Full opinion text
ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT McKINNEY, Chief Judge. This cause is now before the Court on defendants’, Jo Ann Mason (“Mason”), Gerald Coleman (“Coleman”), Suzanne Hornstein (“Hornstein”), Clara McGee-Vinzant (“McGee”), Karen Powers (“Powers”), Robert Stark (“Stark”), Margaret Ellis (“Ellis”), Avona Connell (“A. Con-nell”) and Karen Davis (“Davis”) (collectively, “Defendants”), Motion for Summary Judgment. Plaintiff, Randall L. Woodruff, as Bankruptcy Trustee for Legacy Healthcare, Inc., (“Legacy”), opposes the motion. For the reasons discussed herein, the Court GRANTS Defendants’ Motion for Summary Judgment. I. COUNTS 5 THROUGH 8 In its brief, Legacy voluntarily dismisses Counts 5 through 8 of it Second Amended Complaint. Those Counts are hereby DISMISSED without prejudice. II. DEFENDANTS’ EVIDENTIARY OBJECTIONS Defendants contend that Legacy’s brief and evidentiary offerings do not comply with Federal Rule of Civil Procedure 56(e) (“Rule 56(e)”) or U.S. District Court for the Southern District of Indiana Local Rule 56.1 (“Local Rule 56.1”). Defendants argue that the Court should require strict compliance with Rule 56(e) and Local Rule 56.1. In doing so, Defendants urge the Court to ignore all the improperly designated evidence, assume the facts as claimed by Defendants and supported by admissible evidence exist without controversy, and grant summary judgment in their favor. Moreover, Defendants object to Douglas Bradburn’s declaration (“Bradburn declaration”), because “the document as a whole is a prolix mass of suspicion, opinion, conelusory statements, speculation, hearsay, bald assertions of facts unsupported by specific evidence, and rambling accounts of matters that have already been decided.... ” Defs.’ Reply, at 3-4. Defendants urge the Court to ignore the entirety of Brad-burn’s declaration, and to consider only specific exhibits identified in Legacy’s brief. Although the Court agrees that many statements in Bradburn’s declaration are conelusory and, to some extent, are opinion, the Court, in its discretion, declines Defendants’ invitation to disregard all the evidence proffered by Legacy. Other than one reference to Bradburn’s declaration in general, which the Court agrees is inappropriate, in each section of its brief Legacy points to paragraphs in Brad-burn’s declaration that it believes supports its allegations against defendants. See, e.g., Pl.’s Br. in Opp’n, at 1-3 (setting out general facts relevant to all claims); Pl.’s Br. in Opp’n, at 5-10 (setting out facts relevant to Legacy’s claim under the First Amendment). Bradburn either sets forth conclusions, opinion, facts or citations to other evidence in support of the statements in the brief. This is enough road-map for the Court to determine both whether the evidence is admissible and whether there is a genuine issue of material fact on Legacy’s remaining Counts. However, the Court shall not consider statements in Bradburn’s declaration to which there is only the general reference or statements for which no specific citation exists in the brief. As to those averments the Court will consider, the Court shall apply the normal rules of evidence to determine admissibility of each statement proffered. In some cases the Court may rephrase Bradburn’s statement to preserve its admissibility. In order for there to be no mistake about what paragraphs of Bradburn’s declaration were considered by the Court, to the extent the content is admissible under Rule 56(e), the Federal Rules of Evidence, and Seventh Circuit law, the paragraphs considered are listed here: 7,16-32, 35-38, 51, 54-55, 57-58, 60, 62-73, 88-89, 98, 100-283, 290, 352-453, 491-513, 535-41, 607-23. The Court also considered the exhibits cited to in those paragraphs, and Legacy’s exhibits 172, 10 and 3, as those exhibits were specifically referenced by Legacy in its brief. III. BACKGROUND In this suit Legacy has four remaining claims: (1) that Defendants retaliated against it for exercising its First Amendment right to participate as either plaintiff or defendant in litigation against the State of Indiana; (2) that Defendants conspired to retaliate against it for exercising its First Amendment right to participate in litigation against the State of Indiana; (3) that Defendants systematically denied Legacy equal protection under federal and state laws, regulations and guidelines; and (4) that Defendants conspired to deny Legacy equal protection under federal and state laws, regulations and guidelines. Defendants filed the instant motion to challenge Legacy to show material questions of fact on its claims. In addition, Defendants challenge Legacy to show that some of its claims are not barred by the statute of limitations, that some of its claims are not barred by collateral estop-pel, that certain Defendants, namely, Mason and Davis, are not entitled to absolute immunity, and that certain Defendants, namely, Coleman, Hornstein, McGee, Powers, Stark, Ellis and Connell, are not entitled to qualified immunity. Because the Medicaid and Medicare regulatory scheme provides the backdrop for all of the alleged deprivations of rights in this case, the Court starts with that framework. A. THE RELEVANT MEDICAID & MEDICARE REGULATORY SCHEME The Indiana Family and Social Services Administration (“FSSA”) administers Indiana’s Medicaid program though its Office of Medicaid Policy and Planning (“OMPP”). Ind.Code § 12-15-1-1. Federal Medicaid law requires OMPP to designate a survey agency to inspect healthcare facilities to ensure compliance with the Medicaid program. 42 U.S.C. §§ 1396a(a)(9) & (33). Under Indiana law, the Indiana State Department of Health (“ISDH”) is authorized to perform the duties of the state survey agency for the Medicaid program. Ind.Code § 16-28-12-1. As Indiana’s Medicaid survey agency, ISDH determines whether institutions, like Legacy, and agencies meet the requirements for participation in the Medicaid program. 42 CFR § 431.610(e)(1); 42 CFR § 488.330(a). Surveyors who perform surveys under the auspices of ISDH are to use their judgment, in concert with federal forms and procedures, to determine whether a facility is in compliance. 42 CFR § 488.26(c)(3). More specifically, for nursing facilities that receive Medicare or Medicaid reimbursement, ISDH must certify that the facility complies “with the conditions of participation, requirements (for [skilled nursing facilities,] SNFs and [nursing facilities,] NFs), and conditions of coverage.” 42 CFR § 488.1. To be approved for participation in, or coverage under, the Medicare program, a prospective provider or supplier must: (1) meet the applicable statutory definition in section 1138(b), 1819, 1832(a)(2)(F), 1861, 1881, or 1919 of the Social Security Act; and (2) must be in compliance with the applicable conditions or long-term care requirements prescribed in subpart N, Q, or U of part 405, 416, subpart C of part 485, subpart A of part 491, or part 494 of chapter 42 of the Code of Federal Regulations (“CFR”). 42 CFR § 488.3(a). In addition, the provisions of part 483 subpart B contain the requirements that an institution must meet in order to qualify to participate as a SNF in the Medicare program and as an NF in the Medicaid program. 