Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

)
In the Case of: )
) Date: April 12, 2007
IHS of Kansas City at Alpine North, )
(CCN: 26-5379) )
)
Petitioner, )
) Docket No. C-04-472
v. ) Decision No. CR1585
)
Centers for Medicare & Medicaid Services. )
)
a )
DECISION

Petitioner, IHS of Kansas City at Alpine North, did not violate 42 C.F.R. § 483.25! as
alleged based upon the survey completed at the facility on May 20, 2004. There is no
basis for the imposition of an enforcement remedy.

I. Background

Petitioner, a long-term care facility authorized to participate in the Medicare program as a
skilled nursing facility (SNF) and in the Missouri Medicaid program as a nursing facility
(NF), is located in Kansas City, Missouri. The Missouri Department of Health and Senior
Services (the state agency) completed a complaint investigation survey of Petitioner on
May 20, 2004, the results of which are reported in a Statement of Deficiencies (SOD)
dated May 20, 2004. Joint Stipulation of Fact, Court Exhibit (Ct. Ex.) 1. Based upon the
survey findings, the Centers for Medicare & Medicaid Services (CMS) notified Petitioner
by letter dated June 7, 2004, that it was terminating Petitioner’s provider agreement
effective June 12, 2004, and that it was imposing against Petitioner a per instance civil

' All references are to the revision of the Code of Federal Regulations (C.F.R.) in
effect at the time of the survey, unless otherwise indicated.
2

money penalty (PICMP) of $10,000 based upon the deficiency cited under Tag F309? (a
violation of 42 C.F.R. § 483.25) at the level of immediate jeopardy. The CMS notice also
advised Petitioner that the state agency had imposed a denial of payment for new
admissions effective May 26, 2004, which would remain in effect until Petitioner
achieved substantial compliance with program requirements or its provider agreement
was terminated. CMS Exhibit (CMS Ex.) 1, at 13-15; Petitioner’s Exhibit (P. Ex.) 32.
CMS advised Petitioner by letter dated June 15, 2004, that, based upon a state agency
revisit survey, it had determined that immediate jeopardy to patient health and safety had
been removed and that Petitioner’s provider agreement would not be terminated.
However, the revisit survey did not find Petitioner in substantial compliance with
program requirements, and CMS advised that termination would be effectuated in six
months if substantial compliance was not achieved. CMS Ex. 1, at 22-23; P. Ex. 33.

Petitioner requested a hearing by an administrative law judge (ALJ) through
correspondence dated July 23, 2004. The case was assigned to me for hearing and
decision on August 3, 2004. A hearing was held in Kansas City, Missouri, on January 5
and 6, 2005. I admitted CMS exhibits 1 (subject to my rulings during the hearing) and 2.
Transcript (Tr.) 23-31, 209. I also admitted Petitioner’s exhibits 1 through 54. Tr. 36.
Testifying for CMS were Deborah Lou Stevens, R.N., the surveyor who conducted the
May 4, 2004 survey (and who also participated in Petitioner’s annual survey from April
20-27, 2004) (Surveyor Stevens), and Daniel Lee Swagerty, Jr., M.D. (Dr. Swagerty),
CMS’s expert witness. Testifying for Petitioner were Bruce Allen Kauk, M.D. (Dr.
Kauk) and Man Anand, M.D. (Dr. Anand), the involved Resident’s treating physician and
psychiatrist, respectively; facility employees Mary Elizabeth Cook, L.P.N. (LPN Cook),
Sarah Ann Meyer, C.N.A. (CNA Meyer), Sheila Perkins-Koch, R.N. (RN Koch), Lalaine
Poras, R.N. (RN Poras), Susan Miller, R.N. (RN Miller), Regina Renee Smith, L.P.N.
(LPN Smith); and nurse consultants Connie E. Cheren, R.N. (RN Cheren), and Sarah
McGinley, R.N. (RN McGinley). The parties filed post-hearing briefs (CMS Brief and P.
Brief) and post-hearing reply briefs (CMS Reply and P. Reply).

? This is a “Tag” designation as used in the State Operations Manual (SOM),
Appendix PP — Guidance to Surveyors for Long Term Care Facilities. The “Tag” refers
to the specific regulatory provision allegedly violated and CMS’s guidance to surveyors.
Although the SOM does not have the force and effect of law, the provisions of the Social
Security Act (Act) and regulations interpreted clearly do have such force and effect. State
of Indiana by the Indiana Department of Public Welfare v. Sullivan, 934 F.2d 853 (7" Cir.
1991); Northwest Tissue Center v. Shalala, | F.3d 522 (7" Cir. 1993). Thus, while the
Secretary of Health and Human Services (Secretary) may not seek to enforce the
provisions of the SOM, he may seek to enforce the provisions of the Act or regulations as
interpreted by the SOM.
II. Discussion

It is alleged in the May 20, 2004 SOD that Petitioner’s staff failed to recognize a change
in condition in one resident when the Resident’ continued to have an elevated
temperature, decreased intake, and declined from her normal level of activity for
approximately one week before she was sent, on May 4, 2004, to the emergency room,
unresponsive, with a blood pressure of 66/33 (a critically low blood pressure), a 94 degree
core body temperature, septic shock, respiratory failure, urinary tract infection (UTD, and
renal insufficiency. The resident died on May 13, 2004.’ The deficiency was assessed to
be at a level of immediate jeopardy (scope and severity level of J). CMS Ex. 1, at 53.

A. Findings of Fact

The following findings of fact are based upon the exhibits admitted and the testimony at
hearing. Citations to exhibit numbers related to each finding of fact may be found in the
analysis section of this decision if not indicated here.

1. The Resident was admitted to Petitioner’s facility on May 27, 2003, with diagnoses
of hypertension, degenerative joint disease, depression, schizophrenia, SIADH
(syndrome of inappropriate antidiuretic hormone with hyponatremia (low blood
sodium)), compulsive water drinking, and third degree burns in the upper thighs
and perineal area. Ct. Ex. 1; P. Ex. 1, at 23-24.

2. The Resident had a history of resisting care, including eating, which was not easily
altered; depressed, sad or anxious mood, as indicated by reduced social interaction
up to five days a week; needed extensive assistance with activities of daily living;
had range of motion limitations in her leg and foot; was incontinent of bowel and
bladder; had problem conditions including edema and an unsteady gait; had
problems chewing and swallowing; had weight gain; and was involved in activities
only from one-third to two-thirds of the time while awake. CMS Ex. 1, at 645-48;
P. Ex. 1, at 200-06.

> In the SOD the surveyors cite a single deficiency that refers to Resident 12.
Prior to hearing the parties entered a joint stipulation that refers to Resident 1. In post-
hearing briefs, Petitioner refers to Resident 1 and CMS refers to Resident 12. Resident 1
and 12 are, in fact, the same person. I simply refer to “the Resident.” Tr. 13-14.

+ The parties Joint Stipulation states that Resident 1 died on May 12, 2004. Ct.
Ex. 1, at 2. However, Resident 1’s death certificate shows her date of death to be May
13, 2004. P. Ex. 20. Where I refer to Resident 1’s death, I will cite her date of death as
May 13, 2004.
4

The Resident’s care plan reflects a history of upper respiratory infection in
November 2003, January 2004, and February 2004, and of aspiration pneumonia.
P. Ex. 1, at 265-67; CMS Ex. 1, at 628-29, 635, 704.

The Resident did not have a history of UTI. P. Ex. 1, at 1-476; P. Ex. 51, at 1-66;
Tr. 425-26.

The Resident was non-compliant with prescribed diet orders for her mechanical
soft diet with thickened liquids and fluid restrictions, which diet was ordered due
to her swallowing difficulties. P. Ex. 1, at 226-27, 267; P. Ex. 11, at 5; P. Ex. 51,
at 32-33; Tr. 402, 445-48, 463-64, 481, 521.

The Resident’s diet/nourishment consumption record (consumption record) for
April 1, 2004 through April 28, 2004 (the period just before the week in issue),
reflects at least 25 days where she ate 50% or less for at least one meal and, from
April 20 through 27, 2004, she refused four meals. CMS Ex. 1, at 621.

The Resident’s consumption record for April 28, 2004 through May 4, 2004,
shows at least four instances of the Resident’s refusal to eat her meal, and seven
instances, counting dinner on May 1, 2004, and lunch on May 2 and 3, 2004,
where the boxes are empty, and her liquid intake is also reflected as down from the
previous month. CMS Ex. 1, at 54, 619, 621; Tr. 97-102.

Staff reported changes with respect to the Resident’s intake of food. CMS Ex. 1,
at 54-55, 57, 61, 63-65, 179, 183, 196-96A, 212, 219, 246, 248-49, 714-15.

The Resident had a history of fluctuating temperatures, 97 to 99 degrees, during
the period from February 26, 2004 through May 3, 2004, and, according to CMS
expert witness Dr. Swagerty, this is not abnormal. P. Ex. 1, at 47-49, 52-109; P.
Ex. 3; Tr. 271-72.

The Resident also had a history of mildly elevated temperatures in her last year at
the facility, where she returned to normal without adverse problems, according to
Dr. Swagerty. Tr. 271-72.

During the five day period from April 29, 2004 to her hospitalization on May 4,
2004:
5

On April 29, 2004, the Resident experienced an elevated axillary
temperature of 99.5 degrees Fahrenheit; she complained of coughing and
sneezing; Dr. Kauk, her treating physician, was notified; Tylenol was given;
and the fever resolved. P. Ex. 1, at 48, 136; P. Ex. 43; P. Ex. 7, at 13; CMS
Ex. 1, at 55, 295-96, 626-27.

The Resident’s consumption record from April 29, 2004, notes that the
Resident ate 50% of her breakfast, refused to drink, refused lunch and
drink, ate 20% of her dinner, and drank 240 ccs of liquid (CMS Ex. 1, at
621), but the Resident reported that she ate lunch in her room (P. Ex. 1, at
48; P. Ex. 43; P. Ex. 7, at 13).

