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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Appellate Division |
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| IN THE CASE OF | |
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DATE: August 27, 2004 |
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Centers for Medicare & Medicaid
Services
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Docket No. A-04-63
Civil Remedies CR1120 Decision No. 1940 |
| DECISION | |
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FINAL DECISION ON REVIEW OF On February 13, 2004, both parties requested review of the decision of Administrative Law Judge (ALJ) Steven T. Kessel in this matter. Vandalia Park, DAB CR1120 (2003) (ALJ Decision). The ALJ Decision resolved consolidated cases arising from two surveys of Vandalia Park (Vandalia) which ended on April 9 and April 30, 2002, respectively, each of which resulted in findings of noncompliance and the imposition of remedies by the Centers for Medicare & Medicaid Services (CMS). The ALJ sustained a per instance civil monetary penalty (CMP) of $3,400, a CMP of $3,050 per day from March 24, 2002, through April 21, 2002, a CMP of $750 per day from April 22, 2002, through May 30, 2002, and additional remedies, but did not sustain a separate per-instance CMP of $6,600. For the reasons explained in detail below, we affirm the ALJ decision with the modifications set herein. Legal Background Vandalia Park (Vandalia) is a skilled nursing facility (SNF) that participates in the Medicare program. The regulatory requirements for SNFs and other long-term care facilities participating in Medicare are set forth at 42 C.F.R. Part 483. Compliance with the participation requirements is determined through surveys performed by state agencies under contract with CMS. Survey results are reported in a Statement of Deficiencies (SOD). 42 C.F.R. � 488.325(a). A CMP may be imposed against a facility that is not in "substantial compliance" with one or more participation requirements. 42 C.F.R. � 488.408(d). A facility is not in "substantial compliance" with a participation requirement if it is found to have a deficiency that results in actual harm to a resident or poses a risk of more than minimal harm to resident health and safety. 42 C.F.R. � 488.301. A CMP in the range of $50-$3,000 per day may be imposed for one or more deficiencies that do not constitute "immediate jeopardy" but that either cause actual harm or create the potential for more than minimal harm. 42 C.F.R. � 488.438(a). Within the applicable range, the regulations provide a number of factors to be considered by CMS in determining an appropriate CMP amount. These factors are the facility's history of noncompliance, its financial condition, its culpability for the cited deficiencies, the scope and severity of those deficiencies, and the relationship between or among the deficiencies. 42 C.F.R. � 488.438(f)(3), incorporating by reference 42 C.F.R. � 488.404. Under 42 C.F.R. Part 498, a facility on which a CMP is imposed has a right to request a hearing by an ALJ assigned to the Departmental Appeals Board and a right to request review of an ALJ decision by the Board itself. Standard of Review Our standard of review on a disputed conclusion of law is whether the ALJ Decision is erroneous. Our standard of review on a disputed finding of fact is whether the ALJ Decision is supported by substantial evidence on the record as a whole. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs; see also Hillman Rehabilitation Center, DAB No. 1611 at�6 (1997), aff'd, Hillman Rehabilitation Center v. U.S. Dept. of Health and Human Services, No. 98-3789 at 21-38 (D.N.J. May 13, 1999). ALJ Decision The ALJ made the following 12 Findings of Fact and Conclusions of Law (FFCLs):
ALJ Decision at 8, 10, 11, 16, 17, 18, 19, 20. |
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| ANALYSIS | |
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1. CMS appeal CMS took exception to FFCLs 1 and 2. The gravamen of CMS's appeal is that the ALJ erred by sustaining a deficiency finding that Vandalia failed to thoroughly investigate allegations that staff sexually abused residents but rejecting a finding that Vandalia failed to protect its residents from sexual abuse. According to CMS, FFCLs 1 and 2 were arbitrary, capricious and contrary to law, and should be reversed. CMS Appeal Br. at 1-2. CMS asserted that it had established a prima facie case that three residents had been abused by two agency nurse aides. CMS argued that the ALJ failed to so find, in part, because he erroneously failed to credit the testimony of a nurse aide. In addition, CMS argued that the ALJ improperly refused to give any weight to resident complaints because he considered them to be uncorroborated hearsay. CMS further contended that the ALJ should have established a presumption that sexual abuse would have been proven but for the facility's failure to fulfill its obligation to conduct the required investigations, and hence should have concluded on that basis that the facility failed to prevent abuse.
The ALJ found in FFCL 1 that CMS had failed to present a prima facie case of sexual abuse. In appealing this FFCL, CMS argued "contrary evidence and inferences should not be considered in ruling whether or not CMS has established a prima facie case." CMS Appeal Br. at 14. The correct standard is the one acknowledged by CMS on the same page of its brief, whether the preponderance of the evidence in the record favors the facility's claim of substantial compliance with the requirement at issue. Cf.CMS Br. at 14. In deciding this question, the ALJ was entitled to consider all the admitted evidence and to draw whatever reasonable inferences are supported by the evidence before him. The distinction lies in the question which the decision-maker is asking. Thus, the question being asked in evaluating whether CMS met the initial test of presenting a prima facie case is whether the facts on which CMS relies made out a legally-sufficient case, even were CMS's case not challenged by any evidence from the facility. It is possible that this question may arise even after the record is fully developed, where CMS's case is simply legally insufficient. More generally, however, the question at that stage of the case is, as it was here, which party's evidence is more persuasive. Where the resolution of disputes of fact is central to the outcome of the case, the test is whether the facility has shown substantial compliance by the preponderance of the evidence, i.e., whether the facility's position is more likely than not to be true based on weighing the evidence as a whole. It is clear from the
ALJ's discussion that he did in fact review the full record of evidence,
weigh the credibility and persuasiveness of the evidence presented by
both parties on the issue, evaluate the inferences to be drawn therefrom,
and reach his conclusions on that basis. It is equally clear that he found
the key evidence not credible and Vandalia's evidence that the aide's
actions were as likely as not to have been compatible with care-giving
rather than abuse to be more persuasive. Hence, there is no reason to
return the matter to the ALJ to reformulate his finding in terms of the
ultimate standard of proof. We therefore modify FFCL 1 below to reflect
that Vandalia proved that it was more likely than not that it was in substantial
compliance with the regulatory requirements relied on by CMS.
