SUBJECT:

Chicago Ridge Nursing Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Pursuant to cross motions for summary judgment, I find that the Centers for Medicare & Medicaid Services (CMS) was authorized to impose a denial of payment for new admissions (DPNA) on Chicago Ridge Nursing Center (Petitioner) from January 27, 2005 until February 24, 2005.

I. Procedural Background

Petitioner is a skilled nursing facility in Illinois that participates in the Medicare and Medicaid programs. On October 27, 2004, the Illinois Department of Public Health (State agency) conducted a complaint survey of Petitioner and found Petitioner out of substantial compliance with Medicare participation requirements. The State agency notified Petitioner on November 8, 2004, that it was proposing a civil monetary penalty (CMP) of $100 per day. CMS Ex. 20, at 1-3. Petitioner was required to submit a Plan of Correction by November 27, 2004. Id. at 1-2.

On December 14, 2004, State agency surveyors conducted another complaint survey of Petitioner and found it out of substantial compliance. CMS Ex. 13, at 1- 4. On December 27, 2004, the State agency, by letter, notified Petitioner it was imposing the DPNA remedy to be effective January 27, 2005. CMS Ex. 20, at 6-8. The State agency also informed Petitioner that it was recommending that CMS terminate the facility's participation in Medicare effective April 27, 2005. Id.

After alternative dispute resolution, on January 18, 2005, the State agency advised Petitioner that one of the two deficiency examples under the single tag cited as a result of the December 14, 2004 survey had been deleted. On February 14, 2005, Petitioner timely requested a hearing for the deficiency cited by the State agency for the December 14, 2004 complaint survey. Meanwhile, the State agency surveyors conducted another complaint survey of Petitioner on January 25, 2005, and determined that Petitioner was not in substantial compliance with federal program requirements at 42 C.F.R. � 483.25. CMS Ex. 1; CMS Ex. 20, at 12-13. One day later, on January 26, 2005, the surveyors conducted a revisit survey of Petitioner to determine whether Petitioner had corrected the deficiency cited at the December 14, 2004 survey and concluded that Petitioner had corrected that deficiency on January 14, 2005. Id. at 34. On February 2, 2005, the State agency notified Petitioner that as a result of the January 25, 2005 survey, it concluded Petitioner had not achieved or maintained substantial compliance with federal participation requirements and that all currently imposed remedies, including the DPNA, would remain in effect. CMS Ex. 20, at 12. On February 24, 2005, the State agency, following a revisit survey, determined that Petitioner's deficiency cited from the January 25, 2005 complaint survey had been corrected and Petitioner was back in substantial compliance effective that date. CMS Ex. 20, at 23.

On March 24, 2005, CMS sent a notice letter to Petitioner restating all of the remedies about which the State agency had previously informed Petitioner. CMS Ex. 20, at 19-21. This letter reiterated that directed-in-service training would be imposed effective January 16, 2005; the DPNA that was imposed effective January 27, 2005, would be discontinued effective February 8, 2005; and the mandatory termination of Petitioner's provider agreement, scheduled to become effective on April 27, 2005, would not be imposed. Id. at 19-20. On April 1, 2005, CMS sent an amended notice to Petitioner advising Petitioner that the DPNA would be discontinued effective February 24, 2005, rather than February 8, 2005 as stated in CMS's March 24 letter. Id. at 20-29. On April 19, 2005, Petitioner requested a hearing regarding CMS's April 15, 2005 letter. ⁽¹⁾ Each of Petitioner's letters of February 14, 2005 and April 19, 2005 was docketed and assigned to me for hearing and decision. I consolidated the cases by Notice dated July 11, 2005.

The parties indicated they both intended to file motions for summary judgment. Therefore, on June 6, 2005, CMS filed its motion, brief (CMS Br.) and its proposed supporting exhibits (CMS Exs. 1-22, including several affidavits). Similarly, Petitioner filed its motion, brief (P. Br.) and an affidavit in support. On July 6, 2005, the parties filed briefs responsive to the other's motion for summary judgment (CMS R. Br.) (P. R. Br.). Absent objection, all proposed exhibits and Petitioner's submitted affidavit are admitted into the record. Based on the exhibits and arguments, I find that CMS is entitled to summary judgment in this matter.

