call on the december two thousand and thirteen survey as to whether there is  a material fact is she so i don't want to focus a lot of time on that survey i think it is much clearer for the january two thousand and fourteen survey that there certainly are disputed material fact issues that precluded the summary judgment first that was granted by judge castle and then that was ultimately affirmed by the department will peals board but before i talk about the reasons that we believe there are disputed material fact issues precluding summary judgment i want to touch briefly on the standard of review evidence we argued in the cedar lake case as parties had argued in the sixth circuit that the standard should be the no vote and again i'm certainly mindful of the seeder like opinion but i would respectfully ask the court to consider the arguments for why and perhaps in the limited context of a summary judgment proceeding not talking about a final after a final hearing on the merits but strictly in the context of a summary judgment first proceeding that the didn't know about standard should apply we are mindful of all of the policy reasons behind applying the deferential standard following a hearing on the merits if we've had a full trial on the merits both parties have called witnesses both parties have had the opportunity to cross examine both parties have had the opportunity to brief both at the administrative law judge and at the department of appeals board level issues of fact and issues of law those have been thoroughly fleshed out courtroom view therefore can be much more narrow in this is one of the one of the few types of agency appeals that comes directly from the department of appeals board to the circuit court of appeals in the case of a c m s monetary fine submit that perhaps did not know is the correct standard to apply instead of the differential standard in the summary judgment context because the focus of the review in the summary judgment context as opposed to following the hearing on the merits is whether there exists a disputed material issue of fact which would require a full hearing on the merits we don't believe that at the summary judgment level the sign level of deference should be given to agency interpretation of the rules regulations and laws as should be given following a hearing on the merits because that's simply not the inquiry of the court if this were a regular appeal a conventional appeal from a district court following a summary judgment ruling this court would not be ruling on the merits of the case just as it would not be ruling on the merits of the case in an a p a appeal or an agency appeal to simply would be reviewing the evidence to determine if there is a disputed material issue a fact that entitle the party to a full in their hearing were before an agency that incorporates rule fifty six for summary judgment practice as the u s department of health and human services has done through the d h b procedures in this case when will fifty six has been specifically adopted then we submit in that context that the standard of review should be do novo as opposed to the differential standard because what we believe happens judge stuart is if you don't look at it that way the focus has shifted and the tenth circuit analyzed this back in the hundred ninety s in the olin house case and what the court said there is we were talking about agency appeals oftentimes summary judgment is not even appropriate vehicle to use and there are agencies and in the tenth circuit some of the states that are that  appeal through the tenth circuit have adopted specific procedural rules that actually outlaw summary judgments in agency appeals for the very reason that we're advocating today which is it essentially ships the burden of proof and it judgment cases the focus should be on the evidence and whether the evidence demonstrates a genuine issue a material fact which warrants a full determination on the merits as opposed to the deferential standard which doesn't focus on the evidence but simply focuses on the actions of the judge and if you focus too narrowly on the actions of the judge i think it i think there is at least the opportunity to look at side of the evidence and we believe that's what happened in this case at the board level i mean certainly the first level of appeal that the nursing home got before judge castle the administrative law judge has recused in the but at the department on appeals board level and certainly we believe that in this level that the court should consider a narrow exception only in summary judgment context to consider these in the in line with with the six or fifth six circuits decision in the christian case now with that being said there were two surveys here one on december the twentieth following the december twentieth survey monetary fines of six thousand and fifty dollars per day were recommended for three day a three day period and then a fine of three hundred fifty dollars per day was ultimately recommended for i believe a forty day period following surveys where state or federal survey or site deficiencies a report is provided to the facility in the facility submit what's called a plan of correction when the facility submits the plan of correction they provide the regulatory agency with a date that the corrections will be completed the surveyors then come in on a follow up survey check to see was the correction complete and if it was then it's retroactive to the day that the facility supply in this case when the surveyors came back to cedar manor on january twenty seventh before they started the survey that they were there to do it i believe it was an annual survey they actually did the follow up survey to the december issues to determine have you cleared these deficiencies and they determined and i believe the document is in the record  twenty four of the record before they began the actual january survey the state surveyors provided the facility documentation that the corrections were in fact completed and that the deficiencies were cleared retroactive to january sixteenth and this is important your honour's because if you decide that there are no fact issues in the summary judgment was appropriate we submit that the penalties were calculated improperly the penalties were calculated improperly because once the state survey agency provided the facility notice that the deficiencies had been cleared retroactive to january sixteenth there is no evidence of a deficient practice occurring between january sixteenth and january twenty seventh january twenty was the court has specific questions but that's that's the essence of the second serving it's undisputed there was no survey between january sixteenth and january twenty seventh the deficiency sided on january twenty seventh  result of what the surveyor observed that day judge kessell inferred and in our opinion speculated that it was reasonable to assume that there was a deficient practice that existed before january twenty seventh even under the deferential standard an administrative law judge or an agency tribunals determination cannot be arbitrary or capricious this court has recognized that on