Canton Oaks, DAB CR5675 (2020)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS), sustaining its determination to impose remedies against Petitioner, Canton Oaks, a skilled nursing facility, consisting of civil money penalties in amounts of:  $17,891 for each day of a period beginning on October 29, 2016, and continuing through November 1, 2016; $1,453 for each day of a period beginning on November 2, 2016, and continuing through December 4, 2016; and a denial of payment for new Medicare admissions.

I. Background

This case was reassigned to me from the docket of another administrative law judge.  On reviewing the record, I discovered that the parties had fully briefed CMS's motion for summary judgment.1   CMS filed 34 exhibits in support of its motion, identified as CMS

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Ex. 1-CMS Ex. 34.  Petitioner filed three exhibits in opposition, identified as P. Ex. 1-P. Ex. 3.

As I discuss in detail below, I find no disputed issues of material fact.  For that reason, I find it unnecessary to admit the parties' exhibits into evidence.  I cite to some of these exhibits, but only to illustrate facts that are undisputed.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are:  whether undisputed material facts establish that Petitioner failed to comply substantially with Medicare participation requirements; whether the immediate jeopardy determination was clearly erroneous; and whether the civil money penalties that CMS determined to impose are reasonable, both in amount and duration.

B.  Findings of Fact and Conclusions of Law

CMS alleged that Petitioner committed multiple violations of Medicare participation requirements.  It asserted that several of these alleged failures to comply comprised violations so egregious as to constitute immediate jeopardy for Petitioner's residents.  These alleged immediate-jeopardy-level violations implicate regulations that were in effect and codified at the time of the survey at 42 C.F.R. §§ 483.13(c), 483.25, 483.65, and 483.75.2

I discuss these regulations and their significance in light of the undisputed facts.  As a predicate to that discussion, the thrust of CMS's allegations is that Petitioner's management and staff failed wholesale to implement Petitioner's own policies governing infections and infection controls.  CMS cites to facts showing that Petitioner:  failed repeatedly to isolate residents who were suffering from potentially contagious upper respiratory tract infections; failed to engage in appropriate and policy-governed techniques for treating infected residents and maintaining sanitary conditions; and failed to carry out physicians' orders for treating infected residents.

The facts presented by CMS overwhelmingly support these allegations.  Petitioner offers no facts to refute the facts presented by CMS and thus, those facts are undisputed.

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On the dates that are at issue here, 42 C.F.R. § 483.13(c) required a skilled nursing facility to develop and implement written policies and procedures that prohibit abuse, mistreatment, and neglect of residents.  Regulations define "neglect" to mean the failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.  42 C.F.R. § 488.301.  CMS alleges, and the undisputed facts establish, that Petitioner neglected its residents by failing to implement policies governing infection control.  CMS alleges additionally, and the undisputed facts also establish that, Petitioner failed to provide services and care to residents that were intended to enable residents to attain their highest possible levels of physical, mental, and psychosocial well-being, in violation of the version of 42 C.F.R. § 483.25 then in effect.  Failure to provide such necessary services and care also constitutes neglect as it is defined by the regulations.

Petitioner's infection control policy directed that residents suffering from infectious illnesses be placed in transmission based isolation when body fluids cannot be controlled, residents are not compliant with hygiene measures, or where the control of body fluids is not possible, or hygiene is poor.  CMS Ex. 31 at 22-23, 31.  That policy clearly required that Petitioner's staff isolate individuals suffering from infectious illnesses – including upper respiratory tract infections – from the general resident population in order to prevent progression of disease to other residents.  Petitioner's infection control policy required its staff to place infected residents in private rooms, where possible.  Id.

In order to understand the need for and implications of this policy one must consider the status of the residents who are potentially affected by it.  Skilled nursing facilities, by definition, exist to treat individuals who are so ill or infirm that they are incapable of providing for their own needs.  In many instances, residents suffer from dementia or other mental impairments that affect their judgment.  In this case, individual residents suffering from dementia or other cognitive impairments included at least Resident 3 (CMS Ex. 11 at 6), Resident 5 (CMS Ex. 14 at 6-7), Resident 6 (CMS Ex. 27 at 10-11), Resident 31 (CMS Ex. 27 at 17), Resident 16 (CMS Ex. 20 at 4), Resident 13 (CMS Ex. 22 at 3-4), and Resident 9 (CMS Ex. 24 at 1-4).

