Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Community Care of Rutherford County, Inc.,
(CCN: 44-5406),

Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-09-595
Decision No. CR2173

Date: July 06, 2010

DECISION AND ORDER OF REMAND

I find that Petitioner, Community Care of Rutherford County, Inc., failed to comply
substantially with Medicare participation requirements. I also find that some of
Petitioner’s noncompliance was so egregious as to comprise immediate jeopardy for
residents of Petitioner’s facility and that this immediate jeopardy level noncompliance
extended over a period of time that began on October 9, 2008 and ran through May 29,
2009. I also find that Petitioner manifested non-immediate jeopardy level noncompliance
during a period that began on May 30, 2009 and ran through June 6, 2009. Consequently,
I sustain the following remedies:

¢ Civil money penalties of $3,050 per day to remedy Petitioner’s immediate
jeopardy level noncompliance for a period running through May 29, 2009; and

¢ Civil money penalties of $150 per day to remedy Petitioner’s non-immediate
jeopardy level noncompliance for a period that began on May 30, 2009 and ran
through June 6, 2009.
I do not establish a beginning date for the $3,050 civil money penalties. I do not do so,
because Petitioner has alleged that a standard survey of Petitioner’s facility was
completed on February 26, 2009. As I find below, the Centers for Medicare and
Medicaid Services (CMS) may not impose back-dated civil money penalties against a
facility for dates prior to the date of the most recent standard survey of that facility.
Consequently, if Petitioner’s assertion of a February 26, 2009 standard survey is correct,
the beginning date of immediate jeopardy level penalties would be February 27, 2009,
notwithstanding that I find that Petitioner manifested immediate jeopardy level
noncompliance beginning on October 9, 2008. However, Petitioner has not offered any
evidence to support its assertion that a standard survey of its facility occurred on
February 26, 2009, and CMS did not respond to Petitioner’s argument. I remand in part
this case to CMS to make a determination as to whether a standard survey of Petitioner’s
facility occurred at any time between October 9, 2008 and February 26, 2009.

I. Background

Petitioner is a skilled nursing facility in the State of Tennessee. It participates in the
Medicare program. Its participation in Medicare is governed by sections 1819 and 1866
of the Social Security Act (Act) and by regulations at 42 C.F.R. Parts 483 and 488.

Petitioner was surveyed for Medicare compliance from April 27 to May 13, 2009 (May
survey). Petitioner was found not to be complying substantially with several Medicare
participation requirements. Three of the deficiencies were found to be so egregious as to
comprise immediate jeopardy for Petitioner’s residents. “Immediate jeopardy” is
noncompliance that either causes, or is likely to cause, serious injury, harm, impairment,
or death to a resident or residents of a facility. 42 C.F.R. § 488.301. CMS concurred
with the survey findings and determined to impose remedies consisting of civil money
penalties of: $3,050 per day for each day of a period that began on October 9, 2008 and
ran through May 29, 2009; and $150 per day for each day of a period that began on May
30, 2009 and ran through June 6, 2009.

Petitioner requested a hearing, and the case was assigned to me for a hearing and
decision. I ordered the parties to file pre-hearing exchanges consisting of briefs and
proposed exhibits, including the written direct testimony of all proposed witnesses. The
parties complied with my order, and CMS then moved for summary judgment. I denied
the motion, because I found that disputed issues of material fact existed. The parties then
agreed to waive an in-person hearing, and I received final briefs from them.

CMS submitted a total of 22 exhibits with its pre-hearing exchange, which it designated
as CMS Ex. 1—CMS Ex. 22. Petitioner submitted a total of 20 exhibits, which it
designated as P. Ex. 1 — P. Ex. 20. I receive all of the parties’ exhibits into evidence.
IL. Issues, Findings of Fact, and Conclusions of Law
A. Issues

Petitioner did not address any of the non-immediate jeopardy level deficiencies that the
May survey found in either its pre-hearing brief or in its final brief. I conclude that
Petitioner has abandoned its challenge to these deficiencies, and CMS’s determination of
them has become administratively final.’ Therefore, I sustain CMS’s determination to
impose civil money penalties of $150 per day for each day of the period that ran from
May 30 through June 6, 2009.

Petitioner continues to challenge the immediate jeopardy level deficiencies that the May
survey found and CMS’s determination to impose remedies to address those deficiencies.
The remaining issues in this case are whether:

1. Petitioner manifested immediate jeopardy level noncompliance with
Medicare participation requirements;

2. CMS’s determination of the duration of immediate jeopardy level
noncompliance is correct; and

3. CMS’s determination to impose civil money penalties of $3,050 per day
to remedy immediate jeopardy level noncompliance is reasonable as a
matter of law.

B. Findings of Fact and Conclusions of Law

The three immediate jeopardy level noncompliance findings that are at issue in this
decision are Petitioner’s alleged failures to comply with the requirements of 42 C.F.R. §§
483.25(h), 483.75, and 483.75(0)(1). In this decision, I address only Petitioner’s
noncompliance with the requirements of 42 C.F.R. § 483.25(h), because Petitioner’s
immediate jeopardy level noncompliance with this regulation is all that is necessary to
sustain CMS’s determination of immediate jeopardy level noncompliance running from
October 9, 2008 through May 29, 2009, and its determination to impose civil money
penalties of $3,050 per day to remedy this noncompliance.

I make the following findings of fact and conclusions of law (Findings):

' The non-immediate jeopardy level deficiencies that Petitioner did not address, and
which I conclude Petitioner no longer challenges, are Petitioner’s failures to comply with
the requirements of 42 C.F.R. §§ 483.13(c), 483.20(g)-(j), 483.20(d)(3), 483.10(k)(2),
and 483.20(k)(3)(i).
1. Petitioner did not comply substantially with the requirements of 42
CF.R. § 483.25(h).

The regulation at issue here has been the subject of much litigation. It requires a facility
to ensure that its residents receive the supervision and assistance devices they need to
prevent accidents. 42 C.F.R. § 483.25(h)(2). While the regulation does not make a
acility strictly liable for accidents that its residents sustain, it does impose on the facility
the duty to take all reasonable measures to protect those residents.

The gravamen of CMS’s case against Petitioner is that Petitioner failed to take all
reasonable measures to protect its residents against falling. CMS focuses on the care that
Petitioner gave to several of its residents, most notably residents who it identifies as
Residents #s 5, 15, 16, 18, 22, and 25. CMS argues that these residents were individuals
who were extremely prone to falling and who were known to Petitioner’s staff as falls
prone individuals. However, according to CMS, Petitioner failed to implement all of the
reasonable interventions that it could have implemented to protect these individuals, and,
as a result, these individuals remained at great risk for sustaining serious and even life-
threatening falls. CMS avers that one of the residents — Resident # 5 — sustained falls that
injured him grievously and that he finally sustained a fall, which caused his death due to
Petitioner’s failure to protect him.

CMS makes a separate argument concerning Resident # 1. This resident, CMS alleges,
was injured, because Petitioner’s staff failed to follow an explicit written physician’s
order governing the manner in which the resident was supposed to be transferred from
one location in Petitioner’s facility to another. The case of Resident # 1, therefore, is not
a case of Petitioner’s failure to prevent the resident against sustaining a fall so much as it
is a more generic failure to protect the resident against sustaining an accident.

The evidence amply supports CMS’s assertions. The care that Petitioner gave to its
residents evidences a pattern of deficient care. The evidence does not show that
Petitioner ignored entirely these residents’ needs. But, it establishes that Petitioner failed
to implement aggressively the interventions — principally consisting of increased
supervision and personal assistance — that might have better protected residents against
falling. Several of Petitioner’s residents were individuals who could not be trusted to
ambulate unassisted or, in the cases of Residents #s 5 and 15, to be left alone. What these
residents plainly needed was close supervision and even one-on-one assistance by
Petitioner’s staff. They did not receive this support and, as a consequence, were left
unprotected against falling.

Moreover, the evidence establishes that Petitioner’s staff failed to carry out Petitioner’s
own policy for falls prevention. CMS Ex. 7. Petitioner had a policy that mandated its
staff to develop and implement new interventions for falls prone residents, as it became
apparent that previously developed interventions were unsuccessful. The staff was
obligated to continue to develop, and to try, new interventions until falling ceased, or was
at least reduced, or until continued falling was determined to be unavoidable. Jd. at 2.
The evidence that I discuss below shows that Petitioner failed repeatedly to comply with
this policy.

As for Resident # 1, the evidence unequivocally supports a finding that Petitioner’s staff
failed to carry out an express physician’s order governing the way in which the resident
was to be transferred. As a consequence, the resident was seriously injured.

a. Resident # 5

This resident was a severely compromised individual. He became a resident at
Petitioner’s facility in 1996, and his medical conditions included Parkinson’s Disease and
osteoarthritis. CMS Ex. | at 14. His physical impairments included repetitive jerking
motions. The resident had mental problems, which included short and long-term memory
deficits, anxiety, periods of altered perception, and restlessness. Jd. He was almost
totally dependent on Petitioner’s staff for support and assistance. He required extensive
assistance with bed mobility, transfers, ambulation, and dressing. CMS Ex. 17 at 69, 72,
99.

Resident # 5 fell, and he fell often. Between March and July 2008, the resident fell at
least 28 times, and on nine of these occasions the resident sustained injuries. CMS Ex. 1
at 17-23; CMS Ex. 17 at 9-11.

