Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Jane Masaazi
(O.L. File Number 2-06-40582-9),

Petitioner
Vv.
The Inspector General.
Docket No. C-10-712
Decision No. CR2264

Date: October 7, 2010

DECISION

This matter is before me on the Inspector General’s (1.G.’s) Motion to Dismiss and arises
from the I.G.’s determination to exclude Petitioner Jane Masaazi from participation in
Medicare, Medicaid, and all federal health care programs, for a period of ten years
pursuant to section 1128(a)(1) of the Social Security Act (Act). 42 U.S.C. § 1320a-
7(a)(1). As I explain below, I find that Petitioner’s request for hearing was not timely
filed as required by 42 C.F.R. §§1001.2007(b) and 1005.2(c), and for that reason I grant
the I.G.’s Motion to Dismiss.

I. Procedural Background

On June 29, 2007, the I.G. notified Petitioner that she was to be excluded from Medicare,
Medicaid, and all other federal health care programs for a period of ten years. The I.G.’s
notice letter informed Petitioner of her appeal rights, advising her that a request for
hearing had to be made in writing within 60 days of her receiving the exclusion letter,
and providing Petitioner with the address to which her request should be mailed.
Petitioner requested review of the exclusion by letter dated May 17, 2010, which letter
was sent via FedEx on May 18, 2010.
I convened a prehearing conference by telephone on June 3, 2010. During the telephone
conference the timeliness of Petitioner’s request for hearing was discussed, and counsel
for the LG. stated his intention to seek the dismissal of the request for hearing as
untimely. I established a briefing schedule by which the parties could submit their
positions and exhibits. In compliance with that schedule, the LG. filed the Motion to
Dismiss, a Brief-in-Chief in support of the Motion (I.G. Br.), and four proposed I.G.
Exhibits (1.G. Exs. 1-4) on June 23, 2010.' Petitioner filed her pleadings in opposition to
the I.G.’s Motion, including her opening brief (P. Ans. Br.), and eight proposed
Petitioner’s Exhibits (P. Exs. 1-8) on July 29, 2010. The L.G. filed a Reply Brief (1.G.
Reply) on August 23, 2010. By electronic correspondence on August 31, 2009,
Petitioner requested an extension of time in which to file her response, and her request
was granted by an extension of time until September 20, 2010. Petitioner filed her
response (P. Resp.) on September 8, 2010.

All briefing is now complete, and the record in this case closed on September 9, 2010.
The evidentiary record before me on which I decide the issues contains the parties’
pleadings and the admitted exhibits, I.G. Exs. 1-4’ and P. Exs. 1-8. I also admit as ALJ
Ex. 1 the FedEx mailer by which Petitioner submitted her request for hearing.

II. Issue

The sole legal issue before me is whether Petitioner’s request for hearing was filed in a
timely manner, in compliance with the terms of 42 C.F.R. §§ 1001.2007(b) and
1005.2(c). If the request was not filed in a timely manner, I am obliged by the mandatory
terms of 42 C.F.R. § 1005.2(e)(1) to dismiss it.

The record before me requires that this issue be resolved against Petitioner. I find her
request for hearing was filed untimely, over two years and ten months past the deadline

' The LG. initially filed the Motion to Dismiss on June 18, 2010 with I.G. Exs. 1-4. But
by electronic correspondence on June 21, 2010 counsel for the I.G. asked that I disregard
the June 18 filing stating that counsel noticed a series of clerical errors in the submission
and that a substitute filing was forthcoming. As noted above, on June 23, 2010 the LG.
filed the substitute Motion, supporting brief, and exhibits. However, the June 18 filing
remains in the record as filed, although I only rely on the June 23, 2010 filing for this
decision.

> Petitioner objects to 1.G. Ex. 4, the declaration of the Director of the I.G.’s Exclusion
Staff. The basis of Petitioner’s objection is that the declaration was not signed before a
notary public. P. Ans. Br. at 9. The declaration is not notarized but is signed and dated
by the declarant. On the reasoning set out in George P. Rowell, M.D., DAB CR974
(2002) and Ronald J. Crisp, M.D., DAB CR724 (2000), and in the absence of any
evidence impugning the authenticity of I.G. Ex. 4, it is admitted.
established by regulation. Petitioner’s argument that she did not receive the I.G.’s notice
letter until April 2, 2010 is unavailing here in the face of settled precedent establishing a
strong presumption of its receipt in due course, and in the absence of any evidence to
support a reasonable showing to the contrary, 42 C.F.R. § 1005.2(e)(1) requires that the
request for hearing be dismissed.