A facility's infection control policy intends to assure that the facility's staff does for these residents what the residents cannot do for themselves.  Consequently, it is absolutely crucial that the staff scrupulously implement the facility's infection control policy in order to protect residents from communicable illnesses.  One cannot reasonably expect demented individuals suffering from communicable illnesses to be responsible for following precautions intended to protect others from becoming infected.  Nor can one expect severely debilitated individuals – all of the residents whose care is at issue – to follow such precautions on their own.

The undisputed facts prove that Petitioner's management and staff failed wholesale to implement the infection control policy.  Staff failed to isolate several infected residents from the general resident population.  For example, Petitioner admitted Resident 1 to its

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facility on October 15, 2016.  CMS Ex. 2 at 3.  On admission the resident suffered from an upper respiratory tract infection with a likely onset in September 2016.  CMS Ex. 30 at 1-2.  A physician's order in October 2016 confirmed that the resident was infected.  CMS Ex. 2 at 5.  However, Petitioner's staff did not isolate the resident from other residents.  CMS Ex. 27 at 7.

As of October 2016, Resident 2 suffered from sepsis and an acute upper respiratory tract infection.  CMS Ex. 6 at 5.  Petitioner's staff failed to isolate this resident.  On October 29, 2016, the resident was in a hallway of Petitioner's facility, coughing and congested while in the presence of other residents.  He wore no mask or protective equipment.  CMS Ex. 27 at 8.

Resident 3 resided with Resident 2.  This resident suffered from an acute upper respiratory tract infection.  CMS Ex. 9 at 3.  Petitioner performed no clinical testing to determine whether this resident's illness was caused by the same vector as that which caused Resident 2's illness.  The residents were not isolated from each other.

In October 2016, Resident 5 received a diagnosis of an acute upper respiratory infection and bacterial pneumonia.  CMS Ex. 15; CMS Ex. 16 at 1-7.  Yet, Petitioner's staff did not isolate the resident and, in fact, housed her with another resident, Resident 6, who suffered from chronic obstructive pulmonary disease.  CMS Ex. 27 at 11.  On October 29, 2016, Resident 6 was observed coughing and congested but not wearing a mask.  Id.

Petitioner's staff similarly neglected to protect its residents from other residents who suffered from upper respiratory tract or other acute infections.  Petitioner's staff housed Resident 31, who suffered from an upper respiratory tract infection, with another infected resident.  CMS Ex. 30 at 6; CMS Ex. 27 at 19.  Resident 9 suffered from conjunctivitis ("pink eye"); however, Petitioner's staff allowed the resident, while acutely ill, to sit with other residents in Petitioner's dining hall.  CMS Ex. 27 at 31.

Regulations require that skilled nursing facilities develop comprehensive and written care plans to address the needs of their residents.  42 C.F.R. § 483.20(k).  Not only did Petitioner's management and staff fail to comply with Petitioner's policy governing isolation of infected residents, but they also failed to plan the care for many of these residents.  Indeed, Petitioner regularly failed to address residents' infections in the residents' plans of care and I find this failure to have been systemic and undisputed proof of neglect.  As examples, Petitioner failed to write comprehensive instructions in residents' care plans for dealing with the upper respiratory tract infections of Residents 2 (see CMS Ex. 8 at 6-22), 3 (see CMS Ex. 10), 5 (see CMS Ex. 15; CMS Ex. 16 at 1-7), and 31 (see CMS Ex. 27 at 17).

The undisputed facts offered by CMS also establish instances in which Petitioner's staff violated Petitioner's infection control policy when providing care to individual residents.

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This is additional support for a finding that Petitioner's management and staff neglected the residents' needs.  The policy required that its staff wash their hands before and after working with a resident upon completion of any activity with them.  The obvious purpose of this requirement was to avoid possible cross-contamination of residents via the care provided by Petitioner's staff.  CMS Ex. 31 at 12, 16, 25-26.  The policy also requires staff to "change gloves between tasks and procedures on the same patient/resident after contact with material that may contain a high concentration of microorganisms" and also warns that "[f]ailure to change gloves between patient/resident contacts is an infection prevention hazard."  CMS Ex. 31 at 22, 26.  Petitioner's staff did not always observe this policy.  For example, on October 29, 2016, a nursing assistant was observed applying a clean incontinence brief to a resident, Resident 8, while wearing soiled gloves.  CMS Ex. 27 at 39; CMS Ex. 29 at 10.