Petitioner’s staff understood that the resident was at extreme risk for falling. The staff’s
falls risk assessment of the resident, which concluded that he was at high risk for
sustaining falls, proves this. CMS Ex. 17 at 99-100. Obviously, the resident’s extreme
risk for sustaining falls should have been known to the staff simply as a result of the
many falls the resident sustained.

Resident # 5’s behavior exacerbated his risk of falling. The resident was, at times,
restless, anxious, and confused. In his confused and restless state, Resident # 5 would
engage in extremely risky and dangerous behavior, such as attempting to exit his
wheelchair or a geri-chair unassisted. CMS Ex. 17 at 37, 41, 43, 129-30. On numerous
occasions, the resident attempted to stand unaided, notwithstanding his extreme
vulnerability to sustaining falls. CMS Ex. | at 16.

Petitioner’s staff implemented a number of interventions in response to Resident # 5’s
pattern of falls. These interventions included: providing the resident with a low bed with
mats beside it; providing him with a body alarm; adjusting his medication to decrease his
agitation; installing a lap buddy in his wheelchair to prevent him from exiting the chair;
providing him with therapy to assist his sitting in a wheelchair; putting the resident in a
geri-chair when necessary; walking him with the assistance of a therapist; placing the
resident near Petitioner’s nurse’s station and in the proximity of the nurses who worked
there; providing the resident with a Broda chair when needed; toileting the resident at
regular intervals; and psychiatric consultations. P. Ex. 9.”

None of these interventions were successful. That was made evident by the fact that the
resident continued to fall, frequently, even after the interventions were in place. The use
of a lap buddy was conspicuously ineffective, because the resident continued to fall even
after the lap buddy was installed. Between March and July 2008, the resident fell, on
average, several times per week. These falls often left the resident injured. On March
22, 2008, Resident # 5 fell from his bed, injuring his head. CMS Ex. 17 at 4, 9, 174. On
April 29, 2008, the resident fell, sustaining a skin tear to his left elbow. He fell again and
was again injured on May 1, 2008. CMS Ex. | at 18. On May 23, 2008, he fell again,
and, on this occasion, he injured his head. CMS Ex. 17 at 23. On July 5, 2008, the
resident was seated in a geri-chair by Petitioner’s nurse’s station, and he fell again,
injuring his head. CMS Ex. | at 22; CMS Ex. 11. The head trauma that he sustained
from this fall caused his death. CMS Ex. 1 at 22; CMS Ex. 17 at 5.

It is obvious — and I infer that Petitioner’s staff knew — that the interventions that
Petitioner had put in place to protect Resident # 5 were ineffective. None of these
interventions prevented the resident from falling, and, indeed, his risk for falling
increased while these interventions were in place. The question, then, is what more
within reason could Petitioner have done to protect Resident #5? There certainly was
more that Petitioner could have done and that it did not do. Its staff could have put the
resident under close and even continuous observation at least during that part of the day
when the resident was not in bed.

It is apparent that leaving the resident unwatched, even for a short period of time, was an
invitation for the resident to fall. According to one member of Petitioner’s staff, it only
took seconds for the resident to rise out of his chair and fall. CMS Ex. 17 at 7. But,
Petitioner never implemented continuous supervision of the resident despite the obvious
failure of all other interventions. Petitioner’s director of nursing admitted that continuous
supervision was never attempted. /d. The resident was kept in the line of sight of
Petitioner’s staff meaning that the staff could see the resident. Jd. However, at no time
were staff members instructed to watch the resident continuously and to remain in close
enough proximity to the resident so that they could stabilize him if he attempted to stand
unassisted. Jd. Thus, the resident was not being observed when he fell, fatally, on July 5,
2008.

?T take notice that a “geri-chair” and a “Broda chair” are chairs designed to provide a
seated individual with greater support and security than an ordinary wheelchair. These
devices, however, are not foolproof protection against falling, because an individual who
is seated in them can fall while attempting to rise out of them or after exiting them.
Continuous supervision was plainly called for in the case of Resident # 5, given his
history of almost daily falls and the several serious injuries he sustained from falls.
Petitioner has given me no explanation for its failure even to consider implementing this
intervention. Petitioner has not provided any evidence or argument to show that
continuous supervision was beyond its capability to provide nor has it shown that such an
intervention would have been unreasonable. And, if Petitioner had, in fact, been unable
to provide such supervision, it should have documented why it was unable to do so. It
did not.

Petitioner argues that the only untried intervention that it might have implemented for
Resident # 5 was to restrain him with a device that tied him to his wheelchair, such as a
Posey vest. I find that argument to be unpersuasive. I make no finding that restraining
the resident would have benefited him. But, Petitioner did not have to restrain Resident #
5 to protect him.

Petitioner also argues at great length that Resident # 5 and other falls prone residents
were, in fact, the beneficiaries of Petitioner’s philosophy of care, which Petitioner calls
the “Eden Alternative.” This philosophy, according to Petitioner, gave residents, such as
Resident # 5 and the other residents whose care that CMS cited, maximum freedom to
enjoy their lives in an environment that promotes their dignity:

Eden promotes allowing residents mobility and the ability to express
preferences, recognizing that there will be ensuing risks. Eden promotes

allowing residents to take reasonable risks and enjoy the last years of their
lives.

Petitioner’s Final Brief at 3. Petitioner asserts that the Tennessee Legislature mandates
that facilities such as Petitioner employ the Eden Alternative program in providing care
to residents. Jd. at 4. Petitioner argues that CMS’s allegations of noncompliance butt
heads with the Eden Alternative to the extent that CMS would have Petitioner implement
interventions that the Eden Alternative does not permit.

I find this argument to be without merit. First, although Petitioner devotes much energy
to extolling the virtues of the Eden Alternative, it never describes the specific elements of
the program. For example, Petitioner introduced the testimony of George Smith, M.D.,
Petitioner’s medical director, who describes himself as a proponent of the Eden
Alternative. P. Ex. 9 at 1. In his testimony, he avers that the Eden Alternative is:

dedicated to eliminating loneliness, helplessness, and boredom and to
transforming institutional approaches to care into the creation of a
community where life is worth living. Our building [Petitioner’s facility]
embraces the philosophy of a resident-centered environment. We promote
residents making their preferences known. Even if these preferences are
considered by some to be poor, we recognize that permitting freedom and
quality of life includes risks.

Id. at 1.

These objectives certainly sound laudable but, in fact, neither Dr. Smith’s testimony nor
any of the other evidence that Petitioner introduced offer me a clue as to what the Eden
Alternative actually mandates a facility to do. The record is devoid of specifics as to
what the Eden Alternative actually is. Petitioner has not provided me with anything to
prove that enhanced supervision of Resident # 5 or of other falls prone residents would
contravene the Eden Alternative. Moreover, Petitioner’s participation in Medicare is
governed by the Act and implementing regulations and not by Tennessee law or the Eden
Alternative. To the extent that conflicts exist between the Eden Alternative and the
requirements of the Act and regulations (and, I stress, Petitioner has not established any
conflicts), the Act and the regulations control. Finally, Petitioner had a falls policy,
which it plainly did not comply with. Petitioner has not argued that the Eden Alternative
superseded or conflicted with this policy.

Petitioner also seeks to describe its situation as one in which it was offered the choice of
either: (1) following the Eden Alternative and being found noncompliant with Medicare
participation requirements; or (2) restraining its residents to comply with the State
survey agency’s and CMS’s demands. This is a false choice. As I discuss at length in
this decision, there was an option — enhanced supervision of falls prone residents — that
Petitioner neither considered nor implemented. Petitioner never was forced to choose
restraints as the only remaining intervention for falls prone residents.

Petitioner argues also that its staffing to resident ratio exceeded that which is required
under Tennessee law. Petitioner’s Final Brief at 4. However, CMS has not alleged that
Petitioner is inadequately staffed. In the case of Resident # 5, the issue certainly is not
whether Petitioner was adequately staffed. It is, rather, whether Petitioner adequately
utilized the staff resources that it had to protect the resident. I find that it did not for the
reasons that I have explained.

b. Resident # 15

Petitioner’s failure to do all that was reasonably required to protect its residents against
falls is illustrated also by the care that Petitioner gave to other residents besides Resident
#5. In the case of Resident # 15, Petitioner failed to take reasonable alternative measures
to protect the resident, when it became apparent that Resident # 15 knew how to remove
or disable the chair alarm that the staff had installed to alert them to the resident’s efforts
to rise from his wheelchair unaided.
Resident # 15, like Resident # 5, is at great risk for falling. His diagnoses include
Parkinson’s disease, dementia, delusions, and muscle atrophy. CMS Ex. 1 at 31. He has
impaired decision-making skills and is easily distracted. Jd. He is assessed as acting
impulsively, which he manifested by attempting to engage in unsafe activities. Jd. at 32.
Petitioner’s staff assessed Resident # 15 as being at high risk for sustaining falls in part
due to his intermittent confusion. Id.

The resident has fallen often. Between July 1, 2008 and April 30, 2009, the resident fell
at least 41 times. CMS Ex. | at 32. Petitioner’s staff recommended a bed alarm for the
resident, but the alarm was not installed. The resident was also issued a chair alarm.
However, the resident frequently disabled or removed the alarm. /d. at 33. In fact, the
alarm had been disabled or removed at the time of approximately 20 of the documented
falls that Resident # 15 sustained. Id.

Petitioner’s staff thus knew that Resident # 15 was at high risk for falls, and they knew
also that the resident often disabled his chair alarm, a principal intervention that was
designed to warn the staff that the resident was leaving his wheelchair. Yet, and despite
this knowledge, the staff neither planned nor implemented additional interventions that
were designed to substitute for the obviously ineffective alarm. CMS Ex. | at 34.

