Shiloh First Health Care, Inc. DAB CR5499 (2019)

DECISION ON REMAND

I reaffirm and incorporate by reference without modification the decision that I issued in this case on March 20, 2018, granting summary judgment in favor of the Centers for Medicare and Medicaid Services (CMS). Shiloh First Health Care, Inc., DAB CR5052 (2018).

Petitioner appealed that decision to the Departmental Appeals Board (“Board”). On October 24, 2019, a Board appellate panel remanded the case to me, concluding that Petitioner had raised a genuine issue of material fact, thereby precluding the entry of summary judgment. Shiloh First Health Care, Inc., DAB No. 2974 (2019). The appellate panel predicated its decision on the contents of an unsworn statement by Bibian Mukoro, who had been employed as a nurse by Petitioner. P. Ex. 2 in CRD Docket No. C-17-187. In its decision, the Board panel variously referred to Ms. Mukoro’s unsworn statement as an “affidavit” or a “declaration,” signifying that Ms. Mukoro had made it under oath or penalty of perjury.

However, Ms. Mukoro’s statement, being unsworn, is neither a declaration nor an affidavit and is a document that I would exclude from evidence were this case to proceed to a hearing. Consequently, that statement has no significance in deciding whether

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a material fact dispute exists.  For that reason, summary judgment remains the appropriate resolution of this case.1

At the heart of this case lie the questions of whether Petitioner’s staff reused a lancet device on multiple patients in violation of recognized standards of care and whether the staff used an improper technique for sanitizing the lancet after each use.  In my decision, I found that the undisputed material facts established that Petitioner’s staff did reuse a lancet and utilized an improper technique for sanitizing it.  Shiloh, DAB CR5052 at 3.  I based my decision on admissions made by Ms. Mukoro to a Texas state survey agency surveyor.  Id.  Ms. Mukoro’s statement attempts to rebut those admissions.  However, and as I have explained, Ms. Mukoro did not make any statements under oath or penalty of perjury.

The administrative law judge to whom this case originally was assigned issued an initial pre-hearing order.  That order told the parties that they must exchange as an exhibit the written direct testimony of any proposed witness.  The parties were instructed that:  “A witness statement must be submitted in the form of an affidavit under oath or as a written declaration that the witness signs under penalty of perjury for false testimony.”  December 21, 2016 Acknowledgment and Pre-hearing Order (“Order”) at 5, ¶ 8.

The Order also addressed the possibility of summary judgment, stating that:  “I will decide each motion for summary disposition according to the principles of Rule 56 of the Federal Rules of Civil Procedure and appropriate case law.”  Order at 4, ¶ 5.a.

Rule 56 unambiguously requires a party disputing an issue of material fact to establish a legitimate dispute based on admissible evidence.  “A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”  Fed. R. Civ. P. 56(c)(2).

Ms. Mukoro’s statement is inadmissible as evidence because it does not comply with Paragraph 8 of the Order.  I would exclude this statement from evidence were Petitioner to offer it at a hearing.  Petitioner may not rely on that statement as a basis for establishing a fact dispute.

Petitioner argues that Ms. Mukoro’s statement establishes a fact dispute.  However, it has not shown how that statement would be admissible at a hearing.  For that reason, and as I have explained, Petitioner may not base its contention that there is a fact dispute on Ms. Mukoro’s statement.  Petitioner has not offered any other admissible evidence to

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establish a fact dispute in this case, and, for that reason, summary judgment remains the appropriate form for disposition.

Finally, Petitioner argues that CMS should be compelled to consider Petitioner’s offer of settlement.  I have no authority to compel CMS to consider or accept a settlement offer. Whether or not to accept a settlement offer lies entirely within CMS’s discretion.

• 1.In fairness to the appellate panel, it likely was misled by my mischaracterization at one point in my decision of Ms. Mukoro’s statement as an “affidavit.” I regret that erroneous characterization but, nevertheless, the fact remains that her statement is unsworn and not made under penalty of perjury, and is therefore inadmissible.