going to see where you're from i'm from northern virginia it's hurrican well there we go my wife can make fun of me as this is an important case not only to the parties but also to the nursing home profession because of the way  the issues have been framed in this case and we think there's four reasons why the secretary's approach this case is confused and clarified the legal issue for you that issue is whether c m s somehow can extrapolate or can use what other courts call have called third level interpretations of interpretations to impute liability to the center again where no regulation expressly provides for such authority so as we discuss race that c m s has never really explain the a hard time and our physicians frankly have had a hard time even articulating how the nurses at the silly could've done that so the four reasons why we think the case needs to be reversed or first keep in mind when considering the secretary's arguments that at least with respect to the issues in this case dr skaggs was the residence personal physician he was not an employee of the senate is not in control of the sun c m s never disagreed that the center staff had no authority to disregard countermand reason to question his clinical orders and c m s has never said where it finds the authority to address his orders at all much less to impute regulatory liability twilight anesthesia right so the impasse and we've addressed this and what do you think is the the point of that make sure i understand is that nobody would do it under the circumstance when i was only one surgeon available locally and he wouldn't do it under those circumstances so in essence the authorization to do it under twilight was a prohibition on doing it as an effective well it led to the impasse and it was even c m s is experts said that does happen from time to time and if the if the physician and the surgeon ten not agree then the surgery doesn't happen and that's the way it happens c m s says the facility had some obligation of the regulation purposes that the resident couldn't withstand surgery but for that time frame right so in october he makes the decision to write not that he was unable to do it from their word october but is not able to do from february opportunity to write that the first time and chose not to write so help me understand that question right why we shouldn't defer to the a l j we've had lots of discussions about deference to fact finders today  when he sort of gets out over his skis here talking about the very end i can't i can't give him any credibility there but the important point is that the a l j should have gone there at all this case is have any obligation at all to go back to his doctor or go anywhere to say you said before you couldn't do it but now he demonstrates extraordinary health we have no obligation in this the law does not permit any obligation to go back to the doctor and ask is he well enough now now we're not saying that at the end and we come up with you know with all due respect all kinds of hypotheticals under which you know a nurse within her scope of practice can say women there's something wrong here and in fact one of the cases one of the administrative cases that we talk about is similar to the hypothetical that you pose and in that case the board said where a nurse within the scope of her practice can tell that there's something wrong and that the judge and the physician should at least addressed an issue right that something within the centers obligation that is in terms of the centers care think the case the specific case was a resident who you know continued it itches and so forth and and the physician either disregarded it or gave orders it didn't work and  were for limited anesthesia still apply under the circumstances that's well beyond the scope of practice of a nurse and it was throughout the entire period and that's what we say in the parsing of the time doesn't really address that issue at all right it's still within this with it's still not within the scope of the nurse's practice to make to do that questioning whether it was in june july up to over or at any time right that the nature of the underlying question it was beyond the requirements of the regulation for this for the size of the school and that and that's just some other stand and that's because the nature of anaesthesia is too complicated for nurses where they can sort of understand that a simplified exactly as you say it exactly it big because it well when but be honest these are the suitability of this resident for surgery at all the relative seriousness of his conditions we're scared is going i think is breathing is more serious and it's t again beyond the scope of a nurse to make the judge or we say in terms of the regulation or terms about highest practicable status so terms about within the scope of the plan the determination of highest practical status by definition is made by a physician not a nurse so the regulation of the terms of the regulation that so how do we draw that line where would i go to find that line each e nurse can handle surgery not nurse that head off on that line of what a nurse is qualified to do or not to wherever the line exists and there patient doctor because they've got much better well and let me put it in terms that traction was talking about in one of the previous cases and that is right do you want to put it to a a l j to start running hearings about nursing home practice as if it's a personal injury case or as if it's a person or a physician discipline case you know where you start questioning where you know or start parsing where to start questioning the judgment of the physician and where to start saying that the nurse should have stepped in i think the board has said and said properly where the issue is clearly within the scope of practice of a nurse we're going to put the obligation the nurse and her employer the facility to take certain steps and the way you define what the question is is going to answer the question is it a question of what's the most important thing for this r dentist in october of two thousand and thirteen which is what triggered this so far as we know he never