I find the failure to consider and to implement alternatives to a chair alarm to be a clear
violation of Petitioner’s duty to protect Resident # 15 from accident hazards. A chair
alarm is, at best, a device that enhances a facility staff’s ability to supervise a falls prone
resident. It serves as a warning device that sounds a need for staff immediately to come
to the aid of a resident who is doing something inappropriate, such as attempting to rise
out of a wheelchair unaided. Obviously, Petitioner’s staff depended on a chair alarm to
warn them about Resident # 15. That protection was stripped away by the resident’s
proclivity for disabling the alarm. Staff knew about that but did not develop or
implement alternative interventions.

What could the staff have done? As was the case with Resident # 5, the obvious solution
in the case of Resident # 15 would have been to implement increased, and, if necessary,
continuous supervision of that resident during waking hours. If the staff could not rely on
an alarm to tell them to come to the resident’s aid, then the staff needed to watch the
resident to assure that he did not engage in dangerous activity, such as attempting to rise
from his wheelchair unaided.

Petitioner argues that it undertook numerous interventions to protect Resident # 15.
These included: providing the resident with a new wheelchair; equipping the chair with a
lap buddy; rearranging the resident’s room to prevent falls; providing the resident with
shoulder and side positioners; placing a warning sign in the resident’s room; providing
10

the resident with a remote control for operation of his CD player; providing the resident
with activities; and installing a chair alarm in the resident’s wheelchair. Petitioner’s Final
Brief at 16-17.

But, it is obvious that none of these interventions worked. Resident # 15 continued to fall
despite these interventions. Petitioner’s staff knew that they were not working. Nor did
these interventions substitute for what might have worked, increased supervision of the
resident. No evidence exists that the staff even considered taking this measure.’

c. Resident # 16

Resident # 16 is another resident with medical problems that make him prone to falling.
His problems include partial paralysis, short and long-term memory problems, and
moderately impaired decision-making skills. CMS Ex. | at 34. Petitioner’s staff
assessed the resident as needing extensive assistance with bed mobility and transfers. He
has a history of falling. /d. He sustained falls in January and February 2009. Id. at 34-
35.

The evidence concerning the care that Petitioner gave to Resident # 16 proves that
Petitioner was remiss in providing him with that which its staff had recommended as
interventions to protect the resident against falling. In short, Petitioner failed to provide
the resident with the reasonable assistance that its own staff had determined to be
necessary.

A body alarm was recommended for this resident. However, none was ever installed.
CMS Ex.1 at 35. The resident was also supposed to be provided with a non-slide pad for
his wheelchair to stabilize him while he was in the chair. However, the pad was not in
place on February 21, 2009 when the resident sustained a fall. Id. at 35-36.

Petitioner argues that the allegations concerning Resident # 16 are a “singular falsity that
appropriate interventions to reduce falls were not thoughtfully considered, balanced
against competing interests, and implemented when warranted.” Petitioner’s Final brief
at 18. Petitioner lists a series of interventions that it contends it provided to the resident.
Petitioner’s arguments and contentions notwithstanding, it has offered no evidence to
prove that it in fact provided Resident # 16 with the assistance that its staff determined to
be necessary. Petitioner does not deny that it failed to provide Resident # 16 with a body

* After the completion of the May survey, Petitioner restrained Resident # 15 witha
Posey belt. Petitioner asserts that, as a consequence of this restraint, the resident now tips
over his wheelchair. Petitioner’s Final Brief at 17-18. I make no finding that a Posey
belt or other type of restraint was necessary or that it has been effective in protecting
Resident # 15. Evidently, Petitioner has still not attempted to keep the resident under
increased observation without restraining him.

11

alarm. Instead, it asserts that “[o]n admission, per facility protocol, an order was given
for a body alarm for seven days.” Petitioner’s Final Brief at 18. Giving an order for a
body alarm is not the same thing as supplying a body alarm. And, even if the alarm was
supplied to the resident for seven days, the resident had been in the facility for several
months (since May 2008), when he sustained falls in January and February 2009. At the
time of these falls, he was not equipped with a body alarm and did not receive one
subsequently. CMS Ex. | at 35.

As for the failure to provide the resident with a non-slide pad, Petitioner contends only
that this failure was a “one-time mistake that was promptly corrected.” Petitioner’s Final
Brief at 18. In other words, Petitioner concedes the failure to provide the resident with
that which he needed.

d. Resident # 18

Resident # 18 is another resident at Petitioner’s facility who sustained many falls.
Between June 13, 2008 and April 5, 2009, this resident fell at least 66 times.

CMS Ex. | at 37. The resident sustained minor injuries from some of these falls. She
was assessed as having an unsteady and unsafe gait. Jd. at 36. She had periods of
restlessness and wandering. She required extensive assistance with transfers and limited
assistance with mobility. Despite these obvious problems, the resident persisted in
attempting to ambulate unassisted or with the use of a walker. Petitioner’s staff assessed
the resident as being oblivious to her own personal safety. Jd. at 37.

The resident’s pattern of falls should have made it evident that whatever interventions
were being provided to her were of little benefit. An obvious need existed to assess the
resident and to plan additional interventions, including, perhaps, much closer supervision
than had been provided, to protect her against falling. However, Petitioner’s physical
therapy staff did not conduct a falls assessment of Resident # 18 between March 25, 2008
and the May survey, a period of about 13 months. CMS Ex. 1 at 39. Petitioner’s staff
had recommended providing the resident with a wheelchair for use at all times and
providing assistance with ambulation. Jd. But, these recommendations had not been
implemented as of the May survey. The failure of Petitioner’s staff to intervene
aggressively to protect Resident # 18 was a failure to take all reasonable measures to
protect her.

Petitioner argues that it implemented multiple interventions to protect Resident # 18.
According to Petitioner, these interventions included: numerous interventions that were
attempted prior to December 2007; physical therapy; prescribing medication to treat
dizziness; involving the resident in activities; and discussing issues of personal safety
with the resident. Petitioner’s Final Brief at 22-24.
12

But, Petitioner does not deny that it failed to implement any new interventions after
September 1, 2008 with the exception of adjusting her medication for dizziness. CMS
Ex. | at 39; Petitioner’s Final Brief at 22-24. Nor does it deny that it failed to implement
the staffs recommendation that the resident be given increased assistance with
ambulation. Indeed, it is clear that the one thing that Petitioner never seems to have
considered in providing care to Resident # 18 is that, as was the case with other residents,
this resident needed close personal supervision and companionship to assure that she did
not fall.

Petitioner argues that this is a case of a mentally-competent resident asserting her desire
to remain independent. As Petitioner frames it, the resident had a right to assume certain
risks, even if her refusal to accept assistance from Petitioner’s staff was inadvisable. I do
not find this to be a persuasive statement of the issue. It may be that Resident # 18 was
within her rights to refuse certain forms of treatment or protection. But, Petitioner has
offered no evidence to show that its staff offered Resident # 18 increased personal
assistance and supervision and that she refused this offer.*

e. Resident # 19

Resident # 19 is an individual who sustained at least 10 falls while residing at Petitioner’s
acility. These falls included falls that the resident sustained on April 6 and 17, 2009.
CMS Ex. | at 39-40. On both of these occasions, the resident fell after leaving her bed
unobserved. Petitioner’s staff had placed a pressure alarm in the resident’s bed to sound
a warning when the resident attempted to leave the bed unassisted. However, the alarm
‘ailed to function when the April 6 and 17 falls occurred. Id.

Petitioner acknowledges that the pressure alarm did not work at the time of the April 6
and 17 falls. Petitioner asserts that this failure does not support a finding of
noncompliance. According to Petitioner, its staff checked the resident’s alarm regularly
to assure that it functioned properly. The problem, according to Petitioner, was that
Resident # 19:

‘Petitioner avers that, since the May survey, Resident # 18 has been restrained in a
wheelchair with a Posey belt and that the resident has deteriorated physically and
mentally as a consequence. Petitioner’s Final Brief at 24. Its unstated assertion is that
the Tennessee State survey agency, or CMS, forced Petitioner to implement this
intervention. However, neither of these two agencies forced this choice on Petitioner. As
I discuss above, the failure of Petitioner in the case of Resident # 18 was not that it failed
to restrain the resident but that it failed to offer the resident increased assistance and
supervision as a falls protection measure.
13

had learned to unhook alarms. . . She previously had worn a pull alarm, but
she had figured out how to unhook it. She would hide the alarm under her
pillow, take the batteries out of the alarm and put the back of the alarm on
again, and pull the alarm cord out of the end and break it so it would not
sound. It is not surprising that she broke the end of her cord off since she
had [done] that before... After. . . [Resident # 19] was switched to the
pressure alarm, these behaviors improved somewhat. However she still
tries to find ways to avoid the alarm going off. . . These alarms are very
fragile and even without tampering, need to be replaced regularly. In both
the April 6 and the April 17 instances, the alarm had been checked within
the prior week and was working the morning after the incident.

Petitioner’s Final Brief at 25-26 (citations omitted).

These contentions do not support Petitioner. Rather, they show how Petitioner was
deficient in providing care to Resident # 19. Relying on an alarm to alert the staff about
potentially hazardous behavior (in this instance, leaving bed unattended) makes no sense
if it is known that the resident has a propensity and ability for disabling the alarm. The
alarm was inherently unreliable in that event. Yet, Petitioner’s staff continued to rely on
it without considering whether other interventions, such as closer supervision of the
resident or more frequent bed checks, might be needed. That is a failure to provide all
reasonable measures to protect the resident.

