Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)

Golden Years Homestead, ) Date: March 12, 2009
)
Petitioner, )
)

-Vv.- ) Docket Nos. C-07-348

) C-07-469

Centers for Medicare & Medicaid ) Decision No. CR1924
Services. )
)

DECISION

T sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to
impose a civil money penalty (CMP) of $3650 per day from January 16 through January
18, 2007, against Petitioner, Golden Years Homestead, for failure to comply substantially
with federal requirements governing the participation of long-term care facilities in the
Medicare and Medicaid programs at an immediate jeopardy level. Additionally, I sustain
the determination of CMS to impose a CMP of $100 per day from January 19, 2007
through April 8, 2007.

I. Background

By notice dated March 21, 2007, CMS informed Petitioner that based on a January 17,
2007 Life Safety Code survey and a January 19, 2007 health survey and complaint
investigation, Petitioner was found to be out of compliance with Medicare and Medicaid
requirements, with the most serious deficiency at an immediate jeopardy level cited under
tag F324. CMS also determined that Petitioner remained out of compliance after a revisit
survey on March 7, 2007. The March 7, 2007 survey found two deficiencies at tags F282
and F314. Petitioner was found to be back in compliance effective April 9, 2007. CMS
imposed a CMP of $3650 per day from January 16 through January 18, 2007, for the
period of immediate jeopardy and a CMP of $100 per day from January 19 through April
8, 2007. The total CMP imposed was $18,950. A mandatory denial of payment for new
admissions (DPNA), effective April 19, 2007, did not go into effect because the facility
returned to substantial compliance. In addition, CMS prohibited Petitioner from offering
or conducting a Nurse Aide Training and/or Competency Evaluation Program (NATCEP)
2

for two years from January 19, 2007, because it determined that Petitioner was providing
substandard quality of care.

I convened a hearing in Fort Wayne, Indiana on December 9 and 10, 2008. At the
earing, CMS submitted exhibits (CMS Exs.) 1, 3-5, 7, 9-11, and 15-34. Petitioner
submitted exhibits (P. Exs.) 1-7, and 9-11. I admit into evidence CMS Exs. 1, 3-5, 7,
9-11, 15-34, and P. Exs. 1-7 and 9-11. The parties both filed post-hearing briefs (Br.) and
ost-hearing reply briefs (Reply Br.).

The parties agreed to limit the issues before me to the accident deficiency found during
the January 19, 2007 survey (but only to the example concerning Resident (R) 100) and to
the two deficiencies found during the March 7, 2007 survey. CMS Br. at 5, 21; P. Reply
Br. at 1-2. The January 17 and January 19, 2007 surveys included a number of other
deficiencies that were never challenged by Petitioner. The unchallenged deficiencies
ave become administratively final. Further, the immediate jeopardy deficiency at tag
F324, concerning 42 C.F.R. § 483.25(h)(2), included three other residents at a non-
immediate jeopardy level in addition to R100 at an immediate jeopardy level. Petitioner
did not challenge tag F324 as to the three residents at the non-immediate jeopardy level.'
Therefore, tag F324 is also administratively final at a non-immediate jeopardy level.
Petitioner stated that it was challenging only the finding which relates to R100. I
therefore conclude that from January 16, 2007 through March 6, 2007, based on the
unchallenged deficiencies of the January 17 and 19, 2007 surveys, Petitioner was out of
substantial compliance with federal Medicare and Medicaid requirements.

II. Applicable Law and Regulations

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. Section
1819(h)(2) of the Act vests the Secretary of Health and Human Services (Secretary) with
authority to impose enforcement remedies for failure to comply substantially with the
federal participation requirements established by sections 1819(b), (c), and (d) of the Act.
Pursuant to 1819(h)(2)(C), the Secretary may continue Medicare payments not longer
than six months after the date the facility is first found not in compliance with
participation requirements. Pursuant to 1819(h)(2)(D), if a facility does not return to
compliance with participation requirements within three months, the Secretary must deny
payments for all individuals admitted to the facility after that date - commonly referred to
as the mandatory or statutory DPNA. In addition to the authority to terminate a
noncompliant facility’s participation in Medicare, the Act grants the Secretary authority
to impose other enforcement remedies, including a discretionary DPNA, CMP,

' Petitioner waived any dispute regarding three of the four residents, R91, R95,
and R98, whose care also formed the basis for the F324 deficiency that was cited in the
January 19, 2007 survey. CMS Br. at 6.
3

appointment of temporary management, and other remedies such as a directed plan of
correction. Act § 1819(h)(2)(B).

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. “Substantial 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.” 42 C.F.R.

§ 488.301 (emphasis in original). A deficiency is a violation of a participation
requirement established by sections 1819(b), (c), and (d) of the Act or the Secretary’s
regulations at 42 C.F.R. Part 483, Subpart B. 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. The regulations specify the enforcement remedies that CMS
may impose if a facility is not in substantial compliance with Medicare requirements.

42 C.F.R. § 488.406.

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 $3050 per day to $10,000 per day, is reserved for deficiencies that
pose 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). 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). The lower range of
CMP, from $50 per day to $3000 per day, is reserved for deficiencies that do not constitute
immediate jeopardy but either cause actual harm to residents, or cause no actual harm, but
have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii).

In this case, the state agency was required to withdraw Petitioner’s approval to conduct a
NATCEP. Pursuant to sections 1819(b)(5) and 1919(b)(5) of the Act, facilities may only
use nurse aides who have completed a training and competency evaluation program.
Sections 1819(e) and 1919(e) of the Act impose upon the states the requirement to specify
what NATCEPs they will approve that meet the requirements established by the Secretary
and a process for reviewing and reapproving those programs using criteria set by the
Secretary. Pursuant to sections 1819(f)(2) and 1919(f)(2) of the Act, the Secretary was
tasked to develop requirements for approval of NATCEPs and the process for review of
those programs. The Secretary promulgated regulations at 42 C.F.R. Part 483, Subpart D.
Pursuant to 42 C.F.R. § 483.151(b)(2) and (e)(1), a state may not approve and must
withdraw any prior approval of a NATCEP offered by a facility: (1) that has been subject
to an extended or partial extended survey under sections 1819(g)(2)(B)(i) or
1919(g)(2)(B)(i) of the Act; (2) that has been assessed a CMP of not less than $5000; or
(3) that has been subject to termination of its participation agreement, a DPNA, or the

4

appointment of temporary management. Extended and partial extended surveys are
triggered by a finding of “substandard quality of care” during a standard or abbreviated
standard survey and involve evaluating additional participation requirements.
“Substandard quality of care” is identified by the situation where surveyors identify one or
more deficiencies related to participation requirements established by 42 C.F.R.

§ 483.13 (Resident Behavior and Facility Practices), § 483.15 (Quality of Life), or

§ 483.25 (Quality of Care) that are found to constitute either immediate jeopardy, a pattern
of or widespread actual harm that does not amount to immediate jeopardy, or a widespread
potential for more than minimal harm that does not amount to immediate jeopardy and
there is no actual harm. 42 C.F.R. § 488.301.

The Act and regulations make a hearing before an administrative law judge (ALJ)
available to a long-term care facility against which CMS has determined to impose an
enforcement remedy. Act § 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 (8th Cir. 1991); Emerald Oaks, DAB No. 1800, at 11
(2001); Beechwood Sanitarium, DAB No. 1906 (2004); Cal Turner Extended Care, 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
range of the CMP that could be imposed by CMS or impact upon the facility’s authority to
conduct a NATCEP. 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 (6th 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 subject to 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, i.e. CMS
must show a violation of a participation requirement, statutory or regulatory, and that the
violation posed more than minimal harm to a resident or residents. “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 (8th ed. 2004); see also Hillman
Rehabilitation Center, DAB No. 1611, at 8 (1997), aff'd, Hillman Rehabilitation Center v.
U.S. Dep’t of Health & Human Services, No. 98-3789 (GEB) (D.N.J. May 13, 1999). To

5

prevail, a long-term care facility must overcome CMS’s showing by a preponderance of
the evidence. Evergreene Nursing Care Center, DAB No. 2069, at 7-8 (2007); Emerald
Oaks, DAB No. 1800; Cross Creek Health Care Center, DAB No. 1665 (1998); Hillman
Rehabilitation Center, DAB No. 1611.

III. Issues

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

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

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

IV. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this
case. I set forth each Finding below, in italics and bold, as a separately numbered heading,
followed by a discussion of these Findings.

1. The facility was not in substantial compliance with federal participation
requirements from January 16 through January 18, 2007, at an immediate
jeopardy level because it failed to provide R100 with adequate supervision
and assistance devices to prevent accidents.

Based on the documentary evidence, the written arguments of the parties, the testimony at
hearing, and the applicable law and regulations, I find that, from January 16, 2007 through
January 18, 2007, Petitioner was not in substantial compliance with the federal
participation requirement at 42 C.F.R. § 483.25(h)(2) at an immediate jeopardy level.

