Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Moran Manor, |
DATE: October 15, 2001 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-00-710
Decision No. CR824 |
DECISION | |
DECISION I grant the Centers for Medicare & Medicaid Services'
(CMS's) Motion to Dismiss because I find that Petitioner, Moran Manor,
does not have a right to a hearing because it failed to challenge any
of the findings from the April, 2000 survey and no initial determination
was issued regarding the May, 1999 survey. I. Background Employees of the Maryland Department of Health and Mental
Hygiene (State agency) visited Petitioner on April 16 - 19 and 24, 2000
to determine if the facility was in compliance with federal requirements
for nursing homes participating in the Medicare and/or Medicaid programs.
The surveyors cited Petitioner at the "G" level of non-compliance. The State agency reported these findings to Petitioner
by letter dated May 2, 2000. In that letter, the State agency informed
Petitioner that it was recommending an immediate imposition of a civil
money penalty (CMP) based on actual harm deficiencies cited during the
April, 2000 survey and an actual harm deficiency that was cited on a previous
complaint survey conducted on May 28, 1999, without an "opportunity to
correct" prior to the imposition of remedies. The State agency recommended
the immediate imposition of a CMP of $400 per day beginning April 24,
2000. The State agency letter stated that the imposition of the CMP arose
from the deficiency cited on May 28, 1999, which involved the death of
a resident by choking, and the deficiency cited during the annual survey
that concluded on April 24, 2000, which involved the hospitalization of
a resident due to dehydration. On May 31, 2000, CMS informed Petitioner that it concurred
with the State's recommendation of a CMP based on the April, 2000 survey,
but reduced it from $400 to $200 for each day that the facility was not
in substantial compliance with participation requirements. The May 31,
2000 CMS letter did not mention the May, 1999 survey but did mention that
it had considered the facility's past history including repeat deficiencies,
its degree of culpability and its financial condition in determining the
amount of the CMP imposed. The facility remained out of compliance until
May 31, 2000. Petitioner filed a request for hearing on July 21, 2000
to contest the imposition of sanction issued by CMS on May 31, 2000. However,
Petitioner asserted that the sanction in question was imposed as a result
of the survey conducted in May, 1999. Petitioner claims, at the time of
the May, 1999 survey, it did not have available the medical information
required to defend itself regarding the deficiencies identified as a result
of that survey. Specifically, the State agency had identified a "G" level
deficiency during the May 28, 1999 survey, but the facility submitted
a timely and acceptable plan of correction to the State agency. The State
agency never recommended and CMS never imposed a CMP based on the findings
of noncompliance identified during the May 28, 1999 complaint survey. On January 10, 2001, the parties filed a joint statement
of undisputed facts to be briefed for summary disposition, which I have
marked as ALJ Ex. 1. CMS submitted its brief on February 28, 2001 seeking
summary disposition, or, in the alternative, dismissal. CMS offered five
exhibits (CMS Exs. 1 - 5). Petitioner offered no documentary evidence.
I have admitted into evidence CMS Exs. 1 - 5 and ALJ Ex. 1. It is my decision that dismissal of this action is appropriate
inasmuch as Petitioner has not contested the "G" level deficiency cited
during the April, 2000 survey, and no initial determination was issued
regarding the May, 1999 survey. Consequently, as to the latter survey,
Petitioner received no initial determination which is subject to the hearing
procedures of 42 C.F.R. Part 498. Inasmuch as Petitioner is only challenging
the May, 1999 deficiencies, and it does not have a right to a hearing
on that matter, dismissal of this action is appropriate pursuant to 42
C.F.R. � 498.70(b). II. Applicable Law The Social Security Act (Act) sets forth requirements
for nursing facility participation in the Medicare and Medicaid programs,
and authorizes the Secretary of Health and Human Services (Secretary)
to promulgate regulations implementing the statutory provisions. Act,
sections 1819 and 1919. Generally, States conduct surveys and certify facility
compliance with program participation requirements. Act, sections 1819(g)
and (h). If the State finds that a facility is not in compliance, it may
recommend that the Secretary impose a remedy. It is up to the Secretary,
through CMS, to impose a remedy. One of the remedies that may be imposed
is a CMP. 42 C.F.R � 488.404(c) permits, but does not require, CMS to
consider, among other factors, the facility's prior history of noncompliance
in choosing a remedy within a remedy category. 42 C.F.R � 488.438(f),
along with 42 C.F.R � 488.404, identify factors that must be considered
in setting the amount of a CMP within a particular range. The lower range
of a CMP is from $50 - $3,000 per day. These factors include a facility's
prior history of non-compliance. A facility that is dissatisfied with CMS's determination to impose a remedy may seek administrative review to the extent permitted by the regulations and the Act. A facility may seek review of an "initial determination" defined in 42 C.F.R. � 498.3. Under the regulations, an affected party must file its request in writing within 60 days from receipt of the initial determination unless that period is extended. 42 C.F.R. � 498.40(a). The regulations further require that the request for hearing must: (1) identify the specific issues, and the findings of fact and conclusions of law with which the affected party disagrees; and (2) specify the basis for contending that the findings and conclusions are incorrect. 42 C.F.R � 498.40(b)(1) and (2). On motion of a party or on his or her own motion, the
Administrative Law Judge (ALJ) may dismiss a hearing request where the
party requesting the hearing does not have a right to a hearing. 42 C.F.R.