The allegations at issue related to Residents 6, 124, and 141. The alleged abuse of the first resident was reported by a nurse aide. The other two residents later made complaints about the same aide accused in the first incident. The nature of each of the allegations is deeply disturbing, involving allegations of sexual exploitation of profoundly dependent individuals. In addition, there have been counter-allegations of malicious and racially-motivated accusations and of unsupported charges resulting from mental illness. As an appellate body, we tread with some caution when reviewing an ALJ's resolution of directly conflicting evidence on questions of fact, since we must uphold the ALJ's finding when it is supported by substantial evidence on the record as a whole, regardless of whether we might have reached different conclusions de novo. We are especially loath to second-guess when, as here, questions of credibility are involved, deferring to the ALJ who had the unique opportunity to observe a witness.
Resident 6 was a severely retarded, quadriplegic young adult unable to speak and totally dependent for care. A nurse aide, Janet Saunders, testified that in September 2001 she saw a male aide, identified here as S.O., leaning on the resident's bed with his hand touching the resident's genital area. Tr. at 53-56. She testified that she challenged S.O. about what he was doing and that he responded that he was changing her diaper. Tr. at�55. Ms. Saunders alleged that she informed the then-DON Mike Federinko orally, and at his request in writing, of her observations in September 2001, but the statement was never located. CMS Ex. 3, at�9. She wrote a second statement for the new DON, Carol Phillips. CMS Ex. 60. The ALJ was unpersuaded by Ms. Saunders's testimony, finding her "recitation of what she saw . . . less than credible." ALJ Decision at 6. He also noted that the details of what she described S.O. doing had changed in various accounts. Id. He also found that, even assuming she honestly reported what she saw, the observations were ambiguous, suggesting that S.O. "could have been in the process of sexually abusing the resident" but "equally likely, he could have been cleaning the resident and changing her diaper. Id. (italics in original). He cited the fact that Ms. Saunders did not report S.O. having been startled by her entry and that he continued interacting with the resident in her presence as supportive of an innocent interpretation. Id.; see P. Ex. 12, at 4. He noted that Ms. Saunders' account was not corroborated by any other witness to the events or any physical evidence. Id. at 16. CMS argued that the ALJ should have found Ms. Saunders's testimony to be credible and supported by other evidence in the record. CMS Appeal Br. at 13-18. At the time of the incident, Ms. Saunders allegedly spoke to another aide, Jacqueline Schmitt, who reported that Ms. Saunders was very upset and told her that S.O. had been "fingering" the resident. P. Ex. 10, at 42 (statement to investigators). (1) CMS pointed to this statement as corroborating Ms. Saunders' later testimony. CMS Appeal Br. at�12. The ALJ concluded, however, that the fact that Ms. Saunders shared her suspicions with a co-worker could not in itself corroborate the accuracy or credibility of either "her observations or her conclusions." ALJ Decision at 16. The record contained conflicting statements from a number of co-workers about Ms. Saunders' credibility in general, her ability to have observed what she claimed to have seen from where she was standing, and her possible motivations. Compare P. Ex. 9, at 2 and CMS Appeal Br. at 13-15 (and record citations therein) with P. Exs. 4, at 5; 8, at 3; 10, at 19-24, 76-77, 84-85; and P. Ex. 12, at�3-4. (2) It was also disputed whether Ms. Saunders actually reported her alleged observations to DON Federinko at the time of the incident or made her charges for the first time during the survey. See, e.g., P. Exs. 4, 8. DON Frederinko also alleged animus on the part of Ms. Saunders toward some other staff members. P. Ex.�8, at 2-3 (Federinko Affidavit). In sum, the written record
would have supported a finding either way about the allegation of abuse
of Resident 6 depending on how much credence and weight is given to Ms.
Saunders' report and how much to the other statements, some sworn and
some not, attacking her. The ALJ did not have to rely, however, on ascertaining
the truth from the various conflicting, often inflammatory, cross allegations.
Ms. Saunders appeared in person before the ALJ, who hence had a full opportunity
to make an independent assessment of her testimony. In such circumstances,
the Board has held that -- A reviewing panel does
not have the opportunity to evaluate the credibility of a witness by listening
in person to the witness's testimony or observing the witness's demeanor.
The evaluation of the credibility of a witness is properly left to the
hearing officer.�.�.�.��Thus, we defer to the ALJ's evaluations of the
credibility of the witnesses who appeared before him in this matter. South Valley Health Care Center, DAB No. 1691, at 22 (1999); see also Koester Pavilion, DAB No. 1750, at 15, 21 (2000). He did not believe that her testimony sufficed to show that sexual abuse likely occurred. We decline to disturb the ALJ's conclusion regarding Ms. Saunders' statements. Vandalia asserted that the ALJ found that Resident 6 "had not been abused by anybody, let alone" S.O., thus implying that the ALJ found proof that abuse did not occur. Vandalia Resp. Br. at�3. This is wrong. The ALJ made no such finding, and his findings relating to Vandalia's failure to conduct prompt and thorough investigations make clear that the ALJ was very concerned about the evidence that sexual abuse may well have occurred involving Resident 6 and/or other vulnerable residents. We discuss the ALJ's findings and the evidence on this below.