The survey report listed an alleged deficiency at Tag 324 (which references deficiencies
cited at 42 C.F.R. § 483.25(h)(2)) at an immediate jeopardy level, with regard to
Petitioner’s treatment of R100. CMS Ex. 3, at 42-59. That section of the regulations,
entitled “Quality of care,” provides —

(h) Accidents. The facility must ensure that —

(2) Each resident receives adequate supervision and assistance devices to
prevent accidents.
6

R100 had Alzheimer’s disease, glaucoma, and osteoarthritis, and resided on the 500 hall, a
secured unit in the facility, with 15 other residents. CMS Ex. 11, at 3-4, 11-12; CMS Ex.
17, at 2.

On January 11, 2007, R100 was observed in her wheelchair during the survey as having
purplish discoloration around both eyes and sutures on her nose. Nurse’s notes dated
January 11, 2007, indicated that R100 was found on the floor close to the bathroom door
dripping blood from her nose and with a hematoma on her mid-forehead. The facility had
determined that R100 had fallen on the way to the bathroom after getting out of bed on her
own at 4:30 a.m., without calling for assistance. CMS Ex. 11, at 9. As a result, R100 was
taken to the hospital and returned to the facility at 10 a.m. the same day. Surveyor Julie
Lynn White indicated, at hearing, that the survey team decided to make falls a focus of the
survey as a result of the observation of R100. Tr. 36.” A physician’s order dated January
11, 2007, the same day as R100’s fall, indicated a tab alarm was to be used when R100
was in a wheelchair as a safety measure and an overbed alarm was to be used when R100
was in bed as a safety measure. CMS Ex. 3, at 50.

Five days later, on January 16, 2007, Surveyor White observed R100 sitting unattended on
the toilet of her bathroom in the early morning at 4:39 a.m. Surveyor White was following
Certified Nurse Assistant (CNA) Lois Daye while she provided care to other residents
beginning at 4:32 am. Transcript (Tr.) 54; CMS Ex. 33; CMS Ex. 15, at 12. After seven
minutes of following CNA Daye, Surveyor White observed R100 through the resident’s
partially open bathroom door sitting on the toilet. Tr. 121. R100 had been placed on the
toilet some time before 4:32 a.m. by CNA Daye. CNA Daye did not come into R100’s
room until 4:42 a.m. to help R100 off the toilet and further assist R100. Tr. 129; CMS Ex.
33; CMS Ex. 15, at 12. According to Surveyor White, R100 had been unattended on the
toilet and unsupervised by a staff member for at least ten minutes. Tr. 78; CMS Ex. 33;

? Surveyor White reviewed records of the 16 residents on the 500 hall and found
that there were four falls that occurred between 4:30 a.m. and 6:15 a.m, the same
approximate time as R100’s fall. These falls occurred on October 26, 2006, November
26, 2006, January 10, 2007, and January 11, 2007, a period of two and one-half months.

> Surveyor White made the following clarification in a statement dated March 19,
2008: “Although the Statement of Deficiencies states that my tour of the 500 hall initiated
at 4:38 a.m., my notes show that the tour actually started at 4:32 a.m. I am certain that
Resident 100 was left alone for at least ten minutes (4:32 a.m. to 4:42 a.m.), because I
followed the only staff member on the unit-CNA Lois Daye (identified as CNA #1 in the
Statement of Deficiencies)-while she provided care to residents in other rooms from 4:32
a.m. until 4:39 a.m., at which time I went into Resident 100's room and saw her on the
toilet through her partially open bathroom door. CNA Daye did not come into Resident
100's room until 4:42 a.m., when she assisted the resident with perineal care, dressed her,
and transferred her to a wheelchair.” CMS Ex. 33, at 4.
7

CMS Ex. 15, at 12. At the time of this observation, the only staff member on the 500 hall
was CNA Daye. During the ten minutes at issue, CNA Daye was attending other
residents. Tr. 83-84; CMS Ex. 33. Surveyor White interviewed CNA Daye about this
incident on January 16, 2007, at 7:16 a.m. During the interview, CNA Daye confirmed
that she had placed R100 on the toilet and left her there unsupervised and stated that R100
would do well and would not get up. Tr. 143; CMS Ex. 33; CMS Ex. 15, at 15.

R100 was assessed as being at risk for falls in a Fall Risk Assessment dated November 6,
2006, where she received a risk score of 18 (where 16 is considered at risk for falling).
Social Services Notes, dated December 1, 2006, indicated that a CNA stated that “R100
displays moderately impaired decision making” and “will attempt to sit before she has
turned enough to sit down in a safe manner,” that R100 “puts herself on the toilet without
waiting or using a call light to ask for assistance,” and takes herself “in/out of bed again
without using [a] call light to obtain assistance.” The December 1, 2006 Social Services
Notes identifies R100 as at risk for falls with a prior history of falls. CMS Ex. 11, at 18.
An undated Resident Assessment Protocol (RAP) Summary indicates that R100 has
memory impairment, moderately impaired decision making, moderately impaired
cognition, and “staff reports res [resident] conducts self transfers on and off the toilet,
[and] in and out of bed” and in and out of her wheelchair. P. Ex. 2, at 10. The RAP
summary indicates that alarms are attached to R100’s bed and wheelchair to alert staff of
self transfers because R100 was a fall risk due to her unsteadiness. /d. The Fall Risk
Assessment dated January 15, 2007, the day before the January 16, 2007 observation by
Surveyor White, indicated a risk score of 32, a significantly higher score than previously
noted in November, indicating that R100 was at greater risk for falls than in the past.*

R100’s Minimum Data Set (MDS), dated November 8, 2006, indicates that R100 requires
limited assistance of one person for transfers and ambulation/walking and has impaired
short and long term memory. A MDS, dated August 16, 2006, assessed R100 as requiring
extensive physical assistance by one staff member for toilet use as indicated by a score of
three for self performance and a score of two for staff support. P. Ex. 2, at 3. The
resident’s care plans, initiated on September 6, 2005, and updated August 23, 2006 and
November 15, 2006, indicate that R100 is at risk for falls due to unsteady gait, impaired
balance, and the use of psychotropic medications. CMS Ex. 3, at 46.

A bladder assessment dated November 8, 2006, indicated that R100 made poor decisions
requiring supervision and that R100 was totally dependent on staff to walk to the bathroom
or transfer to the toilet. CMS Ex. 11, at 15. Surveyor White testified that in a case such as
R100, someone should be present during the complete toileting process. Tr. 66.

+ The January 15, 2007 Fall Assessment did not include the fact that a fall had
occurred on January 11, 2007 and would have indicated a higher score than 32 if
completed correctly. Tr. 65; CMS Ex. 11, at 3.
8

The CNA Assignment Sheet for the 500 hall indicates that 16 out of 16 residents on the
500 hall needed fall precautions. The special assignments section of the CNA Assignment
Sheet lists R100 as “assist w/ADLs [activities of daily living] do not leave alone to do
ADLs.” Activities of daily living include toileting. Tr. 70.

On January 16, 2007, at the time R100 was observed, unattended and sitting on the toilet
in her bathroom, the only staff member present in the 500 hall, CNA Daye, was assisting
another resident four doors down the hall. CMS Ex. 3, at 47. CNA Daye was the only
staff member on the 500 hall from the time the surveyors arrived at 4:32 a.m. until 5:34
a.m., when another staff member, RN Greg Wright, came onto the 500 hall. Tr. 83-84;
CMS Ex. 33; CMS Ex. 15, at 12-13. RN Wright had been covering both the 300 and 500
halls (both secured units) during the night shift along with CNA Daye on the 500 hall and
two CNAs on the 300 hall.* Tr. 84; CMS Ex. 33; CMS Ex. 15, at 13; CMS Ex. 3, at 47.
The surveyor determined that there was insufficient staff to provide needed supervision,
especially during the early morning hours when so many residents had to be gotten up and
made ready for breakfast.°

Petitioner’s Director of Nursing (DON) Rhonda Tucker testified that normal staffing for
the 16-bed unit known as the 500 hall during the night shift (11:00 p.m. to 7:30 a.m.) is
one CNA and a nurse that floats between the 300 hall and the 500 hall. Tr. 371, 389, 391,
392. There is also a 30-minute overlap with the day shift CNA who arrives at 7:00 a.m. to
assist getting residents ready for breakfast that begins at 7:30 a.m. Tr. 350, 392.
Petitioner’s own DON confirmed the fact that, at the time of the observation of R100,
which was before 5:00 a.m., there was no other staff member on the 500 hall other than
CNA Daye, since RN Wright was on the 300 hall. It is also evident that with only a
30-minute overlap with the day shift CNA, the burden of getting the 16 residents of the
500 hall ready for breakfast at 7:30 a.m. fell largely on CNA Daye.

