Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
City of Oaks Health & Rehab Center, )
(CCN: 34-5513) ) Date: April 21, 2008
)
Petitioner, )
)
-Vv.- ) Docket No. C-06-527
) Decision No. CR1772
Centers for Medicare & Medicaid )
Services. )
)
DECISION

I sustain the determination of the Centers for Medicare and Medicaid Services (CMS) to
impose a civil money penalty (CMP) against Petitioner, City of Oaks Health & Rehab
Center (Petitioner or facility), for failure to comply substantially with federal
requirements governing participation of long-term care facilities in Medicare and State
Medicaid programs. For the reasons that follow, I uphold the CMP of $4000 per day
from February 5, 2006 through March 31, 2006, based on a finding of immediate
jeopardy, and the CMP of $500 per day for the period from April 1, 2006 through May 1,
2006. Additionally, I uphold the prohibition on Petitioner conducting a nurse aide
training or competency evaluation program (NATCEP) for a two-year period.

I. Background

This case is before me pursuant to a request for hearing filed by Petitioner dated June 19,
2006. Petitioner is a long-term care provider located in Raleigh, North Carolina.

By letter dated March 29, 2006, CMS informed Petitioner that based on a complaint
investigation completed on March 12, 2006, by the North Carolina State Survey Agency
(State Agency), it was imposing selected remedies due to Petitioner’s failure to be in
substantial compliance with the applicable federal requirements for long-term care
facilities. The remedies were based on immediate jeopardy deficiencies under Tags F157,
F327, and F490. The letter informed Petitioner that CMS was imposing the following
remedies:
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. CMP of $3050 per day effective February 16, 2006, and continuing through March
11, 2006.

. CMP of $100 per day effective March 12, 2006, and continuing until the facility
achieved substantial compliance.

. Denial of Payment for New Admissions (DPNA), effective June 12, 2006.'
. Termination of the provider agreement, effective September 12, 2006.”

By letter dated April 19, 2006, CMS informed Petitioner that based on a complaint
investigation completed on April 1, 2006, by the State Survey Agency, more conditions in
Petitioner’s facility were found to be out of substantial compliance. CMS informed
Petitioner that as a result of the April 1, 2006 survey, it was imposing additional remedies
due to Petitioner’s failure to be in substantial compliance with the applicable federal
requirements for long-term care facilities. The remedies were based on immediate
jeopardy deficiencies under Tags F157, F309, and F490. The letter informed Petitioner
that CMS was imposing the following remedies:

. CMP of $4000 per day effective February 5, 2006, and continuing through March
31, 2006.

. CMP of $500 per day effective April 1, 2006, and continuing until the facility
achieved substantial compliance.

. DPNA, effective June 12, 2006.
. Termination of the provider agreement, effective September 12, 2006.

On June 19, 2007, Petitioner submitted its “Waiver of Oral Hearing.” By Order dated
June 20, 2007, I vacated the July 10, 2007 hearing date scheduled for this case and
instructed the parties to submit witness declarations and proposed exhibits by July 20,
2007. CMS offered 31 exhibits (Exs.), identified as CMS Exs. 1-31. I receive CMS Exs.
1-31 into evidence without objection. Petitioner offered 23 exhibits, identified as P. Exs.
1-23. I receive P. Exs. 1-23 into evidence without objection. In my June 20, 2007 Order,

' The DPNA was no longer in effect as of May 2, 2006.

> Petitioner came into substantial compliance prior to the effective date of the
termination of the provider agreement, and therefore, the termination was not effectuated.
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I also instructed the parties to submit opening briefs (CMS Br. and P. Br.) and response
briefs (CMS Response and P. Response). The parties subsequently, submitted their
respective briefs, as directed.

Based on the documentary evidence, the arguments of the parties, and the applicable law
and regulations, I find that Petitioner was not in substantial compliance, at the immediate
jeopardy level, on the dates determined by the State Agency and CMS. I further find that
CMS was authorized to impose a CMP of $4000 per day for noncompliance from
February 5, 2006 through March 31, 2006, a $500 per day CMP for non compliance from
April 1, 2006 through May 1, 2006, and a prohibition on Petitioner conducting a
NATCEP for a two-year period.

If. 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 requirements for participation by a long-term care facility are found at sections
819 and 1919 of the Act, and at 42 C.F.R. Parts 483 and 488.

Sections 1819 and 1919 of the Act invest in the Secretary authority to impose CMPs and
DPNAs against a long-term care facility for failure to comply substantially with
participation requirements.

Facilities that participate in Medicare may be surveyed on behalf of CMS by state survey
agencies in order to determine whether the facilities are complying with federal
participation requirements. 42 C.F.R. §§ 488.10-488.28; 42 C.F.R. §§ 488.300 - 488.335.
Pursuant to 42 C.F.R. Part 488, CMS may impose either a per day CMP or a per instance
CMP against a long-term care facility when a state survey agency concludes that the
facility is not complying substantially with federal participation requirements. 42 C.F.R.
§§ 488.406, 488.408, and 488.430. The penalty may start accruing as early as the date
that the facility was first out of compliance until the date substantial compliance is
achieved or the provider agreement is terminated. 42 C.F.R. § 488.440.

The regulations specify that a per day CMP that is imposed against a facility will fall into
one of two broad ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper range of
CMPs, of from $3050 per day to $10,000 per day, is reserved for deficiencies that
constitute immediate jeopardy to a facility’s residents, and in some circumstances, for
repeated deficiencies. 42 C.F.R. §§ 488.438(a)(1), (d)(2). The lower range of CMPs, of
from $50 per day to $3000 per day, is reserved for deficiencies that do not constitute
immediate jeopardy, but either cause actual harm to residents, or cause no actual harm,
but have the potential for causing more than minimal harm. 42 C.F.R.

§ 488.438(a)(1)(ii).
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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.

“Immediate jeopardy” is defined to mean:
[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.

42 C.F.R. § 488.301.

In determining the amount of the CMP, the following factors, specified at 42 C.F.R.
§ 488.438(f), must be considered:

the facility’s history of noncompliance, including repeated deficiencies;
the facility’s financial condition;

the seriousness of the deficiencies as set forth at 42 C.F.R. § 488.404; and
the facility’s degree of culpability.

Rene

The Act and regulations make a hearing before an administrative law judge (ALJ)
available to a long-term care facility against whom CMS has determined to impose a
CMP. But the scope of such hearings is limited to whether an initial determination made
by CMS is correct. Act, section 1128A(c)(2); 42 C.F.R. §§ 488.408(g), 498.3(b)(13). A
facility may challenge the scope and severity level of noncompliance found by CMS only
if a successful challenge would affect the range of CMP amounts that could be collected
by CMS or impact upon the facility’s nurse aide training program. 42 C.F.R.

§§ 498.3(b)(14) and (d)(10)(1). Pursuant to 42 C.F.R. §§ 483.151(b)(2) and (e)(1), a state
may not approve and must withdraw any prior approval of a NATCEP offered by a long-
term care facility that: (1) has been subject to an extended or partial extended survey
under sections 1819(g)(2)(B)(I) or 1919(g)(2)(B)(1) of the Act; (2) has been assessed a
CMP of not less than $5000; or (3) has been subject to termination of its participation
agreement, denial of payment, or the appointment of temporary management. CMS’s
determination as to the level of noncompliance “must be upheld unless it is clearly
erroneous.” 42 C.F.R. § 498.60(c)(2). This includes CMS’s finding of immediate
jeopardy. Woodstock Care Center, DAB No. 1726, at 9 (2000), aff'd, Woodstock Care
Center v. U.S. Dept. of Health and Human Services, 363 F.3d 583 (6" Cir. 2003).

In a CMP case, CMS must make a prima facie case that the facility has failed to comply
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substantially with 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. U.S. Dept. of

Health and Human Services, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999).

III. Issues

A. Whether the facility was complying substantially with federal participation
requirements on the dates CMS determined to impose a CMP.

B. Whether CMS’s determination of immediate jeopardy was clearly erroneous.

C. Whether the amount of the penalty imposed by CMS is reasonable, if
noncompliance is established.

IV. Findings and Discussion

The findings of fact and conclusions of law noted below, in italics, are followed by a
discussion of each finding.

A, Petitioner was not in substantial compliance with federal participation
requirements from February 5, 2006 through May 1, 2006.

1. The facility failed to consult with Resident No. 4’s (R4) physician and
legal representative and Resident No. 3’s (R3) physician when there was a
significant change in the residents’ physical status. 42 C.F.R.

§ 483.10(b)(11) (Tag F157).

Resident No. 4

The regulation at 42 C.F.R. § 483.10(b)(11)(B) requires that a facility immediately inform
the resident; consult with the resident’s physician; and if known, notify the resident’s
legal representative or an interested family member when there is—

a significant change in the resident’s physical, mental, or psychosocial status (i.e.,
a deterioration in health, mental, or psychosocial status in either life-threatening
conditions or clinical complications) ....

CMS alleges that, based on interviews and medical record review, Petitioner failed to
notify R4’s physician and Petitioner failed to notify R4’s legal representative or an
interested family member when there was a significant change in her physical condition.
R4 was admitted to the facility on February 25, 2005, with diagnoses of hyperglycemia,
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hypertension, renal insufficiency, dehydration, obesity, hyperlipidemia, coronary artery
disease, cerebral vascular accident, diabetic neuropathy, and peripheral venous disease.
P. Ex. 7, at 1. She had both long and short term memory problems and impaired decision
making skills. P Ex. 7, at 35, 63. The care plan dated May 3, 2005, noted that R4 was at
risk for dehydration. P. Ex. 7, at 78, 82. The Resident Assessment Protocol Summary
dated May 10, 2005, also indicated that R4 was at risk for dehydration. CMS Ex. 6, at 8-
14. The care plan that Petitioner’s staff developed for the resident included several
interventions designed to assure that R4 received adequate fluids, including:

1. Provide routine fluids with meals, medications, [and] snacks;

2. Record fluid intake;

3. Monitor weights;

4. Assess labs;

5. Offer additional fluids between meals;

6. Monitor for signs and symptoms of dehydration.
P. Ex. 7, at 82. The Supplemental Assessment Information Dietary form indicated that
R4’s daily fluid needs were 2943 cubic centimeters (cc). CMS Ex. 6, at 28. This form

was signed by the dietary manager and it did not indicate that R4 was receiving
insufficient fluids or that she was dehydrated.

