SUBJECT:

Carrier Mills Nursing Home,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

I decide that Petitioner, Carrier Mills Nursing Home, was not in compliance with federal participation requirements. In addition, I decide that the civil money penalty (CMP) of $7,000 imposed by the Centers for Medicare & Medicaid Services (CMS, formerly known as the Health Care Financing Administration or HCFA) against Petitioner was authorized and reasonable.

I. Background

On October 5, 2000, the Illinois Department of Public Health (State agency) conducted a survey of Petitioner and determined that Petitioner was not in substantial compliance with the federal participation requirements of the Medicare and Medicaid programs. By letter dated November 22, 2000, CMS notified Petitioner that, based on the survey that was conducted on October 5, 2000 by the State agency, it was imposing a CMP of $200 per day, effective October 5, 2000, until Petitioner achieved substantial compliance. Petitioner achieved substantial compliance on November 9, 2000, based on a revisit survey conducted on that date. The total CMP imposed by CMS was $7,000.

By letter dated December 15, 2000, Petitioner filed a hearing request. This case was assigned to Administrative Law Judge (ALJ) Mimi Hwang Leahy and subsequently reassigned to me for hearing and decision. The parties exchanged exhibits with each other. CMS filed a Motion for Summary Affirmance of the CMP accompanied by some of the exhibits from the exchange between the parties that bore the same identifying numbers as the exhibits tendered in the exchange between the parties. However, CMS did not rename Petitioner's exhibits as its own. CMS's motion was accompanied by 27 exhibits (CMS Exs. 1 - 4, 6, 15, 18, 20 - 22, 38 - 39, 43, and P. Exs. 1, 4, 10, 19, 21, 23 - 24, 27, 29, 31, 34 - 36, 59) and two declarations labeled CMS MSJ Exs. A and B. Petitioner filed a response accompanied by an affidavit labeled P. Ex. A and a motion to strike the two declarations filed as CMS MSJ Exs. A and B. Petitioner did not object to any of the other exhibits. CMS filed a reply brief.

Petitioner argues that I should grant its motion to strike the two declarations labeled CMS MSJ Exs. A and B because CMS is attempting to deprive it of its due process rights to confront and cross-examine the two surveyors who were the authors of these declarations. Petitioner also claims that these two declarations are inadmissible because the declarations contain hearsay statements, legal conclusions, editorial comments on information found in documents, and lay opinions on medical issues.

I decline to strike the two declarations filed by CMS. Petitioner will not be deprived of its due process rights in cross-examining the two surveyors who were the authors of these declarations because there is no testimony that could be elicited from these surveyors that could alter the relevant factual findings that I have made based on Petitioner's own documents. I find that the other reasons that Petitioner claims these declarations are inadmissible are without merit. The declarations are material, relevant, and admissible. Petitioner should note, however, that I give these declarations very little weight because I base this decision almost entirely on Petitioner's own documents. I admit into evidence the 27 exhibits that accompanied CMS's Motion for Summary Affirmance, CMS MSJ Exs. A and B, and P. Ex. A.

II. Applicable law

Petitioner is considered a long-term care facility under the Social Security Act (Act) and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act and at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act invest the Secretary with authority to impose CMPs against a long-term care facility for failure to comply substantially with federal participation requirements.

Pursuant to the Act, the Secretary has delegated to CMS and the States the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. 42 C.F.R. Part 488 provides that facilities which participate in Medicare may be surveyed on behalf of CMS by State survey agencies in order to ascertain whether the facilities are complying with federal participation requirements. 42 C.F.R. §§ 488.10 - 488.28. The regulations contain special survey conditions for long-term care facilities. 42 C.F.R. §§ 488.300 - 488.335. Under Part 488, a State or CMS may impose a per instance or per day CMP against a long-term care facility where a State survey agency ascertains that the facility is not complying substantially with federal participation requirements. 42 C.F.R. §§ 488.406, 488.408, 488.430.