42 CFR § 483.1(b). These requirements serve as the basis for survey activities for the purpose of determining whether a facility meets the requirements for participation in Medicare and Medicaid. Id. The State of Indiana certifies compliance or non-compliance of non-State operated NFs, SNFs and dually-participating SNF-NFs. 42 CFR § 488.330(a)(l)(i). According to the regulations, “substantial compliance” means 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 CFR § 488.301. “Immediate jeopardy” means a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. Id. ISDH must conduct a standard survey of each SNF and NF not later than fifteen months after the last day of the previous standard survey. 42 CFR § 488.308(a). However, ISDH may conduct surveys as frequently as necessary to^ — (1) determine whether a facility complies with the participation requirements; and (2) confirm that the facility has corrected deficiencies previously cited. 42 CFR § 488.308(c). Federal regulations provide for several types of surveys including: standard surveys, which are periodic in nature and are resident-centered and quality focused to determine compliance with the requirements for participation; abbreviated standard surveys, which are non-standard surveys that may be premised on complaints received, a change of ownership, management or director of nursing, or other indicators of specific concern; extended surveys, which are performed subsequent to a substandard, standard survey and evaluates additional participation requirements; and partial extended surveys, which are performed subsequent to a substandard, abbreviated standard survey and evaluates additional participation requirements. 42 CFR § 488.301. Federal regulations also provide for special surveys in which ISDH must review all complaint allegations and conduct a standard or an abbreviated standard survey to investigate complaints of violations of requirements of [long term care facilities] if its review of the allegations concludes that — (i) A deficiency in one or more of the requirements may have occurred; and (ii) Only a survey can determine whether a deficiency or deficiencies exist. 42 CFR § 488.308(e)(2). ISDH may perform any of these surveys on SNFs, NFs or intermediate care facilities for the mentally retarded (“ICF/MR”). 42 CFR § 442.109(a). The federal regulation provides that ISDH “may certify a facility that fully meets applicable requirements for up to [twelve] months.” Id. Once an ICF/MR is certified and ISDH has notified the Medicaid agency, the Medicaid agency executes a provider agreement under 42 CFR § 442.12. See 42 CFR § 442.101 (stating the requirements for obtaining certification before a Medicaid agency may execute a provider agreement). Conditions for participation by an ICF/MR are specifically set forth in sub-part I of part 483 of chapter 42 of the CFR. Id. § 442. 101(d)(1), however, there are three certification levels for an ICF/ MR, all of which are laid out in the federal regulation. Id. For example, if ISDH finds an ICF/MR deficient in meeting the standards as specified under subpart I of part 483, the agency may certify the facility for Medicaid if “(i) [a]ll conditions of participation are met; and (ii)[t]he facility submits an acceptable plan of correction covering the remaining deficiencies, subject to other limitations specified in § 442.105.” Id. But, “[t]he failure to meet one or more of the application conditions of participation is cause for termination or non-renewal of [a] ICF/MR provider agreement.” Id. § 442.101(e). The regulations also provide for immediate termination of an ICF/MR from the Medicaid system if ISDH determines that immediate jeopardy exists and the facility does not immediately take corrective action. 42 CFR § 442.117. “Immediate jeopardy means a situation in which immediate corrective action is necessary because the provider’s compliance with one or more requirements of participation or conditions of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to an individual receiving care in a facility.” 42 CFR § 442.2. If a facility’s deficiencies do not pose immediate jeopardy, but the facility is not in substantial compliance, ISHD may allow the facility to continue to participate in Medicaid or Medicare for no longer than six months. 42 CFR § 488.412(a). In addition to these federal requirements, a facility must be licensed by ISDH to receive Medicare. 42 U.S.C. § 1395i— 3(d)(2)(A). A facility may receive a license from the director of ISDH’s Division of Long Term Care (“DLTC”). Ind.Code § 16-18-2-1; 410 IAC § 16.2-3.1-2. Indiana law further provides that licensing inspections of healthcare facilities must be made regularly and annually. Ind.Code § 16-28-l-13(a); 410 IAC § 16-3.1-4(c)(1). A healthcare facility that is aggrieved by an adverse decision of the ISDH may request an administrative hearing. Ind. Code § 16-28-5-8. That hearing is conducted in accordance with the Indiana Administrative Orders and Procedures Act (“AOPA”), which is found at Indiana Code §§ 4-21.5, et seq. An administrative law judge (“ALJ”) for an ISDH proceeding must be a lawyer licensed to practice in Indiana, and must not be employed by the State of Indiana. Ind.Code § 16-28-10-1. Any party who disagrees with the decision of the ALJ in an ISDH proceeding may request review by an appeals panel. Ind. Code §§ 16-28-10-1 & -2. The appeals panel is appointed by the executive board of the ISDH and consists of one member of the executive board, one attorney admitted to practice law in the State of Indiana, and one individual with qualifications determined by the executive board. Ind. Code §§ 16-28-10-1 & -2. Either the facility or the State may petition for judicial review of an adverse decision of the appeals panel. Ind.Code § 16-28-10-3. With respect to Medicaid, in Indiana, any long-term care facility that wants to obtain Medicaid reimbursement for residents who are Medicaid recipients must have a provider agreement with OMPP. Ind.Code §§ 12-15-11-2 & -3. Moreover, OMPP may not issue a provider agreement unless the ISDH has certified the facility to provide those services. 42 CFR § 442.12(a). OMPP must received notice of the certification from ISDH before it issues a provider agreement. 42 CFR § 442.101(c). Pursuant to State law, among other penalties, OMPP may terminate a provider’s Medicaid provider agreement if the provider has violated Medicaid statutes or rules. Ind.Code § 12-15-22-1(3). Any provider who is aggrieved by a decision of the OMPP may obtain an administrative hearing that is conducted in accordance with the AOPA. See Ind.Code § 12-15-22-2; 405 IAC 1-1.5. An ALJ for an OMPP administrative proceeding may be an employee of the agency. 405 IAC 1-1.5-4. A party that disagrees with the decision of an OMPP ALJ may request agency review. 405 IAC 1-1.5-2. Agency review is performed by the Secretary of FSSA or the Secretary’s designee. 