III. Controlling Statutes and Regulations

Section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1), requires the exclusion from
participation in Medicare, Medicaid, and all other federal health care programs of any
individual or entity convicted of a criminal offense related to the delivery of an item or
service under title XVIII of the Act (the Medicare program) or any state health care
program. The terms of section 1128(a)(1) are restated in similar language at 42 C.F.R.
§ 1001.1501(a)(1). This mandatory exclusion must be imposed for a minimum of five
years. Act § 1128(c)(3)(B); 42 U.S.C. § 1320a-7c(3)(b). If aggravating factors are
present, the period of exclusion may be lengthened beyond five years. 42 C.F.R. §
1001.102(b).

The L.G. is charged with effecting exclusions based on sections 1128(a)(1) and
1128(c)(3)(B) of the Act. See 42 C.F.R. § 1001.1001. Ifthe I.G. determines that a
conviction constitutes a proper predicate for the exclusion, he must send notice of his
intent to exclude the affected individual or entity. The affected party is permitted to
respond to this notice of intent with documentary evidence and written argument
concerning whether the exclusion is warranted and any related issues. 42 C.F.R.

§ 1001.2001.

Tf the I.G. remains convinced that exclusion is warranted, he must send written notice of
his final decision to exclude to the affected individual or entity, and must in that notice
provide detailed information on a number of points, including the appeal rights of the
excluded party. 42 C.F.R. § 1001.2002; see also Act §1128(c), 42 U.S.C. § 1320a-7(c).
The individual or entity to be excluded may appeal the exclusion by filing a request for
hearing before an administrative law judge (ALJ). 42 C.F.R. § 1001.2007. That
regulation sets limits on the issues that may be considered on appeal and establishes
requirements for the hearing request’s content. It also establishes a discrete time limit for
the filing of a request for hearing. Specifically, 42 C.F.R. § 1001.2007(b) provides that:

The excluded individual or entity has 60 days from the receipt of notice of
exclusion provided for in [section] 1001.2002 to file a request for such a
hearing.

This filing time limit is reiterated in the regulations governing the conduct of an excluded
party’s appeal before the ALJ that appear at 42 C.F.R. §§ 1005.1-1005.23. The 60-day
deadline is found at 42 C.F.R. § 1005.2(c):
The request for hearing will be made in writing to the DAB; signed by the
petitioner or respondent, or by his or her attorney; and sent by certified
mail. The request must be filed within 60 days after the notice, provided in
accordance with [section] 1001.2002 .. ., is received by the petitioner or
respondent. For purposes of this section, the date of receipt of the notice
letter will be presumed to be 5 days after the date of such notice unless
there is a reasonable showing to the contrary.

The regulation at 42 C.F.R. § 1005.2(e) directs that:

The ALJ will dismiss a hearing request where—
(1) The petitioner’s or the respondent’s hearing request is not filed
in a timely manner.

Finally, the ALJ may not extend the 60-day filing deadline. 42 C.F.R. § 1005.2(e)(1). A
tardy or dilatory petitioner can gain relief only by negating the presumption of receipt
through a “reasonable showing” that the I.G.’s notice letter was not received as presumed
by 42 C.F.R. § 1005.2(c).

IV. Findings of Fact and Conclusions of Law
I find and conclude that:

1. Atall relevant times, Petitioner’s mailing address was 81-59 Commonwealth
Boulevard, Bellrose, New York 11426. P. Ex. 1, paragraphs 1-3; LG. Exs. 1, 2.

2. The LG. mailed notice of the proposed exclusion of Petitioner from Medicare,
Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the
Act to Petitioner’s mailing address on June 29, 2007. LG. Ex. 2.

3. Petitioner is presumed to have received the I.G.’s June 29, 2007 notice of her
exclusion not later than July 5, 2007. LG. Ex. 2; 42 C.F.R. § 1005.2(c).

4. Petitioner has failed to make a reasonable showing that she did not receive the LG.’s
notice on or before July 5, 2007. 42 C.F.R. § 1005.2(c).

5. Petitioner filed her request for hearing dated May 17, 2010 on May 18, 2010. Request
for Hearing at 1; I.G. Ex. 3; ALJ Ex. 1.