The regulations specify that a CMP that is imposed against a facility will fall into one of two broad ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper range of CMPs, from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a facility's residents, and in some circumstances, for repeated deficiencies. 42 C.F.R. §§ 488.438(a)(1), (d)(2). The lower range of CMPs, from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm, but have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(2). A CMP may start accruing as early as the date that the facility was first out of compliance until the date substantial compliance is achieved or the provider agreement is terminated. The regulations define the term "substantial compliance" to mean "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. § 488.301.

When a penalty is imposed, CMS must make a prima facie case that the facility has failed to comply substantially with federal participation requirements. To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEV) (D.N.J. May 13, 1999). Under Hillman, CMS bears the burden of coming forward with evidence sufficient to establish a prima facie case that Petitioner failed to comply with participation requirements. Once CMS has established a prima facie case of noncompliance, Petitioner has the burden of proving, by a preponderance of the evidence, that it complied substantially with participation requirements. Hillman, at 3 - 8.

The Act and regulations make a hearing before an ALJ available to a long-term facility against whom CMS has determined to impose a CMP. Act, sections 1128A(c)(2); 42 C.F.R. §§ 488.408(g), 498.3(b)(12), (13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al. DAB CR65 (1990), aff'd, 941 F2d. 678 (8^th Cir. 1991).

III. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Petitioner was in substantial compliance with federal participation requirements during the October 5, 2000 survey; and, if it was not,

2. Was the amount of the CMP reasonable?

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law to support my decision in this case. These are set forth below as numbered headings (Findings). I discuss these Findings in detail below.

IV. Discussion

1. Summary judgment is appropriate where, as here, Petitioner has not demonstrated any dispute over genuine issues of material fact.

Summary disposition is appropriate where there are no disputed issues of material fact and where the only questions that must be decided involve either questions of law or the application of the law to the undisputed facts. A party opposing summary disposition must allege facts which, if true, would refute the facts relied upon by the moving party. See, e.g., Fed. R. Civ. P. 56(c); Garden City Medical Center, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony). The party may not simply state that it disputes the allegations of fact in order to avoid the entry of summary judgment; it must describe the asserted facts credibly in order to establish a dispute.

CMS argues that it is entitled to judgment as a matter of law because no material facts are in dispute concerning two deficiencies that resulted in actual harm at the scope and severity level of G. In addition, Petitioner was determined not to be in compliance with four additional federal requirements at scope and severity levels lower than G. CMS argues that Petitioner's own documents support the two deficiencies that resulted in actual harm and therefore summary judgment should be granted. Petitioner contends that there are material facts in dispute by pointing to an affidavit by Petitioner's Director of Nursing, Frances Blackwell. P. Ex. A. In addition, Petitioner contends that the material fact of whether therapy was offered and refused by residents or not offered at all is in dispute.

Taking Petitioner's arguments and examining P. Ex. A in the light most favorable to Petitioner, I find that summary judgment is appropriate in this case because material facts that affect the outcome of this case are still not in dispute. As stated in Big Bend Hospital Corp. d/b/a Big Bend Medical Center, DAB No. 1814 (2002), "[t]o convene an in-person hearing where no proffered evidence would have any affect on the outcome would be an empty formalism and a waste of administrative and litigant resources." Big Bend, at 15. There is no need for an in-person hearing "where no testimony (including cross-examination, regardless of how credible it might be), could alter the relevant factual findings." Id. at 16.

2. Petitioner was not in substantial compliance with the regulation regarding resident transfer and ambulation. 42 C.F.R. § 483.25(a)(2).

During the October 5, 2000 survey, Petitioner was found not to be in compliance with 42 C.F.R. § 483.25(a)(2) which provides that "[a] resident is given the appropriate treatment and services to maintain or improve his or her abilities specified in paragraph (a)(1) of this section." The list of abilities in paragraph (a)(1) of that section includes "the resident's ability to . . . (ii) [t]ransfer and ambulate."

On April 20, 2000, Resident 12's (R12) physician ordered Petitioner's staff to ambulate R12 using her walker seven days per week and to perform multiple transfer sessions seven days per week. P. Ex. 27, at 5 - 9. In addition, R12's care plan dated April 24, 2000 also required that R12 be ambulated daily and have multiple transfer sessions daily. P. Ex. 24 at 22. The surveyors found that Petitioner's rehabilitation logs for R12 did not show that R12 was getting the ambulation or transfer therapy ordered by her doctor or required by her care plan. CMS Ex. 18; P. Ex. 23.