II. Applicable law and regulations

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 penalties 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 participating 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. The regulations in 42 C.F.R. � 488 give CMS a number of different remedies that can be imposed if the facility is not in substantial compliance with Medicare requirements.

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.

The Act and regulations make a hearing before an administrative law judge (ALJ) available to a long-term care facility against whom CMS has made an appealable initial determination. Act, section 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 F.2d. 678 (8^th Cir. 1991). Pursuant to the regulations at 42 C.F.R. Part 498, an appealable initial determination by CMS is one where a finding of noncompliance resulted in the imposition of a remedy specified in � 488.406 of 42 C.F.R. and the level of noncompliance can be appealed if a successful challenge would affect a finding of substandard quality of care that results in the loss of approval for a nurse aide training program.

When a penalty is imposed and appealed, 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 (GEB) (D.N.J. May 13, 1999). Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004). Under Hillman and Batavia, 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.

III. Issues

The first issue in this case is whether summary judgment is appropriate. The second issue is whether CMS had a basis to impose the remedy of DPNA against Petitioner for noncompliance with federal participation requirements.

IV. The Parties' Arguments

A. CMS's arguments

CMS contends that, because Petitioner did not appeal the cited deficiency of 42 C.F.R. � 483.25(j) from the October 27, 2004 survey, the existence of the deficiency is administratively final. Because CMS cited another deficiency (under 42 C.F.R. � 483.12(a)(4)-(6)) during the December 14, 2004 complaint survey and another deficiency of 42 C.F.R. � 483.25 as a result of the January 25, 2005 survey, CMS argues that the DPNA was appropriately activated on January 27, 2005. CMS Br. at 1-2. CMS adds that regardless of my findings regarding the December 14, 2004 deficiency, the January 25 survey's cited deficiency is sufficient for a mandatory DPNA after three months of non-compliance. CMS submitted evidence to prove the January 25 survey deficiency. Id. at 10-18.

B. Petitioner's arguments

Petitioner argues that CMS cannot show a deficiency for the December 14, 2004 survey. Therefore, according to Petitioner, it was substantially compliant on December 14, 2004, and the mandatory DPNA imposed on January 27, 2005 was unauthorized because Petitioner had not been substantially non-compliant with federal requirements for three months. As part of this argument, Petitioner proposes that it had not failed to comply with 42 C.F.R. � 483.12(a) requiring notification of a family member or legal representative if a resident is moved from a facility because the regulation is written in the alternative and Petitioner notified a resident's family member rather than the resident's legal representative upon the resident's transfer to the hospital for emergency care. P. Br. at 3-6. Petitioner also contends that CMS should not have amended the end of the DPNA from February 8, 2005 to February 24, 2005. Id. at 11.

V. Findings of Fact and Conclusions of Law

I make findings below in separate lettered and numbered paragraphs. I set forth my rationale after each finding.

A. Summary judgment is appropriate in this case.

Summary judgment is appropriate when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004). The party moving for summary judgment bears the initial burden of showing the basis for its motion and identifying the portions of the record that it believes demonstrate the absence of a genuine factual dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If a moving party carries its initial burden, the non-moving party must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56e). That is, the non-moving party must act affirmatively by tendering evidence of specific facts showing that a dispute exists. Denials and assertions in pleadings or briefs are not sufficient to overcome a well-supported motion.

Summary judgment is appropriate in this case because even if I were to find that Petitioner had no deficiencies from the December 14, 2004 survey, CMS still had the authority to impose the DPNA as a result of the January 25, 2005 survey. Moreover, Petitioner has proffered no evidence to raise as a material fact its compliance on February 8, 2005, rather than February 24, 2005, or that the first notice letter indicating compliance on February 8, 2005, was anything other than a mistake.

B. Petitioner failed to rebut CMS's prima facie findings of substantial noncompliance found during the October 27, 2004 and January 25, 2005 surveys.