I find that R4 experienced a significant change which required notification of R4’s
physician and R4’s legal representative. The Departmental Appeals Board (Board) has
determined that a significant change occurs when a resident is experiencing symptoms
that are a significant departure from those previously experienced, regardless of whether
the symptoms arise from a new condition or a previously existing one. Batavia Nursing
and Convalescent Inn v. CMS, DAB No. 1027 (2003). R4 was totally dependent on
Petitioner’s staff for eating and drinking, and it was Petitioner’s responsibility to make
sure that she was sufficiently nourished. It is clear that Petitioner did not properly
monitor R4’s changes in her eating and drinking habits, and Petitioner did not address
R4’s diminishing appetite or her declining fluid intake with appropriate action.

Petitioner’s staff was required to maintain daily records documenting R4’s consumption
of food and fluids, according to the facility’s dietary manager. The dietary manager
indicated that staff relies on these daily records to determine a resident’s daily fluid
intake. CMS Ex. 2, at 8-9. R4’s January 2006 and February 2006 Individual Meal/Fluid
Intake forms (IM/FI form) indicate that she was not consistently consuming fluids even

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relatively close to her daily fluid needs of 2943 cc. R4’s daily total fluid intake ranged
from approximately 600-1440 cc, according to her January 2006 IM/FI form. CMS Ex. 6,
at 6. R4’s February 2006 IM/FI form indicated that her daily total fluid intake ranged
from approximately 530-960 cc, which was a sharp drop when compared to the previous
month. CMS Ex. 6, at 7.

Petitioner’s contention is that there is not a specific point in time when R4’s hydration
status reached a point of significant decline. P. Br. at 5. I disagree. On February 16,
2006, R4 left the facility for the hospital. Two days prior to R4 being transferred to the
ospital, her total fluid intake was 540 ce and 530 cc, respectively. In fact, on February
1, 2006, R4’s meal and fluid intake were not recorded for breakfast or lunch. On
February 12, R4 did not have any meal or fluid intake for lunch. On February 14, 2006,
R4 refused the dinner meal and had 60 cc of fluid intake for dinner. The following day,
on February 15, 2006, R4 only ate 25 percent of her meal, according to the IM/FI form,
and had a fluid intake of 50 cc. CMS Ex. 6, at 7.

CNA Marissa McCoy was responsible for determining R4’s intake on the IM/FI sheet on
February 14 and 15, 2006. CNA McCoy stated that she had made a nurse aware of R4’s
decreased appetite and fluid intake on the 14" and 15" of February. CMS Ex. 2, at 10;
Ex. 6, at 36. Another CNA, Tonya Cruder, noticed R4’s decreased appetite also. Celeste
Cooper, RN, reported to Dr. Terence Fleming that a CNA had noticed that R4 had a

“markedly decreased appetite and was eating very little over the past week.” CMS Ex. 6,
at 36-37.

The evidence offered by CMS supports a finding that the resident’s fluid intake during
January and February 2006, especially during February 11-15, 2006, constituted a
significant change in R4’s condition. Petitioner argues that because Petitioner’s
documentation does not capture all of a resident’s intake, CMS’s calculations of oral
intake, based on the documents, are incorrect. P. Br. at 6. However, the significant
change is not based solely on the calculations of oral intake that are documented in
Petitioner’s forms. CNA Cruder noticed that there was a marked change in R4’s appetite
and intake, she notified a nurse, but the facility did not view this as a significant change in
R4’s condition. Whether harm results from the significant change is irrelevant as long as
a resident is put at risk for serious harm by the failure to notify. See Woodbine
Healthcare, DAB CR1200 (2004). There were no Nurses Notes concerning R4’s
decreased fluid intake from a period of late January to the time that R4 went to the
hospital in mid-February. According to an interview of Nurse Cooper, a CNA did inform
her, at an undetermined date and time, that R4 usually would eat more. According to the
February 16, 2006 Emergency Physician’s Report, R4 was described as being critically ill
and as suffering from acute renal failure as a result of dehydration. CMS Ex. 6, at 41.
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The significant change in R4’s condition placed R4 at risk for serious injury, harm,
impairment, or death. A severe lack of fluids, especially in an elderly individual, is likely
to cause serious injury, harm, impairment, or death. Dr. Christopher Nelson of the
emergency department was one of the physicians who treated R4 when she was
transferred to the hospital. It was Dr. Nelson’s observation that R4 was dehydrated when
she arrived at the emergency room. Dr. Nelson also indicated that R4 was six or eight
liters down on free water. Dr. Nelson’s opined that R4 could have had a cumulative
water deficit over the last ten days to two weeks. CMS Ex. 12, at 31. Petitioner argues
that the emergency department physician, Dr. Nelson, guessed that R4 was suffering from
dehydration upon admission to the emergency department. P. Br. at 8. Petitioner relies
on the declaration of Dr. James S. Parsons, who concluded that R4’s medical decline was
not the result of insufficient fluid intake in Petitioner’s facility. P. Br. at 18; P. Ex. 20. It
was Dr. Parson’s medical opinion that the main cause for R4’s decline was her underlying
diabetic nephropathy, which is a disease of the kidneys that impairs excretion of waste.

P. Ex. 20. It was also Dr. Parson’s opinion that R4’s worsening condition due to diabetic
nephropathy developed over a few hours, instead of days or weeks. Jd. While Dr.
Parson’s medical opinion must be considered, I find that the observations of the
emergency department’s physician, Dr. Nelson, are more persuasive. Dr. Nelson actually
examined R4 and gave convincing reasons for his observations. Also, Dr. Nelson’s
observations are more credible, not only because he actually observed R4, but also
because he has no reason to give anything other than his experienced medical opinion.
Finally, what is at issue isn’t R4’s medical decline, but rather that the facility did not do
what should have been done to properly hydrate R4. Thus, her inadequate fluid intake
constituted a significant change in her condition. Dr. Parson never addressed Dr.
Nelson’s observation that R4 was down six to eight liters on free water. This type of
water deficit would seem to point towards dehydration.

The facility did not notify R4’s physician of her decreased fluid intake during January
through to February 16, 2006. According to CMS, during a March 10, 2006 interview,
Dr. Rekha Jain indicated that no changes regarding R4’s condition had been reported to
her prior to February 16, 2006. She also indicated that it would be her expectation that
Petitioner’s nursing staff alert her to changes in a resident’s condition. CMS Ex. 2, at 8.
Nurse Cooper indicated that she did not make a notation in the Nurse’s Notes, nor did she
notify the physician or a family member regarding R4’s decreased appetite. CMS Ex. 2,
at 9.

Petitioner also failed to notify R4’s legal representative or an interested family member
within a reasonable amount of time after R4 underwent a significant change in her
condition. There is no record of the facility contacting R4’s legal representative or any
family member regarding R4’s decreased intake, her fluid deficit, or her generally
declining condition. According to a facility form, R4’s legal representative notified
facility staff in-person of her concern of the lack of action and the lack of notification by
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Petitioner. CMS Ex. 6, at 30. R4’s legal representative informed Petitioner that she
never received a phone call from Petitioner prior to the resident being sent to the hospital.
Id. R4’s legal representative also voiced her concerns over R4’s condition and she
explained that “The M.D. from the emergency room just called and [R4] is severely
dehydrated. [R4’s] sodium and potassium levels are critical and your facility should be
very aware of this.” /d. Petitioner contends that there was not any type of significant
change prior to or immediately before R4 was sent to the emergency department. For the
reasons stated above I find Petitioner’s contentions relating to whether R4 experienced a
significant change as baseless.

Resident No. 3

R3 was admitted to the facility on February 3, 2006, with diagnosis of: thrombotic
cerebrovascular accident, hypertension, hypothyroidism, gastroesophageal reflux disease,
coronary artery disease, chronic renal insufficiency, urinary tract infection, mild anemia,
and moderate bilateral carotid stenosis. P. Ex. 10, at 1. R3 also had a diagnosis of
diabetes mellitus with history of hypoglycemia. /d. R3 was treated at WakeMed
Rehabilitation Hospital from January 19 - February 3, 2006. See CMS Ex. 18. The
ospital’s History and Physical report for R3, dated January 19, 2006, indicated that her
lood sugar levels would continue to be monitored by hospital staff and adjustments in
medications would be made as needed. CMS Ex. 18, at 6.

On February 28, 2002, Petitioner implemented a series of routine standing orders. CMS
asserts that one of these standing orders, Standing Order No. 11, entitled “Blood Sugar
Protocol” stated that:

IF BLOOD SUGAR IS <60 MG/DL AND PATIENT IS RESPONSIVE
GIVE 4 OZ OF ORANGE JUICE WITH 2 PACKETS OF SUGAR PO [by
mouth] OR PER G-TUBE, MONITOR RESIDENT AND RECHECK
BLOOD SUGAR, HOLD ROUTINE INSULIN AND NOTIFY MD IF
BLOOD SUGAR REMAINS < 60.

IF BLOOD SUGAR IS > 400 MG/DL CALL MD OR ON-CALL
PHYSICIAN AND TREAT AS ORDERED.

