Sun West Choice Healthcare and Rehabilitation, ALJ Ruling 2023-7 (HHS CRD April 25, 2023)

RULING DENYING PETITIONER’S MOTION TO REOPEN DECISION

On March 20, 2023, I issued a decision in the instant matter.  Sun West Choice Healthcare & Rehab., DAB CR6254 (2023).  As relevant here, I determined that P. Ex. 14, a four-page nursing skills checklist dated November 20, 2019,¹ was “fabricated evidence.”²  Sun West at 14.  I based this conclusion on the fact the form used to evaluate nursing skills could not have been in existence on November 20, 2019.  Sun West at 14-16.  Petitioner’s motion to reopen, filed on March 27, 2023, does not dispute that the

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form could not have existed in November 2019.³  P. Motion at 4 (“As the Court noted, P. Ex. 14 makes clear on its face that Nursing Director Shoemaker could not have created and signed it in November [] 2019 – the document is on a form that includes a revision date in 2020, and the list of tested topics includes procedures relating to COVID-19, which was not an issue in nursing facilities until the Spring of 2020.”).

I also discussed that Petitioner’s two witnesses, the Director of Nursing (Ms. Shoemaker) and a licensed practical nurse (Ms. Hessley), both testified that they signed the form at P. Ex. 14 on November 20, 2019, shortly after Ms. Hessley began her employment at the facility.  Sun West at 16-18.  I determined that the testimony of these two witnesses was not credible.  Sun West at 17-18.

I also noted that the Centers for Medicare and Medicaid Services (CMS) pointedly raised concerns that P. Ex. 14 could not have been created and signed in November 2019, and that Petitioner, through its counsel who had filed this exhibit as part of Petitioner’s pre-hearing exchange, did not respond to these allegations despite having an opportunity to do so in its post-hearing reply brief.  Sun West at 16-17.

Petitioner, through newly retained counsel, argues that reopening is warranted, “suggest[ing] that [my] conclusions regarding the truthfulness of [its] witnesses, and the professionalism of [its] trial counsel, are unsupported, and should be removed from the public record.”⁴  I disagree.  Petitioner has not identified any error based on the evidentiary record at the time of the decision.  Rather, Petitioner has offered a new post-decisional written declaration from one of its witnesses (Ms. Shoemaker) who now claims she listed the incorrect year on P. Ex. 14 (apparently making this mistake nine separate times) and that her testimony on cross-examination did not correctly reflect when she completed and signed P. Ex. 14.  Post-Decisional Declaration.  Petitioner also claims for the first time that P. Ex. 14 is not an initial post-hire skills evaluation of Ms. Hessley conducted shortly after her hire in 2019, but rather, is an annual evaluation that was conducted in November 2020 at the time of the one-year anniversary of Ms. Hessley’s employment.  Compare Post-Decisional Declaration with P. Ex. 23 (Ms. Shoemaker’s March 2021 declaration).  These new and post-decisional factual allegations by Petitioner and Ms. Shoemaker are not credible, and I deny Petitioner’s motion.

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1. Petitioner’s newly raised claim that P. Ex. 14 is an annual skills evaluation conducted in November 2020, rather than an initial skills evaluation conducted in November 2019, is not credible.

Ms. Shoemaker explained, on page 2 of her post-decisional declaration, that “[a]t the time (and presumably now), the Facility’s policy was to train and validate the skills of all new nursing hires within several days after hire, and then to repeat the validation annually, around the anniversary of hiring.”  On page 3 of her post-decisional declaration, Ms. Shoemaker claimed that “the skills validation checklist for Nurse Hessley that [she] provided to counsel (and that apparently was marked as P. Ex. 14) was actually from November, 2020, and not November, 2019.”  Ms. Shoemaker now claims that P. Ex. 14 is an annual evaluation conducted to revalidate Ms. Hessley’s nursing skills on the one-year anniversary of her hire in November 2020, rather than an initial evaluation conducted at the time of her hire in November 2019.  Post-Decisional Declaration at 3-4. Ms. Shoemaker’s new factual claims are belied by a handwritten notation on the first page of the nursing skills checklist.