1. The administrative finding of Petitioner's substantial non-compliance found during the survey of October 27, 2004 is final.

As Petitioner concedes, "[t]he October 27 initial survey is not appealed or at issue in this case." P. Br. at 2. With respect to the deficiency finding on January 25, 2005, although Petitioner sent a letter to the Departmental Appeals Board and the letter was docketed as a request for hearing, the letter was likely insufficient to be a request for hearing regarding the January 25, 2005 survey. Birchwood Manor Nursing Center, DAB No. 1669 (1998), aff'd, Birchwood Manor Nursing Center v. DHHS, No. 98-60695 (5^th Cir. 1999).

Pursuant to 42 C.F.R. � 498.40(b) a request for hearing must: (1) identify the specific issues, and the findings of fact and conclusions of law with which the Petitioner disagrees; and (2) specify the basis for contending that the findings and conclusions are incorrect. Petitioner's letter of April 19, 2005, responding to CMS's notice letter of April 15, 2005, regarding the January 25 survey is relatively brief. The letter states, inter alia, that:

To the extent that any further request for a hearing may be required under or in accordance with CMS's April 15, 2005, Notice, a hearing is hereby requested on behalf of Chicago Ridge on (and to contest) (I) the Notice, and (ii) the denial of payment for new admissions. Since the facility was in substantial compliance on and as of December 14, 2004, no denial of payments for new admissions (effective by its terms subsequent to that date) or other penalties can or should be assessed for the survey cycle starting October 17, 2004.

Petitioner does no more than barely mention in its April 19, 2005 letter or in its brief supporting summary judgment or in its response to CMS's motion for summary judgment that it contests the actual finding of deficiency made at the January 25, 2005 survey. Rather, in its response brief, Petitioner states "[t]his is a case about a single (alleged) deficiency involving a single resident (regarding notice when the resident was sent out to the hospital)." P. R. Br. at 1. Petitioner is referring to the deficiency alleged after the December 14, 2004 survey. The only suggestion that Petitioner does not agree with the deficiency found during the January 25 survey is contained in a footnote. P. R. Br. at 9.

Petitioner states in the footnote:

Not to belabor the facts of this [January 25] survey, as CMS does, but so that this tribunal will have a fair picture of what was involved, petitioner respectfully calls attention [to] its IDR request for this survey.

Petitioner refers to CMS Ex. 7. I reviewed CMS Ex. 7. CMS Ex. 7 does not sufficiently overcome Petitioner's failure to specifically appeal the January 25 deficiency finding as required by 42 C.F.R. � 498.40(b). I could exercise my discretion under 42 C.F.R. � 498.70 and dismiss Petitioner's letter of April 19, 2005, as a failure to timely file a request a hearing. Alden-Princeton Rehabilitation & Health Care Center, Inc. DAB No. 1709 (1999). I could find Petitioner was substantially noncompliant with Medicare participation requirements as found during the survey of January 25, 2005 for the simple reason that the survey was not adequately appealed. I do not make this finding because of the general disfavor toward denying appeal rights (Fairview Nursing Plaza, Inc., DAB No. 1715 (2000)). Moreover, CMS has not raised the issue of Petitioner's failure to address the January 25, 2005 survey results.

2. Petitioner has not proffered evidence sufficient to overcome CMS's evidence or to raise material facts in dispute regarding noncompliance found as a result of the complaint survey from January 25, 2005.

I have reviewed the evidence and determined that Petitioner has failed to proffer anything that would suggest material facts are in dispute with respect to the January 25 survey; that is, to counter CMS's exposition of the reasons for the deficiency finding as contained in CMS's motion for summary judgment. As stated above, if a moving party carries its initial burden, the non-moving party must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

Although Petitioner claims to have been in compliance at the time of the December 14, 2004 revisit survey, an incident occurred on or about December 11, 2004 that was discovered during the January 25, 2005 complaint survey showing that Petitioner was not in compliance. This incident involves Resident 2, a 75 year old female who had lived at Petitioner's facility for many years. Resident 2 was diagnosed with multiple sclerosis and diabetes with a neurogenic bladder. She had a nephrostomy tube and a history of complications from the tube. CMS Ex. 5, at 12; and CMS 6, at 6. Resident 2 was totally dependent on staff for bathing, bed mobility, dressing and grooming. CMS Ex. 6, at 2.