Sf. Resident # 22

Resident # 22, like the other residents whose care I address in this decision, is prone to
falling. Petitioner’s staff equipped the resident with both a bed and a body alarm. On
April 7, 2009, the resident was found lying on the floor of his room. He had attempted to
leave his bed unassisted. The bed alarm did not sound, because it was not equipped with
a battery. The body alarm did not sound, because the resident had removed his gown
with the alarm attached to it. CMS Ex. | at 42.

Petitioner’s staff knew that the resident’s bed alarm was ineffective. The resident is a
large individual and, apparently, would trigger the bed alarm even in situations when he
was not attempting to leave his bed unaided. Petitioner’s Brief at 26-27. The staff's
purpose in supplying the resident with a body alarm was to provide him with an alarm in
lieu of, and not as a supplement to, his bed alarm.

Given that, it was absolutely necessary that the resident’s body alarm function flawlessly.
The staff was, after all, using it as a substitute for keeping the resident under observation
or, at least, from checking on the resident more frequently. The fact that the staff knew
that the resident could disable his body alarm put them on notice that this device was not
an effective substitute for the bed alarm. Failure to address that problem was a failure by
14

Petitioner’s staff to take all reasonable measures to protect Resident #22. And, as was
the case with other residents, Petitioner’s staff never considered closer observation of
Resident # 22 as an intervention.

g. Resident # 25

Resident # 25 is an individual who is prone to falling. In February 2009, Petitioner’s
staff assessed this resident as being at high risk for sustaining falls. CMS Ex. | at 43. In
fact, the resident sustained several falls while at Petitioner’s facility. The resident fell on:
November 16 or 17, 2008; January 17, 2009; March 25, 2009; and April 10, 23, and 28,
2009. After the resident sustained a fall in November 2008, a nurse recommended that
the resident be given a safety device (presumably an alarm). However, the
recommendation was never implemented, notwithstanding the several falls that the
resident experienced subsequently. Id. at 44.

Failure to equip this resident with an alarm — or to develop alternative interventions that
effectively protected the resident against falling — was an obvious failure by Petitioner to
comply with regulatory requirements. A member of Petitioner’s staff had assessed the
resident as needing an alarm. That, obviously, was intended to compensate for the staff’s
not keeping the resident under closer observation. In effect, it was determined that either
the resident needed to be observed more closely or that the resident needed to wear an
alarm so that staff could be summoned on very short notice if the resident attempted to do
something that was unsafe. Failing to equip the resident with the alarm and not
compensating for that failure with increased observation meant that the staff was leaving
the resident unprotected.

Petitioner argues that its management had determined at various times that a body alarm
would be counterproductive for this resident. Petitioner’s Final Brief at 28-29. But, if
that was so, that was not a license for Petitioner to leave the resident unprotected. If
Petitioner decided — for whatever reason — not to equip the resident with an alarm, it then
had to confront the reality that the resident was continuing to fall while unobserved by
Petitioner’s staff and deal with that reality. The obvious substitute for the alarm was
heightened observation and supervision of the resident, an intervention that Petitioner
neither considered nor implemented.

h. Resident # 1

The facts pertaining to Resident # 1 differ somewhat from the pattern of facts pertaining
to other residents whose care I have discussed. This is not a case of a failure by
Petitioner’s staff to develop effective interventions to protect a resident against falling.
Rather, it is a failure by Petitioner’s staff to implement an intervention.
15

Resident # 1 is an individual who was assessed by Petitioner’s staff as being totally
dependent on the staff for mobility, transfer, and for all activities of daily living. CMS
Ex. | at 26; CMS Ex. 16 at 40. A physician’s order had been issued directing that a
mechanical lift be used for all transfers of Resident # 1. CMS Ex. 16 at 101. In fact,
Petitioner’s staff seldom used the lift to transfer the resident. CMS Ex. 1 at 29-30; CMS
Ex. 16 at 4. On October 9, 2008, the resident sustained a fractured left femur, when two
of Petitioner’s staff transferred the resident without using the mechanical lift. CMS Ex. 1
at 30-31; CMS Ex. 16 at 5-18.

The failure to follow a physician’s order and to employ a mechanical lift to transfer
Resident # 1 was a patent violation of the facility’s duty to implement reasonable
measures to protect Resident # 1. The staff had no discretion here, it was obligated to
carry out the resident’s physician’s order. Their failure to do so caused the resident to
sustain a serious injury.

Petitioner does not deny the facts that CMS contends. It argues, however, that it
undertook immediate corrective action following the incident on October 9, 2008 and that
it completed its corrections by October 23, 2008. Therefore, according to Petitioner, it
self-corrected the deficiency after only two weeks.

I discuss the duration of Petitioner’s noncompliance at Finding # 3 of this decision. It is
sufficient for me to say here that the facts that Petitioner alleged — even if they may show
correction of deficient care after the fact — are no defense to CMS’s allegations of
noncompliance. What is unchallenged is that Petitioner’s staff failed to carry out a
physician’s explicit order and, so, caused Resident # 1 to sustain a serious injury.

2. CMS’s determination of immediate jeopardy level noncompliance is
not clearly erroneous.

The evidence in this case strongly supports a finding of immediate jeopardy level
noncompliance by Petitioner with the requirements of 42 C.F.R. § 483.25(h). There was
a very high likelihood of harm to Petitioner’s residents that Petitioner’s failure to provide
them with all reasonable support and assistance to prevent accidents caused.

Petitioner’s noncompliance actually caused residents to sustain serious injuries. Resident
# 1, for example, sustained a broken femur as a consequence of Petitioner’s staff’s failure
to follow an explicit physician’s order governing transfer of the resident. Furthermore,
the likelihood of serious injury to falls and other accident prone residents was quite high.
A pattern exists in this case of failure by Petitioner and its staff to seek out and
implement all reasonable measures designed to protect residents. That left the residents
vulnerable to injuries or worse.
16

3. The evidence supports a finding of immediate jeopardy level
noncompliance from at least October 9, 2008 through May 29, 2009.

The evidence in this case unequivocally proves that Petitioner manifested immediate
jeopardy level noncompliance with the requirements of 42 C.F.R. § 483.25(h), beginning
well before October 9, 2008 and continuing through May 29, 2009. CMS found that
immediate jeopardy level noncompliance commenced on October 9, 2008, the date when
Resident # 1 sustained a fractured femur as a consequence of her being transferred by
Petitioner’s staff in violation of a physician’s order that she be transferred only with the
assistance of a mechanical lift. In fact, immediate jeopardy began months before that,
with the failure of Petitioner’s staff to address the falls risk of Resident #5. A persistent
pattern of immediate jeopardy level noncompliance existed thereafter, as is evidenced by
the care that Petitioner gave to Residents #s 15, 16, 18, 19, 22, and 25.

Furthermore, Petitioner has not shown that it corrected its immediate jeopardy level
noncompliance prior to May 29, 2009. It asserts that it self-corrected the noncompliance
as respects Resident # 1 within two weeks of the resident’s October 9, 2008 fall. But,
those corrective measures — which focused on assuring that staff carried out physicians’
orders for resident transfers — did not address the broader problem of Petitioner’s failure
to develop and implement reasonable measures for protecting residents against accidents
and falls in particular.

Petitioner argues strenuously that immediate jeopardy level noncompliance may not be
found for the entire October 9, 2008 — May 29, 2009 period, because the Tennessee State
survey agency allegedly did not follow proper protocol and survey procedures in
investigating allegations of noncompliance, particularly as respects the care that
Petitioner gave to Residents #s 1 and 5. Petitioner argues also that inconsistencies
existed in the surveyors’ findings and that the individuals who were involved in
surveying Petitioner’s facility had an inadequate understanding of how Petitioner
operated. Petitioner’s Final Brief at 34-36. However and Petitioner’s arguments
notwithstanding, this case is not in any sense a review of the propriety of a State survey
agency’s actions. It is a de novo hearing in which I decide based solely on the evidence
relevant to Petitioner’s compliance whether Petitioner complied with participation
requirements. The objective evidence in this case overwhelmingly supports my findings
of noncompliance, scope and severity, and duration.

4. Civil money penalties of $3,050 and $150 per day are reasonable.

CMS determined to impose civil money penalties of $3,050 per day for each day of
Petitioner’s immediate jeopardy level noncompliance. That is the minimum immediate
jeopardy penalty amount that the regulations allow. 42 C.F.R. § 488.438(a)(1)(i). Ido
not have the authority to impose a penalty of less than $3,050 per day to remedy
17

immediate jeopardy level noncompliance. CMS’s determination is therefore reasonable
as a matter of law.”

Petitioner argues that the penalty amount is unreasonable, citing a variety of reasons.
However, and as I have stated, I have no discretion to go below $3,050 per day.

Penalties of $3,050 per day may be imposed against Petitioner for each day of its
immediate jeopardy level noncompliance through May 29, 2009. However, although I
have found that Petitioner’s immediate jeopardy level noncompliance began on October
9, 2008 (and, in fact, at least several months prior to that date), I do not establish a
beginning date for the imposition of the $3,050 per day penalties.

42 C.F.R. § 488.430(b) governs the beginning point for imposition of civil money
penalties in any case:

CMS or the State may impose a civil money penalty for the number of days
of past noncompliance since the last standard survey, including the number
of days of immediate jeopardy.