CMS Ex. 18, at 28.
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R3’s physician ordered that R3 undergo finger stick glucose testing twice a day, she
prescribed Glipizide® for R3 to take once a day, and she approved the use of the facility’s
standing orders. CMS Ex. 18, at 26. CMS asserts that R3’s finger stick values were
lower than the 60 mg/dl limit from February 5-8, 2006, and facility staff continued to
administer the glucose lowering drug Glipizide to R3 without consulting R3’s physician.
CMS Br. at 37. Also, R3’s fluid/meal intake ranged from 25 percent to 50 percent during
the time period of February 5-8, 2006, which should have added an additional level of
concern. CMS contends that R3’s physician should have been notified because R3’s
physical status had changed to the level that qualifies as a significant change. CMS Br. at
37.

On February 12, 2006, at 8:45 a.m., R3 was non-responsive and her blood glucose level
was 21 mg/dl. The Nurse’s Notes state that pudding and orange juice were given to R3.
Glucagon‘ was given to R3 and she was still non-responsive. Facility staff called 911 and
R3 was transferred to the hospital. In the emergency room, R3 was treated with
intravenous Dextrose 50 and her blood sugar increased to 63 mg/dl. R3 was admitted to
the hospital from February 12-20, 2006, for treatment of hypoglycemia and monitoring.
CMS Exs. 18, at 10; 14, at 15, 16.

R3’s blood glucose levels from February 5-8, 2006, coupled with the glucose lowering
medication that the facility was administering and R3’s decreased fluid/meal intake
presented a situation that was inherently dangerous and should have prompted Petitioner
to notify R3’s physician. Petitioner argues that R3 did not exhibit a significant change in
condition until she had a hypoglycemic event on February 12, 2006, which required
ospitalization. P. Br. at 25. Petitioner contends that a significant change in condition
requires the identification of “a discrete ‘tipping point’ at which the resident’s condition
deviated so significantly from the baseline that immediate notification of the physician
was required.” Jd. I am not required to identify an exact tipping point; however, it is
sufficiently evident that the significant change occurred sometime during February 5-8.
R3’s Medication Administration Record for February 2006 indicated the following finger
stick glucose test values:

February 5, 2006 (6:30 a.m.) 37 mg/dl

February 6, 2006 (6:30 a.m.) 32 mg/dl

> Glipizide is a drug that lowers blood glucose levels.

* Glucagon is a medication that increases glucose levels.
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February 7, 2006 (6:30 a.m.) 49 mg/dl
February 8, 2006 (6:30 a.m.) 54 mg/dl
P. Ex. 4, at 3-4

Considering that for four consecutive days R3’s glucose level was assessed to be less than
the 60 mg/dl level, Petitioner should have determined that this alone signified that R3’s
physician should be notified. Additionally, the medication that was being administered to
R3 and R3’s fluid/meal intake should have also been taken into consideration as to
whether facility staff should notify R3’s physician of her low glucose levels. A resident
need not suffer adverse affects as a result of her significant change; a facility has a duty to
notify a physician if a resident’s change in condition creates an increased risk for serious
arm. See Woodbine Healthcare, DAB CR1200.

Petitioner also contends that Standing Order No. 11 for R3° indicates by its very language
that when there is a blood glucose reading of less than 60, the nursing staff should initiate
the procedure listed in the standing order without first notifying a physician. P. Br. at 26.
do not find Petitioner’s argument persuasive. The standing order for R3 was ineffective
and did not instruct the facility staff of precisely when to notify R3’s physician. There
was a pattern of low blood glucose levels that should have alerted Petitioner that the
standing order was ineffective and that physician intervention was necessary. Petitioner
also alludes to the fact that R3’s physician examined R3 on February 9, 2006. See P. Br.
25-29. However, R3’s physician was contacted on February 9, 2006, concerning a
possible urinary tract infection and facility staff did not notify R3’s physician of R3’s low
blood glucose levels nor did they notify R3’s physician of her level of fluid/meal intake.
R3’s physician informed the State Agency surveyors that the facility did not notify her of
R3’s insufficient meal intake and low blood glucose levels and that she “would have
remembered if the nursing staff called [her] about a pattern of sugars that were that low.”
CMS Exs. 14, at 4, 6; 22, at 45.

I am not persuaded by Petitioner’s contention that the fact that R3 was only eating 25%-
50% of the meals provided by the facility should not be a factor in whether R3
experienced a significant change because it was not uncommon for R3 to consume such a
minimal portion of her meals. P. Br. at 27-28. All factors that led to CMS determining
that a significant change had occurred with R3 sometime between February 5-8, 2006

* “Blood Sugar Protocol” standing order documented at CMS Ex. 18, at 28, and
quoted on page 10 of this decision.
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must be viewed in their entirety. The low fluid/meal intake in addition to the blood
glucose reducing medication in addition to R3’s blood glucose levels during those four
days in early February are primary indicators that R3 experienced a significant change in
her condition.

I find that Petitioner failed to immediately consult with R4’s physician and notify R4’s
legal representative or family when there was a significant change in R4’s physical status.
also find that Petitioner failed to immediately consult R3’s physician when there was a
significant change in R3’s physical status. Petitioner did not consult with R4’s
physician, in a timely manner, regarding R4’s decreased fluid intake. Petitioner did not
notify the legal representative or responsible family member of R4’s drastically decreased
appetite, or that R4 had been transferred to the hospital. Petitioner did not consult with
R3’s physician, in a timely manner, as to R3’s low blood glucose levels. Therefore, I find
that CMS established a prima facie case under Tag F157. Petitioner has not overcome
that showing by a preponderance of the evidence. For reasons given below, I find CMS’s
finding of immediate jeopardy for R4 and R3 was not clearly erroneous.

2. The facility failed to provide R4 and Resident No. 7 (R7) with
sufficient fluid intake to maintain proper hydration and health. 42 C.F.R.
§ 483.25(j) (Tag F327).

Resident No. 4

The regulation at 42 C.F.R. § 483.25(j) requires that a facility provide each resident with
sufficient fluid intake to maintain proper hydration and health. CMS alleges that
Petitioner failed to provide adequate hydration for R4 and R7. CMS also alleges that this
failure to properly hydrate R4 and R7 constitute immediate jeopardy. CMS Br. at 24.

The diagnosis and medical history of R4, including R4’s dehydration problems upon
admittance to the facility, were discussed previously under Finding No. 1. CMS contends
that because R4 had long and short-term memory problems, she was unable to reliably
express her need to drink fluids and she had to rely on facility staff to make sure she was
properly hydrated. CMS Br. at 24. According to CMS, R4 received only 20%-40% of
her daily fluid need in January and 18%-32% of her daily fluid need in February. CMS
Ex. 6, at 7. CMS contends that in February there were several indicators that R4 was not
being properly hydrated. Once R4 was sent to the hospital, according to CMS, the
physician that treated R4 in the emergency room opined that R4 was dehydrated. CMS
contends that several factors can lead to dehydration, including poor food intake and
chronic diseases, and to counter the causes of dehydration a facility must provide early
lab evaluations and use preventative dehydration programs. CMS Br. at 26.

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Petitioner asserts that R4 consumed meals and fluids at or near her normal baseline status
during the months of January and February of 2006 and that R4’s daily total intake was
not completely documented because only fluids offered at meals are documented. P. Br.
at 12. Also, according to Petitioner, R4 was on a planned weight change program and
part of that program included R4 consuming 76%-100% of her meals. /d. Petitioner
contends that the daily fluid requirement of 2943 cc should not apply to R4 because of her
renal insufficiency condition. Jd. According to Petitioner, R4’s daily fluid requirement
should have been 2100 cc. Jd. at 13, 14. Petitioner asserts that R4 received fluids during
snacks, during medications given orally, and while eating foods with sufficient water
content. Jd. According to Petitioner, R4 did not exhibit any of the signs or symptoms of
someone who was dehydrated.

The evidence offered by CMS supports a finding that Petitioner failed to provide R4 with
sufficient fluid intake to maintain proper hydration and health. R4’s daily fluid intake for
February 1-15, 2006, was the following:

February 1, 2006 840 cc
February 2, 2006 840 cc
February 3, 2006 960 cc
February 4, 2006 960 cc
February 5, 2006 840 cc
February 6, 2006 840 cc
February 7, 2006 960 cc
February 8, 2006 840 cc
February 9, 2006 720 cc
February 10, 2006 900 ce
February 11, 2006 360 cc®
February 12, 2006 960 cc

® R4’s breakfast and lunch fluid intake was not recorded on February 11, 2007.
14

February 13, 2006 960 cc
February 14, 2006 540 cc
February 15, 2006 530 cc

CMS Ex. 6, at 7. The daily values from R4’s fluid intake form are substantially less than
the fluid amounts that were recommended for R4 by the facility’s dietician. Petitioner’s
argument that R4 could consume as little as 76% of her meals because she was on a
planned weight change program is not relevant as to whether she received adequate
hydration. Petitioner’s contention relating to meal intake was considered in my analysis
of whether R4 experienced a significant change; but as for Petitioner’s deficiency relating
to whether R4 received adequate hydration, the effect of her meal intake was minimal at
best whether she received enough fluids.

Iam also not persuaded by Petitioner’s contentions that R4’s daily fluid requirement was
actually 2100 cc instead of 2943 cc and that R4’s daily total intake was not completely
documented. Neither of Petitioner’s contentions is supported by the record. I was unable
to find anything in the record where the facility’s dietician documented R4’s daily fluid
intake as 2100 cc. Since the dietician developed a dietary assessment expressly for R4, it
would seem to follow that the dietician’s assessment is the most credible resource when
determining what R4’s fluid intake should have been. The declaration by Bronda Burton
Walker, R.N. is not as credible as it relates to R4’s fluid intake. Ms. Walker is the
Director of Regulatory Affairs and Policy Implementation for Petitioner and she had no
direct contact with R4 and did not participate in the formulation of R4’s dietary
assessment in any way. In Ms. Walker’s declaration, she asserts that R4’s daily fluid
intake should actually have been 2100 cc because of renal insufficiency. P. Ex. 23, at 4.
Petitioner’s assertions that R4 was given sufficient fluids is undercut by Petitioner’s
dietitian, who placed R4’s minimum daily fluids at 2943 cc. If R4’s daily fluids should
have been less than 2943 cc, Petitioner’s dietitian should have accounted for the factors
that would decrease R4’s minimum daily fluids and an adjustment should have been made
accordingly to R4’s care plan. However, R4’s dietary assessment, completed by the
dietary manager, indicates that R4’s fluid needs were indeed 2943 cc. P. Ex. 7, at 85.