As Petitioner's own documents show on their face, Petitioner's staff recorded "0" for R12's ambulation therapy in many places. P. Ex. 23, at 1 - 3; CMS Ex. 18, at 11 - 13. CMS interpreted this to mean that Petitioner failed to offer R12 therapy. However, Petitioner argues that this is a wrong conclusion. Petitioner claims that it offered the therapy or exercises to R12 but that the resident either refused therapy or was uncooperative. Petitioner supports this claim with the affidavit of the Director of Nursing, Frances Blackwell. P. Ex. A. Ms. Blackwell attests in her affidavit that there was a systematic flaw in documenting instances of residents' refusal or lack of cooperation with their therapy and that the nursing staff offered therapy and recorded "0" where the resident either refused the therapy completely or was uncooperative with the therapy. Id. Further, Ms. Blackwell attests that the residents identified in the survey frequently refused therapy and were uncooperative. Id. Petitioner argues that residents have a right to refuse treatment and that it cannot force treatment on residents. Petitioner argues that it is not at fault for any decline in functioning caused by a resident refusing treatment or services or by being uncooperative.

Although CMS disagrees with Petitioner's interpretation of "0", I will assume that Petitioner's interpretation is correct for the purposes of the summary judgment motion before me. However, taking Ms. Blackwell's affidavit in the light most favorable to Petitioner, I find that Petitioner does not survive a motion for summary judgment. Petitioner's own documents show that the ambulation therapy log sheets were sometimes completely blank. There is a blank space on the ambulation therapy log sheet for July 30, 2000 (CMS Ex. 18, at 11), and for August 29 - 31, 2000 (Id. at 12). The spaces for October 1 - 4, 2000 (P. Ex. 23, at 3) were lined through to indicate a lack of data for entry. A standard practice in the nursing field is that if something is blank or lined through, then that service or treatment was not performed. More significant, however, was the October log sheet where the staff was directed to do transfer therapy only for R12. Nowhere on the documentation for October was the staff directed to provide any ambulation therapy to R12. I conclude that, on the days mentioned above, R12 was not even offered the ambulation or transfer therapy ordered by her doctor and required by her care plan.

CMS offers evidence, and Petitioner does not dispute, that R12 suffered a decline in her ability to ambulate. Two physical therapy evaluations from February 23, 2000 and March 23, 2000 showed that R12 could ambulate 60 feet with the assistance of one person. P. Ex. 21, at 3 - 6. The evaluation performed on October 4, 2000 showed that R12 could only ambulate two to three steps and now required the assistance of two persons. CMS Ex. 18, at 14 - 15. R12 also required the assistance of two people to roll or turn when she had previously required the assistance of only one person. Id. This is a marked decline that Petitioner does not dispute.

3. Petitioner was not in substantial compliance with the regulation regarding range of motion. 42 C.F.R. § 483.25(e)(2).

During the October 5, 2000 survey, Petitioner was found not to be in compliance with 42 C.F.R. § 483.25(e)(2) which provides "Range of motion. Based on a comprehensive assessment of a resident, the facility must ensure that . . . (2) A resident with a limited range of motion receives appropriate treatment and services to increase range of motion and/or to prevent further decrease in range of motion." As I discuss in detail below, it is clear that Petitioner was not in substantial compliance with this regulation because it did not provide the appropriate range of motion exercises that were ordered by the residents' physicians and required by the residents' care plans.

a. R12

On May 18, 2000, R12's physician ordered passive range of motion (PROM) exercises with ten repetitions to be performed twice a day, seven days a week. P. Ex. 27, at 6 - 9. In addition, R12's care plan dated April 24, 2000 required that R12 receive PROM exercises twice a day. P. Ex. 24, at 22.