On April 29, 2004, laboratory specimens were collected for a metabolic
panel. P. Ex. 1, at 307-09; Tr. 421.

Clinical review meeting notes from April 30, 2004, indicate that Dr. Kauk
was to be notified if the Resident was not eating well and was refusing
thickened liquids and that her temperature was to be checked and
appropriate action taken, if necessary. CMS Ex. 1, at 323; P. Ex. 8, at 11.

On April 30, 2004, according to her consumption record, the Resident ate
50% of her breakfast and drank 120 ccs. of liquid, refused lunch, and ate
40% of her dinner. CMS Ex. 1, at 621.

Nursing progress notes from April 30, 2004, indicate that the Resident
refused breakfast and lunch and stated “thick liquids and I don’t get along;”
a facsimile was sent to Dr. Kauk and he gave orders to discontinue
thickened liquids and to monitor for signs and symptoms of cough or
aspiration with intake. P. Ex. 1, at 48, 417, 432; P. Ex. 7, at 14; P. Ex. 22,
at 2; CMS Ex. 1, at 526, 707.

On April 30, 2004, the Resident’s temperature during the 6:00 a.m. to 2:00
p.m. shift was 97 degrees; during the 2:00 p.m. to 10:00 p.m. shift the
Resident’s temperature was recorded as 99.4 degrees orally, and Tylenol
and Benedryl (an order for Benedryl was received on this shift) were given.
P. Ex. 1, at 48, 136, 417, 435; P. Ex. 3, at 3; P. Ex. 7, at 14; P. Ex. 43.

On April 30, 2004, a facsimile was sent to Dr. Anand requesting that he see
the Resident, and she was scheduled for a psychiatric examination with him
on May 2, 2004. P. Ex. 1, at 48, 365.
6

On April 30, 2004, no odor or problems with the Resident’s urine were
noted. CMS Ex. 1, at 184, 239; P. Ex. 12, at 3, 4.

There is no record of Resident’s temperature from May | through May 3,
2004. CMS Ex. 1, at 59-60, 240-41; P. Ex. 3.

On May 1, 2004, the Resident’s consumption record reflects that the
Resident ate 50% of her breakfast and drank 240 ces. of liquid; the Resident
ate 50% of her lunch and drank 370 ccs. of liquid; dinner consumption was
not recorded. P. Ex. 51, at 47.

Notes from the May 1, 2004 clinical review meeting reflect that the
Resident was returned to regular fluids, but that she was to be monitored for
cough and signs of aspiration. P. Ex. 10, at 1; CMS Ex. 1, at 302.

No odor or problems with the Resident’s urine were noted on May 1, 2004.
CMS Ex. 1, at 206; P. Ex. 12, at 5.

On May 1, 2004, the Resident was talking and cracking jokes; she was out
of her room in her wheelchair, nurses providing direct care noted nothing
abnormal about her eating and drinking; there were no complaints of UTI-
type symptoms; the Resident complained of a headache which resolved with
Tylenol. CMS Ex. 1, at 179; P. Ex. 45; Tr. 482-83, 485-86, 487-88.

On May 2, 2004, the Resident’s consumption record reflects that she ate
25% of her breakfast and drank 240 ces. of liquid; nothing is recorded for
lunch; and she ate 15% of her dinner and drank 240 ces. of liquid. P. Ex.
51, at 47.

On May 2, 2004, the Resident received a psychiatric evaluation by Dr.
Anand, ordered due to her resistance to care, depression, mood swings, lack
of energy and decrease in appetite, and he found she had decreased eye
contact but was otherwise stable, he adjusted her medication, ordered a
Thyroid profile, and planned monitoring her. P. Ex. 1, at 310, 449-50; CMS
Ex. 1, at 287-88.

On May 3, 2004, the Resident’s consumption record reflects that she ate
40% of her breakfast and drank 240 ccs. of liquid; her consumption at lunch
is not recorded; and she ate 20% of her dinner and drank 300 ces. of liquid.
CMS Ex. 51, at 47.
7

On May 3, 2004, laboratory results were received and faxed to Dr. Kauk (a
basic metabolic panel collected on April 29, 2004, received at the laboratory
on April 29, 2004, but not reported by the laboratory until May 3, 2004 (P.
Ex. 1, at 307-09)) and he noted no indication that the Resident was critically
ill (Tr. 403).

On May 3, 2004, the Resident’s lung sounds were monitored and assessed,
and there were no signs of aspiration; nursing staff who observed her
reported she seemed normal; during the evening shift she was cracking
jokes and talking; staff who cared for her during the night reported that her
urine was not dark and did not have an odor, she had to be waked to be
changed, her skin was not open, and her bottom was a little red, but not too
red. P. Ex. 1, at 48, 418; P. Ex. 10, at 2; P. Ex. 12, at 6, 12; P. Ex. 22, at 2;
P. Ex. 40; P. Ex. 45; CMS Ex. 1, at 179, 205, 232, 300; Tr. 456, 511, 516-
22.

On May 3, 2004, RN Miller sent a facsimile to Dr. Kauk advising that the
Resident had not eaten well for the past few days and requesting that he see
the Resident on Thursday, May 6, 2004. P. Ex. 51, at 2; CMS Ex. 1, at 370.

On May 4, 2004, the Resident was up between 6:15 and 6:30 a.m, she was
reported to be laughing and joking and was taken to breakfast; she was
alert; she made no complaints of not feeling well; her skin was pink; her
face showed no more edema than normal; her urine had a strong odor but no
stronger than usual for her. P. Ex. 12, at 2, 7,9; P. Ex. 38; CMS Ex. 1, at
174, 180, 224.

On May 4, 2004, at 8:00 a.m., nursing progress notes state that the Resident
was noted to have an increase in edema, had stuffiness, and her lung sounds
were coarse bilaterally; she complained of a headache but was not otherwise
acting sick; she had no fever; she had very little intake by mouth; and a
facsimile was sent to Dr. Kauk requesting orders. CMS Ex. 1, at 388, 696;
P. Ex. 1, at 49.

A note on May 4, 2004, at 8:30 a.m., shows that vital signs were taken with
blood pressure 63/33 and a temperature of 97 degrees, oxygen by nasal
cannula was started, and Dr. Kauk was called. CMS. Ex. 1, at 696; P. Ex.
1, at 49.
8

x. A note from May 4, 2004, at 8:50 a.m., shows that Dr. Kauk directed that
the Resident be sent to the hospital. CMS Ex. 1, at 696; P. Ex. 1, at 49.

y. The Resident was transported to the emergency room at North Kansas City
Hospital at 9:05 a.m. on May 4, 2004, where she was admitted with a
diagnosis of urosepsis, among other things. P. Ex. 1, at 49; P. Ex. 16, at 7;
CMS Ex. 1, at 134-35, 413-14, 696.

Zz. The evidence does not show when the Resident developed a UTI or kidney
infection that resulted in the urosepsis diagnosed upon her admission to the

hospital.

aa. On May 13, 2004, the Resident died of respiratory failure at North Kansas
City Hospital, due to sepsis, site unknown, and aspiration. P. Ex. 20.

B. Conclusions of Law

1. Petitioner timely requested a hearing and I have jurisdiction.

2. Pursuant to 42 C.F.R. § 483.25 (Tag F309), each resident of a facility must
receive, and the facility must provide, the necessary care and services to allow a
resident to attain or maintain the highest practicable physical, mental, and
psychosocial well-being possible, in accordance with the resident’s comprehensive

assessment and plan of care.

3. Petitioner provided the necessary care and services to the Resident pursuant to 42
C.F.R. § 483.25 (Tag F309).

4. The remedies proposed by CMS are not reasonable, because Petitioner was in
compliance with participation requirements.

C. Issues
The issues in this case are:

Whether there is a basis for the imposition of an enforcement
remedy; and,

Whether the remedy imposed is reasonable.
D. Applicable Law

Petitioner is a long-term care facility participating in the federal Medicare program as a
SNF and in the state Medicaid program as a NF. The statutory and regulatory
requirements for participation by a long-term care facility are found at sections 1819 and
1919 of the Act and at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act vest the
Secretary with the authority to impose remedies, including denial of payment for new
admissions (DPNA) and CMPs, against a long-term care facility for the failure to comply
substantially with federal participation requirements.

Pursuant to the Act, the Secretary has delegated to CMS and the states the authority to
impose remedies against a long-term care facility that is not complying substantially with
federal participation requirements. 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, 488.300-488.335. Pursuant to 42 C.F.R. Part 488, CMS may impose a CMP or
PICMP 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; 488.430. The regulations in 42 C.F.R. Part 488 also give CMS a
number of other remedies that can be imposed if a facility is not in compliance with
Medicare requirements. Jd. Pursuant to 42 C.F.R. § 488.301, “(i)mmediate jeopardy
means 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.” (emphasis in original). Further, “(s)ubstantial compliance means 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.” /d. (emphasis in original).

The regulations specify that a CMP that is imposed against a facility on a per day basis
will fall into one of two ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper
range of CMP, of from $3,050 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)(i), (d)(2). The lower range of
CMP, from $50 per day to $3,000 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). There is only a single range of $1,000 to $10,000 for a PICMP, which
applies whether or not immediate jeopardy is present. 42 C.F.R. §§ 488.408(d)(1)(iv);
488.438(a)(2).
10

The Act and regulations make a hearing before an ALJ available to a long-term facility
against whom CMS has determined to impose a CMP. Act, section 1128A(c)(2); 42
C.F.R. §§ 488.408(g); 498.3(b)(13). The hearing before an ALJ is a de novo proceeding.
Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd, 941 F.2d 678 (8" Cir. 1991);
Emerald Oaks, DAB No. 1800, at 11 (2001); Beechwood Sanitarium, DAB No. 1906
(2004); Cal Turner Extended Care Pavilion, DAB No. 2030 (2006); The Residence at
Salem Woods, DAB No. 2052 (2006). A facility has a right to appeal a “certification of
noncompliance leading to an enforcement remedy.” 42 C.F.R. § 488.408(g)(1); see also
42 C.F.R. §§ 488.330(e) and 498.3. However, the choice of remedies by CMS or the
factors CMS considered when choosing remedies are not subject to review. 42 C.F.R.