CMS also offered undisputed facts showing specific instances of failures by Petitioner's staff to provide prescribed care to infected residents.  For example, on October 20, 2016, at 10:48 p.m., Resident 1's attending physician ordered that the staff administer Augmentin, a medication, to the resident. CMS Ex. 2 at 8; CMS Ex. 4 at 24-29.  However, Petitioner's staff did not administer this prescribed medication until 9:30 a.m. on October 22, 2016, about 36 hours after the doctor had ordered that the medication be administered.  CMS Ex. 5 at 2.

There were also failures by Petitioner's staff to provide basic care or to make necessary documentation indicated by residents' conditions.  As an example, the staff did not seek permission to obtain cultures to determine the nature of Resident 1's upper respiratory tract infection nor did it obtain a chest x-ray of the resident.  CMS Ex. 30 at 1-2.  In other instances, Petitioner's staff did not list residents with known upper respiratory tract infections in Petitioner's infection control log.  CMS Ex. 8 at 6-22; CMS Ex. 30.

The undisputed facts that I have discussed establish that Petitioner was noncompliant with 42 C.F.R. § 483.65, as that regulation was codified during the relevant time period.  The regulation provides that a skilled nursing facility must 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.  Petitioner failed to comply with this regulation by failing to:  isolate infected residents; write care plans that addressed residents' infections; and provide care to residents consistent with physicians' orders and Petitioner's own policies governing infection control.

The undisputed facts establish additionally that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.75.  This regulation requires a skilled nursing facility to be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.  The compliance failures that are documented by the undisputed

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facts were not isolated incidents.  They were systemic.  There was a systemic failure to isolate infected residents from other residents.  There was a systemic failure to write care plans addressing the needs of infected residents.  And there was a systemic failure by Petitioner's staff to take precautions and other actions dictated by Petitioner's infection control policy.

Systemic failures, such as those documented here, inevitably fall at the doorstep of a skilled nursing facility's management.  It is the management of a facility that has the duty to ensure that effective policies are written and implemented.  It is the duty of management to assure that errors are detected and corrected.  In the final analysis, it is the duty of management to assure that participation requirements are met.

CMS determined that Petitioner's noncompliance constituted immediate jeopardy for residents of the facility.  Regulations define "immediate jeopardy" to mean noncompliance so egregious as to cause or to be likely to cause serious injury, harm, or death to a resident.  The undisputed material facts plainly satisfy that definition.

I find that the undisputed facts establish a high likelihood that unprotected residents of Petitioner's facility would acquire life-threatening upper respiratory infections as a consequence of Petitioner's failure to follow its own policy to prevent spread of such infections as well as its staff's failure to provide appropriate treatment for, and to take appropriate precautions in the handling of, infected residents.  Elderly, debilitated, and/or demented residents are at extreme risk for acquiring potentially lethal infections.  They are, by definition, unable to protect themselves.  Failure by a facility to protect those residents – as happened here – puts those residents in extreme danger.  The undisputed fact that several of Petitioner's residents – Residents 14, 22, 12, 13, and 11 – died after experiencing upper respiratory infection symptoms establishes the extreme fragility of individuals like those whose care is at issue here, as well as the likelihood that any resident becoming infected would experience serious harm at the least.  Petitioner flagrantly violated its own infection control policy, leaving residents exposed to communicable illnesses, especially upper respiratory tract infections.  Residents who became ill were not isolated. Petitioner's staff failed to follow policy-directed instructions for treating potentially infected residents.  In some instances, Petitioner's staff failed to carry out physicians' orders for treating infected residents.