6. Petitioner’s request for hearing was not timely filed. 42 C.F.R. §§ 1001.2007(b),
1005.2(c).
7. Petitioner’s request for hearing must be dismissed. 42 C.F.R. § 1005.2(e)(1).
V. Discussion

My ruling on the I.G.’s Motion to Dismiss applies principles long established in the
jurisprudence of this forum.

The first principle is the presumption of the receipt, within five days, of exclusion notices
mailed pursuant to 42 C.F.R. § 1001.2002. This principle is established by regulation at
42 C.F.R. § 1005.2(c), and is acknowledged by the Departmental Appeals Board (Board)
in Sharon R. Anderson, D.P.M., DAB No. 1795 (2001). In the context of this case, that
presumption is invoked by I.G. Ex. 4, the declaration of the Director of the I.G.’s
Exclusions Staff, M. Byer, who asserts that her office’s regular practice in conducting its
official business is to mail exclusion letters on the day they are dated, and that the
exclusion letter sent to Petitioner was not returned as undelivered. I.G. Ex. 4, paragraphs
1, 4, 7. There is no dispute that the mailing address to which the I.G.’s letter was sent,
81-59 Commonwealth Boulevard, Bellrose, New York 11426, was valid at the critical
time at issue. P. Ans. Br. at 4; P. Ex. 1, paragraphs 1-3. Therefore, the presumption
established by 42 C.F.R. § 1005.2(c) — that Petitioner’s receipt of the L.G.’s June 29,
2007 notice letter occurred not later than five days after the date of that notice letter —
establishes July 5, 2007? as the latest date from which the 60-day filing period could be
calculated. As noted, this presumption of receipt has been specifically acknowledged and
endorsed by the Board in Sharon Anderson, D.P.M., DAB No. 1795. A certified mailing
is not required by section 1128(f) of the Act or by 42 C.F.R. § 1001.2002, and
Petitioner’s arguments based on the absence from this case of proof of mailing through
formal certifications have been considered and are rejected here for the reasons they have
been rejected before. George P. Rowell, M.D., DAB CR974; Ronald J. Crisp, M.D.,
DAB CR724.

The second principle is found in 42 C.F.R. § 1005.11(a)(4) which states: “Papers are
considered filed when they are mailed.” A copy of the FedEx mailer Petitioner used to
mail her request to DAB has been marked and entered into the record as ALJ Ex. 1, and
establishes that Petitioner mailed her request for hearing on May 18, 2010. The second
principle establishes the filing date of Petitioner’s request for hearing to be that of May
18, 2010. See ALJ Ex. 1.

The third principle is simply a calculation based on the first two principles: if a request
for hearing is to be timely pursuant to 42 C.F.R. § 1001.2007(b), it must be filed not more

> Because the Fourth of July holiday precluded the delivery of mail on Wednesday, July
4, 2007, the five days for mailing would then fall on the following business day,
Thursday, July 5, 2007.
6

than 65 days after the date of the notice letter to which it responds. The only relief
available from that time limit demands a “reasonable showing to the contrary” of the
presumption set out at 42 C.F.R. § 1005.2(c). Petitioner was required to file her request
for hearing not later than September 4, 2007.4 42 C.F.R. §§ 1001.2007(b), 1005.2(c),
1005.12. There is no dispute that Petitioner’s request for hearing was dated May 17,
2010 and was filed on May 18, 2010, over two years and ten months after the date of the
notice letter. Request for Hearing at 1; I.G. Ex. 3; ALJ Ex. 1.

The fourth principle is the well-established notion that “‘a reasonable showing to the
contrary” of the presumption of timely receipt must be made through demonstration of
articulated facts calling the presumed delivery of the notice directly into question, and not
by mere speculation or self-serving denials of receipt. Alan K. Mitchell, M.D., CR1614
(2007); Andrew M. Perez, DAB CR1371 (2005); Dulal Bhattacharjee, M.D., CR1107
(2003); George P. Rowell, M.D., DAB CR974; Peter D. Farr, M.D., DAB CR909
(2002); Sunil R. Lahiri, M.D., DAB CR296 (1993). To prevail against it, Petitioner must
rebut the presumption of regular delivery through a “reasonable showing” based on
articulated facts shown by real evidence, and not on speculation and unsupported or self-
serving assertions. As I shall discuss below, Petitioner has failed to do so here. Although
Petitioner states in her affidavit that she did not receive the notice of exclusion, she has
offered nothing more than her own unsupported speculation in an attempt to rebut the
presumed delivery of notice. On this record, Petitioner has failed to make “a reasonable
showing to the contrary” of her presumed receipt of the I.G.’s notice letter not later than
July 5, 2007.