P. Ex. 14 itself clearly indicates it is an “initial” evaluation and not an “annual” evaluation.  It appears that both Ms. Shoemaker and Petitioner overlooked this significant detail when they offered a new version of the facts to support a motion to reopen the decision.  Assuming, for purposes of this discussion, that Ms. Shoemaker mistakenly wrote an incorrect year of 2019 nine separate times when she completed the four-page form (which I do not accept as true), she has not addressed, much less reconciled, why she put an “X” next to “Initial,” rather than “Annual,” when she reported the purpose for evaluating Ms. Hessley’s skills.  Compare P. Ex. 14 at 1 (page 1 of a nursing skills checklist dated November 20, 2019, reporting Ms. Hessley’s date of hire of “11/18/19,” and reporting that it was an initial evaluation) with P. Ex. 14 at 5 (page 1 of a nursing skills checklist dated November 18, 2020, reporting Ms. Hessley’s date of hire of “11/19,” and reporting that it was an annual evaluation).  Ms. Shoemaker cannot simply claim that she misdated the form with November 2019 rather than November 2020 when the form unquestionably reports that it was used for an initial skills assessment that would have been conducted at the time of Ms. Hessley’s hire in November 2019.  See Post-Decisional Declaration at 2 (reporting facility policy to “train and validate the skills of all new nursing hires within several days after hire”).

Ms. Shoemaker’s new claim that she listed the incorrect year of 2019, rather than 2020, throughout the nursing skills checklist is belied by the stated purpose of the evaluation.  P. Ex. 14 at 1.  P. Ex. 14 was an initial evaluation, and as such, it would have been conducted in November 2019, which is the month and year listed nine separate times throughout the four-page document.  Ms. Shoemaker has once again demonstrated that she is not a credible witness.

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2. Petitioner has failed to reconcile its new factual claims with Ms. Hessley’s written direct testimony and cross-examination testimony.

In support of its motion to reopen, Petitioner submitted a new declaration from only Ms. Shoemaker; it did not submit a new declaration from Ms. Hessley.  In her written direct testimony, Ms. Hessley cited P. Ex. 14 to support her claim that her skills had been assessed at the time of her hire in November 2019, stating:

I am currently employed as a Licensed Practical Nurse at [Petitioner].  I have been so employed since November 18, 2019.  At the start of my employment, I participated in extensive training in the areas which were central to my performance as a nurse at the Facility; following this training, my competency in each area was assessed by my supervisor, [Ms. Shoemaker], to ensure that my skills were consistent with performance expectations.  (P. Ex. 14).

P. Ex. 22 at 1-2.  On cross-examination, counsel for CMS and Ms. Hessley had the following exchange regarding the date she signed the nursing skills assessment conducted shortly after her hire in November 2019:

CMS Counsel:  Okay, so you’re looking at Petitioner Exhibit 14?

Ms. Hessley:  Yeah, Sun West Choice Health and Rehabilitation Skills Checklist?

CMS Counsel:  Yes, that’s correct.  So is this the checklist that was used to evaluate your skills and competency when you were first hired at Sun West?

Ms. Hessley:  Yes.

CMS Counsel:  And on Page 1 at the top, is this your signature in front of Signature of Employee?

Ms. Hessley:  Page 1.  Yes, that’s my signature.

CMS Counsel:  And when did you sign this?

Ms. Hessley:  When they trained – when they trained me on the 20th.

CMS Counsel:  Of 2019, right?

Ms. Hessley:  Yeah.

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Transcript at 68.⁵  Ms. Hessley not only relied on P. Ex. 14 to support her claim that “[a]t the start of [her] employment, [she] participated in extensive training . . . [and] following this training, [her] competency in each area was assessed,” but she also confirmed, in sworn testimony on cross-examination, that based on her review of page 1 of P. Ex. 14 (reporting an “initial” evaluation was conducted on November 20, 2019), she had signed the nursing skills checklist on November 20, 2019.  P. Ex. 22 at 2; Transcript at 68.  Petitioner has not reconciled Ms. Hessley’s direct and cross-examination testimony with Ms. Shoemaker’s post-decisional claims.

3. Assuming very much arguendo that P. Ex. 14 is an annual, rather than an initial, nursing skills assessment, Petitioner has not submitted documentary evidence supporting that it completed a nursing skills checklist for Ms. Hessley in November 2019.

One page 2 of her new post-decisional declaration, Ms. Shoemaker explained that the “policy was to train and validate the skills of all new nursing hires within several days after hire,” and she “engaged in this training and skills validation hundreds of times and filled out thousands of pages of skills validation checklists.”  Post-Decisional Declaration at 2.  If Petitioner, in fact, submitted the wrong skills checklist as P. Ex. 14, it is unclear why Petitioner submitted a new declaration to support its motion to reopen but did not submit a copy of the skills checklist showing that Ms. Hessley’s skills had been assessed in November 2019 at the time of her hire.  Both witnesses claimed that they signed a nursing skills checklist in November 2019, but, if accepting Petitioner’s revisionist version of the facts as true, there is no documentary evidence to support these claims.