CNA Daye testified that, after assisting R100 to the toilet, she shut the door to the
bathroom leaving only a slight opening because of R100’s desire for privacy. Tr. 349,
351, 352, 366. CNA Daye claims that R100 told her to leave because R100 couldn’t “do
anything if you [CNA Daye] are going to stand there and look at me [R100].” Tr. 351,
352, 366. CNA Daye emphasized that R100 activated the call light whenever she was
finished toileting and had never attempted to get up after toileting without assistance
during the entire time she had been caring for R100. Tr. 349, 350, 352, 357, 360.

> The 300 hall was on the other side of the facility from the 500 hall. Tr. 215.

® The surveyors’ findings regarding a staff shortage on the 500 hall were cited
under tag F353 during the same survey but Petitioner did not appeal this deficiency. CMS
Ex. 3, at 62-64.
9

DON Tucker testified that R100 never tried to get off the toilet by herself whenever she
assisted R100. Tr. 373, 375. DON Tucker also testified that the Social Service Notes are
inaccurate because they conflict with reports that she had received from staff that R100
does not attempt to transfer herself off the toilet. Tr. 489. The DON’s statement,
however, is not supported by any documentation.

Petitioner states tha
might try to stand u

t Surveyor White hypothesized that there was a potential that R100

p and wash her hands after voiding instead of using the call light to
summon staff to help clean her and claims that this theory is just speculation. Tr. 137;

P. Br. at 4, 17. Petitioner argues that the documentation does not show that R100 needed
someone to stay with her after she was placed on the toilet, but only that R100 needed help
getting to the toilet, removing her clothing before toileting, and cleaning herself after
toileting. /d. at 5. Petitioner misapprehends CMS’s concern here. CMS’s primary
concern was that without supervision, R100, who was cognitively impaired and
documented as a poor decision maker, would attempt to transfer off the toilet and attempt
to ambulate without assistance and would be at risk for a fall. Petitioner admits that R100
required assistance getting to the toilet but denies that there was any risk to R100 getting
up off the toilet and possibly attempting to ambulate on her own. I find Petitioner’s
argument to be disingenuous. R100 is a resident with cognitive impairment and not a
machine that only goes in one direction and never in another direction. In fact, the facility
documented R100’s attempts to transfer off the toilet on her own without waiting or
calling for assistance.

Petitioner attacks Surveyor White’s credibility and claims that Surveyor White distorts
facts, exaggerated while writing the Statement of Deficiencies (SOD), and puts words in
the mouths of the persons she interviews. /d. at 8. I find Petitioner’s argument without
merit. Petitioner points to instances concerning other residents and other deficiency tags
not at issue before me, but does not dispute Surveyor White’s actual observation of R100.
In fact, CNA Daye admitted to leaving R100 unattended.

Petitioner also argues that CNA Daye’s practice of assisting R100 to the toilet and
allowing her ample time to complete the voiding process maintained R100's desire for
privacy and allowed R100 to maintain her independence as much as possible while
toileting. P. Br. at 14. Nowhere are R100’s requests for privacy documented in the
facility’s records even though DON Tucker testified that it was customary for the facility
to document residents’ requests for privacy in their care plans. Tr. 370, 472. Petitioner’s
privacy argument is unpersuasive and was rationalized after the survey. Petitioner’s own
documentation shows that R100 needed supervision because she was at risk for falls and

R100 had just had a fal
was not to be left alone

five days earlier. The CNA Assignment Sheet indicates that R100
during ADLs. The MDS assessed R100 as needing extensive

assistance from one staff member with toileting. The bladder assessment showed that

R100 was totally depen
privacy concerns woul

dent on staff for toileting. In the circumstances of this case, any
have to be balanced by the need to provide the necessary

10

supervision to prevent a fall. What took CNA Daye away from R100 was not the desire to
provide R100 with privacy, but, rather, the need to provide care to other residents on the
500 hall. Even acknowledging that privacy may be a legitimate concern for residents of
long-term care facilities when toileting, Petitioner had determined that R100 required
assistance with toileting and should not be left alone during ADLs. In fact, DON Tucker
testified that on the occasions she assisted R100, she would stand outside the resident’s
partially open bathroom door, outside of the resident’s line of vision and within earshot of
the resident in case she called for assistance. Tr. 372, 373. In contrast, CNA Daye was
down the hall attending to another resident for at least ten minutes. Surveyor White
confirmed that privacy concerns could be satisfied by standing outside R100’s partially
open bathroom door. Tr. 81. Such action by Petitioner’s staff would have also complied
with R100’s care plan that required staff to “provide verbal cues” and “assist . . . if
needed.” CMS Ex. 11, at 22.

Petitioner relies on Burton Health Care Center, DAB No. 2051 (2006). In Burton, an aide
was providing one-on-one supervision to a resident sitting in a wheelchair next to the
toilet. The aide, in Burton, momentarily turned her back to get a diaper, while remaining
in the bathroom with the resident, and the resident tried to self transfer to the toilet and
fell. The Board found that CMS’s evidence in Burton did not establish that the resident’s
fall was foreseeable. Burton is distinguishable from the case before me. In Burton, the
aide turned away only momentarily; however, in the matter before me, R100 was
unattended for at least ten minutes, with the only staff member on the 500 hall, CNA
Daye, down the hallway attending to another resident. It is entirely foreseeable that in a
period of time that lasted for at least ten minutes, a resident such as R100 with
Alzheimer’s disease who had been assessed only the day before on a Fall Risk Assessment
with a score of 32 and who had fallen only five days before when she attempted to get to
the bathroom without calling for assistance would attempt to transfer herself without
calling for assistance and would be at risk for a fall.

In contrast, CMS relies on Rosewood Care Center-Edwardsville, DAB CR1036 (2003),
aff'd, DAB No. 1898 (2003). In Rosewood, the facility’s staff member left a resident with
a history of falls alone on the toilet for only about one minute in order to assist a second
CNA in providing care to other residents. The two CNAs in Rosewood were within ten
feet of the resident when she fell. The resident had been left alone for only about one
minute. In Rosewood, the Board upheld a deficiency under tag F324. The case before me
is even more egregious than in Rosewood. CNA Daye left R100’s room (the bathroom
was in R100’s room) entirely and was down the hallway attending to another resident and
would not have known if R100 needed assistance, attempted to transfer herself, or fell.
Further, R100 was left unattended for at least 10 minutes. The record contained
documentation that R100 had attempted to self-transfer and ambulate without using a call
light and waiting for assistance from staff. The alarm sensors on her bed and wheelchair,
ordered by her doctor, would provide no protection to her while she was left unattended on
the toilet. The facility did not attach a personal alarm to R100 or the grab bars by the

11

toilet. Petitioner’s own documentation states that R100 “conducts self transfers on and off
the toilet” (P.Ex. 2, at 10 (RAP Summary)) and “takes herself in/out of bed again without
using call light to obtain staff assistance” (CMS Ex. 11, at 18 (Social Services Note)).

The regulation at 42 C.F.R. § 483.25(h)(2) requires that a facility ensure that each resident
receives adequate supervision and assistance devices to prevent accidents. I must,
therefore, determine whether the facility did everything in its power to prevent accidents.
Coquina Center, DAB No. 1860, at 11 (2002). In regards to R100, the documentation
shows that R100 was at risk for falls, had suffered a fall only five days before the incident
at issue, was clearly left alone and unsupervised on the toilet on January 16, 2007, for at
least ten minutes while the only staff member available was down the hall attending to
another resident, required extensive assistance with using the bathroom, had cognitive
impairment, was a poor decision maker, had Alzheimer’s disease, and was known to
attempt to self-transfer on and off the toilet. Additionally, express written instructions not
to leave R100 alone during ADLs were on the CNA Assignment Sheet. It is against this
backdrop that the incident of January 16, 2007, took place. I, therefore, find that Petitioner
did not do everything in its power to prevent a fall. Additionally, the potential
consequences of leaving R100 unattended were foreseeable.

In view of the foregoing, I find that CMS established a prima facie case that Petitioner was
not in substantial compliance with the requirement to provide R100 with adequate
supervision and assistance devices to prevent accidents. Petitioner has not overcome that
showing by a preponderance of the evidence.

2. CMS’s finding of immediate jeopardy was not clearly erroneous.

I have already found that CMS has established a prima facie case that Petitioner was not in
substantial compliance with federal requirements for skilled nursing facilities participating
in the Medicare and Medicaid programs regarding 42 C.F.R. § 483.25(h)(2). Petitioner
has not overcome CMS’s showing by a preponderance of the evidence. Furthermore, I
sustain CMS’s finding that Petitioner’s level of non-compliance for this deficiency
constitutes immediate jeopardy.

The regulations define immediate jeopardy as a situation in which a provider’s non-
compliance with one or more requirements of participation has caused, or is likely to
cause, serious injury, harm, impairment, or death to a resident. 42 C.F.R.