multiple occasions during agency appeals or judge castle to have speculated that you could infer noncompliance that's simply not the law it's not proper now when we appeal judge kissed his ruling to the full departmental appeals board the panel that we drew did not adopt judge kessel's ruling which may have been improper for a different set of reasons they found reasons that judge kids would not play on they said we don't go with what judge castle said in inferring noncompliance however we're going to  say or hang our hats basically on the rule that if there is a conflict between the day c m s states there's compliance and the day the state survey agency states there is compliance that the c m s finding will control and while that's the g rule there's one key problem with that in this case your honour's there was no separate c m s finding of noncompliance between january sixteenth and january the twenty seventh there is no evidence of a deficient practice my client has never been given notice of a deficient practice in that intervening time period because if there had there is a whole separate set of administrative provisions that they would go through to challenge the finding of not compliance before they even reach the level of an appeal before an adminis one judge that's never happened in to infer that type of regulatory finding use it to impose the types of fines and penalties that were imposed in this case we believe is an absolute violation of the facilities due process rights and it is a violation of the statute the social security act and the federal nursing home regulations that guarantee a facility a right to a hearing on any finding of noncompliance and that's important because the statutes in the regulations reference a hearing on the finding of noncompliance not the specific granted so there was no compliance between the sixteen after the state says we've cleared which we have to be able to rely on because to allow the federal agency without sending any of their own surveyors in to come in and cherry pick which state survey agency findings they're going to use or adopt in which ones they're not again even under the differential standard if you rely on that to impose a civil many penalty against my client it's arbitrary it's capricious it's not supported by any of those we don't even get to substantial evidence because there is simply no evidence so it would submit again that if there is a genuine issue of material fact the penalty was not properly calculated the penalties between january twenty sixth in january the twenty seven should be overturned we would like you mean sixteen  for twenty six thirty four thirty eight of the record does or the affidavits of the cedar manor nursing staff that basically created direct conflict between what the staff says occurred and what the surveyor say occurred in the law from the u s supreme court and the law from this circuit is quite clear when you have a conflict in evidence summary judgment is absolutely not appropriate in for these reasons i see amount of time we would ask the court to reverse the summary judgment in or by judge castle affirmed by the department of appeals border in the alternative it please the court and jennifer mandel after that respond at the united states department of health and human services and i'd like to start by addressing your question judge stuart about any possible carve out with cedar lake  don't believe there is a way to carve out this case from cedar lake cedar lake involved the same agency united states department of health and human services the same review process with the the l j and the the department appeals  it was also summary judgment and it even filed this one of the same regulations involving accident hazards i there's no way to distinguish what this course is sad is the proper standard for review in cedar lake and apply something different in this case  facts are the facts of how the agency process is handled what the statute says are identical in both cedar lake and in this case that of course this is an important hurdle for us to consider but if  we did not have that hurdle what is your view on cedar lake versus the six circuits whose ition yes jeff smith i believe that this court came to the correct conclusion in cedar agency substantial amount of discretion in setting its own procedures and that it's only due process has the has the agency taken any position in you know in opposition to the six doing it the way we do it in the summary judgment context arguably does reverse or or upset the usual burden of proof that we have been in summary judgment cases which obviously used to opportunity to do in front of the l g a and in front of the department of appeals for this is not a case where c m s moved for summary judgment in the first instance both c m s and the facility filed full pre hearing briefs which in which they were instructed to address to make any argument that they were going to make at hearing and to present all of their evidence the facility had a full opportunity because that all of that evidence both documentary and the direct written testimony of their witnesses it was only after all of that evidence was in the record and had been presented that c m s moved for summary judgment at which point the facility hyped yet another opportunity to go to argue and to point out where there were in kids where there were alleged inconsistency is in the board rightly pointed out that that they didn't raise any fact issues they raised issues of law and i believe that if you look at the substantial evidence that supports the date it near the wheels of their wheelchair and we know the facility was not implementing the interventions of making sure that the straps couldn't go they'd they didn't remove those accident hazards as for this the second survey with residents ha and there is no dispute about that the care that the c n a gave to the resident when providing incontinent care the c n a is only statement was that she provides that once the facility has been found out of noncompliance which they were at the december survey the burden then shifts to the facility to demonstrate that they have achieved substantial compliance and are capable capable of maintaining substantial compliance application obligation to come forth with evidence that they have achieved a substantial compliance and the board has been very clear that achieving substantial compliance does not just mean clearing previous deficiencies it means demonstrating that you ha that you were in compliance with all of the medicare are requirements and importantly that you are capable of maintaining substantial compliance and i think that it's telling in this case that on on that revisit survey which was in part to determine whether the previous deficiencies had been cleared but also to look at other situations that might have arisen in the facility they did find additional not in compliance so that i think it is entirely clear that there is substantial evidence of the facility did not meet its burden of showing that it could at that if it could maintain substantial compliance because it didn't maintain that  the undisputed facts in this