4. There is no merit to Petitioner’s statement that “it is not appropriate for the Court to impugn the integrity of an attorney practicing before this tribunal without affording that counsel the opportunity to respond to even a veiled allegation of professional misconduct.”

Without identifying counsel by name,⁶ I explained that counsel submitted the exhibits in this case, to include P. Ex. 14 and the testimony of Petitioner’s witnesses.  I explained that CMS, in its post-hearing brief, pointedly alleged that P. Ex. 14 could not have been signed in November 2019 because the form includes a pre-printed notation of “5/2020” that “would be consistent with a form that was created or last updated in May of 2020,”

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and the skills evaluated included references to COVID-19 even though COVID-19 had yet to be identified at that time.  Sun West at 16-17.  CMS further discussed that both Ms. Shoemaker and Ms. Hessley “testified that they signed this skills test in November 2019 upon Nurse Hessley’s initial hire.”  Sun West at 16-17.  CMS stated, “to the extent this Tribunal would rely on the direct testimony of either of the facility witnesses, it should weigh that testimony in light of the credibility issues presented above.”  Sun West at 17.

In a nutshell, CMS not only accused Petitioner of submitting fake evidence, but it also argued that the testimony of Ms. Shoemaker and Ms. Hessley “is not credible.”  Sun West at 16.  Inasmuch as CMS raised these allegations in a post-hearing brief (i.e., a brief focused on the witness testimony presented at the hearing), there is no plausible explanation for Petitioner’s failure, through its counsel, to respond to the serious allegations made by CMS through its counsel.⁷  Frankly astonished by Petitioner’s failure to respond to these allegations or to attempt to correct the evidentiary record, I pointed out, in a footnote, that the California Rules of Professional Conduct obligate a counsel to “take reasonable remedial measures” when it comes to know of the falsity of evidence.  Sun West at 17 n.14.  I re-affirm this observation.  I add that Petitioner, in its motion to reopen, failed to acknowledge my explicit declination to impose a sanction pursuant to 42 U.S.C. §§ 1320a-7a(c)(4) and 1395i-3(h)(2)(B)(ii) because I was not personally aware of “who and/or what entity is specifically responsible for the creation and submission of the fraudulent evidence.”  Sun West at 17 n.15.

Petitioner requested reopening “to delete references to ‘fabricated’ evidence, ‘lies,’ professional misconduct, and the like.”  For the reasons discussed above, I deny Petitioner’s motion to reopen the March 20, 2023 decision.

Endnotes

¹ Although P. Ex. 14 comprises 5 pages, my references to “P. Ex. 14” are to P. Ex. 14 at 1-4.  Pages 1 through 4 are a completed four-page form for an “initial” nursing skills evaluation conducted on November 20, 2019.  P. Ex. 14 at 1-4.  Page 5 of P. Ex. 14 is only the first page of an “annual” nursing skills evaluation conducted the following year on November 18, 2020.  P. Ex. 14 at 5.

² Petitioner had relied on P. Ex. 14 to support its claim that the infection control deficiencies observed during a nurse’s performance of blood glucose monitoring were an aberration and that it had assessed in November 2019, prior to the survey, that the nurse could competently perform that procedure.

³ CMS did not file a response to Petitioner’s motion.  See Standing Pre-Hearing Order § 7 (allowing a party 10 days to respond to a motion).

⁴ Petitioner argues that an administrative law judge has the inherent authority to reopen a decision when there is an error of fact or law.  P. Motion at 1.  However, Petitioner does not specifically allege “error” in a factual finding or legal conclusion in the decision.

⁵ With respect to the aforementioned exchange discussing the date Ms. Hessley placed her signature on page 1 of P. Ex. 14, Petitioner falsely claims on page 3 of its motion that “this testimony is somewhat ambiguous, as the transcript reveals cross-talking during the discussion of the date, and Nurse Hessley appears to be saying that the document relates to her annual re-testing in November 2020.”

⁶ Nor did I identify the full name of either of Petitioner’s witnesses.

⁷ I noted a typographical error by CMS in my discussion in which CMS, in paraphrasing a timeline of the COVID-19 pandemic, listed the year 2020 rather than 2019.  Sun West 16, n.13.  Contrary to Petitioner’s claims on page 6 of its motion, there is no equivalence between a non-dispositive typographical error and the offering of false documentary and testimonial evidence to support an argument.  To the extent Petitioner now essentially argues that this evidence is insignificant, the probative weight of the evidence is irrelevant to whether its lack of credibility warrants discussion.