This regulation plainly says that penalties may be imposed for past noncompliance only
as far back as the date of the last standard survey of a facility. That is true even if the
actual noncompliance — including immediate jeopardy level noncompliance — originated
on a date that is earlier than the date of the last standard survey. The last standard survey
date is thus a cut off of the dates when civil money penalties for past noncompliance may
be imposed. North Ridge Care Ctr., DAB No. 1857 (2002).

Petitioner argues that the standard survey that was made of its facility prior to the May
survey took place on February 26, 2009. If Petitioner is correct, then, arguably, no civil
money penalties for past noncompliance may be imposed for days prior to February 27,
2009, even though immediate jeopardy level noncompliance persisted at Petitioner’s
facility beginning on at least October 9, 2008. CMS filed no arguments or evidence
challenging Petitioner’s assertion.

* This is also why I do not address the other two immediate jeopardy level
noncompliance findings that CMS made. CMS has not asked for penalties of more than
the minimum immediate jeopardy level amount. Finding additional instances of
immediate jeopardy level noncompliance are simply unnecessary as support for the
minimum penalty. Also, the possible absence of additional noncompliance at the
immediate jeopardy level would under no circumstance support a penalty amount of less
than $3,050 per day.
18

lam not in a position as of this time to decide what would be the cut off date for
imposition of past penalties. I am, accordingly, remanding the case to CMS so that it
may make a determination as to when the last standard survey was completed of
Petitioner’s facility. If that date is February 26, 2009, then immediate jeopardy level
penalties would begin to run on February 27, 2009. If, however, the date is earlier than
February 26, then that date would control except that in no event will penalties be
imposed for dates beginning earlier than October 9, 2008.

As I note in the Background to this decision, Petitioner offered no evidence or argument
concerning the non-immediate jeopardy level deficiencies that were found at the May
survey. Therefore, penalties of $150 per day for each day of the period running from
May 30 through June 6, 2009 are reasonable as a matter of law.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Anjali Sahai, M.D.,
(CCN: 09295014100100),

Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-10-347
Decision No. CR2172

Date: July 1, 2010

DECISION DENYING CMS’S MOTIONS TO DISMISS AND FOR SUMMARY
JUDGMENT, DISMISSING WITHOUT PREJUDICE, AND REMANDING TO
CMS FOR FURTHER ACTION

I deny the motion of the Centers for Medicare and Medicaid Services (CMS) to dismiss
the hearing request of Petitioner, Anjali Sahai, M.D. I also deny CMS’s Motion for
Summary Disposition. I dismiss the appeal without prejudice and remand this matter to
CMS with instructions that CMS further develop the factual record of this case and issue
a new determination.

I. Background

Petitioner filed a hearing request (HR) dated January 11, 2010 accompanied by two
attachments: a letter from the provider enrollment unit at CMS dated October 27, 2003,
and a reconsideration decision letter dated January 4, 2010. I have marked the
accompanying attachments as Petitioner’s Exhibits 1 and 2, respectively, for reference in
this decision.

This case was originally assigned to Administrative Law Judge (ALJ) Carolyn Cozad
Hughes for hearing and decision. On January 27, 2010, an Acknowledgment and Initial
Pre-Hearing Order (Pre-Hearing Order) was issued at her direction. On February 24,
2010, CMS filed a Motion to Dismiss Petitioner’s request for a hearing and also filed two
2

exhibits, CMS Exhibits A and B. On March 25, 2010, this case was transferred to me for
hearing and decision, pursuant to 42 C.F.R. § 498.44.

Petitioner failed to file a response to the CMS Motion to Dismiss, and, on April 16, 2010,
I issued an Order to Show Cause. Petitioner responded to the Order to Show Cause by
letter dated May 3, 2010. That letter mentioned documents not included with the HR but
did not include copies of them. Neither party complied with the deadlines set in the Pre-
Hearing Order for exchanging all exhibits, written direct testimony, and pre-hearing
briefing. On April 26, 2010, I issued another Order directing both parties to submit all
material they wished me to consider, including all materials that the Pre-Hearing Order
required.

On May 6, 2010, Petitioner’s submitted a letter with additional documents including most
of those documents referenced in Petitioner’s May 3, 2010 letter. I have marked
Petitioner’s documents that accompanied the letter as Petitioner’s Exhibits 3, 4, 5, and 6
and numbered the pages consecutively for reference in this decision. On May 7, 2010,
CMS filed a Motion and Memoranda for Summary Disposition. Neither party has
objected to any document or exhibit, so I admit both parties’ exhibits as evidence.

A brief description of the relevant facts underlying my decision is as follows: Petitioner
submitted an enrollment application and received an “effective date”! for that enrollment
application of August 17, 2009 from Palmetto GBA (Palmetto), a CMS contractor. CMS
Ex. B. Petitioner then filed a reconsideration request challenging the effective date
Palmetto provided and requested an effective date retroactive to July 1, 2009. P. Ex. 5.
On January 4, 2010, the Palmetto hearing officer denied Petitioner’s reconsideration
request, citing 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) as the basis of the decision.

In this appeal, Petitioner’s representative argues that Petitioner was enrolled with
Medicare in 2003 and never should have been required to submit a new provider
enrollment application in the fall of 2009. HR. Petitioner’s representative states that for
“some unknown and unspecified reason” Petitioner became “unlinked” from her medical
group, whereupon the contractor requested that Petitioner submit a new CMS 8551 and
CMS 855R application. P. Letter of May 3, 2010. Petitioner contends that CMS erred in
requesting a new provider enrollment application and requests that Petitioner’s original
effective date be reinstated. HR. Thus, Petitioner essentially argues that, due to CMS’s
error in instructing Petitioner to resubmit a new enrollment application, Petitioner’s
effective date was incorrectly determined. See P. Letter of May 3, 2010.
Neither party proffered any testimonial evidence. Petitioner stated in her May 3, 2010
letter that her position was that she had “submitted ample evidence that the root of the
problem is the fact that CMS inexplicably and without warning unlinked Dr. Anjali Sahai

' The date that Palmetto identified (August 17, 2009) is not Petitioner’s “effective” date;
however, since it is not the date of receipt of Petitioner’s application but, instead, is most
likely the date CMS determined that Petitioner could retroactively bill for services in
accordance with 42 C.F.R. § 424.521. This issue is discussed in greater detail infra.
3
from Altos Oaks Medical Group” and that Petitioner hopes “for a quick and favorable
outcome.” I conclude that neither party seeks an in-person evidentiary hearing. I have
reviewed all the materials that the parties submitted, as well CMS’s motions, and proceed
to decide this case based upon the current record.

IL. Issues, Findings of Fact, and Conclusions of Law
1. Issues
The issues in this case are as follows:

1. Whether I should dismiss Petitioner’s hearing request on the ground that
she has no right to appeal; and

2. Whether CMS is entitled to summary judgment that its contractor
properly determined Petitioner’s effective date of enrollment.

2. Findings of Fact and Conclusions of Law
My findings of fact and conclusions of law are set forth in bold and italics below.

A, The effective date of a Medicare provider agreement or supplier approval
is an initial determination reviewable in this forum; thus, Petitioner has a
right to a hearing.

i. Applicable Standard

Pursuant to 42 C.F.R. § 498.70(b), I may dismiss a hearing request where a party
requesting a hearing “does not otherwise have a right to a hearing.”

ii. Analysis

CMS argues that the Medicare regulations “do not give appeal rights to a Medicare
provider or supplier dissatisfied with the effective date of Medicare enrollment” and that
I must therefore dismiss the appeal. CMS Motion to Dismiss at 2.

In several prior decisions, I have explained why I do not agree with CMS and the
decisions it cites. See Michael Majette, D.C., DAB CR 2142 (2010); see also Eugene
Rubach, M.D., DAB CR2125 (2010); Mobile Vision, Inc., DAB CR2124 (2010). I adopt
the reasoning explained in my prior decisions, which I summarize briefly here.

The wording of section 498.3(b)(15) appears straightforward in providing that the
“effective date of a Medicare provider agreement or supplier approval” is an appealable
initial determination and includes no qualifying or limiting language. None of the
administrative actions identified in section 498.3 as not subject to appeal under Part 498
4

include the determination of an effective date for a provider or supplier to participate in
Medicare.

While subpart P of part 424 unquestionably does grant appeal rights from denials and
revocations, as CMS notes, it does so by reference to the provisions of subpart A of Part
498, stating that a prospective provider or supplier whose enrollment is denied or revoked
“may appeal CMS’ decision in accordance with part 498, subpart A of this chapter.” 42
C.F.R. § 424.545(a). Subpart A of Part 498 includes section 498.3(b)(15), yet CMS did
not exclude section 498.3(b)(15) or otherwise indicate that effective date determinations
would not be proper subjects for these Medicare hearings. When CMS published subpart
P of Part 424 in 2006 (71 Fed. Reg. 20,753, 20,776 (Apr. 21, 2006)), it was well-aware of
the longstanding provision in section 498.3(b)(15), which it had described in 1997 as
granting “appeal rights and procedures for entities that are dissatisfied with effective date
determinations.” 62 Fed. Reg. 43,931-32 (Aug. 18, 1997). Yet, section 424.545(a)
incorporated section 498.3 without limitation. Hence, the plain language of section
424.545(a) reinforces the plain language of section 498.3(b)(15).

