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# Redbanks Colonial Terrace, DAB CR6002 (2021)

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## Department of Health and Human Services     DEPARTMENTAL APPEALS BOARD          Civil Remedies Division        

## Redbanks Colonial Terrace,(CCN: 185291),Petitioner,

## v.

## Centers for Medicare & Medicaid Services

### Docket No. C-21-691Decision No. CR6002December 23, 2021

### DECISION

Found:

Petitioner violated 42 C.F.R. § 483.80(g)(1)-(2) (Tag F884) from March 29, 2021 to April 4, 2021, and from April 5 to April 11, 2021.

The Centers for Medicare & Medicaid Services’ (CMS) determination to impose the $1,000 and $1,500 civil monetary penalties (CMPs) pursuant to 42 C.F.R. § 488.447(a)(1) and (2) be and is hereby AFFIRMED.

### I. JURISDICTION

I have jurisdiction to hear this case pursuant to my appointment by the Secretary of Health and Human Services and my authority under the Administrative Procedure Act (5 U.S.C. §§ 554-556; 5 U.S.C.A. § 3106; 5 C.F.R. §§ 930.201 et seq.; Social Security Act (Act) § 1128A(c)(2); 42 C.F.R. § 488.408(g); 42 C.F.R. § 498.3(b)(13)).1

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### II. PROCEDURAL BACKGROUND

Petitioner, Redbanks Colonial Terrace, is a long-term care facility (LTCF). On April 5, 2021, CMS determined Petitioner was not in compliance with 42 C.F.R. § 483.80(g)(1)-(2) (Tag F884) for failing to report complete COVID-19 data to the Centers for Disease Control and Prevention’s (CDC) National Health Safety Network (NHSN) reporting system. CMS Ex. 3 at 1. CMS imposed a CMP of $1,000 for one day. CMS Ex. 3 at 1. On April 12, 2021, CMS again determined Petitioner was not in compliance with 42 C.F.R. § 483.80(g)(1)-(2) and imposed a $1,500 CMP for one day. CMS Ex. 4 at 1-2.

On April 21, 2021, Petitioner filed a request for an Administrative Law Judge (ALJ) hearing (Pet’r Req. for Hearing). CMS timely filed its prehearing brief (CMS Br.) and 16 proposed exhibits (CMS Exs. 1-16). Petitioner did not file its prehearing exchange by the deadline and the ALJ previously assigned to this case issued an order to show cause on September 7, 2021.2 On September 14, 2021, Petitioner submitted a statement indicating it was content with the information uploaded and requested a decision based upon the documentation previously submitted. See Docket Entry # 7 in the Departmental Appeals Board (DAB) Electronic Filing System (E-File). The previous ALJ discharged the order to show cause on September 16, 2021.

Following the discharge of the show cause order, the previous ALJ permitted Petitioner to supplement the record with the documents it mistakenly believed it had already uploaded to the electronic file. Petitioner filed an 82-page document consisting of email correspondence (P. Ex. 1).

### III. ADMISSION OF EVIDENCE

CMS filed CMS Exs. 1-16. Petitioner filed P. Ex. 1. Neither party objected to the other party’s exhibits. All exhibits are admitted into evidence.

### IV. HEARING

The Standing Prehearing Order of the previous ALJ states a hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party requests to cross-examine in accordance with this order. Standing Prehearing Order ¶ 10. The parties did not offer any written direct testimony. Therefore, I decide this case based on the written record. The matter is now ready for decision.

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### V. BURDEN OF PROOF

CMS must make a prima facie showing that Petitioner failed to comply substantially with federal participation requirements.  If this occurs, Petitioner must prove substantial compliance by a preponderance of the evidence in order to rebut CMS’s showing and to prevail.  *Hillman Rehab. Ctr.*, DAB No. 1611 at 8 (1997), *aff’d sub nom. Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs.*, No. Civ. A 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904 (2004), *aff’d sub nom. Batavia Nursing & Convalescent Ctr. v. Thompson*, 129 F. App’x 181 (6th Cir. 2005); *Emerald Oaks*, DAB No. 1800 (2001); *Cross Creek Health Care Ctr.*, DAB No. 1665 (1998).

### VI. LAW

42 C.F.R. pt. 483, subpt. B.42 C.F.R. § 488.447

### VII. ISSUES

Did Petitioner fail to meet the requirement set out in 42 C.F.R. § 483.80(g)(1)-(2) (Tag F884) to report weekly COVID-19 facility data to the CDC’s NHSN system?