went back to the dentist he then went to the oral surgeon who concurred that he needed the the teeth out and then that was of course in his records so as he went to the hospital and so forth other physicians were aware of that the only time that we know that another physician actually directly looked at it was when he was in the hospital for two to two month period where there's some indication in the records that the hospital was going to try to do it but for whatever reasons they never did and then it at the very end at the time of the survey after this surveyor's you know got into the altercation with  the burn throughout to show how the facility staff violated the regulation right and then and did you make that argument the argument absolutely it start we make that in every case s doesn't have unlimited authority to extrapolate you know and to do these second and third level interpretations of interpretations and then finally to apply those two principles to find it c m s never demonstrated a crime official case of the neglected or residents need for oral surgery for a constraint on subjecting the resident to life threatening harm for to get an interesting case because the resident himself says that he doesn't place any blame on the nursing home and  had these issues for a while and doesn't cause him any pain you're correct that's correct your honor but what's at issue here is the compliance with the medicare requirements and that concerns the the  nursing homes obligation to provide necessary services and to ensure that residents receive necessary services so regardless of how the resident feels about it that's what the court is tasked with evaluating is is the nursing homes in here this fine also seems at least to me particularly high but i'm not in this field the way that you are is amount and when as is the case here the noncompliance subjects a resident to life threatening harm then the band is i believe between three thousand and i can't remember the upper limit but this this daily amount was fifty one hundred dollars per day which is actually toward the lower end of the ban so but it so because it went on for so how we get to that amount  your position that it's irrelevant whether the resident could've actually undergone surgery between february and jude law i because even if he could not have undergone surgery the nursing home failed to take what you view as adequate steps to schedule that surgery and that and that that's the the board's decision with respect to reversing a o'jays decision turns on the belief that a o j was legally incorrect and roll lying upon the inability of the resident undergo surgery during that time period well i would print this way i don't think it's irrelevant that the you know the president's medical condition is not irrelevant but what was clearly true in this case is that the residence condition fluctuated up and down throughout this eight month period and so  so you you agree you take a different hypothetical where a different president was plainly incapable and all the medical evidence was absolutely incapable of undergoing surgery attempting to determine retrospectively what the medical judgment would have been would have been made appropriately at that time so there's no proper basis for that answer answer me this one so when i look at you say no right in that the board's determination no evidence or veiled j but i look into the record in that april scenario with a social worker shows up and she documents that the resident  cannot go undergo surgery because the doctor has ordered that he not i did so that's an april of two thousand and fourteen and this is the social the social worker confirms that i did in april which is the same line that they j credits from scat well first your honor i don't think that's the precise wording and it's not it's not quite quite as clear cut as that the social worker does make some reference to the fact that there is a delay because of the residence medical condition but what's very significant is that basically we're dealing with the same situation throughout the entire period of noncompliance which is that the residence health is fluctuating up and down and facility was doing nothing so it was the nursing home's responsibility what's your best evidence you have in the record that from february through july that this resident was capable of hospital records make that very very clear number one the hospital physicians in particular the infectious disease specialist determined that this was a problem and all of the physicians were so concerned about  the making sure that this resident got this procedure timely that they were trying to figure out some way to make it happen in the hospital before they were doing charge they're so concerned about it that they say we don't have the equipment so you know we'll do it l like so concerned to me and nowhere in those records i merit three pieces you cite which i'm not sure actually or where you mean decide but when you read through the portion twenty four sixteen that you claim supports this idea i don't think it supports the idea at all that they're making a determination that he's capable of undergoing surgery they're greenies his teeth taken out but they're trying to find someone who can do that and they say well we could except we don't have this equipment and so we'll wait till we can go bob this equipment which is a seems to me an indication of snow emergency and so we'll send him home until somebody can figure out how to go buy this new well the fact that they weren't able to do it i think does not prove the point that they didn't determine it was an emergency and only proof that they were able to take to get it together for this procedure or point right now you say it proves the they determined this was necessary it must be done it only proves that a it may be to suggest the contrary more than the former well what's even more significant your honor is that the president had a tracheotomy under general anesthesia during his period of hospitalisation so that clearly demonstrates it was capable of undergoing you know i necessarily according to the c m s expert dr shah if it's at