case are that the facility did not provide the care and services necessary for resident want to resident for regarding making sure that they're the straps are there what you're left sling could not become a tank in tangled in their wheelchair wheels it's undisputed that even after a resident one suffered an accident where that broke both of his legs surveyors still saw residents who are traveling throughout the facility with straps dangling skin instead of soap and water and that women shouldn't change her her clubs and it just be to the facility camp or with no evidence whatsoever that they had achieved substantial compliance and they were capable of maintaining substantial it was the facilities burden to come forward with proof that they had achieved substantial compliance which the board has held is not the same thing as merely clearing previous deficiencies and it also includes coming forward evidence that you  yes and those are in two separate sections of the regulation depending on the type of remedy the first is in forty two c f r forty eight point four fifty four and the others and four eighty eight point four forty it's also the board is made clear in many of its decisions that the it is the facilities brought in to come forward with the evidence they have a cheap substantial compliance and or people of maintaining substantial compliance  also note that this court in an unpublished decision i mississippi care center up high had a similar rationale to be the computation of how long the immediate jeopardy determination decision and when c m s disagrees with the decision see if the regulation provides a c m s's decision controls and second that's only part even if the c m s were bound by the state finding that's only part of the question because clearing previous deficiencies does not necessarily mean that you have a team substantial compliance and it does not mean that you have shown that you are capable of maintaining six hours there is that showing may through some procedure or process where in the they are sitting home puts on evidence etc etc or is it you know a series of affidavit saying you know we've done x y and z i mean just typically how we're going to carry that you know that at that that certainly could be something the facility could could come forward with and in this case the facility came forward with no evidence that they had a cheap substantial compliance or were capable of maintaining substantial compliance and again i do think it's there i didn't gather that there was so you know they say what you make in basic legal so you know one two three you know what if the disputed facts that you're saying not whether they o j or somebody probably viewed it only state them for you right here it comes down to one basic issue that i could rephrase in about fifteen different ways and that's what i did in the brief was the supervision and assistance provided to the resident in the wheelchair reasonable wasn't adequate this court has recognized going back to the donaldson case in two thousand and nine that the issue of reasonableness is a fact issue that precludes summary judgment that's the issue with the the crux of the issue with the december survey the issue with the january survey two one was the nurse a competent in resident care tasks that's one issue we cited to the case of maybe health care center versus c m s which says if the deficiency is cited at a level which constitutes no actual harm which is the level that was cited in this case and the nurse say it is certified by the state then competency is summary judgment would not be proper the other issue is under the tag or the citation pertaining to pressure all cers whether the facility provided proper treatment to prevent the development of additional pressure also because this was a resident who had been at this facility off and on for eight years various points in time was admitted with pressure holsters continued to develop pressure oldsters throughout the state your period because of a whole host of medical conditions diabetes prior stroke bed down spinal stenosis peripheral vascular disease a whole host of conditions that contribute to the end of the way will nature of the developing the pressure else are in the issue here is was the treatment provided to the resident sufficient to prevent the resident from developing an additional pressure or else from the surveyor says no our director of nursing says yes this is no different than if we had a traditional medical malpractise case where we had two experts or two fact witnesses who were qualified to give an opinion on a competing not come back before you want a motion for rehearing where they were did not get appealed further client wishes client is ayers but cedar lake highlights the problems with the summary judgment is if you recall from cedar like there were actually two different ale days in that it harder even if we decide i'm not saying we would want to or not if we wanted to carve that out i'm not i don't really know how we could do that because that was that was a summary judgment case yes your honor and i think it is high of a mountain as it is for to cut you off but you're you're you're running short of time sister just the way we would have to go in bank it seems to me to do that rather than figuring out that will really cover that issue unless you found the senior like was circuit took if this court took another look at that the analysis that it's one paragraph one had no that's not that detail that doesn't go into the level of analysis that the six circuit in the christian part case went into and i believe the court does have the authority clearing deficiencies it's a distinction without a difference the only people who are authorized to come into cedar manor nursing home or any nursing home in the country are surveyors surveyors dictate compliance or noncomplian the surveyors came into cedar like a cedar banner in the simmering said you're out of compliance the evidence judge stewart the us about where with the facility bring forth the seven it's the facility brings forth the evidence in the plan of correction and when you go back before your  opinion take a look at the statement and deficiencies it's a two column form and on the right side is the facilities plan of correction and one of the things the facility must by law fall like in the plan of correction is what they plan to do to achieve continued compliance and then they provide a day by which compliance will be achieved that was done here it was accepted by the state c m s never disagreed with the state they never provided sailorman or notice that they disagreed with the state so we can mi regulation every single record every single piece of paper every single going on in that nursing home to say are you out of compliance in another area and there is not one shred of evidence that they were out of compliance the twenty december scuse me january the sixteenth and january the twenty seven the second survey was based on a personal observation on january twenty seventh nothing sooner there is no evidence it can't support the penalty and if the summary judgment stands when they're asked the penalties be