405 IAC l-1.5-4(a). A party who disagrees with the Secretary’s final action may file a petition for judicial review pursuant to Indiana Code § 4-21.5. Ind.Code § 12-15-22-3; 405 IAC 1-1.5-2. B. THE PARTIES Legacy is a privately held, Indiana company that operated several long term care facilities in the State. Second Am. Compl. ¶ 5. Bradburn asserts that during the period between 1953 and 1984 Legacy’s, or its predecessors’, record of services was impeccable. Bradburn Decl. ¶ 7. He states that Legacy easily passed inspections by ISDH and the company’s facilities enjoyed a good reputation. Id. Jo Ann Mason worked as a Deputy Attorney General (“DAG”) from July 1995 until approximately December 12, 1997. Mason Decl. ¶ 4. As a DAG, Mason represented the Indiana State Department of Health (“ISDH”) in litigation involving Community Care Centers, Inc. (“CCC”), and its successor, Legacy. Id. On December 12, 1997, Mason was employed at ISDH as Director of the Office of Legal Affairs, and remained in that position until December 1, 2000, when she left employment with the State of Indiana. Id. ¶ 5. From February 1999, through April 2000, Mason also supervised the Office of Policy for ISDH. Id. ¶ 6. The Policy staff was not involved in any enforcement action or survey involving Legacy nor with any other matters directed specifically toward Legacy. Id. ¶ 18. Furthermore, at no time during her employment as a DAG or as the Director of Legal Affairs at ISDH did Mason serve or act in any capacity other than as an attorney. Id. ¶ 17. In those positions, Mason asserts that she exercised professional legal judgment in advising her clients in their dealings with Legacy. Id. On December 29, 1994, Gerald Coleman was employed as the Director of Risk Management for the Regulatory Services division of ISDH. Coleman Decl. ¶ 3. From February 24, 1997, through January 4, 2002, he was the Assistant Commissioner of the Heath Care Regulatory Services division of the ISDH. Id. Coleman assisted as counsel on the 1996 licensure action against CCC of North Vernon, Cause No. C-536-96, while at ISDH. Id. ¶ 7. In March 1986, Suzanne Hornstein was employed in the Long Term Care division as a Program Director 2 who had responsibility for certification. Hornstein Decl. ¶ 5. Hornstein was promoted to Program Director I in November 1986, where she remained until July 1990. Id. On September 24, 1994, she was appointed as the Division Director of Long Term Care at ISDH and is still employed in that capacity. Id. Clara McGee-Vinzant was employed by ISDH in the Intermediate Care Facility for the Mentally Retarded-Developmentally Disabled program (“ICF/MR-DD”) in the division of Long Term Care. McGee Decl. ¶ 3. From March 4, 1994, to April 24, 1994, she was a Medical Surveyor 3. Id. On April 24, 1994, she was promoted to Program Director 2 in the ICF/MR-DD. Id. McGee held that position until she left state employment on June 28, 2002. Id. Karen Powers is currently employed by ISDH, Division of Long Term Care, as a Surveyor Supervisor 5, and was in that position at all times relevant to this case. Powers Decl. ¶ 3. Robert Stark, now deceased, started working for ISDH in November 1992 as a Public Health Nurse Surveyor 3 and still held that position in 1999. Defs/ Exh. 6. Margaret Ellis was employed at ISDH as a Public Health Nurse Surveyor from May 16, 1998 until November 8, 1993, and as a Surveyor Supervisor from November 8, 1993, until August 24, 1994. Ellis Decl. ¶ 3. After leaving employment with ISDH for a period of time, Ellis returned to ISDH as a Surveyor from August 1, 1995, until her retirement on November 30, 2001. Id. On September 14, 1992, Avona Connell was hired by ISDH as a Public Nurse Surveyor in the Division of Long Term Care. A. Connell Decl. ¶ 3. She was in this position at all times relevant to this case. Id. In September 1990, Karen Davis began her employment with FSSA, formerly known as Indiana Department of Public Welfare (“DPW”), as a staff attorney for the FSSA Office of General Counsel. Davis Decl. ¶ 4. In that position, Davis concentrated on issues concerning Medicaid. Id. In March 1993, Davis became the Deputy General Counsel for the same issues. Id. In December 1997, she became General Counsel for FSSA and remained in that position until she left the agency in June 2002. Id. At her deposition of May 31, 2006, Davis recalled defending FSSA in an audit matter involving CCC and Legacy. Pl.’s Exh. 3, at 6. She also admitted in her deposition that she advised FSSA in its refusal to enter into a provider agreement with New Horizon in early 1994. Id. at 7 & 9. On or about April 4, 1997, Bradburn learned that Davis had contacted loan officers at Bank One, Old National Bank, and National City Bank, who handled CCC’s accounts. Bradburn Decl. ¶ 98. C. REGULATORY ACTIONS & LITIGATION BETWEEN LEGACY & STATE REGULATORY AGENCIES DURING THE PERIOD FROM 1988 TO 1996 1. Rate System Litigation In 1988, DPW promulgated a change to the reimbursement rule, called Rule 4.2. Bradburn Decl. ¶ 21. Under the new rate structure, Legacy realized that it could not sustain its business. Id. ¶ 16. It was at this point that Legacy took the opportunity to initiate litigation targeted at getting DPW to follow the enabling statute, as well as its own promulgated rules. Id. Basically, Legacy took issue with DPW’s policy to reimburse existing facilities at a lower rate than newer or newly purchased facilities. Id. ¶ 23. Legacy filed its suit in Delaware Superior Court II based on its CCC facility. Id. ¶21. Before the case was venued out to the Blackford County Superior Court (“Blackford County suit”), the Delaware County Court issued a temporary restraining order that prevented DPW from using its rates for CCC. Id. ¶¶ 21-22. In the Blackford County suit, DPW argued, in part, that Legacy’s management was misusing Medicare and Medicaid funds, therefore, its refusal to pay Legacy’s facilities more was justified. Id. ¶¶ 24-25 Specifically, DPW argued that Legacy’s purchase of an airplane and the salaries of Legacy’s management evidence misuse of funds. Id. However, the Black-ford County court found against DPW and enjoined it from using the Maximum Annual Limit as “the sole determinate of the rate.” Id. ¶ 27. This outcome did not affect DPW’s ability to use the rest of its rate system, which limited expenditures to allow only reasonable costs. Id. After the lawsuit, Legacy claims that DPW devised and implemented a completely different rate system for Legacy’s CCC facility. Id. In addition, DPW appealed the ruling in the Blackford County suit. Id. ¶ 29. Apparently because the issues in the Blackford County suit were similar to those pending before the Indiana Supreme Court in a class action suit called Tioga Pines, the suit was consolidated with the Tioga Pines suit on appeal. Id. On October 29,1993, the Indiana Supreme Court ruled that the rate system was valid, overturning both lower court rulings. Id. Shortly thereafter, Davis, on behalf of DPW, which by then was FSSA, went back to the Blackford County court to seek recoupment of the monies it had paid to Legacy during the period of the injunction. Id. ¶ 30. After seeking clarification from the Supreme Court, the Blackford County court declined FSSA’s request. Id. The Court notes that FSSA settled its claims for recoupment against the Tioga Pines plaintiffs, with terms favorable to the facilities. Id. ¶ 32. Although Legacy challenged that settlement agreement arguing its CCC facility was improperly excluded from it, it lost. Id. ¶ 32 & n. 3. In addition, Legacy was ordered to pay attorneys fees and costs for the Tioga Pines class action litigation. Id. ¶ 32 n. 3. Meanwhile, FSSA filed an equitable restitution suit in Delaware County seeking to recoup the excess monies it felt it had paid Legacy. Id. Legacy fought the recoupment. Id. ¶¶ 30-31. However, it lost on summary judgment at the trial court level. Id. ¶ 34. On summary judgment, FSSA argued that the court should pierce the corporate veil to hold Legacy’s owners, Bradburn’s parents, personally liable for the funds. Id. ¶ 35. FSSA contended that Legacy’s