this this was life threatening the fact that this man had this severe carry arnold periodontal disease he had bacteria rotting in his mouth for eight months and it was causing or contributing to aspiration pneumonia and and your doctor disagrees with their doctor but i want to look into the original question of in february through july of twenty fourteen another procedure and also because the hospital physicians there seem to believe that he could have the procedure but there were the for the whole first four months after the president had the oral surgery console  there there is there's absolutely no evidence of a determination to the contrary so if i may ask a different question i want you want me to the record where there is evidence that he could you may say that's not the right because they just simply didn't address it so since they didn't do the assessment they didn't respond to the request for from the oral surgeon console there is nothing there but but what's clear is that the situation is the same from february of two thousand and fourteen until october twenty fourth which is that the residence health condition is going up and down that c m s has experts said there are there are many many windows when this procedure could have been  performed and only you know these kind of minute spots of time you know for example where he had you know acute aspiration pneumonia where he wouldn't have been able to have the procedure until that got under control authorized surgery under local or twilight sedation in response to the dentist concert but then you know many months later in february of two thousand and fourteen the oral surgeon performed the console and the oral surgeon recommended the surgery and then the world surgeon requested medical clearance dr skanks and the nursing home just never responded to that oral surgery consul there is no dispute regarding the level of anesthesia because it never got that far dr and the nursing home never responded to their requests for medical clearance so there can't be a dispute about how the procedure was supposed to precede the other point i wanted to respond to was that dr skaggs was not only the president's p but he was also the medical director for the nursing home there for dr skaggs actions can be imputed to the facility there are really three critical points here the noncompliance issue is the nursing homes in action as i mentioned earlier in february of two thousand and fourteen there was an oral surgery consul the oral surgeon requested medical clearance from the nursing home and the board and they all j found that the nursing home to no steps to schedule the total tooth extraction procedure until the survey agreed that the nursing home would not have any obligation to do anything in light of that i do your honor but but that's not this case and what's even more significant is that dr skaggs admitted to the survey ors during the survey that he wasn't even aware that there was another request for medical clearance after he had provided that limited authorization in october of two thousand and thirteen similarly at the hearing skaggs again said he wasn't aware you know if he thought he was done after he wrote that october twenty third teen there is a shoo in for the procedure and he wasn't even aware that you know people were trying to get this medical medical clearance and that they were even still trying to schedule the surgery that abundantly clear from the record evidence that there's there's just you know there's no there's no acknowledgement whatsoever on the part of dr skaggs first of all you know what the president's oral condition is that he's you know awaiting this procedure and when what's supposed to happen with that so again the noncompliance issue is the nursing homes in action the second the nursing homes physician dr sacks never made a medical determination that the president was too sick to have the tooth struction procedure prior to the residence hospitalization and thirteen october twenty fourth teen he writes a letter and says from february through june the resident was incapable of undergoing or that was an after the fact of terminations and not only that it when when when it's very very clear your honor that a o j was dancing around this issue because if you look at  honor but but i think that this decision speaks for itself because on page paper joint appendix page twenty eight he specifically says he does not find out or statics testimony credible and then when he does make that determination that hey i'm going to reverse this period you know i find that the facility was actually in compliance for the first five months after the surgery consol it you know this it's a one paragraph decision that doesn't really cite any evidence this is the joint appendix ph thirty three and he doesn't mention dr skeggs testimony whatsoever it's really just the l j's own retrospective interpretation hey i think this guy was too sick during this time at the very  very you know on the one hand you could view it that they are making his own interpretation you know but you could also say that you know he's just making it aren't you know no no evidence either but it's there there isn't a clear cut determination by the way that he was reversing c m s is determination based on an actual credibility determination about dr scott and furthermore the board pointed out that when you look at the record as a whole there is no way you could determine that this is the first five months was any different then than the last three months so that jay found you know you know what with tons of evidence that the the president was not too sick to have the procedure for the last three months yet it's really the exact same circumstances for the first five months and that the residence health was fluctuating up and down and there were definitely there's there's c m s expert testimony to support the fact that there were multiple multiple windows when this president could have had this procedure and did not need to wait eight months to have it done and did not need to be subjected to life threatening harm in the interim and even they o j significantly points out you know one