� 498.70(b). III. Issue The sole issue before me is whether Petitioner has a right
to a hearing as a matter of law, based on its challenge of the "G" level
deficiency cited by the State agency during the May 28, 1999 survey.
IV. Findings of Fact and Conclusions of Law 1. The State agency found that Petitioner was not in substantial
compliance with federal requirements for participation in the Medicare
and Medicaid programs based on a complaint survey which ended on May 28,
1999, that identified a "G" level deficiency. 2. Petitioner submitted a timely Plan of Correction as to the deficiencies cited in the May, 1999 survey and no remedies were recommended by the State agency nor imposed by CMS. 3. The State agency notified Petitioner on May 2, 2000,
that a standard survey conducted from April 16 - 19 and 24, 2000, found
a "G" level deficiency pursuant to 42 C.F.R. � 483.25(j), and recommended
a $400 per day CMP. CMS Ex. 2. In view of the "actual harm" cited during
that survey as well as in the April, 1999 survey, the facility did not
have an "opportunity to correct." Id. 4. By letter dated May 31, 2000, CMS informed Petitioner
that it concurred with the State agency's recommendation based on the
April, 2000 survey, and was imposing a CMP of $200 per day effective April
24, 2000. CMS Ex. 3. 5. In its request for hearing filed on July 21, 2000,
Petitioner did not contest any of the deficiency findings from the April,
2000 survey. ALJ Ex. 1 at 4. 6. 42 C.F.R. Part 498 specifies the appeals procedures
for determinations that affect providers' participation in the Medicare
and Medicaid programs. 7. Unless a disputed administrative action taken by CMS
is among those listed in 42 C.F.R. � 498.3(b), the action cannot be considered
an "initial determination" by CMS and is not subject to the appeals process
of 42 C.F.R. Part 498. 42 C.F.R. � 498.3(d). 8. There is no legal authority for adjudication of a facility's
objections to a State agency's survey findings where CMS did not make
an initial determination in accordance with 42 C.F.R. � 498.3(b). 9. Petitioner is not entitled to a hearing pursuant to
42 C.F.R. Part 498. 10. Dismissal of Petitioner's hearing request is appropriate
under 42 C.F.R. � 498.70(b). V. Discussion Petitioner does not dispute that it did not challenge
any of the deficiency findings pursuant to the April, 2000 survey. ALJ
Ex. 1 at 4. It asserts, however, that it has a right to challenge the
"findings of noncompliance leading to the imposition of enforcement actions."
P. Br. at 5. In this regard, Petitioner relies on the language of CMS's
notice of imposition of remedies dated May 31, 2000 (CMS Ex. 3) and the
State agency's letter dated May 2, 2000 (CMS Ex. 2). Petitioner argues
that the State recommendation with which CMS concurred
was based on "both" surveys,(1) and the
penalty was determined in contemplation of the facility's compliance history.
Consequently, argues Petitioner, since CMS imposed a penalty based on
two surveys, Petitioner has the right to challenge the findings of either.