owners had used the corporation to commit a fraud on the agency. Id. The trial court agreed and judgment was entered against Legacy’s owners, which encumbered all the owners’ assets and any funds to be paid by Legacy to the owners. Id. Legacy appealed the recoupment judgment. Id. ¶ 36. On September 5, 2002, the Indiana Court of Appeals reversed the decision of the trial court. Id. 2. New Horizon Conversion from NF to ICF/MR Also beginning in the late 1980s, Legacy attempted to convert its New Horizon facility from an NF to an ICF/MR; however, because of ISDH’s reimbursement rate structure, Legacy’s facility would not survive long enough to pass the certification process, therefore, Legacy sued ISDH in federal court. Id. ¶ 51. In essence, Legacy argued that it should be paid a higher rate during the conversion to an ICF/MR than the NF rate. Id. FSSA argued that it should not be forced to pay Legacy the extra amount because all Legacy had to do was become an ICF/MR, and then it would be entitled to the higher amount. Id. Although Legacy won in the trial court, it lost on appeal. The appellate decision was rendered on June 1, 1992. Lett v. Magnant, 965 F.2d 251 (7th Cir.1992). Legacy contends that what neither the trial court nor the appellate court knew when ruling in that case, was that, while FSSA was arguing that Legacy’s remedy was to get certified as an ICF/MR, ISDH was obstructing conversion of the New Horizon facility from an NF to an ICF/MR and the corresponding certification process. Bradburn Deck ¶ 51. Despite using its best efforts to follow the rules set by ISDH for the conversion, the process took nearly six years, at least one administrative proceeding, and three law suits. Id. Specifically, in the administrative proceeding, ongoing from November 1988 to March 1989, Legacy won the right to make the conversion. Id. Over the next two year period, Legacy contends that ISDH manipulated the process and conversion standards such that it was impossible for Legacy to get the conversion approved. Id. In March 1992, after ISDH had moved to decertify the New Horizon facility completely, Legacy filed for a temporary restraining order to halt the process. Id. Legacy argued that, through their shifting policies and standards, FSSA and ISDH were forcing Legacy to operate two different facilities simultaneously within one facility. Id. The court issued the temporary restraining order and set a hearing for later in the month. Id. However, the parties reached a settlement that (1) dissolved the temporary restraining order, (2) had ISDH/FSSA agree to accept a partial ICF/MR application from the New Horizon facility as agreed to by the agencies before the decertification process began, (3) had Legacy submit a Plan of Correction to the last survey performed by ISDH as if there were distinct NF and ICF/MR parts of the New Horizon facility, (4) had ISDH agree to take no adverse action based on the last survey, and (5) had Legacy agree not to link ISDH with FSSA in future dealings. Id. Legacy continued its efforts to comply with the State standards that Bradburn alleges were constantly changing. Id. But, on September 4, 1992, residents of New Horizon file a class action law suit against the State in which they allege that New Horizon had been denied wrongfully the funds necessary to keep services at an acceptable level. Id. Legacy again resubmitted a conversion application that the State finally approved in February 1993. Id. Documentation on the certification was delayed until June 1993. Id. In addition, despite having been certified by ISDH as an ICF/MR, FSSA refused to recognize New Horizon’s certification and refused to sign a provider agreement for the facility. Id. In October 1993, Legacy filed for an Order of Mandate in the Delaware County court to force FSSA to fulfill its administrative function and issue a provider agreement. Id. On October 13, 1993, the Delaware County court ordered FSSA to sign the provider agreement and the agency complied. Id. New Horizon was retroactively certified to February 12, 1993. Id. 3. Litigation Over Change of Ownership & December 1993 Rate System Change In addition to the administrative and legal struggles to certify New Horizon as an ICF/MR, Legacy and the State agencies also litigated over whether FSSA needed to recognize Legacy as the owner of CCC facilities when Bradburn acquired all of his parents’ business assets in October 1993. Id. ¶ 55. Bradburn contends that the change in ownership caused confusion at FSSA. Id. Legacy filed a lawsuit in Delaware Superior Court to force FSSA to recognize Legacy as a new provider; the parties reached a joint stipulation in the suit on January 8, 1994. Id. & PL’s Exh. 2, Joint Stipulation, Community Care Ctrs. v. Ind. Family & Social Servs., Cause No. 18D02-9307-CP-121 (Jan. 8, 1994). By stipulation, FSSA was required to enter into provider agreements with Legacy. Brad-burn Decl. ¶ 55. Bradburn declares that Davis was involved in this proceeding and appeared visibly angered by the outcome. Id. Also, on December 1, 1993, FSSA published a new rate system. Id. ¶ 57. The two systems that affected Legacy were Rule 12, for ICF/MRs, and Rule 14, for NFs. Id. Bradburn perceived that the main thrust of the new rules was to punish changes in ownership of long term care facilities; the more recent the change in ownership, the more devastating the impact on the business. Id. There was no adjustment period built into these rules as there had been for every major rule change that Bradburn could recollect. Id. The new rules shifted funds between providers. Id. Some facilities received increases, however, Legacy lost money, in part, because of the lack of an adjustment period. Id. Bradburn perceived that “the new rules were designed to drive [Legacy] out of business.” Id. Bradburn states that because the impact of the new rules on Legacy was so great, it was forced to litigate. Id. ¶ 58. Legacy and the FSSA settled the cases that arose from this situation; in the settlement, Legacy agreed to pay approximately $300,000.00 per month for eight months in offsets, starting in June 1996. Id. ¶ 61. D. MEETING BETWEEN FSSA & ISDH REGARDING LEGACY Through discovery associated with administrative proceedings initiated by ISDH against Legacy in late 1996, Legacy discovered that FSSA and ISDH had an informal meeting on November 6, 1996. Id. ¶¶ 67-70; PL’s Exh. 18, at 23-33. However, initially, when Legacy inquired through interrogatories to ISDH about any contact between FSSA and ISDH regarding North Vernon, Coleman, who signed the interrogatory answers on behalf of ISDH, answered, “Not to our knowledge.” Pl.’s Exh. 4. But, during her deposition regarding the issue at the time of the administrative proceedings, Hornstein acknowledged that the answer was incorrect because there was an “informal meeting” that she had forgotten about. Pl.’s Exh. 5, at 36. Hornstein testified that the meeting was about Legacy facilities and that she could not recall such meetings taking place very often. Pl.’s Exh. 18, at 32. According to Hornstein, in addition to herself, the following people attended the meeting: Mason, Karen Filler, from OMPP, Davis, Beverly Craig (“Craig”), and Coleman. Id. at 23-29; PL’s Exh. 172, at 10. According to Craig, Susie Scott was also there. PL’s Exh. 172, at 10. During an agency hearing on November 25, 1996, Craig testified about the meeting. Id. Specifically, Craig