The I.G. has established the mailing of the notice of exclusion dated June 29, 2007 to
Petitioner’s address at 81-59 Commonwealth Boulevard, Bellrose, New York 11426
(LG. Ex. 2), the same address where Petitioner concedes she was residing during the
critical time at issue. The notice was not returned as undeliverable. I.G. Ex. 4, paragraph
7. Significantly, that is the same address to which the I.G.’s preliminary exclusion
correspondence was sent on January 16, 2007 without incident and was successfully
delivered.* 1.G. Exs. 1, 2, 4; P. Ans. Br. at 8; P. Ex. 1, paragraphs 1, 2, 4.

* The sixtieth day fell on September 2, 2007, but that being a Sunday and the following
day being the Labor Day holiday, the filing date for Petitioner’s request for hearing was
therefore Tuesday, September 4, 2007.

> Petitioner was initially notified of the I.G.’s intent to exclude her from program
participation based on her conviction in the Nassau County First District Court of the
State of New York, by letter dated January 17, 2007. That letter notified Petitioner of the
impact of the exclusion and provided her opportunity to submit information and
supporting documents for consideration by the I.G. before the I.G. made a final
determination to exclude Petitioner. I.G. Ex. 1.
Petitioner does not dispute receipt of the I.G.’s intent-to-exclude notice, but does dispute
having received the notice of exclusion dated June 29, 2007. P. Ans. Br. at 1-2; P. Ex. 1,
paragraphs 4, 5. According to Petitioner, she first learned of the existence of the notice
letter on or about April 2, 2010 when advised by her attorney that a March 31, 2010
correspondence from the I.G. exclusion staff included a copy of the notice letter. P. Ans.
Br. at 3; P. Ex. 1, paragraph 7. Petitioner admits that she has resided at the
Commonwealth Boulevard mailing address since March 1981, and specifically admits
she was residing at that address from January 16, 2007 up to and including July 5, 2007.
P. Ex. 1, paragraphs 1, 2, 3. Petitioner offers several hypotheses that she claims might
explain her asserted non-receipt of the I.G.’s notice letter: her asserted non-receipt may
be attributable, she says, to the asserted-but-unproven possibility that some unidentified
neighbor received the notice and then failed to return it to postal authorities; or, she says,
to the asserted-but-unproven fact that different mail carriers in her neighborhood over the
years could have made asserted-but-unrecorded errors that resulted in the delivery of mail
to asserted-but-unidentified incorrect addresses and not to the intended addressee. P.
Ans. Br. at 6; P. Ex. 1, paragraphs 14, 16. However, I find Petitioner’s assertions to be
highly speculative and essentially self-serving. There is nothing in the evidence before
me that explains how or why Petitioner should not be presumed to have received her mail
in normal fashion at her residential address during June or July of 2007. Petitioner has
not explained why the notice would not have been brought to her or returned to postal
authorities by neighbors if those neighbors received it in error; much less has she offered
any serious reason to believe that delivery errors occurred at exactly the time necessary to
affect this case. She does not explain why the I.G. received nothing from postal
authorities showing that the notice letter was returned as undelivered. She does not
explain how the concatenation of possible mishaps on which she relies to plead non-
receipt of the I.G.’s notice letter did not prevent the successful delivery of the I.G.’s letter
of January 16, 2007. Petitioner simply has given me no colorable basis to form even a
passing doubt at odds with the presumed regular delivery of the notice letter.

Those deficiencies are fatal shortcomings in her effort to make a “reasonable showing to
the contrary” required to rebut the presumption created by 42 C.F.R. § 1005.2(c). Such a
“reasonable showing to the contrary” requires facts. However, here Petitioner offers only
the speculation that incompetent mail carriers or unconcerned neighbors might have
prevented her receipt of the I.G. notice letter. Nothing else of probative value appears or
is even hinted at in Petitioner’s affidavit, and Petitioner’s affidavit offers nothing beyond
what has been rejected in George P. Rowell, M.D., DAB CR974, and Sunil R. Lahiri,
M.D., DAB CR296. Her unsupported denial of receipt is inherently unreliable and is
extrinsically without a single factual indicator of corroboration or credibility. Petitioner’s
affidavit is insufficient to rebut the presumption that the I.G.’s notice letter was received
not later than July 5, 2007.