§ 488.408(g)(2). A facility may only challenge the scope and severity level of
noncompliance found by CMS if a successful challenge would affect the amount of the
CMP 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)(i). 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, 38 (2000), aff'd, Woodstock Care Center v. Thompson, 363
F.3d 583 (6" Cir. 2003). The Departmental Appeals Board (the Board) has long held that
the net effect of the regulations is that a provider has no right to challenge the scope and
severity level assigned to a noncompliance finding, except in the situation where that
finding was the basis for an immediate jeopardy determination. See, e.g., Ridge Terrace,
DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000). Review of a CMP by
an ALJ is governed by 42 C.F.R. § 488.438(e).

When a penalty is proposed and appealed, CMS must make a prima facie case that the
facility has failed to comply substantially with federal participation requirements. “Prima
facie” means that the evidence is “(s)ufficient to establish a fact or raise a presumption
unless disproved or rebutted.” Black’s Law Dictionary 1228 (8" ed. 2004). See also,
Hillman Rehabilitation Center, DAB No. 1611, at 8 (1997), aff'd Hillman Rehabilitation
Center v. U.S. Dept. of Health and Human Services, No. 98-3789 (D.N.J. May 13, 1999).
To prevail, a long-term care facility must overcome CMS’s showing by a preponderance
of the evidence. Batavia Nursing and Convalescent Center, DAB No. 1904 (2004);
Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Emerald Oaks, DAB No.
1800 (2001); Cross Creek Health Care Center, DAB No. 1665 (1998); Evergreene
Nursing Care Center, DAB No. 2069, at 7-8 (2007). Petitioner does not agree with the
allocation of the burden of proof in a manner similar to that described in these prior cases
from the Board (P. Brief at 3). However, the burden of persuasion is not an issue in this
case because the evidence is not in equipoise. Tri-County Extended Care Center, DAB
No. 2060 (2007).

11

E. Analysis

1. Petitioner proved by a preponderance of the evidence that it was in
substantial compliance with 42 C.F.R. § 483.25 (Tag F309) at all
relevant times.

The general quality of care standard is established by 42 C.F.R. § 483.25, which provides:

Each resident must receive and the facility must provide 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 based upon the May 2004 SOD that Petitioner violated 42 C.F.R. § 483.25
(Tag F309) by failing to provide necessary care and services for the Resident. CMS
alleges specifically that Petitioner’s “staff failed to recognize a change of condition and to
assess, and fully inform the physician of changes in one resident... when the resident
continued to have an elevated temperature, her intake decreased, and her normal activity
level declined during a period of approximately one week before the facility sent her to
the emergency room in an unresponsive state.” CMS Brief at 1-2, citing CMS Ex. 1, at
53. The parties stipulated that the Resident was a resident at Petitioner’s facility from
May 27, 2003 to May 4, 2004, except for periods of hospitalization. She was admitted to
North Kansas City Hospital on May 4, 2004, where she died on May 13, 2004. Ct. Ex. 1,
at 2; P. Ex. 20. Petitioner’s care of the Resident involved was not perfect in this case, but,
given the Resident’s complex medical situation, Petitioner’s staff acted reasonably in
providing necessary care and services. Based upon all the evidence, I conclude that
Petitioner has proved by a preponderance of the evidence that it provided necessary care
and services to Resident 1; that it was in compliance with Tag F309 at all relevant times;
and that there was no violation of 42 C.F.R. § 483.25.

Petitioner initially argues (P. Brief at 3-5) that the deficiency was not properly cited and
that, if a deficiency was to be cited at all, it should have been cited under Tag F157 asa
violation of 42 C.F.R. § 483.10(b)(11). However, it is clear to me from the language of
the SOD, the testimony of the surveyor, the arguments of counsel (CMS Brief at 2 n.2),
and the discussion on the record (Tr. 41-44), that the surveyor intended to cite a general
failure by Petitioner to care for the Resident rather than the more specific citation of a
failure to contact the Resident’s physician and notify the physician regarding a significant
change in the Resident’s condition under Tag F157. I see no rationale for limiting the
surveyor’s or CMS’s discretion to cite an alleged violation under one tag or regulation or
another. The question I need to resolve is whether or not the evidence presented by CMS

12

makes a prima facie case of a deficiency under the regulation cited. Because CMS chose
to proceed with an alleged violation of the regulations under Tag F309, I analyze the case
as a violation of 42 C.F.R. § 483.25, Tag F309.

Petitioner next argues that, even if CMS had properly cited a violation of the participation
requirement at Tag F309, the facility should only be held responsible for identifying [and
reporting] “significant changes” rather than “subtle” changes in the Resident’s condition.
Petitioner also refers to two cases where it asserts that ALJs have not held facilities to be
responsible for failing to identify subtle changes in a resident’s condition. P. Brief at 6-7,
citing Autumn Care of Norfolk, DAB CR1017 (2003) and Beverly Health and
Rehabilitation - - Springhill, DAB CR553 (1998), aff'd, DAB No. 1696 (1999).
Petitioner confuses the standard applicable under Tag F157 (which requires reporting of
“significant changes” to the attending physician), with the standard applicable under Tag
F309 (which requires the provision of care such that residents can attain or maintain their
ighest practicable physical, mental, and psychosocial well-being consistent with their
comprehensive assessment and plan of care). In reviewing this case under Tag F309, I
focus on the facts in order to determine whether or not Petitioner delivered the
appropriate quality of care required to this Resident.’
CMS’s position is that Petitioner did not fully assess the Resident and then failed to
inform her attending physician regarding changes in her condition, including two elevated
temperatures, a decline in her intake of food and fluid, and a change in her activity level.
CMS’s expert witness, Dr. Swagerty, testified on behalf of CMS that, in his opinion,
Petitioner’s staff failed to do a medical assessment sufficient to diagnose the Resident’s
condition, to rule out various potential causes of her condition, and to provide care
consistent with her assessed condition and need for care. CMS Brief at 9, citing Tr. 211-
13, 228, 288-89. Dr. Swagerty’s testimony, however, is obviously influenced by his
review of the surveyor allegations in the survey documents. His opinions were developed
with the benefit of hindsight and the ability to examine the entire record submitted by the
parties, including the records from the Resident’s hospitalization. I do not find Dr.
Swagerty’s opinions and conclusions to be particularly weighty in analyzing the reaction
of Petitioner’s staff as events with the Resident unfolded.

* The deficiencies alleged by the surveyors and CMS were based on a review of
Petitioner’s records. My review as to whether or not Petitioner provided the quality of
care required focuses upon what is reflected in Petitioner’s records regarding the
Resident. I give more weight to what is reflected in these contemporaneous documents
than the potentially faulty memories of staff, whether in testimony, by affidavit, or as
recorded by the surveyor in the SOD or the surveyor notes.
13

The Resident’s records reflect that she presented a complicated medical picture. Her
records also reflect that her treating physician, a psychiatrist, and Petitioner’s staff were
all significantly involved in assessing and treating the Resident’s multiple conditions.

The Resident was admitted to Petitioner’s facility on May 27, 2003, with diagnoses of
ypertension, degenerative joint disease, depression, schizophrenia, SIADH (syndrome of
inappropriate antidiuretic hormone with hyponatremia (low blood sodium)), compulsive
water drinking, and third degree burns in the upper thighs and perineal area. Ct. Ex. 1; P.
Ex. 1, at 23-24. The Resident’s March 23, 2004 minimum data set (MDS) (the MDS
apparently completed closest to the May 20, 2004 survey date) reflects, among other
things, that the Resident had problems with long and short-term memory; had moderately
impaired decision-making skills; exhibited socially inappropriate and disruptive

ehaviors; resisted care, including eating, which was not easily altered; had indicators of
depressed, sad or anxious mood, as indicated by reduced social interaction up to five days
a week; needed extensive assistance with activities of daily living; had range of motion
limitations in her leg and foot; was incontinent of bowel and bladder; had problem
conditions including edema and an unsteady gait; had problems chewing and swallowing;
ad weight gain; and was involved in activities only from one-third to two-thirds of the
time while awake. CMS Ex. 1, at 645-48. This is consistent with a March 9, 2004 MDS,
which also indicated that the Resident was not involved in group activities, but was at
ease interacting with others, doing planned or structured activities, or doing self-initiated
activities, and that a wheelchair (where she wheeled herself) was her primary mode of
locomotion. P. Ex. 1, at 200-06.

The Resident’s care plan reflects a history of upper respiratory infection in November
2003, January 2004, and February 2004, and of aspiration pneumonia. P. Ex. 1, at 265-
67; CMS Ex. 1, at 628-29, 635, 704. Neither the Resident’s care plan nor her medical
records reflect a history of UTI. P. Ex. 1, at 1-476 (especially page 212); P. Ex. 51, at 1-
66; Tr. 425-26. Records reflect that the Resident was non-compliant with prescribed diet
orders for her mechanical soft diet with thickened liquids and fluid restrictions, which
diet was ordered due to her swallowing difficulties. The Resident would refuse food
served at mealtimes, confiscate food and drink from other residents’ food trays, and
borrow money to purchase soft drinks. The Resident hid food in her wheelchair. P. Ex.
1, at 226-27, 267; P. Ex. 11, at 5; P. Ex. 51, at 32-33; Tr. 445-48, 463-64, 481, 521. Dr.
Kauk, the Resident’s physician, was aware that the Resident kept food in her wheelchair,
got food from vending machines, and often ate meals in her room. Tr. 402.