The other two allegations arose from complaints by the residents themselves in February 2002 about alleged actions of S.O., as well as another aide identified as C.S.; none of the alleged incidents was observed by anyone else. Resident 124 told staff members on February 11, 2002, that, over the preceding weekend, C.S. had "gotten on top of her 'and put his thing inside her private area." CMS Ex. 56, at 11. On February 14, 2002, the same resident told nurse aide Karen Waugh that over the preceding night S.O. had "put the pad up against my ass and . . . was all touchy feely." CMS Ex. 61, at 1; see also CMS Ex. 63, at 1. On February 14, 2002, Resident 141 told Ms. Waugh that S.O. "put his hands all up inside her" and was "messing with" her. CMS Ex. 61, at 1; see also CMS Exs. 63, at 1, and 47, at 19. DON Phillips completed investigation reports on these complaints on February 18, 2002. CMS Exs. 66, 70. She found that she could not identify the date of the alleged incident involving C.S., and that she was unable to contact C.S. through the agency which had sent him to the facility in order to obtain his statement. CMS Ex. 70, at 2-3. She concluded that the complaint was unsubstantiated. Id. at 3. As to the complaints about S.O., DON Phillips noted that two female residents, who were not roommates, had "voiced very similar complaints on the same day." CMS Ex. 69, at 3. She concluded that S.O. would no longer be accepted to work in the facility and that the agency which had sent him had been notified of "suspected abuse." Id. at 4. The ALJ concluded that the residents' complaints were not credible "because they consist of uncorroborated hearsay evidence," with no other witnesses and no supporting physical evidence. ALJ Decision at 7. The ALJ further found that the diagnosed mental illnesses of both residents also raised doubts about the credibility of the residents' allegations. Id. CMS objected to the ALJ's "decision to completely discount" the residents' reports as contrary to law. CMS Appeal Br. at 22. The ALJ did give a shorthand summary of his treatment of hearsay which might have been misleading. He stated that he admitted hearsay only because there was no jury that might be prejudiced by it, but concluded that "that is not to say that hearsay evidence should be afforded any greater credibility in these proceedings than it is afforded under federal or State evidence rules where it is routinely excluded." ALJ Decision at�7. This summary might be understood to imply that any statement that would constitute hearsay under federal evidence rules should be given no weight in an administrative hearing. Of course, out-of-court declarations may be admitted under the federal rules for many purposes other than to prove the truth of the matter asserted therein, such as to show awareness or intent. Further, the federal rules provide numerous "hearsay exceptions," permitting admission of out-of-court statements for the purpose of proving their contents, such as self-inculpatory statements, public records, etc. See Fed. Rules of Evid., Article VII passim. The common thread among most of the exceptions is that they codify circumstances that assure that an out-of-court statement is likely to be reliable even though untested by direct observation and cross-examination of the declarant. In administrative proceedings generally, and in these proceedings expressly, the rule is that hearsay is admissible and can be probative on the issue of the truth of the matter asserted in it, where sufficient indicia of reliability are present. See 42 C.F.R. � 498.61; Pacific Regency Arvin, DAB No. 1823, at 14, n.6 (2002); Richardson v. Perales, 402 U.S. 389, 402 (1971). The requirement of adequate indicia of reliability serves to recognize the basic premise behind the hearsay rule that a declarant who is not present in court, not testifying under oath and not facing cross-examination, might well be under less pressure to be scrupulously honest and accurate. The rule permits the ALJ, however, to look at the entire context of the statement to gauge reliability rather than using only the narrow codified exceptions to the hearsay rule. Hence, it is important to consider whether surrounding circumstances or other evidence provide some assurance of that declarant's motivation, personal knowledge, and veracity. Further, mere admission of a hearsay statement into the record does not dictate how much weight, if any, that statement will ultimately be accorded in the context of a complete record and briefing. Although the quoted statement in this decision could be interpreted as overbroad, we nevertheless find that the ALJ accurately understood and reasonably applied the proper guidelines for handling such hearsay evidence. The ALJ cited to his fuller discussion of the issues raised by reported complaints of facility residents in Heritage Manor of Columbia, DAB CR995 (2003), where he explained the rule as follows:
DAB CR995, at 5. This articulation makes clear that such statements by residents may be entitled to weight where evidence supports their reliability or otherwise corroborates them. (3) In the present case, the ALJ gave specific reasons for declining to credit as reliable the reported statements of the two residents, apart from his designation of the statements as hearsay. Specifically, he noted that each of the residents had diagnoses of mental illness that might affect their reliability, that there were no other witnesses to the reported actions, and that no physical evidence supported the contentions. ALJ Decision at 7. CMS argued that mental illness takes many forms and need not undercut a report of abuse. CMS Appeal Br. at 22. CMS argued that the record contained no evidence that Resident 141's delusions were ever sexual in nature or caused her to make false allegations about others. CMS Appeal Br. at 26. It is certainly true that a diagnosis of mental illness alone does not necessarily undercut the veracity or competence of a declarant. See, e.g., U.S. v. Jimenez, 256 F.3d 330, at 343 (5th Cir. 2001)(To be relevant as impeachment, the mental health issue must "evince an 'impairment' of the witness's 'ability to comprehend, know, and correctly relate the truth.'"). There was evidence in the record, however, from which the ALJ could infer that the mental illnesses involved here were relevant to the reliability of the statements. (4) A letter from Acting DON Sharon Chasteen asserted that both residents suffered from delusions and paranoia, which included a delusional pregnancy in the case of Resident 124. P. Ex. 4, at�2. The diagnoses were contained in written psychiatric consultations for both residents. Resident 124 had multiple prior admissions to psychiatric hospitals with diagnoses including dementia, schizoaffective disorder and organic brain syndrome. CMS Ex. 56, at 28-29. Resident 141 suffered from acute psychosis and dementia with hallucinations. CMS Ex. 58, at�16-17. The comprehensive assessments of both residents showed impaired cognitive skills and multiple indicators of delirium. CMS Ex. 56, at 21; CMS Ex. 58, at 19. Social services staff asserted that staff members spoke to the brother and sister-in-law of Resident 124 after the February 2002 events. P.�Ex. 18. They report that the family members stated that that resident had made the same kinds of allegations in prior placements and that the resident "targets" black males. Id. at�1-3. Presumably, for this reason, CMS limited to Resident 141 its claim that prior delusions were not sexual in nature. None of this establishes that the two residents were not sexually molested at Vandalia. It does, however, suffice to give the ALJ a justifiable basis for declining to credit their uncorroborated hearsay alone as establishing that Vandalia failed to comply with the requirements of section 483.13(b).
CMS also argued that the ALJ should have applied a "rebuttable presumption" that, had Vandalia conducted prompt and thorough investigations of the sexual abuse allegations, such investigations would have generated evidence to confirm the allegations. CMS Appeal Br. at 5-7, 17-18, 24. CMS noted that the facility had a duty, under federal regulations as well as any state law, to conduct a timely investigation of all reports of sexual abuse. Id.; 42 C.F.R. � 483.13(c). CMS cited a Sixth Circuit case for the proposition that it was entitled to a presumption that the "missing evidence" would favor its position where Vandalia had a duty to collect the evidence. CMS Appeal Br. at 7, citing Rogers v. T.J. Samson Community Hosp., 276 F.3d 228, 232-34 (6th Cir. 2002). Rogers involved a hospital which failed to test tissue removed from the plaintiff, allegedly thereby failing to preserve evidence of harm. The appeals court held that, if the hospital did have a duty to test the tissue, then the trial judge should have given a jury instruction that jurors "may infer, but are not required to infer, that such evidence, if available now, would have been favorable" to the plaintiff. Id. at 232. While this case might support the ALJ had he drawn an unfavorable inference from what he found to be Vandalia's inadequate investigations, the holding plainly does not oblige the ALJ to draw such an inference. CMS raised the troubling possibility that, absent a presumption in its favor, it would "generally . . . not be able to prove a prima facie case" whenever a facility failed to conduct a proper investigation of resident reports of abuse. CMS Appeal Br. at�27-28. (5) In essence, CMS intimated that facilities were being offered a sort of perverse incentive to avoid conducting required investigations. While it may sometimes be the case that evidence needed to resolve a charge of abuse is indeed lost as a result of a failure to timely and properly investigate, facilities are subject to possible sanctions for such a failure in itself, whether or not the charge is substantiated. This is evident in the present case, since, as we discuss in the next section, we uphold the ALJ's finding that Vandalia failed to conduct requisite investigations and is hence subject to resulting sanctions.