§ 488.301. A finding of immediate jeopardy does not require “a finding of present harm,
but also encompasses a situation that is [likely to cause] harm.” Britthaven, DAB No.
CR1259 (quoting Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002)).
CMS’s determination of immediate jeopardy must be upheld unless it is clearly erroneous.
42 C.F.R. § 498.60(c)(2). The burden rests on Petitioner to prove that CMS’s
determination of immediate jeopardy is clearly erroneous. Petitioner has not met that
burden here.
12

Petitioner argues that R100 was assessed as having satisfactory sitting stability and, in
fact, did not fall off the toilet on January 16, 2007. Petitioner misapprehends the definition
of immediate jeopardy. Immediate jeopardy exists if the facility’s noncompliance has
caused or is /ikely to cause serious injury, harm, impairment, or death to a resident.

42 C.F.R. § 488.301. In the case before me, immediate jeopardy does not require R100 to
have actually fallen, it just requires that it was likely for R100 to have fallen should she
have attempted to get off the toilet and ambulate on her own. CMS’s determination as to
the level of a facility’s noncompliance (which would include an immediate jeopardy
finding) must be upheld unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c). To meet
its burden, Petitioner must show that the potential harm or injury “did not meet any
reasonable definition of ‘serious.’” Daughters of Miriam Center, DAB No. 2067, at 9
(2007); Hallmark House Nursing Center, DAB No. 2226, at 6 (2009). I consider leaving
R100 unattended for ten minutes while the only staff member was down the hall attending
to another resident to be a noncompliance that is likely to cause serious injury to R100. I
therefore do not find clearly erroneous CMS’s immediate jeopardy determination.

3. Petitioner was not in substantial compliance with federal Medicare and
Medicaid requirements during the March 7, 2007 revisit survey for tag
F282 (42 C.F.R. § 483.20(k)(3)(ii)) and tag F314 (42 C.F.R.

§ 483.25(c)(2)).

Tag F282 (42 C.F.R. § 483.20(k)(3)(ii)) provides:

The services provided or arranged by the facility must be provided by qualified
persons in accordance with each resident’s written plan of care.

CMS alleges that Petitioner was out of compliance with tag F282 because it failed to
implement measures in a resident’s care plan, particularly those designed to treat and
prevent pressure sores as they relate to two residents, R2 and R75.
Tag F314 (42 C.F.R. § 483.25(c)) provides:
Based on the comprehensive assessment of a resident, the facility must ensure that-
1) A resident who enters the facility without pressure sores does not develop
pressure sores unless the individual’s clinical condition demonstrates that they were

unavoidable; and

2) A resident having pressure sores receives necessary treatment and services to
promote healing, prevent infection and prevent new sores from developing.
13

CMS alleges that Petitioner did not comply with tag F314 (42 C.F.R. § 483.25(c)(2))
because it failed to ensure that residents who had existing pressure sores, R2 and R75,
received necessary treatment and services to prevent new pressure sores from developing.
Under this section of the regulations a facility must, at a minimum, provide the care and
treatment it has determined is required according to the plan of care that it has developed
for a resident.

a) Resident Number 2

R2 had diagnoses including diabetes mellitus, chronic obstructive pulmonary disease,
prostate cancer, and high blood pressure. CMS Ex. 21, at 22. A Braden Scale assessment
of R2 completed by the facility on February 22, 2007, assigned him a score of 15,
indicating that he was considered “at risk” for pressure sore development. CMS Ex. 12, at
6; Tr. 225. A nursing assessment upon admission dated February 15, 2007, required that
R2’s legs be elevated (or “floated”) with pillows while the resident was in bed. Tr. 228;
CMS Ex. 21, at 3. R2’s care plan and physician’s orders also required that his feet be
elevated by the use of a pillow when in bed. Tr. 230; CMS Ex. 21, at 9, 26. Floating a
eel means that pillows are placed under a resident’s lower legs to elevate the heels.
Floating a heel serves the purpose of totally relieving pressure, allows for increased
circulation, and facilitates the healing process. Tr. 229. An undated Assignment Sheet
showed that R2 was to be repositioned every two hours and have his heels floated while in
ed. CMS Ex. 26, at 1; Tr. 231.

On March 5, 2007, while Surveyor Roth was conducting an initial tour of the facility,
nurse Michelle Sheets stated that R2 had developed pressure sores on his buttocks, a

lister on his right heel, and a soft mushy area on his left heel while he was in the hospital.
Tr. 227; CMS Ex. 21, at 3. The blister on R2's heel signified superficial damage under the
skin indicating a Stage II pressure sore and the soft, mushy area on R2's left heel indicated
the presence of a pressure sore or deep tissue injury. CMS Ex. 32, at 22. On March 5,
2007 and March 6, 2007, R2 was observed without his legs being elevated on four
separate occasions by both Surveyors White and Roth. Tr. 113-14, 206-07, 233, 235, 307;
CMS Ex. 24, at 5; CMS Ex. 25, at 4-5, 8; CMS Ex. 26. Surveyor Roth also testified that
she did not observe an extra pillow in the area of R2’s feet that could have been used to
elevate his feet during the time of her observations. Tr. 286, 288, 309, 310.

On March 6, 2007, Surveyor Roth observed R2 lying on his back without his heels
elevated. Surveyor Roth asked that R2’s socks be taken off so that she could observe his
heels. Surveyor Roth observed R2's heels. The left heel had an area approximately the
size of a fifty-cent piece that was “soft and mushy.” Tr. 233, 305; CMS Ex. 25, at 8; CMS
Ex. 26, at 1. When License Practical Nurse (LPN) Diana Slate put R2's socks back on
after Surveyor Roth had observed his heels, Surveyor Roth observed that no pillow was
placed beneath R2’s legs to float his heels, and his heels were again left lying directly ona
sheepskin pad that was placed on the bed. Tr. 233; CMS Ex. 24, at 8.
14

LPN Slate and DON Tucker testified that they regularly placed pillows beneath R2’s legs
to float his heels, but R2 resisted and removed the pillows himself. Tr. 328, 329, 447.
They testified that removing the pillows was habitual behavior by R2 and the staff
counseled R2 repeatedly about the importance of keeping the pillows beneath his legs. Tr.
330, 331, 449, 450. No documentation supports this statement except for an undated hand
written statement prepared by LPN Slate. CMS Ex. 30, at 65. LPN Slate admitted that she
did not write this statement until March 20, 2007, after the March 7, 2007 survey was
completed. Tr. 341. I give little weight to such statement because it is self-serving. It was
written by one of Petitioner’s employees for litigation purposes, after the fact, instead of
being part of contemporaneous medical records. Habitual behaviors, such as removing
pillows, can be addressed by care planning. However, Petitioner failed to do so. Tr. 342.

I find Petitioner’s reliance on the Treatment Administration Record (CMS Ex. 30, at 44) as
evidence of compliance with the order to float R2’s heels, also unpersuasive because the
document Petitioner relies on has two different versions, each indicating conflicting
information about whether R2’s heels were elevated on the day shift of March 2, 2007.
Compare, CMS Ex. 21, at 22 with CMS Ex. 30, at 44. The existence of two versions of
the same document casts doubt on the accuracy of either document. Petitioner also relies
on an Appliance Log to show that R2’s pillows were properly positioned; however, the
Appliance Log does not so indicate. CMS Ex. 30, at 22-26. No contemporaneous
documentation reliably indicates that Petitioner’s staff properly positioned pillows beneath
R2’s legs. The surveyors’ observations stand undisputed. CMS has met its burden to
make a prima facie case which Petitioner has failed to overcome by a preponderance of the
evidence.

b) Resident Number 75

R75 had diagnoses including Alzheimer’s disease, osteoporosis, and coronary artery
disease. CMS Ex. 22, at 5. According to the facility’s Assignment Sheet, R75 required
total assistance with ADLs and required a hydraulic lift (a Hoyer lift) for transfers. CMS
Ex. 26, at 2; Tr. 94. A Braden Scale assessment completed on December 20, 2006,
documented a score of ten, indicating that R75 was at “high risk” for developing pressure
sores. CMS Ex. 22; Tr. 99.