P. Br. at 4 - 5. In support of its position, Petitioner places heavy reliance in the case of Fort Tryon Nursing Home, DAB CR425 (1996). In that case the ALJ dismissed the request for hearing because no remedies were imposed against Petitioner. In what appears to be dicta, the ALJ stated:
Id. at 7, 8 (italics added). From the language in Fort Tryon Petitioner reasons
that the facility has the right to challenge the May, 1999 findings because
these "led to the imposition of an enforcement action." P. Br. at 5. I
disagree. Neither the regulatory criteria nor previous Departmental Appeals
Board (DAB) decisions provide sustenance to Petitioner's position. The
regulation is clear that the May, 1999 survey did not "result in" the
imposition of a remedy. An initial determination is not "created" by the
mere use of a prior deficiency, from which no remedies flowed, to assess
the penalty for a subsequent violation. In Fort Tryon, the ALJ stated that "Petitioner
would have a right to a hearing from the finding of noncompliance . .
. whenever HCFA determines to impose a remedy based on that finding."
Fort Tryon at 7. That is not what happened here.
In the case at hand, CMS imposed a remedy based on a finding of deficiency
in April, 2000. Petitioner appears to enmesh the basis for the imposition
of the remedy with the criteria for arriving at the appropriate remedy.
In the case at issue, the basis for the imposition of a remedy is clearly
a finding of actual harm at the "G" level in April, 2000. However, the
ingredients that comprise the rationale for the remedy imposed derive
from a consideration of the facility's past history including repeat deficiencies,
the degree of culpability, and financial condition. See CMS Ex.
3, at 2. Inasmuch as CMS and the State must consider the factors that
affect the amount of the penalty imposed, it is not permitted to use this
regulatory requirement to invalidate the definition of what constitutes
an initial determination under 42 C.F.R. � 498.3(b). It is also clear that in this case CMS has not "determined to impose a remedy based on the finding of a new deficiency coupled with Petitioner's past compliance record, including the finding of deficiency" on which Petitioner bases its request for hearing. CMS did not impose a remedy on Petitioner for its prior
deficiency, but instead assessed a penalty as a repeat violator for
the latest deficiency on the basis of the facility's propensity for
noncompliance.(2) Id. Therefore,
although the imposition of the CMP arose from "both surveys," the foundation
upon which such imposition rests is the "actual harm" deficiency cited
during the April, 2000 survey. In conclusion, I find that there is no provision in the
regulations for the remedy sought by Petitioner. The regulations make
a hearing available exclusively for those CMS actions that constitute
"initial determinations" listed in 42 C.F.R. � 498.3(b). The Fort Tryon
decision does not stand for the proposition advanced by Petitioner. The
line of DAB cases concerning an ALJ's reviewing authority pursuant to
42 C.F.R, Subpart A, Part 498, has consistently held that a deficiency
finding that does not result in the imposition of remedies is not
an initial determination. St. Lawrence of Dimondale, DAB CR684
(2000). By order dated May 8, 2001, in the exercise of my discretion,
and to better serve the ends of justice, I granted Petitioner 10 days
in which to amend its request for hearing. In response, Petitioner submitted
a Revised Request for Hearing dated May 22, 2001. Although Petitioner
made glancing reference to the April,2000 survey and the May, 2000 imposition
of CMP in its Revised Request for Hearing, it reiterated its challenge
to the May, 1999 survey. Specifically, Petitioner continued to take issue
with the finding that the emergency procedures carried out by the facility
staff were in anyway related to the resident's subsequent death. In neither
its original nor its revised hearing request did Petitioner challenge
the findings from the April, 2000 survey. In view of Petitioner's failure to challenge any of the
findings from the April, 2000 survey, and inasmuch as it does not have
a right to a hearing regarding the May, 1999 survey findings, dismissal
of the request for hearing is in order. VI. Conclusion For the reasons stated above, I grant CMS's Motion to Dismiss. Accordingly, this case, including all issues Petitioner has attempted to raise, is hereby dismissed pursuant to 42 C.F.R. � 498.70(b). |
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JUDGE | |
Jose A. Anglada Administrative Law Judge
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FOOTNOTES | |
1. The April, 1999 survey as well as the May, 2000 survey. 2. I note, however, that in spite of CMS's consideration of Petitioner's past compliance record of repeat deficiencies, it reduced the recommended CMP from $400 per day to $200 per day. That penalty is at the low end of permissible amounts for a CMP imposed for deficiencies at the less than immediate jeopardy level. | |