testified: Q There was a representative from the Attorney General’s Office, do you recall? A Yes. Q Why would that person be there? A Again, whenever a facility is giving poor care in this state, we want to involve as many people that may be involved in a licensure action. Q How would they — how could they get involved in a licensure action, I mean knowing that it’s a proceeding before the administrative law judge at least initially? A If action is taken and your license is revoked and you continue to operate as an unlicensed facility. Q They could get into enforcement. A Yes. Q Representing the agency. A Right. Id. at 9-10. With respect to the purpose of the meeting, Craig testified as follows: Q ... now, the question is is [sic] this related to your reasons for convening this meeting, the fact that it’s a corporation with multiple facilities having multiple problems? A What’s related to me having these meetings is how residents are going to be cared for. That’s the bottom line, whether they are being cared for and whether there are systems in place to correct the problems that have been identified with specific issues. Q Right. Now, OMPP doesn’t care for any residents or even have anything to do with caring for residents, do they? A But certainly they make financial provisions to have residents cared for. Q They are responsible, aren’t they, for paying for the Medicaid side of it? A Right. Q Which is a big part of it. A (Affirmative nod), [sic] Q Is that why you had them to the meeting? A Well, if facilities are gonna take tax money to care for residents, then we have a duty to make sure that that money also is actually being spent to care for those residents. Q Right. But I’m still — you are not connecting me as to why the people who make the reimbursement payments are invited to a meeting where the real concern is the care of the residents since they don’t really affect that one way or the other. I don’t understand that— A It affects it from the standpoint that the facility is taking money from that agency to care for that — for those residents. Q Right. As is any facility that’s in the Medicaid program; right? A That’s correct. Q But that — -so you invited them there because the facility gets Medicaid money; is that what you are saying? A They are the fiscal intermediary to pay for those Medicaid residents. Q But were you there to see whether the reimbursement was adequate to care for them? I mean what’s the reason for bringing them in on a care issue basically? A I just explained that. Q Because they pay for it. A Because they pay for it. If you pay the bills in your house, you would want to make sure that your house — the bills that you are being paid for [sic], that services are received for the bills that you are being paid for; right? Q So are you saying that you brought them in because you wanted them to see what results their money was producing? Q Is that what you are saying? Q Well, part of the bill’s paid by Medicare; right? A That’s correct. Q So did you invite them to the meeting? A We notified HCFA and I’m sure HCFA notifies them. Q But I mean did you invite them to the meeting on November the 6th, Medicare representatives? A No, I did not. Q Some of the bills are paid by private payors; right? A Would you want us to reconvene another meeting and have the private payors and Medicare? Q I’m just getting to your rationale for the meeting. You said the person who pays the bills ought to be there. I think — in essence I think that’s what you said. A No, you asked me why did I invite Medicaid and I explained why I invited them. Q Because they pay the bills for the Medicaid program. A Uh-huh. And they are a State agency. Id. at 19-22. Craig also testified: Q You would not begin a licensure action, file one of these complaints unless there was some problem that you believe to be there with the care of the residents. A Obviously not. Q Right. And so how did you decide that this particular action warranted a meeting of this type where others may not have? A I just explained that. Q You told me you are concerned with the care of the residents. A We had two facilities that were given — giving terrible care at facilities owned by the same corporation at the very same time. Q And what is the significance of that? * * * Q I’m asking her the next question. What is the significance of it? I’m asking you for your reasoning process. A The significance is to see how many facilities a corporation can own and give poor care in this state at the same time. Q To see how many they can own and give— A Or to make a determination about the care being given through a corporation to two facilities independent of each other at the same time, that both facilities were giving poor care in this state. Q Owned by the same corporation. A Owned by the same corporation at the same time. Q And that’s the reason for having this meeting? A That’s correct. Or one of — that’s part of it. Q A reason. A Yes. Q And what did you expect to accomplish in that meeting about that subject, the sheer fact that one corporation owned two facilities having a problem? A Because it’s not — it’s—I don’t understand what you mean. Q Well, is it your policy — you know, there are corporations that own 50 facilities. There are people in the ICF/MR field who own strings of group homes. There are — it is not unheard of for a corporation to have two facilities battling such issues at the same time, is it? A You asked for my reasoning. I gave it to you. Q Yeah. Is this corporation different from those other corporations? * * * Q Beverly. You ever do this with Beverly? MR. COLEMAN: Do what? Q Have a meeting like this. A To my knowledge Beverly has not come under the same set of facts. Q Meaning two facilities at the same time? A (Affirmative nod), with poor care, such poor care that we are this concerned about the residents. Q Now, what did you expect the representatives of FSSA to contribute to that particular part of the problem when you called them in or did you just— A It was informational sharing of information. [sic] Q Right. And what information did you anticipate getting from them? A Whatever they had to share. Q But what? A I can’t tell you what. I don’t have any idea what they would — what knowledge that they would have that we would not have that would shed light on how your client would better be able to take care of the residents. I don’t have knowledge of that. Q Well, we know what they do. You know their function. They operate the Medicaid reimbursement system. A We have said that. Q Correct. And you know that they have nothing to do with setting standard of care or surveying, the decer-tifying, delicensing, they have nothing to do with that, do they? A I don’t believe they do. Q So the only information they could give you would have to do with the reimbursement system; right? [Objection by MR. COLEMAN] Q What information would you expect to get from them? A Whatever information they had to give that would shed light on why your client is giving poor care in this state. I have no idea what information that would be. Id. at 27-31. With respect to the purpose for this meeting, Davis, during her deposition on May 31, 2006, testified as follows: A. I do not have a specific recollection of the purpose of the meeting. I seem to think that it had to do with the concern that if some of the nursing homes were to have to close because funding wasn’t adequate or