In sum, Petitioner’s request for hearing, filed as it was on May 18, 2010, was out-of-time
by nearly three years. The terms of 42 C.F.R. § 1005.2(c) establish the presumptive date
of Petitioner’s receipt of the I.G.’s June 29, 2007 notice letter as not later than July 5,
2007. Sharon Anderson, DAB No. 1795. That presumption has not been rebutted by a
reasonable showing to the contrary. The 60-day period for filing Petitioner’s request for
hearing established by 42 C.F.R. §§1001.2007(b) and 1005.2(c) thus expired on
September 4, 2007. The regulations and the unvarying decisions of this forum deny an
ALJ the authority to extend the filing period. Petitioner’s request for hearing is untimely
and it must be dismissed. 42 C.F.R. § 1005.2(e)(1).

VI. Conclusion

For the reasons set forth above, I grant the I.G.’s motion to dismiss. The request for
hearing filed by Petitioner Jane Masaazi on May 18, 2010 must be, and it is,
DISMISSED.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In re CMS LCD Complaint: Hepatic/(Liver) Function Panel (L29188).
Docket No. C-10-750
Decision No. CR2263

Date: October 5, 2010

DECISION DISMISSING LCD COMPLAINT

The aggrieved party named in this complaint regarding the Local Coverage
Determination (LCD) listed in the title of this case has now filed a request to withdraw
her complaint. Pursuant to 42 C.F.R. ยง 426.444(b)(7), I must dismiss any complaint
withdrawn by the aggrieved party. Section 426.423(c) requires that I issue a decision
dismissing the complaint.

Accordingly, this LCD complaint is dismissed. Pursuant to 42 C.F.R. ยง 426.423(a), the
aggrieved party may not file another complaint regarding the same LCD during the six-
month period following the date of this decision. Because the aggrieved party has

withdrawn the complaint, this decision is not subject to appeal. 42 C.F.R. ยง 426.465(d).

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Oaks of Mid City Nursing and Rehabilitation Center
(CCN: 19-5368),

Petitioner
Vv.

Centers for Medicare and Medicaid Services.
Docket No. C-10-949
Decision No. CR2261

Date: October 4, 2010

DECISION DISMISSING REQUEST FOR HEARING

I dismiss the hearing request of Petitioner, Oaks of Mid City Nursing and Rehabilitation
Center, because it has no right to a hearing.

I. Background

Petitioner is a skilled nursing facility in Baton Rouge, Louisiana. It filed a hearing
request to challenge findings of noncompliance that were made at a survey conducted of
its facility in June 2010 (June Survey). The Centers for Medicare and Medicaid Services
(CMS) moved to dismiss the hearing request, and Petitioner opposed the motion.

IL. Issue, Findings of Fact, and Conclusions of Law

A. Issue

The issue is whether Petitioner has a right to a hearing.
B. Findings of Fact and Conclusions of Law

The basis for CMS’s motion to dismiss is that no remedies were imposed against
Petitioner as a consequence of the June Survey findings. Petitioner does not dispute
CMS’s assertion but contends, essentially, that it should be given a hearing in light of the
possibility that CMS might impose remedies against it at some date in the future.

Petitioner has no right to a hearing, because CMS did not impose a remedy against it. A
skilled nursing facility is entitled to a hearing to challenge findings of noncompliance
only where those findings result in the imposition of a remedy against the facility. 42
C.F.R. § 498.3(b)(13). The answer to Petitioner’s concern that CMS might impose a
remedy against it at some future date is that, if CMS eventually imposes some remedy
against Petitioner based on the June Survey findings of noncompliance, then Petitioner
may request a hearing.

An administrative law judge may dismiss a hearing request where there is no right to a
hearing. 42 C.F.R. § 498.70(b). I dismiss Petitioner’s request.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Henry Marrero,
Petitioner
Vv.
The Inspector General.
Docket No. C-10-709
Decision No. CR2260

Date: October 1, 2010

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Henry
Marrero, from participating in Medicare and other federally funded health care programs
for a minimum period of five years.