If Petitioner was not in substantial compliance with 42 C.F.R. § 483.80(g)(1)-(2) (Tag F884), whether the CMP amount is reasonable.

### VIII. ALLEGATIONS

                            - CMS’s Recitation of Facts

Petitioner, Redbanks Colonial Terrace, is a LTCF. Based on record reviews conducted on April 5, 2021 and April 12, 2021, CMS determined that Petitioner failed to meet the requirement set out in 42 C.F.R. § 483.80(g) to report weekly COVID-19 facility data to the CDC. CMS Ex. 1 at 1; CMS Ex. 2 at 2. Based on Petitioner’s noncompliance with § 483.80(g), CMS imposed a CMP of $1,000 for failure to report COVID-19 data for the week ending on April 4, 2021, and a $1,500 CMP for failure to report for the week ending on April 11, 2021. CMS Ex. 3 at 2; CMS Ex. 4 at 2. CMS argues that because sufficient evidence established a basis for imposing the CMPs, CMS’s enforcement actions should be upheld in their entirety. CMS Br. at 5–8.
                            - Petitioner’s Recitation of Facts

Petitioner’s appeal stated:

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I am writing this letter of appeal for the F884 tags that were issued on 4/5/2021 and 4/12/2021. Our DON was the person reporting to NHSN on a weekly basis. She was terminated unexpectedly and in turn her back up, the ADON walked out. This left the facility with no one able to report. I tried from to [sic] get access from March 10, 2021 until April 12, 2021. Upon receipt of the credentials for reporting on April 12, 2021 I began reporting for the missed weeks and am up to date now. I have the emails back and forth with NHSN as proof of the difficulty getting credentialed and facility access.

Pet’r Req. for Hearing.

### IX. SUMMARY OF EVIDENCE

                            - CMS’s Case

On Monday, April 5, 2021, CMS issued a Statement of Deficiencies Form 2567, which found Petitioner to be in noncompliance under Tag F884 at the scope and severity level “F,” in violation of § 483.80(g)(1)–(2), for failing to report complete information about COVID-19 to the CDC during the week of March 29, 2021 to April 4, 2021.3 CMS Ex. 1 at 1. On Monday, April 12, 2021, CMS again issued a Form 2567 finding Petitioner to be in noncompliance under the same tag and at the same scope and severity level based on Petitioner’s failure to submit the required data during the week of April 5, 2021 to April 11, 2021. CMS Ex. 2 at 1. Specifically, when it reviewed the CDC’s NHSN data on Monday, April 5, and Monday, April 12, CMS found that Petitioner had failed to submit COVID-19 data for the weeks ending April 4 and April 11. CMS Ex. 16 at 1–3. Further, although CMS did not take any enforcement action for this deficient practice, Petitioner also did not enter data for the week ending March 28, 2021. CMS Ex. 16 at 2–4 (spreadsheets showing that Petitioner’s most recent data submission was for the week ending March 21, 2021).

In a letter dated April 6, 2021, CMS imposed a CMP of $1,000 for one day, April 5, 2021. CMS Ex. 3 at 2. The next week, in a letter dated April 12, 2021, CMS imposed a CMP of $1,500 for one day, April 12, 2021. CMS Ex. 4 at 2. Both letters informed Petitioner of how to dispute the CMPs via an Informal Independent Dispute Resolution (IIDR) process and the administrative appeal process. CMS Ex. 3 at 3–5; CMS Ex. 4 at 3–5.

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Petitioner did not request an IIDR.  On April 21, 2021, Petitioner timely filed its request for a hearing before an ALJ.  Pet’r Req. for Hearing.  In the hearing request, Petitioner contends that the facility was unable to timely report COVID-19 data because of staff turnover.  *Id*.  Specifically, the Director of Nursing (DON), who had been submitting the facility’s COVID-19 data, was “terminated unexpectedly,” and the back-up reporter “walked out.”  *Id*.  Thus, according to Petitioner, “no one [was] able to report” until the Administrator “recei[ved] [] the credentials for reporting on April 12, 2021.”  *Id*.
                            - Petitioner’s Case

Petitioner asserts that its DON was reporting data to the NHSN until she was unexpectedly terminated.  Pet’r Req. for Hearing.  Further, the ADON also “walked out.”  *Id*.  Petitioner’s Administrator tried to gain access to the NHSN system from March 10 through April 12, 2021, and had “difficult[ies] getting credentialed.”  *Id*.  Once she gained access on April 12, 2021, she reported all previous data that had not been reported.  *Id*. 

