U.S. v. Greenbelt Nurs¡nq
Illllllilli NH-MD-001-002
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND^
(SOUTHERN DIVISION)

UNITED STATES OF AMERICA

:

Plaintiff,

:

v.

: Civil Action No.

GREENBELT NURSING &

:

REHABILITATION CENTER 7010 GREENBELT ROAD GREENBELT, MARYLAND 20770

NORTHERN HEALTH

FACILITIES, INC.

:

105 WEST MICHIGAN STREET

MILWAUKEE, WISCONSIN 53203

and

EXTENDICARE HEALTH

SERVICES, INC.

:

105 WEST MICHIGAN STREET

MILWAUKEE, WISCONSIN 53203 :

and

:

EXTENDICARE HOLDINGS, INC. : 105 WEST MICHIGAN STREET MILWAUKEE, WISCONSIN 53203 :

and

:

EXTENDICARE HEALTH

:

FACILITIES, INC.

105 WEST MICHIGAN STREET

:

MILWAUKEE, WISCONSIN 53203

and

6. The Nursing Home Reform / ct mandates that nursing facilities such as Greenbelt comply with federal requirements relating to the provision of services. 42 U.S.C. § l396r(b). Specifically, in terms of the quality of life for residents of nursing facilities, the Act states that "a nursing facility must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident." 42 U.S.C. § l396r(b)(l)(A).
7. The Nursing Home Reform Act further mandates that a nursing facility "provide services and activities to attain or maintain the highest practical physical, mental and psychological well-being of each resident in accordance with a written plan of care which -– (A) describes the medical, nursing, and psychological meeds of the residents and how such needs will be met;..." 42 U.S.C. § l396r(b)(2)(A).
8. The Nursing Home Reform Act imposes a duty upon the nursing facility to fulfill the resident's care plans by providing, or arranging for the provision of, among other things, nursing and related services and medically-related social services that attain or maintain the highest practical physical, mental, and psychological well-being of each resident, as well as pharmaceutical services, therapy services and dietary services to meet the nutritional and special dietary needs of each resident. 42 U.S.C. § l396r(4)(A)(I-iv).
9. The Medicare Program is a health insurance program for individuals 65 years and older, certain disabled individuals under age 65, and people of any age who have

permanent kidney failure. The Medicare statute is codified at 42 U.S.C. § 1395 (Title XVIII of the Social Security Act, 42 U.S.C. § 483.1 et sea).
10. The Medicaid Program is a joint federal-state program funded under Title XIX of the Social Security Act. The Maryland Department of Mental Health & Hygiene ('MDHMH") administers the Medicaid Program in Maryland. Its subagency, the Licensing and Certification Administration, oversees participation requirements in addition to State licensing regulations. As a prerequisite to enrollment as a provider in the Medicaid Program, long-term care facilities are required to enter into provider agreements and agree to, among other things, comply with federal and State provider participation requirements as a condition of federal and State funding.
11. The Social Security Act mandates that long term care nursing facilities that participate in the Medicare and Medicaid Programs, meet certain specific requirements in order to qualify for such participation. These requirements are set forth at 42 C.F.R. § 483.1 et seg. and "serve as the basis for survey activities for the purpose of determining whether a facility meets the requirements of participation in Medicare and Medicaid. 42 U.S.C. § 483.1. Compliance with these requirements are a condition of federal funding and mandate that a facility will provide basic services enumerated in 42 C.F.R.§483.1 et seq., including quality of care necessary "to attain or maintain the highest practicable physical, mental, and psychosocial well being...."42 C.F.R.§ 483.25.

12. The Nursing Home Reform Act also mandates that the State shall be responsible for certifying, in accordance with surveys conducted by the State, the compliance of nursing facilities. The Secretary of the MDHMH is responsible for certifying the compliance of State nursing facilities with the requirements of the requirements of the Nursing Home Reform Act. 42 U.S.C. § l396r(g)(l)(A).
THE GREENBELT SURVEYS 13. On or about January 20, 21, 22, 23, and 26, 1998, the MDHMH, through the Licensing and Certification Administration, conducted an annual survey (the "January Survey") at Greenbelt to determine if the facility was in compliance with Federal participation requirements for nursing homes participating in the Medicare and/or Medicaid Programs. The January Survey found that Greenbelt was not in substantial compliance with Federal and State participation requirements and noted deficiencies involving substandard care. 14. On or about February 6, 1998, the MDHMH advised Greenbelt that the facility's noncompliance constituted substandard quality of care as defined at § 488.301, §§ l8l9(g)(5)(C) and l9l9(g)(5)(C) of the Social Security Act, and 42 C.F.R. 488.325(h) . 15. As a result of its noncomplianwe, the MDHMH advised Greenbelt of its obligations to submit a plan of correction with 10 days and that the facility had three months to achieve substantial compliance within three months of the last survey date, April 26, 1998.

16. Greenbelt Nursing Center subsequently r·dvised the MDHMH that it was in substantial compliance as of March 26, 1998.
17. On or about April 8. 9, 10. and 24. 1998. the MDHMH revisited Greenbelt and conducted another survey (the "April Survey") to verify that the facility had. as it certified, achieved and maintained compliance with the deficiencies cited in the January Survey.
18. On or about May 4, 1998, the MDHMH advised Greenbelt that, contrary it its certification, the facility was not in substantial compliance with the requirements for participation. As a result of its noncompliance, the MDHMH again advised Greenbelt Nursing Center of its obligations to submit a plan of correction with 10 days and that the facility had until July 26, 1998 to achieve substantial compliance. MDHMH proposed significant daily fines in connection with the survey deficiencies.
19. On or about May 13, 1998, the federal agency charge with regulatory oversight of long term care facilities, the Health Care Financing Administration ("HCFA:'), advised Greenbelt that, as a result of its numerous deficiencies noted in the January and April Surveys and its subsequent failure to achieve substantial compliance, Greenbelt no longer met the requirements for participation as a provider of services under the Medicare and Medicaid Programs. As a result of the January and April Surveys' findings, HCFA advised Greenbelt that payments for all new admissions to the facility would be denied effective June 4, 1998. HCFA also advised Greenbelt Nursing Center that if it remained out

of compliance, its provider agreement would be terminated on July 26, 1998. Pursuant to its lawful authority and based upon the recommendations of MDHMH. HCFA also imposed a civil money penalty ("CMP") in the amount of $700.00 per day effective January 26. 1998 and continuing up until the date the facility made the necessary corrections to achieve substantial compliance with the participation requirements.
20. On or about June 4, 5, 8, 9, and 10, 1998, the MDHMH conducted a second revisit at Greenbelt and found that the facility was still not in substantial compliance with participation requirements and that the facility was continuing to provide substandard quality of care. The MDHMH advised the facility on or about June 26, 1998 that it was recommending to HCFA that the CMP be increased to $1,200.00 per day effective June 10, 1998 to reflect continued noncompliance. The MDHMH also advised Greenbelt that it would recommend to the Director of the Maryland Medical Assistance Policy Administration that the facility's provider agreement be terminated effective July 26, 1998 if compliance was not achieved prior to that date.
21. On or about July 14 through 17, 1998, the MDHMH revisited Greenbelt and noted continued deficiencies.
22. On or about July 24, 1998, Greenbelt certified that it was in substantial compliance with participation requiremems by submitting to MDHMH a certification of compliance together with a substantial plan of correction. Greenbelt supported its

certification of compliance with numerous written presentations of new policies and protocols to address the deficiencies cited by MDHMH.
23. As a result of Greenbelt's certification of compliance and representations regarding a plan of correction, on or about July 29. 1998. the MDHMH advised Greenbelt that it would recommend to HCFA that the contemplated termination action be rescinded based on the Greenbelt's July 24, 1998 certification that it had achieved compliance. HCFA accepted the recommendation to withdraw the termination action and accepted Greenbelt's waiver of appeal of the civil monetary penalty action. The fine due under the administrative action was discounted 35% due to the waiver of appeal rights and amounts to approximately $80,000.
24. After the July 1998 certification of compliance by Greenbelt, an investigation undertaken by the United States Attorney's Office and the Department of Health and Human Services, Office of Inspector General (OIG), into Greenbelt's systemic noncompliance with participation requirements continued. On August 17, 1998, the Office of Inspector General served a subpoena on Greenbelt and invoked its inspection authority. At the request of the U.S. Attorney's Office, and pursuant to statutory federal and State authority, MDHMH state surveyors also conducted an interim site visit to verify compliance. A HCFA surveyor participated in the intenm site visit in a monitoring capacity.
10

25. The August 17, 1998 site visit at Greenbelt revealed evidence that Greenbelt was not in compliance with program requirements as represented in July 1998 and that there continue to exist serious care deficiencies that have the potential for actual harm. The results of the DOJ-OIG investigation has established that Greenbelt¯s July 24. 1998 certification was false, that the facility remained out of compliance despite certification to the contrary, and that the care provided at the facility continued the evidence a systemic denial of care.
SUMMARY OF CARE DEFICIENCIES 26. The nature of the care deficiencies identified by MDHMH through the survey process and by the government through its investigation involve numerous and systemic instances of inadequate medical care resulting in actual harm to residents or having the potential for actual harm. Most of the care deficiencies involve a failure of medical staff to intervene in the changing medical condition of residents, failure to notify physicians timely of medical issues, the failure of physicians or the facility Medical Director to respond to nursing staff requests for physician and other medical assistance, failure to administer and monitor medications properly, failure to assess nutritional needs of residents and to provide appropriate wound care. The government's investigation identifies other areas of concern regarding the excessive use of contraci employees, employee training and morale issues that affect the delivery of services to the residents, communication with attending physicians and other health care providers. Additional concerns have been raised regarding
li

complete and accurate documentation in the medical records and the overall morale of staff and residents.
27. The August 17, 1998 inspection uncovered continued instances of the failure to provide basic levels of medical care to the residents of the facility, including, but not limited to: the inappropriate administration of medication dosage; delay in notifying a physician for eight (8) hours of change in resident's condition; failure to administer hypertension medication for a week; failure to identify that a resident was receiving two different and inconsistent antibiotics; delay of over three (3) weeks in scheduling an opthamology consultation for a resident with soreness and redness in both eyes; and, delay in notifying a physician of change of condition of a resident with stasis ulcers, who was admitted to the hospital for treatment. The deficiencies found on August 17, 1998 are the same type and nature of those deficiencies identified in prior surveys.
28. The Unites States contends that Greenbelt's submission of claims for payment to the federally-funded Medicare and Medicaid programs from at least January 1998 to August 1998, violated the False Claims Act, in that the claims submitted falsely represented compliance with all conditions for payment guaranteed under the Nursing Home Reform Act. The United States specifically contends that the July 1998 certification of compliance to avoid federal funding termination constitutes a claim for payment to the United States in reckless disregard or deliberate ignorance of the truth or falsity of the claims
12

and statements made to obtain payment from üV United States and constitutes a violation of the False Claims Act. The government's investigation is ongoing.
COUNT I PRELIMINARY INJUNCTIVE RELIEF 29. The United States real leges and incorporates by reference the above paragraphs as though fully set forth herein. 30. Defendants have failed, and continue to fail, to provide the care guaranteed by law to the residents of Greenbelt in contravention of State and Federal laws and regulations. 31. Defendants have submitted, or caused to be submitted, false certifications representing that the Greenbelt is in compliance with participation requirements when in fact the facility is not in compliance. 32. As a direct and proximate cause of Defendants' failure to provide adequate care to the residents of Greenbelt and its false certifications regarding compliance, the residents' health, safety, and well-being continue to be in serious jeopardy with real and actual potential for serious harm. 33. The residents of Greenbelt Nursing Home will suffer immediate, irreparable harm in the absence of the entry of a preliminary injunction and there exists no adequate remedy at law.
13

COUNT II FALSE CLAIMS ACT. 31 U.S.C. § 3729 34. The United States realleges and incorporates by reference the above paragraphs as though fully set forth herein. 35. Defendants have submitted or caused to be submitted, false certifications regarding their compliance with State and Federal law and regulations in order to improperly obtain continued Medicare and Medicaid funding. 36. Defendants have submitted or caused to be submitted false claims for services rendered to the residents of Greenbelt Nursing Center in deliberate ignorance and/or reckless disregard of the truth of those claims in violation of the False Claims Act, 31 U.S.C. §3729et. seg. 37. As a direct and proximate cause of Defendants' fraudulent conduct, the United States has suffered, and continues to suffer, monetary and nonmonetary harm. WHEREFORE, the United States requests that this Honorable Court: A. Enter judgment in favor of the United States on Counts I and II and against Defendants, jointly and severally; B. Enjoin Defendants from further jeopardizing the health, safety, and wellbeing of the residents of Greenbelt; C. Enter an Order that will adequately protect the health, safety, and wellbeing of the residents of Greenbelt;
14

D. Appoint a temporary manager to oversee the medical and financial operations of the Greenbelt;
E. Appoint a monitor to oversee compliance with the terms of the Court's Order protecting the health, safety, and well-being of the residents of Greenbelt;
F. Award monetary damages in an amount equal to the number of false or fraudulent claims that will be proven at trial, multiplied as provided for under 31 U.S.C. § 3729(a);
G. Enter an award in the amount of three times the total amount of damages sustained by the United States because of the acts complained of in this action;
H. Impose a penalty of no less than $5,000 and no more than $10,000 for each false claim submitted to the United States by Greenbelt;
I. Award such other and further relief as this the nature of this action may require.
15

Respectfully submitted,
Lynne A. Battaglia United States Attorney
By:
Kathleen McDermott Assistant United States Attorney (410)209-4813
By: - ^ ¿ ^ N > = X ^ l_` ^
Perry F. ‡ekus Assistant United States Attorney 6625 United States Courthouse 101 West Lombard Street Baltimore, Maryland 21201-2692 (410)209-4818
DEMAND FOR JURY TRIAL The United States hereby demands a trial by jury in this action.
Kathleen McDermott Assistant United States Attorney
16

 
 U.S. v. Greenbelt Nursing

NH-MD-001-003
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (SOUTHERN DIVISION)

UNITED STATES OF AMERICA,

:

Plaintiff,

:

v.

: Civil Action No.

GREENBELT NURSING &

:

REHABILITATION

CENTER

and

NORTHERN HEALTH

:

FACILITIES, INC.

and

EXTENDICARE HEALTH

SERVICES, INC.

:

and

:

EXTENDICARE HOLDINGS, INC.

:

and

:

EXTENDICARE HEALTH FACILITIES, :

INC.

and

EXTENDICARE HEALTH FACILITIES

HOLDING, INC.

:

Defendants.