A nephrostomy tube is used to drain directly from the kidney without going through the person's bladder. CMS Ex. 8 (Dorland's Illustrated Medical Dictionary, 27^th Edition, 1988, at 1108). Installing a nephrostomy tube requires puncturing the collecting system of the kidney with a needle under flouroscopic, ultrasound or CT scan guidance. Id. The needle passes through the skin, subcutaneous tissue and muscle layers to reach the kidney. A guide-wire is passed through the needle into the kidney. Dilators are used to establish and enlarge the nephrostomy tract and a tube is placed inside the tract. Id.

Resident 2 had an indwelling nephrostomy tube for many years and had a long history of complications. CMS Ex. 7, at 1; CMS Ex. 3, at 10. The tube was necessary to provide a separate drainage system for urine from Resident 2's right kidney. She also had a Foley catheter to drain urine from her left kidney. CMS Ex. 11, at 10.

Urosepsis is septic poisoning from the absorption and decomposition of urinary substances in one's tissue. CMS Ex. 8, at 3. Resident 2 was at a high risk for urosepsis due to the repeated need for her to have her nephrostomy tube reinserted. CMS Ex. 6, at 3. Her nephrostomy tube had come out many times over the years, requiring reinsertion. CMS Ex. 7, at 1; CMS Ex. 3, at 9. Generally, when the tube came out, Petitioner would send Resident 2 to the hospital and she would be admitted until the tube was reinserted or the tube was reinserted in the emergency room. CMS Ex. 2, at 13.

Apparently, Resident 2's nephrostomy tube often came out when she was being repositioned in her bed by staff. Her tube drainage bag was hanging from her bedframe. CMS Ex. 2, at 1, 12; CMS Ex. 1, at 2-4. If the drainage bag was not removed from the bedframe during repositioning, the nephrostomy tube would become taut and would dislodge from Resident 2's back. CMS Ex. 11, at � 14.

A facility nurse aide reported that on Saturday, December 11, 2004, she started to care for Resident 2 and Resident 2 told her she was wet. The nurse aide saw that the leaking was coming from Resident 2's tube in her back. The nurse aide reported her finding to the nurse. CMS Ex. 2. When the nurse went to change Resident 2's nephrostomy tube dressing on this day, the tube was already out of Resident 2. CMS Ex. 2, at 11. The nurse called Resident 2's physician and also called the hospital emergency room. The hospital advised her that this was not an emergency and that Resident 2's physician would have to call and direct admit Resident 2 to the hospital or to schedule reinsertion at the outpatient radiology center. Id., CMS Ex. 1, at 3. The physician at the hospital gave the facility nurse a phone number for the hospital's interventional radiology unit. The nurse called the radiology center and left a voice mail message because the unit did not answer the phone. The nurse called Resident 2's physician again and the physician said it would be satisfactory to wait until Monday to call the outpatient center to have the tube reinserted. CMS Ex. 1, at 3.

On Monday, December 13, 2004, Petitioner's nurse called the hospital radiology center again. CMS Ex. 2, at 12. She was told to call back the next morning, December 14, 2004. Because she worked a double shift, the nurse called back on December 13, in the evening and left a message on the answering machine. Although it seems as though Petitioner's nurse was trying to get Resident 2's tube reinserted, she did not call Resident 2's physician to inform him that she had been unable to make an appointment. Rather, she waited for the radiology center to call her back. Moreover, the facility did not keep a record of Resident 2's vital signs while Resident 2's nephrostomy tube was out. CMS Ex. 11, at 18.