We conclude that substantial
evidence in the record as a whole supports the conclusion that Vandalia
did not allow its residents to be abused sexually. We modify FFCL 1 to
reflect the correct standard of review and affirm FFCL 2. FFCL 1 shall
read as follows:
2. Vandalia appeal Vandalia took exception
to FFCLs 3-7 and 9-12. Vandalia Appeal Br. at 1. As to FFCLs 4, 7, and
9-11, which addressed the remedies imposed, Vandalia explained that it
simply wished to preserve an appeal of the remedies "in the event the
substantive findings . . . are reversed in whole or in part," and expressly
recognized that the $3,050 per day CMP is the minimum for an immediate
jeopardy finding and hence could not be reduced unless the immediate jeopardy
finding were reversed or reduced to a lesser scope and severity. Id.
at 1 n.1. We thus discuss the substantive findings in FFCLs 3 and 5 in
the next two sections. Since we uphold both substantive FFCLs, for the
reasons explained below, we here affirm the FFCLs relating to remedies
without further discussion. Finally, we address FFCL 12 and Vandalia's
procedural arguments about the hearing.
The regulations require that a facility "must ensure that all alleged violations involving mistreatment, neglect, or abuse�.�.�.�are reported immediately to the administrator of the facility and to other officials in accordance with State law�.�.�.�." 42 C.F.R. � 483.13(c)(2). In addition, the facility must document that "all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress." 42 C.F.R. ��483.13(c)(3). The facility is further required to "develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents�.�.�.�." 42 C.F.R. � 483.13(c). The ALJ found that CMS had presented "strong prima facie proof" that Vandalia had failed to comply with the regulatory requirements and with its own anti-abuse policies. ALJ Decision at 9. The allegations voiced by the residents and the report from Ms. Saunders that were discussed in the prior section of this decision did not suffice to make it more likely than not that abuse occurred from which Vandalia failed to protect its residents. The ALJ found, and we agree, that those allegations nevertheless were more than sufficient to require thorough investigations. In addition, CMS proffered evidence that three other residents (not those cited in the survey) complained of inappropriate touching by S.O. in early 2001. See CMS Exs. 76, at 6, 79, at 6-11, and 128, at 48. The ALJ rejected those reports as corroboration of the claims that Resident 6 was abused by S.O. since the complaints "do not appear to have been substantiated," but did note that the history of complaints created a context in which the facility should have been especially conscious of the importance of performing the required steps for a thorough investigation. ALJ Decision at�7,�9. Yet, Residents 124 and 141 were never even examined by a physician to determine if any physical evidence might corroborate their allegations. Nor did the facility document that law enforcement personnel were informed about the complaints. In the case of Resident 6, it was not clearly established when Ms. Saunders reported her observations to the administrator, but no physical examination of Resident 6 by a physician was sought until March 2002. See ALJ Decision at 10. If Ms. Saunders made the contemporaneous report as she claimed, but it was lost, then the facility was clearly at fault for not conducting a prompt investigation and notifying law enforcement. If she did not report the observation, the facility was still not in compliance with the requirement that all allegations of abuse be reported immediately to the administrator. The failure to conduct thorough investigations in accordance with the regulations and facility policy is a serious deficiency in itself. The potential for harm if a botched investigation caused evidence of abuse to be lost or overlooked here is, as the ALJ stated, that "a possible pattern of sexual predation against residents by one or two members of [Vandalia's] staff" might continue unabated. ALJ Decision at 9. Vandalia argued on appeal that the facility "should have been permitted to exercise some degree of nursing judgment and consider the complainant's diagnosis and behavioral traits in assessing whether an investigation is warranted." Vandalia Appeal Br. at 4. Vandalia cited the residents' mental illnesses and histories of delusions as the basis for their complaints and concluded as follows: "If the facility were to call the police each and every time such a person made such a mere accusation, whether because of attention-seeking behavior or simply because the resident was delusional, both the police and the facility would quickly tire." Id. at 3-4. Vandalia pointed to no authority under which it may disregard or treat with less seriousness complaints of residents whom it considers to be delusional or attention-seeking, however tiresome it may be to investigate such complaints. Vandalia's own policy plainly states that all accusations of abuse "will be taken seriously and fully investigated." CMS Ex. 74, at 3. Among the required steps are immediate removal from the facility of any person "reported" to be abusing a resident, notification of proper law enforcement, contact with the physician and family, and interviews of all witnesses. Id. Vandalia offered no evidence that any of these measures were taken. Furthermore, the policy flatly states that "[a]ll allegations of sexual abuse will result in a request for a physical exam for evidence if deemed appropriate by the physician," who must be contacted to request orders. Id. at 4. Thus, any discretion about whether to conduct a physical exam in response to a complaint of sexual abuse is vested in the attending physician, not in the nursing staff. CMS argued that no evidence supported the notion that Vandalia's staff had actually made any nursing judgment at the time of the complaints that these residents were too mentally ill to merit investigating their complaints or contacting their physicians. CMS Br. at 5. In addition, CMS argued there was evidence in the record to the contrary, that the staff had admitted to the surveyor that "no good reason" existed for the "lack of follow through." Id. at 5-6. CMS also proffered evidence that professional standards of practice required physical exams, notice to physicians and family, collection of clothing, and other measures regardless of whether the resident had a diagnosis of mental illness or even a history of making allegations which have not been substantiated. Id. at 5, and record citations therein. We need not consider any disputed claims about what nursing standards of care require or whether Vandalia's staff actually applied nursing judgment in setting the scope of its limited investigations. The facility expressly acknowledged that "the physician and family were not notified of Resident 141's complaint until March 15, 2002." P. Ex. 4, at 2. Nor did Vandalia claim that either resident was afforded a prompt physical exam or physician review. It is enough to sustain judgment against Vandalia on this deficiency that it failed to follow its own policies in investigating these complaints of sexual abuse and thereby risked the potential that actual abuse of these vulnerable residents might not be substantiated for lack of prompt action to gather evidence. (6) We therefore affirm FFCL 3. (7)