R75's care plan, last reviewed by the facility’s interdisciplinary team on December 27,
2006, indicated a problem of “potential for impaired skin integrity.” CMS Ex. 22. The
care plan, January 2007 physician orders, the Assignment Sheet, and the July 2006 Resident
Assessment Protocol all document that R75 was required to have heel protectors while in
bed. CMS Ex. 22, at 14, 17; CMS Ex. 26, at 2; CMS Ex. 22, at 8. The heel protectors had
been ordered by the physician to “prevent skin breakdown.” CMS Ex. 22, at 14. A
Wound/Skin Care Management Documentation Form and physician orders dated February
28, 2007, show that R75 had a Stage II pressure sore on her left buttock. CMS Ex. 22, at 7,
12; Tr. 100.
15

Surveyor White observed R75's pressure sore on March 5, 2007, when staff performed a
dressing change on the sore. Tr. 102; CMS Ex. 24, at 4; CMS Ex. 33. She observed that
the pressure sore was a “thin slit” in the skin that was open and pink, indicating a Stage I
pressure sore. Tr. 102. Surveyor White observed R75 in bed without heel protectors on
March 5, 2007, at 1:40 p.m. and from 3:10 p.m. to 3:48 p.m., and on March 6, 2007, at 9:30
a.m. and 1:08 p.m. Tr. 106, 107; CMS Ex. 24, at 3-6; CMS Ex. 33. Surveyor Roth
observed R75 in bed without heel protectors from 3:30 p.m. to 3:45 p.m. on March 5, 2007.
CMS Ex. 25, at 4. On March 5, 2007, R75 was observed in bed on her left side with a
sheepskin pad rolled up at the foot of the bed and not beneath R75’s feet. Tr. 106; CMS
Ex. 24, at 3; CMS Ex. 33, at 24.

Surveyor White was informed that R75 did not have heel protectors on because R75 had
soiled them. Tr. 112; CMS Ex. 24, at 8; CMS Ex. 33. DON Tucker conceded that the
facility should have sufficient heel protectors available to replace a soiled set. Tr. 410, 411.
However, no replacement heel protectors were put on R75. Petitioner contends that a
sheepskin pad was used as a temporary substitute while R75’s heel protectors were being
cleaned, but never adequately explains why another set of heel protectors was not provided
to R75.’

DON Tucker contended that a sheepskin pad on the resident’s mattress was a suitable
replacement for the missing heel protectors. Tr. 402. Surveyor White determined that
employing sheepskin pads for R75 was not an adequate substitute for the physician-ordered
heel protectors. Heel protectors are physically attached to a resident’s heels and provide
protection to the heels when a resident is in bed regardless of the resident’s positioning,
while sheepskin pads are positioned on a resident’s bed and will provide no protection to
the heels in the event the pad is not directly placed underneath the heels. Tr. 110; CMS Ex.
33. Surveyors observed that R75 sometimes positioned herself on her side in a fetal
position with her heels pulled up off the sheepskin pads. Tr. 110; CMS Ex. 33. On March
5, 2007, the surveyors noted that the resident was positioned on her left side, and the
sheepskin pad was rolled up at the foot of the bed and not beneath her feet. Tr. 106; CMS
Ex. 24; CMS Ex. 33. R75’s physician had not approved the substitution of a sheepskin pad
for heel protectors.

When R75 was in a fetal position with her heels pulled up off the sheepskin, R75’s heels
were resting directly on the bed, and she was not receiving anything to help prevent
pressure sores on her heels. When R75 was positioned on her side, the lateral portion of
her heels would be subject to pressure when no heel protectors were in place. Petitioner
claims that R75 had heel protectors while in bed during part of the time of the March 7,

7 Petitioner claims that R75 had two sets of heel protectors and both sets were
soiled during the March 7, 2007 survey. P. Br. at 21; Tr. 408, 409, 411.
16

2007 survey,® but does not dispute the surveyors’ claim that R75 did not have heel
protectors on during part of March 5 and 6, 2007.

Petitioner implies that R75 spent most of her time on her side and therefore the bottom or
back of R75’s heels were not observed in contact with the bed. This argument fails because
Petitioner fails to realize that in turning from side to side, R75 had to spend part of the time
while in bed on her back with her heels in contact with the bed. In addition, when R75 is
on her side in bed without heel protectors, there is still lateral pressure on her heels.
Petitioner’s argument that a sheepskin pad is an acceptable substitute for heel protectors
fails because R75 was observed in a fetal position with her heels directly on the bed, not on
the sheepskin pad. Most importantly, Petitioner’s arguments fail because the facility was
not providing heel protectors to R75 when in bed as required by its own care plan and by
R75’s physician’s orders.

Under the regulations, when a resident has an existing pressure sore, a facility is required to
provide necessary treatment and services to promote healing, prevent infections and
prevent new pressure sores from developing. This regulation requires that, at a minimum, a
facility must comply with the care plan that it developed itself and comply with a resident’s
physician’s orders. I find that Petitioner failed to comply with tags F282 and F314 for R2
and R75 because it failed to provide measures required by the residents’ care plans, other
facility records, and ordered by the residents’ physicians.

4. The amount of the penalty imposed by CMS is reasonable.

I next consider whether the CMP was reasonable by applying the factors listed in 42 C.F.R.
§ 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial
condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of
culpability, which includes neglect, indifference, or disregard for resident care, comfort or
safety. The absence of culpability is not a mitigating factor. The factors in 42 C.F.R.

§ 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the
deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior
history of noncompliance in general and specifically with reference to the cited
deficiencies.

It is well-settled that, in reaching a decision on the reasonableness of the CMP, I consider
whether the evidence presented on the record concerning the relevant regulatory factors
supports a finding that the amount of the CMP is at a level reasonably related to an effort to
produce corrective action by a provider with the kind of deficiencies found and in light of
the other factors involved (financial condition, facility history, culpability). I am neither
bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice

® Petitioner states that at 2:54 p.m. on March 6, 2007, Surveyor White saw heel
protectors on R75. P. Br. at 20.
17

of remedies without regard for CMS’s discretion. Barn Hill Care Center, DAB No. 1848,
at 21 (2002); Community Nursing Home, DAB No. 1807, at 22 et seq. (2002); Emerald
Oaks, DAB No. 1800, at 9; CarePlex of Silver Spring, DAB No. 1683, at 8.

CMS imposed a $3650 per day CMP for the period from January 16 through January 18,
2007 (the period of immediate jeopardy) and a $100 per day CMP from January 19 through
April 8, 2007. The total CMP was $18,950. I sustain the penalty imposed. A penalty of
$3650 per day falls in the lower range of penalties which may be imposed for deficiencies
that are at an immediate jeopardy level of noncompliance. A penalty of $100 per day falls
in the lower range of penalties which can be imposed for deficiencies that are at a less than
immediate jeopardy level of compliance. I also note that I have no information as to the
facility’s history of noncompliance. Petitioner has not argued that its financial condition
affects its ability to pay the penalty. With respect to the remaining factors, I note that the
facility is culpable for disregarding the safety of R100 and its obligations to follow care
plans and physician’s orders as to R2 and R75. I find that these factors justify the penalty
imposed.

V. Conclusion

I conclude that CMS correctly imposed a CMP of $3650 per day, from January 16 through
January 18, 2007, against Petitioner for failure to comply substantially with federal
requirements governing the participation of long-term care facilities in the Medicare and
Medicaid programs at an immediate jeopardy level. Additionally, I conclude that CMS
correctly imposed a CMP of $100 per day from January 19, 2007 through April 8, 2007. I
also conclude that the CMPs imposed were reasonable.

/s/
José A. Anglada
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
David L. Williford, Date: March 12, 2009
)
Petitioner, )
)
-Vv.- ) Docket No. C-09-13
) Decision No. CR1923
The Inspector General. )
)
DECISION

I sustain the determination of the Inspector General (I.G.) to exclude David L. Williford
(Petitioner), from participation in Medicare, Medicaid, and all federal health care
programs for a period of five years. For the reasons discussed below, I find that the I.G.
is authorized to exclude Petitioner pursuant to section 1128(a)(3) of the Social Security
Act (Act), and that the statute mandates a minimum five-year exclusion.

I. Background

By letter dated July 31, 2008, the I.G. notified Petitioner that he was being excluded fora
period of five years from participating in Medicare, Medicaid, and all federal health care
programs. The I.G. informed Petitioner specifically that he was being excluded pursuant
to section 1128(a)(3) of the Act based on his conviction in the Superior Court of
Effingham County, Georgia, of a criminal offense related to fraud, theft, embezzlement,
breach of fiduciary responsibility, or other financial misconduct in connection with the
delivery of a health care item or service, including the performance of management or
administrative services relating to the delivery of such items or services, or with respect to
any act or omission in a health care program (other than Medicare and a State health care
program) operated or financed by, or financed in whole or in part, by any federal, state, or
local Government agency.

By letter dated September 26, 2008, Petitioner timely appealed the I.G.’s decision. In his
request, Petitioner contended that he had not been convicted of any crime in the Superior

Court of Effingham County, Georgia, and that the findings by the I.G. are incorrect.

This case was assigned to me for hearing and decision.
I held a prehearing conference with the parties on October 20, 2008. During the
conference, I advised the parties that the issues I may review are whether the I.G. has the
authority to exclude Petitioner, and, if so, whether the period of exclusion imposed is
reasonable. I advised that, in this case, because Petitioner had been excluded for the
mandatory five-year period, the reasonableness of the period of the exclusion is not an
issue before me. The parties agreed that it would be appropriate for me to decide this
matter based on their briefs, and that an in-person hearing was not necessary. | therefore
set a briefing schedule. See Order and Schedule for Filing Briefs and Documentary
Evidence, dated October 28, 2008 (Order).