On December 15, 2004, Dr. David Warner at the radiology center reinserted Resident 2's tube around 10:00 a.m. CMS Ex. 7. CMS points out that Dr. Warner is Board Certified in Diagnostic Radiology and holds a Certificate of Added Qualification in Interventional Radiology. CMS Ex. 12, at � 1. Dr. Warner submitted an affidavit in which he stated that it was difficult to reinsert the tube and that, during the time Resident 2's tube was outside her, urine had collected in her kidney. Id. Dr. Warner found her urine was cloudy gray and yellow and he diagnosed a condition known as pyonephrosis, a potentially dangerous condition. Id.

Dr. Warner also stated that, based on the condition of Resident 2, he was so concerned for her future safety that he took a step that he cannot recall ever taking for any patient in the past. He wrote a letter to the nursing home administrator on the same day as the procedure, December 15, 2004. CMS Ex. 12. He advised the facility of Resident 2's need to have any future nephrostomy tube reinsertion requirements taken care of within 24 hours by an appropriate physician. Dr. Warner characterized Resident 2's condition as being easily preventable, and one that is important to prevent, further indicating that a life threatening infection would be easy to prevent if one attended to it in a timely fashion. Id.

When the surveyors learned of this incident during the survey of January 25, 2005, the State agency cited Petitioner for a deficiency under 42 C.F.R. � 483.25 which requires that each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable, physical, mental and psychological well-being, in accordance with the resident's comprehensive assessment and plan of care. CMS has alleged that Petitioner violated this federal program requirement by failing to obtain timely medical treatment for Resident 2 and by failing to provide care for her in a way that would prevent the multiple episodes of her nephrostomy tube being pulled out during care. Even if Petitioner had adequately contested this cited deficiency in its request for hearing and briefing, Petitioner has not proffered any evidence from which I could find a potential material question of fact that Petitioner had actually met this federal requirement contrary to CMS's allegations. Even if one could say that Petitioner's staff had tried to arrange for reinsertion of the tube, it is clear Petitioner had been inattentive to finding a way to avoid the necessity for multiple reinsertions of Resident 2's nephrostomy tube. Dr. Warner clearly averred that waiting longer than 24 hours was not the standard of care and that there was a potential for more than minimal harm in doing so. CMS Ex. 12.

I find, therefore, that Petitioner was not in substantial compliance with participation requirements on January 25, 2005.

C. As found during the December 14, 2004 survey, Petitioner technically failed to meet the transfer notice requirements found at 42 C.F.R. � 483.12.

Resident 3, aged 42 years, was diagnosed with bipolar disorder, manic depression and paraplegia. He had been in Petitioner's facility since May 9, 2003. CMS Ex. 15, at 15-17. On October 29, 2004, Resident 3 complained about numbness and loss of sensation to his left hand and right leg. Id. at 16. The facility contacted Resident 3's physician who phoned in an order to send Resident 3 to the hospital for a medical evaluation. Id. The facility promptly sent Resident 3 to the hospital and he was admitted with a diagnosis of bilateral acute DVT (deep vein thrombosis). Id.

The regulations define transfer and discharge. Transfer and discharge mean moving a resident to a bed outside of the certified facility whether that bed is in the same physical plant or not. 42 C.F.R. � 483.12(a)(1). By use of the connective "and," the regulatory definition of transfer and discharge suggests that for applicability of the notice requirements in the regulation, a transfer must actually include a discharge and not a hospitalization. ⁽²⁾ Throughout the remainder of the regulation, however, the word transfer is separated by the disjunctive "or," indicating that any movement of a resident to a bed outside of the facility, e.g., a hospital, invokes the notice requirements contained in the regulation. The regulation requires that:

Before a facility transfers or discharges a resident, the facility must (I) notify the resident and, if known, a family member or legal representative of the resident of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand. (ii) record the reasons in the resident's clinical record; and (iii) include in the notice the items described in paragraph (a)(6) of this section.

42 C.F.R. � 483.12(a)(4).

The regulation also provides that, although 30 day advance notice is generally required for transfer, notice may be given as soon as practicable before transfer if an immediate transfer is required by the resident's urgent medical needs, as was the case with Resident 3. 42 C.F.R. � 483.12 (a)(5).