The history of section 498.3(b)(15) shows CMS’s recognition that: (1) approving
participation at a date later than that sought amounts to a denial of participation during
the intervening time; (2) effective date appeals generally involves the same kind of
compliance issues that arise from initial denials; and (3) the right to appeal an effective
date determination, while not previously codified, had already been confirmed by court
decisions. 62 Fed. Reg. at 43,933-34 (final rule); 57 Fed. Reg. 46,362, 46,363 (Oct. 8,
992) (proposed rule). While rules for determining effective dates adopted at the same
time as section 498.3(b)(15) applied only to providers and suppliers subject to
certification or accreditation, the rulemaking addressing section 498.3(b)(15) contains no
language parallel to that addressing determining effective dates, limiting its application to
only providers and suppliers that are subject to survey and certification or accreditation.
62 Fed. Reg. at 43,934; 57 Fed. Reg. at 46,363.

CMS argues nonetheless that the plain language of section 498.3(b)(15) is inapplicable
ere. CMS argues that this provision is meant to apply only to those suppliers or
providers subject to survey and certification (or accreditation by a CMS-approved
accrediting organization) as a basis for determining their participation in Medicare and
whose effective dates are governed by 42 C.F.R. § 489.13, but not to suppliers, such as
Petitioner, whose Medicare enrollment is approved under Part 424, subpart P. CMS
points out that section 498.3(b)(15) was adopted “long before” the Medicare statute was
amended (by section 936(a)(2) of the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 (codified at 42 U.S.C. § 1395ce(j))) to permit suppliers not
subject to survey and certification or accreditation to appeal denials of applications for
enrollment (CMS Motion to Dismiss at 3) and that the regulations in Part 424
implementing the 2003 amendment permit such suppliers to appeal only denials and
revocations of enrollment.

5

CMS’s argument is not persuasive. A later statute does not elucidate the intended
meaning of a prior regulation, especially one unambiguous on its face. While regulatory
history and other sources of guidance are relevant in interpreting language, which is
ambiguous, unclear in its application, or which leaves gaps, courts do not resort to such
interpretive tools when the wording is clear on its face. See, e.g., Connecticut Nat’! Bank
v. Germain, 503 U.S. 249, 253-54 (1992) ([T]he “cardinal canon” of construction is that a
statute means what it says and, when unambiguous, “this first canon is also the last:
‘judicial inquiry is complete.’”). CMS has not identified in what respect the wording of
section 498.3(b)(15) is ambiguous or unclear, or where the language leaves a gap
requiring interpretation to give it meaning. | thus find little room for the interpretation
CMS advances.

iii. | Conclusion
Based on the foregoing, I deny CMS’s Motion to Dismiss.
B. CMS is not entitled to summary judgment on the record before me.
i. Standard of Review

CMS’s Motion for Summary Disposition seeks relief in the nature of summary judgment.
The Departmental Appeals Board stated the standard of review for summary judgment as
follows:

Summary judgment is appropriate when the record shows that there is no
genuine issue as to any material fact, and the moving party is entitled to
judgment as a matter of law. Kingsville Nursing and Rehabilitation Center,
DAB No. 2234, at 3 (2009), citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-25 (1986). While the Federal Rules of Civil Procedure (FRCP) are not
binding in this administrative appeal, we are guided by those rules and by
judicial decisions on summary judgment in determining whether the ALJ
properly granted summary judgment. See Thelma Walley, DAB No. 1367
(1992). ... The party moving for summary judgment bears the initial
burden of showing that there are no genuine issues of material fact for trial
and that it is entitled to judgment as a matter of law. Kingsville at 3, citing
Celotex, 477 U.S. at 323. If the moving party carries its initial burden, the
non-moving party must “come forward with ‘specific facts showing that
there is a genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986) (quoting FRCP 56(e)). To defeat an
adequately supported summary judgment motion, the non-moving party
may not rely on the denials in its pleadings or briefs, but must furnish
evidence of a dispute concerning a material fact — a fact that, if proven,
would affect the outcome of the case under governing law. Jd. at 586, n.11;
Celotex, 477 U.S. at 322. In determining whether there are genuine issues
of material fact for trial, the reviewer must view the evidence in the light

6

most favorable to the non-moving party, drawing all reasonable inferences
in that party’s favor. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010).
ii. Analysis

The core of Petitioner’s argument appears to be that she has been continuously enrolled
in Medicare as a member of the same group (Altos Oaks Medical Group, Inc.) since
2003. HR; P. Exs. 1 and 5. According to Petitioner, her claims as a group member were
paid through June 2009, when, without notice, they ceased to be paid. P. Letter of May
3, 2010; P. Ex. 6. Palmetto wrote to Petitioner’s group on August 13, 2009 asking that it
provide a spreadsheet within 72 hours listing all its physicians and their locations,
because it had been “identified as a billing provider who does not have certain
rendering/performing providers attached to your group or billing provider indicated on
recently submitted claims.” P. Ex. 4, at 1. It appears that the group faxed the requested
spreadsheet, including Petitioner’s name and entry date of 2003, with a coversheet the
next day. /d. at 3-5. Palmetto sent another letter dated September 2, 2009 stating that the
spreadsheet had been received and reviewed and that it had determined that “[a]t this
time” that Petitioner was “not attached” to the group. P. Ex. 3, at 1. Attached to the
letter was an annotated copy of the spreadsheet on which Petitioner’s name is circled,
along with other markings. /d. at 2. The letter instructed the group that, “[i]n order to
correct this issue we are requesting a CMS 855] and CMS 855R applications” for
Petitioner, but that no CMS 855B was needed to “revalidate” the group’s information.
Id.

Petitioner evidently followed these instructions. In a letter dated October 14, 2009,
Palmetto stated that Petitioner’s Medicare enrollment applications CMS-855I and CMS-
855R had been processed. Palmetto informed Petitioner’s representative that Petitioner
ad been assigned a Provider Transaction Access Number (PTAN) (which was different
than her preexisting PTAN) and that the PTAN “is linked to” the Altos Oaks’ group
PTAN number. CMS Ex. B at 1. The effective date for this action was given as August
17, 2009, citing 42 C.F.R. § 424.21(a)(1). Id.

Petitioner filed a reconsideration request challenging the August 17, 2009 effective date
Palmetto provided in the October 14, 2009 decision and requested an effective date
retroactive to July 1, 2009. P. Ex. 5. Petitioner’s reconsideration request stated that, “Dr.
Sahai has been a Medicare provider since 2003 and has been getting paid up until June
2009 when her claims were denied and provider enrollment contacted me she was not
attached to our group. . . . would like effective date retro to July 1, 2009 or what date,
after review, Palmetto unlinked Dr. Sahai with Altos Oaks Medical Group.” P. Ex. 5
(emphasis in original).

7

On January 4, 2010, the Palmetto hearing officer denied Petitioner’s reconsideration
request. The reconsideration decision provides no facts upon which the hearing officer
based the decision and merely concludes that “[p]er Title 42 CFR § 405.874 does not
afford a physician or non-physician practitioner with the right to appeal the effective date
made by a Medicare contractor, a physician can always raise their concerns to the
contractor management.” P. Ex. 2. The rationale for denying a change to the effective
date is given as “30 days from the Receipt Date of the application,” but the decision does
not state when the application was received or respond to Petitioner’s concern about why
correcting the “unlinking” of Petitioner involved establishing a new effective date of
enrollment.

In its terse motion for summary disposition, CMS does not clarify either point. CMS
provides a letter from Palmetto dated September 16, 2009 acknowledging receipt of
Petitioner’s application, but the letter does not state the actual date of receipt. CMS Ex.
A. In its motion to dismiss, CMS states that Palmetto received Petitioner’s enrollment
application “on or about September 16, 2009.” CMS Motion to Dismiss at 1. CMS does
not provide Petitioner’s enrollment application that Palmetto received (as it does in many
other cases in which each page of an application shows a stamp with the date and time of
receipt).

The date upon which Palmetto received Petitioner’s application is integral to the correct
determination of Petitioner’s effective date of Medicare billing privileges. Section
424.520 provides in pertinent part:

(d) Physicians, nonphysician practitioners, and physician and
nonphysician practitioner organizations. The effective date for
billing privileges for physician, nonphysician practitioners, and
physician and nonphysician practitioner organizations is the later
of the date of filing of a Medicare enrollment application that was
subsequently approved by a Medicare contractor or the date an enrolled
physician or nonphysician practitioner first began furnishing services
at a new practice location.

(Emphasis added). The “date of filing” is the date that the Medicare contractor receives a
signed provider enrollment application that the Medicare contractor is able to process to
approval. 73 Fed. Reg. 69,725, 69,769 (Nov. 19, 2008) (emphasis added).

It is evident that the date assigned by Palmetto as the “effective date,” August 17, 2009,
is not consistent with section 424.520(d), since CMS described it as “thirty days from the
date [the application] was received by the contractor.” CMS Motion for Summary
Disposition at 1. Given the citation to section 424.521(a)(1), I might presume that CMS
and Palmetto intended to assign an effective date based on the receipt date sometime on
or prior to September 17, 2009, and then to grant a 30-day period of retroactive billing as
that regulation permitted.
8

Given CMS’s failure to document any undisputed date of receipt in this case and its
failure to explain the calculation of the August 17, 2009 purported effective date,
however, I am unwilling to presume and correct the error on summary judgment. On
summary judgment, I must view the factual evidence in the light most favorable to the
non-movant, here Petitioner. I therefore accept for purposes of the motion and, in the
absence of any contrary evidence, that Petitioner was continuously enrolled, that the
disconnection of Petitioner’s number from the group was an administrative error rather
than an adverse action, and that the CMS 855 forms were merely intended to assist the
correction of that error rather than as re-enrollment applications.