On December 1, 2008, the I.G. submitted an initial brief with eight proposed exhibits
attached (I.G. Exs. 1-8). After receiving an extension of the briefing deadlines, Petitioner
submitted his response brief with one exhibit (P. Ex. 1) on January 22, 2009. The LG.
submitted a reply brief on February 9, 2009. In the absence of any objections, I admit
into evidence I.G. Exs. 1-8 and P. Ex. 1.

II. Issues

The legal issues before me are expressly limited to those set out at 42 C.F.R.
§ 1001.2007(a)(1). In the specific context of this record, the issue is:

— Whether the I.G. had a basis upon which to exclude Petitioner from participating
in Medicare, Medicaid, and all other federal health care programs pursuant to
section 1128(a)(3) of the Act.

When there is a basis for exclusion under section 1128(a)(3) of the Act, and the LG.
imposes an exclusion for the mandatory five-year period, the reasonableness of the length
of the exclusion is not an issue. 42 C.F.R. §1001.2007(a)(2).

As I shall explain below, I find that the I.G. has a basis for excluding Petitioner from
program participation.

Ill. Controlling Statutes and Regulations
Section 1128(a)(3) of the Act, 42 U.S.C. § 1320a-7(a)(3), authorizes the Secretary of

Health and Human Services (Secretary) to exclude from participation in any federal
health care program (as defined in section 1128B(f) of the Act):'

' “Federal health care program” is defined in section 1128B(f) as any plan or

program that provides health benefits, whether directly, through insurance, or otherwise,
which is funded directly, in whole or in part, by the United States Government, or any
(continued...)
Any individual or entity that has been convicted for an offense which occurred
after the date of the enactment of the Health Insurance Portability and
Accountability Act of 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 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
relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other
financial misconduct.

The terms of section 1128(a)(3) are restated in somewhat restructured regulatory language
at 42 C.F.R. § 1001.101(c). This statutory provision encompasses only felony
convictions.

The Act defines “conviction” as including those circumstances:

(1) when a judgment of conviction has been entered against the individual... bya..
. State... court, regardless of whether . . . the judgment of conviction or other record
relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual... bya... State...
court;

(3) when a plea of guilty or nolo contendere by the individual . . . has been accepted
bya... State... court; or

(4) when the individual . . . has entered into participation in a first offender, deferred
adjudication, or other arrangement or program where judgment of conviction has been
withheld.

Act, section 1128(i)(1)-(4), 42 U.S.C. § 1320a-7(i)(1)-(4). These definitions are repeated
at 42 C.F.R. § 1001.2.

'(...continued)
State health care program. “State health care program” is defined in section 1128(h) of
the Act and includes the Medicaid program (Title XIX).

> The Health Insurance Portability and Accountability Act (HIPAA) of 1996 was
enacted on August 21, 1996.
4

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

IV. Discussion

A, Petitioner was convicted of a felony related to fraud, theft, embezzlement,
breach of fiduciary responsibility, or other financial misconduct in connection
with the delivery of a health care item or service, within the meaning of section
1128(a)(3) of the Act.’

Petitioner is a pharmacist who was licensed by the State of Georgia. Petitioner’s
license to practice pharmacy was suspended on or about November 17, 2004.
LG. Ex. 7, at 1. In December 2005, he applied for reinstatement of his license.
Id. at 2.

On December 1, 2005, Petitioner was charged by Accusation filed in the
Superior Court of Effingham County, Georgia, with four felony counts of
Acquisition of Controlled Substances by Fraud, in violation of GA. CODE ANN.
§ 16-13-43. 1.G. Ex. 3. Specifically, the Accusation charged Petitioner with
illegally taking the controlled substances Hydrocodone, Carisoprodol, Provigil,
and Tussionex Syrup from WalMart on August 24, 2004. LG. Ex. 3.

On December 6, 2005, Petitioner pleaded guilty to the four felony counts, and
the court accepted Petitioner’s guilty plea. Petitioner received a conditional
discharge pursuant to GA. CODE ANN. § 16-13-2, and received a felony
sentence: three years of probation on the four counts to run concurrently,
restitution in the amount of $818.88, a fine of $1000, and other monetary
assessments. I.G. Ex. 8.

Petitioner’s guilty plea, and its acceptance by the court, constitute a “conviction”
within the meaning of section 1128(i)(3) of the Act. Further, Petitioner entered
into a deferred adjudication program under GA. CODE ANN. § 16-13-2(a). Thus,
I find that Petitioner was also “convicted” of a criminal offense within the
meaning of section 1128(i)(4) of the Act.

> My findings of fact and conclusions of law are set forth, in italics and boldface,
in the discussion headings of this decision.
5

Petitioner argues that he did not plead guilty to a criminal offense related to
fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial
misconduct and that the court’s final disposition order did not state that he had
pleaded guilty to any of those offenses. Rather, Petitioner contends that he
pleaded guilty only to the criminal offense of unauthorized possession of a
controlled substance, which is not among the offenses listed in section
1128(a)(3) of the Act.’ Petitioner’s Brief at 1-2. In disputing his conviction,
Petitioner contends that an “indictment is not evidence of guilt nor evidence of a
conviction.” /d. at 4. In Petitioner’s view, he did not enter into a deferred
adjudication program based on the crime of Acquisition of a Controlled
Substance by Fraud nor was he convicted of a felony relating to theft in
connection with a health care item. /d. at 4.

Petitioner’s arguments have no merit, and I reject them. It is well-settled that
the I.G. may rely on extrinsic evidence to explain the circumstances of the
offense of which a party is convicted. Narendra M. Patel, M.D., DAB No. 1736
(2000); Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Bruce Lindberg, D.C.,
DAB No. 1280 (1991).

find that Petitioner’s Accusation, as well as the criminal warrant, are sufficient
for me to infer that the offense of which Petitioner was convicted is the type of
offense described at section 1128(a)(3) of the Act. The Accusation charged
Petitioner with four counts of illegally taking several controlled substances,
specifically, Hydrocodone, Carisoprodol, Provigil, and Tussionex Syrup, from
WalMart. I.G. Ex. 3. Further, each of the four criminal warrants issued by a
Municipal Court Judge in Effingham County explicity recites that Petitioner is
charged with the felony offense of acquiring a controlled substance by fraud or
theft, in violation of “O.C.G.A. 16-13-43” — specifically, Tussionex Syrup,
Carisoprodol tablets, Provigil tablets, and Hydrocodone tablets — and that, while
working as a pharmacist at WalMart, Petitioner consumed and took possession
of a prescription drug without a prescription. I.G. Ex. 4. I find the Accusation
and the warrants to be reliable and credible for purposes of showing the
underlying facts of Petitioner’s conduct. Narendra M. Patel, M.D., DAB No.
1736 (2000); Gerald A. Goff, DAB CR1123 (2003).

Further, Petitioner has produced no evidence in support of his claim that he was
solely convicted of unauthorized possession of a controlled substance. In fact,
on the court document titled “Sworn Statement of Defendant,” Petitioner has, in
the upper right-hand corner, in his own handwriting, described the offenses as “4

4 In his brief, Petitioner states that this offense is described in GA. CODE ANN.
§ 16-13-30.
6

counts of Acquisition of Controlled Substance by Fraud O.C.G.A. 16-13-43.”
LG. Ex. 5. Thus, by his own admission, Petitioner has acknowledged the nature
and circumstances of his criminal offenses. There can be no doubt that Petitioner
was charged with, and pleaded guilty to, four counts of Acquisition of a
Controlled Substance by Fraud. Petitioner’s conviction was a felony conviction
that related to theft of prescription drugs.

B. Petitioner’s felony conviction was “in connection with the delivery of
a health care item or service.”

As stated above, Petitioner denies that his conviction was connected with the
delivery of a health care item. He recognizes the line of Departmental Appeals
Board cases (See, e.g., Erik D. DeSimone, R.Ph., DAB No. 1932 (2004); Kevin J.
Bowers, DAB No. 2143 (2008)), holding that theft of drugs by a pharmacist from
his employer constitutes theft in connection with the delivery ofa health care
item, but contends that those cases are not applicable to his situation because he
“has not been convicted of theft of a controlled substance.” Petitioner’s Brief at
6. Petitioner insists on arguing that “[t]here is not evidence in any of the
documents in the record that [he] has been convicted of theft of a health care
item.” Jd.

I reject Petitioner’s arguments. As discussed in the preceding section, the weight
of the evidence shows that Petitioner acquired controlled substances through
fraud, namely theft. There is no dispute that Petitioner was convicted of a felony
conviction related to theft of prescription drugs.