:

___C—

MOTION FOR PRELIMINARY INJUNCTIVE RELIEF Plaintiff. United States of America, by its undersigned counsel, hereby moves pursuant to Federal Rule of Civil Procedure 65 for preliminary and permanent :njunctive relief and for cause alleges:
I. The United States has filed a Complaint under the False Claims Act, 3 1 U.S.C. 3729. seeking injunctive relief and damages in connection with an investigation of alleged federal law violations by the above-named Defendants. Greenbelt Nursing & Rehabilitation Center, et al., ("Greenbelf `) in rendering standard nursing home care. The United States alleges that Greenbelt has engaged in systemic denial of care, including but not limited to: adequate medical care, use of psychotrophic and anti-depressant medications, failure to provide minimum standards of care guaranteed by law, and the submission of claims for payment by the United States, which falsely represent that the services are rendered in compliance with the law.
2. Since January 1998. the Maryland Licensing and Certification Administration (^`MDLC``) and the Health Care Financing Administration (HCFA). the State and federal regulatory agencies responsible for providing oversight of long term care facilities such as Greenbelt, have invoked successive administrative remedies in response to findings of substandard care at Greenbelt. Both MDLC and HCFA advised Greenbelt that failure to come into compliance with program participation requirements would result in termination of funding from the Medicare aad Medicaid programs. On July 24, 1998, Greenbelt certified compliance with program requirements and represented

that it had corrected deficiencies involving substandard care. Based upon Greenbelt¯s certification of compliance and representations. MDLC and HCFA accepted the certification of compliance and Greenbelt was not terminated from federal or State program funding.
3. After the July 1998 certification of compliance, the U.S. Attorney's Office and the Office of Inspector General for the Department of Health & Human Services continued an investigation of federal law violations. On August 17. 1998. the Office of Inspector General served a subpoena on Greenbelt and invoked its inspection authority. At the request of the U.S. Attorney's Office, and consistent with statutory authority under federal and State law, state surveyors with the MDLC conducted an interim site visit and a HCFA surveyor participated in a monitoring capacity. The August 17, 1998 site visit at Greenbelt revealed evidence that Greenbelt was not in compliance with program requirements as represented in July 1998 and there continue to exist serious care deficiencies most particularly involving failure to render or ensure adequate medical care. The government believes that injunctive relief is urgently required to ensure that the residents are receiving basic care guaranteed by law.
4. On or about September 8, 1998. representatives from the U.S. Attorney's Office, Office of Inspector Genera! and the MDLC met with Greenbelt corporate representatives and counsel. The government explained the status of its investigation and its intent to seek injunctive relief by the filing of an action in U.S. District Court. As a result of extensive and cooperative discussions between the parties.

Greenoelt and the government have reached mutual agreement on the terms ot` preliminary' injunctive relief, without admission or waiver of any rights that may be asserted in this proceeding and without the necessity of a contested injunction hearing. The proposed preliminary injunction is ihereb* submitted herein for the C ourt¯s consideration and approval. The injunctive terms provide for significant protection of Greenbelt residents well beyond minimum legal requirements, including the appointment of a temporary manager of the facility, the appointment of an independent monitor and the hiring of a certified nurse practitioner. If appropriate, the parties respectfully request the opportunity to meet with the Court to discuss the preliminary injunction and the status of this action. The United States requests permission to withhold issuance of summons in this action at this time.
WHEREFORE, the United States of America pray that this Honorable Court: A. Grant its Motion for Preliminary Injanctive Relief; B. Enter the proposed Preliminary Injunctive Order submitted for approval by the Parties; C. Award such other and further relief as the nature of its cause may require.

Resnectfutly submitted.
Lynne A. Battaglia United States Attorney

J

†/¦Ç `,``J+r

Kathleen McDermott Assistant United States Attorney

(4IO`> 209-4813

Perry F. Setus Assistant United States Attorney 6625 United States Courthouse 101 West Lombard Street Baltimore, Maryland 21201-2692 (410)209-4813

CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of September 1998, a copy of the foregoing Motion for Preliminary Injunctive Relief was mailed first class, postage prepaid, to Jefferson M. Gray and Howard L. Sollins. Ober, Kaler. Grimes and Shriver. A Professional Corporation, 120 East Baltimore Street. Baltimore. Maryland 21202-1643, counsels for the Plaintiff..
Kathleen McDermott Perry F. Sekus Assistant United States Attorneys

 
 25 F.Supp.2d 690 (1998)
UNITED STATES of America, Plaintiff, v.
NORTHERN HEALTH FACILITIES, INC. d/b/a Greenbelt Nursing & Rehabilitation Center, Extendicare Health Services, Inc., Extendicare Holdings, Inc., Extendicare Health Facilities, Inc., Extendicare Health Facilities Holdings, Inc., Defendants.
No. Civ.A. AW 98-3113.
United States District Court, D. Maryland, Southern Division.
September 14, 1998.
Jefferson M. Gray, Howard L. Sollins, Ober, Kaler, Grimes and Shriver, P.C., Baltimore, MD, for Defendants.
Lynne A. Battaglia, U.S. Atty. for Dist. of Md., Kathleen McDermott, Asst. U.S. Atty., Perry Sekus, Asst. U.S. Atty., Baltimore, MD, for U.S.
PRELIMINARY INJUNCTION ORDER
WILLIAMS, District Judge.
The United States of America and the Defendants, named herein, have consented to the entry of the foregoing preliminary injunction, subject to the approval of this Honorable Court:
A. PARTIES
1. The Parties to this Preliminary Injunction are: Plaintiff, United States of America and Defendants Northern Health Facilities, Inc., d/b/a Greenbelt Nursing and Rehabilitation Center, Extendicare Health Services, Extendicare Holdings, Inc., Extendicare Health Facilities, Inc., Northern Health Facilities, Inc., Extendicare Health Facilities Holdings, Inc. All Defendants are hereinafter referred to collectively as Greenbelt Nursing & Rehabilitation Center ("Greenbelt").
B. JURISDICTION AND VENUE
2. The United States and Greenbelt stipulate and agree that this Honorable Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 31 U.S.C.A. § 3729; and Federal Rule of Civil Procedure 65; venue lies in this judicial district pursuant to 28 U.S.C.A. § 1391(b) and (c); and, the parties will be bound by the terms of this Preliminary Injunction under the terms set forth herein and as otherwise modified by the Court.
C. SUMMARY OF FACTUAL BACKGROUND
3. The United States is currently investigating allegations of federal law violations in connection with health care services rendered to nursing home residents at Greenbelt. The allegations involve the systemic denial of care, 691 including but not limited to: *691 medical care, misuse of psychotropic and anti-depressant medication, systemic failure to provide minimal standards of care guaranteed by law, and the submission of false claims to obtain payment from the United States to which Greenbelt is not entitled. The investigation is ongoing. On or about September 14, 1998, the United States filed a Complaint for Injunctive Relief, seeking preliminary injunctive relief pending the investigation to ensure that during the investigation the residents received all necessary and appropriate care guaranteed by law.

4. The United States and Greenbelt agree to the terms of the Preliminary Injunction as set forth herein (sometimes hereinafter referred to as Order or Consent Order).
D. GENERAL PROVISIONS
5. In entering into this Preliminary Injunction voluntarily and by consent, Greenbelt does not admit to any violation of law and the Parties agree that this Order may not be used as evidence of liability in any other proceeding, including any trial on the merits of this pending action. Greenbelt further preserves and does not waive any legal defense to the allegations asserted in this action and disputes the factual allegations.
6. During the duration of this action and under the terms of this Preliminary Injunction, all federal and State regulatory oversight and enforcement obligations shall remain in full effect. All administrative remedies, including the authority of the Office of Inspector General to seek exclusion and the Health Care Financing Administration and the State of Maryland to seek termination or other administrative remedies, are preserved and are not supplanted by the terms of the Preliminary Injunction, except as modified by agreement of the Parties or this Court.
7. This Preliminary Injunction is legally binding and judicially enforceable by the Parties and it shall be applicable to and binding upon all of the parties, their officers, agents, employees, assigns, and successors. All reports, verifications and notices required to be submitted to the Parties by this Order shall be made directly to the United States Attorney's Office and the Office of Inspector General for the Department of Health & Human Services and counsel for Greenbelt.
E. COMPLIANCE WITH FEDERAL LAW
8. In the operation and management of Greenbelt and in providing services to Greenbelt's residents, Greenbelt shall comply fully with the particular provisions of the Nursing Home Reform Act and other relevant provisions as embodied in Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. and Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. all regulations and guidelines promulgated pursuant to these statutes and the American with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., including, but not limited to 42 C.F.R. Part 483, Subparts B, C, D, and E, § 483.1 through § 483.206. The Parties agree that the language in 42 C.F.R. § 483.1 through § 483.206 is incorporated by reference into this Preliminary Injunction and that the provisions of this Preliminary Injunction are to be construed consistent therewith. Greenbelt shall also comply fully with the particular provisions of the Greenbelt's protocols and the plans of correction submitted to the State of Maryland in connection with survey actions and administrative actions pursued from January 1998 to present and shall submit within twenty (20) days from the date of this Order verification that the plans of correction are implemented. Greenbelt agrees that its obligation to comply fully with its protocols and plans of correction does not limit its obligation to comply fully with federal law or with the provisions of this Order.
9. Greenbelt's submission of plans of correction and/or certifications of compliance by the Health Care Financing Administration does not in and of itself constitute compliance with this Preliminary Injunction, nor does a cited deficiency by state or federal surveyors establish noncompliance with this Preliminary Injunction. Findings of the Monitor provided under this Order do not, in and of themselves, constitute deficiencies by federal or State surveyors.
692 10. If Greenbelt seeks to add a policy, procedure or protocol which addresses resident *692 care issues or to modify a policy, or procedure or protocol which has been attached to and incorporated into this Consent Order, Greenbelt shall first submit any proposed new or modified policy, procedure or protocol to the United States and the Monitor as defined in paragraph 44-48(u) for review. In the event that any administrative agency takes any action requiring a response or plan of correction, Greenbelt's response and any subsequent plan of correction shall proceed pursuant to administrative requirements without prejudice or delay.
11. The United States or the Monitor may provide Greenbelt with comments or recommendations regarding the proposed new or modified protocol within ten (10) days of receipt of the proposed modification.

12. If the United States or the Monitor do not submit any comments or recommendations, the Greenbelt shall submit the new or modified policy, procedure or protocol to the Court as an agreed-upon modification of the Preliminary Injunction.
13. In the event that the United States or the Monitor submits any comments or recommendations, Greenbelt shall consider the comments and recommendations. If Greenbelt declines to adopt the recommendations or comments of the United States or the Monitor, they shall so notify, in writing, the United States and the Monitor, and the parties and the Monitor shall confer within ten (10) days.
14. If the Parties reach an agreement to add or modify the Preliminary Injunction, the Parties shall submit the new or modified policy, procedure or protocol as an agreed upon exhibit or amendment to this Order, subject to the approval of the Court. If the Parties do not reach agreement, Greenbelt may seek addition or modification of the policy, procedure or protocol with the Court and the United States may present its objections.
15. A new or modified policy or protocol may be implemented immediately, if necessary, due to emergency conditions or to comply with a change in the law, and then submitted to the Court.
F. GREENBELT'S POLICIES AND PROCEDURES
16. Greenbelt agrees to comply, and to cause all of its subsidiaries officers, agents, employees, contractors and/ or subcontractors to comply with its policies and procedures, referenced herein, including all plans of correction arising out of survey actions pursued by the State of Maryland Licensing and Certification Administration from January 1998 to the present. Greenbelt will provide the United States with notice and a reasonable period of time to review and approve additional policies and procedures pertaining to resident care as they are created, modified or discontinued.
G. NUTRITION AND WOUND CARE STANDARDS
17. Greenbelt agrees to provide wound care (decubitus ulcer) treatment that meets or exceeds the Agency for Health Care Policy and Research Guidelines, attached hereto and incorporated herein as Exhibit A. Additionally, Greenbelt agrees to provide nutrition to promote healing and avoidance of decubitus ulcers as set forth in Exhibit B, attached hereto and incorporated herein.
18. Greenbelt agrees that Registered Dieticians will accurately calculate all residents ideal body weight, compare current body weight to the residents usual body weight in order to determine an appropriate healthy weight range for each resident on a regular and consistent basis and will clearly document such findings in the residents charts. Greenbelt further agree to identify and provide timely clinical responses to all "nutritionally at risk" and "nutritionally compromised" residents.
H. RESIDENT SAFETY
19. Greenbelt shall promptly notify the Monitor of any resident death resulting from injuries, malnutrition, dehydration, diabetes or complications thereof, any incident of staff abuse or neglect of a resident, transfer and admission to a hospital as a result of injury or accident and any other incident involving a resident that prompts a 693 full internal investigation specifying for each death or incident, the full name and social security number of *693 the resident, the date of death or incident, and, to the extent that such information is available to Greenbelt, a brief description of the events surrounding the death or incident.
I. BASIC CARE
20. Greenbelt shall ensure that staff members provide residents with appropriate basic care services that meet the residents individual needs. Among other things, Greenbelt shall ensure that all residents receive prompt and

appropriate medical care, and complete nutritional and hygiene care. Greenbelt shall care for the residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life.
J. COMPREHENSIVE ASSESSMENT AND CARE PLAN
21. Greenbelt shall ensure that there is a timely, complete, and accurate minimum data set (MDS) and a current, complete and accurate interdisciplinary care plan in each resident's chart. Greenbelt shall conduct, at the time of each resident's admission and periodically thereafter (at least annually and promptly after a significant change in the residents physical or mental condition), a comprehensive, accurate, standardized assessment of each residents functional capacity with input by all relevant disciplines.
22. Greenbelt shall ensure that within seven (7) days after the completion of the comprehensive assessment, an interdisciplinary team develops a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, mental and psychosocial needs that are identified in the comprehensive assessment. The care plan shall describe the services that are to be furnished to attain or maintain the resident's highest practicable physical, mental, and psychosocial well-being and must meet professional standards of quality. Greenbelt shall ensure that each resident's comprehensive care plan is implemented in a timely manner by appropriate and adequately trained staff. Greenbelt shall examine each resident no less than once every three (3) months and as appropriate, revise the resident's assessment to assure the continued accuracy of the assessment.
K. ACTIVITIES
23. Greenbelt shall provide residents with sufficient, meaningful activities both during the week and on the weekends to ensure that the residents attain or maintain the highest practicable physical and psychosocial wellbeing. Greenbelt shall provide for an ongoing structured program of activities designed to meet the individual interests and physical and psychosocial well-being of each resident, and Greenbelt shall provide medicallyrelated social services to attain or maintain the highest practicable physical and psychosocial well-being of each resident. Greenbelt shall ensure that unit-based activities are provided for those residents unable to attend activities elsewhere. Greenbelt shall evaluate the activities programs for effectiveness and modify its programs as warranted.
L. CHEMICAL AND PHYSICAL RESTRAINTS
24. As required by law for all facilities, Greenbelt shall ensure that physical and chemical restraints are used only pursuant to accepted professional standards and that they are never used as punishment or for the convenience of staff. Greenbelt shall assess, document, advocate and ensure that any restraints used, whether chemical or physical, are the least restrictive restraints appropriate for the resident and the situation. An interdisciplinary team will review and evaluate the need for restraints in all cases. Greenbelt recognizes that it has an obligation to seek the least restrictive restraint for residents.
25. Greenbelt shall ensure that appropriate physician orders are obtained and followed before physical restraints are utilized and shall at all times seek the implementation of the least restrictive alternative for its residents.
26. Greenbelt shall only use psychotropic medication in accordance with accepted professional standards and 694 where there is an appropriate psychiatric or neuropsychiatric diagnosis. Greenbelt must evaluate the *694
availability of behavior management prior to the use of medication. As required by law for all facilities, Greenbelt must not use psychotropic medication as punishment, in lieu of a training program, for behavior control, without a psychiatric or neuropsychiatric diagnosis, or for the convenience of staff.
27. Absent emergency circumstances, Greenbelt shall ensure that prior to using psychotropic medication, other less restrictive techniques have been systematically tried and have been demonstrated to be ineffective. Prior to using psychotropic medication, Greenbelt will also ensure that:

(a) a psychiatrist reviews the current medication regimen of each individual to determine whether the type and dosage of the medication is appropriate and still necessary, and recommends any changes in the medication regimen;
(b) the psychiatrist consults with the resident's primary care physician, nurse, and other appropriate members of the resident's interdisciplinary team, to determine whether the harmful effects of the residents mental illness clearly outweigh the possible harmful side effects of the psychotropic medication and whether reasonable alternate treatment strategies are likely to be less effective or potentially more dangerous than the medication.
M. PSYCHIATRIC AND RELATED SERVICES
28. Greenbelt agrees to develop and implement a professionally appropriate system to: (a) regularly monitor the progress of the Greenbelt's residents with mental illness to ensure that staff embers are continually taking whatever steps are necessary and appropriate to address the individuals mental health needs; (b) provide ongoing monitoring of the efficacy of treatment and make revisions in the treatment plan when warranted; (c) implement a protocol whereby a psychiatrist promptly sees any resident with a diagnosis of mental illness who has recently exhibited violent or threatening behaviors.
29. Greenbelt shall develop and implement an adequate and appropriate system, utilizing an interdisciplinary approach and based on generally accepted professional standards, for detecting, reporting, and responding to any drug induced side effects of psychotropic medication; take special care to adequately and appropriately monitor involuntary movement side effects; adequately train and in-service appropriate nursing and direct care staff in how to properly monitor and document medication side effects.
N. MEDICAL CARE
30. Greenbelt shall ensure that residents receive adequate preventive, chronic, routine, acute, follow-up, and emergency medical care in accordance with generally accepted standards of care. Greenbelt shall provide the necessary health care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. To that end, Greenbelt shall ensure that a physician is available twenty four (24) hours a day and seven (7) days a week to address changes in resident's medical conditions which warrant medical intervention.
31. Greenbelt agrees to hire and retain a full time certified nurse practitioner (CNP) for the facility. The CNP shall be identified within fourteen (14) days from the date of this of this Order. The CNP shall be paid a competitive salary. The CNP shall be on-site at the facility on a full-time basis. The responsibilities of the CNP include, but are not limited to, the following:
a. Consistent interaction with Greenbelt's Medical Director in order to ensure that appropriate medical care is being rendered to residents;
b. Coordination of care with all attending physicians in order to ensure that appropriate medical care is being rendered to each resident;
c. Prescribing and administering of medications in accordance with a nurse practitioner's scope of practice in conjunction with the attending physician and/or Medical Director;
d. Review all current and relevant prior laboratory values for residents in a manner which ensures that the 695 residents' full medical *695 conditions are promptly evaluated and addressed;
e. Ensure effective communication among all disciplines within the nursing home, including but not limited to, nursing, medical, dietary and pharmacy, in order to coordinate care and timely address any change in a resident's medical condition.

32. The Medical Director shall ensure that all attending physicians work collaboratively with the certified nurse practitioner. In the event that an attending physician disagrees with any course of treatment recommended by the certified nurse practitioner or if an attending physician does not respond in a timely fashion to a resident's need for medical care, the Medical Director shall immediately review the resident's clinical condition and take all necessary and appropriate steps to ensure that timely medical care is provided.
33. The Medical Director, Certified Nurse Practitioner, and Greenbelt's Quality Assurance Committee shall undertake a specialized clinical review of medical care in connection with:
a) residents receiving specialized rehabilitation care;
b) physical and occupational therapy services and the frequency of resident contractures;
c) use of psychotropic and anti-depressant medication;
d) unplanned weight changes;
e) bowel maintenance and untreated incontinence issue; and
f) pharmacy operations, including policies for use of psychotropic and anti-depressant drugs;
g) the reporting of any response to laboratory results.
The results of this specialized clinical review shall be reported with recommendations to the Temporary Manager as defined in paragraph 44, Monitor and the Parties within thirty (30) days from the date of this Order. Greenbelt's rights under applicable state law governing the use by third-parties of information pertaining to the quality assurance process are not waived.
34. Greenbelt shall take all reasonable steps, including prompt intervention by its Medical Directors, or revocation of physician privileges at Greenbelt, to ensure that residents receive the medical care required under paragraphs 30 and 33, and as otherwise necessary, including that:
a. Physicians promptly obtain and review all laboratory and test results, document the responses in the residents' charts and take appropriate actions to address any abnormal results;
b. Physicians complete monthly notes in the residents charts on a timely basis;
c. Physicians do not rely inappropriately on telephone orders in treating residents;
d. Physicians address promptly residents significant or undesirable weight loss and personally provide continual follow-up until the situation is adequately addressed;
e. Health care of all diabetic residents comports with generally accepted medical practice;
f. As indicated by accepted professional standards of care, in the event of a medical emergency involving a resident, including status epilepticus, facility staff will immediately call an ambulance, and will initiate appropriate emergency interventions while awaiting arrival of the ambulance prior to transport of the resident to the closest appropriate health care facility;
g. Physicians conduct comprehensive health care evaluations of all residents;
h. Physicians determine what specialized medical services are required for the residents and ensure that such services are timely provided whenever necessary to evaluate or treat the residents medical problems;
i. An integrated medical plan of care for each resident exists;
j. Each resident's medical status and progress in response to the residents medical plan of care is regularly and adequately reviewed and all changes appropriately documented;

k. Each resident's drug regimen is free from unnecessary drugs, i.e., any drug used in excessive

696

dose, for excessive duration, without adequate monitoring, without *696 adequate indications for

its use, in the presence of adverse consequences which indicate the dose should be reduced or

discontinued, or any combinations of the reasons set forth herein;

l. Adequate and appropriate interdisciplinary communication among relevant professionals especially between and among physicians and nurses;

m. physicians communicate with the pharmacist pertaining to therapeutic responses by residents to prescribed medications.

O. NURSING CARE

35. Greenbelt shall ensure that residents receive adequate and appropriate nursing care, and that nurses perform their responsibilities in keeping with accepted professional standard of care by adequately identifying health care problems, notifying physicians of health care problems, monitoring and intervening to ameliorate such problems, and keeping appropriate records of residents health care status. Greenbelt shall provide all necessary nursing care and services to attain or maintain the residents highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessments and plans of care for each resident.
Greenbelt shall take, at a minimum, the following measures:
a. Conduct adequate comprehensive nursing assessments, with quarterly updates the nursing care needs of the residents;
b. Develop nursing protocols and develop and implement adequate and appropriate comprehensive interdisciplinary care plans to address each residents health care needs;
c. Routinely perform ongoing monitoring of serious medical conditions, including such basic procedures as taking vital signs and measuring weights;
d. Implement a system for recording important information about a residents status to monitor changes;
e. Regularly monitor the progress of residents to ensure that staff members are continually taking whatever nursing steps are necessary for the health care of the individual;
f. Communicate essential information to physicians;
g. Follow physician orders or document fully why a physician order was not expressly followed;
h. Administer medications in a timely manner consistent with accepted nursing practice and provide the necessary supervision and training to minimize medication errors and if a medication error occurs, promptly investigate the error, properly document it and take appropriate corrective action;
i. Ensure that residents are provided with adequate skin care, nutrition, turning and positioning to decrease the likelihood of skin breakdown; perform skin care assessments and ongoing treatments and therapy to prevent skin breakdown; comply fully with the particular provisions of Exhibits A and B;
j. Follow standard infection control procedures maintain aseptic technique and conditions at treatment sites; require staff to wash their hands after each direct resident contact for which hand washing is indicated by accepted professional practice; establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of disease and infection;

k. Ensure that resident's nutritional intake is adequate, that weights are routinely and accurately

recorded, and that residents receive appropriate diets, adequate amounts of food, and sufficient

quantities of fresh fluids to ensure proper hydration; ensure that residents are provided with proper

mealtime assistance and supervision and with appropriate eating assistance devices and adaptive

equipment where necessary; ensure that residents with significant or undesirable weight gains or

losses are promptly seen by nursing and dietary staff and provided with continual follow-up until

the situation is adequately addressed; ensure that each resident receives food prepared by

697

methods that conserve *697 nutritive value, flavor, and appearance food that is palatable

attractive, and at the proper temperature prepared in a form designed to meet individual needs;

offer substitutes of similar nutritive value to residents who refuse food served. This provision shall

not limit individual health care decisionmaking under applicable law;

l. Utilize an interdisciplinary approach to properly assess and appropriately treat residents with problems and residents who are unable to eat orally in accordance with accepted professional procedures;

m. Procure sufficient nursing staff to ensure adequate continuity of resident care so that the facility is not excessively reliant on temporary contract nurses; employ sufficient nursing staff to provide nursing and related services on a 24-hour basis to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care.

P. THERAPY SERVICES

36. Greenbelt shall provide each resident in need of such services with adequate and appropriate physical therapy and occupational therapy services.
Q. MEDICAL RECORDS

37. Greenbelt shall ensure that they maintain medical records for each resident that comports with accepted professional standards and includes current information with respect the individuals care, medical treatment, and activities. Greenbelt shall maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete, accurately documented, readily accessible, and systematically organized. Greenbelt recognizes that if clinical responses are not clearly documented, there is a rebuttable presumption in this proceeding that they did not, in fact, occur.
38. Greenbelt shall ensure that professional staff, including physicians, psychiatrists, therapists, nurses, as well as direct care staff, make timely and appropriate notes in the residents records detailing the residents progress condition, and detailing the steps needed to fully meet the resident's needs. Greenbelt shall ensure that all professional staff utilize such records in making care, medical treatment and training decisions.
R. QUALITY ASSURANCE

39. Greenbelt shall maintain a quality assessment and assurance committee that develops and implements appropriate plans of action to correct identified quality deficiencies, including all plans of correction related to the State of Maryland's surveys and deficiencies from January 1998 to the present.
S. STAFFING

40. Greenbelt shall ensure that a sufficient number of professional and non-professional staff, especially nurses, are employed to fully met the needs of the residents during the evening, and on the weekend.

T. STAFF TRAINING
41. Greenbelt shall provide a training program to ensure that all professional and direct care staff who provide services to residents are adequately trained to implement the requirements of this Consent Order and are thereafter provided with in-service training on a regular basis. Greenbelt shall provide a training program for all employed and contract personnel, regarding, at a minimum: nutrition; wound care and infection control; abuse and neglect; appropriate drug therapies for the elderly; diabetes; behavior modification; renal disease; mental health needs of residents; and a coordinated interdisciplinary approach to providing care to residents. Greenbelt shall ensure that all nurse aides are appropriately trained and demonstrate competence in the performance of their duties. Greenbelt also agrees to report all training sessions to the Monitor.
42. Greenbelt shall ensure that its employed and contract medical staff regularly attends continuing medical education programs that address geriatrics, including but not limited to, medical therapies utilized in wound care and diabetic care for long-term care residents.
698 *698 U. TEMPORARY MANAGEMENT
43. Greenbelt shall hire and install a Temporary Manager at Greenbelt selected by the United States in consultation with Greenbelt within ten (10) days from the date of the Order. The Temporary Manager shall be paid a competitive salary. The Parties agree that the Temporary Manager shall have all of the regulatory authority set forth in 42 C.F.R. § 488.415(a) including but not limited to independent authority to hire, terminate or reassign, staff, obligate facility funds, alter facility procedures, and manage the facility to correct all deficiencies identified in Greenbelt. Greenbelt shall employ the Temporary Manager until Greenbelt is in substantial compliance with all federal and State law requirements, and for a period of at least nine (9) months thereafter. The Temporary Manager may be removed from his/her position for cause by Greenbelt with the assent of the United States. The Temporary Manager shall coordinate his/her activities with the Monitor to ensure that appropriate decisions are made pertaining to staffing and quality of care issues for those residents residing at Greenbelt.
The Temporary Manager shall undertake a specialized review of personnel issues for all Greenbelt employees and provide recommendations to the Parties and the Monitor within thirty (30) days from the date of this Order on issues relating to morale, use of contract employees, wages, qualifications, training, and compliance with federal employment laws.
The Temporary Manager shall undertake a specialized review of all Greenbelt's policies, protocols and performance in connection with all plans of correction implemented in connection with State of Maryland's surveys and administrative actions since January 1998 and shall provide a report and recommendation to the Parties and the Monitor within thirty (30) days of the date of its hiring.
V. MONITOR
44. A Monitor, selected by the United States and paid by Greenbelt, shall be appointed within ten (10) days from the date of this Order, and shall have full authority to oversee Greenbelt's compliance with the provisions of this Order and independently assess Greenbelt's compliance with this Order. The Monitor shall not be bound in his or her conclusions, in whole or in part, on the basis of any certification by the Health Care Financing Administration. In addition, the Monitor shall advise management and staff as to possible procedures that, in the Monitor's view, may be implemented to facilitate compliance with this Order.
45. Greenbelt agrees to allow the Monitor access to Greenbelt Nursing Home at any time and without prior notice, to assess compliance with this Order. The Monitor shall visit Greenbelt without appointment within his/her discretion but at least three times (3) monthly until this Order is terminated and shall have immediate access to all nursing home residents and their records. The Monitor shall also have access to relevant documents and records in the possession of Greenbelt and to Greenbelt's quality assurance reviews for purposes of ensuring

coordination of responses to identified problems. Upon request, the Monitor will be promptly provided with access to and/or copies of incident reports investigations, resident records, and any other records necessary to enable the Monitor to fulfill his or her duties under this Order. The Monitor shall attempt to coordinate his or her activities with relevant personnel in order to minimize disruption in the day to day operations of the facility. At all times, the Monitor shall respect the privacy and dignity of all residents.
46. The Monitor shall create a report documenting any adverse findings relating to compliance with this Order and shall present the report within ten (10) calendar days of the site visit to the Greenbelt, to the Parties. The Monitor shall submit to the Parties a quarterly status report regarding the Greenbelt's compliance with the terms of this Order. The Monitor may confer and correspond with the Parties on an ex parte basis.
47. The Parties agree that the Monitor serves at the behest of the United States and may be removed from the Monitor position and replaced solely at the discretion of the United States.
699 *699 48. The Monitor may retain independent consultants, as needed, to meet his or her obligation under this Order. Greenbelt shall bear all reasonable costs of the Monitor.
W. ACCESS TO GREENBELT'S FACILITIES
49. In connection with implementation of the obligations under this Order, the Monitor, the United States and its agents shall have the right to request, inspect and copy facility records, resident charts and other documents, including all financial data pertaining to Greenbelt Nursing Center, conduct interviews with residents and staff outside the presence of supervisory staff or counsel, and observe activities normally conducted at the various facilities to assess compliance with this Order. The Monitor, the United States and its agents agree to respect the privacy and dignity of all residents.
X. DURATION OF PRELIMINARY INJUNCTION
50. The Court shall retain jurisdiction of this action for all purposes under this Order until Greenbelt has fully and faithfully implemented all provisions of the Order and until this action is otherwise dismissed or reduced to judgment.
Y. ENFORCEMENT OF CONSENT ORDER
51. In the event that Greenbelt and/or their agents, employees contractors and subcontractors fail to comply materially in good faith with the terms of this Order, that is, to meet any obligation under this Order that has a significant impact on the quality of care rendered to any resident or residents, or should any of Greenbelt's representations be materially false the United States may at its sole discretion, exercise all rights and responsibilities under federal law and further may seek a Contempt of Court based on the failure of Greenbelt and/or their agents, employees and subcontractors to materially comply with this Consent Order. The parties agree that, after a finding of civil contempt, a penalty of ten thousand dollars ($10,000) per day shall be assessed, beginning upon the finding of contempt and lasting until all defaults are cured. After curing all defaults, the Greenbelt may petition the Court to lift its contempt order and to withdraw the imposition of any penalties.
Z. COSTS
52. All parties shall bear their own costs, including attorney fees, except that Greenbelt shall bear all reasonable costs associated with implementation of this Preliminary Injunction, including all costs associated with the Temporary Manager and the Monitor.