The Resident’s resident assessment protocol (RAP) for behavioral symptoms, dated
March 9, 2004, specifically noted that there were times when she was verbally abusive,
socially inappropriate, and resistive to care, especially pertaining to fluid restriction. The
behavior occurred any time the Resident was approached by staff regarding her fluid
14

restriction and her order regarding the receipt of thickened liquids. The Resident’s
behavior increased her risk for edema, and such fluid build-up could lead to pneumonia.
Petitioner’s staff tried to redirect the Resident by reminding her about the affect of her
behavior on her health. P. Ex. 1, at 216-17. Due to the Resident’s fluid restrictions, the
Resident’s RAP protocol for March 9, 2004, noted that she needed to be monitored for
electrolyte imbalance, dehydration, and fluid overload. P. Ex. 1, at 229.

The Resident’s consumption record for April 1, 2004 through April 28, 2004 (the period
just before the week in issue and including the annual survey in which Surveyor Stevens
participated), notes at least 25 days where she ate 50% or less for at least one meal. And,
from April 20 through 27, 2004, she refused four meals. CMS Ex. 1, at 621. The
Resident’s consumption record for April 28, 2004 through May 5, 2004, shows at least
four and possibly seven instances of the Resident’s refusal to eat her meal (seven
counting dinner on May 1, 2004, and lunch on May 2 and 3, 2004, where the boxes are
empty) and her liquid intake is also reflected as down from the previous month (CMS Ex.
1, at 54, 619, 621; Tr. 97-102). Staff reported changes with respect to the Resident’s
intake of food. CMS Ex. 1, at 54-55, 57, 61, 63-65, 179, 183, 196-96A, 212, 219, 246,
248-9, 714-15.

The Resident’s RAP for mood state, dated March 9, 2004, indicated that the Resident had
never been very socially active (although she was up in her wheelchair and out of her
room daily), but that she interracted with staff. P. Ex. 1, at214. The Resident was
independent and vocal. Prior to May | and 2, 2004, she would stay in her room to watch
T.V. She would also take meals in her room. Tr. 481-82; 490.

The Resident had a history of fluctuating temperatures during the period from February
26, 2004 through May 3, 2004. P. Ex. 1, at 47-49, 52-109; P. Ex. 3 (a summary of
Petitioner’s fluctuating temperatures prepared by Petitioner). Dr. Swagerty, CMS’s
expert witness, testified that the Resident’s average temperature fluctuated from 97 to 99
degrees, and opined that a normal temperature varies even if an individual is not sick. Dr.
Swagerty stated also that the Resident had mildly elevated temperatures in her last year at
the facility, where she returned to normal without adverse problems. Tr. 271-72.

On April 29, 2004, the Resident experienced an elevated axillary temperature of 99.5
degrees Fahrenheit, which equates to 100.5 degrees orally. CMS Ex. 1, at 55. The
Resident complained of coughing and sneezing and Dr. Kauk was notified. Tylenol was
given. The coughing was not witnessed by staff. P. Ex. 1, at 48, 136; P. Ex. 43; P. Ex. 7,
at 13; CMS Ex. 1, at 295-96, 626-27.
15

The Resident’s consumption record from April 29, 2004, notes that the Resident ate 50%
of her breakfast, refused to drink, refused lunch and drink, ate 20% of her dinner, and
drank 240 ces of liquid. CMS Ex. 1, at 621. The Resident reported that she ate lunch in
her room (although she apparently did not eat what she was served, given the notation in
her consumption record), and she ate dinner in her room. P. Ex. 1, at 48; P. Ex. 43; P. Ex.
7, at 13. On April 29, 2004, laboratory specimens were collected for a metabolic panel.
P. Ex. 1, at 307-09; see Tr. 421. According to Dr. Kauk, normally the laboratory should
have reported results in 48 hours, except in an emergency case. He opined that no
urinalysis was ordered on April 29, as there were no specific symptoms identified related
toa UTI. Tr. 399. On cross-examination he noted that between April 29 and May 3,
2004, there was a weekend. Tr. 421.

On April 30, 2004, clinical review meeting notes indicate that Dr. Kauk was to be notified
if the Resident was not eating well and was refusing thickened liquids. It was noted that
her temperature was to be checked and appropriate action taken, if necessary. CMS Ex.
1, at 323. On April 30, 2004, according to her consumption record, the Resident ate 50%
of her breakfast and drank 120 ces. of liquid, and then refused lunch. CMS Ex. 1, at 621.
Nursing progress notes indicate that she refused breakfast and lunch and stated “thick
liquids and I don’t get along.” P. Ex. 1, at48; CMS Ex. 1, at 707. A facsimile was sent
to Dr. Kauk and he gave orders to discontinue thickened liquids and to monitor for signs
and symptoms of cough or aspiration with intake. P. Ex. 1, at 48; CMS Ex. 1, at 526,
707; P. Ex. 1, at 417, 432; P. Ex. 7, at 14; P. Ex. 22, at 2. The Resident ate 40% of her
dinner. CMS Ex. 1, at 621.

On April 30, 2004, the Resident’s temperature during the 6:00 a.m. to 2:00 p.m. shift was
97 degrees. During the 2:00 p.m. to 10:00 p.m. shift the Resident’s temperature was 99.4
degrees orally. Tylenol and Benedryl (an order for Benedryl was received on this shift)
were given. P. Ex. 43; P. Ex. 1, at 48, 136, 417, 435; P. Ex. 3, at 3; P. Ex. 7, at 14. There
is no record that Resident’s temperature was taken again until May 4, 2004. CMS Ex. 1,
at 59-60, 240-41. On April 30, 2004, a facsimile was sent to Dr. Anand requesting that he
see the Resident. A May 2, 2004 appointment was made. P. Ex. 1, at 48, 365. On April
30, 2004, no odor or problems with the Resident’s urine were noted. CMS Ex. 1, at 184,
239; P. Ex. 12, at 3, 4.

On May 1, 2004, the Resident’s consumption record reflects that the Resident ate 50% of
her breakfast and drank 240 ccs. of liquid. The Resident ate 50% of her lunch and drank
370 ccs. of liquid. Her consumption at dinner was not recorded. P. Ex. 51, at 47. During
a May 1, 2004 clinical review meeting, it was noted that the Resident could now have
regular fluids, but that she was to be monitored for cough and signs of aspiration. P. Ex.
10, at 1; CMS Ex. 1, at 302. No odor or problems with the Resident’s urine were noted
on May 1, 2004. CMS Ex. 1, at 206; P. Ex. 12, at 5. The Resident was talking and
16

cracking jokes on May 1, 2004. CMS Ex. 1, at 179. LPN Smith did not notice anything
abnormal with respect to the Resident’s eating or drinking pattern on May 1, 2004. P. Ex.
45. On May 1, 2004, RN Poras provided direct care to the Resident, giving her
medication and treatments to her hands. Tr. 482-83. The Resident did not complain of
symptoms of a UTI. Tr. 485-86. The Resident complained of a headache and was given
Tylenol, for which she had a standing order. Tr. 487. The Resident was out of her room
in her wheelchair. Tr. 488.

On May 2, 2004, the Resident’s consumption record reflects that she ate 25% of her
breakfast and drank 240 ccs. of liquid and ate 15% of her dinner and drank 240 ccs. of
liquid. Nothing is recorded with regard to her consumption at lunch. P. Ex. 51, at 47.
On May 2, 2004, the Resident received a psychiatric evaluation by Dr. Anand, ordered
due to, among other things, her resistance to care, depression, mood swings, lack of
energy and decrease in appetite. P. Ex. 1, at449. Dr. Anand examined her seated in her
wheelchair. She had decreased eye contact. Dr. Anand found her in stable condition and
adjusted her medications. Dr. Anand intended to monitor her. P. Ex. 1, at 449-50; see
CMS Ex. 1, at 287-88.

On May 3, 2004, blood was drawn from the Resident for a thyroid profile, as ordered by
Dr. Anand on May 2, 2004. P. Ex. 1, at 310, 450. On May 3, 2004, the Resident’s
consumption record reflects that she ate 40% of her breakfast and drank 240 ces. of
liquid. She ate 20% of her dinner and drank 300 ccs. of liquid. Her consumption at lunch
was not recorded. CMS Ex. 51, at 47. On May 3, 2004, an 11:30 a.m. nursing progress
note stated that the Resident was taking meals in her room “this shift.” It was noted that
the Resident’s diet order had been clarified to “Mech. Soft [with] Regular Thin Liquids.”
A call was placed to inform the Resident’s Public Administrator about the change in the
diet orders. Laboratory results were received and faxed to Dr. Kauk (a basic metabolic
panel collected on April 29, 2004, received at the laboratory on April 29, 2004, but not
reported by the laboratory until May 3, 2004 (P. Ex. 1, at 307-09)). The Resident’s lung
sounds were monitored and assessed and there were no signs of aspiration. P. Ex. 1, at
48; P. Ex. 1, at 418; P. Ex. 10, at 2; P. Ex. 22, at 2; CMS Ex. 1, at 300. Dr. Kauk testified
that he reviewed the laboratory results from the lab work drawn on April 29 and reported
on May 3. It did not indicate to Dr. Kauk that the Resident was critically ill. Tr. 403. On
May 3, 2004, RN Miller noted the Resident came to breakfast and lunch and looked
normal. CMS Ex. I, at 205; P. Ex. 12, at 12; Tr. 511. RN Perkins-Koch noted her
behavior was normal that day also. Tr. 456-57; see P. Ex. 40. On May 3, 2004, RN
Miller sent a facsimile to Dr. Kauk stating “Res. not eating well for the past few days.
Please put on your list for Thurs. We will notify if any further change.” P. Ex. 51, at 2;
CMS Ex. 1, at 370. LPN Smith worked with the Resident on the evening of May 3, 2004.
LPN Smith did not observe anything abnormal about her behavior and the Resident did
not complain of pain. The Resident was cracking jokes and talking. LPN Smith bought
17

her a soda and some iced tea and gave her chicken nuggets. LPN Smith provided
incontinence care. Tr. 516-22; P. Ex. 45; CMS Ex. 1, at 179. LPN Smith told Surveyor
Stevens that there was no difference in the Resident’s behavior between May | when she
cared for her and May 3, 2004, when she cared for her again - the Resident was talking
and cracking jokes. CMS Ex. 1, at 179. An LPN who cared for the Resident during the
night of May 3, 2004, told Surveyor Stevens that the Resident appeared normal, her urine
was not dark and did not have an odor, she had to be waked to be changed, her skin was
not open, and her bottom was a little red, but not too red. CMS Ex. 1, at 232; P. Ex. 12, at
6.