A second argument by Petitioner, as it relates to whether R4 was properly hydrated, is
that the surveyors failed to account for hundreds of cc fluids because certain fluids passed
out daily are not recorded. Petitioner indicated that fluids are given between meals at
every medication pass, during a bedtime snack, and that there is even fluid content in
meals that surveyors failed to consider. P. Br. at 13, 14. Petitioner’s contentions are
unconvincing. It is highly unlikely that the facility could make up the difference of
documented fluids with unrecorded fluids between meals. Furthermore, I am confounded
as to why a facility that knows that a resident is at risk for dehydration would not take
15

every opportunity to record all of that resident’s fluid intake. If Petitioner considered that
fluids given at medication passes and during bedtime snacks should have been counted
toward the resident’s fluid intake requirements, it should have done a better job of closely
monitoring and documenting her record appropriately. It is disingenuous of Petitioner to
contend that the records do not reveal that R4 was adequately hydrated because of its
failure to document all of her fluid intake. It is also irrelevant to consider what is given
without knowing what is consumed. In the case of Petitioner, neither is documented.
Also, Petitioner once again uses the declaration of Ms. Walker to support its contention
that more fluids were distributed than documented. However, once again, Ms. Walker
was not R4’s caregiver, and therefore she has no direct personal knowledge regarding
R4’s fluid intake. P. Ex. 23. The simple fact is that Petitioner’s contentions must be
supported by the record, and in the case of additional fluid intake by R4 other than at
breakfast, lunch and dinner, the record is void. As for fluid content in meals, it seems
reasonable to me that this was taken into consideration and accounted for when the
facility’s dietician determined R4’s fluid intake. Clearly, it should be assumed that fluid
content in the resident’s meals are not part of the calculation of fluid intake that a resident
must consume. I infer that R4’s recommendation of 2943 cc is the measurable intake of
cc and the measurable intake of cc is what is documented by Petitioner.

It is also clear that this failure to keep R4 properly hydrated was likely to cause serious
injury, harm, impairment or death. On February 16, 2006, when R4 was transferred to the
hospital, the emergency room physician, Dr. Nelson, diagnosed R4 with dehydration.
CMS Ex. 6, at 39; CMS Ex. 12, at 31. As mentioned previously, Dr. Nelson also
indicated that R4 was six or eight liters down on free water. It was Dr. Nelson’s opinion
that R4 could have had a cumulative water deficit over the last ten days to two weeks.
CMS Ex. 12, at 31. The Board’s finding in Woodland Village, DAB No. 2053 (2006) is
instructive in this case. In Woodland Village, the ALJ found that Petitioner was out of
compliance with 42 C.F.R. § 483.25(j) because Petitioner did not provide a resident with
proper hydration. The Board upheld the ALJ’s decision in Woodland and found that an
emergency room physician’s diagnosis of dehydration could support the ALJ’s finding
that Petitioner did not comply with 42 C.F.R. § 483.25(j). The Board went on to explain
that “Where a resident has been found to be at risk for dehydration . . . the compliance
analysis must begin with what the facility did to mitigate that risk.” /d. at 7. R4 was
admitted to the facility as being at risk for dehydration. Petitioner did not do all it could
to mitigate the risk of dehydration. I am not persuaded by Petitioner’s expert testimony,
as an emergency room physician’s diagnosis and the statement from the emergency room
physician is more credible. In addition to the evidence given by the emergency room
physician, lab tests support CMS’s argument that R4 was dehydrated. A severe lack of
water, especially in an elderly individual, is likely to cause serious injury, harm,
impairment, or death.

16

Resident No. 7

According to the Statement of Deficiency (SOD), R7 was admitted to the facility with
diagnoses that included: End Stage Renal Disease, Hemodialysis, Chronic Obstructive
Pulmonary Disease, Alzheimer’s Dementia, and Hyperlipidemia. CMS Ex. 2, at 45; P.
Ex. 2, at 45. R7’s Care Plan dated November 2, 2005, indicated she was at risk for
dehydration. CMS Ex. 9, at 6. The SOD indicates that R7’s Medication Administration
Record for March 2006 stated that R7 received dialysis three times each week. CMS Ex.
2, at 45; P. Ex. 2, at45. The SOD also indicated that the Dietary Assessment dated June
1, 2005, recommended 1489 cc for R7.

R7’s daily fluid intake for March 1-10, 2006, was the following:

March 1, 2006 720 ce
March 2, 2006 740 cc
March 3, 2006 480 cc
March 4, 2006 840 cc
March 5, 2006 600 cc
March 6, 2006 920 cc
March 7, 2006 1080 cc
March 8, 2006 600 cc
March 9, 2006 360 cc
March 10, 2006 340 cc

CMS Ex. 9, at 1.

CMS contends that R7 was not receiving the proper amount of fluids. The daily values
from R7’s fluid intake form are substantially less than the fluid amounts that were
recommended for R7 by the facility’s dietitian. Petitioner argues that in the case of R7, as
it was for R4, residents are given sufficient amounts of fluids when the fluids given
during medications and snacks are factored in. However, I am again not persuaded by
Petitioner’s explanation for a resident’s insufficient documented fluid intake. According
to the SOD, when asked by the surveyors about R7’s fluid intake, a facility nurse
17

explained that the CNAs report to her about any residents who have insufficient fluid
intake and that the CNAs give residents fluids between meals. However, the surveyors
observed instances where fluids were never fully passed out to the residents by CNAs
when a shift change occurred during the fluid passes. CMS Ex. 2, at 7. Fluid intake is
documented in the resident’s daily intake form and it is evident from this form that even
factoring in the occasional fluids during snacks or during medications that R7, who was at
risk for dehydration, was not receiving sufficient fluid intake. It is also apparent that
insufficient hydration for a resident in R7’s condition is likely to cause serious harm or
death. Therefore, I agree with CMS that Petitioner’s noncompliance with 42 C.F.R.

§ 483.25(j) in this particular case does constitute immediate jeopardy.

I find that Petitioner failed to provide proper hydration to R4 and R7. R4 and R7 had
serious medical conditions and were at risk for dehydration. R4 and R7’s documented
daily fluid intake was substantially lower than the daily fluid intake recommended by the
facility’s dietitian. When R4 was unresponsive and transferred to the hospital, she was
diagnosed as dehydrated by the Emergency Department’s physician. The analysis of a
ten-day sampling of R7’s IM/FI form shows that R7 was in danger of dehydration as well.
Therefore, I find that CMS established a prima facie case under Tag F327. Petitioner has
not overcome that showing by a preponderance of the evidence.

3. The facility failed to provide R3 with the necessary care and services to
attain or maintain the highest practicable physical, mental, and
psychosocial well-being, in accordance with the comprehensive
assessment and plan of care. 42 C.F.R. § 483.25 (Tag F309).

The regulation at 42 C.F.R. § 483.25 (Quality of Care) requires a facility to provide each
resident with the necessary care and services to attain or maintain the highest practicable
physical, mental and psychosocial well-being, in accordance with the comprehensive
assessment and plan of care.

CMS alleges that Petitioner failed to provide adequate quality of care to R3. R3’s
diagnosis and condition were previously explained under Finding 1. R3 was a diabetic
and her blood sugar levels had to be monitored daily. R3 was also subject to Standing
Order No. 11’, and was administered Glipizide according to orders from her physician.
CMS Ex. 18. Petitioner briefly argues that the facility appropriately monitored R3 for
hypoglycemia and meal intake and that facility staff appropriately intervened and notified
the physician of R3’s change in status on February 12, 2006, when R3 did not respond
appropriately to nursing interventions. P. Br. at 29.

7 “Blood Sugar Protocol” standing order documented at CMS Ex. 18, at 28, and
cited on page 10 of this decision.
18

Petitioner’s contentions are not convincing. Charge Nurse Jennifer Reinhold, LPN,
obtained the Finger Stick test results from February 6-8, 2006. According to CMS, Ms.
Reinhold had been unaware of R3’s poor meal intakes, she was unfamiliar with the
standing orders for low blood sugar levels, and she was unaware that she had to
“document” for R3. Charge Nurse Penny Ruil, LPN, documented the Finger Stick test
results for February 5, 2006 at 6:30 a.m. According to CMS, Ms. Ruil was unsure of
what she did when R3’s blood sugar registered low. She could not recall whether a
doctor was called, and she conceded that she failed to document whatever measures she
took. The facility’s Director of Nursing and Quality Improvement Coordinator were
interviewed on or about March 29, 2006 (R3 had been hospitalized February 12, 2006)
and, CMS asserts, they were both unaware of the events that led to R3’s hospitalization.
CMS Br. at 39. According to CMS, the facility’s administrator indicated on March 30,
2006 that he was unaware of R3’s condition. Jd. CMS contends that Petitioner did not
properly address the resident’s diabetic management until March 29, 2006. Jd. Also,
CMS contends that according to R3’s records, Petitioner failed to follow the facility’s
Standing Order No. 11, Blood Sugar Protocol, that was to be implemented if R3’s blood
glucose level fell below 60 mg/dl. I agree with CMS that facility staff was largely
unaware of the events leading up to R3’s hospitalization. I also agree with CMS that
Petitioner failed to follow Standing Order No. 11, specifically by failing to call R3’s
physician if the procedures given in that standing order were not effective. I find that
Petitioner failed to provide R3 with the necessary quality of care that is required pursuant
to 42 C.F.R. § 483.25. For reasons given below, I find CMS’s finding of immediate
jeopardy for R3 was not clearly erroneous.