whatever, whatever, [sic] they couldn’t care for patients any more, I believe some of the discussion points had to do with planning for that eventuality because it seems to me that one of the reasons we had to come together to discuss that was because that didn’t happen in Indiana very much so it wasn’t as if the State Health Department was, you know, constantly moving patients from closed nursing facilities. So it seemed to me that we were trying to coordinate to make sure that we had adequate plans in place to perhaps move patients if a nursing facility couldn’t continue to operate. Pl.’s Exh. 3, at 18-19. E. THE NORTH VERNON LICENSURE MATTER 1. North Vernon Never Receives Physical Copy of its License At the end of the administrative proceedings described, in part, above, the North Vernon facility was decertified as of October 24, 1996. Id. ¶¶ 100, 103. At the time of the decertification, Hornstein was Division Director of Long Term Care at ISDH. Id.; Hornstein Decl. ¶ 5. Not satisfied with this result, Legacy appealed the decertification to a federal court. Bradburn Decl. ¶¶ 100, 103. In addition, Legacy also obtained a recertifi-cation application. Id. ¶ 103. Citing letters signed by Hornstein, Bradburn contends that Hornstein controlled, in large part, the process for recertification. Id. ¶¶ 103 -06; Pl.’s Exh. 14, Attach. B; Pl.’s Exh. 14, Attach. C; Pl.’s Exh. 14, Attach. D. This recertification process continued through April 2, 1997, when the parties reached a settlement of the litigation in federal court. Bradburn Decl. ¶ 107. Apparently during one of the administrative hearing phases of this process, Richard Nover (“Nover”), ISDH’s attorney at the time, questioned Bradburn about Legacy’s purchase of a plane. Id. ¶ 88; PL’s Exh. 8, at 188. Nover quickly changed tact when he learned that the purchase of a plane had nothing to do with the issues at hand. Id. Bradburn alleges that the only way that Nover could have known to ask about the plane in the manner he did was through Davis and the November 6, 1996, meeting between ISDH and FSSA personnel. Bradburn Deck ¶ 89. Just prior to the meeting between FSSA and ISDH, in mid to late 1996, ISDH initiated proceedings against Legacy’s North Vernon facility for license revocation and decertification. Id. ¶ 67. At the end of the administrative proceedings, the North Vernon facility was decertified as of October 24, 1996. Id. ¶¶ 100, 103. At the time of the decertification, Hornstein was Division Director of Long Term Care at ISDH. Id.; Hornstein Decl. ¶ 5. Not satisfied with this result, Legacy appealed the decertification to a federal court. Bradburn Decl. ¶¶ 100, 103. In addition, Legacy also obtained a recertifi-cation application. Id. ¶ 103. Citing letters signed by Hornstein, Bradburn contends that Hornstein controlled, in large part, the process for recertification. Id. ¶¶ 103 -06; PL’s Exh. 14, Attach. B; PL’s Exh. 14, Attach. C; PL’s Exh. 14, Attach. D. This recertification process continued through April 2, 1997, when the parties reached a settlement of the litigation in federal court. Bradburn Decl. ¶ 107. Apparently during one of the administrative hearing phases of this process, Richard Nover (“Nover”), ISDH’s attorney at the time, questioned Bradburn about Legacy’s purchase of a plane. Id. ¶ 88; Pl.’s Exh. 8, at 188. Nover quickly changed tact when he learned that the purchase of a plane had nothing to do with the issues at hand. Id. Bradburn alleges that the only way that Nover could have known to ask about the plane in the manner he did was through Davis and the November 6, 1996, meeting between ISDH and FSSA personnel. Bradburn Decl. ¶ 89. Recertification of North Vernon commenced after the settlement of litigation in April 1997. Id. ¶¶ 103, 107. Throughout this period, Legacy told its Medicaid residents that they could stay at the North Vernon facility and that Legacy would absorb the costs. Id. ¶ 101. On May 2, 1997, ISDH conducted an initial certification survey and indicated that the North Vernon facility was in substantial compliance. Id. ¶ 108; Pl.’s Exh. 14, Attach. H. The agency indicated to Legacy that the facility had to pass another survey within sixty days. Bradburn Decl. ¶ 108. ISDH conducted the second survey on July 7, 1997, and found the facility in substantial compliance. Id. ¶ 110. The survey report indicated to Legacy that the facility would be readmitted for participation in the Medicaid program effective July 7, 1997. Id.; Pl.’s Exh. 14, Attach. K. Based on its understanding that its license had not been revoked, but it needed only to get certified to be eligible for the Medicaid program, Legacy presumed that this notice indicated that the North Vernon facility was also licensed. Bradburn Decl. ¶ 111. However, Legacy never received a copy of its license. Id. ¶ 106. Bradburn claims that ISDH would not let Legacy apply for Medicaid and Medicare certification of the North Vernon facility at the same time; therefore, after it received Medicaid certification, Legacy applied for Medicare certification for the facility. Id. ¶ 112; PL’s Exh. 14, Attach. M. Legacy submitted its Medicare certification application on August 8, 1997. Brad-burn Decl. ¶ 114. However, on August 21, 1997, Richard Buchanan, Program Director-Provider Services, Division of Long Term Care, ISDH, sent Legacy a letter explaining that some of the documents the agency had given Legacy were outdated and Legacy needed to resubmit the application. Id. ¶ 115; PL’s Exh. 14, Attach. O. Legacy resubmitted the application on September 10, 1997. Bradburn Decl. ¶ 115; PL’s Exh. 14, Attach. P. After ISDH reviewed the application, it sent the application to the Administar Federal (“Administar”), the Medicare fiscal intermediary. Bradburn Decl. ¶ 116. Legacy received a response from the Ad-ministar on October 16, 1997, indicating that Legacy needed to resubmit the entire application, and must provide a copy of its license. Id.; PL’s Exh. 14, Attach. Q. Despite numerous calls to ISDH, Legacy was unable to obtain a copy of its license. Bradburn Decl. ¶¶ 117-18. Legacy resubmitted its Medicare certification application on December 1, 1997, without a copy of its license. Id. ¶ 118. On January 7, 1998, Administar issued Legacy another letter to Legacy asking for another complete resubmission, and a copy of the North Vernon license. Id. ¶ 119. On March 17, 1998, Legacy received its annual “Application for Renewal of Health Facility License,” which it filled out and submitted to ISDH. Id. ¶ 120; PL’s Exh. 14, Attach. U. ISDH processed the application, however, Legacy did not receive a copy of its license. Bradburn Decl. ¶ 120. On March 24, 1999, Legacy received the annual “Application for Renewal of Health Facility License.” Id. ¶ 134. Again, Legacy completed the application and sent it to ISDH. Id.; Pl.’s Exh. 14, Attach. W. Legacy did not receive the license. Brad-burn Decl. ¶ 134. Because Legacy never received the license for North Vernon, the facility was never certified for Medicare. Id. ¶ 135. During the period between 1996 through 1999, Bradburn and Legacy employee Debra Springer (“Springer”) reviewed Legacy’s public files at ISDH. Id. ¶ 136. In the fall of 1999, they reviewed the files specifically looking for a copy of the North Vernon license or “Notice of Order Granting a License.” Id. There was nothing in the public files concerning a license at that time. Id. However, during discovery in the instant case, on April 15, 2004, Defendants submitted supplemental answers to Legacy’s document request. Id. ¶ 137. As part of that disclosure, three licenses for the period between June 1, 1997, and May 31, 2000, that were stamped “VOID,” were obtained. Id.; PL’s Exh. 16. When Bradburn reviewed Legacy’s public files again in 2005, in the file for 1998, Bradburn discovered the normal license renewal documents, including a clean, executed copy of the license. Id. ¶ 138; Pl.’s Exh. 17. When asked about the licenses during her deposition, Hornstein stated that she assumed the licenses were given to Legacy. PL’s Exh. 18, at 51-52. In addition, when asked about the procedure for licen-sures, Hornstein testified that she uses “the law,” found at Indiana Code § 16-28. Id. at 105-06. 