Between 6:00 a.m. and 6:45 a.m. on the morning of May 4, 2004, CNA Ganelle Jones
states in her affidavit that she gave the Resident a hat and the Resident asked CNA Jones
to wheel her around the nursing home to show off the hat. CNA Jones then dropped the
Resident off for breakfast. P. Ex. 38. CNA Jones told the surveyor that she helped to
change the Resident. The Resident’s urine had a strong odor, but CNA Jones said her
urine always had a strong odor and there was no change from normal. CMS Ex. 1, at 174,
224; P. Ex. 12, at 7,9. CNA Lynn Collins told the surveyor that the Resident was ready
to get up on May 4, 2004, between 6:15 and 6:30 a.m. The Resident was laughing an
joking. Her skin was pink, her face no more swollen than usual. She was alert. She did
not complain about not feeling well or about itching. CNA Collins did not note odor
from her urine. CMS Ex. 1, at 174, 180; P. Ex. 12, at2. On May 4, 2004, at 8:00 a.m.,
nursing progress notes state that the Resident was noted to have an increase in edema, had
stuffiness, and her lung sounds were coarse bilaterally. The Resident was complaining of
a headache. She had no fever, but was acting sick. She had very little intake by mouth.
A facsimile was sent to Dr. Kauk. The facsimile sent to Dr. Kauk stated specifically that
“TResident] is having a lot of Edema, Stuffiness, etc., Lung Sounds are coarse bilaterally -
Not running a temp but she states she is sick - c/o headache this am - Has had very little
po intake for past few days. Orders?” CMS Ex. 1, at 388. An 8:30 a.m. note stated vital
signs were taken (blood pressure 63/33, temperature 97 degrees), oxygen by nasal cannula
was started, and Dr. Kauk called. An 8:50 a.m. note says Dr. Kauk gave orders to send
the Resident to the hospital, and she was sent there at 9:05 a.m. P. Ex. 1, at 49; CMS Ex.
1, at 696.

The Resident died of respiratory failure at North Kansas City Hospital on May 13, 2004.
The immediate cause of death listed on the Resident’s death certificate was respiratory
failure and the sequential conditions leading to the respiratory failure were sepsis site
unknown and aspiration. P. Ex. 20. A consultative note from the hospital dated May 4,
2004, lists the impression “septic shock probably related to urosepsis” and “acute renal
failure probably related to urosepsis ....” CMS Ex. 1, at 134-35; P. Ex. 16, at 7. A
consultation report from May 10, 2004, lists the impression that the Resident had sepsis
on admission to the hospital on May 4, 2004, with a UTI, presumably due to
18

pyelonephritis (kidney infection). CMS Ex. 1, at 413. Dr. Kauk testified that he was the
Resident’s attending physician throughout her hospitalization until her death and that it
was never clearly determined the site or cause of her infection or sepsis and that lead to
his entry on the death certificate that the site was unknown (P. Ex. 20). Tr. 412-13. He
acknowledged that the Resident had a UTI on admission to the hospital that was treated
aggressively and that was improved or resolved at her death. Tr. 416.

The evidence shows that the Resident did have an elevated temperature on April 29,
2004, which went down after administration of Tylenol but then increased again on April
30, 2004, that her activity-level decreased during the period in question, and that her
intake of food and fluid declined during that period. CMS Ex. 1, at 5, 147, 246-49, 714-
15. CMS acknowledges that the Resident appeared normal and made no specific
complaints consistent with a grave illness until May 4, 2004. CMS Reply at 4.

In its factual analysis, Petitioner focuses upon the period of slightly more than four days,
from April 30, 2004 to the early morning of May 4, 2004. P. Brief at 8. Petitioner’s
analysis, based primarily upon the testimony of staff, is that, until the morning of May 4,
2004, the Resident was normal, and that it was during the morning of May 4, 2004, that
she manifested a significant change in condition that required her hospitalization that day.
Petitioner argues that when the significant change occurred, its staff reacted promptly and
appropriately. P. Brief at 8-10.

Petitioner specifically asserts that, prior to May 4, 2004, the evidence shows that its staff
properly cared for the Resident. On April 29, 2004, the Resident had an axillary (armpit)
temperature of 99.5 degrees with complaints of coughing and sneezing. The Resident’s
physician was called and he ordered Tylenol and the next morning “the fever was
resolved.” P. Brief at 12. According to Petitioner, that is all it needed to do. Petitioner
asserts that contrary to the position taken by CMS and the surveyor, an elevated
temperature does not warrant obtaining a urinalysis for a UTI absent other signs and
symptoms. P. Brief at 15. Petitioner argues that there were no signs and symptoms
displayed by the Resident consistent with a UTI that should have prompted its staff to
treat the Resident as if she had a UTI; the Resident did not complain about symptoms of a
UTI, and she had no history of previous UTI, while she did have a history of aspiration
pneumonia. P. Brief at 16, 17. Petitioner points out that the Resident was able to
communicate, and she was capable of understanding and being understood (which is
consistent with her Minimum Data Set (MDS) from November 2003). P. Brief at 14; P.
Ex. 1, at 182. Petitioner does not dispute that the Resident did display reduced activity
during the period in issue, but notes that she had a history of isolating herself. P. Brief at
15, citing P. Ex. 1, at 200-06; CMS Ex. 1, at 644-48. Petitioner also points out that the
Resident was examined at the request of her treating physician by Dr. Anand, a
psychiatrist, on May 2, 2004, and that he attributed the Resident’s lethargy and reduced
19

appetite to her long-standing depression and he did not identify any signs or symptoms of
a serious illness. CMS Ex. 1, at 454; P. Ex. 1, at 449-50. After Dr. Anand’s visit, when
the Resident’s appetite did not improve, the facility contacted her treating physician and
e decided to see the Resident on his next rounds (apparently believing the loss of
appetite was not an emergency condition (Tr. 407)). Petitioner points out that the records
show that the Resident often consumed less fluid than recommended and the evidence
does not show any change in her fluid intake in the days leading up to May 4, 2004. P.
Brief at 18, citing P. Ex. 1, at 619-21; P. Ex. 51, at 46. The Resident’s treating physician,
while the Resident was at Petitioner’s facility and after her admission to the hospital,
opined that Petitioner did all it should to keep him informed of the Resident’s condition.
He opined that the Resident had multiple vague symptoms prior to May 4, 2004, and that
¢ was promptly notified when she suddenly deteriorated that morning from an
overwhelming infection. Tr. 416-17.

n my decision in JHS of Kansas City at Alpine North, DAB CR1353 (2005), I sustained
CMS’s finding that the facility was out of compliance with the participation requirement
at Tag F309 by evaluating the facts and determining that the facility was unable to rebut
CMS’s prima facie case. In that case, the resident in question had a history of UTI and a
constellation of changes in her condition consistent with the presence of a UTI, including
reddened skin in her perineal area, concentrated and/or foul smelling urine, a persistent
pattern of fever which did not fully resolve prior to hospitalization even after
administration of Tylenol, and a change in her eating pattern. I found those changes
should have alerted facility staff that the resident was ill, possibly suffering from a UTI,
and that the resident’s physician should have been told about the decreased intake, red
perineal area, foul smelling urine, and the repeated elevation of temperature. The facts of
this case are different. The evidence in this case does not show that Petitioner failed to
deliver care and services to the Resident. CMS alleges that Petitioner’s staff failed to
recognize changes in the Resident’s condition, assess those changes, and inform her
physician of the changes when the Resident had an elevated temperature, her intake
decreased, and her activity level declined over a period of approximately one week.
However, when I evaluate the facts of this particular case, I find a Resident with a very
complicated medical picture, which included a diagnoses of depression, resistance to care
(including eating), reduced social interaction, and no history of UTI. While the Resident
did have an elevation in temperature during the period in question, Petitioner took the
Resident’s temperature, her physician was notified of the temperature, and her
temperature resolved with administration of Tylenol. Records indicate that her
temperature rose again next evening and then resolved. Dr. Swagerty testified that the
Resident had a history of fluctuating temperature.° The Resident did show signs of

® Dr. Swagerty testified that although temperature variation is normal, temperature
(continued...)
20

decreased appetite during the week in question, resistance to care, mood swings, and lack
of energy, but the facility contacted her physician to have her diet changed and procured a
psychiatric consultation by Dr. Anand (decreased appetite, among the other symptoms,
being consistent with the Resident’s diagnosis of depression). The facility notified her
physician about her ongoing lack of appetite after her diet order was changed, and he was
scheduled to see her the next time he visited due to her decreased intake.

Petitioner is not strictly liable for ensuring that a resident is correctly diagnosed for all
illnesses. Petitioner was not ignoring the Resident, but rather was acting in concert with
her physician and her psychiatrist to address the most likely causes of her symptoms.
When her condition worsened significantly during the morning of May 4, 2004, Petitioner
immediately communicated with her physician, who had the Resident sent to the
emergency room. The preponderance of the evidence is that Petitioner made reasonable
efforts to deliver necessary care and services in this case.

2. The remedies imposed are not reasonable, as there is no basis for the
imposition of any remedy.

I have found Petitioner in compliance with the participation requirement at Tag F309.
Accordingly, CMS is not authorized to impose a remedy against Petitioner.

Ill. Conclusion

Since there is no basis for the imposition of an enforcement remedy, CMS is not
authorized to impose a remedy against Petitioner.