4. The facility failed to be administered in a manner that enabled it to use
its resources effectively and efficiently to attain or maintain the highest
practicable physical well-being of R3, R4 and R7. 42 C.F.R.

§ 483.75 (Tag F490).

The regulation at 42 C.F.R. § 483.75 requires a facility to be administered in a manner
that enables it to use its resources effectively and efficiently to attain or maintain the
highest practicable physical, mental and psychosocial well-being of each resident.

Section 483.75 of 42 C.F.R. requires the administration of a facility be licensed under
applicable state and local licensure law as well as in compliance with federal, state, and
local laws and professional standards. A facility’s policies and procedures must comply
with this and other applicable regulations and the administration must ensure that its staff
follow and implement the facility’s policies and procedures. Whether a facility is in
compliance with 42 C.F.R. § 483.75 is dependent on whether the facility is in substantial
compliance with other regulations which govern the participation requirements of long-
term care facilities. See Asbury Center at Johnson City, DAB No. 1839 (2002); see also,
Odd Fellow and Rebekah Health Care Facility, DAB No. 1839 (2002). In Asbury, the
19

facility contended that CMS had failed to prove the existence of a separate deficiency
relating to administration because the administrative deficiency was based exclusively on
other immediate jeopardy deficiencies. Jd. The Board, in Asbury, agreed with the ALJ
that the “administrative deficiency is a derivative deficiency based on findings of other
deficiencies.” Jd. at 11. Also, in Odd Fellow the Board explained that “the existence of
independent deficiencies may constitute a prima facie case that a facility has not been
administered efficiently or effectively as required by section 483.75.” Odd Fellow at 11.

Petitioner failed to consult with R4’s physician and notify R4’s family of a significant
change in her physical status. Petitioner failed to consult R3’s physician that there was a
significant change in her physical status. Petitioner failed to provide R4 and R7 with
sufficient fluid intake to maintain proper hydration and health. Petitioner failed to
provide R3 with adequate quality care. Petitioner’s administration failed to carry out
fully the supervisory aspects relating to the deficiencies concerning R4, R3, and R7.
These deficiencies were found by CMS to be at the immediate jeopardy level of
noncompliance. As discussed below, I have found that CMS’s findings of immediate
jeopardy for these deficiencies were not clearly erroneous. Petitioner acknowledges that
the administrative deficiency is derivative of the deficiencies cited under Tags F157,
F327, and F309. P. Br. at 24, 29-30. Because the administrative deficiency is a
derivative deficiency based on the findings of other deficiencies, Petitioner is out of
compliance with 42 C.F.R. § 483.75. I find that CMS established a prima facie case
under Tag F490.

5. The facility failed to allow Resident No. 2 (R2), Resident No. 6 (R6),
and Resident 8 (R8) to: choose activities, schedules, and health care
consistent with their interests, assessments, and plans of care and make
choices about aspects of their life in the facility that were significant to
them. 42 C.F.R. § 483.15(b) (Tag F242).

The regulation at 42 C.F.R. § 483.15(b) requires the facility to allow the resident to:

(1) Choose activities, schedules, and health care consistent with his or her
interests, assessments, and plans of care;

(2) Interact with members of the community both inside and outside the facility;
and
20

(3) Make choices about aspects of his or her life in the facility that are significant
to the resident.

CMS alleges that Petitioner failed to allow R2 and R6 to take showers when they desired.
CMS also alleges that Petitioner failed to allow R6 and R8 to get out of bed when they
wanted to. CMS Br. at 30-32. CMS contends that only allowing the residents to take a
limited number of showers a week, when they desired more days to take showers, and the
facility’s failure to assist the residents with getting out of bed before lunch “deprived the
residents of having an input concerning their schedules and daily lives in matters that
were significant to the residents’ existence and daily living.” Jd. at 30. According to
CMS, R6 and R8, who were a married couple and shared a room together, often missed
their shower time and frequently were not allowed to get out of bed until after lunch.
CMS asserts that R6 required extensive assistance with bathing and dressing and that
even though he usually was awake and alert as early as 5 a.m., he had to wait an
inordinate amount of time because facility staff would not assist him until after lunch.
Furthermore, according to CMS, since R8 roomed with R6, many times she did not
receive the level of assistance that she needed to get out of bed or take a shower. CMS
asserts that on March 9, 2006, at 2:30 p.m., State Agency surveyors observed R6 being
told by an CNA that it was not his shower day when he requested a shower and that he
would have to wait until the night shift to be assisted to take a shower. Jd. at 31.

According to CMS, R2, who was non-ambulatory and needed assistance with transfers,
dressing and bathing, informed the State Agency surveyors that her “shower days” were
two days a week and on occasion facility staff failed to give her a shower on her
scheduled shower day. CMS Br. at 31. CMS argues that the residents desired to be
permitted to take more weekly showers, and that the facility’s restriction placed on the
number of days a resident was assisted in taking a shower, in effect, did not allow a
resident to make choices pursuant to 42 C.F.R. § 483.15(b).

Petitioner asserts in its hearing request that a shower schedule was prepared due to the
number of residents who needed assistance in the facility. According to Petitioner,
residents were accommodated by giving residents their preferred shower times when the
facility became aware that some residents were not satisfied with their shower schedule.
Hearing Request at 3.

I find that R6, R8, and R2 were unable to make choices about aspects of their lives in the
facility that were significant to them. CMS Ex. 2, at 19-20; 23-24. R6, R8, and R2 were
made to wait an unreasonable amount of time to receive assistance in taking showers and
getting out of bed. Also, Petitioner’s restrictive policy of two showers a week for some of
21

the residents was excessively limited. Petitioner did not provide enhancement of these
three residents’ quality of life in accordance with 42 C.F.R. § 483.15(b). Therefore, I find
that CMS established a prima facie case under Tag F242. Petitioner has not overcome
that showing by a preponderance of the evidence.

6. The facility failed to ensure that Resident No. 5 (R5) and Resident No.
10 (R10) received the necessary services to maintain good nutrition,
grooming, and personal and oral hygiene. 42 C.F.R. § 483.25(a)(3) (Tag
F312).

The regulation at 42 C.F.R. § 483.25(a)(3) requires a facility to ensure that a resident who
is unable to carry out activities of daily living receives the necessary services to maintain
good nutrition, grooming, and personal and oral hygiene.

CMS alleges that Petitioner failed to provide timely and routine incontinence checks for
R5 and R10. CMS Br. at 32. According to CMS, R5 was to receive total assistance with
all activities of daily living including toileting. CMS asserts that RS was coded as
incontinent of bowel and bladder at all times and that according to R5’s care plan she
should frequently be checked for incontinence. /d. According to CMS, a family member
informed a surveyor that R5 had been sitting with a family member from 10:30 a.m. until
1:05 p.m. without being checked for wetness. At 1:35 p.m., RS was returned to her bed,
and according to CMS, the CNA who cared for R5 did not thoroughly check R5 for
wetness and the CNA only checked the top of the brief. CNA asserts that it was
discovered, upon examination, that R5’s brief was wet in places other than where the
CNA had checked. /d. at 32, 33.

According to CMS, urinary incontinence was added to R10’s care plan on March 8, 2006.
On March 10, 2006, the State Agency surveyors initiated an incontinence watch from
1:55 a.m. until 3 p.m. CMS asserts that during their incontinence watch, R10 was not
moved or checked for wetness. CMS Br. at 33.

Petitioner asserts in its hearing request that the CNA who checked R5’s brief for wetness
elieved R5’s brief was dry because a wetness indicator in the diaper did not change to
the appropriate color. Petitioner does concede that the bottom of R5’s brief was wet, but
contends that the wetness indicator is to blame for the CNA not changing the brief.
Hearing Request at 4.

find that RS and R10 were unable to carry out activities of daily living and required
necessary services by the facility to maintain personal hygiene. CMS Ex. 7; CMS Ex. 2,
at 20, 23-24. R5 and R10 were allowed to wear wet briefs for an unacceptable amount of
time on the dates of March 9, 2006 and March 10, 2006 respectively. Petitioner did not
provide the necessary services for R5 and R10 to maintain good personal hygiene.
22

Therefore, I find that CMS established a prima facie case under Tag F312. Petitioner has
not overcome that showing by a preponderance of the evidence.

7. The facility failed to ensure that it is free of medication error rates of
five percent or greater. 42 C.F.R. § 483.25(m)(1) (Tag F332).

The regulation at 42 C.F.R. § 483.25(m)(1) requires that a facility be free of medication
error rates of five percent or greater.

CMS alleges that Petitioner exceeded the allowance for medication errors on or about
March 29, 2006. CMS Br. at 44. According to CMS, there were medication errors made
on or about March 29, 2006, in the facility’s administration of medication to R3 and R6.
CMS asserts that a facility staff member administered five ml more of Alamacone
(Mylanta) than what R3’s physician had prescribed. CMS also asserts that the facility
administered six dosages of medication to R6 orally despite R6’s physician’s orders that
the dosages be administered through the gastrostomy tube (g-tube). Jd.

On or about March 29, 2006 at 8:10 a.m., R3 was administered 20 ml of Mylanta even
though R3 was to be administered 15 ml of Mylanta per physician’s orders dated
February 20, 2006. CMS Ex. 14, at 32; CMS Ex. 23 at 3. On or about March 29, 2006 at
8:45 a.m., R6 was orally administered Certagen, Bumex, Lexapro, potassium chloride,
Vitamin E, and Vitamin C despite doctor’s orders, dated March 22, 2006, that these
dosages be administered through the g-tube. CMS Ex. 23, at 1. A review of the State
Survey agency’s Medication Pass Worksheet shows that among 50 medication
observations by the state surveyor, there were seven errors. See CMS Ex. 23. That is an
error rate of 14 percent. Petitioner has exceeded the five percent medication error rate by
making errors in medications administered to R3 and R6.