Petitioner's assignment sheet for PROM for September 2000 shows a "0" recorded once each day of the month. CMS Ex. 18, at 10. Taken in the light most favorable to Petitioner, it appears that PROM exercises were only offered, and refused, once each day while the physician's orders and the care plan required PROM exercises to be done twice each day. Although Petitioner did not argue this point, I note that there are two lines containing initials below each day on the assignment sheet. I suppose it is possible that the initials indicate the staff person who was recording whether the PROM exercises were done. If that is the case, then wherever there are initials on both of those lines, I can assume that, on that day, PROM exercises were offered twice even though only one "0" was recorded on that day. However, even in that case, I note that there are initials on only one line (indicating that PROM exercises were offered only once per day) for September 13, 16, 19 - 23, and 25 - 26, 2000. Id. Therefore, however I view this documentation, it is evident that R12 did not receive the PROM exercises that were required by both her physician and her care plan.

CMS offers evidence, and Petitioner does not dispute, that R12's range of motion became more limited. The physical therapy evaluation performed on January 26, 2000 found that R12's left and right lower extremities were able to move within functional limitations in range of motion. P. Ex. 21, at 1 - 2. Improvements were noted in February and March - all her extremities were able to move within functional limitations except her left shoulder. On April 12, 2000, R12 had limited movement in one arm and on July 16, 2000 she had limited movement in one hand and one leg in addition to the arm where limited movement had been previously noted. CMS Ex. 18, at 3. The October 4, 2000 evaluation showed a marked decline in all her extremities. Id. at 14.

b. Resident 4 (R4)

On August 31, 2000, R4's physician ordered that he receive PROM exercises for both upper and lower extremities twice a day, seven days per week. CMS Ex. 22, at 3.

However, the documentation shows that PROM exercises were only done once daily on the Monday - Friday assignment sheet for September 2000. ⁽¹⁾ CMS Ex. 22, at 8. There are blank spaces in the assignment sheet in the day shift on September 21, 2000 and on the evening shift for September 4 - 8, 11 - 15, and 18 - 20, 2000. Id.

Petitioner points out that R4 showed a decline after a physical therapy evaluation in his PROM during a period of time that R4 was out of Petitioner's care. R4 was hospitalized from September 22, 2000 to September 29, 2000, and a decline was noted when a new evaluation was done upon R4's return on October 4, 2000. Viewed in the light most favorable to Petitioner, the existence of a deficiency under the regulation concerning PROM cannot be denied because Petitioner did not provide the PROM exercises required by the physician's order and the resident's care plan. At most, Petitioner could claim it did not cause actual harm to R4. However, Petitioner is still not in compliance with federal regulations as long as a deficiency poses a risk to resident health or safety of a potential for more than minimal harm. 42 C.F.R. § 488.301. Petitioner's failure to perform the PROM exercises as ordered put R4 at risk for suffering a decrease in range of motion and for developing contractures because joints begin to stiffen after 24 hours of disuse. CMS Ex. 43, at 5.

Finally, Petitioner argues that there were many intervening medical conditions that could have caused a decline in R4's functioning and that it is a stretch to conclude that not participating in therapy was the sole cause of the decline. Petitioner claims that the failure of CMS to present evidence to support a causal connection should defeat CMS's motion for summary judgment. Petitioner misunderstands its burden in responding to a motion for summary judgment. Petitioner's mere speculation that a decline is caused by some intervening medical condition is insufficient to create an issue of material fact. Mere speculation cannot preclude summary judgment. Petitioner is obligated to aver specific facts that will defeat CMS's motion. It has not done so.

c. Resident 8 (R8)

R8's physician had ordered PROM exercises two times a day, seven days a week. P. Ex. 10 at 1. In addition, R8's care plan indicated that R8 was to have PROM exercises for both upper and lower extremities two times a day, seven days a week. P. Ex. 4, at 16.

R8's PROM assignment sheet for September 2000 has "0" recorded only once a day during a majority of the daytime shifts. The boxes indicating the evening shift are blank for the entire month of September. CMS Ex. 20 at 5. Therefore, Petitioner's own documentation shows that at most PROM exercises were offered once daily rather than twice daily as required by the physician's orders and R8's care plan.