ZZ. RETALIATION
53. Greenbelt and its agents, employees and/or subcontractors agree not to take any retaliatory action against any individual or individuals who cooperated with this investigation and/or who cooperates with the United States or the Monitor throughout the pendency of this action.
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 U.S. v. Greenbelt Nursing

NH-MD-001-001
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (SOUTHERN DIVISION)

UNITED STATES OF AMERICA,

:

Plaintiff,

:

v.
NORTHERN HEALTH FACILITIES, INC. D/B/A GREENBELT NURSING & REHABILITATION CENTER
EXTENDICARE HEALTH SERVICES, INC.

: CIVIL ACTION NO.
: • :

EXTENDICARE HOLDINGS, INC.

EXTENDICARE HEALTH

:

FACILITIES, INC.

EXTENDICARE HEALTH

:

FACILITIES HOLDINGS, INC.

Defendants. ...0O0...
PRELIMINARY INJUNCTION ORDER

The United States of America and the Defendants, named herein, have consented to

the entry of the foregoing preliminary injunction, subject to the approval of this Honorable

Court:

A. PARTIES

1. The Parties to this Preliminary Injunction are: Plaintiff, United States of America

and Defendants Northern Health Facilities, Inc., d/b/a Greenbelt Nursing and Rehabilitation

Center, Extendicare Health Services, Extendicare Holdings, Inc., Extendicare Health Facilities, Inc., Northern Health Facilities, Inc., Extendicare Health Facilities Holdings. Inc. All Defendants are hereinafter referred to collectively as Greenbelt Nursing & Rehabilitation Center ("Greenbelt").
B. JURISDICTION AND VENUE 2. The United States and Greenbelt stipulate and agree that this Honorable Court has jurisdiction pursuant to 29 U.S.C. § 1331 and 31 U.S.C.A. § 3729; and Federal Rule of Civil Procedure 65; venue lies in this judicial district pursuant to 28 U.S.C.A. § 1391 (b) and (c); and, the parties will be bound by the terms of this Preliminary Injunction under the terms set forth herein and as otherwise modified by the Court.
C. SUMMARY OF FACTUAL BACKGROUND 3. The United States is currently investigating allegations of federal law violations in connection with health care services rendered to nursing home residents at Greenbelt. The allegations involve the systemic denial of care, including but not limited to: medical care, misuse of psychotropic and anti-depressant medication, systemic failure to provide minimal standards of care guaranteed by law, and the submission of false claims to obtain payment from the United States to which Greenbelt is not entitled. The investigation is ongoing. On or about September 14, 1998, the United States filed a Complaint for Injunctive Relief, seeking preliminary injunctive relief pending the investigation to ensure that during the investigation the residents received all necessary and appropriate care guaranteed by law. 4. The United States and Greenbelt agree to the terms of the Preliminary Injunction

as set forth herein (sometimes hereinafter referred to as Order or Consent Order). D. GENERAL PROVISIONS
5. In entering into this Preliminary Injunction voluntarily and by consent, Greenbelt does not admit to any violation of law and the Parties agree that this Order may not be used as evidence of liability in any other proceeding, including any trial on the merits of this pending action. Greenbelt further preserves and does not waive any legal defense to the allegations asserted in this action and disputes the factual allegations.
6. During the duration of this action and under the terms of this Preliminary Injunction, all federal and State regulatory oversight and enforcement obligations shall remain in full effect. All administrative remedies, including the authority of the Office of Inspector General to seek exclusion and the Health Care Financing Administration and the State of Maryland to seek termination or other administrative remedies, are preserved and are not supplanted by the terms of the Preliminary Injunction, except as modified by agreement of the Parties or this Court.
7. This Preliminary Injunction is legally binding and judicially enforceable by the Parties and it shall be applicable to and binding upon all of the parties, their officers, agents, employees, assigns, and successors. All reports, verifications and notices required to be submitted to the Parties by this Order shall be made directly to the United States Attorney's Office and the Office of Inspector General for the Department of Health & Human Services and counsel for Greenbelt.

F. COMPLIANCE WITH FEDERAL T AW 8. In the operation and management of Greenbelt and in providing services to Greenbelt's residents, Greenbelt shall comply fully with the particular provisions of the Nursing Home Reform Act and other relevant provisions as embodied in Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seg. and Title XIX of the Social Security Act. 42 U.S.C. § 1396 et seg. all regulations and guidelines promulgated pursuant to these statutes and the American with Disabilities Act of 1990, 42 U.S.C. § 12101 et seg., including, but not limited to 42 C.F.R. Part 483, Subparts B, C, D, and E, § 483.1 through § 483.206. The Parties agree that the language in 42 C.F.R. § 483.1 through § 483.206 is incorporated by reference into this Preliminary Injunction and that the provisions of this Preliminary Injunction are to be construed consistent therewith. Greenbelt shall also comply fully with the Darticular provisions of the Greenbelt's protocols and the plans of correction submitted to the State of Maryland in connection with survey actions and administrative actions pursued from January 1998 to present and shall submit within twenty (20) days from the date of this Order verification that the plans of correction are implemented. Greenbelt agrees that its obligation to comply fully with its protocols and plans of correction does not limit its obligation to comply fully with federal law or with the provisions of this Order. 9. Greenbelt's submission of plans of correction and/or certifications u¿ compliance by the Health Care Financing Administration does not in and of itself constitute compliance with this Preliminary Injunction, nor does a cited deficiency by state or federal surveyors establish noncompliance with this Preliminary Injunction. Findings of the Monitor provided

under this Order do not, in and of themselves, constitute deficiencies by federal or State surveyors.
10. If Greenbelt seeks to add a policy, procedure or protocol which addresses resident care issues or to modify a policy, or procedure or protocol which has been attacned to and incorporated into this Consent Order, Greenbelt shall first submit any proposed new or modified policy, procedure or protocol to the United States and the Monitor as defined in paragraph 44-48(u) for review. In the event that any administrative agency takes any action requiring a response or plan of correction, Greenbelt's response and any subsequent plan of correction shall proceed pursuant to administrative requirements without prejudice or delay.
11. The United States or the Monitor may provide Greenbelt with comments or recommendations regarding the proposed new or modified protocol within ten (10) days of receipt of the proposed modification.
12. If the United States or the Monitor do not submit any comments or recommendations, the Greenbelt shall submit the new or modified policy, procedure or protocol to the Court as an agreed-upon modification of the Preliminary Injunction.
13. In the event that the United States or the Monitor submits any comments or recommendations, Greenbelt shall consider the comments and recommendations. If Greenbelt decliu¿s to adopt the recommendations or comments of the United States or the Monitor, they shall so notify, in writing, the United States and the Monitor, and the parties and the Monitor shall confer within ten (10) days.
14. If the Parties reach an agreement to add or modify the Preliminary Injunction, the

Parties shall submit the new or modified policy, procedure or protocol as an agreed upon exhibit or amendment to this Order, subject to the approval of the Court. If the Parties do not reach agreement, Greenbelt may seek addition or modification of the policy, procedure or protocol with the Court and the United States may present its oDjections.
15. A new or modified policy or protocol may be implemented immediately, if necessary, due to emergency conditions or to comply with a change in the law, and then submitted to the Court.
F. GREENBELT'S POLICIES AND PROCEDURES 16. Greenbelt agrees to comply, and to cause all of its subsidiaries officers, agents, employees, contractors and/or subcontractors to comply with its policies and procedures, referenced herein, including all plans of correction arising out of survey actions pursued by the State of Maryland Licensing and Certification Administration from January 1998 to the present. Greenbelt will provide the United States with notice and a reasonable period of time to review and approve additional policies and procedures pertaining to resident care as they are created, modified or discontinued.
G. NUTRITION AND WOUND CARE STANDARDS 17. Greenbelt agrees to provide wound care (decubitus ulcer) treatment that meets or exceeds the Agency for Health Care Policy and Research Guidelines, attached hereto and incorporated herein as Exhibit A. Additionally, Greenbelt agrees to provide nutrition to promote healing and avoidance of decubitus ulcers as set forth in Exhibit B, attached hereto and incorporated herein.

18. Greenbelt agrees that Registered Dieticians will accurately calculate all residents ideal body weight, compare current body weight to the residents usual body weight in order to determine an appropriate healthy weight range for each resident on a regular and consistent basis and will clearly document such findings in the residents charts. Greenbelt further agree to identify and provide timely clinical responses to all "nutritionally at risk" and "nutritionally compromised" residents.
H. RESIDENT SAFETY 19. Greenbelt shall promptly notify the Monitor of any resident death resulting from injuries, malnutrition, dehydration, diabetes or complications thereof, any incident of staff abuse or neglect of a resident, transfer and admission to a hospital as a result of injury or accident and any other incident involving a resident that prompts a full internal investigation specifying for each death or incident, the full name and social security number of the resident, the date of death or incident, and, to the extent that such information is available to Greenbelt, a brief description of the events surrounding the death or incident.
I. BASIC CARE 20. Greenbelt shall ensure that staff members provide residents with appropriate basic care services that meet the residents individual needs. Among other things, Greenbelt shall ensure that all residents receive prompt and ?ppropriate medical care, and complete nutritional and hygiene care. Greenbelt shall care for the residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life.

J. COMPREHENSIVE ASSESSMENT AND CARE PLAN 21. Greenbelt shall ensure that there is a timely, complete, and accurate minimum data set (MDS) and a current, complete and accurate interdisciplinary care plan in each resident's chart. Greenbelt shall conduct, at the time of each resident's admission and periodically thereafter (at least annually and promptly after a significant change in the residents physical or mental condition), a comprehensive, accurate, standardized assessment of each residents functional capacity with input by all relevant disciplines. 22. Greenbelt shall ensure that within seven (7) days after the completion of the comprehensive assessment, an interdisciplinary team develops a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, mental and psychosocial needs that are identified in the comprehensive assessment. The care plan shall describe the services that are to be furnished to attain or maintain the resident's highest practicable physical, mental, and psychosocial well-being and must meet professional standards of quality. Greenbelt shall ensure that each resident's comprehensive care plan is implemented in a timely manner by appropriate and adequately trained staff. Greenbelt shall examine each resident no less than once every three (3) months and as appropriate, revise the resident's assessment to assure the continued accuracy of the assessment.
K. ACTIVITIES 23. Greenbelt shall provide residents with sufficient, meaningful activities both during the week and on the weekends to ensure that the residents attain or maintain the highest

practicable physical and psychosocial well-being. Greenbelt shall provide for an ongoing structured program of activities designed to meet the individual interests and physical and psychosocial well-being of each resident, and Greenbelt shall provide medically-related social services to attain or maintain the highest practicable physical and psychosocial well-being of each resident. Greenbelt shall ensure that unit-based activities are provided for those residents unable to attend activities elsewhere. Greenbelt shall evaluate the activities programs for effectiveness and modify its programs as warranted.
L. CHEMICAL AND PHYSICAL RESTRAINTS 24. As required by law for all facilities, Greenbelt shall ensure that physical and chemical restraints are used only pursuant to accepted professional standards and that they are never used as punishment or for the convenience of staff. Greenbelt shall assess, document, advocate and ensure that any restraints used, whether chemical or physical, are the least restrictive restraints appropriate for the resident and the situation. An interdisciplinary team will review and evaluate the need for restraints in all cases. Greenbelt recognizes that it has an obligation to seek the least restrictive restraint for residents. 25. Greenbelt shall ensure that appropriate physician orders are obtained and followed before physical restraints are utilized and shall at all times seek the implementation of the least restrictive alternative for its residents. 26. Greenbelt shall only use psychotropic medication in accordance with accepted professional standards and where there is an appropriate psychiatric or neuropsychiatric diagnosis. Greenbelt must evaluate the availability of behavior management prior to the use

of medication. As required by law for all facilities, Greenbelt must not use psychotropic medication as punishment, in lieu of a training program, for behavior control, without a psychiatric or neuropsychiatric diagnosis, or for the convenience of staff.
27. Absent emergency circumstances, Greenbelt shall ensure that prior to using psychotropic medication, other less restrictive techniques have been systematically tried and have been demonstrated to be ineffective. Prior to using psychotropic medication, Greenbelt will also ensure that:
(a) a psychiatrist reviews the current medication regimen of each individual to determine whether the type and dosage of the medication is appropriate and still necessary, and recommends any changes in the medication regimen;
(b) the psychiatrist consults with the resident's primary care physician, nurse, and oth?r appropriate members of the resident's interdisciplinary team, to determine whether the harmful effects of the residents mental illness clearly outweigh the possible harmful side effects of the psychotropic medication and whether reasonable alternate treatment strategies are likely to be less effective or potentially more dangerous than the medication.
M. PSYCHIATRIC AND RELATED SERVICES 28. Greenbelt agrees to develop and implement a professionally appropriate system to: (a) regularly monitor the progress of the Greenbelt's residents with mental illness to ensure that staff embers are continually taking whatever steps are necessary and appropriate to address the individuals mental health needs; (b) provide ongoing monitoring of the efficacy of treatment and make revisions in the treatment plan when warranted; © implement
10

a protocol whereby a psychiatrist promptly sees any resident with a diagnosis of mental illness who has recently exhibited violent or threatening behaviors.
29. Greenbelt shall develop and implement an adequate and appropriate system, utilizing an interdisciplinary approach and based on generally accepted professional standards, for detecting, reporting, and responding to any drug induced side effects of psychotropic medication; take special care to adequately and appropriately monitor involuntary movement side effects; adequately train and in-service appropriate nursing and direct care staff in how to properly monitor and document medication side effects.
N. MEDICAL CARE 30. Greenbelt shall ensure that residents receive adequate preventive, chronic, routine, acute, follow-up, and emergency medical care in accordance with generally accepted standards of care. Greenbelt shall provide the necessary health care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. To that end, Greenbelt shall ensure that a physician is available twenty four (24) hours a day and seven (7) days a week to address changes in resident's medical conditions which warrant medical intervention. 31. Greenbelt agrees to hire and retain a full time certified nurse practitioner (CNP) for the facility. The CNP shall be identified within fourteen (14) days from the date of this of this Order. The CNP shall be paid a competitive salary. The CNP shall be on-site at the facility on a full-time basis. The responsibilities of the CNP include, but are not limited to, the following:
11

a. Consistent interaction with Greenbelt's Medical Director in order to ensure that appropriate medical care is being rendered to residents;
b. Coordination of care with all attending physicians in order to ensure that appropriate medical care is being rendered to each resident;
c. Prescribing and administering of medications in accordance with a nurse practitioner's scope of practice in conjunction with the attending physician and/or Medical Director;
d. Review all current and relevant prior laboratory values for residents in a manner which ensures that the residents' full medical conditions are promptly evaluated and addressed;
e. Ensure effective communication among all disciplines within the nursing home, including but not limited to, nursing, medical, dietary and pharmacy, in order to coordinate care and timely address any change in a resident's medical condition.
32. The Medical Director shall ensure that all attending physicians work collaboratively with the certified nurse practitioner. In the event that an attending physician disagrees with any course of treatment recommended by the certified nurse practitioner or if an attending physician does not respond in a timely fashion to a resident's need for medical care, the Medical Director shall immediately re` iew the resident's clinical conation and take all necessary and appropriate steps to ensure that timely medical care is provided.
33. The Medical Director, Certified Nurse Practitioner, and Greenbelt's Quality Assurance Committee shall undertake a specialized clinical review of medical care in