/s/
Keith W. Sickendick
Administrative Law Judge

°(...continued)
elevation in conjunction with other changes such as decreased activity or oral intake is
concerning and requires close follow-up. Tr. 228-29. The evidence shows that Petitioner
was, in fact, following this Resident and did not simply ignore her temperature variation
and other signs and symptoms.


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Lawrence J. White, D.D.S., ) Date: April 3, 2007

)
Petitioner, )
)

-V.- ) Docket No. C-06-605

) Decision No. CR1584
The Inspector General. )
)

DECISION

This matter is before me in review of the Inspector General’s (I.G.’s) determination to
exclude Petitioner pro se Lawrence J. White, D.D.S. from participation in Medicare,
Medicaid, and all other federal health care programs for a period of 13 years. The I.G.’s
determination to exclude Petitioner is based on the terms of section 1128(a)(3) of the
Social Security Act (Act), 42 U.S.C. § 1320a-7(a)(3). There is a basis for Petitioner’s
exclusion and the undisputed facts in this case require the imposition of the minimum
five-year period of exclusion. As I shall explain below, the facts in this case support the
reasonableness of the I.G.’s determination to enhance that period of exclusion to 13 years.
For those reasons, I sustain the I.G.’s determination.

I. Procedural Background

Petitioner pro se Lawrence J. White, D.D.S., practiced dentistry in the State of New York
since at least the early 1980s. On April 22, 2004, the Federal Grand Jury sitting for the
United States District Court for the Southern District of New York handed up an
Indictment charging Petitioner with one felony count of Health Care Fraud, in violation of
18 U.S.C. § 1347, and 18 felony counts of False Statements Related to Health Care
Matters, in violation of 18 U.S.C. § 1035; all of the charges alleged fraudulent billings in
connection with Petitioner’s practice of dentistry. The Indictment also contained a
forfeiture claim based on 18 U.S.C. § 982.
2

On April 29, 2004, the New York State Department of Health excluded Petitioner from
participation in New York’s Medicaid program. The agency stated: “The Department
has made this determination because you were charged with a crime relating to the
furnishing or billing for medical care, services or supplies.”

Represented by counsel, Petitioner pleaded guilty to Counts One and Two of the
Indictment, and thus admitted his guilt to one violation of 18 U.S.C. § 1347 and one
violation of 18 U.S.C. § 1035. He appeared with counsel for sentencing on March 3,
2005, and was sentenced to two concurrent 24-month terms of incarceration, to be
followed by two concurrent 24-month terms of supervised probation. He was, in
addition, ordered to pay restitution to twelve insurance companies and the State of New
York in the total sum of $212,056 which figure was based on the United States District
Court’s specific finding of that sum as the total amount of loss to the victims of
Petitioner’s conduct. The Indictment’s remaining counts were dismissed on motion of the
United States.

Mandated to do so by the terms of section 1128(a)(3) of the Act, the I.G. began the
process of excluding Petitioner from participation in Medicare, Medicaid, and all other
federal health care programs. On May 31, 2006, the I.G. notified Petitioner that he was
to be excluded for a period of 13 years. The I.G.’s determination to set the period of
exclusion at 13 years was based on the apparent presence of four aggravating factors set
out at 42 C.F.R. $$ 1001.102(b)(1), (b)(2), (b)\(5), and (b)(9).

Petitioner timely sought review of the I.G.’s action in his pro se letter of August 1, 2006.
I convened a prehearing conference by telephone on August 31, 2006, pursuant to 42
C.F.R. § 1005.6. The IG. expressed the intention to seek summary disposition on written
submissions, and I established a schedule for the filing of documents and briefs. That
schedule and other details of the conference are set out in my Order of September 7,
2006. That briefing cycle has been completed, and the record in this case closed February
20, 2007.

The evidentiary record on which I decide this case contains eight exhibits. The I.G. has
proffered I.G.’s Exhibits 1-4 (I.G. Exs. 1-4), and Petitioner has proffered Petitioner’s
Exhibits 1-4 (P. Exs. 1-4). Neither party has objected to the admission of any of these
exhibits, and so all are admitted as designated.
IL. Issues

The factual and legal issues before me are limited to those listed 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

2. Whether the 13-year term of the exclusion is unreasonable.

The controlling authorities require that both issues be resolved in favor of the I.G.’s
position. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(3) of the
Act, for his predicate conviction has been established. A five-year term of exclusion is
the minimum established by section 1128(c)(3)(B) of the Act, 42 U.S.C. § 1320a-
1(c)(3)(B).

All four of the aggravating factors relied on by the I.G. in determining to enhance the
period to 13 years have been proven, and no mitigating factors recognized by regulation
have been pleaded by Petitioner or proven by the evidence before me. The proposed
length of the period of exclusion is within a reasonable range, and is therefore not
unreasonable.

III. 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).
4

The Act defines “conviction” as including those circumstances “when a judgment of
conviction has been entered against the individual .. . by a Federal... court . . . ;” or
“when there has been a finding of guilt against the individual . . . by a Federal . . . court.”
Act, section 1128(i)(1), 42 U.S.C. § 1320a-7(i)(1); Act, section 1128(i)(2), 42 U.S.C.

§ 1320a-7(i)(2). These definitions are repeated at 42 C.F.R. § 1001.2.

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

The minimum mandatory period of exclusion is subject to enhancement in some limited
circumstances and on the I.G.’s proof of narrowly-defined aggravating factors set out at
42 C.F.R. §§ 1001.102(b)(1)-(9). In this case, the I.G. seeks to enhance the period of
Petitioner’s exclusion to 13 years, and relies on the four aggravating factors listed at 42
C.F.R. §§ 1001.102(b)(1), (b)(2), (b)(5), and (b)(9).

If the I.G. determines to enhance the period of exclusion by relying on any of those
aggravating factors, a petitioner may attempt to limit or nullify the proposed enhancement
through proof of certain specifically-defined mitigating factors set out at 42 C.F.R.

§§ 1001.102(c)(1)-(3). In this case, the mitigating factor set out at 42 C.F.R. § 1001.102
(c)(2) requires discussion.

The standard of proof in this case is a preponderance of the evidence. Petitioner bears the
burden of proof and persuasion on any affirmative defenses or mitigating factors and the
1.G. bears the burden on all other issues. 42 C.F.R. §§ 1005.15(b).

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

1. In the United States District Court for the Southern District of New York, on a date
not shown on this record, Petitioner Lawrence J. White, D.D.S., pleaded guilty to one
felony charge of Health Care Fraud, in violation of 18 U.S.C.§ 1347, and one felony
charge of False Statements Relating to Health Care Matters, in violation of 18 U.S.C.
§ 1035. I.G. Ex. 3.

2. Final adjudication of guilt, judgment of conviction, and sentence based on those pleas
of guilty were imposed on Petitioner in the United States District Court on March 3, 2005,
and recorded in its Judgment in a Criminal Case filed on March 9, 2005. I.G. Ex. 3.
5

3. On May 31, 2006, the 1.G. notified Petitioner that he was to be excluded from
participation in Medicare, Medicaid, and all other federal health care programs for a
period of 13 years, based on the authority set out in section 1128(a)(3) of the Act and the
aggravating factors set out at 42 C.F.R. § 1001.102(b)(1), (b)(2), (b)(5), and (b)(9). 1.G.
Ex. 1.

4. Petitioner perfected his appeal from the I.G.’s action by filing a pro se hearing request
on August 1, 2006.

5. The adjudication of guilt, judgment of conviction, and sentence described above in
Findings 1 and 2 constitute a felony conviction within the meanings of sections
1128(a)(3) and 1128(i)(1) and (2) of the Act, and 42 C.F.R. § 1001.2.

6. The conduct that resulted in Petitioner’s conviction described above in Findings 1 and
2 related to financial misconduct. I.G. Exs. 2, 3.

7. The conduct that resulted in Petitioner’s conviction described above in Findings 1 and
2 related to the delivery of a health care item or service. 1.G. Exs. 2, 3.

8. The conduct that resulted in Petitioner’s conviction described above in Findings 1 and
2 occurred after August 21, 1996. I.G. Exs. 2, 3.

9. By reason of his conviction of a felony offense related to financial misconduct in
connection with the delivery of a health care item or service which occurred after August
21, 1996, Petitioner was subject to, and the I.G. was required to impose, a period of
exclusion from participation in Medicare, Medicaid, and all other federal health care
programs of not less than five years. Act, sections 1128(a)(3) and 1128(c)(3)(B).

10. The acts resulting in Petitioner’s conviction as described in Findings 1 and 2 above
caused a financial loss to one or more entities of $212,056. I.G. Ex. 3.

11. Because the acts resulting in Petitioner’s conviction caused a financial loss to one or
more entities of $5,000 or more, the aggravating factor set out in 42 C.F.R.
§ 1001.102(b)(1) is present.

12. The acts resulting in Petitioner’s conviction as described in Findings 1 and 2 above
were committed over a period from July 1997 through October 2003. I.G. Ex. 2, 3.
6

3. Because the acts resulting in Petitioner’s conviction were committed over a period of
one year or more, the aggravating factor set out in 42 C.F.R. § 1001.102(b)(2) is present.

4. As the result of his conviction as described in Findings 1 and 2 above, Petitioner was
sentenced to incarceration for two concurrent terms of 24 months. I.G. Ex. 3.

5. Because Petitioner was sentenced to a term of incarceration, the aggravating factor
set out in 42 C.F.R. § 1001.102(b)(5) is present.

6. As a consequence of the same set of circumstances that served as the basis for the
conviction described in Findings 1 and 2 above, Petitioner has been the subject of an
adverse action by the New York State Department of Health, excluding him from
participation in the New York Medicaid program effective April 29, 2004. I.G. Ex. 4.

17. Because Petitioner has been the subject of an adverse action by the New York State
Department of Health based on the same set of circumstances that served as the basis for
the conviction described in Findings | and 2 above, the aggravating factor set out in 42
C.F.R. § 1001.102(b)(9) is present.