Although Petitioner did not argue this point, I note, as I did with R12, that there are two lines containing initials below each day on the assignment sheet. I suppose it is possible that the initials indicate the staff person who was recording whether the PROM exercises were done. If that is the case, then wherever there are initials on both of those lines, I can assume that, on that day, PROM exercises were offered twice even though only one "0" was recorded on that day. However, even in that case, I note that there are initials on only one line (indicating that PROM exercises were offered only once per day) for September 13, 15, 16, 19 - 23, 25 - 27, and 29 - 30, 2000. Id. Therefore, however I view this documentation, it is evident that R8 did not receive the PROM exercises that were required by both her physician and her care plan. Id.

Petitioner's failure to perform the PROM exercises as ordered put R8 at risk for suffering a decrease in her range of motion and for developing contractures because joints begin to stiffen after 24 hours of disuse. CMS Ex. 43, at 5.

d. Resident 13 (R13)

R13's care plan required that R13 receive PROM exercises to all extremities two times a day, seven days a week. P. Ex. 31 at 8. In addition, the Physical Therapy Department had recommended PROM exercises twice daily, seven days a week. P. Ex. 35 at 1 - 2. During the time period involved in the survey, R13's physician had also ordered PROM exercises twice daily, seven days a week. P. Ex. 36, at 3 - 13.

The April 2000 PROM assignment sheet shows that "U" was recorded 22 times to indicate that R13 was uncooperative with the exercises. CMS Ex. 21, at 5. "R" was recorded three times to indicate that R13 refused to do the exercises three times. Id. There are 31 blank boxes on the April 2000 assignment sheet which indicates that PROM exercises were not even offered 31 times during the month of April. Id. Although Petitioner did not argue this point, I note, as I did with R8 and R12, that there are two lines containing initials below each day on the assignment sheet. I suppose it is possible that the initials indicate the staff person who was recording whether the PROM exercises were done. If that is the case, then wherever there are initials on both of those lines, I can assume that, on that day, PROM exercises were offered twice even though only one "U" or one "R" was recorded on that day. However, even in that case, I note that there are initials on only one line (indicating that PROM exercises were offered only once per day) for April 3 - 7, 12, 14 - 20, 24 - 26, and 28 - 30, 2000. Id. Further, no initials on either line are recorded for April 4, 8 - 9, 21 - 23, and 27, 2000, indicating that PROM exercises were not offered at all on those days. Id.

"R" was recorded six times on the May 2000 PROM assignment sheet. Id. at 6. There were eleven "0"s with a slash through it, two "0"s, and one "U" on the May sheet. Id. The May sheet had 41 blank boxes which indicates that PROM exercises were not even offered 41 times during the month of May. Id. However, a notation on the back of the May 2000 assignment sheet indicated that R13 should continue PROM exercises twice daily, seven days a week. P. Ex. 34, at 4.

The July 2000 PROM assignment sheet has 35 blank boxes. CMS Ex. 21, at 7. Most of the rest of the boxes on the July sheet have a "0" with a slash through it. Plainly, PROM exercises were not even offered to R13 on at least 35 occasions during the month of July. Although Petitioner did not argue this point, I note again that there are two lines containing initials below each day on the assignment sheet. I suppose it is possible that the initials indicate the staff person who was recording whether the PROM exercises were done. If that is the case, then wherever there are initials on both of those lines, I can assume that, on that day, PROM exercises were offered twice even though only one "0" with a slash through it was recorded on that day. However, even in that case, I note that there are initials on only one line (indicating that PROM exercises were offered only once per day) for July 7, 14 - 15, and 29 - 31. Id. Further, there were no initials on either line for July 1 - 4 and 8 - 9, indicating that no PROM exercises were offered at all on those days. Id. However, a notation on the back of the July 2000 assignment sheet indicated that R13 should continue PROM exercises twice daily, seven days a week. P. Ex. 34, at 6.