Petitioner’s submission of email correspondence shows that the Administrator reached out to the NHSN on March 10, 2021 (P. Ex. 1 at 39). In a March 31, 2021 email to the NHSN, the Administrator states that when she logs in, she “receiv[es] the no facilities assigned error.” P. Ex. 1 at 41. On April 2, 2021, the Administrator emailed NHSN again, stating that she had “emailed numerous times” and “ha[d] an account and a GRID card; however, the account did not have a facility assigned.” P. Ex. 1 at 43. On April 6, 2021, the Administrator again emailed the NHSN and stated that she was “getting a facility error message because the account setup for me was not assigned to the facility.” P. Ex. 1 at 1. Petitioner was not assigned as the new Administrator of the NHSN account until April 12, 2021. P. Ex. 1 at 9.

### X. ANALYSIS OF EVIDENCE

The Act establishes requirements for participation in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  *See* 42 U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488.  To participate in the Medicare program, an LTCF must maintain substantial compliance with program participation requirements.  In order to be in substantial compliance, an LTCF’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  *Id*.

Effective September 2, 2020, the Secretary promulgated a regulation granting CMS authority to impose CMPs specifically for violations of 42 C.F.R. § 483.80(g)(1) and (2). 85 Fed. Reg. 54,820, 54,823-54,825, 54,873 (Sep. 2, 2020). 42 C.F.R. § 483.80(g) was added to the regulations on May 8, 2020. 85 Fed. Reg. 27,550, 27,601 (May 8, 2020).

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Pursuant to 42 C.F.R. § 483.80(g), a nursing home must electronically report COVID-19 information weekly in a format specified by the Secretary.  42 C.F.R. § 483.80(g)(1).  A facility must report at least weekly to the CDC’s NHSN.  42 C.F.R. § 483.80(g)(2). 

CMS may impose a CMP for noncompliance with the reporting requirements of 42 C.F.R. § 483.80(g)(1) and (2).  42 C.F.R. § 488.447.  CMS is authorized to impose a CMP of a minimum of $1,000 for the first violation.  42 C.F.R. § 488.447(a)(1).  CMS is authorized to increase the CMP by $500 for each subsequent occurrence but may not exceed the amount authorized by 42 C.F.R. § 488.408(d)(1)(iii), i.e. the top of the lower range of authorized CMPs as adjusted annually.  42 C.F.R. § 488.447(a)(2); 45 C.F.R. pt. 102.

Pursuant to § 483.80(g), CMS properly found Petitioner to be in noncompliance with Tag F884 at the scope and severity level “F” for failing to report required COVID-19 data for the weeks ending April 4 and April 11, 2021.  As noted above, § 483.80(g) requires LTCFs, like Petitioner, to electronically report COVID-19 data “no less than weekly”—i.e., at least once every seven days—to the CDC via NHSN.  42 C.F.R. § 483.80(g)(2); CMS Ex. 5 at 3.  However, the CDC data from the March 29 to April 4 and April 5 to April 11 reporting periods show that Petitioner failed to submit the required data for those weeks.  CMS Ex. 16 at 2–3.  The data file posted on CMS’s public website also demonstrates that Petitioner did not submit COVID-19 data in NHSN for the weeks ending on April 4 and April 11.  In the column labeled “Submitted Data,” there is an “N” in the rows for the weeks ending on April 4 and April 11.  CMS Ex. 16 at 4.  This evidence shows that Petitioner did not submit data for those weeks, as is required by § 483.80(g), and thus is sufficient to support CMS’s enforcement actions.

Petitioner does not contend that it timely submitted the required data.  It also does not contend that the CMP amount is incorrect.  Instead, Petitioner argues that it was unable to report the data because the DON was “terminated unexpectedly” and the back-up reporter “walked out,” leaving no one to report until the Administrator—who had “difficult[ies] getting credentialed”—completed the NHSN enrollment process on April 12.  Pet’r Req. for Hearing at 1.  However, the staffing issues that Petitioner experienced and the time it took for the Administrator to enroll in NHSN do not excuse Petitioner’s failure to timely submit the required data.  Significantly, § 483.80(g) contains no exception to the reporting requirements or provision excusing a facility’s participation in the reporting program based on extenuating circumstances such as staff turnover.