Facilities are required by regulation to ensure that each "resident receives adequate supervision . . . to prevent accidents." 42 C.F.R. � 483.25(h)(2). CMS argued that Vandalia did not adequately supervise residents in its "behavioral unit." The ALJ found that one resident, Resident 156, was involved in egregious and recurrent violence against other residents while the facility failed to protect the other residents, to modify its care plan to address the aggressive behavior, or to meaningfully implement the intervention which it had planned. ALJ Decision at 11-15. The ALJ concluded that the "unrebutted evidence concerning Petitioner's failure to provide adequate protection of its residents against Resident 156's violent and assaultive behavior is, in and of itself, sufficient to establish substantial failure" to comply with the regulations. In addition, the ALJ found that Vandalia's direct care staff was not aware that one resident was on suicide watch, that Vandalia took no steps to deal with a resident who hit her roommate and grabbed another resident's neck, and that Vandalia staff failed to stop a diabetic resident from stealing and consuming food against her dietary restrictions. Id. at 13-15. Finally, the ALJ found that Vandalia offered no rebuttal to CMS's evidence that residents who were placed on the unit for residents whose behaviors created significant potential for harm to themselves and each other nonetheless were left unsupervised in the unit's common area. Id. at 11, 16. Vandalia offered the following assessment of the evidence:
Vandalia Appeal Br. at 10. The most striking aspect of this summary is the weakness of what it claims. It is hardly sufficient that the staff refrained from provoking assaults or arming residents or creating circumstances where assault that could cause serious harm became highly likely. Nor is it enough to do nothing to tolerate or abet assaults. Staff had an affirmative duty to intervene and supervise these behaviorally impaired residents in a manner calculated to prevent them from causing harm to themselves and each other. It is also notable that Vandalia did not deny that the assaults referenced by CMS did occur, as it could not since CMS learned of the assaults from Vandalia's own records. The reference to assaults "that CMS claimed to have occurred" is thus unwarranted. The final assertion about not housing residents in conditions making altercations "highly likely" says nothing about whether the circumstances of housing the residents made altercations and assaults as unlikely as could practicably achieved. Furthermore, such a claim would not be supported by the evidence which, as the ALJ found, shows a unit in which aggressive, impulsive residents were left unsupervised with each other in common areas and residents were kept in the same room with others who had assaulted them. The only portion of the summary that makes a relevant claim is the assertion that some of the events were "unpredictable." Vandalia contended that it could not have foreseen Resident 156's assaults and questioned "where is the pattern." Vandalia Appeal Br. at 6. Vandalia stated that "the only pattern existing was that of spontaneous and unprovoked random and aggressive outbursts." Id. But surely even this behavior obliges the facility to consider means of protecting other residents from such dangerous outbursts and of addressing the lack of impulse control. Resident 156 was admitted in April 2000 after a hospital stay where, according to Vandalia's admission records, she was "admitted for aggressive/assaultive behavior toward staff and residents" at her prior nursing home placement. P. Ex. 6, at 76. CMS culled from the records of Resident 156's 2-year stay at Vandalia documentation of a minimum of 28 days on which she committed assaults, as well as considerable documentation of ongoing (if fluctuating) mood and behavior disturbances. See CMS Resp. Br. at 9-10; CMS Ex. 116 (records for some periods during that stay were not available). While some records noted periods of improvement, the resident continued throughout to exhibit aggressive behavior. See, e.g., P. Ex. 6, at 77-79; CMS Ex. 116, at 9. Vandalia argued that the regulation was being misinterpreted to infer a want of supervision from the mere occurrence of an injury or assault, to "read out" a requirement of a "causal link" between the lack of supervision and an accident. Vandalia Appeal Br. at 9. The Board has expressly rejected Vandalia's interpretation in prior decisions. See, e.g., Madison Health Care, Inc., DAB No. 1927, at 8-9 (2004), and cases cited therein. The Board held that the circumstances of an accident may evidence a lack of appropriate supervision but is not, in itself, an element of the deficiency. Lack of supervision adequate to prevent accidents may be shown even where no accident has occurred. Conversely, the mere fact of an accident does not necessarily show that supervision was inadequate. Vandalia also argued that the residents involved had been screened under a program known as Preadmission Screening and Annual Resident Review (PASARR) which Vandalia argued meant that each resident was suitably placed. Vandalia Appeal Br. at 10. The Board has previously rejected the claim that such screening in any way certifies that a particular resident is receiving appropriate care or supervision at a facility. Woodstock Care Center, DAB No. 1726, at 41 (2000), aff'd, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003). PASARR review merely provides assurance that the facility may accept the resident without violating federal requirements prohibiting placement of mentally ill persons in nursing homes unless they require the skilled level of care provided in such facilities.
Vandalia argued that the ALJ erred by employing the analytic framework and burden of proof standards set out in Hillman and Cross Creek. Vandalia Appeal Br. at 11-15. The proper allocation of the burden of proof is without significance in the present matter, however, since the ALJ expressly stated that his findings -
ALJ Decision at 20. The Board has consistently made clear that the allocation of the burden of proof affects the outcome of a case only where the evidence is at equipoise. See, e.g., Fairfax Nursing Home, Inc., DAB No. 1794 (2001), aff'dFairfax Nursing Home, Inc. v. U.S. Dept. of Health and Human Svcs., 300 F.3d 835, 840, n.4 (7th Cir. 2002), cert. denied, 537 U.S. 1111 (2003).