The August 2000 PROM assignment sheet has 27 blank boxes. P. Ex. 34 at 7. Most of the rest of the boxes have either a "0", a "0" with a slash through it, or a "U." ⁽²⁾ Id. Therefore, PROM exercises were not even offered at least 27 times during this month. Although Petitioner did not argue this point, I note once again that there are two lines containing initials below each day on the assignment sheet. I suppose it is possible that the initials indicate the staff person who was recording whether the PROM exercises were done. If that is the case, then wherever there are initials on both of those lines, I can assume that, on that day, PROM exercises were offered twice even though only one "0" was recorded on that day. However, even in that case, I note that there are initials on only one line (indicating that PROM exercises were offered only once per day) for August 12 - 14, 17, and 24 - 29. Id. However, a notation on the back of the August 2000 assignment sheet indicated that R13 should continue PROM exercises twice daily, seven days a week. P. Ex. 34, at 8.

The September 2000 PROM assignment sheet has 30 blank boxes. CMS Ex. 21, at 9. ⁽³⁾ "0" is recorded 28 times and "R" is recorded twice during the month of September. Id. Therefore, according to this documentation, PROM exercises were not even offered to R13 on at least 30 occasions in September 2000. Although Petitioner did not argue this point, I note, as I have before, that there are two lines containing initials below each day on the assignment sheet. I suppose it is possible that the initials indicate the staff person who was recording whether the PROM exercises were done. If that is the case, then wherever there are initials on both of those lines, I can assume that, on that day, PROM exercises were offered twice even though only one "0" was recorded on that day. However, even in that case, I note that there are initials on only one line (indicating that PROM exercises were offered only once per day) for September 15 - 16, 19 - 23, and 25 - 27, 2000. Id. However, a notation on the back of the September 2000 assignment sheet indicated that R13 should continue PROM exercises twice daily, seven days a week. P. Ex. 34, at 10.

Therefore, however I view this documentation, it is evident that R13 did not receive the PROM exercises that were required by both her physician and her care plan. Petitioner's failure to perform the PROM exercises as ordered put R13 at risk for suffering a decrease in range of motion and for developing contractures because joints begin to stiffen after 24 hours of disuse. CMS Ex. 43, at 5.

4. The amount of the CMP imposed was reasonable.

The regulations specify the factors that I can consider in determining whether the amount of a CMP is reasonable. These factors are: the facility's history of noncompliance, including repeat deficiencies; the facility's financial condition; the factors specified in 42 C.F.R. § 488.404 (including seriousness and scope of deficiencies); and the facility's degree of culpability which includes, but is not limited to, neglect, indifference, or disregard for resident care, comfort, or safety. 42 C.F.R. § 488.438(f)(1) - (4).

In this case, CMS imposed a $200 per day CMP, which is $150 per day above the minimum CMP of $50 per day for deficiencies that do not constitute immediate jeopardy. 42 C.F.R. § 488.438(a)(ii). I find that a $200 per day CMP is reasonable in this case. A CMP of $200 per day is on the lower end of the range of permissible CMPs. Petitioner had a prior history of noncompliance. It was cited for two G-level deficiencies during a prior standard survey that was conducted on November 23, 1999. CMS Exs. 3 and 5. One of these previously cited deficiencies was also in the area of quality of care, as are the two deficiencies discussed above. CMS provided evidence, which Petitioner did not challenge, that Petitioner's financial condition indicated that it is able to pay the CMP. CMS Exs. 3 and 6. The seriousness of the deficiencies, the culpability of the facility, and the actual harm suffered to R12 also support my conclusion that the CMP is reasonable.

V. Conclusion

I decide that Petitioner was not in compliance with federal participation requirements. In addition, I decide that the CMP of $7,000 imposed by CMS against Petitioner was authorized and reasonable.

Marion T. Silva

Chief Administrative Law Judge

1. Petitioner's staff confusingly recorded a "3" on the assignment sheet once a day on September 1, 5, 6, 7, 8, 12, 13, 14, 15, 18, 19, 20, and 21, 2000. The notation "3" appears nowhere else in the record and is not used or defined anywhere in the record.

2. In this instance one box is marked "C1." I note that throughout the record "C1" or "C2" have appeared on rare occasions. However, neither party has indicated to me what was meant by these notations nor are the meanings of these notations evident from the record itself.

3. CMS Ex. 21 was missing page eight.