CMS argues Petitioner failed to assign sufficient back-up users to NHSN who could have reported data for the relevant reporting periods.  CMS Br. at 7-8.  Petitioner failed to provide evidence or otherwise allege that it reassigned the role of the NHSN Facility Administrator prior to the staff departures, or that it timely submitted the reassignment request form to the CDC.  *See* Pet’r Req. for Hearing.  As a result of Petitioner’s failure to follow proper protocols for ensuring continued access to NHSN, Petitioner did not 

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timely report COVID-19 data, in violation of § 483.80(g). Accordingly, CMS’s noncompliance findings were appropriate.

### XI. CIVIL MONEY PENALTIES

Finally, CMS argues the CMPs were proper.  The data sent to CMS by the CDC showed that Petitioner did not report for the weeks ending April 4 and April 11, 2021, and Petitioner does not challenge these factual findings.  Therefore, CMS asserts it was appropriate for CMS to impose the $1,000 and $1,500 CMPs, respectively, pursuant to § 488.447(a)(1) and (2).  CMS Br. at 8.

To evaluate whether a CMP is reasonable, I apply the factors in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  The absence of culpability is not a mitigating factor.  The factors listed in § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies. 

Petitioner did not contest the amount of penalty imposed by CMS.  The Departmental Appeals Board (DAB) has held that ALJs and appellate panels of the DAB “properly presume[] that CMS considered the regulatory factors and that those factors support the amount imposed.”  *Pinecrest Nursing & Rehab. Ctr.*, DAB No. 2446 at 23 (2012) (underscore in original).  The burden is on Petitioner “‘to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.’”  *Id*. (quoting *Oaks of Mid City Nursing & Rehab. Ctr.*, DAB No. 2375 at 26-27 (2011)).  Further, unless a facility presents evidence and argument that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  *Coquina Ctr.*, DAB No. 1860 at 32 (2002).  Therefore, I could sustain the CMP amounts because Petitioner did not explicitly challenge the amount of the CMPs and did not contend that a particular regulatory factor does not support the CMP amounts.   

However, even applying the regulatory factors, I find that the CMPs are reasonable.  Petitioner’s noncompliance was serious and Petitioner was culpable for the noncompliance.  As stated in CMS’s May 6, 2020 memorandum to State Survey Agency Directors, reporting data is “necessary to ensure the appropriate tracking, response, and mitigation of the spread and impact of COVID-19 on our most vulnerable citizens, personnel who care for them, and the general public.”  CMS Ex. 5 at 5.  By failing to consistently report the required data, Petitioner did not provide information that could have been used to monitor the status of COVID-19 infections in the facility and surrounding area and aid CMS’s response to the COVID-19 pandemic.  Petitioner failed 

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to report from March 29, 2021 to April 4, 2021, and from April 5 to 11, 2021. This could have led to unchecked infections and ongoing spread of COVID-19 amongst an at-risk population. Therefore, the seriousness of the noncompliance supports the CMPs.

### XII. CONCLUSION

The undisputed facts show that Petitioner*, REDBANKS COLONIAL TERRACE (CCN 185291)*failed to meet the requirement set out in 42 C.F.R. § 483.80(g) to report weekly COVID-19 facility data to the CDC’s NHSN system.  Based on Petitioner’s noncompliance with § 483.80(g), CMS imposed a CMP of $1,000 for failure to report COVID-19 data for the week ending on April 4, 2021, and a $1,500 CMP for failure to report for the week ending on April 11, 2021.

WHEREFORE, evidence having read and considered, it be and is hereby ORDERED as follows:
                            - Petitioner was not in substantial compliance with 42 C.F.R. § 483.80(g)(1)-(2) (Tag F884); and
                            - CMS’s determination to impose the $1,000 and $1,500 CMPs pursuant to 42 C.F.R. § 488.447(a)(1) and (2) be and is hereby AFFIRMED.

Richard C. GoodwinAdministrative Law Judge

                                              1. See also Butz v. Economou, 438 U.S. 478 at 513, 98 S.Ct. 2894, 57 L. Ed. 2d 895 (1978); Marshall v. Jerrico, Inc., 446 U.S. 238 (1980); Fed. Mar. Comm’n v. S. C. State Ports Auth., 535 U.S. 743, 744 (2002). 
                            - back to note 1
                                                  2. This case was transferred to me on September 30, 2021. 
                            - back to note 2
                                                  3. A scope and severity level of “F” indicates a deficiency that presents no actual harm, but has the potential for more than minimal harm that does not amount to immediate jeopardy. 
                            - back to note 3