Vandalia argued that the burden of proof discussion from Hillman in essence established a substantive rule that was required to be promulgated under the notice and comment rulemaking provisions of the APA. Vandalia Appeal Br. at 13, citing 5 U.S.C. � 553(b) and (c). Vandalia also argued that requiring the facility to prove that it was in substantial compliance with the cited regulatory requirements violated the requirement contained in the Administrative Procedure Act (APA) that "[e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof." Vandalia Appeal Br. at 12, quoting 5 U.S.C. ��556(d). The Board has fully considered and soundly rejected almost identical arguments made by the same counsel in recent cases. See, e.g., Sanctuary at Whispering Meadows, DAB No. 1925 (2004);Omni Manor Nursing Home, DAB No. 1920 (2004); Batavia, DAB No. 1904 (2004). We reiterate here the substance of the Board's responses. We find no merit to the argument that the proper allocation of the burden of proof must be defined through rule-making rather than adjudication. Cases involving the termination of a provider agreement, as in Hillman, must be adjudicated in hearings on the record pursuant to section 205(b) of the Act. See section 1866(h)(1) of the Act (42 U.S.C. � 1395cc(h)(1)). The Supreme Court has long acknowledged that the "the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency." SEC v. Chenery, 332 U.S. 194, 203 (1947), citing Columbia Broadcasting System v. U.S., 316 U.S. 407, 421 (1942)(parallel citations omitted); NLRB V. Bell Aerospace, 416 U.S. 267, 293 (1974). Since the agency process by which the Hillman decision was issued was conducted pursuant to a statutory requirement for a hearing on the record, it was an "adjudication" under the APA. The regulations that establish procedures for hearings on termination of provider agreements, and for other appealable initial determinations related to participation in Medicare, are at 42 C.F.R. Part 498. These regulations do not specify who bears the burden of proof in each of the different types of cases. In Hillman, CMS appealed the ALJ's legal conclusion that CMS "has the burden of proving that Petitioner failed to comply with a condition of participation in Medicare." The Board concluded that the ALJ erred, reversed the ALJ's conclusion, and substituted the following:
Hillman, DAB No. 1611, at 65 (1997). The major reasons for these conclusions of law were as follows:
Hillman, DAB No. 1611, at 45 (1997). Thus, the Board noted: "While it is fair to require CMS to come forward with the evidence of noncompliance which CMS has obtained from the provider, it is unfair under the circumstances to place the ultimate burden of persuasion on CMS." The provider in Hillman appealed, challenging the Board's legal conclusions on burden of proof, and the court upheld the conclusions. Hillman Rehabilitation Center v. U.S., No. 98-3789 (GEB) (D.N.J. May 13, 1999). As shown by the decision in Cross Creek Health Care Center, DAB No. 1665 (1998), the Board has not treated the legal conclusions in Hillman as a binding blanket rule, applicable to all Part 498 proceedings. There, the Board briefly addressed an argument (made for the first time in petitioner's reply brief) that the ALJ had erred in determining that the conclusions in Hillman on burden of proof applied to a case involving a finding that a skilled nursing facility (SNF) was not complying substantially with Medicare requirements, resulting in imposition of a CMP. The Board recognized that program requirements for SNFs under Medicare (and other long-term care facilities under Medicaid) differ somewhat from requirements for other providers (such as Hillman, which was a rehabilitation agency) and that CMPs might raise some issues different from termination as a remedy. The Board concluded, nonetheless, that the rationale for allocating the burden of proof as discussed in Hillman applied in this context as well. Cross Creek at 13, n.10. Accordingly, the legal conclusions in Hillman on the burden of proof fall within the definition of an "order," as do subsequent decisions adopting the rationale and conclusions from Hillman in other contexts. See Fairfax, DAB No. 1794, at 8 ("The Board's decision in Hillman is thus in the nature of an order which, while establishing precedent for the ALJs hearings these cases, is not a 'rule' under the APA.") The APA definition of "order" excludes the concept of rulemaking. We therefore reject Vandalia's argument that the allocation of the burden of proof in Hillman is a substantive rule that required notice and comment rulemaking. Vandalia also contended that section 205(a) of the Act (42 U.S.C. � 405(a)) specifically mandates that CMS undertake formal rulemaking to "adopt rules and regulations" governing the burden of proof in a case involving an SNF. Section 205(a) reads as follows:
Section 1872 of the Act incorporates certain provisions of section 205 into the Medicare statute, including section 205(a), "to the same extent that they are applicable with respect to title II [Social Security disability cases]." First, we note that the rights to benefits under the Medicare program accrue to the beneficiaries of the program, not to the providers of services. One of the benefits to which a Medicare-eligible individual is entitled is "to have payment made on his behalf" for certain extended care services provided by an SNF. Sections 1812(a)(2)(A) and 1861(h) of the Act (42 U.S.C. �� 1395d(a)(2)(A) and 1395x). Vandalia did not point to any decisions applying section 205(a) to provider participation requirements, rather than to Medicare beneficiaries' rights, however. (8) In any event, our conclusions in Hillman and the subsequent cases were based on an examination of the applicable statute and regulations, which do establish the requirements for providers to participate in the Medicare program (a prerequisite for receiving payments on behalf of a beneficiary), the method for providing evidence of compliance - that is, the survey and certification process, and the nature of the documentation that the providers must maintain and furnish upon request, such as resident assessments, plans of care, and medical records. See generally 42 C.F.R. Parts 483, 488, and 489. Moreover, while Part 498 does not specify burden of proof, it does establish how the evidence regarding substantial compliance with program requirements will be taken and furnished during a hearing on an initial determination that a provider is not in substantial compliance. Thus, read as a whole, the regulations do provide for the "nature and extent of the proofs and evidence and the method of taking and furnishing the same" with respect to provider participation in Medicare. Finally, even if Vandalia were correct in reading section 205(a) as requiring a rule or regulation explicitly addressing burden of proof in proceedings under Part 498, Vandalia did not explain how the mere absence of such a rule or regulation would provide a basis for applying a different burden of proof than that applied by the ALJ in this case. Allocating the burden of proof to Vandalia does not violate the APA since Vandalia is the proponent of an order finding it in substantial compliance with Medicare participation requirements. Vandalia's reading of the APA and cited case law is flawed. "As fully discussed in Hillman, a provider participating in the federally-funded health care programs undertakes to maintain and demonstrate compliance, at all times, with all participation requirements." Meadow Wood Nursing Home, DAB No. 1841, at 7 (2002), citing Hillman, DAB No. 1611, at 12-17. Once found out of substantial compliance, Vandalia required certification of compliance to continue participating in, and receiving payment from, the Medicare program. 