Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Alpine Living Center, |
DATE: May 7, 2002 |
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Centers for Medicare & Medicaid
Services
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Docket No. C-01-594 and C-01-812
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DECISION | |
DECISION I enter disposition in favor
of Petitioner in these cases pursuant to section 1128A(c)(4)(F) of the
Social Security Act (Act) because the Centers for Medicare & Medicaid
Services (CMS) failed to comply with my orders in both cases. Indeed,
counsel for CMS has not replied to any of the communications that I have
sent to her. Under the circumstances it is not possible for me to provide
the parties with a speedy or fair hearing. I. Background In each case Petitioner
is the same facility, Alpine Living Center. Petitioner is a long term
care facility that is located in Thornton, Colorado. It
participates in the Medicare program and is subject to regulations at
42 C.F.R. Part 483 that govern the participation in Medicare of nursing
facilities and skilled nursing facilities. In
each case CMS determined to impose remedies against Petitioner pursuant
to section 1819 of the Act and regulations at 42 C.F.R. Part 488 because
CMS determined that Petitioner failed to comply substantially with regulations
at 42 C.F.R. Part 483. The remedies that CMS determined to impose in each
case include civil money penalties. Counsel for Petitioner and
for CMS are the same in each case. In each case I issued an
initial order to the parties. In the case docketed as C-01-594, the Order
was dated April 24, 2001. It directed the parties to file, within 60 days
of the date of the Order, reports in which they stated among other things
their readiness to proceed to hearing. Petitioner complied with this initial
Order and filed a report of readiness to proceed to hearing. On April
27, 2001, counsel for CMS filed a notice of appearance in the case. However,
she did not file a readiness report. In the case docketed as C-01-812,
on July 17, 2001, I sent the same initial Order to the parties as I had
sent in C-01-594. On October 10, 2001 Petitioner complied timely with
my Order. I received nothing from counsel for CMS. In an Order dated October
22, 2001, which I issued in the case that is docketed as C-01-812, I ordered
CMS to show cause why the case should not be remanded in light of CMS's
failure to comply with my initial Order. Counsel for CMS did not respond
to that Order. Thus, the history of these
two cases is that CMS failed to respond to any of the orders that I have
issued. My various attempts to communicate with counsel for CMS have been
met with total silence. II. Issues, findings
of fact and conclusions of law
The issues in this case
are whether:
I make findings of fact
and conclusions of law (Findings) to support my decision in this case.
I set forth each Finding below as a separate heading. I discuss each Finding
in detail.
In these cases counsel for
CMS failed to comply with any of the pre-hearing orders that I issued.
In fact, counsel for CMS has not communicated with me at all, not even
to respond to the Order to Show Cause that I sent. I find that counsel's
multiple failures to communicate are a basis for me to impose sanctions
against CMS pursuant to section 1128A(c)(4) of the Act. Both of these cases involve
CMS's determinations to impose civil money penalties against Petitioner.
CMS's statutory authority to impose such penalties is contained in section
1819(h)(2)(B)(ii) of the Act. It provides that the Secretary of this Department
may impose penalties against a facility that fails to comply substantially
with a participation requirement. It provides further that such a penalty
shall be imposed and collected in the same manner as applies to a penalty
that is imposed pursuant to section 1128A of the Act, which governs civil
money penalties imposed by the Department's Inspector General as remedies
for claims for items or services that are false, fraudulent, or not provided
as claimed. Specifically, it states that:
Id. Section 1128A contains procedures
to govern hearings in cases involving the imposition of civil money penalties.
These procedures include sanctions that an administrative law judge may
impose against a party or an attorney for failing to comply with an order
or procedure, failing to defend an action, or other misconduct as would
interfere with the speedy, orderly, or fair conduct of a hearing. Act,
section 1128A(c)(4). I find that sanctions against
CMS are appropriate here because counsel for CMS has not complied with
any of the orders that I have issued. Her noncompliance has made it impossible
for me to move this case towards resolution.
Section 1128A(c)(4) of the
Act specifies a range of sanctions that I may impose for failure of counsel
or a party to comply with my orders in a case. Such sanctions "shall reasonably
relate to the severity and nature of the failure or misconduct." They
include, among other things:prohibiting a party from introducing certain
evidence or otherwise supporting a particular claim or defense; striking
pleadings in whole or in part; staying the proceedings; dismissing a case;
entering a default judgment against a party; and, ordering a party or
an attorney to pay attorneys' fees and costs. Act, section 1128A(c)(4)(A)
- (F). I have considered carefully
the question of what is appropriate here and I conclude that the only
appropriate sanction is for me to enter disposition in favor of Petitioner
in each of these cases. Entering a disposition in favor of Petitioner
is the same as entering a "default judgment" against CMS. I have no choice but to
enter disposition in favor of Petitioner. Any other sanction against CMS
would be meaningless in light of its counsel's failure to respond to my
orders or even to communicate with me. For example, there is no point
in my barring CMS from presenting evidence as to a given issue in view
of its counsel's failure to communicate with me at all. There is no likelihood
that counsel would even appear to present evidence were I to schedule
a hearing for that purpose. A consequence of my entering
disposition in favor of Petitioner, is that CMS has no basis in either
of these cases to impose or to enforce any remedies against Petitioner.
I am troubled by this outcome. It is of considerable concern to me that
Petitioner may have been deficient in complying with participation requirements.
If that is so, remedies certainly would have been appropriate as a means
of inducing future compliance from Petitioner. However, I cannot in good
conscience continue cases if counsel for CMS is not going to make even
minimal efforts to prosecute them, to comply with my orders, or even to
communicate with me. Thus, I conclude that I have no choice but to enter
disposition in favor of Petitioner in each of these cases despite my reservations
about doing so. Finally I stress that I have not concluded that "dismissal" of CMS's cases are appropriate based on grounds of abandonment. See 42 C.F.R. C.F.R. � 498.69. That regulation permits only dismissal of a hearing request where a party requesting a hearing abandons its case. Here, CMS is not the party that requested hearings. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge
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