I. Background

Petitioner resides in New York and has worked as a nurse aide. The I.G. notified
Petitioner that he was being excluded from participating in Medicare and other federally
funded health care programs. The LG. stated that the basis for his exclusion
determination was that Petitioner had been convicted of a criminal offense relating to
neglect or abuse of a patient in connection with the delivery of a health care item or
service, as is described at section 1128(a)(2) of the Social Security Act (Act). Petitioner
requested a hearing, and the case was assigned to me for a hearing and a decision.

l ordered the parties to submit written exchanges. The I.G. submitted a brief and nine
proposed exhibits, which are identified as I.G. Ex. | — LG. Ex. 9. Petitioner submitted a
brief. Neither party requested that I convene an in-person hearing. I receive into
evidence IG. Ex. 1 — LG. Ex. 9.
IL. Issues, Findings of Fact, and Conclusions of Law
A. Issues
The issues are whether:

1. Petitioner was convicted of a crime for which exclusion is mandated by
section 1128(a)(2) of the Act;

2. The five-year exclusion imposed by the I.G. is mandatory.
B. Findings of Fact and Conclusions of Law
I make the following findings of fact and conclusions of law.

1. Petitioner was convicted of a crime for which exclusion is mandated
by section 1128(a)(2) of the Act.

There is no dispute as to the facts of this case. On April 24, 2009, Petitioner pled guilty
in a New York State court to the crime of willful violation of health laws, an unclassified
misdemeanor under New York law. I.G. Ex. 3 at 4-6; I.G. Ex. 8; I.G. Ex. 9. Petitioner’s
plea was the consequence of an incident in which Petitioner, while working as a nurse
aide in a residential health care facility, slapped and struck an elderly resident who was
resisting care that Petitioner was attempting to provide. I.G. Ex. 5 at 1-2; I.G. Ex. 6 at 1.

Section 1128(a)(2) of the Act mandates the exclusion of any individual who is convicted
of a criminal offense relating to neglect or abuse of a patient in connection with the
delivery of a health care item or service. The facts of this case plainly prove that
Petitioner was convicted of such an offense. Willfully striking a patient — in this case a
very elderly individual — is abuse under any definition of the word. Petitioner committed
his crime in the course of providing care to the victim of his abuse, and, thus, his crime is
related to the delivery of a health care item or service.

2, An exclusion of at least five years is mandatory.

The I.G. must exclude any individual who is convicted of a crime that is described at
section 1128(a)(2) of the Act for a minimum of five years. Act § 128(c)(3)(B). The five-
year exclusion that the I.G. determined to impose here is reasonable as a matter of law.

Petitioner argues that I should take into account circumstances that he contends require
special consideration. He asserts, essentially, that he engaged in no malicious or
premeditated abuse but that he struck the patient in a moment of stress and while
Petitioner was under duress. He expresses remorse for his act. However, Petitioner’s
assertions, while perhaps heartfelt, raise no issues that I may address. As I have stated,
the five-year exclusion that the I.G. determined to impose is mandatory. The Act does
not permit this mandatory period to be reduced or waived based on equitable
considerations, such as those raised by Petitioner.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Cimarron Place Health & Rehabilitation Center
(CCN: 67-6087),

Petitioner
Vv.

Centers for Medicare and Medicaid Services.
Docket No. C-10-502
Decision No. CR2259

Date: October 1, 2010

DECISION DISMISSING REQUEST FOR HEARING

I dismiss Petitioner’s request for a hearing in this case, because it has raised no issue that
I have authority to hear and decide.

I. Background

Petitioner is a skilled nursing facility in the State of Texas. It participates in the Medicare
program. It participates subject to sections 1819 and 1866 of the Social Security Act
(Act) and implementing regulations at 42 C.F.R. Parts 483 and 488. Its hearing rights are
governed by regulations at 42 C.F.R. Part 498.

Petitioner requested a hearing to challenge remedies that CMS determined to impose
against it for alleged noncompliance with Medicare participation requirements. CMS
then moved to dismiss Petitioner’s hearing request, arguing that it had rescinded its
remedy determination and that, therefore, Petitioner no longer had a right to a hearing.
Petitioner did not reply to the motion.
CMS attached two exhibits to its motion, which it identified as CMS Ex. 1 and CMS Ex.
2. I receive these exhibits into the record.

IL. Issue, Findings of Fact, and Conclusions of Law
A. Issue

The issue is whether Petitioner continues to have a right to a hearing after CMS rescinds
its remedy determination.

B. Findings of Fact and Conclusions of Law

I find that Petitioner no longer has a right to a hearing in this case. On March 3, 2010,
CMS notified Petitioner that it was rescinding its remedy determinations. CMS Ex. 2 at
1. A skilled nursing facility has a right to challenge a finding that it failed to comply with
Medicare participation requirements only if CMS has determined to impose remedies
based on that finding. 42 C.F.R. § 498.3(b)(13). Here, CMS originally determined to
impose remedies but then rescinded that determination. CMS’s rescission of its remedies
extinguished Petitioner’s right to a hearing.