2. State Action Regarding North Vernon’s License According to Defendants, with respect to North Vernon’s license, on June 5, 1998, ISDH conducted an annual recertification and licensure survey at North Vernon. Defs.’ Exh. 10, N. Vernon Facility Survey History, at 7. Surveyors found fifteen deficiencies, three of them were at the “harm” level. Id. As required, ISDH conducted a post-certification revisit on August 6, 1998. Id. at 6. Nine deficiencies were found. Id. ISDH conducted a second follow-up survey on September 24, 1998. Id. Six deficiencies were found. Id. at 5. At the third follow-up survey, performed on November 13, 1998, ISDH found three deficiencies. Id. On December 4,1998, ISDH performed a fourth follow-up survey at which seven deficiencies were found. Id. At that point, because North Vernon had been found to be out of compliance with federal regulations for 180 days, federal law required that North Vernon’s Medicaid certification be terminated. Hornstein Deck ¶ 29; 42 CFR § 488.412(a); Defs.’ Exh. 10, generally. North Vernon appealed this decertification action and a stay was granted; the appeal was ultimately dismissed by stipulation of the parties. Defs.’ Exh. 11. On March 24, 1999, ISDH issued North Vernon an Emergency Order for Placement of a Monitor and Ban on Admissions, under Cause No. AEO-21-99. Defs.’ Exh. 12. This Order was based on a complaint survey completed at North Vernon on or about March 22, 1999, that resulted in a finding of immediate jeopardy. Id. In addition to this action, ISDH also filed an action that sought to revoke North Vernon’s license and issued an order regarding North Vernon’s Medicaid certification, under Cause Nos. C-580-99 (license), C-590-99 (license), and M-167-99 (Medicaid). Defs.’ Exhs. 13,14,15. On April 27, 1999, the ALJ entered a recommended order in Cause Nos. AEO-21-99, C-580-99, and M-167-99. Defs.’ Exh. 13. Based on the ALJ’s findings of fact, the ALJ concluded that North Vernon had failed to prevent a resident’s dehydration and sever weight loss, to notify the resident’s doctors of the severity of the weight loss, to monitor adequately the effect of lasix on the resident’s hydration and nutritional status, to prevent the resident’s developing a pressure sore or providing pressure relieving devices for the pressure sore, to groom the resident and to secure two drawers in a medicine cart. Id. The ALJ entered a recommended order that affirmed ISDH’s decision to place a monitor at the facility and to impose a thirty-day ban on admissions. Id. On April 29, 1999, the ALJ in the same causes issued an Omitted Conclusion of Law adding the statement that “Conclusions of Law 1 through 5 constitute immediate jeopardy as that term is defined in the Indiana State Department of Health State Operations Manual.” Id. In the Medicaid decertification case, M-167-99, on June 14, 1999, the ALJ granted Legacy’s motion to stay ISDH action until Findings of Fact, Conclusions of Law, and a Recommendation were issued. Defs.’ Exh. 14. The Order set the matter for a hearing on the merits on July 19, 20, and 21. Id. On August 20, 1999, the ALJ issued a Recommended Order in Cause Nos. AEO-21-99, C580-99, M-167-99, indicating that the ALJ had conducted a hearing on April 1, 8, 12, and 20, 1999, on the Emergency Order for Placement of a Monitor, after which she upheld that Order and found immediate jeopardy at North Vernon. Id. In addition, the August 20, 1999, Order indicated that a stay was issued on the Medicaid issue pending the outcome of a hearing to determine whether Legacy had abated the immediate jeopardy at the facility. Id. Furthermore, the August 20, 1999, Order included the following findings of fact: 29. Petitioner [Legacy] argues that the Division [ISDH] subjected Petitioner to unfair and disparate treatment as compared to other facilities surveyed in recent months. 30. The Administrative Law Judge does not find that the Division treated Petitioner unfairly or disparately. Id. The August 20, 1999, Order concluded that “[t]he particular deficiencies which triggered the immediate jeopardy finding at the jeopardy survey, dehydration and weight loss, were not repeated at the level of immediate jeopardy in the abatement survey.” Id., Concl. of Law No. 5. The Order also concluded that North Vernon’s Medicaid certification should not be terminated at that time, but ordered ISDH to conduct another certification survey 180-days after the date of the abatement survey. Id. On September 13, 1999, the ISDH Appeals Panel entered a Final Order in Cause No. APAEO-21-99, that adopted the ALJ’s Findings of Fact and Conclusions of Law from the April 27, 1999, Recommended Order. Defs.’ Exh. 17. The Appeals Panel ordered the immediate placement of a monitor at North Vernon and a thirty-day ban on admissions. Id. Legacy appealed the Appeals Panel Order to the Marion Superior Court, Cause No. 49D04-0001-MI-99. Defs.’ Exh. 18. The cause is still pending. Id. On September 22, 1999, ISDH filed an Administrative Emergency Order for Placement of a Monitor and Ban on Admissions. Defs.’ Exh. 19. On September 80, 1999, ISDH filed a Verified Petition for Emergency Civil Enforcement in the Marion Superior Court, Cause No. 49D12-9909-CP-1381. Defs.’ Exh. 20. On October 13, 1999, the Marion Superior Court entered an Emergency Order for Civil Enforcement and Order Setting Preliminary Injunction Hearing for October 22,1999. Defs.’ Exh. 21. On October 15, 1999, ISDH issued a Notice of Termination of Placement of Monitor and Ban on New Admissions. Defs.’ Exh. 22. This Notice indicated that as the result of a walk-through survey of North Vernon on October 14, 1999, ISDH decided “the conditions that existed during the survey have been addressed by the facility and the placement of a monitor and ban on new admissions as a result of the September 20, 1999[,] survey is hereby terminated.” Id. On October 20, 1999, ISDH filed a motion to dismiss the civil enforcement action in Marion Superior Court; Legacy sought sanctions contending that Hornstein had misled the court. Defs.’ Exh. 20. By Order dated March 10, 2000, the judge granted the motion to dismiss and denied Legacy’s motion for sanctions. Id. Legacy did not appeal that Order. Hornstein Decl. ¶ 30. With respect to the license, ISDH Cause Nos. C-580-99 and C-590-99 were a consolidation of the two ISDH actions against North Vernon’s license. Defs.’ Exh. 23. At an administrative hearing on September 27, 1999, in Cause Nos. C-580-99, M-167-99, AEO-21-99, and C-590-99, Horn-stein testified that ISDH had found “immediate jeopardy deficiencies [at North Vernon] three times in 1999 indicating that [the] facility cannot maintain compliance, therefore, has harmed residents in the past, and I cannot guarantee that they will not harm residents in the future.” Defs.’ Exh. 16, at 151-52. At the same hearing, Hornstein testified as follows: Q. But you wanted to do it with a new proceeding rather than finishing the old proceeding? A. I wanted to do whatever I can to get this license revoked as this facility cannot maintain compliance and cannot take care of its residents. Q. How long have you felt that way? A. Probably since the beginning of '99 or whenever that survey was that showed immediate jeopardy. Q. So whatever went on in '98 it wasn’t sufficient to provoke you to want to revoke the facility’s license? A. Correct. Q. So why did you open another licen-sure action in April when the March licensure action was pending? A. To assure that this license was revoked. Q. Well, how would that more assure that you’d get it revoked? A. Anything that I can do to get that license revoked needs to be done. Q. Well, and tell me again why you were so dead set on doing anything you can to get this license revoked? A. This facility cannot take care of its residents, it has harmed residents continuously for 1996[sie], and immediate jeopardy level in '96, actual harm level '97, actual harm level '98, immediate jeopardy level times three in '99. PL’s Exh. 118, at 162-64. Later in the hearing on the same matter, Reynolds testified that she and the licensure enforcement team, comprised of herself, Lataisha Horton, Becky Lair, Darlene Jones and Debbie Beers, for sitúa-tions in which immediate jeopardy is an issue, would apply handwritten criteria to determine whether or not to recommend to Hornstein to proceed with a licensure action against a facility. Pl.’s Exh. 119, at 67-80. Reynolds stated that she received the handwritten criteria from Hornstein sometime in 1998. Id. at 67-68; 71, 73, 77. The enforcement team only applies the criteria to survey reports that indicate immediate jeopardy or substandard quality of care issues. Id. at 71. The handwritten sheet reads: LlCENSÜRE ACTION CRITERIA Discussions of Licensure Actions would take place when the following are found on a survey: (proposed) 1.> Immediate Jeopardy 2.> Condition level PCR’s (ICF/MR) 3.> SSQC at PSR (SNF/NF) 4.> Any findings at [G or higher] 2nd revisit 5.> Repeat offense, (within past 2 calendar yrs.[) ] 6.> SSQC at first survey with hx [sic] of SSQC/Poor perform. 7. 180 NON COMPLIANCE AT G OR † The two types of licensure action: —probationary license w/ mandatory consultant or monitor —revoke license Licensure actions are taken because the facility has a systemic breakdown where harm, or the potential to harm, exists. This systemic problem could affect the entire universe, it is not a one-time instance/oecurrence. A licensure can occur at an annual survey, given the above parameters. Pl.’s Exh. 120 (some alteration in original). Bradburn asserts that based on his review of ISDH records and the criteria listed in Hornstein’s list, the following facilities should have been recommended to Hornstein for licensure actions in the 1998-1999 time frame: Bloomington Convalescent; Bethlehem Woods; Riley Healthcare; Westminster, Clarksville; Englewood; Sheffield Mannor; Lynhurst Healthcare. Bradburn Decl. ¶ 610; PL’s Exh. 121. Reynolds testified that she can only recall licensure actions being recommended for Legacy’s North Vernon facility and one other facility, New Day, during that time frame. PL’s Exh. 120, at 65-67. As part of the survey at North Vernon that Ellis conducted on September 20, 1999, she alleged that immediate jeopardy existed because one resident was a danger to others. Bradburn Decl. ¶ 612. While Ellis was in the facility, the resident had a psychological evaluation performed. Id. ¶ 613. The psychologist who performed the evaluation determined that the resident was not a threat to himself or others. Id. Ellis spoke with the psychologist who performed the evaluation and made a notation of the psychologist’s findings in her notes. Id. Bradburn alleges that despite this knowledge, Ellis found immediate jeopardy based on this resident after she received a communication from ISDH’s legal department. Id. During that survey Ellis recalls that she received a document of some type from ISDH’s legal department that was not out of the State Operations Manual, “but it was something that gave guidance during surveys. I don’t know what — I don’t know where, what it was from, but there was a copy of something that they had marked something in there for me for instructions.” PL’s Exh. 35, at 26-32. In contrast, Bradburn contends that his review of ISDH’s records indicate that at another non-Legacy facility surveyed by Ellis when she was faced with a resident with a history of violent behavior toward other residents Ellis alleged that the scope and severity of that facility’s patient was an “H,” which is actual harm, but not immediate jeopardy. Bradburn Decl. ¶¶ 615-16. After the hearing in September and October 1999, the ALJ entered Findings of Fact, Conclusions of Law, and Recommended Order on January 11, 2000. Id. The ALJ recommended that North Vernon’s license be revoked. Id. In addition, as part of her ruling, the ALJ stated: North Vernon argues that the Department did not follow its internal policy regarding what criteria must be met before a license revocation proceeding may be initiated. The evidence shows that the Department followed its internal policy in initiating the second and third license revocation actions in March and April 1999. Id. In the Medicaid decertification action, M-167-99, on February 14, 2000, the ALJ entered Findings of Fact, Conclusions of Law, and Recommended Order. Defs.’ Exh. 24. The ALJ recommended: “North Vernon should be decertified as a Medicaid Provider effective the date this Recommended Order becomes effective.” Id. Legacy appealed all of the above-referenced rulings and in Cause Nos. AP-M-167-99, AP-C580-99, and AP-C-590-99 the Appeals Panel entered a Final Order on August 7, 2000. Defs.’ Exh. 25. The Appeals Panel reversed the ALJ’s decision regarding North Vernon’s decertification, and revised the August 20, 1999, Order that North Vernon’s Medicaid certification not be terminated. Id. Specifically, the Appeals Panel stated: The Conclusion of Law #7: The Conclusion of Law was contrary to the evidence and beyond the scope of the ALJ’s authority as stated in # 5 above. Therefore, the Conclusion was amended to read as follows: “The particular deficiencies which triggered the immediate jeopardy finding at the jeopardy survey, i.e., dehydration and weight loss, were not repeated at the same level at the time of the abatement survey, the combination of the deficiencies concerning untreated, uncovered decubitous ulcers, UTIs, weight loss, problems with incontinence care, a number of NAR residents, lack of follow-up on nutrition recommendations and hydration for NAR residents, and the fact that the MDS’s [minimum date sets], were not current on some residents constitutes immediate jeopardy and the evidence shows that jeopardy was not abated at the time of the abatement survey.” AUGUST 20, 1999 RECOMMENDED ORDER Since it was determined above that immediate jeopardy still existed at the time of the abatement survey, the ALJ had no authority to order continuation of payment for 180-days pursuant to 42 CFR 488.450. While both parties admit that the p