It logically follows that Petitioner’s crime was committed in connection with the
delivery of a health care item or service. The Board’s reasoning in finding the
requisite “common sense connection” in cases involving theft by pharmacy
employees has been as follows: the pharmacy obtains health care items for the
purpose of delivering them to members of the general public in order to meet
their medical needs. When an employee pharmacist takes one of those drugs, he
interferes with the delivery of that item. “[T]heft of [a] drug while under the
guise of performing his professional responsibilities is clearly the requisite
common sense ‘connection’ to health care delivery that section 1128(a)(3)
requires.” Erik D. DeSimone, R.Ph., DAB No. 1932, at 3 (2004) (where the
petitioner pled guilty to theft of a controlled substance and paid $2,500 in
restitution); see also Kevin J. Bowers, DAB No. 2143 (2008); Robert F.
Tschinkel, R.Ph., DAB CR1323 (2005); Thomas A. Oswald, R.Ph., DAB CR1216
(2004).
7

In this case, Petitioner, a pharmacist, stole prescription drugs from his employer,
WalMart, and diverted them for his own use. The Board’s reasoning set out in
the cases cited above is clearly applicable to Petitioner’s conduct. I find that
there exists a “common sense connection” between Petitioner’s theft of
prescription drugs, which were intended for consumers, and the delivery of a
health care item or service.

I find that the I.G. properly excluded Petitioner under section 1128(a)(3) of the
Act. The I.G. has established that Petitioner was convicted of a felony offense
involving fraud, theft, or other financial misconduct in connection with the
delivery of a health care item or service, occurring after the date of enactment of
HIPAA.

C. Pursuant to section 1128(c)(3)(B) of the Act, the minimum period of
exclusion under section 1128(a)(3) is five years.

An exclusion under section 1128(a)(3) of the Act must be for a minimum
mandatory period of five years. As set forth in section 1128(c)(3)(B) of the Act:

Subject to subparagraph (G), in the case of an exclusion under
subsection (a), the minimum period of exclusion shall be not less
than five years....

When the I.G. imposes an exclusion for the mandatory five-year period, the
reasonableness of the length of the exclusion is not an issue. 42 C.F.R.

§ 1001.2007(a)(2). Petitioner was convicted of a criminal offense related to
fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial
misconduct in connection with the delivery of a health care item or service. Asa
result of Petitioner’s conviction, the I.G. was required to exclude him pursuant to
section 1128(a)(3) of the Act, for at least five years.

V. Conclusion

For the reasons set out above, I sustain the I.G.’s exclusion of Petitioner from
participation in Medicare, Medicaid, and all other federal health care programs
for a period of five years, pursuant to the terms of section 1128(a)(3) of the Act.

/s/
Alfonso J. Montano
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

)
In the Case of: )
)
Carey A. Washington, Ph.D., ) Date: March 19, 2009
)
Petitioner, )
)
-V.- ) Docket No. C-08-516
) Decision No. CR1922
The Inspector General. )
)
DECISION

Petitioner, Carey A. Washington, Ph.D., is excluded from participation in Medicare,
Medicaid, and all other federal health care programs pursuant to section 1128(b)(5)(B) of
the Social Security Act (the Act) (42 U.S.C. § 1320a-7(b)(5)(B)), effective April 20,
2008, based upon having been terminated and permanently excluded from participation in
the South Carolina Medicaid program for reasons bearing upon his professional
competence, professional performance, or financial integrity. There is a proper basis for
exclusion. Petitioner’s exclusion from participation in Medicare for the period during
which he is excluded from participation in the South Carolina Medicaid program is
mandatory pursuant to section 1128(c)(3)(E) of the Act (42 U.S.C. § 1320a-7(c)(3)(E))
and 42 C.F.R. § 1001.601(b)(1).

I. Background

The Inspector General for the Department of Health and Human Services (the IG.)
notified Petitioner by letter dated March 31, 2008, that he was being excluded from
participation in Medicare, Medicaid, and all federal health care programs until such time
as he is reinstated by the South Carolina Department of Labor, Licensing and Regulation,
pursuant to section 1128(b)(5) of the Act. The basis cited for Petitioner’s exclusion was
his exclusion from the South Carolina Medicaid program for reasons bearing on his
professional competence, professional performance, or financial integrity. Act

§ 1128(b)(5); 42 U.S.C. § 1320a-7(b)(5); and 42 C.F.R. § 1001.601(a)(1)(ii).
2

Petitioner timely requested a hearing by letter dated June 3, 2008. The case was assigned
to me for hearing and decision on July 8, 2008. On August 4, 2008, I convened a
prehearing telephone conference, the substance of which is memorialized in my Order
dated August 5, 2008.

The L.G. filed a motion for summary judgment and a supporting brief on August 28, 2008
(1.G. Brief), with I.G. Exhibits (I.G. Exs.) 1 through 8. Petitioner failed to timely file his
response to the I.G. motion for summary judgment and on October 15, 2008, I ordered
that he show cause for why his case should not be dismissed for abandonment. Petitioner
filed his statement of cause and his opposition to the motion for summary judgment on
October 28, 2008. No reply was filed by the I.G. and, upon inquiry by my office, it was
determined that counsel for the LG. did not receive a copy of Petitioner’s opposition. A
copy of Petitioner’s opposition was provided to the I.G. On January 29, 2009, the LG.
advised me that he did not intend to file a reply to Petitioner’s opposition. No objection
has been made to the admissibility of any of the proposed exhibits and I.G. Exs. | through
8 are admitted.

II. Discussion
A. Findings of Fact

The following findings of fact are based upon the uncontested and undisputed assertions
of fact in the pleadings and the exhibits admitted. Citations may be found in the analysis
section of this decision if not included here.

1. The South Carolina Department of Health and Human Services (state agency)
notified Petitioner by letter dated January 28, 2005, that a post-payment review of
his Medicaid records revealed that claims to Medicaid were made using his billing
number during the period June 2002 through May 2004, for counseling services
rendered by unlicensed non-doctoral supervisees without the supervising
psychologist — Petitioner — present, without prior approval of the South Carolina
LLR Board of Examiners in Psychology, and contrary to the Board’s prior
disapproval of Petitioner’s supervising in that manner, as well as many additional
errors the agency attributed to lack of supervision. I.G. Ex. 6.

2. The state agency notified Petitioner by letter dated March 10, 2005, that it had
disallowed $276,755 in claims made with his billing number on grounds that
supervision requirements were not met and criteria for providing psychological
services were not met and advising Petitioner that he must pay or appeal the
determination. I.G. Ex. 7.
3

3. The state agency notified Petitioner by letter dated January 17, 2007, that no
appeal and no payment of $276,755, had been received, and that he was
permanently excluded from participation in the South Carolina Medicaid program
effective immediately. I.G. Ex. 8.

4. The L.G. notified Petitioner by letter dated March 31, 2008, that he was being
excluded from participation in Medicare, Medicaid, and all federal health care
programs pursuant to section 1128(b)(5) of the Act, based upon having been
suspended, excluded, or otherwise sanctioned by the South Carolina Medicaid
program for reasons bearing upon his professional competence, professional
performance, or financial integrity. I.G. Ex. 1.

5. Petitioner timely requested a hearing by letter dated June 3, 2008. I.G. Ex. 2.

B. Conclusions of Law

1. Petitioner’s request for hearing was timely and I have jurisdiction.
2. Summary judgment is appropriate.
3. Petitioner was permanently excluded from participation in a state health care

program for reasons bearing upon his financial integrity, thus, there is a basis for
is exclusion from participation in Medicare pursuant to section 1128(b)(5)(B) of
the Act.

4. Pursuant to section 1128(c)(3)(E) of the Act and 42 C.F.R. § 1001.601(b)(1) the
period of Petitioner’s exclusion from participation in Medicare shall not be less
than the period of his exclusion from the state health care program.

5. Petitioner’s exclusion was effective 20 days after the date of the I.G. notice of
exclusion. 42 C.F.R. § 1001.2002(b).

C. Issues

The Secretary of the Department of Health and Human Services (the Secretary) has by
regulation limited my scope of review to two issues:

Whether there is a basis for the imposition of the exclusion; and,
Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).
4

In this case there is no issue as to the reasonableness of the period of exclusion as the Act
requires that the period of Petitioner’s exclusion from participation in Medicare shall not
be less than the period of his exclusion from the state health care program. Act,

§ 1128(c)(3)(E).
D. Applicable Law

The law generally applicable to this case includes that set forth in my Conclusions of Law
and the following statements of the law.

Petitioner’s right to a hearing by an ALJ and judicial review of the final action of the
Secretary is provided by section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)). The
standard of proof is by a preponderance of the evidence. 42 C.F.R. § 1001.2007(c).
Petitioner bears the burden of proof and persuasion on any affirmative defenses or
mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R.
§1005.15(b) and (c). When an exclusion is based on a determination by another
government agency “or any other prior determination where the facts were adjudicated
and a final decision was made,” the prior determination is not subject to review or
collateral attack on substantive or procedural grounds. 42 C.F.R. § 1001.2007(d).