I must dismiss a hearing request where a party no longer has a right to a hearing. 42
C.F.R. § 498.70(b). I dismiss Petitioner’s hearing request inasmuch as it no longer has a
right to a hearing.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Capitol House Nursing and Rehab Center
(CCN: 19-5476),
Petitioner
Vv.
Centers for Medicare and Medicaid Services.

Docket No. C-10-854

Decision No. CR2258

Date: October 1, 2010

DECISION

The July 23, 2010 request for hearing filed by Petitioner, Capitol House Nursing and
Rehab Center, is dismissed pursuant to 42 C.F.R. § 498.70(b), as Petitioner has no right
to a hearing.’
I. Background.
Petitioner is located in San Antonio, Texas, and participates in Medicare as a skilled
nursing facility (SNF) and in the state Medicaid program as a nursing facility (NF). On
April 14, 2010, the Louisiana Department of Health and Hospitals (state agency)
completed a survey of the facility and found that it was not in substantial compliance

with federal requirements. The state agency notified Petitioner by letter dated April 27,
2010, that a statutory or mandatory denial of payments for new admissions (DPNA)

' All references are to the 2009 revision of the Code of Federal Regulations (C.F.R.),
unless otherwise indicated.
would be effective July 14, 2010, unless the facility achieved substantial compliance
prior to that date. CMS Ex. 1.?

On July 23, 2010, Petitioner filed its hearing request. The case was assigned to me for
hearing and decision on July 30, 2010. On August 30, 2010, the Centers for Medicare
and Medicaid Services (CMS) filed a motion to dismiss the request for hearing on
grounds that no enforcement remedy was imposed, and Petitioner had no right to a
hearing. On September 21, 2010, Petitioner filed a response opposing the CMS motion
to dismiss on grounds that the motion to dismiss was premature, as Petitioner had not
received notice that no enforcement remedies would be imposed.

IL. Findings of Fact, Conclusions of Law, and Discussion

My conclusions of law are set forth in bold followed by my findings of fact and
discussion.

A. CMS has imposed no enforcement remedies in this case, and,
therefore, Petitioner has no right to hearing before an Administrative
Law Judge (ALJ).

B. I have no jurisdiction or authority to review alleged deficiencies
from a survey absent enforcement remedies based upon those
deficiencies.

C. Dismissal of Petitioner’s request for hearing pursuant to 42 C.F.R.
§ 498.70(b) is appropriate, because Petitioner has no right to a hearing.

The state agency advised Petitioner by its letter dated April 27, 2010, that the statutory
DPNA would be triggered effective July 14, 2010, if Petitioner did not return to
substantial compliance prior to that date. The state agency advised Petitioner by letter
dated August 2, 2010, that a revisit survey found that Petitioner returned to substantial
compliance on May 29, 2010. Accordingly, the statutory DPNA was not triggered.
There is no dispute that CMS has never given Petitioner notice that CMS was imposing
an enforcement remedy based upon the findings of the survey that ended on April 14,
2010. If CMS decides to impose enforcement remedies, notification is required. 42
C.F.R. §§ 488.402(f); 498.20.

> CMS submitted two documents with its motion to dismiss marked as CMS Ex. | and
CMS Ex. 2. Petitioner has not objected to my consideration of either exhibit, and they
are admitted as evidence.
CMS argues in its motion to dismiss: that no remedy was imposed; that Petitioner has no
right to a hearing; and that dismissal of the request for hearing is required. Petitioner
argues that the request for hearing should not be dismissed, because it has not been
notified that CMS will not impose an enforcement remedy. I accept the CMS motion to
dismiss as an affirmative statement of CMS that there is no present intention to impose an
enforcement remedy based upon the April 14, 2010 survey.

A provider does not have a right to a hearing to challenge every action by CMS with
which it disagrees. Only certain actions by CMS or its delegates trigger hearing rights.
In general, a participating long-term care facility will have a right to a hearing if CMS
makes an initial determination to impose an enforcement remedy against that facility. 42
§ 498.3(b)(13). The possible remedies that CMS might impose against a facility are
specified at 42 C.F.R. § 488.406(a). No right to a hearing exists pursuant to 42 §
498.3(b)(13), unless CMS determines to impose - and actually imposes - one of the
specified remedies. 42 C.F.R. § 488.408(g) (“facility may appeal a certification of
noncompliance leading to an enforcement remedy”); Fountain Lake Health & Rehab.,
Inc., DAB No. 1985 (2005); The Lutheran Home - Caledonia, DAB CR674, aff'd, DAB
No. 1753 (2000); Schowalter Villa, DAB CR568, aff'd, DAB No. 1688 (1999); Arcadia
Acres, Inc., DAB CR424, aff'd, DAB No. 1607 (1997); Twin Pines Nursing and Rehab.
Ctr., DAB CR1601 (2007). The Secretary of Health and Human Services specifically
rejected a proposal to grant hearing rights for deficiency findings that were made without
the imposition of remedies. 59 Fed. Reg. 56,116, 56,158 (Nov. 10, 1994) (“[I]f no
remedy is imposed, the provider has suffered no injury calling for an appeal.”).