Given that the effective date that the contractor set is erroneous, that the record does not
establish the exact effective date that would be applicable treating Petitioner’s
submissions to the contractor as enrollment applications, and that Petitioner has raised
disputes of fact as to whether the submissions were actually intended as, or properly
treated as, enrollment applications, I conclude that CMS has not established that it is
entitled to summary judgment by law.

C. Dismissal without prejudice and remand is appropriate action based on
the record before me.

As I have noted, neither the reconsideration decision nor CMS in its motions and
supporting memoranda provides any argument or explanation at all in response to
Petitioner’s account of events. This silence leaves me without the benefit of CMS’s
reasoning as to the legal significance of Petitioner’s account. If the “unlinking” was mere
administrative error, rather than the result of any substantive change or adverse action in
relation to Petitioner or her group, it is not clear why reestablishing the link in Palmetto’s
records constituted an action resulting in a new effective date of Medicare enrollment for
Petitioner at all.

Given the cryptic and sparse record and pleadings, I do not find the written record
adequate to support a final decision on the merits. In light of CMS’s inadequate
response to my repeated orders to provide all relevant materials for my consideration, I
do not believe that further proceedings before me will generate a clearer record.

Pursuant to 42 C.F.R. § 498.78(b), I may remand “at any time before notice of hearing
decision is mailed.” I therefore dismiss without prejudice and remand this matter to
CMS to more fully develop the basis for action and issue a new determination.
Petitioner may file a new request for hearing before me if the decision on remand is
unfavorable.

/s/
Leslie A. Sussan
Board Member


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Ravindra Patel, M.D.,
Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-10-329
Decision No. CR2171

Date: June 30, 2010

DECISION

I grant the motion of the Centers for Medicare and Medicaid Services (CMS) for
summary judgment and sustain the revocation of Petitioner Ravindra Patel, M.D.’s
Medicare enrollment and billing privileges, based on his conviction of a felony under 42
C.F.R. § 424.535(a) and CMS’s determination barring re-enrollment for a period of three
years. I also deny CMS’s motion to dismiss the appeal and deny Petitioner’s motion for
summary judgment.

I. The Regulation

Section 424.535(a) of 42 C.F.R. authorizes CMS to “revoke a currently enrolled provider
or supplier’s Medicare billing privileges and any corresponding provider agreement or
supplier agreement” for reasons including, as relevant here:

(3) Felonies. The provider, supplier, or any owner of the provider or
supplier, within the 10 years preceding enrollment or revalidation of
enrollment, was convicted of a Federal or State felony offense that CMS
has determined to be detrimental to the best interests of the [Medicare]
program and its beneficiaries.

(i) Offenses include—
* * * *
(B) Financial crimes, such as extortion, embezzlement, income tax
evasion, insurance fraud and other similar crimes for which the
individual was convicted, including guilty pleas and adjudicated
pretrial diversions.

Providers or suppliers who have had their billing privileges revoked “are barred from
participating in the Medicare program from the effective date of the revocation until the
end of the re-enrollment bar,” which is “a minimum of | year, but not greater than 3
years depending on the severity of the basis for revocation. 42 C.F.R. § 424.535(c). A
revocation for a felony conviction is effective “with the date of the felony conviction.”
42 CFR. § 424.535(g).

II. Background - Undisputed Facts

The CMS contractor, Highmark Medical Services (Highmark), revoked Petitioner’s
Medicare billing privileges by notice dated August 10, 2009, based on his conviction,
“within the 10 years preceding enrollment or revalidation of enrollment . . . of a Federal
or State felony offense that CMS has determined to be detrimental to the best interests of
the program and its beneficiaries to continue enrollment.”? CMS Exhibit (Ex.) 1. The
notice stated that the revocation was effective March 25, 2009 and that Petitioner was
barred from re-enrollment for a period of three years under 42 C.F.R. § 424.535(c). Id.

Petitioner sought reconsideration of the revocation and acknowledged his “March 25,
2009 conviction of conspiracy to present false claims to the Social Security
Administration [SSA] in violation of Title 18 U.S.C. § 371.” CMS Ex. 2, at 1. A
Medicare hearing officer sustained the revocation in a decision dated November 11, 2009
that cited Petitioner’s “guilty plea to a felony charge of criminal conspiracy.” CMS Ex.

3. The decision also sustained the three-year re-enrollment bar. Jd.

By letter dated January 2, 2010, Petitioner timely requested a hearing pursuant to the
instructions in the reconsideration decision. This case was originally assigned to
Administrative Law Judge (ALJ) Alfonso J. Montafio and was reassigned to me for

' A physician is a “supplier,” which is defined in the Medicare statute to mean “a
physician or other practitioner, a facility, or other entity (other than a provider of
services) that furnishes items or services” under the Medicare statute. 42 U.S.C.
§ 1395x(d).

> The contractor also cited as a ground for revocation Petitioner’s failure “to comply with
the reporting requirement specified in 42 CFR 424.516(d)(1)(ii), which pertains to the
reporting of changes in adverse actions, within 30 days of the reportable event.” CMS
Ex. 1, at 1. Upon reconsideration, the hearing officer ruled this ground to be “irrelevant,”
since CMS did not rely on it; accordingly, I do not address it here. CMS Ex. 3, at 2.
hearing and decision pursuant to 42 C.F.R. § 498.44, which permits designation of a
Member of the Departmental Appeals Board (Board) to hear appeals taken under Part
498. Pursuant to the briefing schedule that ALJ Montafio ordered, CMS submitted a
motion to dismiss and/or for summary judgment (CMS Motion) and its exhibits 1 - 5.°

Petitioner responded with a motion for summary judgment (P. Motion) and exhibits 1 - 3.
Petitioner’s exhibits consist of: a copy of the October 21, 2008 agreement between
Petitioner and the U.S. Department of Justice for Petitioner to plead guilty to conspiracy
to defraud the Social Security Program (plea agreement, P. Ex. 1), which CMS submitted
as its exhibit 5; 41 pages of letters in support of Petitioner (P. Ex. 2); and a letter from
Petitioner’s former counsel to the New Jersey Board of Medical Examiners advising them
of Petitioner’s entry of a guilty plea (P. Ex. 3).* The letters in Petitioner’s exhibit 2 are
not listed among the materials submitted to the Medicare hearing officer. CMS Ex. 3, at
2. However, in the absence of any objection to the admission of either party’s exhibits,
or any representation from CMS that Petitioner’s exhibit 2 constitutes new documentary
evidence, the admission of which is limited by 42 C.F.R. § 498.56(e), I admit both
parties’ exhibits. In any event, as I determine below, the facts Petitioner seeks to
establish through its exhibit 2 are not material to the outcome of this case.

IIL. Issue, Findings of Fact, Conclusions of Law

A. Issue
The issue in this case is whether either party is entitled to summary judgment based on
whether the undisputed facts demonstrate that the revocation of Petitioner’s enrollment in
Medicare was legally authorized.

B. Applicable Standard

The Board stated the standard for summary judgment as follows:

> While CMS argues that Petitioner has no right to challenge CMS’s determination of the
duration of the bar on re-enrollment, CMS did not explain why I should dismiss
Petitioner’s entire appeal and, in fact, acknowledges that Petitioner may challenge
whether a regulatory basis exists to revoke his billing privileges. CMS Motion at 3-4. In
light of CMS’s recognition of a right to challenge whether a regulatory basis exists for
revocation, I deny the motion to dismiss without further discussion.

* Petitioner’s exhibit list misidentifies this last item as his reconsideration request.
Summary judgment is appropriate when the record shows that there is no
genuine issue as to any material fact, and the moving party is entitled to
judgment as a matter of law. . .. The party moving for summary judgment
bears the initial burden of showing that there are no genuine issues of
material fact for trial and that it is entitled to judgment as a matter of

law. ... To defeat an adequately supported summary judgment motion, the
non-moving party may not rely on the denials in its pleadings or briefs, but
must furnish evidence of a dispute concerning a material fact — a fact that, if
proven, would affect the outcome of the case under governing law. . . . In
determining whether there are genuine issues of material fact for trial, the
reviewer must view the evidence in the light most favorable to the non-
moving party, drawing all reasonable inferences in that party’s favor.

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (citations omitted).
The role of an ALJ in deciding a summary judgment motion differs from the ALJ’s role
in resolving a case after a hearing. The ALJ should not assess credibility or evaluate the
weight of conflicting evidence. Holy Cross Vill. at Notre Dame, Inc, DAB No. 2291, at
4-5 (2009).

C. Analysis

Both parties have moved for summary judgment. Neither alleges that any material facts
are in dispute, and they debate only whether those facts authorize the revocation under
the applicable regulation. Additionally, Petitioner argues that if the revocation is
sustained, it should have begun on October 30, 2008, the date of Petitioner’s plea
agreement, instead of March 25, 2009.

My findings and conclusions are in the italicized headings and subsequent discussions
below.

1. CMS was authorized to revoke Petitioner’s enrollment under 42 C.F.R.
§ 424.535(a)(3), based on his felony conviction.

CMS argues that the revocation is authorized, because Petitioner’s conviction of a felony
charge of conspiracy to defraud SSA falls within the regulation’s category of “[f]inancial
crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other
similar crimes for which the individual was convicted, including guilty pleas and
adjudicated pretrial diversions.” 42 C.F.R. § 424.535(a)(3)(i)(B). Petitioner disagrees,
on the ground that the felony charge of which he was convicted is “unrelated to the best
interests of the Medicare program and its beneficiaries ....” P. Motion at 1. Petitioner
notes that the overarching language at section 424.535(a)(3) authorizes revocation for
conviction of a felony offense “that CMS has determined to be detrimental to the best
interests of the [Medicare] program and its beneficiaries” and argues that CMS has not
shown that it made that determination with respect to the conduct underlying Petitioner’s
conviction. Petitioner argues that CMS presented no evidence that Petitioner has the
“propensity to harm the Medicare program” and has not explained why his continued
participation in Medicare would be harmful to the program. Jd. at 5.