Petitioner indicated in its hearing request that it disagreed with State Survey agency’s
finding that it was not in substantial compliance with 42 C.F.R. § 483.25(m)(1) with
respect to R3 and R6. However, in its written submissions Petitioner does not address
CMS’s allegation that it must be free of medication error rates of five percent or greater.
Therefore, I find that CMS established a prima facie case under Tag F332. Petitioner has
not overcome that showing by a preponderance of the evidence.

8. The facility failed to ensure that its menus met the nutritional needs of
R3 and were followed. 42 C.F.R. § 483.35(c) (Tag F363).

The regulation at 42 C.F.R. § 483.35(c) requires that the facility’s menus meet the
nutritional needs of residents, be prepared in advance, and be followed.
23

CMS alleges that Petitioner failed to prepare a menu for R3 in advance and follow the
prepared menu. CMS Br. at 45. According to CMS, when R3 was admitted to the
facility, R3’s doctor’s orders required R3 to be on a pureed vegetarian diet. Jd. CMS
asserts that the food service manager did not have a planned vegetarian menu and instead
the facility served R3 only the vegetables that were listed on the regular diet menu. Also,
CMS asserts, R3 was not provided an evening snack. Jd. According to CMS, the State
Survey team was unable to find a planned vegetarian diet. Jd. CMS contends that the
facility is not in compliance with section 42 C.F.R. § 483.35(c) because a vegetarian
menu was not prepared in advance and followed by the facility for R3. CMS argues that
merely serving R3 the vegetables that are listed on the facility’s regular menu did not
meet the nutritional needs of R3.

In the State Surveyor’s interview on March 29, 2006, with the facility’s dietary manager,
Deborah Brooks, CDM, Ms. Brooks indicated that the facility does not have a dietary
menu. CMS Ex. 22, at 10. Ms. Brooks also indicated that R3 is served whatever
vegetables are on the regular menu and beans if on the menu. Additionally, R3 is not
served snacks. Jd.

The nutritional needs of vegetarian residents includes: breads, cereals, rice, and pastas;
vegetables; fruits; dairy products; and legumes and meat substitutes. A facility must
ensure that a resident is provided with all the nutrients that an individual needs. Fora
resident who follows a vegetarian diet, alternate sources of nutrients must be provided to
replace the nutrients provided in meats, milk, cheese, and eggs. CMS Ex. 18, at 40.
Petitioner has not met the nutritional needs of R3 by serving her the vegetables and beans
on the regular menu. Additionally, Petitioner did not prepare a vegetarian menu in
advance for R3.

Petitioner indicated in its hearing request that it disagreed with state agency’s finding that
it was not in substantial compliance with 42 C.F.R. § 483.35(c) with respect to R3.
However, in its written submissions Petitioner does not address CMS’s allegation that it
failed to ensure that its menus met the nutritional needs or R3. Therefore, I find that
CMS established a prima facie case under Tag F363. Petitioner has not overcome that
showing by a preponderance of the evidence.

B. CMS’s Finding of immediate jeopardy was not clearly erroneous.
Immediate jeopardy exists where a “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.” 42 C.F.R. § 488.301. For a finding of immediate
24

jeopardy, it is not necessary to show that the noncompliance caused serious injury, harm,
impairment, or death. It is sufficient to show that the noncompliance was likely to cause
serious injury, harm, impairment, or death. Fairfax Nursing Home, Inc., DAB No. 1794,
at 14 (2001).

It is Petitioner’s burden to prove clearly erroneous a finding by CMS that a deficiency
puts residents at immediate jeopardy. 42 C.F.R. § 498.60(c)(2). Here, CMS established
strong prima facie evidence of immediate jeopardy level deficiencies under Tags F157,
F327, F309, and F490. Petitioner contends in its brief that there were no immediate
jeopardy level deficiencies with respect to R3, R4, and R7. Petitioner argues that for R3
and R4, there was no “tipping point” where a significant change occurred. Also,
Petitioner argues that CMS has failed to prove that there was a likelihood of serious
injury or harm to these residents. P. Br. at 30. As for R4 and R7, Petitioner argues that
these residents received sufficient hydration through undocumented means.

Again, I am not persuaded by Petitioner’s arguments. R3’s low blood glucose readings
along with her diminished appetite and the fact that she was on a medication that lowered
her blood glucose levels should have prompted Petitioner to call R3’s physician. R4 and
R7 were admitted by Petitioner as at risk for dehydration. With both these residents,
there was a pattern where their daily fluid intake baselines were not being met. With both
these residents, Petitioner failed to take appropriate action. Furthermore, Petitioner failed
to contact R4’s physician and legal representative immediately when a significant change
occurred in this resident’s condition. The overwhelming evidence is that Petitioner’s staff
was inattentive to the needs of R3, R4, and R7. Petitioner failed in providing these
residents with a level of care that is mandated by the regulations. Petitioner knew or
should have known that its inattentiveness was likely to cause serious injury, harm,
impairment, or death to these residents. Moreover, Petitioner’s systemic flaw equally
exposed other residents similarly situated to the likelihood of suffering serious injury,
harm, impairment, or death. Petitioner has not proved that CMS’s determination of
immediate jeopardy was clearly erroneous.

C. The amount of the CMPs is reasonable.

CMS imposed a $4000 CMP for each day of noncompliance at the immediate jeopardy
level from February 5 through March 31, 2006. CMS also imposed a $500 per day CMP
for deficiencies at the less than immediate jeopardy level from April | through May 1,
2006. Originally, CMS imposed a $3050 per day CMP from February 16 through March
11, 2006, and a $100 per day CMP from March 12, 2006, until the facility achieved
substantial compliance. However, after a second survey was completed (April survey),
the time period that Petitioner was found to be out of compliance at the immediate
jeopardy level was extended to February 5 through March 31, 2006, and the per day CMP
for each day of noncompliance at the immediate jeopardy level was increased to $4000.
25

Also, during the April survey, additional noncompliance was found at the less than
immediate jeopardy level and CMS increased the CMP from $100 to $500. Petitioner
achieved substantial compliance on May 2, 2006.

When an ALJ finds that the basis for imposing a CMP exists, the ALJ may not: (1) seta
penalty of zero or reduce the penalty to zero; (2) review the exercise of discretion by
CMS to impose a CMP; and (3) consider any factors in reviewing the amount of the
penalty other than those specified by regulation. 42 C.F.R. § 488.438(e). Ihave found
that a basis exists for CMS to impose a CMP because I have found that Petitioner was not
in compliance with 42 C.F.R. § 483.10(b)(11), 42 C.F.R. § 483.25(j), 42 C.F.R. § 483.25,
42 C.F.R. § 483.75, 42 C.F.R. § 483.15(b), 42 C.F.R. § 483.25(a)(3), 42 C.F.R.

§ 483.25(m)(1), and 42 C.F.R. § 483.35(c). I must, therefore, review de novo whether the
amount of the CMP is reasonable by considering four factors specified in 42 C.F.R.

§ 488.438(f). These four factors are: (1) the facility’s history of noncompliance,
including repeated deficiencies; (2) the facility’s financial condition; (3) the scope and
severity of the deficiencies, the relationship of one deficiency to other deficiencies, a
facility’s prior history of noncompliance with reference to the deficiency at issue (factors
specified in 42 C.F.R. § 488.404); and (4) the facility’s degree of culpability.

Petitioner has not questioned the duration of the deficiencies, but has argued that the
deficiencies cited as immediate jeopardy do not rise to a level of immediate jeopardy.
Petitioner contends that the immediate jeopardy citation in this case is inappropriate
because CMS has failed to prove that there was a likelihood of serious injury or harm as a
result of the cited deficiencies. P. Br. at 30. I have already amply discussed the basis for
a finding of noncompliance at the immediate jeopardy level.

There is no evidence in the record regarding the facility’s history of noncompliance or the
facility’s financial condition. Therefore, I will focus on the scope and severity of the
deficiencies and the facility’s degree of culpability. The regulations define culpability as
neglect, indifference, or disregard for resident care, comfort or safety. 42 C.F.R.

§ 488.438(f)(4). In this case, Petitioner failed to consult with R3 and R4’s physicians
when there was a significant change in their status. Such a failure placed R3 and R4 at
risk of serious injury, harm, impairment, or death. Both R3 and R4 had to be rushed to
the hospital and in both cases, if Petitioner had recognized or been more cognizant that
these residents experienced a significant change, the risk of serious injury, harm, or death
could have been prevented or minimized. CMS has shown that Petitioner failed to take
appropriate action in the cases of R3, R4, and R7, and that as a result, these residents
were placed at risk of serious harm or death. Pursuant to Asbury, the administration
26

deficiency is a derivative deficiency based on the findings of other deficiencies and since
Petitioner has not overcome CMS’s prima facie case by a preponderance of the evidence
that it was in compliance with 42 C.F.R. § 483.10(b)(11) and 42 C.F.R. § 483.25(j),
Petitioner is also out of compliance with 42 C.F.R. § 483.75 at the immediate jeopardy
level.

Also, the facility was cited for several non immediate jeopardy deficiencies. These
deficiencies ranged from medication errors to not preparing and following a menu for a
vegetarian resident. The non-immediate jeopardy deficiencies either caused actual harm
to the residents or had the potential for causing actual harm to the residents. CMS has
imposed CMPs closer to the minimum level for both immediate jeopardy and non-
immediate jeopardy level deficiencies. In view of the foregoing, I find that the amount of
the CMP is reasonable.

D. Petitioner is properly subject to a two-year prohibition on conducting a
NATCEP.

As [have found Petitioner to be noncompliant at the immediate jeopardy level with a
participation requirement under 42 C.F.R. § 483.25 (Quality of Care), a two-year
prohibition of Petitioner’s conducting a NATCEP is required by law.

V. Conclusion

Based on the documentary evidence, the arguments of the parties, and the applicable law
and regulations, I find that Petitioner was not in substantial compliance at the immediate
jeopardy level from February 5, 2006 through March 31, 2006, and that the imposition of
a CMP of $4,000 per day during that period is reasonable. Additionally, a CMP of $500
per day from April 1, 2006 through May 1, 2006 is also reasonable. The two-year
prohibition on conducting a NATCEP is consistent with the law and regulations.