The civil money penalties that CMS determined to impose – $17,891 per day to remedy immediate jeopardy level noncompliance running from October 29 through November 1, 2016, and $1,453 per day to remedy non-immediate jeopardy level noncompliance running from November 2 through December 4, 2016 – are within ranges prescribed by regulations.  42 C.F.R. § 488.438(a)(1)(i)-(ii).  During the relevant dates, CMP amounts ranged from $103 to $6,188 per day for less serious noncompliance and from $6,291 to $20,628 per day for more serious noncompliance that poses immediate jeopardy.  81 Fed. Reg. 61,538, 61,549 (Sept. 6, 2016).  Regulations establish factors for deciding where

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within a given range (immediate jeopardy or non-immediate jeopardy) penalties should fall.  42 C.F.R. §§ 488.438(f)(1)-(4), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of a facility's noncompliance.  Here, and as I have discussed, Petitioner's noncompliance was extremely serious.  I find that the facts establishing that noncompliance – especially those establishing systemic failure by Petitioner to comply with its infection control policies – are ample justification for the penalty amounts.

I have considered the arguments that Petitioner makes against CMS's motion for summary judgment and I find them to be without merit.

As its first argument Petitioner contends that the survey process that led to the findings of noncompliance was tainted and thus, invalid.  It asserts that surveyors were under some pressure to make adverse findings at Petitioner's facility, and it suggests that whatever findings the surveyors made were somehow slanted or biased as a result of that pressure.  However, what is important is that Petitioner has not adduced any facts that show that the surveyors' findings were inaccurate or incorrect.  As I have discussed, the facts that CMS relies on are undisputed by any material facts offered by Petitioner.  Consequently, whatever pressure the surveyors may have been under – if there was such pressure – is irrelevant.

In reviewing Petitioner's brief – all 42 pages of it – I do not find that Petitioner adduced any facts that call into dispute the facts relied on by CMS and that I cite in this decision.  Frequently, Petitioner speculates that there might be other facts, allegedly not discovered by surveyors, that call into question the validity of facts relied on by CMS.  But, it does not offer facts that actually do refute or undercut those facts that CMS relies on.

For example, and as I have discussed, CMS identifies several residents who experienced infections that were not addressed in those residents' plans of care.  The failure of Petitioner to devise plans to care for residents' infections is an important element of CMS's argument, and my conclusion, that Petitioner neglected these residents' needs.  Petitioner speculates, at several places in its brief, that the care plans cited by CMS might have been superseded by more recent plans of care that surveyors did not obtain.  See, e.g., Petitioner's response at 17-18, 31.

Speculation does not constitute facts nor does it call into dispute a material fact.  Petitioner did not offer more recent plans of care to counter those offered by CMS.  It certainly could have done so, assuming that they exist and that they do raise a fact dispute.  After all, it is Petitioner's own records that are at issue here.

Petitioner, effectively conceding that its staff did not isolate some of its infected residents, asserts both generally and in specific cases that it did not need to do so.  However, Petitioner offers no facts to show that its staff assessed any of its residents and

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determined that they did not need to be isolated.  Furthermore, Petitioner's general argument flies in the face of Petitioner's own policy that required isolation of infected residents.  If Petitioner's staff had reason to believe that a particular resident did not need isolation, then the staff had a duty to explain why that was so.  There are no facts showing that the staff assessed any of the residents whose care is at issue and made such a determination.

Examples cited by Petitioner do not support its assertion that isolation was unnecessary in specific cases.  To the contrary, those examples often support CMS's assertion that Petitioner's policy demanded that these residents be isolated.  For example, Petitioner asserts that there was no need to separate Residents 5 and 6 (they were roommates) because, although both residents suffered from upper respiratory tract illnesses, Resident 6 suffered from chronic obstructive pulmonary disease, a non-infectious condition.  Thus, Petitioner seems to suggest that there are no facts showing that Resident 6 could have infected Resident 5.  Petitioner's response at 19-20.

However, that assertion avoids the very real possibility that Resident 5 could have infected Resident 6, a resident who already suffered from severe albeit noncontagious breathing issues.  That fact is powerful support for the conclusion that Resident 5 needed to be isolated from other residents.

As far as Resident 5 is concerned, Petitioner asserts that:  "No cultures were obtained, nor was she placed on isolation because not every . . . [upper respiratory tract infection] is cause[d] by a sufficiently virulent organism to require isolation."  Petitioner's response at 19.  That argument reduces to the assertion that by neglecting to determine the cause of a resident's infection Petitioner escaped the duty to properly care for that infection.  That is, to put it gently, an absurd argument.  A facility may not use its staff's failure to assess the cause and severity of a resident's illness to justify failure to care for that illness.