18. None of the mitigating factors set out in 42 C.F.R. §§ 1001.102(c)(1)-(3) is present.

19. The I.G.’s exclusion of Petitioner for a period of 13 years is supported by fact and
law, is within a reasonable range, and is therefore not unreasonable. I.G. Exs. 2, 3, and 4;
Findings 1-18, above.

20. There are no disputed issues of material fact and summary affirmance is appropriate
in this matter. 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 of a 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
7

occurred after August 21, 1996. Andrew D. Goddard, DAB No. 2032 (2006); 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).

Petitioner does not deny the fact of his two-count felony conviction, its character as
financial misconduct, its nexus to the delivery of health care items and services, and the
time when his felonious conduct occurred. He concedes that his two-count conviction is
sufficient to support a mandatory minimum five-year exclusion pursuant to section
1128(a)(3) of the Act. Petitioner’s Answer Brief (P. Ans. Br.) at 1-2. In any case, the
four essential elements are demonstrated in the United States District Court records
before me. I.G. Exs. 2, 3.

Nor does Petitioner deny the facts relied on by the I.G. in asserting the existence of four
aggravating factors. What Petitioner does deny, however, is the reasonableness of the
I.G.’s determination to enhance the period of exclusion to 13 years in reliance on those
facts, and to consider none of the facts asserted by Petitioner as mitigating factors. Thus,
it may be helpful to review all of those facts, beginning with the facts tending to prove the
four aggravating factors on which the I.G. relies.

The first aggravating factor on which the I.G. relies is present when “[tJhe acts resulting
in the conviction, or similar acts . . . caused . . . a financial loss to a Government program
or to one or more entities of $5,000 or more.” 42 C.F.R. § 1001.102(b)(1). Petitioner
was ordered to pay the total of $212,056 in restitution to twelve private insurance
companies and the State of New York as part of his sentence. I.G. Ex. 3, at 5. The
adjudicated amount of restitution is prima facie proof of the amount of loss. Russell J.
Ellicott, D.P.M. DAB CR1552 (2007); Becalo Utuk, DAB CR1547 (2006); Stanley
Junious Benn, DAB CR1501 (2006); Dr. Darren J. James, D.P.M., DAB CR860 (2002).
In this case it is unnecessary to rely on the amount of restitution as the sole statement of
the total loss caused by Petitioner’s crimes, for the sentencing judge explicitly found the
total loss to the insurance companies and the State of New York in the same amount. I.G.
Ex. 3, at 5. That sum satisfies the requirement of 42 C.F.R. § 1001.102(b)(1). The LG.
has established this first aggravating factor.
8

The second aggravating factor asserted by the I.G. is specified at 42 C.F.R.

§ 1001.102(b)(2). That factor is present if “(t]he acts that resulted in the conviction, or
similar acts, were committed over a period of one year or more.” The language of the
first charge to which Petitioner pleaded guilty demonstrates the factor. The telling lines
of Count One of the Indictment read: “From at least in or about July 1997 through in or
about October 2003, in the Southern District of New York and elsewhere, LAWRENCE
WHITE, the defendant, unlawfully, willfully and knowingly did execute, and attempt to
execute, a scheme and artifice to defraud health care benefit programs ....” I.G. Ex. 2,
at 4. Petitioner’s admission of guilt on Count One is sufficient to demonstrate the
temporal span of his crime. The I.G. has established this second aggravating factor.

The third aggravating factor relied on by the I.G. is specified at 42 C.F.R.

§ 1001.102(b)(5), and is present if “[t]he sentence imposed by the court included
incarceration.” The court records show that Petitioner was sentenced to a prison term of
24 months on each count, the two terms to run concurrently. I.G. Ex. 3, at 2. The I.G.
has established this third aggravating factor.

The fourth aggravating factor invoked by the I.G. is set out at 42 C.F.R. § 1001.102(b)(9).
That factor is present when a convicted individual “has been the subject of any other
adverse action by any .. . State . . . government agency or board, if the adverse action is
based on the same set of circumstances that serves as the basis for imposition of the
exclusion.” The New York State Department of Health excluded Petitioner from the New
York Medicaid program in a Notice of Immediate Agency Action dated April 29, 2004.
The Department’s action was explicitly based on the fact that Petitioner had been
“charged with a crime relating to the furnishing or billing for medical care, services or
supplies.” I.G. Ex. 4, at 1. The I.G. has established this fourth aggravating factor.

Evidence relating to aggravating factors may be countered by evidence relating to any of
the mitigating factors set forth at 42 C.F.R. §§ 1001.102(c)(1)-(3). Those mitigating
factors are listed below the regulation’s strict injunction that “[o]nly the following factors
may be considered mitigating ....” 42 C.F.R. § 1001.102(c). As to each mitigating
factor, Petitioner has the burden of proving it by a preponderance of the evidence, for a
mitigating factor is in the nature of an affirmative defense. This allocation of the burden
of proof, set out at 42 C.F.R. § 1005.15(b)(1), has been regularly affirmed in Board
rulings. Stacey R. Gale, DAB No. 1941 (2004); Dr. Darren James, D.P.M., DAB No.
1828, at 7-8 (2002); Barry D. Garfinkel, M.D., DAB No. 1572, at 12 (1996).
9

Here, Petitioner has submitted evidence that implicates only one of the listed mitigating
factors, although he does not urge the presence of that factor clearly. His exhibits suggest
that the state of his physical and emotional health during relevant times contributed to his
criminal behavior, and this suggestion raises the potential application of the mitigating
factor listed at 42 C.F.R. § 1001.102 (c)(2).

The remainder of his position challenges the proven aggravating factors only tangentially.
Petitioner argues that the financial losses caused by his criminal behavior were not as
great as recited by the sentencing court in its Judgment in a Criminal Case, that unclear
billing conventions were to blame for his criminal behavior, that another New York
dentist convicted of similar crimes was sentenced to a shorter term of incarceration, and
that the state board responsible for the professional licensing and discipline of dentists
imposed what he views as a modest term of license suspension. These tangential
arguments can be addressed first, and briefly.

In challenging the accuracy of the loss figures set out in the Judgment in a Criminal Case,
and in claiming that unclear or confusing billing rules contributed to his criminal acts,
Petitioner attempts a collateral attack on his guilty pleas and the two-count conviction
based on them. But insofar as Petitioner now seeks to hedge his admissions of
criminality, he is bound by the facts established by his pleas of guilty to the two counts in
the Indictment, including his specific admissions that “[t]hese claims were false and
fraudulent in that they falsely and fraudulently represented that WHITE had performed
PSRP procedures on patients when in fact, as WHITE well knew, those procedures had
not been performed by WHITE or anyone else in his office.” I.G. Ex. 2, at 4, 5-6. He
may not recant those admissions now. See Susan Malady, R.N., DAB No. 1816 (2002);
Russell J. Ellicott, D.P.M., DAB CR1552; Theodore Sabot, M.D., DAB CR1160 (2004);
Dirk G. Wood, M.D., DAB CR1068 (2003). Any broader form of collateral attack on
predicate convictions in exclusion proceedings is precluded by regulation at 42 C.F.R.

§ 1001.2007(d), a preclusion affirmed repeatedly by the Departmental Appeals Board
(Board). Susan Malady, R.N., DAB No. 1816; Dr. Frank R. Pennington, M.D., DAB No.
1786 (2001); Joann Fletcher Cash, DAB No. 1725 (2000). That principle of preclusion
has been specifically applied to collateral attacks on a sentencing court’s findings as to
amount of loss. Rajitha Goli, M.D., a/k/a Rajitha Bijanki, DAB CR1155 (2004); John V.
Wozniak, DAB CR1108 (2003).

' Even granting the accuracy and relevance of the smaller loss figures Petitioner
offers in P. Ex. 1, at 2-3, the proffered smaller figures are still in excess of $100,000 well
above the $5000 threshold for invoking the “amount of loss” aggravating factor.
10

Petitioner describes the case of another dentist, one Litt, convicted in United States
District Court for the Southern District of New York on a single count of a similar but
unrelated offense. P. Ans. Br, at 2-3; P. Ex. 3. Petitioner points out that Litt caused
somewhat greater losses and did so over a somewhat longer period than Petitioner, but
was sentenced by a different United States District Judge to six months’ community
confinement followed by six months home confinement. This juxtaposition is the basis
for Petitioner’s present claim that because he was more harshly sentenced than Litt, he is
now entitled to offer that alleged disparity in treatment as a factor in mitigation:

The Petitioner’s sentence was much greater at 24 months of incarceration.
If the Petitioner’s sentence was similar to the almost identical Litt case then
the sentence imposed would not have be (sic) as much of an aggravating
factor. The Petitioners (sic) 24 month sentence resulted in severe emotional
and economic hardship that should be considered a mitigating rather than an
aggravating factor.

P. Ans. Br., at 2.

Now, it may be conceivable that Petitioner’s crimes and Litt’s bear comparison, and it
may be possible to argue that there exists some inequitable disparity in the sentences
imposed on the two criminals. But this record does not allow that comparison and
certainly does not permit any such conclusion: the Litt Indictment is not before me, nor is
the presentence report in Petitioner’s case or Litt’s, nor are their respective plea
agreements, nor are complete transcripts of the sentencing hearings in the two cases, nor
are any of the myriad other details that might lead two independent judicial officers to
impose different sentences in separate, unrelated, proceedings on two different
defendants, one of whom pleaded guilty to two counts, and one of whom admitted only a
single charge. See P. Ex. 3, at 13, line 9-14, line 3. But Petitioner’s argument is
essentially irrelevant, for it does not negate the fact that he was sentenced to prison, and
the unpleasant consequences of that prison term are not to be treated as if their
unpleasantness has earned Petitioner some compensatory measure of mitigation outside
the strict limitations of 42 C.F.R. §§ 1001.102(c)(1)-(3). As will be seen below,
Petitioner’s substantial prison term tends to support, rather than contraindicate, the I.G.’s
enhancement of Petitioner’s period of exclusion.