It is specifically the imposition or proposed imposition of an enforcement remedy and not
the citation of a deficiency that triggers the right to a hearing under 42 C.F.R. Part 498.
When the enforcement remedy is eliminated, so too, is Petitioner’s right to review and
my authority to conduct the review. Fountain Lake Health & Rehab., Inc., DAB No.
1985; Twin Pines Nursing and Rehab. Ctr., DAB CR1601; see EagleCare, Inc. d/b/a/
Beech Grove Meadows, DAB CR923 (2002); Schowalter Villa, DAB No. 1688; Arcadia
Acres, Inc., DAB No. 1607; see also The Lutheran Home — Caledonia, DAB No. 1753;
Walker Methodist Health Ctr., DAB CR869 (2002); Charlesgate Nursing Ctr., DAB
CR868 (2002); D.C. Association for Retarded Citizens, DAB CR776 (2001); Alpine Inn
Care, Inc., d/b/a Ansley Pavilion, DAB CR728 (2001); Woodland Care Ctr., DAB
CR659 (2000); Fort Tryon Nursing Home, DAB CR425 (1996). In each of these cases,
the failure or inability of the petitioner to demonstrate that the appealed survey findings
and deficiency determinations had resulted in a remedy was fatal to its appeal. In each of
the cases, the appeal was dismissed. The appellate panels of the Board and the ALJs who
decided the cases have uniformly concluded that a citation of deficiency that is not the
basis for an enforcement remedy, or that results in the imposition of a remedy that is later
rescinded or reduced to zero, does not trigger the right to a hearing under 42 C.F.R. Part
498.
I conclude, based upon the Secretary’s regulations and the rationale of prior decisions by
the Board and ALJs, that Petitioner does not have a right to a hearing in this case. and I
have no jurisdiction to grant the review requested. Accordingly, I conclude that
Petitioner’s request for hearing must be dismissed. However, this dismissal is without
prejudice to the extent that, if CMS imposes an enforcement remedy based upon the April
14, 2010 survey subsequent to this decision, CMS will give notice as required by the
regulations, including notice that Petitioner may request a hearing within the period
specified by 42 C.F.R. § 498.40(a)(2).

Il. Conclusion

For the foregoing reasons, Petitioner’s request for hearing is dismissed.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Andrew J. Elliott, M.D.,
(NPI: 1649356486),

Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-10-1010
Decision No. CR2256

Date: September 29, 2010

DECISION REMANDING CASE TO
CENTERS FOR MEDICARE AND MEDICAID SERVICES

I remand this case to the Centers for Medicare and Medicaid Services (CMS) so that it or
its contractor may conduct a new determination of the effective date of Petitioner’s
participation in Medicare, consistent with the Departmental Appeals Board’s (Board)
decision in Andrew J. Elliott, M.D., DAB No. 2334 (2010). I have decided to do so,
because it will be more efficient for CMS or its contractor to review the documents of
record pursuant to applicable regulations and policy criteria than for me to conduct a
review pursuant to the rules governing an adversary hearing.

In redetermining Petitioner’s effective date of participation CMS or its contractor must
determine whether Petitioner filed an acceptable application for participation on August
21, 2008. CMS or its contractor must review all documentation filed by, or on behalf of,
Petitioner consistent with the analysis made by the Board in its decision. A
determination should state exactly what documents were considered and explain exactly
why these documents either do or do not constitute an acceptable application for
participation.
If CMS or its contractor determines that Petitioner did not file an acceptable application
for participation on August 21, 2008, they must give Petitioner the opportunity to request
reconsideration of that determination. After reconsideration, if Petitioner is dissatisfied
with the reconsideration determination, he may request a hearing before me, and I will
hear and decide the matter.

/s/
Steven T. Kessel
Administrative Law Judge