/s/
José A. Anglada
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)

Charmaine Sue Moon, ) Date: April 14, 2008
)
Petitioner, )
)

-Vv.- ) Docket No. C-07-760

) Decision No. CR1769
The Inspector General. )
)
DECISION

This matter is before me on the Inspector General’s (1.G.’s) Motion for Summary
Affirmance of the I.G.’s determination to exclude the Petitioner herein, Charmaine Sue
Moon, from participation in Medicare, Medicaid, and all other federal health care
programs for a period of five years. The I.G.’s Motion and determination to exclude
Petitioner are based on the terms of section 1128(a)(3) of the Social Security Act (Act),
42 U.S.C. § 1320a-7(a)(3). The facts in this case mandate the imposition of a five-year
exclusion, and for that reason | grant the I.G.’s Motion for Summary A ffirmance.

I. Procedural Background

Petitioner Charmaine Sue Moon is a pharmacist and was in 2003 and 2004 licensed to
practice as a pharmacist in the State of Michigan. In 2004 she was employed at a
pharmacy located in Rochester Hills, Michigan, where, in late November, 2004, a co-
worker observed and reported irregularities in the way Petitioner had processed certain
prescriptions. The co-worker’s reported observations eventually came to the attention of
law-enforcement authorities.

Eventually Petitioner was named in a nine-count Information filed by the Oakland County
Prosecuting Attorney. Counts 1, 2, 3, and 4 of that Information charged her with four
felony counts of Fraudulent Insurance Acts in violation of MICH. COMP. LAWS

§ 500.4511(1); Count 5 charged one felony count of Obtaining a Controlled Substance by
Fraud, in violation of MICH. COMP. LAWS § 333.7407(1)(c); Counts 6, 7, 8, and 9
charged four misdemenanor counts of Making a False Prescription, in violation of MICH.
Comp. LAWS § 333.17766(c).
2

The date on which the Information was filed is not clear on this record, but, on August 4,
2005, as the apparent result of a negotiated plea, Petitioner appeared with counsel in the
Sixth Circuit Court, Oakland County, Michigan, and pleaded guilty to six of the nine
charges set out in the Information. She admitted the three felonies related to insurance
fraud charged in Counts 2, 3, and 4, and the three misdemeanors related to false
prescriptions charged in Counts 7, 8, and 9. Petitioner was sentenced on September 15,
2005, to an eighteen-month term of probation, was ordered to perform 200 hours of
community service, and was assessed various costs and restitution in the total sum of
$8255. Counts 1, 5, and 6 of the Information were dismissed.

As required by the terms of section 1128(a) of the Act, 42 U.S.C. § 1320a-7(a), the I.G.
began the process of excluding Petitioner from participation in Medicare, Medicaid, and
all other federal health care programs. On July 31, 2007 the I.G. notified Petitioner that
she was to be excluded pursuant to the terms of section 1128(a)(3) of the Act for the
mandatory minimum period of five years.

Acting through counsel, Petitioner timely sought review of the I.G.’s action by letter
dated September 27, 2007. I convened a telephonic prehearing conference on November
18, 2007, pursuant to 42 C.F.R. § 1005.6, in order to discuss the issues presented by the
case and procedures for addressing those issues. The parties agreed that the case likely
could be decided on written pleadings, and by Order of November 10, 2007, I established
a schedule for the submission of documents and briefs. All briefing is now complete, and
the record in this case closed on February 26, 2008.

The evidentiary record on which I decide the issues before me comprises five exhibits.
The L.G. proffered four exhibits marked I.G. Exhibits 1-4 (I1.G. Exs. 1-4). Petitioner
proffered a single exhibit, inexplicably marked Petitioner’s Exhibit 4 (P. Ex. 4).
Petitioner’s objection to I.G. Ex. 3 is over-ruled, and the I.G.’s objection to P. Ex. 4 is
over-ruled. All proffered exhibits are admitted as designated

II. Issues

The issues before me are set out at 42 C.F.R. § 1001.2007(a)(1). In the specific context
of this record, they are:

1. Whether the I.G. has a basis for excluding Petitioner from participating in
Medicare, Medicaid, and all other federal health care programs pursuant to section
1128(a)(3) of the Act; and
3

2. Whether the proposed five-year period of exclusion is unreasonable.

The settled law of this forum entitles the I.G. to summary judgment on both issues.
Section 1128(a)(3) of the Act mandates Petitioner’s exclusion, for her predicate
conviction has been established. A five-year period of exclusion is reasonable ipso jure,
for it is the minimum period established by section 1128(c)(3)(B) of the Act, 42 U.S.C.
§ 1320a-7(c)(3)(B).

Ill. Controlling Statutes and Regulations

Section 1128(a)(3) of the Act, 42 U.S.C. § 1320a-7(a)(3), requires the mandatory
exclusion from participation in Medicare, Medicaid, and all other federal health care
programs of “[a]ny individual or entity that has been convicted for an offense which
occurred after [August 21, 1996,] under Federal or State law, in connection with the
delivery of a health care item or service or with respect to any act or omission in a health
care program (other than those specifically described in [section 1128(a)(1)] operated by
or financed in whole or in part by any Federal, State, or local government agency, of a
criminal offense consisting of a felony related to fraud, theft, embezzlement, breach of
fiduciary responsibility, or other financial misconduct.” The regulation implementing
section 1128(a)(3) appears at 42 C.F.R. § 1001.101(c)(1).

The crime of Fraudulent Insurance Act is defined as a felony in Michigan and is
proscribed by MICH. COMP. LAWS § 500.4511(1), which provides:

A person who commits a fraudulent insurance act under section 4503 is
guilty of a felony punishable by imprisonment for not more than 4 years or
a fine of not more than $50,000.00, or both...

In Michigan, the crime of Obtaining a Controlled Substance by Fraud is prohibited by
MICH. COMP. LAWS § 333.7407(1)(c), which makes it a felony to:

Acquire or obtain possession of a controlled substance by
misrepresentation, fraud, forgery, deception, or subterfuge.

Based on another provision of Michigan law, the misdemeanor offense of Making a False
Prescription is defined by MICH. COMP. LAWS § 333.17766(c) as conduct that “[f]alsely
makes, utters, publishes, passes, alters, or forges a prescription.”
4

The Act defines “conviction” as including those circumstances “when a judgment of
conviction has been entered against the individual... bya... State... court, regardless
of... whether the judgment of conviction or other record relating to criminal conduct has
been expunged,” section 1128(i)(1) of the Act; “when there has been a finding of guilt
against the individual... bya... State... court,” section 1128(i)(2) of the Act; “when a
plea of guilty or nolo contendere by the individual .. . has been accepted by a... State. .
. court,” section 1128(i)(3) of the Act; or “when the individual . . . has entered into
participation ina... deferred adjudication . . . program where judgment of conviction has
been withheld,” section 1128(i)(4) of the Act, 42 U.S.C. §§ 1320a-7(i)(1)-(4). These
definitions are repeated at 42 C.F.R. § 1001.2.

An exclusion based in section 1128(a)(3) is mandatory and the I.G. must impose it for a
minimum period of five years. Section 1128(c)(3)(B) of the Act, 42 U.S.C. § 1320a-
7(c)(3)(B). The regulatory language of 42 C.F.R. § 1001.102(a) affirms the statutory
provision.

IV. Findings and Conclusions
I find and conclude as follows:

1. On her pleas of guilty on August 4, 2005, in the Sixth Circuit Court for Oakland
County, Michigan, Petitioner Charmaine Sue Moon was found guilty of three felony
offenses of Fraudulent Insurance Acts in violation of MICH. COMP. LAWS § 500.4511(1),
as well as three misdemeanor offenses of Making a False Prescription, in violation of
MICH. COMP. LAWS § 333.17766(c). I.G. Exs. 2, 3, 4.

2. Final judgment of conviction was entered against Petitioner and sentence was imposed
upon her in the Circuit Court on September 15, 2005. LG. Ex. 2.

3. The accepted pleas of guilty, findings of guilt, judgment of conviction, and sentence
described above constitute a “conviction” within the meaning of sections 1128(a)(3) and
1128(i)(1), (2), and (3) of the Act, and 42 C.F.R. § 1001.2.

4. The felony criminal offenses to which Petitioner pleaded guilty and of which she was
found guilty (as noted above in Findings | and 2), and on which pleas and finding of guilt
the final judgment of conviction was entered and sentence imposed, as noted in Finding 3,
related to fraud in connection with the delivery of a health care item or service and
occurred after August 21, 1996. I.G. Exs. 2, 3, 4.
5

5. On July 31, 2007, the LG. notified Petitioner that she was to be excluded from
participation in Medicare, Medicaid, and all other federal health care programs for a
period of five years, based on the authority set out in section 1128(a)(3) of the Act. I.G.
Ex. 1.

6. Acting through counsel, Petitioner perfected her appeal from the I.G.’s action by filing
a timely hearing request on September 27, 2007.

7. By reason of Petitioner’s conviction, a basis exists for the 1.G.’s exercise of authority,
pursuant to section 1128(a)(3) of the Act, 42 U.S.C. § 1320a-7(a)(3), to exclude Petitioner
from participation in Medicare, Medicaid, and all other federal health care programs.

8. By reason of her conviction, Petitioner was subject to, and the I.G. was required to
impose, the mandatory minimum five-year period of exclusion from Medicare, Medicaid,
and all other federal health care programs. Section 1128(c)(3)(B) of the Act; 42 C.F.R.

§ 1001.102(a).

9. Because the five-year period of Petitioner’s exclusion is the mandatory minimum
period provided by law, it is therefore not unreasonable. Section 1128(c)(3)(B) of the
Act; 42 C.F.R. §§ 1001.102(a) and 1001.2007(a)(2).