connection with: a) residents receiving specialized rehabilitation care; b) physical and occupational therapy services and the frequency of resident contractures; c) use of psychotropic and anti-depressant medication; d) unplanned weight changes; e) bowel maintenance and untreated incontinence issue; and f) pharmacy operations, including policies for use of psychotropic and antidepressant drugs; g) the reporting of any response to laboratory results.
The results of this specialized clinical review shall be reported with recommendations to the Temporary Manager as defined in paragraph 44, Monitor and the Parties within thirty (30) days from the date of this Order. Greenbelt's rights under applicable state law governing the use by third-parties of information pertaining to the quality assurance process are not waived.
34. Greenbelt shall take all reasonable steps, including prompt intervention by its Medical Directors, or revocation of physician privileges at Greenbelt, to ensure that residents receive the medical care required under paragraphs 30 and 33, and as otherwise necessary, including that:
a. Physicians promptly obtain and review all laboratory and test results, document the responses in the residents' charts and take appropriate actions to address any abnormal results; b. Physicians complete monthly notes in the residents charts on a timely basis;
13

c. Physicians do not rely inappropriately on telephone orders in treating residents;
d. Physicians address promptly residents significant or undesirable weight loss and personally provide continual follow-up until the situation is adequately addressed;
e. Health care of all diabetic residents comports with generally accepted medical practice;
f. As indicated by accepted professional standards of care, in the event of a medical emergency involving a res dent, including status epilepticus, facility staff will immediately call an ambulance, and will initiate appropriate emergency interventions while awaiting arrival of the ambulance prior to transport of the resident to the closest appropriate health care facility;
g. Physicians conduct comprehensive health care evaluations of all residents;
h. Physicians determine what specialized medical services are required for the residents and ensure that such services are timely provided whenever necessary to evaluate or treat the residents medical problems;
I. An integrated medical plan of care for each resident exists;
j . Each resident's medical status and progress in response to the residents medical plan of care is regularly and adequately reviewed and all changes appropriately documented;
k. Each resident's drug regimen is free from unnecessary drugs, i.e., any drug used in excessive dose, for excessive duration, without adequate monitoring, without adequate indications for its use, in the presence of adverse consequences which indicate the dose should be reduced or discontinued, or any combinations of the reasons set forth herein;
1. Adequate and appropriate interdisciplinary communication among relevant professionals especially between and among physicians and nurses; m. physicians communicate with the pharmacist pertaining to therapeutic responses by residents to prescribed medications.
14

N. NURSING CARE
36. Greenbelt shall ensure that residents receive adequate and appropriate nursing
care, and that nurses perform their responsibilities in keeping with accepted professional
standard of care by adequately identifying health care problems, notifying physicians of
health care problems, monitoring and intervening to ameliorate such problems, and keeping
appropriate records of residents health care status. Greenbelt shall provide all necessary
nursing care and services to attain or maintain the residents highest practicable physical.
mental, and psychosocial well-being, in accordance with the comprehensive assessments and
plans of care for each resident.
Greenbelt shall take, at a minimum, the following measures:
a. Conduct adequate, comprehensive nursing assessments, with quarterly updates the nursing care needs of the residents;
b. Develop nursing protocols and develop and implement adequate and appropriate comprehensive interdisciplinary care plans to address each residents health care needs;
c. Routinely perform ongoing monitoring of serious medical conditions, including such basic procedures as taking vital signs and measuring weights;
d. Implement a system for recording important information about a residents status to monitor changes;
e. Regularly monitor the progress of residents to ensure that staff members are continually taking whatever nursing steps are necessary for the health care of the individual;
f. Communicate essential information to physicians;
g. Follow physician orders or document fully why a physician order was not expressly followed;
15

h. Administer medications in a timely manner consistent with accepted nursing practice and provide the necessary supervision and training to minimize medication errors and if a medication error occurs, promptly investigate the error, properly document it and take appropriate corrective action;
I. Ensure that residents are provided with adequate skin care, nutrition, turning and positioning to decrease the likelihood of skin breakdown; perform skin care assessments and ongoing treatments and therapy to prevent skin breakdown; comply fully with the particular provisions of Exhibits A and B;
j . Follow standard infection control procedures maintain aseptic technique and conditions at treatment sites; require staff to wash their hands after each direct resident contact for which hand washing is indicated by accepted professional practice; establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of disease and infection;
k. Ensure that resident's nutritional intake is adequate, that weights are routinely and accurately recorded, and that residents receive appropriate diets, adequate amounts of food, and sufficient quantities of fresh fluids to ensure proper hydration; ensure that residents are provided with proper mealtime assistance and supervision and with appropriate eating assistance devices and adaptive equipment where necessary; ensure that residents with significant or undesirable weight gains or losses are promptly seen by nursing and dietary staff and provided with continual follow-up until the situation is adequately addressed; ensure that each resident receives food prepared by methods that conserve nutritive value, flavor, and appearance food that is palatable attractive, and at the proper temperature prepared in a form designed to meet individual needs; offer substitutes of similar nutritive value to residents who refuse food served. This provision shall not limit individual health care decisionmaking under applicable law;
1. Utilize an interdisciplinary approach to properly assess and appropriately treat residents with problems and residents who are unable to eat orally in accordance with accepted professional procedures;
m. Procure sufficient nursing staff to ensure adequate continuity of resident care so that the facility is not excessively reliant on temporary contract nurses; employ sufficient nursing staff to provide nursing and related services on a 24-hour basis to attain or maintain the highest practicable physical, mental,
16

and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care.
O. THERAPY SERVICES 36. Greenbelt shall provide each resident in need of such services with adequate and appropriate physical therapy and occupational therapy services.
P. MEDICAL RECORDS 37. Greenbelt shall ensure that they maintain medical records for each resident that comports with accepted professional standards and includes current information with respect the individuals care, medical treatment, and activities. Greenbelt shall maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete, accurately documented, readily accessible, and systematically organized. Greenbelt recognizes that if clinical responses are not clearly documented, there is a rebuttable presumption in this proceeding that they did not, in fact, occur. 38. Greenbelt shall ensure that professional staff, including physicians, psychiatrists, therapists, nurses, as well as direct care staff, make timely and appropriate notes in the residents records detailing the residents progress condition, and detailing the steps needed to fully meet the resident's needs. Greenbelt shall ensure that all professional staff utilize such records in making care, medical treatment and training decisions.
O. QUALITY ASSURANCE 39. Greenbelt shall maintain a quality assessment and assurance committee that develops and implements appropriate plans of action to correct identified quality
17

deficiencies, including all plans of correction related to the State of Maryland's surveys and deficiencies from January 1998 to the present.
R. STAFFING 40. Greenbelt shall ensure that a sufficient number of professional and non-professional staff, especially nurses, are employed to fully met the needs of the residents during the evening, and on the weekend.
S. STAFF TRAINING 41. Greenbelt shall provide a training program to ensure that all professional and direct care staff who provide services to residents are adequately trained to implement the requirements of this Consent Order and are thereafter provided with in-service training on a regular basis. Greenbelt shall provide a training program for all employed and contract personnel, regarding, at a minimum: nutrition; wound care and infection control; abuse and neglect; appropriate drug therapies for the elderly; diabetes; behavior modification; renal disease; mental health needs of residents; and a coordinated interdisciplinary approach to providing care to residents. Greenbelt shall ensure that all nurse aides are appropriately trained and demonstrate competence in the performance of their duties. Greenbelt also agrees to report all training sessions to the Monitor. 42. Greenbelt shall ensure that its employed and contract medical staff regularly attends continuing medical education programs that address geriatrics, including but not limited to, medical therapies utilized in wound care and diabetic care for long-term care residents.

T. TEMPORARY MANAGEMENT 43. Greenbelt shall hire and install a Temporary Manager at Greenbelt selected by the United States in consultation with Greenbelt within ten (10) days from the date of the Order. The Teniporary Manager shall be paid a competitive salary. The Parties agree that the Temporary Manager shall have all of the regulatory authority set forth in 42 C.F.R. § 488.4 l5(a) including but not limited to independent authority to hire, terminate or reassign. staff, obligate facility funds, alter facility procedures, and manage the facility to correct all deficiencies identified in Greenbelt. Greenbelt shall employ the Temporary Manager until Greenbelt is in substantial compliance with all federal and State law requirements, and for a period of at least nine (9) months thereafter. The Temporary Manager may be removed from his/her position for cause by Greenbelt with the assent of the United States. The Temporary Manager shall coordinate his/her activities with the Monitor to ensure that appropriate decisions are made pertaining to staffing and quality of care issues for those residents residing at Greenbelt. The Temporary Manager shall undertake a specialized review of personnel issues for all Greenbelt employees and provide recommendations to the Parties and the Monitor within thirty (30) days from the date of this Order on issues relating to morale, use of contract employees, wages, qualifications, training, and compliance with federal employment laws. The Temporary Manager shall undertake a specialized review of all Greenbelt's policies, protocols and performance in connection with all plans of correction implemented
19

in connection with State of Maryland's surveys and administrative actions since January 1998 and shall provide a report and recommendation to the Parties and the Monitor within thirty (30) days of the date of its hiring.
U. MONITOR 44. A Monitor, selected by the United States and paid by Greenbelt, shall be appointed within ten (10) days from the date of this Order, and shall have full authority to oversee Greenbelt's compliance with the provisions of this Order and independently assess Greenbelt's compliance with this Order. The Monitor shall not be bound in his or her conclusions, in whole or in part, on the basis of any certification by the Health Care Financing Administration. In addition, the Monitor shall advise management and staff as to possible procedures that, in the Monitor's view, may be implemented to facilitate compliance with this Order. 45. Greenbelt agrees to allow the Monitor access to Greenbelt Nursing Home at any time and without prior notice, to assess compliance with this Order. The Monitor shall visit Greenbelt without appointment within his/her discretion but at least three times (3) monthly until this Order is terminated and shall have immediate access to all nursing home residents and their records. The Monitor shall also have access to relevant documents and records in the possession of Greenbelt and to Greenbelt`i quality assurance reviews L·L purposes of ensuring coordination of responses to identified problems. Upon request, the Monitor will be promptly provided with access to and/or copies of incident reports investigations, resident records, and any other records necessary to enable the Monitor to fulfill his or her duties
20

under this Order. The Monitor shall attempt to coordinate his or her activities with relevant personnel in order to minimize disruption in the day to day operations of the facility. At all times, the Monitor shall respect the privacy and dignity of all residents.
46. The Monitor shall create a report documenting any adverse findings relating to compliance with this Order and shall present the report within ten (10) calendar days of the site visit to the Greenbelt, to the Parties. The Monitor shall submit to the Parties a quarterly status report regarding the Greenbelt's compliance with the terms of this Order. The Monitor may confer and correspond with the Parties on an ex parte basis.
47. The Parties agree that the Monitor serves at the behest of the United States and may be removed from the Monitor position and replaced solely at the discretion of the United States.
48. The Monitor may retain independent consultants, as needed, to meet his or her obligation under this Order. Greenbelt shall bear all reasonable costs of the Monitor.
V. ACCESS TO GREENBELT'S FACILITIES 49. In connection with implementation of the obligations under this Order, the Monitor, the United States and its agents shall have the right to request, inspect and copy facility records, resident charts and other documents, including all financial data pertaining to Greenbelt Nurt>ing Center, conduct interviews with residents and staff outside the presence of supervisory staff or counsel, and observe activities normally conducted at the various facilities to assess compliance with this Order. The Monitor, the United States and its agents agree to respect the privacy and dignity of all residents.
21

W. DURATION OF PRELIMINARY INJUNCTION 50. The Court shall retain jurisdiction of this action for all purposes under this Order until Greenbelt has fully and faithfully implemented all provisions of the Order and until this action is otherwise dismissed or reduced to judgment.
X. ENFORCEMENT OF CONSENT ORDER 51. In the event that Greenbelt and/or their agents, employees contractors and subcontractors fail to comply materially in good faith with the terms of this Order, that is, to meet any obligation under this Order that has a significant impact on the quality of care rendered to any resident or residents, or should any of Greenbelt's representations be materially false the United States may at its sole discretion, exercise all rights and responsibilities under federal law and further may seek a Contempt of Court based on the failure of Greenbelt and/or their agents, employees and subcontractors to materially comply with this Consent Order. The parties agree that, after a finding of civil contempt, a penalty often thousand dollars ($10,000) per day shall be assessed, beginning upon the finding of contempt and lasting until all defaults are cured. After curing all defaults, the Greenbelt may petition the Court to lift its contempt order and to withdraw the imposition of any penalties.
Y. COSTS 52. All parties shall bear their own costs, including attorney fees, except that Greenbelt shall bear all reasonable costs associated with implementation of this Preliminary Injunction, including all costs associated with the Temporary Manager and the Monitor.
22

Z. RETALIATION 53. Greenbelt and its agents, employees and/or subcontractors agree not to take any retaliatory action against any individual or individuals who cooperated with this investigation and/or who cooperates with the United States or the Monitor throughout the pendency of this action.
23

GREENBELT NURSING & REHABILITATION CENTER

UNITED STATES OF AMERICA:
Lynne A. Battaglia United States Attorney for the District of Maryland

By:

Kathleen McDermott

S(

Assistant United States Attorney

Ober7¯KaKer, Cn¾mesy and Shriver 410/209-4813

A Professional Corporation

120 East Baltimore Street

Baltimore, MD 21202-1643 By:

410/685-1120

Perry Sekup

Assistant United States Attorney

410/209-4818

6625 United States Courthouse

101 West Lombard Street

Baltimore, Maryland 21201-2692

COUNSEL FOR ALL DEFENDANTS COUNSEL FOR UNITED STATES OF AMERICA

So Approved and Entered this

day of

, 1998.