Petitioner also mischaracterizes the facts relied on by CMS.  For example, Petitioner argues that Resident 8, who suffered from a urinary tract infection, did not need to be totally isolated from other residents at Petitioner's facility.  Petitioner's response at 20.  However, CMS did not assert that this resident needed total isolation.  The assertion made by CMS – and not countered by anything offered by Petitioner – is that Petitioner's staff did not follow infection protocol in treating Resident 8, because an employee used dirty gloves to apply a clean incontinence brief to the resident.  CMS's brief in support of its motion at 7.

Petitioner argues that it was not required to write a care plan to deal with Resident 31's upper respiratory tract infection inasmuch as that infection occurred in 2014, more than two years prior to the October 2016 survey of Petitioner's facility.  Petitioner's response at 21.

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That argument is a red herring.  As Petitioner concedes, its staff determined on October 1, 2016, that Resident 31 had a newly acquired upper respiratory tract infection.  Petitioner did not offer any facts showing that its staff wrote a care plan addressing that newly acquired infection.

Petitioner contends that Resident 16 was not diagnosed with an upper respiratory tract infection in October 2016.  Therefore, according to Petitioner, there was no need for its staff to write a care plan dealing with a nonexistent infection.  Petitioner's response at 22-23.  However, the undisputed facts show that in October 2016 Resident 16 was assessed as experiencing a hoarse voice, a non-productive cough (October 9) and a productive cough (October 10).  CMS Ex. 20 at 44.  Petitioner offered nothing to show that Petitioner's staff planned to care for these signs of illness.  Whether these signs deserved to be labeled an "upper respiratory tract infection" is irrelevant.  What matters is that the resident was plainly ill with an infection involving her respiratory tract and Petitioner did not plan to care for that infection.

Petitioner argues that, as a general rule, its staff did not need to isolate infected residents because it followed "standard precautions" promulgated by the Centers for Disease Control (CDC) that, according to Petitioner, did not mandate isolation.  Petitioner's response at 30-31.  It contends that the undisputed facts establish that it "followed the CDC guidelines and its own policies and was not required to separate the residents."  Id. at 31.

This argument fails for three reasons.  First, Petitioner has not identified any specific language promulgated by the CDC that suggests that "standard precautions" are an acceptable substitute for isolation of infected residents.  Second, Petitioner offers no documents that establish that its staff determined that it would rigorously implement CDC's precautions.  Third, Petitioner's own policy called for isolation.  Petitioner's policy was the methodology that Petitioner relied on for treating infected residents.  Its staff cannot simply disregard that policy without documenting the reasons for doing so, without identifying the alternatives that would be employed, and without documenting how those alternatives were to be implemented.

Petitioner contends that it did not violate care planning requirements.  Petitioner's response at 31-32.  Essentially, it asserts that its staff did all of the things required to plan a resident's care and that documentation exists of these efforts even if not contained in documents entitled "plans of care."  I find this argument to be without merit.  First, although Petitioner asserts that its staff took all of the requisite actions that comprise a plan of care, it cites to no specific documents that establish that the staff actually did so.  See id.  Rather, it states broad conclusions without identifying specific facts.  That is not sufficient to establish an actual fact dispute.

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Second, there is no such thing as piecemeal documentation that is "just as good as" a plan of care.  The regulations require that a facility's staff create a specific plan of care for each resident and not spread assessments, diagnoses, and treatment regimens out over an array of documents.  42 C.F.R. § 483.20(k).  The purpose of a plan of care is to establish one comprehensive plan for dealing with a resident's problems and needs.  Indeed, it is essential that a plan of care be a "plan," a road map for addressing the unique condition of each resident.  Anything other than that fails to comply with regulatory requirements.

Indeed, Petitioner does not explain how members of its staff would have been able to use scattered documentation to determine what was planned for any resident's care.

Petitioner concedes that its staff failed to administer to Resident 1 a medication prescribed by the resident's physician until 36 hours had elapsed from staff's receipt of the physician's order.  In response it avers only that CMS did not cite it for non-compliance related to pharmacy services.  Petitioner's response at 16.  That may be so, but the argument is non-responsive.  CMS cited the failure to administer medication timely as an element of Petitioner's neglect of its residents' needs.  That failure is pertinent to the issue of neglect.