10. There are no disputed issues of material fact and summary disposition is
therefore appropriate in this matter. Michael J. Rosen, M.D., DAB No. 2096 (2007);
Thelma Walley, DAB No. 1367 (1992); 42 C.F.R. § 1005.4(b)(12).

V. Discussion

The four essential elements necessary to support an exclusion based on section 1128(a)(3)
of the Act are: (1) the individual to be excluded must have been convicted of a felony
offense; (2) the felony offense must have been based on conduct relating to fraud, theft,
embezzlement, breach of fiduciary responsibility, or other financial misconduct; (3) the
felony offense must have been for conduct in connection with the delivery ofa health
care item or service, or the felony offense must have been with respect to any act or
omission in a health care program operated by or financed in whole or in part by any
federal, state, or local government agency; and (4) the felonious conduct must have
occurred after August 21, 1996. Andrew D. Goddard, DAB No. 2032 (2006); Kenneth M.
Behr, DAB No. 1997 (2005); Erik D. DeSimone, R.Ph., DAB No. 1932 (2004); Jeremy
Robinson, DAB No. 1905 (2004); Morganna Elizabeth Allen, DAB CR1478 (2006);
Theresa A. Bass, DAB CR1397 (2006); Michael Patrick Fryman, DAB CR1261 (2004);
Golden G. Higgwe, D.P.M., DAB CR1229 (2004); Thomas A. Oswald, R.Ph., DAB
CR1216 (2004); Katherine Marie Nielsen, DAB CR1181 (2004).

6

Petitioner does not deny that she has been convicted of felonies. The evidence of her
conviction on three felony charges and three related misdemeanor charges is clear and
undisputed. I.G. Ex. 2, at 6, shows that on August 4, 2005, Petitioner appeared with
counsel in the Circuit Court and pleaded guilty to all six charges. The trial court’s
acceptance of her guilty pleas is demonstrated by the fact that the trial court found
Petitioner guilty and proceeded six weeks later with the imposition of sentence. I.G. Ex.
2, at 7-8. Those events satisfy the definitions of “conviction” set out at sections
1128(4)(1), 1128(4)(2), and 1128(i)(3) of the Act. The I.G. has proven the first essential
element.

Nor is there any serious question about the fourth essential element: the Information
recites dates in October and November 2005 for each of the three felony convictions, and
all are after August 21, 1996. The LG. has proven the fourth essential element.

The second essential element is also met in this case. Element two is established when
the conviction is for an offense involving fraud or other financial misconduct. Petitioner
pleaded guilty to three counts of insurance fraud. I.G. Exs. 2,3, 4. As the charges state,
fraudulent insurance acts involve presenting to an insurer an oral or written statement
“knowing that it contained false information concerning a fact material to an insurance
claim, and did so intending to injure, defraud, or deceive.” I.G. Ex. 2, at 1. Petitioner
acted fraudulently when placing prescriptions for herself in the name of another.

Further, the third essential element is likewise established by the facts. In determining
whether an offense is related to the delivery of a health care item or service, appellate
panels of the Departmental Appeals Board have been consistent in their approach,
considering whether there is a “common sense connection” or “nexus” between the
offense of which a petitioner was convicted and the delivery of a health care item or
service. Andrew D. Goddard, DAB No. 2032; Kenneth M. Behr, DAB No. 1997; Erik D.
DeSimone, R.Ph., DAB No. 1932.

In DeSimone, the Board found that theft of a drug by a pharmacist “while under the guise
of performing his professional responsibilities” fit the required “common sense
connection” to delivery of health care items or services. DAB No. 1932, at 5. Similarly,
in Goddard, a pharmacist convicted for theft of one tablet of a diuretic had an established
nexus because, when performing his duties of dispensing drugs to the general public, the
drug was stolen. DAB No. 2032.
7

Petitioner argues in her brief that the facts that form the basis of the insurance fraud
convictions are not connected to the delivery of a health care item or service within the
meaning of section 1128(a)(3) of the Act. I find to the contrary. Petitioner, a licensed
pharmacist, undertook a prohibited act “while under the guise of performing [her]
professional responsibilities.” See DeSimone, DAB No. 1932, at 5. In her capacity as an
employee of a pharmacy, Petitioner had access to customer information that she utilized
to alter prescriptions submitted as part of insurance claims. I.G. Exs. 2, 3, 4. It was in her
performance of her duty to fill prescriptions for the general public that she altered a
prescription from her name to another’s name. Though the offenses in DeSimone and
Goddard were theft, and Petitioner here was convicted of making fraudulent insurance
claims, the charges fulfill the “common sense connection” requirement.

Petitioner also appears to be fighting the underlying conviction by denying her
fundamental guilt of the charges. This type of collateral attack on a predicate conviction
in an exclusion proceeding is forbidden by case law and regulation. Even if Petitioner’s
self-absolving arguments had merit, they would nonetheless constitute collateral attacks on
the underlying convictions. The settled rule is that collateral attacks on the soundness or
the validity of a predicate conviction are impermissible in this forum. Judy Pederson
Rogers & William Ernest Rogers, DAB No. 2009 (2006); Hassan M. Ibrahim, M.D., DAB
No. 1613 (1997); George Iturralde, M.D., DAB No. 1374 (1992); Olufemi Okonuren,
M.D., DAB No. 1319 (1992); see also Mark C. Sorensen, M.D., DAB CR1664 (2007).
Those cases are supported by the controlling regulation, 42 C.F.R. § 1001.2007(d). Nor
may the effect of Petitioner’s guilty pleas be avoided by the claim that she was unaware of
their consequences. Stella Remedies Lively, DAB CR1369 (2005); Steven Caplan, R.Ph.,
DAB CR1112 (2003), aff'd Steven Caplan v. Thompson, CIV No. 04-0025 1 (D. Haw.
Dec. 17, 2004).

Resolution of a case by summary disposition is appropriate when there are no disputed
issues of material fact and when the undisputed facts, clear and not subject to conflicting
interpretation, demonstrate that one party is entitled to judgment as a matter of law.
Michael J. Rosen, M.D., DAB No. 2096; Thelma Walley, DAB No. 1367. Summary
disposition is authorized by the terms of 42 C.F.R. § 1005.4(b)(12). This forum looks to
FED. R. CIV. P. 56 for guidance in applying that regulation. Robert C. Greenwood, DAB
No. 1423 (1993). The material facts in this case are undisputed, clear, and unambiguous.
They support summary disposition in the I.G.’s favor as a matter of law. This Decision
issues accordingly.
VI. Conclusion

For the reasons set out above, the I.G.’s Motion for Summary Affirmance should be, and it
is, GRANTED. The I.G.’s exclusion of Petitioner Charmaine Sue Moon from
participation in Medicare, Medicaid, and all other federal health care programs for a
period of five years, pursuant to the terms of section 1128(a)(3) of the Act, 42 U.S.C.

§ 1320a-7(a)(3), is thereby affirmed.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of

In re CMS LCD COMPLAINT:,
External Infusion Pumps
(L.5044)

Date: April 14, 2008

Docket No. C-08-315
Decision No. CR1768

DECISION DISMISSING COMPLAINT

By letter dated March 30, 2008, the aggrieved party withdrew his complaint. Pursuant to
42 CLF.R. §§ 420.423(c) and 426.444(b)(7), | must dismiss a complaint concerning an
LCD provision by a decision when the aggrieved party withdraws the complaint.
Accordingly, | order that this complaint be dismissed. The complainant may not file
another complaint regarding the same coverage determination for 6 months from the date
of this decision,

/s/ Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:

Decision No. CR1764
The Inspector General.

)

)

Heidi Jo Anderson, )
) Date: March 25, 2008

Petitioner, )

)
-Vi- ) Docket No. C-08-246

)

)

)

DECISION DISMISSING REQUEST FOR HEARING

I dismiss the hearing request of Petitioner Heidi Jo Anderson because she did not file it
timely.

I. Background

On August 31, 2007 the Inspector General (1.G.) notified Petitioner that she was being
excluded from participating in Medicare and other federally funded health care programs
for a minimum period of five years. On January 14, 2008 Petitioner requested a hearing
and the case was assigned to me for a hearing and a decision.

I held a pre-hearing conference by telephone at which the I.G. advised me that he was
moving to dismiss Petitioner's hearing request on the ground that she had failed to file it
timely. The L.G. then filed a motion to dismiss. Petitioner did not reply to the motion.
IL. Issue, findings of fact and conclusions of law

A. Issue

The issue in this case is whether Petitioner failed to file a timely hearing request.
B. Findings of fact and conclusions of law

Tmake findings of fact and conclusions of law (Findings) to support my decision in this
case. [set forth each Finding below as a separate heading.

1, Petitioner failed to file a timely hearing request.

Regulations governing cases involving the LG. require a party requesting a hearing to file
his or her request within 60 days from the date that he or she receives the LG.'s notice of

intent to Impose remedies. 42 C.F.R. § 1005.2(c). Receipt of the notice ts presumed to be
within five days of the notice’s mailing date. Ad.

The 1.G. mailed his notice of exclusion to Petitioner on August 31, 2007. She is
presumed to have received that notice no later than five days from the date of mailing.
Petitioner offered no evidence to show that she received the notice beyond the
presumptive delivery date. In order to comply with the regulations Petitioner would have
had to file her hearmg request no later than November 5, 2007.

Petitioner did not file her hearing request until January 14. 2008, more than 120 days
from the date when she is presumed to have recvived the 1.G.'s notice. Consequently, her
hearing request is untimely.

2. Tmust dismiss Petitioner's hearing request because she did not file it
timely.

Regulations state that an administrative law judge will dismiss a hearing request when it
is not filed timely. 42 C.F.R. § 1005.2(e)(1). The regulations do not vest me with
discretion to allow a hearing in an instance where a party fails to file timely his or her
hearing request. [| must dismiss Petitioner's hearing request inasmuch as she did not file it
timely.

/s/ Steven T. Kessel
Administrative Law Judge