U.S. District Judge

24

 
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Page 1 of 4

ARCHIVE, CLOSED
U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:98-cv-03113-AW

USA v. Greenbelt Nursing, et al Assigned to: Judge Alexander Williams, Jr Demand: $0 Cause: 31:3729 False Claims Act
Plaintiff USA

Date Filed: 09/14/1998 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Plaintiff
represented by Kathleen McDermott Blank Rome LLP Watergate 600 New Hampshire Ave NW 11th Fl Washington, DC 20037 12027725813 Fax: 12025721413 Email: mcdermott-k@blankrome.com TERMINATED: 12/18/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Perry F Sekus United States Attorney District of Minnesota 600 United States Courthouse 300 S Fourth St Minneapolis, MN 55415 16126645600 ATTORNEY TO BE NOTICED

V. Defendant Greenbelt Nursing & Rehabilitation Center
Defendant

represented by Jefferson M Gray Office of the United States Attorney 36 S Charles St Fourth Fl Baltimore, MD 21201 14102094800 Fax: 14109623124 Email: Jefferson.M.Gray@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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District of Maryland (CM/ECF Live 2.3) - Docket Report

Page 2 of 4

Northern Health Facilities, Inc.
Defendant Extendicare Health Services, Inc.
Defendant Extendicare Holdings, Inc.
Defendant Extendicare Health Facilities, Inc.
Defendant Extendicare Health Facilities Holdings, Inc.

represented by Jefferson M Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jefferson M Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jefferson M Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jefferson M Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jefferson M Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/14/1998 09/14/1998 09/14/1998 09/14/1998 09/17/1998
10/07/1998

#

Docket Text

1 COMPLAINT filed; (ajh, Deputy Clerk) (Entered: 09/14/1998)

1 DEMAND for jury trial by USA (ajh, Deputy Clerk) (Entered: 09/14/1998)

2 MOTION by plaintiff, USA for Preliminary Injunctive Relief (c/s) (ajh, Deputy Clerk) (Entered: 09/14/1998)

3 Request by plaintiff, USA to Withhold issuance of process pending further Notice (c/s) (ajh, Deputy Clerk) (Entered: 09/14/1998)

4 ORDER granting [2-1] Joint Motion of parties for Preliminary Injunctive Relief, as therein more particularly set forth ( signed by Judge Alexander Williams Jr. 9/15/98 ) (c/m 9/16/98 hg) (mdd, Deputy Clerk) (Entered: 09/17/1998)

5 STIPULATION OF EXTENSION, of parties, (for) the selection and hiring of the Temporary Mananger, Monitor, and certified nurse practitioner, on or before 10/9/98, and ORDER "APPROVING" ( signed by Judge Alexander Williams Jr. 10/5/98) (c/m 10/6/98 cm) (mdd,

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Page 3 of 4

12/18/1998 12/18/1998 01/05/1999 01/07/1999
01/08/1999 02/08/1999 02/11/1999 03/12/1999 03/16/1999
03/17/1999 04/15/1999

Deputy Clerk) (Entered: 10/07/1998)
6 MOTION by USA for Kathleen McDermott to Withdraw as Attorney . (mdd, Deputy Clerk) (Entered: 12/18/1998)
6 ORDER granting [6-1] motion for Kathleen McDermott to Withdraw as Attorney (Terminated attorney Kathleen McDermott for USA) ( signed by Judge Alexander Williams Jr. 12/17/98 ) (c/m 12/17/98 cm) (mdd, Deputy Clerk) (Entered: 12/18/1998)
7 JOINT MOTION by parties to Rescind [4-1] Order . (c/s) (mdd, Deputy Clerk) (Entered: 01/06/1999)
8 ORDER granting [7-1] joint motion to Rescind [4-1] Order, "RESCINDING" Order effective the date of this order; "FURTHER ORDERING" that the Temporary Mangager and Monitor immediately cease conducting activities, as therein set forth ( signed by Judge Alexander Williams Jr. 1/6/99 ) (c/m 1/6/99 hg) (mdd, Deputy Clerk) (Entered: 01/07/1999)
9 ORDER "APPROVING" Entry of Appearance for counsel ( signed by Judge Alexander Williams Jr. ) (c/m) (mdd, Deputy Clerk) (Entered: 01/11/1999)
10 CONSENT MOTION by Greenbelt Nursing to Extend Time to Answer or Respond to Complaint, through 3/15/99 . (c/s) (mdd, Deputy Clerk) (Entered: 02/08/1999)
11 ORDER "GRANTING" [10-1] motion by Defendants to Extend Time to Answer or Respond to Complaint, through 3/15/99 ( signed by Judge Alexander Williams Jr. 2/10/99 ) (c/m 2/10/99 kc) (td, Deputy Clerk) (Entered: 02/11/1999)
12 SECOND CONSENT MOTION by Greenbelt Nursing to Extend Time to Answer or Respond to Complaint (c/s for sign.) (mdd, Deputy Clerk) (Entered: 03/15/1999)
13 ORDER granting [12-1] motion to Extend Time to Answer or Respond to Complaint; Reset Answer deadline to 4/15/99 for Extendicare Health, for Extendicare Health, for Extendicare Holdings, for Extendicare Health, for Northern Health, for Greenbelt Nursing ( signed by Judge Alexander Williams Jr. 3/12/99) (c/m 3/16/99 lad) (mdd, Deputy Clerk) (Entered: 03/16/1999)
14 ORDER granting [12-1] Consent motion to Extend Time to Answer or Respond to Complaint, through April (?), 1999 ( signed by Judge Alexander Williams Jr. 3/16/99 ) (c/m 3/17/99 hg) (mdd, Deputy Clerk) (Entered: 03/17/1999)
15 THIRD CONSENT MOTION by Extendicare Health, Extendicare Health, Extendicare Holdings, Extendicare Health, Northern Health, Greenbelt Nursing to Extend Time to Answer or Respond to Complaint (c/s for sign.) (mdd, Deputy Clerk) (Entered: 04/16/1999)

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04/16/1999
05/19/1999 05/21/1999 05/21/1999 05/21/1999

16 ORDER granting [15-1] motion to Extend Time to Answer or Respond to Complaint Reset Answer deadline to 5/7/99 for Greenbelt Nursing, for Northern Health, for Extendicare Health, for Extendicare Holdings, for Extendicare Health, for Extendicare Health ( signed by Judge Alexander Williams Jr. 4/15/99 ) (c/m) (mdd, Deputy Clerk) (Entered: 04/16/1999)
17 JOINT MOTION by USA, Defendants for Settlement Order . (c/s for sign.) (mdd, Deputy Clerk) (Entered: 05/20/1999)
18 JOINT MOTION of parties for Settlement Order pursuant to Rule 11, and ORDER "GRANTING" ( signed by Judge Alexander Williams Jr. 5/20/99) (c/m 5/20/99 cm) (mdd, Deputy Clerk) (Entered: 05/21/1999)
19 ORDER "DISMISSING" action with each party to bear its own costs, without prejudice to move within 60 days to reopen ( signed by Judge Alexander Williams Jr. 5/20/99 ) (c/m 5/20/99 cm) (microfilmed) (mdd, Deputy Clerk) (Entered: 05/21/1999)
Case closed. (mdd, Deputy Clerk) (Entered: 05/21/1999)

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 39 F.Supp.2d 563 (1998)
NORTHERN HEALTH FACILITIES, INC, D/B/A Greenbelt Nursing and Rehabilitation Center Plaintiff, v.
UNITED STATES of America, et. al., Defendants.
No. CIV.A. AW 98-4006.
United States District Court, D. Maryland, Southern Division.
December 28, 1998.
564 *564 Kimberly Nichelson Tarver, Washington, DC, Howard L. Sollins, Baltimore, MD, for plaintiff.
Philip D. Bartz, Sheila M. Lieber, Martha Hirchfield, Washington, DC, for defendant U.S.
565 *565 Margaret Ann Nolan, Elizabeth M. Kameen, Baltimore, MD, for defendant State of Maryland.
MEMORANDUM OPINION
WILLIAMS, District Judge.
I
Currently pending before the Court is Plaintiff's Motion for a Temporary Restraining Order. The Court has considered the motion, the opposition thereto, and the entire record, including the testimony presented by witnesses and the arguments made by counsel in the hearing held in open court on December 9, 1998. For the reasons that follow, the Court will deny this Motion.
II
Background
Plaintiff, Northern Health Facilities, Inc., d/b/a Greenbelt Nursing and Rehabilitation Center ("Greenbelt"), is a 132 bed facility, which is currently occupied by 85 residents. About 90% of Greenbelt's residents receive Medicaid benefits. Greenbelt was certified as a skilled nursing facility ("SNF") under the federal Medicare program prior to September 26, 1998. Greenbelt was also certified as a nursing facility ("NF") under the Maryland Medical Assistance Program prior to October 26, 1998.
Plaintiff asks the Court to enjoin Defendant Donna E. Shalala, Secretary of the United States Department of Health and Human Services ("HHS"), and Defendant Martin P. Wasserman, Secretary of the Maryland Department of Health and Mental Hygiene ("MDHMH") from terminating its participation and its funding under the Medicare and Medicaid programs. Plaintiff contends that the termination violates the Medicare and Medicaid Acts, and its due process rights Plaintiff further contends that "[s]uch relief is appropriate to preserve the status quo pending completion of the usual administrative process, and to prevent irreparable injury to Greenbelt and its elderly and disabled residents." (Plaintiff's Memorandum at 2.)
The Medicare program, established pursuant to Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq., is federal program designed to provide health insurance for the aged, blind, and disabled. Health Care Financing Administration ("HCFA"), an agency within HHS, oversees the implementation of this program. The Medicaid program, established pursuant to Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., is a joint program, funded by both the federal and state government, designed to provide medical assistance to certain persons in

need. HCFA has a supervisory role over the state agencies which implement the Medicaid program. In Maryland, the MDHMH is the agency which implements the program.
The Medicare and Medicaid programs both reimburse nursing facilities for certain services provided to their residents. To qualify for reimbursement, a facility must be certified to participate in the programs. To be certified under the Medicare program, a facility must be in "substantial compliance" with various requirements set forth in 42 U.S.C. § 1395i-3(b)-(d), and in the federal regulations found in 42 C.F.R. § 483.1 et seq. To be certified under the Medicaid program, a facility must be in "substantial compliance" with various requirements set forth in 42 U.S.C. § 1396r (b)-(d), and in the federal regulations found in 42 C.F.R. § 442.1 et seq. The state survey agencies typically are responsible for conducting inspections of the facilities to ensure their compliance with the participation requirements. In Maryland, the Licensing and Certification Administration ("LCA"), an agency within MDHMH, sends survey teams to make these periodic evaluations. HCFA makes the final determination as to 566 certification in the Medicare program as it is solely a federal program. HCFA *566 can exercise "look behind authority," and conduct its own surveys of facilities under the joint Medicaid program.
In January of this year, LCA surveyors visited Greenbelt. Due to this survey, Greenbelt was found not to be in substantial compliance with the Medicare and Medicaid regulations as of January 26, 1998. Pursuant to the regulations, the facility submitted a plan of correction. During subsequent surveys, Greenbelt was found to still have deficiencies. After three months, pursuant to 42 U.S.C. § 1395i-3(h)(2)(D), HCFA denied payments for new admissions and imposed civil penalties. Greenbelt was advised that LCA would recommend that its provider agreement be terminated if it was not in substantial compliance by July 26, 1998. See Defendant Exhibit 3.
A survey was conducted in July that found Greenbelt not to be in substantial compliance. Greenbelt submitted additional evidence to LCA claiming that it was in compliance. On July 29, 1998, LCA sent a letter to Greenbelt accepting its evidence that it was in compliance. In that letter, LCA stated that it would "consider that [Greenbelt was] in compliance ... as of July 26, 1998 ... [and would] recommend[] to HCFA that the termination action be rescinded and that the civil money penalty and denial of payment for new admissions sanctions cease." Plaintiff's Exhibit 7. The letter also stated that HCFA would advise Greenbelt separately of its decision.
In August of 1998, the United States Attorney's Office for the District of Maryland and the Office of Inspector General for the HHS began an investigation into whether Greenbelt had violated the False Claims Act, 31 U.S.C. § 3729. On August 17, 1998 representatives from the U.S. Attorney's Office, LCA and HCFA surveyors visited the Greenbelt facility. During this visit, Greenbelt was found to not be in compliance with the Medicare and Medicaid program requirements.
As a result of the August finding, on September 11, 1998, HCFA sent a letter notifying Greenbelt that it was terminating its participation in the Medicare program on September 26, 1998. In that letter HCFA stated that:
"On July 20, 1998, the Licensing and Certification Administration of the Maryland Department of Health and Mental Hygiene informed us that you had submitted to that state agency satisfactory evidence of correction of all the deficiencies remaining when the state agency had last revisited your facility on July 14-17, 1998. We were prepared to accept the conclusion that you had corrected all of your deficiencies, until a member of our staff and a member of the staff of the state survey agency visited your facility on August 17-18, 1998."
(Plaintiff Exhibit 9.)
The letter also stated that Greenbelt had provided evidence in its plan correction which was inaccurate. Further, HCFA noted evidence of deficiencies "that occurred prior to, during and after the July 26, 1998 date upon which you alleged substantial compliance." Id. The letter also stated that it concluded that Greenbelt had not "regained compliance with the Medicare/Medicaid requirements since the survey completed on January 26, 1998." Id. HCFA claimed its termination was based on 42 U.S.C. § 1395i-3(h)(2)(C) and 42 C.F.R. § 488.450(c) and (d), which allow the Secretary to continue to make payments to a facility which is out in compliance for a period of six months. HCFA informed Greenbelt that it had sixty days to request a hearing before an administrative law judge of the HHS, Departmental Appeals Board.[1]

567 On September 14, 1998, the United States through the U.S. Attorney Office *567 filed a complaint for injunctive relief on September 14, 1998. United States v. Northern Health Facilities, Inc. d/b/a Greenbelt Nursing & Rehabilitation Center, et al., Civil Action No. AW 98-3113. It named Greenbelt as one of the defendants. On September 15, this Court approved a Preliminary Injunction Order ("Consent Order") which was presented to it with the consent of all parties involved. Signatory parties were the United States Attorney for the District of Maryland, on behalf of the United States of America, through two of the Assistant United States Attorneys and counsel for the Defendants. Neither the State or HCFA were signatory parties to the Consent Order. Under the Consent Order, a Temporary Manager, selected by the United States, was to be hired by Greenbelt, with the "independent authority to hire, terminate or reassign, staff, obligate facility funds, alter facility procedure, and manage the facility to correct all deficiencies identified in Greenbelt." (Consent Order at 19.) In addition, a Federal Monitor was to be appointed, to "oversee Greenbelt's compliance with th[e] Order and independently assess Greenbelt's compliance with th[e] Order." Id. at 20.
In one of its provisions, the Consent Order stated:
During the duration of this action and under the terms of this Preliminary Injunction, all federal and State regulatory oversight and enforcement obligations shall remain in full effect. All administrative remedies, including the authority of the Office of Inspector General to seek exclusion and the Health Care Financing Administration and the State of Maryland to seek termination or other administrative remedies, are preserved and are not supplanted by the terms of the Preliminary Injunction ...
(Consent Order at 3.)
On October 5, 1998, Ilene Warner was appointed to be the Temporary Manager of Greenbelt. Warner took steps to improve conditions at Greenbelt such as hiring a new medical director and a new Certified Nurse Practitioner. On November 20, 1998, Claudia Schlosberg, staff attorney at the National Health Law Program in Washington, D.C. was appointed as the Federal Monitor.
As a result of HCFA's decision to terminate Greenbelt from the Medicare program[2], the State notified Greenbelt, on October 9, 1998, that it would terminate Greenbelt as a Medicaid provider effective October 26, 1998. However, in an effort to allow Greenbelt to come into compliance under the supervision of the Temporary Manager, the State continued providing Medicaid payments until December 2, 1998. As of December 2, 1998, all funding to Greenbelt had ceased.
On November 10, Greenbelt sought administrative review of HCFA's decision to terminate it from the Medicare program. The facility also filed an application for Medicaid recertification to the Maryland Medicaid program. On November 17-19, 1998, a LCA survey of the facility took place. The LCA surveyors found that Greenbelt was still not in substantial compliance. Two weeks later, a HCFA survey team visited the facility (from November 30 0907 December 4) and noted additional deficiencies. In all of the surveys to date, the deficiencies have never reached the highest level under the regulations which is "immediate jeopardy to resident health or safety." Most deficiencies were at the "no actual harm with potential for more than minimal harm that is not immediate jeopardy" level.
On December 7, 1998, Plaintiff brought the instant suit. Plaintiff sought a court order enjoining the Defendants from terminating its participation in the Medicare and Medicaid programs. Plaintiff argued that it may have to 568 close due to the cessation of the payments because the majority *568 of its residents are Medicare recipients. Plaintiff maintained that injunctive relief was necessary because of the risk of "transfer trauma" to its residents. Plaintiff contended that:
When an elderly resident of a nursing home (or any stable environment) is transferred to a new, unfamiliar environment and particularly when the transfer is involuntary, he or she may experience `transfer trauma.' ... [T]here is a great risk of emotional trauma and impairment of patient function and condition if transfers are forced.