In challenging CMS's finding of immediate-jeopardy-level noncompliance, Petitioner argues that there is at least a fact dispute as to whether the manner in which the staff dealt with residents actually produced a spread of communicable disease within the facility.  I agree with Petitioner to the extent that I conclude that there would be an issue of material fact, not resolvable on summary judgment, if it were necessary to find a causal connection between the staff's behavior and the spread of infections as a predicate to finding immediate jeopardy.

However, establishing a causal connection between staff practices and the spread of illness is not a necessary prerequisite to finding immediate-jeopardy-level noncompliance.  The issue that I resolve here – based on undisputed facts – is whether there was a likelihood of serious injury, harm, or death as a consequence of Petitioner's noncompliance.

The undisputed facts establish that, on the dates in question, several of Petitioner's residents suffered from upper respiratory tract infections.  The presence of such infections demanded that these residents be isolated and that facility staff employ techniques for treating them that minimized the chances that the infections might spread.  It is inarguable that these infections were life-threatening given that residents in Petitioner's facility died from the effects of an upper respiratory tract infection.

However, Petitioner's staff not only failed to follow its policy, but the staff engaged in practices that made it likely that infection would spread.  For example, the staff housed Resident 5, infected with an upper respiratory illness, with Resident 6, who suffered from

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chronic obstructive pulmonary disease.  That likelihood of causing serious illness is the essence of immediate jeopardy.

Petitioner contends that, even if it failed to comply with participation requirements, it nevertheless achieved substantial compliance with all requirements by October 31, 2016.  It argues that there is at least a fact dispute as to whether it was in compliance on October 31 and on subsequent dates.

The ball is in Petitioner's court on the question of whether it attained compliance on any date prior to December 5, 2016, the date when CMS determined that Petitioner had remediated its deficiencies.  CMS has no burden to establish ongoing noncompliance. Rather, it rests with Petitioner to offer facts, which if credible, would establish that it attained compliance on a date that is earlier than December 5.

Petitioner has not presented such facts.  Petitioner offered a "Plan of Removal" that it created on October 29, 2016 (the date of the survey that resulted in the immediate-jeopardy-level noncompliance findings that are at issue in this case).  P. Ex. 1 at 96.  This document lists several remedial actions that Petitioner intended to undertake along with the representation that the actions would be completed by October 31, 2016.  This document does not create an issue of fact as to early remediation of noncompliance.  It consists only of representations that actions would be taken by Petitioner and its staff.  Petitioner has not identified specific documentation showing that it or its staff actually undertook or completed these actions.

For example, the "Plan of Removal" represents that Petitioner's staff would:  "Assess all residents for presence of infection, notify physician and culture and isolate if appropriate, including keeping in room if productive cough and fever."  P. Ex. 1 at 96.  That is certainly a representation of what Petitioner intended to do by October 31, 2016.  However, Petitioner did not offer evidence showing that it actually assessed its residents on any date, let alone by October 31.  It has offered no evidence showing that, by October 31, it identified potentially infected residents, that it isolated residents, that it notified physicians about potentially infected residents, or that it took cultures to establish whether infections existed.

In its brief, Petitioner asserts that it offered "testimony" that would establish that the above-described remedial actions took place by October 31, 2016.  The sole testimony offered by Petitioner consists of the declaration of Terrie Harrison, LNFA, Petitioner's administrator.  P. Ex. 3.  There is nothing in that exhibit addressing the remedial actions that Petitioner intended to accomplish by October 31.

Finally, Petitioner challenges the reasonableness of the civil money penalty determinations by asserting that they are unreasonable inasmuch as there were no

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immediate-jeopardy-level deficiencies at its facility.  I have explained above why I disagree with this contention.

1. The initial pre-hearing order instructed the parties not to file briefs in excess of 25 pages.  Petitioner opposed CMS's motion for summary judgment with a 42-page brief.  CMS moved to strike Petitioner's brief.  I would have granted that motion had the case been mine when the parties briefed the issues.  At this juncture, however, it would be a waste of time for me to reject Petitioner's brief and instruct Petitioner to re-file a brief conforming to the pre-hearing order.
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2. CMS also alleged some other non-immediate-jeopardy-level deficiencies.  I find it unnecessary to address them in this decision.
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