E. Analysis
1. Summary judgment is appropriate in this case.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to
reasonable notice and an opportunity for a hearing. The right to hearing before an ALJ is
accorded to a sanctioned party by 42 C.F.R. § 1005.2 and the rights of both the sanctioned
party and the I.G. to participate in a hearing are specified in 42 C.F.R. § 1005.3. Either or
both parties may choose to waive appearance at an oral hearing and to submit only
documentary evidence and written argument for my consideration. 42 C.F.R.

§ 1005.6(b)(5). The ALJ may also resolve a case, in whole or in part, by summary
judgment. 42 C.F.R. § 1005.4(b)(12). Summary judgment is appropriate and no hearing
is required where either: there are no disputed issues of material fact and the only
questions that must be decided involve application of law to the undisputed facts; or, the
moving party must prevail as a matter of law even if all disputed facts are resolved in
favor of the party against whom the motion is made. A party opposing summary
judgment must allege facts which, if true, would refute the facts relied upon by the
5

moving party. See e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No.
1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997) (in-
person hearing required where non-movant shows there are material facts in dispute that
require testimony); Thelma Walley, DAB No. 1367 (1992); see also, New Millennium
CMHC, DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000).

There are no genuine issues of material fact in dispute in this case. Petitioner does not
deny that he was permanently excluded from participation in the South Carolina Medicaid
program. Petitioner also does not deny the facts that were the basis for the state agency
determination to permanently exclude him from participation in the South Carolina
Medicaid program. This case must be resolved against Petitioner as a matter of law and
summary judgment is appropriate.

2. There is a basis for Petitioner’s exclusion pursuant to section
1128(b)(5)(B) of the Act.

The I.G. cites section 1128(b)(5)(B) of the Act as the basis for Petitioner’s exclusion.
The statute provides:

(b) Permissive Exclusion.—The Secretary may exclude the following
individuals and entities from participation in any Federal health care
program (as defined in section 1128B(f)):
RRR

(5) Exclusion or suspension under federal or state health care
program.—Any individual or entity which has been suspended or excluded
from participation, or otherwise sanctioned, under—

(A) any Federal program, including programs of the Department of

Defense or the Department of Veterans Affairs, involving the

provision of health care, or

(B) a State health care program,

for reasons bearing on the individual's or entity's professional competence,
professional performance, or financial integrity.

The statute permits the Secretary to exclude from participation any individual or entity:
(1) excluded from participation in a state health care program; (2) for reasons bearing
upon the individual’s or entity’s financial integrity. Petitioner does not dispute that the
South Carolina Medicaid program is a state health care program within the meaning of
section 1128(h) of the Act. Petitioner does not dispute that he was permanently excluded
from the South Carolina Medicaid program. Petitioner also does not dispute that he was
6

excluded for failure to repay the overpayment determined by the state agency or that the
overpayment resulted from the submission of claims for payment from the program using
is billing privileges. I conclude that there is a nexus between Petitioner’s financial
integrity and his failure to repay the overpayment and the fact that he permitted his billing
number to be used for the submission of unauthorized claims for payment.

Petitioner argues in his request for hearing that he has been in practice as a psychologist
licensed by the State of South Carolina since 1997. In 2003, the administrator of We
Care Enrichment Center (We Care) asked that he provide services to foster care parents
and their children in their homes and schools. The administrator had staff to deliver
services but he needed a licensed psychologist to provide supervision and consultation.
Petitioner agreed to provide services for 20 percent of total billing. Petitioner provided
group and individual supervision in his office for approximately 18 months. We Care
was audited by the state agency, several violations were identified related to case notes
and billing, and it was concluded that Petitioner should have been providing his services
at the We Care site rather than at his office. The administrator was notified of the
overpayment of $276,000 but failed to respond or repay the overpayment. Petitioner
states that because his Medicaid number was used by the administrator to file claims for
reimbursement from Medicaid, the state agency pursued him and that he is currently
paying the overpayment amount. Petitioner states that he has provided quality services in
a professional manner and will continue to do so. He asserts that he provided the
supervision required but the administrator failed to administer the program correctly.
Petitioner states that he has never falsified any aspect of treatment; that he entered the
agreement with the administrator of We Care in good faith; that he followed all guidelines
of the state “Psychological Board” in providing supervision of the We Care staff; that the
state agency did nothing for 18 months and the administrator did not reveal the results of
the audit to him or take any action; that his only mistake was trusting the administrator as
services were provided with appropriate supervision; that he would have made
corrections immediately had he know of the issue; and that he was the victim of the
irresponsibility and dishonesty of the administrator. I.G. Ex. 2.

Petitioner argues in his opposition to the I.G. motion for summary judgment that his
reputation for professional competence and professional performance is high. He states
that it was the We Care administrator’s responsibility to administer the program. He
denies having received the letter dated February 4, 2004 from the South Carolina Board
of Examiners in Psychology responding to his January 30, 2004 letter, which advised him
that he was responsible for complying with regulations for the employment and
supervision of unlicensed persons providing psychological services, and that the Board of
Examiners would not approve off-site supervision for such persons. I.G. Ex. 4. I note
that the Board of Examiners’ letter reflects Petitioner’s correct mailing address at the time
and Petitioner offers no explanation for why he did not seek an explanation for why he
7

received no response to his January 30, 2004 letter if no response was received.
Petitioner states that he asked the administrator to address the concerns of the state
agency but only later learned that the administrator failed to do so. Petitioner states that
cannot understand why the state agency’s purported attempts to contact him were
unsuccessful. Petitioner asserts that the administrator misrepresented himself to the state
and Petitioner. Petitioner acknowledges that he met with the state agency but no demand
for repayment of the overpayment was made to him and he thought the agency was going
to pursue the administrator of We Care. Petitioner asserts that he would have terminated
is association with We Care had he learned of the issues raised by the state agency.
Petitioner states that he has always attempted to achieve the highest standards of
professionalism and ethics as a clinical psychologist. He states the process has been
complicated and tedious but he acted upon information from the administrator of We
Care. Petitioner states that the administrator of We Care failed to take responsibility for
is negligence but Petitioner has accepted responsibility and negotiated repayment with
the state agency with great financial loss. Petitioner argues that his acts are indicative of
is financial and professional integrity. He does desire to be reinstated in both Medicare
and Medicaid.

have carefully considered Petitioner’s arguments and conclude that they do not establish
grounds for any relief. My authority is limited to determining whether there is a basis for
Petitioner’s exclusion and I have found that there is a basis. For purposes of summary
judgment I accept as true Petitioner’s assertions of fact. However, the facts asserted do
not affect the outcome. Petitioner permitted the administrator to use his billing privileges
to bill Medicaid for Petitioner’s services and the services of others. Petitioner cannot
avoid his responsibility for the abuse of his billing privileges by the simple expedient of
blaming the administrator for the abuse. The fact that Petitioner may not have received
the Board of Examiners’ letter stating off-site supervision would not be approved also
does not affect the outcome. The Board’s regulation is clear on its face that an unlicensed
employee must work in the same physical location as the supervising psychologist unless
the Board has approved other arrangements. I.G. Ex. 5, at 2. Petitioner requested
approval from the Board of Examiners of his practice of meeting with unlicensed persons
to review their work but not being at the same physical site when they delivered their
services. 1.G. Ex. 3. Even if Petitioner never received the letter from the Board of
Examiners disapproving his practice, the regulation placed him on notice that he could
not proceed in the manner he suggested absent specific approval of the Board.
Furthermore, Petitioner was not excluded from the South Carolina Medicaid program for
violation of the South Carolina regulation that required direct supervision of unlicensed
personnel in the same physical location. Petitioner was excluded for failure to promptly

8

resolve the overpayment. I.G. Ex. 8. Petitioner does not dispute that he was excluded for
failure to resolve the overpayment. Petitioner also does not dispute that the evidence
shows that he did not begin repayment of the overpayment until he was notified of his
exclusion, which was two years after the overpayment was declared. I.G. Ex. 8.

3. Permanent exclusion is not unreasonable.

Pursuant to section 1128(c)(3)(E) of the Act and 42 C.F.R. § 1001.601(b)(1) the period of
Petitioner’s exclusion from participation in Medicare shall not be less than the period of
his exclusion from the state health care program. Petitioner was permanently excluded
from the South Carolina Medicaid program. Accordingly, his permanent exclusion from
Medicare is not unreasonable as a matter of law.

The period of exclusion is not in issue as the Act requires that Petitioner’s exclusion from
Medicare be not less than the period of his exclusion from the state Medicaid program. I
have no authority to reduce the period of exclusion from permanent to a period of years,
even if, I accept Petitioner’s equitable arguments.

Ill. Conclusion

For the foregoing reasons, Petitioner is permanently excluded from participation in
Medicare, Medicaid and all federal health care effective April 20, 2008, 20 days after the
March 31, 2008, I.G. notice of exclusion.

/s/
Keith W. Sickendick
Administrative Law Judge