Petitioner’s argument based on his license-suspension proceeding misses the point in a
similar way. He points out that in the license proceeding he was in jeopardy of a
permanent revocation of his license. P. Ans. Br. at 3; P. Ex. 4, at 4. He argues that
because a less-permanent interdiction of his practice was imposed, the I.G. should have
considered that result as a mitigating factor because “(t]he Professional Licensing Board
11

deems it acceptable for Petitioner to resume the practice of dentistry after a one year
suspension, having taken into consideration much of the same aggravating factors as the
DHHS .....” P. Ans. Br. at 3. There is simply no provision in 42 C.F.R. §§ 1001.102
(c)(1)-(3) that would authorize or permit the I.G. to do so, and the law of this forum has
consistently read the list of mitigating factors set out there narrowly. Keith Michael
Everman, D.C., DAB No. 1880 (2003); Frank A. DeLia, D.O., DAB No. 1620 (1997);
See also Detra Tate Fairly, DAB CR1349 (2005). ?

But by any fair reading of his exhibits, Petitioner does raise his potential entitlement to
benefit of the mitigating factor listed at 42 C.F.R. § 1001.102(c)(2). That mitigating
factor is set out in the following language:

(2) The record in the criminal proceedings, including sentencing
documents, demonstrates that the court determined that the individual had a
mental, emotional or physical condition before or during the commission of
the offense that reduced the individual’s culpability .. . .

Petitioner implicates this factor by submitting in this case evidence and arguments made
on his behalf e/sewhere suggesting that the state of his physical and emotional health
during relevant times contributed to his criminal behavior. That evidence and those
arguments require at least a limited discussion here; although they are not ultimately
successful, Petitioner’s pro se status requires that they receive some extra measure of
consideration, and not be simply brushed aside sub silentio. Louis Mathews, DAB No.
1574 (1996); Edward J. Petrus, M.D., et al., DAB No. 1264 (1991).

? T am aware that an important part of the Everman decision explains how the I.G.
and an ALJ may consider facts that do not in themselves amount to mitigating factors if,
but only if, they are connected with a listed mitigating or aggravating factor in a manner
bearing on the appropriate weight to be given that factor. Everman, DAB No. 1880, at 7.
But Petitioner has established none of the listed mitigating factors here, and so the
outcome of the license proceeding has no mitigating factor to illuminate further or explain
in more detail, and has no bearing on the four proven aggravating factors.

> The I.G. appears to have overlooked this issue, or has not been troubled to
address it in the two I.G. briefs placed before me. This is what the I.G. has to say on the
matter: “Petitioner raises circumstances in his reply brief (sic) that he asserts should be
considered as mitigating factors. See Pet. Brief. However, the I.G. does not have
authority to consider these circumstances because they are not identified as mitigating
factors in the regulations. Therefore, Petitioner has not shown that any applicable
mitigating factors are present in his case.” I.G. Reply Br. at 3.
12

The major component of Petitioner’s claim to the mitigation available through 42 C.F.R.
§ 1001.102(c)(2) lies in the undated one-page letter submitted by Z. Block, Ph.D., to the
United States District Judge in connection with Petitioner’s sentencing. P. Ex. 2, at 2.
The letterhead describes Dr. Block as a psychologist, and in his letter Dr. Block writes
that “I have known and worked with Lawrence White off and on for more than thirty
years from his High School days up to the present.” Dr. Block does not describe his
relationship with Petitioner further, and stops short of characterizing it as that of a
therapist or clinical care-provider. It seems likely, but not certain, that Dr. Block’s letter
was among the “numerous letters from numerous individuals from all different walks of
life” to which the sentencing judge and Petitioner’s counsel referred at the sentencing
hearing. P. Ex. 2, at 3-4. Dr. Block’s letter was submitted on Petitioner’s behalf to the
L.G. twice during the pre-exclusion review stages of the I.G.’s determination process. P.
Exs. 1, at 2; 2, at 1.

Dr. Block’s letter describes Petitioner’s emotional makeup as conflict-avoidant and
containing a large measure of “denial as his primary defense mechanism.” P. Ex. 2, at 2.
This statement by Dr. Block has been explicitly relied on by Petitioner twice before the
LG. (P. Ex. 1, at 2, para. 4; P. Ex. 2, at 1, para. 3) and implicitly before the District Court
and the Professional Licensing Board (P. Ex. 2, at 1, para. 3) for the proposition that
Petitioner’s emotional makeup impaired his ability to heed and respond to warning letters
about his billing practices. In combination with Petitioner’s anxiety about his diagnosis
and treatment for Hodgkin’s Lymphoma, Petitioner has built a record suggestive of a
claim of reduced culpability during the times of his crimes.

Now, nothing in this Decision need be understood as trivializing the disruptive effects of
Petitioner’s anxiety about his physical illness, of the physical illness itself, or of avoidant
behavior. And, for purposes of the brief discussion that follows, I am prepared to accept
arguendo that Dr. Block wrote professionally as Petitioner’s therapist, that Petitioner’s
physical illness and treatment were to some degree disruptive of his emotional state, and
that all of these phenomena were contemporaneous with the criminal conduct Petitioner
admitted. But nothing in this information constitutes sufficient evidence to support a
reasonable inference that the sentencing judge made a determination that Petitioner’s
mental, emotional and physical conditions reduced his culpability for his crimes.

In cases like this one, where there is no explicit reference by the sentencing judge to a
petitioner’s reduced culpability because of a “mental, emotional or physical condition,”
the Board has erected a comprehensive schema for the examination of a claim in
mitigation based on 42 C.F.R. § 1001.102(c)(2). The details and application of that
schema can be seen in Russell Mark Posner, DAB No. 2033 (2006) and Arthur C.
Haspel, D.P.M., DAB No. 1929 (2004). The schema is case-specific and requires a
13

search of the sentencing record: it first identifies any “mental, emotional or physical
condition” involved; it seeks information in presentence reports and FED. R. CRIM. P.
32(h) notices; it examines the claims made by and on behalf of a petitioner at sentencing
relative to condition-caused reduced culpability; it considers evidence of a petitioner’s
efforts to obtain treatment and rehabilitation for the identified conditions; it reviews
details of the negative effects of the identified conditions on a petitioner’s life generally
and mental state in particular; and — perhaps most crucially — it inspects the sentence
actually imposed for clear indications that the sentencing judge was moved toward lenity
by a petitioner’s demonstrated condition-caused reduced culpability.

In this case, evidence of Petitioner’s physical and emotional conditions and their effects is
sparse, especially when compared with the record “replete with details” in Haspel, where
the Board found that the requisite judicial determination of reduced culpability had been
demonstrated implicitly. Dr. Block’s letter is the only qualified source of such evidence
in this case, and all else is simply the commentary of non-experts about the effects of
Petitioner’s physical illness and treatment on his emotional state. Dr. Block’s letter is not
even in itself a firm assertion of Petitioner’s reduced culpability: it has been put to that
use only later, in the I.G.’s pre-exclusion review and the state license proceeding. The six
pages of transcript from Petitioner’s sentencing hearing simply do not reveal reliance by
Petitioner or by his counsel on reduced culpability. P. Ex. 2, at 3-8. But — again,
perhaps most crucially — the sentence actually imposed gives no indication of unusual
lenity. It imposes a substantial prison term and orders restitution in a significant amount,
and can in no manner whatsoever be understood as tempered by the sentencing judge’s
belief that Petitioner was less culpable in his crimes because impaired when he committed
them. Thus, I can find neither in the record of Petitioner’s sentencing, nor in the record
before me as a whole, evidence sufficient to support the reasonable inference that the
sentencing judge made the determination of reduced culpability necessary for Petitioner
to claim benefit of the mitigating factor set out at 42 C.F.R. § 1001.102(c)(2). Petitioner
has not established this or any other mitigating factor.

The I.G.’s discretion in weighing the importance of aggravating and mitigating factors in
exclusion cases commands great deference when reviewed by Administrative Law Judges
(ALJs). Jeremy Robinson, DAB No. 1905; Keith Michael Everman, D.C., DAB No.
1880; Stacy Ann Battle, D.D.S., et al., DAB No. 1843 (2002). That deference requires
that the ALJ not substitute her or his own view of what period of exclusion might appear
“best” in any given case for the view of the I.G. on the same evidence. In general, the
Board has insisted that ALJs may reduce an exclusionary period only when they discover
some meaningful evidentiary failing in the aggravating factors upon which the I.G. relied,
14

or when they discover evidence reliably establishing a mitigating factor not considered by
the I.G. in setting the enhanced period. Jeremy Robinson, DAB No. 1905. Where, as
here, all of the aggravating factors on which the I.G. relied are present and there are no
mitigating factors, a holding that the exclusion period chosen by the I.G. was
unreasonable could be reached only through the precise substitution of views that the
doctrine of deference forbids. The only question now before me is whether the exclusion
period is within a reasonable range. In the instant case, the proposed 13-year period is
commensurate with the range established as reasonable in Russell Mark Posner, DAB No.
2033; Stacey R. Gale, DAB No. 1941; Jeremy Robinson, DAB No. 1905; Thomas D.
Harris, DAB No. 1881 (2003); Fereydoon Abir, M.D., DAB No. 1764 (2001); Joann
Fletcher Cash, DAB No. 1725; and Stanley Junious Benn, DAB CR1501.

Summary disposition in a case such as this 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.
Thelma Walley, DAB No. 1367. Summary disposition is explicitly 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 as a matter of law, and this Decision issues accordingly.

VI. Conclusion

For the reasons set out above, the I.G.’s determination to exclude Petitioner Lawrence J.
White, D.D.S. from participation in Medicare, Medicaid, and all other federal health care
programs for a term of 13 years should be, and it is, SUSTAINED, pursuant to section
1128(a)(3) of the Act, 42 U.S.C. § 1320a-7(a)(3).

/s/
Richard J. Smith
Administrative Law Judge