The Board has confirmed, however, that CMS is not required to determine, in each case
of revocation for a felony conviction, that the specific offense of which the individual
supplier was convicted is detrimental to the best interests of Medicare and its
beneficiaries. Instead, the Board has held that the presence of an offense among those
listed in section 424.535(a)(3)(i)(B) means that CMS has already determined that the
offense “is detrimental per se to the best interests of the Medicare program and its
beneficiaries.” Letantia Bussell, M.D., DAB No. 2196, at 9 (2008). That holding was
based on the preamble to the final rule authorizing denial and revocation of enrollment
for felony convictions, in which CMS stated that [felonies that we determine to be
detrimental to the best interests of the Medicare program or its beneficiaries include . . .
financial crimes, such as extortion, embezzlement, income tax evasion, making false
statements, insurance fraud, and other similar crimes... .” 71 Fed. Reg. 20,754, 20,768
(Apr. 21, 2006) (emphasis added).

Petitioner does not argue before me that his offense of conspiracy to defraud Social
Security was not a “financial crime” or that it was not “similar” to any of the other
enumerated offenses, as provided in the regulation. And, based on the undisputed facts
underlying his guilty plea, I conclude that his conviction was covered under section
424.535(a)(3)(i)(B). In reaching this conclusion, I ““examine[] the conduct and
circumstances underlying Petitioner's offense” and consider whether the common law
definition of fraud encompasses Petitioner’s conduct. Abdul Razzaque Ahmed, M.D.,
DAB No. 2261, at 7-8 (2009), aff'd Ahmed v. Sebelius, _ F.Supp.2d ___, 2010 WL
1852132 (D. Mass. 2010). Under common law definitions, “fraud generally requires a
false statement or misrepresentation of material fact that the defendant makes with
knowledge of its falsity and with the intent or purpose that it induce action or forbearance
by another.” Jd. at 8-9 (citations omitted).

Those elements are present here. Petitioner pled guilty under a federal criminal statute
titled “Conspiracy to commit offense or to defraud United States” that applies “[i]f two or
more persons conspire either to commit any offense against the United States, or to
defraud the United States, or any agency thereof in any manner or for any purpose, and
one or more of such persons do any act to effect the object of the conspiracy ....” 18
U.S.C. § 371; see CMS Ex. 5, P. Ex. 1 (plea agreement). The one-count “Information” to
which Petitioner pled guilty states that Petitioner “did knowingly and intentionally
conspire and agree . . . to make and present false claims to . . . the Social Security
Administration, by knowingly submitting false, fictitious and fraudulent W-2 Wage and
Tax Statement forms reflecting previous earnings purportedly earned by [Petitioner’s
wife’s], to the IRS in order to qualify for SSA benefits... .” CMS Ex. 4, at 3. The
Information further states that Petitioner, with the assistance of another individual, “filed
joint federal income tax returns on IRS Form 1040s for calendar years 2003 through
2006, which each included a false Form W-2 purportedly reflecting earnings from
[Petitioner’s wife’s] work at ACIM [Associates in Cardiology and Internal Medicine
P.A., a practice of which Petitioner was part owner] and payment of FICA [the Federal
Insurance Contributions Act] withholding taxes in connection with these earnings” even
though Petitioner’s wife “did not perform any work for ACIM.” Id. at 2. In his plea
agreement, Petitioner agreed to the application of a sentencing factor that applies when
“Tt]he offense results in an intended loss of more than $200,000, but less than $400,000.”
CMS Ex. 5, at 7; P. Ex. 1, at 7 (plea agreement).

Petitioner’s undisputed conduct of filing false tax forms with a federal agency to qualify
for government benefits, along with the amount of the intended loss and the text of the
criminal statute under which he pled guilty, amply demonstrate that Petitioner’s criminal
conviction was for a “financial crime” that was “similar” to the enumerated offense of
insurance fraud. Additionally, I note the preamble’s statement that “[f]elonies that we
determine to be detrimental to the best interests of the Medicare program or its
beneficiaries include the following . . . financial crimes, such... making false
statements, insurance fraud, and other similar crimes... .” 71 Fed. Reg. at 20,768.
Petitioner’s filing of “false, fictitious and fraudulent” tax forms as part of his criminal
conduct also constitutes the making of false statements that CMS has determined is
detrimental to the best interests of the Medicare program or its beneficiaries.

In reaching this conclusion, I reject Petitioner’s intimations that he is in fact not guilty of
the crime to which he pled. While he concedes having “pled guilty to one count . . .
which charges him with conspiracy to defraud the social Security program, in violation of
18 U.S.C. 371,” he nonetheless avers that the “many factors that a defendant considers
when deciding whether to reach a plea,” such as “the enormous potential cost of a
defense along with the unknown risk or a protracted trial . .. weighed heavily in his
acceptance of a plea.” P. Motion at 3. I reject this argument, because CMS’s revocation
authority here springs from Petitioner having been “convicted, including guilty pleas and
adjudicated pretrial diversions,” and I see nothing in any regulation that authorizes me to
ignore or look behind the fact of a conviction or guilty plea and entertain arguments that
essentially amount to collateral attacks on the conviction. In this regard, the letters that
Petitioner offered in his exhibit 2 as evidence that he does not pose a threat to the
program or its beneficiaries do not alter the fact of his conviction for an offense covered
by section 424.535(a)(3)(i)(B) and provide no basis for me to question CMS’s imposing
of a revocation that is authorized by that regulation.

Petitioner also does not question that he was convicted “within the 10 years preceding
enrollment or revalidation of enrollment,” as the regulation requires for revocation. I
note that a Federal district court recently confirmed that “revalidation of enrollment”
occurs “when the CMS contractor obtains information that the physician was convicted
of a felony offense, at which point the contractor is ‘authorized to make the determination
to revoke [the physician's] enrollment and billing privileges.’” Ahmed v. Sebelius at *7,
citing Mikhail Strutsovskiy, M.D., DAB CR2109, at 8 (2010). The court noted that “the

DAB has consistently interpreted revalidation as ‘a process that involves not only the
submission of information by the participant, but CMS verification of continued
eligibility for enrollment.’” /d., citing Robert F. Tzeng, M.D., DAB No. 2169, at 11
(2008).

For these reasons, I conclude that CMS was authorized to revoke Petitioner’s enrollment
under 42 C.F.R. § 424.535(a)(3) based on his felony conviction.

2. There was no error in CMS’s determination of the effective date of the
revocation.

Petitioner argues that the revocation should have been effective October 30, 2008, the
date he entered into the plea agreement, and not March 25, 2009, as Highmark and CMS
imposed.* See P. Ex. | (plea agreement). While Petitioner concedes that he “was not
able to enter his plea until March 25, 2009,” Petitioner argues that he was prepared to
enter the plea in November 2008 but that “several adjournments delayed the plea
hearing,” and he asks that he not be “penalized for the delays inherent in our legal
system.” P. Motion at 6.

As Petitioner recognizes, the regulation states that a revocation based on a felony
conviction “is effective with the date of... felony conviction... .” 42 C.F.R.

§ 424.535(g); P. Motion at 6. Petitioner concedes that his pleas were not accepted until
March 25, 2009, and he has acknowledged that the revocation was based on “his March
25, 2009 conviction of conspiracy to present false claims to the Social Security
Administration in violation of Title 18 U.S.C. § 371.” CMS Exs. 2, at 1 (reconsideration
request) (emphasis added).

Moreover, the terms of the plea agreement demonstrate that, at the time it was entered, its
effectiveness was contingent on its being accepted by the sentencing judge “who may...
reject any or all of the stipulations entered into by the parties.” P. Ex. 1, at 3. It held
open the possibility of additional charges being leveled against Petitioner “in the event
that a guilty plea in this matter is not entered ....” P. Ex. 1, at 1. Petitioner cites no
authority for the proposition that entry into a plea agreement that has not yet been
accepted by the court hearing a criminal case constitutes a conviction under the

> Regarding the three-year re-enrollment bar imposed on him, Petitioner states that “it is
not the length, but rather the commencement date of CMS’ action that Petitioner asks the
Court to review.” P. Motion at 5. As I have observed in an earlier appeal, no authority
exists to appeal the length of a re-enrollment bar, and the right to a hearing in these cases
is limited to challenging whether CMS had authority to revoke a provider or supplier’s
enrollment in the Medicare program. Emmanuel Brown, M.D. and Simeon K. Obeng,
M.D., DAB CR 2145, at 6 (2010). As explained here, the date on which the bar begins
follows from the date that the revocation was effective, which law compelled.
regulation. CMS thus committed no error of law in declining to make the revocation
effective upon Petitioner’s entering into the agreement instead of the date that Petitioner
was actually convicted through the acceptance of the agreement by the court.

IV. Conclusion

The undisputed facts entitle CMS to summary judgment as a matter of law. I therefore
grant summary judgment in favor of CMS and sustain the revocation of Petitioner’s
enrollment, effective March 25, 2009. I deny Petitioner’s motion for summary judgment
and CMS’s motion to dismiss.

/s/
Leslie A. Sussan
Board Member