Petitioner's Admission and Discharge Summary for Resident 3 lists Lisa William (Stepney), state guardian, as his "responsible party" and notes her address and phone number. CMS Ex. 15, at 15. The same form lists Michael Papadopoles as the first emergency contact. Id. Mr. Papadopoles is also an Illinois state guardian. CMS Ex. 18, at � 7. The same form lists Resident 3's father as the second of two emergency contacts. CMS Ex. 15, at 15. Resident 3's father's phone number is listed but not his address. The evidence is contradictory about whether one of Petitioner's nurses actually saw Resident 3's father on the day Resident 3 was sent to the hospital and told him at that time about the transfer or whether the nurse phoned Resident 3's father. Id. at 8. Neither party disputes, however, that Resident 3's state guardian was not notified of his transfer and that only oral notification was given to Resident 3's father.

Ms. Stepney, Resident 3's legal guardian, complained to the State agency that Petitioner had not notified her of Resident 3's hospitalization and initiated the State agency's complaint survey of Petitioner. CMS Ex. 14, at 1. Ms. Stepney learned of Resident 3's hospitalization when his sister called the legal guardian and asked why she was not notified. CMS Ex. 15, at 14.

Petitioner argues that the regulation clearly states that the facility can notify either a resident's family member OR legal representative in case of transfer. According to Petitioner, the regulation does not specify that the legal representative must be contacted if the resident has a legal representative. CMS, on the other hand, argues that the rationale of the regulation is circumvented if it is not read in context. A resident, such as Resident 3 in this case, who is sent to a hospital may need someone who can make medical decisions for him or her. CMS R. Br. at 5. Therefore, the actual legal representative must be made aware of the transfer in case medical decisions must be made for the resident.

I agree with Petitioner that CMS's submitted materials indicate that Resident 3's father was more involved in his care than was the state guardian. CMS Ex. 15, at 4-8. Moreover, there is no indication that Resident 3, in general, could not make his needs and desires known. Id. at 18. Nonetheless, I agree with CMS that the regulation makes no sense if the regulation actually allowed notification to a family member when a resident had a legal guardian other than that family member. Such an interpretation could raise privacy issues in addition to the concerns expressed by CMS. The whole purpose of the Act and regulations is the protection of Medicare and Medicaid beneficiaries. There is no reason for the transfer notification provisions in the regulations if the notified person cannot provide protection and advocacy for the resident. If a resident actually has a legal representative, that is the person who should be notified.

CMS has only recently indicated that Petitioner failed to meet the requirement of 42 C.F.R. � 483.12 because it provided no written notice of Resident 3's hospitalization to anyone. Although Medicare/Medicaid participants are expected to understand the requirements of the regulations, Petitioner's failure to provide written notice is not mentioned in the Statement of Deficiencies. CMS Ex. 13. CMS's late contention about oral versus written notification also undercuts its persuasive argument that notification to a legal representative is required so that a vulnerable resident has decision-makers readily available. If Petitioner had written to Resident 3's legal representative, the notification would not have reached the representative until well into Resident 3's hospitalization.

Petitioner also argues that even if it technically failed to meet the requirements of 42 C.F.R. � 483.12, there was no potential for more than minimal harm. P. R. Br. at 8. CMS assigned a scope and severity of "D" to this violation, the very lowest scope and severity that still comprises substantial noncompliance. 42 C.F.R. � 488.301. My ability to review the scope and severity of cited deficiencies is limited. 42 C.F.R. � 498.3(13). I must, however, assess whether the failure to provide notification to the legal guardian in this case presented the potential for more than minimal harm. There was no actual harm in this case but actual harm is not required to find a facility substantially noncompliant. Harmony Court, DAB No. 1968 (2005). State surveyor, Wanda Higgenbotham, R.N., submitted an affidavit for CMS and stated that Resident 3's medical condition was dangerous and that if a serious complication had arisen and a competent person was needed to make a decision on Resident 3's behalf, Resident 3 could have suffered serious harm. CMS Ex. 17, at � 12. Petitioner proffered no evidence in response. I find that Petitioner's noncompliance presented the potential for more than minimal harm and, thus, Petitioner was substantially noncompliant as found during the December 14, 2004 complaint survey.