(Plaintiff's Memorandum at 23.) Plaintiff provided numerous affidavits from the families of its residents stating that Greenbelt is a safe environment, and that a transfer would be a traumatic event for their loved ones.
Plaintiff further argued that the Defendants would not suffer any harm if the injunctive relief was granted because the Temporary Manager and Federal Monitor were in place to remedy the facility's deficiencies. Plaintiff also maintained that Secretary Shalala decision to terminate its participation was thwarting the efforts of this Court to remedy the deficiencies in this manner. Plaintiff contended that the Consent Order was "consistent with the Temporary Management process envisioned by the Social Security Act, and will lead to improving and maintaining the quality of care provided to Greenbelt's residents." Plaintiff's Memorandum at 35.
On December 9, 1998, the Court held an expedited hearing on Plaintiff's Motion for a Temporary Restraining Order. At the hearing, United States Attorney's Office recused itself from representing the Federal Government in the instant case because of its involvement in the first case. That Office was a signatory to the Consent Order, and was responsible for the hiring of the Temporary Manager and the Federal Monitor.
The Court heard arguments from counsel for Greenbelt, Secretary Shalala, and for the State. The Court also allowed in the limited testimony of the Temporary Manager, Warner, on behalf of the Plaintiff, and Gloria Speller, a federal surveyor, and Carol Benner, Director of the LCA, on behalf of the Defendants. In addition, the Court called the Federal Monitor, Schlosberg.
Warner testified about the improvements that she was implementing at Greenbelt, including a weekly team to check resident's wound, and improvement in such areas as restraint reduction and restorative nursing. She testified that because she began working at the facility in early October, she had only six weeks to make these improvements before the survey teams visited. In an affidavit submitted to the Court prior to the hearing, Warner stated, "[i]f the result of the survey process is termination, I will not be able to fulfill the Federal Court's mandate, especially when I do not believe the findings of the federal and state surveyors described by the teams support closure of Greenbelt and the transfer of its residents." Warner's Aff. at 4.
Speller, who was the lead surveyor on the November 30-December 4 federal survey team, testified about numerous deficiencies that the team had noted during their visit. These deficiencies included evidence of mice and mice droppings, dirty rooms, inappropriate wound care treatment, amongst other things.
Benner testified that the State has an efficient plan under which the residents could be moved without suffering from "transfer trauma." Benner stated that LCA had closed nine nursing homes, and had moved approximately two thousand residents. Benner contended that the only incident of potential harm after such a move was that of an elderly woman who died the day after she was moved. Benner maintained, however, that there was no proof that this death was attributable to the move. Benner also testified that she believed that there would be a greater 569 risk for the residents to remain in Greenbelt *569 based on the latest survey findings than there would be to move them.
Schlosberg testified that it was her general impression that Greenbelt was acting in good faith, and was working hard to address its problems. She stated that the facility had a caring staff which was attempting to be honest about the deficiencies that existed at the facility. Schlosberg contended that Greenbelt had not had enough time to adequately address these concerns. She testified that continued participation in the Medicare and Medicaid programs was necessary to fulfill the mandate of the Consent Order.
In its brief and at the hearing, the Federal Government first argued that the Court lacked jurisdiction to hear this case because the Plaintiff has not exhausted its remedies as Plaintiff is currently seeking administrative review of HCFA's decision to terminate. The Federal Government argued that Plaintiff was not seeking to maintain the status quo. The Federal Government contended that the Plaintiff has not received any benefits from the Federal Government since it was terminated from the program on September 26, 1998. Further, the Federal Government argued that the facts that Plaintiff had not sought expedited review before the administrative law judge and had not asked for this temporary restraining order until three months later reveal that this injunctive relief is not needed immediately, and that there is no threat of irreparable harm. In addition, the Federal Government contended that the harm to itself asserted by the Plaintiff is "merely financial 0907 and plaintiff has not even

attempted to show that either it or its parent company could not possibly sustain plaintiff while its administrative appeals are decided." Federal Government's Opposition at 3.
Moreover, the Federal Government contended that Plaintiff was not likely to succeed on the merits of its claim because it argued that the Secretary had authority to terminate its participation absent a finding of immediate jeopardy. Further, the Federal Government argued that the Secretary did not have the statutory authority to continue payments past the six month period described in Section 1395i-3(h)(2)(C). The Federal Government contended that the Secretary could only allow payments to July, which was six months after the initial January survey which found deficiencies. The Federal Government argued that although Plaintiff claims that it was in compliance in July, further investigation displayed that Greenbelt had made misrepresentations to the agencies and that it was not in substantial compliance at that time. Therefore, Defendant argued that the Court cannot compel the Secretary to reinstate Greenbelt because the Secretary does not have the statutory authority to continue making payments to Greenbelt.
The State has argued that the Court lacks subject matter jurisdiction over it because of the Eleventh Amendment to the United States Constitution, and the doctrine of sovereign immunity. The State also contended that the Eleventh Amendment would bar an order to continue payments to Greenbelt because it states that it has not violated federal law. According to the State, "[w]ithout HCFA assurances that the federal government will pay the federal share, the State is under no continuing obligation to pay for services." Opposition of the State at 13.
Both of the Defendants have argued that the resurveys conducted by a State survey team in mid-November and by a Federal survey team in the first week of December revealed that not only was Greenbelt not in substantial compliance with the regulations, but, in fact, deficiencies found were worse than they had been in the original survey in January. Both maintained that the risk of transfer trauma to Greenbelt residents is a lesser risk of harm to them than that of remaining in the facility. Therefore, they contended that Greenbelt cannot meet the standards for issuing injunctive relief.
570 *570 III
Jurisdiction
Before turning to the merits of Plaintiff's Motion for Temporary Restraining Order, this Court first must determine whether the Court has subject matter jurisdiction. Plaintiff has asserted that the Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343 and 1361, and 42 U.S.C. § 405(g). Defendants maintain that the Court does not have jurisdiction because it has not exhausted its administrative remedies as it is required to by pursuant to 42 U.S.C. § 405(g) and (h), as incorporated into the Medicare statute by Section 1395ii. Plaintiff contends its claims represent a collateral attack on the Secretary's decision to terminate and therefore exhaustion is not required.
"The Supreme Court has recognized that `cases may arise where a claimant's interest in having a particular issue resolved promptly is so great that deference to the agency's judgment is inappropriate .' ... [T]o be excused from the exhaustion requirement, Plaintiff must show that: (1) the suit involves a collateral attack rather than one on the merits; and (2) its interest in prompt judicial review is so compelling that deference to the agency's determination is inappropriate." Lake County Rehabilitation Center, Inc. v. Shalala, 854 F.Supp. 1329, 1335-36 (N.D.Ind. 1994) (citations omitted). This Court finds that Plaintiff has met these requirements. Plaintiff's claims do not require the Court to address the substance of the Secretary's decision. The Court is not asked to evaluate HCFA factual findings as to the deficiencies, or whether Greenbelt was actually out of compliance with the regulations. Rather, Plaintiff claims are a collateral attack addressing the scope of the Secretary's power under the Medicare Act. Furthermore, Plaintiff has argued that without funding, it will have to close. This is a showing that its interest in prompt judicial review is compelling. Therefore, the Court finds that Plaintiff has met the requirements for waiver of the exhaustion requirement, and that the Court has jurisdiction to hear the claims made against the Federal Government.
The State has also argued that the Court lacks jurisdiction to hear this case. The State maintains that "[a]ny order directing the Secretary of the Department to pay for the continued operation of Greenbelt would be an order

against the State of Maryland." State's Opposition at 9-10. Further, the State argues that it has not consented to be sued, and Congress has not clearly and unequivocally expressed an intent to abrogate its sovereign immunity in the Medicaid statute. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). The State notes that Congress repealed a statutory provision that expressly required the states to waive any Eleventh Amendment immunity, and argues that "[n]o more compelling evidence could demonstrate the lack of congressional intent to abrogate sovereign immunity." Opposition of the State at 11. The State also argues that the Supreme Court held in Seminole that Congress's Article I powers "cannot be used to circumvent the Constitutional limitations placed on federal jurisdiction." Id. at 72, 116 S.Ct. 1114. As the Medicaid Act was enacted under Congress's Article I spending powers, the State argues that Congress did not have the power to abrogate its immunity.
Plaintiff has argued that the doctrine of sovereign immunity and Eleventh Amendment concerns are not implicated in this case, because although it is seeking money from the State treasury in terms of continued payments, it is not seeking money damages. Plaintiff argues that the Court does have jurisdiction over the State because the State is a joint participant in the Medicaid program, which is established under federal law. Plaintiff states that an individual has a right to pursue injunctive relief against a state official to ensure that the official is 571 complying with federal law. See id. at 71 n. 14, 72 n. 16, 116 S.Ct. 1114. *571 Finally, Plaintiff notes that the Supreme Court stated in Wilder v. Virginia Hospital Ass'n, that the repeal of the waiver provision in the Medicaid Act was not to "`be construed as in any way contravening or constraining the rights of the providers of Medicaid services, the State Medicaid agencies, or the Department to seek prospective, injunctive relief in a federal or state judicial forum.'" 496 U.S. 498, 517, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (citing S.Rep. No. 94-1240, Reprinted in 1976 USCCAN at 5651).
The Court finds that it has jurisdiction to hear Plaintiff's claims because it is seeking prospective injunctive relief. The Court believes, however, that the State's obligation to make Medicare payments is derivative. See 42 C.F.R. §§ 488.450(d), 488.452(e); COMAR 10.910.29 Therefore, if the Court finds that the Federal Government cannot be compelled to reinstate the payments, the Court will also find that the State cannot be so compelled.
IV
Standards for Injunctive Relief
The standards for injunctive relief in the Fourth Circuit are well known. In Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Manuf. Co., Inc., 550 F.2d 189 (4th Cir.1977), the Fourth Circuit explained that the most important factors a district court must consider in deciding whether to grant injunctive relief are the threat of irreparable harm to the plaintiff should the Court not issue an injunction, and the likely harm to the defendant if an injunction is ordered. See id. at 196. The district court's first task is to balance these two factors. See Manning v. Hunt, 119 F.3d 254, 263 (4th Cir.1997). After doing this balancing, the court may then consider the third factor, which is the plaintiff's likelihood of success. See id. As the balance of harm moves in favor the defendant, the plaintiff has a greater burden in showing its likelihood of success. See id. Finally, the Court considers the fourth factor, the public interest. See id.
V
Analysis
The balance of the hardships seems to be in Plaintiff's favor. If Plaintiff does not receive the monies from the Federal and State agencies there is a real possibility of irreparable harm: the facility may have to close. The Federal Government has argued that Plaintiff has not shown that it does not have the financial ability to remain open without the funding. However, as 90% of its residents receive Medicaid benefits, it is reasonable to assume that the cessation of payments will result in closure of the facility. Furthermore, all of the parties have

acknowledged that there is a risk that the facility's residents will suffer "transfer trauma" resulting in severe psychological, emotional, and physical damage due to this closure.
The possibility of harm to the Defendants is not as great. Both agencies have argued that residents might suffer more harm if they remain in Greenbelt than if they were removed from the facility. None of the deficiencies, however, found by the surveyors have met the level in which they would be categorized as immediately jeopardizing the health or safety of Greenbelt's residents. Therefore, although the Defendants may have a generalized concern about the welfare of the residents, they have not shown a likelihood of harm to them if the injunction is ordered.
The Court now considers the third factor in the hardship balancing test: plaintiff's likelihood of success on the merits. When "the balance [of the hardships] `tips decidedly' in favor of the plaintiff ... a preliminary injunction will be granted if `the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation.'" Rum Creek Coal Sales. Inc. 572 v. Caperton, 926 F.2d 353, 359 (4th *572 Cir.1991) (citing Blackwelder, 550 F.2d at 195). Plaintiff has not done so in the instant case.
Plaintiff challenges the Secretary Shalala's authority under the Medicare Act to terminate the facility's participation in the Medicare program. The statutory provisions, found at 42 U.S.C. § 1395(I)-3(h), which delineate the powers of the Secretary in this matter state:
(1) In general
If a State finds, on the basis of a standard, extended, or partial extended survey under subsection (g)(2) of this section or otherwise, that a skilled nursing facility no longer meets a requirement of subsection (b), (c), or (d) of this section, and further finds that the facility's deficiencies 0907
(A) immediately jeopardize the health or safety of its residents, the State shall recommend to the Secretary that the Secretary take such action as described in paragraph (2)(A)(I); or
(B) do not immediately jeopardize the health or safety of its residents, the State may recommend to the Secretary that the Secretary take such action as described in paragraph (2)(A)(ii).
If a State finds that a skilled nursing facility meets the requirements of subsections (b), (c), and (d) of this section, but, as of a previous period, did not meet such requirements, the State may recommend a civil money penalty under paragraph (2)(B)(ii) for the days in which it finds that the facility was not in compliance with such requirements.
(2) Secretarial authority
(A) In general
With respect to any skilled nursing facility in a State, if the Secretary finds, or pursuant to a recommendation of the State under paragraph (1) finds, that a skilled nursing facility no longer meets a requirement of subsection (b), (c), (d), or (e) of this section, and further finds that the facility's deficiencies 0907
(I) immediately jeopardize the health or safety of its residents, the Secretary shall take immediate action to remove the jeopardy and correct the deficiencies through the remedy specified in subparagraph (B)(iii), or terminate the facility's participation under this subchapter and may provide, in addition, for one or more of the other remedies described in subparagraph (B); or
(ii) do not immediately jeopardize the health or safety of its residents, the Secretary may impose any of the remedies described in subparagraph (B).
Nothing in this subparagraph shall be construed as restricting the remedies available to the Secretary to remedy a skilled nursing facility's deficiencies. If the Secretary finds, or pursuant to the recommendation of the State under paragraph (1) finds, that a skilled nursing facility meets

such requirements but, as of a previous period, did not meet such requirements, the Secretary may provide for a civil money penalty under subparagraph (B)(ii) for the days on which he finds that the facility was not in compliance with such requirements.

(B) Specified remedies

The Secretary may take the following actions with respect to a finding that a facility has not met an applicable requirement:

(I) Denial of payment

The Secretary may deny any further payments under this subchapter with respect to all individuals entitled to benefits under this subchapter in the facility or with respect to such individuals admitted to the facility after the effective date of the finding.

(ii) Authority with respect to civil money penalties

573

The Secretary may impose a civil money penalty in an amount not to exceed *573 $10,000 for

each day of noncompliance. The provisions of section 1320a-7a of this title (other than

subsections (a) and (b)) shall apply to a civil money penalty under the previous sentence in the

same manner as such provisions apply to a penalty or proceeding under section 1320a-7a(a) of

this title.