42 C.F.R. � 488.330(b)(1). In Hillman, the Board noted that a provider found out of compliance with program requirements "is the proponent of an order certifying it as qualified to participate in the program and to receive Medicare payment for services rendered . . . ." Hillman, DAB No. 1611, at 17. Vandalia conceded that the Supreme Court has placed the burden of proof on the claimant for governmental benefits when evidence is evenly balanced. Vandalia Appeal Br. at 12-13, citing Greenwich Collieries, 512 U.S. at 281 (benefits claimant bears the burden of persuasion). (9) Even when the claim is for a non-monetary benefit or privilege, the burden remains on the claimant as the proponent of the rule or order. See, e.g., U.S. Steel Corp. v. Train, 556 F.2d 822, 834 (7th Cir. 1977)("U.S. Steel, as the applicant for a permit without which it would be forbidden by law to discharge pollutants, is the proponent."); Day v. NTSB, 414 F.2d 950, 952 (5th Cir. 1969)(Section 556(d) technically inapplicable, but burden of proof properly on pilot for certification of fitness to fly). The Medicare statute governs payment for SNF services; like for other providers, having a provider agreement is not sufficient as a basis for determining that payment to an SNF on behalf of a beneficiary is authorized. While section 1819(g) of the Act permits the Secretary to make payments to some facilities not substantially complying with the requirements, there are statutory conditions for such payments, restrictions on the period of time during which such payments may be made, and, if the denial of payments remedy is invoked, also restrictions on for whom the payments may be made. An SNF appealing a finding that it is not substantially complying with the requirements is seeking to have payments made without those restrictions. In summary, Vandalia seeks from the government an order certifying that it is in substantial compliance with SNF requirements, so that it may continue to participate in the Medicare program with no restrictions on payment. Thus, placing the burden of proof on Vandalia to show that it is in substantial compliance is consistent with section 7(c) of the APA. Vandalia's reliance on Merritt v. Federal Maritime Commission, 960 F.2d 15 (7th Cir. 1992) and Bosma v. U.S. Dept. of Agriculture, 754 F.2d 804 (9th Cir. 1984) is also misplaced. Cf. Vandalia Appeal Br. at 12. Indeed, rather than undermine the Hillman rationale, Merritt and Bosma actually support it. Merritt requires only that an agency "introduce initial evidence on an issue . . . ." Merritt, 960 F.2d at 18. Bosma also states that the agency "was�.�.�.�required to produce evidence�.�.�.�." Bosma, 754 F.2d at 810. Although they involve different statutory and regulatory structures, Merritt and Bosma support our conclusion that CMS, the agency in this case, must come forward with or produce sufficient evidence on disputed facts that, together with the undisputed facts, will establish a prima facie case. We find no basis for Vandalia's contention that they require that we place the ultimate burden of persuasion upon CMS. Even if Vandalia were not the proponent of the rule or order in this case (and we find that it is), section 7(c) provides for allocating the burden of proof to the proponent "[e]xcept as otherwise provided by statute�.�.�.�." 5 U.S.C. � 556(d).Hillman provides a detailed analysis of how the statutory and regulatory structure of the Medicare program places the burden of proving substantial compliance generally on the provider of services. Hillman, DAB No. 1611, at 12-17 (1997). This analysis was affirmed by the United States District Court for the District of New Jersey, which found no inconsistency between the allocation of the burden of proof under Hillman and the provisions of the APA. Hillman, No. 98-3789, at 25-27 (GEB)(D.N.J. May 13, 1999). (10) Vandalia pointed to no new authority calling for a different result, and we see nothing in the record to suggest one. Moreover, as we noted in Hillman, Congress had the opportunity to reject the agency's historical allocation of the burden of proof to the provider and has not done so (not even in the intervening seven years). Hillman, DAB No. 1611, at 17-20 (1997)("These decisions evidence a long-standing interpretation [allocating the ultimate burden of persuasion to the provider], which Congress has not acted to overturn.") The CMP remedy was added as a remedy for facility noncompliance in the Nursing Home Reform Act, a part of the Omnibus Budget Reconciliation Act of 1987. Pub. L. 100-203, � 4203. The agency had historically placed the burden of proving substantial compliance on the provider in termination hearings. Hillman, DAB No. 1611, at 18 (citations omitted). When enacting the Nursing Home Reform Act, Congress did not revise this standard, and "[C]ongressional failure to revise or repeal the agency's interpretations is persuasive evidence that the interpretation is the one intended by Congress." Bell Aerospace, 416 U.S. at 275. While Congress did provide other remedies, including CMPs, as alternatives to termination when an SNF is found not to be in substantial compliance, Vandalia pointed to nothing in the history or language of these provisions that would indicate that the burden of proof on the issue of substantial compliance should vary, depending on the remedy chosen. If anything, the Nursing Home Reform Act reinforced the importance of the survey and certification process and the Secretary's responsibility to assure that the requirements for the provision of care in SNFs, and the enforcement of such requirements, are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of federal moneys. See, e.g., sections 1819(f) and (g) of the Act. We therefore conclude that the statute places the burden of proof upon an SNF to show that it was in substantial compliance. For the above reasons, we reject Vandalia's argument that the APA requires that CMS has the burden to prove that Vandalia was not in substantial compliance with program requirements.