D. Alternatively, and more importantly, because Petitioner was noncompliant on October 27, 2004, and also on January 25, 2005, whether or not Petitioner had a deficiency found during the revisit survey on December 14, 2004 is irrelevant to the imposition of the DPNA.

Petitioner's facility was subject to three complaint surveys, i.e., October 27, 2004, December 14, 2004 and January 25, 2005. Following the October 27 survey, CMS advised Petitioner that a mandatory DPNA would be imposed on January 27, 2005 if

Petitioner had not reached substantial compliance by that time. There was no intervening standard survey from October 27, 2004 to January 25, 2005 which may have cut off CMS's right to impose a penalty for past non-compliance. See North Ridge Care Center, DAB No. 1857 (2002). As the Board stated in North Ridge,

We note that treating a certificate of compliance as having prospectively binding effect would conflict with the regulations in Part 488 that govern survey frequency. These regulations provide that a certification of noncompliance may supersede a previous certification of compliance, and that a facility may be surveyed as frequently as necessary to verify its compliance with participation requirements.

Even if CMS had revisited Petitioner's facility on December 14, 2004, and determined that Petitioner was in substantial compliance, CMS could have returned for the complaint survey on January 25, 2005, and determined that Petitioner was not in substantial compliance on that date and imposed the DPNA. ⁽³⁾ Petitioner had been notified that a mandatory DPNA would be imposed on January 27, 2005 if it were not in substantial compliance on that date. CMS determined it was not. What happened between October 27, 2004 and January 27, 2005, is not relevant. Castle Pine Health & Rehabilitation Center, DAB CR1321 (2005). The fact is that Petitioner was not in compliance on January 25, 2005, and the 90 day mandatory DPNA went into effect.

E. Petitioner attained substantial compliance effective February 24, 2005.

Payments to a participating facility resume on the date that the facility achieves substantial compliance as indicated by a revisit or written credible evidence acceptable to CMS. 42 C.F.R. � 488.17(d). Petitioner proffered no evidence that its compliance date was actually February 8, 2005, as stated in CMS's original notice letter of March 24, 2005. Although Petitioner questions why the date was changed, there is nothing in the record to suggest that the date of February 8, 2005, was anything but a State agency policy error as stated by CMS. CMS R. Br. at 10. The resurvey date corresponds with the effective date for compliance of February 24, 2005. Generally, compliance needs to be determined by an on-site survey. Cross Creek Care Center, DAB No. 1665 (1998). CMS need not show Petitioner's noncompliance between January 27 and February 24. Rather, Petitioner has the burden of showing compliance during that time period. Barn Hill Care Center, DAB No. 1848 (2002); Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002). Petitioner has made no attempt to do so. Assertions and arguments alone are insufficient to defeat a motion for summary judgment.

VI. Conclusion

Petitioner was substantially noncompliant with Medicare participation requirements for ninety days and CMS was authorized to impose a DPNA from January 27, 2004 until February 24, 2005.

Anne E. Blair

Administrative Law Judge

1. On April 15, 2005, CMS notified Petitioner that in its amended March 24, 2005 letter it had inadvertently failed to provide the facility with the right to appeal actions taken as a result of the January 25, 2005 survey and was providing those rights in the April 15, 2005 letter. CMS Ex. 20, at 27-29.

2. See Petitioner's argument that section 483.12(a) does not apply if a resident is transferred to the hospital for a temporary emergency. P. R. Br., at 5-6.

3. Moreover, CMS could have determined on January 25, 2005, that Petitioner was not in compliance on December 14, 2004, because the incident causing non-compliance during the January 25 survey actually occurred on December 11-15, 2004, CMS could have imposed a DPNA in any regard after the January 25 complaint survey, albeit with a 15 day notice required. 42 C.F.R. � 488.402(f)(4).