(iii) Appointment of temporary management

In consultation with the State, the Secretary may appoint temporary management to oversee the operation of the facility and to assure the health and safety of the facility's residents, where there is a need for temporary management while 0907

(I) there is an orderly closure of the facility, or

(II) improvements are made in order to bring the facility into compliance with all the requirements of subsections (b), (c), and (d) of this section.

The temporary management under this clause shall not be terminated under subclause (II) until the Secretary has determined that the facility has the management capability to ensure continued compliance with all the requirements of subsections (b), (c), and (d).

The Secretary shall specify criteria, as to when and how each of such remedies is to be applied, the amounts of any fines, and the severity of each of these remedies, to be used in the imposition of such remedies. Such criteria shall be designed so as to minimize the time between the identification of violations and final imposition of the remedies and shall provide for the imposition of incrementally more severe fines for repeated or uncorrected deficiencies. In addition, the Secretary may provide for other specified remedies, such as directed plans of correction.

(C) Continuation of payments pending remediation

The Secretary may continue payments, over a period of not longer than 6 months after the effective date of the findings, under this subchapter with respect to a skilled nursing facility not in compliance with a requirement of subsection (b), (c), or (d) of this section, if 0907

(I) the State survey agency finds that it is more appropriate to take alternative action to assure compliance of the facility with the requirements than to terminate the certification of the facility,

(ii) the State has submitted a plan and timetable for corrective action to the Secretary for approval and the Secretary approves the plan of corrective action, and

(iii) the facility agrees to repay to the Federal Government payments received under this subparagraph if the corrective action is not taken in accordance with the approved plan and timetable.
The Secretary shall establish guidelines for approval of corrective actions requested by States under this subparagraph.
(D) Assuring prompt compliance
If a skilled nursing facility has not complied with any of the requirements of subsections (b), (c), and (d) of this section, within 3 months after the date the facility is found to be out of compliance with such requirements, the Secretary shall impose the remedy described in subparagraph (B)(I) for all individuals who are admitted to the facility after such date.
Plaintiff contends that these provisions establish that the Secretary can only terminate a facility's participation under the Medicare program when there has been a finding that the deficiencies cited immediately jeopardize the health and safety of its residents. The Secretary, however, has adopted regulations which provide that HCFA or the State may terminate a facility's provider agreement absent a finding of immediate jeopardy. See 42 C.F.R. § 488.412, 488.456.
574 *574 The Medicaid provisions mostly parallel Medicare provisions. However, as Medicaid is a joint program, the Medicaid Act also address the authority of the State to remedy deficiencies. Under 42 U.S.C. § 1396r(h):
(1) In general
If a State finds, on the basis of a standard, extended, or partial extended survey under subsection (g)(2) of this section or otherwise, that a nursing facility no longer meets a requirement of subsection (b), (c), or (d) of this section, and further finds that the facility's deficiencies 0907
(A) immediately jeopardize the health or safety of its residents, the State shall take immediate action to remove the jeopardy and correct the deficiencies through the remedy specified in paragraph (2)(A)(iii), or terminate the facility's participation under the State plan and may provide, in addition, for one or more of the other remedies described in paragraph (2); or
(B) do not immediately jeopardize the health or safety of its residents, the State may 0907
(I) terminate the facility's participation under the State plan,
(ii) provide for one or more of the remedies described in paragraph (2), or
(iii) do both....
Therefore, it is clear that the State has the authority to terminate the facility participation even absent a finding of immediate jeopardy. Plaintiff, however is not directly challenging the State's authority to terminate participation, but that of the Secretary of HHS. Ultimately, the issue before the Court is one of statutory interpretation.[3]
Four courts have looked at this issue while deciding whether to grant injunctive relief. One court declined to reach the issue because it found that the facts in that case indicated that the plaintiff was likely to be reinstated. See Libbie Rehabilitation Center, Inc. v. Shalala, 26 F.Supp.2d 128 (D.D.C.1998). Two of those courts found that the Secretary was acting outside of the statutory authority granted to her because they held that the statute only allowed the Secretary to terminate a facility from the programs when there had been a finding of immediate jeopardy. See Mountainview Nursing and Rehabilitation Center, Inc. v. Department of Health and Human Services, No. 93 CV 1692 (M.D.Pa. Nov. 18, 1993); Claridge House, Inc. v. Department of Health and Human Services, 795 F.Supp. 1393 (S.D.Ohio 1991). One court has found that the Secretary has the authority to terminate absent such a finding. Lake County, 854 F.Supp. at 1340. The Court believes that this latter court reached the correct result.

Although the Claridge House court found that "if the Secretary could terminate a facility with or without a finding of immediate jeopardy, there would be little point in distinguishing ... between situations of immediate jeopardy and situations of no immediate jeopardy," an examination of the statutory language reveals the purpose for the distinction. 795 F.Supp. at 1404. As the Lake County court has noted, if the Secretary finds a facility's deficiencies rise to the level of immediately jeopardizing its resident's health, Congress has mandated that the Secretary "shall" either terminate the facilities participation or appoint a temporary manager. See 854 F.Supp. at 1340. The only discretion that the Secretary has in this situation is which of the two avenues offered by Congress to pursue 575 under the given circumstances. If *575 the deficiencies do not rise to this severe level, however, the Secretary "may" choose from the three remedies specified in Section 1395i-3(h)(2)(B). The statutory language does not require the Secretary to choose one of these remedies. Instead, the provision clearly states that "[n]othing in this subparagraph shall be construed as restricting the remedies available to the Secretary to remedy a skilled nursing facilities deficiencies." Section 1395i-3(h)(2)(A).
Although courts have disagreed on the interpretation of Section 1395i-3(h), this Court finds this reading to be the most in line with Congress' intent as expressed in the legislative history. Prior to 1987, HCFA could only either terminate a facility's participation or deny payments if that facility was found to not be in substantial compliance with the Medicare or Medicaid participation requirements. In 1987, however, Congress amended the Social Security Act to include the intermediate remedies such as the denial of payments for future residents, the imposition of civil penalties, and the appointment of a temporary manager. "[T]here is no indication in the legislative history of the statute that Congress wished to limit the Secretary's ability to terminate a facility from participation in the Medicare program." Lake County, 854 F.Supp. at 1340. Rather, the Committee reports indicate that Congress intended to expand the remedies available. See H.R.Rep. No. 291(I), 100th Congress, 1st Sess., Reprinted in 1987 USCCAN 2313-1, 2313-295.
The legislative history supports an interpretation that the distinction drawn between deficiencies which immediately jeopardize the health and safety of the facility's residents and those that do not was not based on the Secretary's authority to terminate a facility's participation. The Committee report states that if the "deficiencies immediately jeopardize the health and safety of its residents, the Secretary would be required to follow one of two courses of action." Id. (emphasis added). On the other hand, the Committee stated, if the deficiencies did not rise to that level, "the Secretary could, in addition to any other remedies available to the Secretary under law, exercise one or more of three specified intermediate remedies." Id.
Under 42 U.S.C. § 1395cc(b)(2), "[t]he Secretary may ... refuse to renew or may terminate such an agreement after the Secretary 0907 (A) has determined that the provider fails to comply substantially with the provisions of the agreement, with the provisions of this subchapter and regulations thereunder ..." This provision, which does not require a finding of immediate jeopardy, was a remedy available to the Secretary at the time the statute was amended. Therefore, it is clear that the Secretary has the statutory authority to terminate a facility's participation even absent a finding of immediate jeopardy, and the regulations which so state are consistent with the statutory provisions. Thus, Plaintiff is unlikely to succeed on the merits of its claim.[4]
576 *576 The Court believes that the public interest would be served if the facility was allowed to correct its deficiencies within the time frame allotted by the Consent Order approved by this Court. Although the balance of the other factors of the hardship balancing test might be in Plaintiff's favor, the Court cannot grant this extraordinary relief in light of the fact that Plaintiff is not likely to succeed on the merits of its complaint.
Nor can the Court find any equitable reasons to reach a different result. The doctrine of estoppel, under which HCFA could be bound by September 15 Consent Order is inapplicable. "[E]stoppel is rarely if ever, [invoked] against the Government absent proof of some affirmative misconduct by a Government agent." United States v. Vanhorn, 20 F.3d 104, 112 n. 9 (4th Cir.1994). That has not been shown in this case.
As discussed in footnote 4, supra, the United States Attorney Office is not an agent of HCFA, and HCFA was not a signatory party of the Consent Order. Plaintiff maintains that "in light of the entry of the Consent Order imposing the federal operation of the facility under the temporary Manager and Monitor only days after HCFA issued its termination notice, Greenbelt had every reason to believe that this comprehensive remediation of the problems at the facility would enable it to maintain its status in the federal and state entitlement programs." Plaintiff's Reply at

577 4. Nothing, however, indicates *577 that an agent from HCFA ever represented to Greenbelt that HCFA was not going to terminate it on September 26, 1998, as it was informed it would be by the September 11, 1998 letter. Further, the language of the Consent Order clearly states that all administrative remedies were not supplanted by its terms. Therefore, there is not any evidence of affirmative misconduct on the part of a HCFA agent, and estoppel cannot apply.
Although the Court is compelled to reach the conclusion that Secretary Shalala through HCFA had the authority to terminate Greenbelt's participation in the Medicare program, the Court wishes to express its concerns about the fairness of this action. The Court believes that this is an inequitable result. From all indications, Greenbelt entered into the Consent Order in good faith. The Temporary Manager and the Federal Monitor have just recently begun the work necessary to correct the deficiencies cited by the respective agencies. Although the agencies argue that the conditions at Greenbelt have become worse, not better, since January, the Court believes that the Temporary Manager has not had sufficient time to address the problems. The Federal Monitor has taken the position that "[e]ffectuation of the termination virtually shuts down the facility only weeks after the temporary manager's appointment, compelling the involuntary discharge of all the residents and shutting down the remedial process put in place by the court's order .[She] firmly believes that facility closure is not in the best interests of Greenbelt's residents ...." December 9, 1998 Letter from Federal Monitor Claudia Schlosberg at 2. The Court is inclined to agree.
Plaintiff has argued that "Greenbelt and its residents are caught in a conflict between competing Governmental objectives which they cannot control." Plaintiff's Memorandum at 39. The Court agrees with this proposition. This conflict was displayed by the fact that the United States Attorney was compelled to recuse herself from this case.
Unfortunately for Greenbelt, however, the Court does not agree with the proposition that "[t]he notion that somehow there is a `different' United States or federal involved in this action than the agency involved in the related case is an absurdity. ..." Plaintiffs Reply at 9. It is clear that two different arms of the Federal Government, with two different views on how Greenbelt's programs should be addressed, were involved in these cases. As HCFA had the authority to terminate, and the Office of the Attorney General did not have the power to bind HCFA to the provisions of the Consent Order, Plaintiff cannot receive its requested relief.
Therefore, the Court will deny Plaintiff's Motion for a Temporary Restraining Order, without prejudice to the Plaintiff's seeking a hearing on its Motion for a Preliminary Injunction, after it has exhausted its administrative remedies, or at another time should any circumstance arise which would warrant that relief.
[1] Plaintiff appealed within the sixty days provided. Since very few of its residents receive care reimbursed under Medicare Part A, Greenbelt has borne the cost of providing these services since the termination.
[2] "Termination from Medicaid is automatic upon termination from Medicare." International Long Term Care, Inc. v. Shalala, 947 F.Supp. 15, 16 (D.D.C.1996).
[3] Plaintiff's challenge in this case is primarily to the Secretary's decision to terminate its participation in the Medicare program. Although this decision necessarily had an impact on Plaintiff's participation in the Medicaid program, the HCFA did not reference the Medicaid act in its letter to Plaintiff. Therefore, the Court must determine whether the Secretary had the statutory authority to terminate under the Medicare provisions found in Section 1395i-3(h).
[4] The Federal Government also argued that not only does the Secretary have the authority to terminate the provider agreement at any time that a facility is found not to be in substantial compliance with the participation requirements, 42 U.S.C. § 1395 requires the Secretary to terminate the provider agreement if the facility is not found to be in compliance after six months. See 42 C.F.R. § 488.412 ("HCFA terminates the provider agreement for SNF's and NF's ... for a NF for which participation was continued under paragraph (a) of this section, if the facility is not in substantial compliance within 6 months of the last day of the survey."); see also 42 C.F.R. § 488.450(d). Plaintiff argued that it had been recertified within this six month period. Plaintiff maintained that "[w]ith the acceptance of the plan of correction by HCFA, the survey cycle would end (until the next survey by the LCA or a federal survey agency) and the facility would be entitled to the intervening period to continue its corrective measures." Plaintiff's Memorandum at 15. Plaintiff relied on LCA's July 29, 1988 letter stating that it would

consider the facility to be in compliance and ¶ 23 of the Complaint in the first case, which states that HCFA accepted the plan of correction in its argument that it was certified as of July 26, 1998. HCFA argued, however, that it ever accepted the plan of correction because the August survey occurred before HCFA acted on LCA's recommendations. See Federal Government's Opposition at 5.
Although LCA could recommend that Greenbelt be considered in compliance, LCA did not have the power to bind HCFA to that recommendation. See 42 U.S.C. § 1396r (h)(6)(B) ("If the Secretary finds that a nursing facility has not met all the requirements of subsections (b), (c), and (d) of this section, and that the failure does not immediately jeopardize the health or safety of its residents, but the State has not made such a finding, the Secretary ... may impose any remedies specified in paragraph (3)(C) with respect to the facility ...") Moreover, the United States Attorney Office, not HCFA, was the signatory to the Consent Order. The United States Attorney Office also cannot be seen as an agent of HCFA. Nothing indicates that an agent from HCFA ever represented to Greenbelt that it was considered to be in compliance in July. Therefore, Plaintiff's argument that a new cycle had begun must fail.
Plaintiff further argued that even if the six month time period had elapsed, despite 42 C.F.R. § 488.412, HCFA is not required to terminate a facility's participation by 42 U.S.C. § 1395i(h)(3)(C). Section 1395i-3(h)(2)(C) does not expressly mention termination. The provision merely states that the Secretary can continue payments for a six month period. Nothing in this language indicates that Secretary could not simply deny payments, instead of terminating the facility's participation in the program, after this six month period. Denial of payments, however, would probably lead to the same result in this case as termination. Under 42 U.S.C. § 1396r (h)(1)(B), the State could terminate the facility's participation without a finding of immediate jeopardy. Thus, even if HCFA had merely denied funding, the State would not have been under any legal obligation to continue paying Greenbelt for the services rendered to its residents on Medicaid.
Plaintiff argued, however, HCFA had the authority to continue payments beyond the six month period. Plaintiff maintained that a "review of the statutory provisions and legislative history creating intermediate remedies such as temporary management generally and the particular invocation of that remedy in this case, demonstrate the inaccuracy" of HCFA's position that it cannot continue payments. Plaintiff's Reply at 7. Plaintiff claimed that the temporary management provision would be rendered meaningless if HCFA is required to cease funding at the end of six months because no such time limit is imposed in that provision. A Temporary Manager may need more than six months to get the facility into compliance, and the cessation of funding during that time period would hinder the Temporary Manager's progress. The Court agrees that a reasonable interpretation of Section 1395i-3 (h)(2)(C) in conjunction with Section 1395i-3(h)(B)(iii) would be that the Secretary can continue funding past six month to a facility if the temporary management alternative is employed. However, as the Court finds that HCFA did not choose to use this intermediate remedy, the Secretary was not required to fund beyond the six months period detailed in Section 1395i-3(h)(2)(C).
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