Vandalia further contended that the process followed by the ALJ here requiring both parties to submit written direct testimony prior to the hearing was fatally flawed in some way that amounted to denying Vandalia "the opportunity to evaluate and comment upon the relative strength or weight of a witness's demeanor and statements, as well as to conduct meaningful cross-examination," and thus worked a "structural error." Vandalia Appeal Br. at�15, 16. Vandalia's complaint is undermined by the fact it was offered the opportunity to cross-examine any or all of CMS's witnesses at the in-person hearing and declined to do so. Vandalia asserted that the use of written direct testimony is inconsistent with 42 C.F.R. � 498.62 which states that witnesses "at the hearing testify under oath or affirmation" and provides that the "representative of each party is permitted to examine his or her witnesses subject to interrogation by the representative of the other party." Nothing in the regulation prescribes that the examination must be conducted orally at the in-person phase of the hearing. The regulation's terms are met so long as the opportunity to cross-examine and hence observe demeanor where credibility is at issue is preserved. Written direct testimony is widely used both in administrative proceedings and federal court. The Board has previously approved the use of written direct testimony, holding that -
Pacific Regency Arvin, DAB No. 1823, at 7-8 (2002) Vandalia argued that the ALJ lacked interest in witness demeanor because he commented that most cross-examination in these cases is "a waste of time." Vandalia Appeal Br. at 16, quoting Tr. at 7. Vandalia omitted the ALJ's qualification of this comment to "witnesses, where record review is the basis for the finding of deficiency or the basis for the arguments in opposition to a finding of deficiency." Tr. at 7. Vandalia also asserted that the ALJ professed to consider bias irrelevant in these cases, but a review of the ALJ's comments indicates that he was pointing out that whether or not a surveyor was biased against a particular facility would make little difference in cases where objective evidence viewed de novo establishes the existence of a deficiency. Tr. at 7-8. Vandalia contended that the hearing procedure here "might arguably have been acceptable in an action where there is complete discovery conducted prior to the actual trial," but could not be acceptable here because even the ALJ admitted that no pretrial discovery routinely occurs in these cases. Vandalia Appeal Br. at 16, citing Tr. at 21. The point the ALJ made, however, was precisely that, in the absence of pretrial discovery, the use of written direct prevented claims of surprise at the hearing in that "the parties know what the other side is going to say, because they have their complete case in advance of the hearing." Tr. at 21. Finally, Vandalia complained that the ALJ expressed a "desire to have a one day hearing." Vandalia Appeal Br. at 16, citing Tr. at 37. As with Vandalia's contentions about the inadequacy of its opportunity to observe witness demeanor and conduct cross-examination, Vandalia's complaint about the ALJ's inclination to truncate the hearing time is undercut by Vandalia's own choice to forego any cross-examination of any of CMS's witnesses and by the fact that the actual hearing barely lasted three hours. See Tr. passim. Since Vandalia evidently did not need even a half-day hearing, it can hardly claim that the ALJ's wish to finish in one day prejudiced it. Conclusion For the reasons explained
above, we affirm the ALJ Decision, with modification to FFCL 1 set out
in the text. |
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| JUDGE | |
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Judith A. Ballard Cecilia Sparks Ford Donald F. Garrett |
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1. This exhibit contains notes of interviews and statements collected by an investigative firm retained by the facility after the April survey to investigate the allegations against S.O. P.�Ex. 10, at 1. 2. CMS also relied before the ALJ and on appeal on evidence from a criminal investigation of S.O. and the recommendation for prosecution prepared as part of that investigation. CMS Appeal Br. at 13; CMS Exs. 77, 128. CMS failed to note, however, that the record also contained a verdict entry showing that S.O. was acquitted of charges of gross sexual imposition and a letter from the Ohio Department of Health rescinding the allegation against him. P. Exs. 11, 20. 3. Factors affecting the question of indicia of reliability may include whether: (1) the hearsay declarant is biased and has an interest in the result of the case; (2) the opposing party has the means to obtain the information contained in the statement and to verify its accuracy; (3) the opposing party can subpoena the declarant; (4) the statement is corroborated or contradicted by other evidence; (5) the statement is consistent with other statements made by the declarant; (6) the statement is signed or sworn to; and (7) the declarant is available to testify. Florence Park Care Center, DAB No. 1931, at 10 (2004); see also Omni Manor Nursing Home, DAB No. 1920, at 17 (2004). The Board has found hearsay reports of comments of unidentified residents or family members particularly problematic because of the inherent difficulty for both the facility and the decision-maker in evaluating anonymous statements. Carehouse Convalescent Hosp., DAB No. 1799, at 31-32 (2001). 4. The Jimenez court noted that the very diagnoses involved with the witnesses here were among those courts generally considered relevant to witness credibility, holding that -
256 F.3d at 343-44. 5. The relief CMS sought was that the Board should "rule that CMS has established a prima facie case, thereby shifting the burden of proving substantial compliance to the facility." CMS Appeal Br. at 27-28. In substance, we have already done that, in finding that the issue here was whether the preponderance of the evidence supported a finding in favor of the facility and concluding that it did. 6. Vandalia also claimed that Residents 124 and 141 suffered no harm because they were seen by psychiatrists (on February 13 and March 6 respectively) with no new problems noted other than their continuing psychiatric issues. P. Ex. 4, at 2. Vandalia offered no evidence that the psychiatrist was informed in either case of the abuse allegations or asked to evaluate any sequelae to the reported incidents. Vandalia did not claim that a physician was contacted about either resident prior to March 19, 2002 (more than a month after the dates of the reported incidents). P. Ex. 5, at 1. The physician responded to the facility's request for a "body audit" that "if exam not done timely - not of value." P. Ex. 21. 7. Despite its general statement about the remedy findings which we discussed earlier in upholding them, Vandalia also complained that the per-incident CMP of $3,400 was "quite harsh" and must reflect "an almost-paranoid like sentiment that a sexual predator was at large," given that the occurrence of sex offenses was unproven. The range of per-instance CMPs is from $1,000-10,000 which may be imposed as a "category 1" remedy whenever a facility is not in substantial compliance. 42 C.F.R. ��488.408(c). The deficiency finding here was cited at the "G" level of scope and severity, which means an isolated instance causing actual harm that is not immediate jeopardy, which qualifies for a "category 2" remedy and would permit imposition of a per-day CMP of up to $3,000. In that context, a per-instance CMP in the lower third of the available range does not seem excessive. 8. Vandalia cited Pulido v. Heckler, 568 F. Supp. 627 (D. Colo. 1983), and Salling v. Bowen, 641 F. Supp. 1046 (W.D. Va. 1986), as examples of cases requiring an agency to promulgate regulations pursuant to section 205(a) of the Act. Vandalia Appeal Br. at 15. The Pulido court required the Secretary to promulgate regulations governing payment of certain travel expenses of benefit claimants. The Salling court struck down a Social Security pilot program creating agency advocates for disability hearings, as it had not been promulgated by regulation after the pilot period ended. Both cases are fact intensive, involve different regulatory structures, and involve Social Security disability benefits to individuals, not issues about provider participation in Medicare. They are inapposite to the instant case. 9. This allocation is consistent with the Court's recognition that in Social Security disability cases, the claimant carries the "continuing burden of showing" satisfaction of statutory requirements. Mathews v. Eldrige, 424 U.S. 319, 336 (1976). 10. Indeed, the Hillman court noted that the APA arguably did not apply at all, given the allocation of the burden of proof implicit in the Medicare statutes. Id. at 27 n.9. |
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