wonders how long resident actually would have had to wait to get the procedure had not the surveyor's intervened it was really just you know you know the president's good luck that the nursing home happened to come up for an annual survey that she happened to get selected a random sample and the surveyor interviewed him and it's not clear you know when if ever the president would have received this procedure had not the surveyor's intervened and that's very the critical point here is that they erred in concluding that the nursing home was in compliance for the first five months after the president had the oral surgery cons the a l j and cook incorrectly concluded the residents metal medical condition made surgery feasible after july twenty fifth two thousand and fourteen but not before and the board correctly concluded that the error and the reason is that the  there is legal error again there is no evidence that dr scott's made a mess medical judgment the resident was too sick to have a procedure during the initial five months after the oral surgery consulate and the a l j was clearly attempting to determine retrospectively what the medical judgment would have been made appropriately at that time and also there was a factual error in that the same facts that to support a finding of an action for the july twenty fifth fourteen through october fifteenth fourteen period apply with equal force to the earlier time period it's undisputed that mountain state made a request for medical clearance on feb seventeenth two hundred fourteen the same day as the or surgery consol the pointed out that nurse hodges acknowledged she knew that there was that medical request yet there were no assessments of the residents condition at all during the first five months  honour's again there are just three critical points here that noncompliance an issue is the nursing homes inaction that dr skaggs never made a medical determination that the president was too sick to have the tooth extraction procedure and they  concluding that the nursing home was in compliance for the first five months after the president had oral surgery console there was both legal air and factual air thank you all right i have for  very briefly thank you owners first of all the so far as we can tell the fine in this case the money penalty was the largest against any nursing home in the country at the time so far as we can tell there's been some bigger ones more recently but  facility doing nothing and so on again disguises what we think is the legal issue that's before you this is not a typical nursing home case this court has seen quite a few of them argue quite a few of them myself were facilities trying to explain away some bad outcomes or explain why why it's nurses didn't fall of physicians order in this case the war had to do with gauge in some legal gymnastics even counsel herself sort into the specific regulation that they cited and it's interesting that in its it's briefs c m s has never really addressed that issue you know even if you look at this from a chevron perspective right where an agency has some leeway to interpret its regulations as some of the court decisions that we've cited you say that that leeway you know how are you reading these days and simpler critiquing at these days so  really really sort of is cut off are you getting to the second and third level interpretations were c m s has never given any guidance and there are v m serene's and reams of guidance not one of which says a survey or of you know state inspector nurse has the authority to go back and start questioning physician judgments and that we think is is the is critically or there is no general warrant under this statute which is entitled nursing home reform under these regulations which we're entitled long term care nursing home cards disposition for surveyors essentially to interpose their personal preferences their personal opinions about what doctors should have done and then you have once the process gets going you know once you get an appeal and am in jail you wind up having as we say in the briefs the board sort of you know does what it needs to do to get to resolve and in this case the doing what it needs to do has created a real problem for nursing facilities and that is it is raised a very large question as  suggested when is a nurse required by law to go outside what she believes to be the scope of her practice and question if the zisha or even bring to the physicians attention i mean and again it is a problem a practical problem when do you want nurses to be telling physicians they need to revisit their previous judgments or that the nurse may disagree with the physician's characterization of  condition or that there is a problem you know with this surgeon right should we the nurses interpose ourselves in the middle to address a problem and needed the board of the a j address those issues but those are issues that necessarily result from the way that c m s has applied this regulation in this case regulation talks about highest practicable status right and that has to be in terms of the physician's judgment and it talks about providing care in accordance with necessary services in accordance with the nursing plan of care that does not give nurses authority to start going off into areas like anesthesia suitability for surgery relative priority of of medical conditions and with due respect that's what we think this case is about we think virtually everything and we raised this thr raised this in our request for years raised the giant reserve board threw out that virtually everything that the judge in the board addressed really goes beyond the scope of this regulation and causes nursing facilities great problems to the extent that it confuses the relationship between nurses and physicians and that's why we think you should provide a regulation the way it's written with the conditions that are written in the plain language of the regulation not give c m s a warrant to put interpretations of interpretations on the regulation thank you thank you all right we'll come down and greet counsel and asked the clerk to it's your until tomorrow morning at nine am this