Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Eric Innes, D.C.,
(NPI: 1043462096),

Petitioner,
Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-09-762
Decision No. CR2094

Date: March 18, 2010

DECISION
The Medicare enrollment application of Petitioner, Eric Innes, D.C., was properly denied.
I. Background

On December 16, 2008, Petitioner, a chiropractor licensed in the State of Florida, signed
a Medicare Enrollment Application, CMS Form 8551, that he mailed on December 17,
2008. CMS Ex. 1, at 5-25. First Coast Service Options (FCSO), the Centers for
Medicare & Medicaid Services (CMS) contractor, notified Petitioner by letter dated April
3, 2009, that his Medicare enrollment application was denied. The notice advised
Petitioner that the denial was pursuant to 42 C.F.R. § 424.530(a)(3)(B) and based on his
felony conviction for federal tax evasion. The notice further advised Petitioner that he
could file a corrective action plan (CAP) within 30 calendar days of the date of the notice
and that he could also request reconsideration of the determination to deny his
enrollment. Centers for Medicare and Medicaid Services Exhibit (CMS Ex.) 1, at 26-27.
Petitioner submitted a CAP dated April 13, 2009. CMS Ex. 1, at 28-30. FCSO notified
Petitioner by letter dated August 1, 2009 that his CAP was not acceptable. CMS Ex. 1, at
35-36. Petitioner also requested reconsideration of the initial determination to deny his
application by letter dated April 13, 2009. CMS Ex. 1, at 31-34. The hearing officer
issued a reconsideration decision on August 18, 2009, in which she upheld the denial of
Petitioner’s application based upon his federal conviction for tax evasion in December
2005. CMS Ex. 1, at 1-4.

Petitioner requested a hearing before an administrative law judge (ALJ) by letter dated
September 21, 2009. The case was assigned to me on October 5, 2009 for hearing and
decision and an Acknowledgement and Prehearing Order was issued at my direction.
CMS filed a motion for summary judgment and supporting brief (CMS Brief) and CMS
exhibits 1 and 2 on November 4, 2009. Petitioner did not file a response to the CMS
motion. Therefore, on January 7, 2010, I issued an order for Petitioner to show cause not
later than January 22, 2010, why this case should not be dismissed for abandonment. On
January 20, 2010, Petitioner filed a response to the CMS motion (P. Brief). On February
2, 2010, I issued an order (with a copy of Petitioner’s response attached) directing that
CMS reply to Petitioner’s response or file a written waiver of its right to reply. On
February 10, 2010, CMS advised my office that it waived further reply. No objection has
been made to my consideration of CMS Exs. | and 2 and they are admitted as evidence.

II. Discussion
A. Applicable Law

Section 1831 of the Social Security Act (Act) (42 U.S.C. § 1395j) established the
supplementary medical insurance benefits program for the aged and disabled known as
Medicare Part B. Payment under the program for services rendered to Medicare-eligible
beneficiaries may only be made to eligible providers of services and suppliers.! Act

§§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)).
Administration of the Part B program is through contractors. Act § 1842(a) (42 U.S.C.

' A “supplier” furnishes services under Medicare and includes physicians or other
practitioners and facilities that are not a “provider of services.” Act § 1861(d) (42 U.S.C.
§ 1395x(d)). A “provider of services,” commonly shortened to “provider,” includes
hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient
rehabilitation facilities, home health agencies, hospice programs, or a fund described by
section 1814(g) and section 1835(e) of the Act. Act § 1861(u) (42 U.S.C. § 1395x(u)).
The distinction between providers and suppliers is important because they are treated
differently under the Act for some purposes.
§ 1395u(a)). The Act requires the Secretary of Health and Human Services (Secretary) to
issue regulations that establish a process for the enrollment of providers and suppliers.
Pursuant to 42 C.F.R. § 424.505, a provider or supplier must be enrolled in the Medicare
program and be issued a billing number to have billing privileges to be eligible to receive
payment for services rendered to a Medicare-eligible beneficiary.

Qualified physician services are covered by Medicare for those enrolled, subject to some
limitations. Act §§ 1832(a), 1861(s)(1) (42 U.S.C. §§ 1395k(a), 1395x(s)(1)).
“Physician’s services” means professional services performed by physicians, including
surgery, consultation, and home, office, and institutional calls (with certain exceptions).
Act § 1861 (q) (42 U.S.C. § 1395x(q)). The term “physician,” includes a chiropractor
who is licensed as such by a state or is legally authorized to perform the services of a
chiropractor in a state where licensing is not required, and who meets uniform minimum
standards promulgated by the Secretary, but only for the purpose of sections 1861(s)(1)
and 1861(s)(2)(A) and only with respect to treatment by means of manual manipulation
of the spine to correct a subluxation that he is legally authorized to perform by the state
or jurisdiction in which treatment is provided. Act § 1861(r) (42 U.S.C. § 1395(x)(1)); 42
C.F.R. §§ 410.20(b)(5) and 410.21. The Medicare program authorizes Medicare Part B
payments for services provided by physicians. 42 C.F.R. § 410.20. A physician who
wants to bill Medicare or its beneficiaries for Medicare-covered services or supplies must
enroll in the Medicare program. 42 C.F.R. § 424.505.

Section 1842(h)(8) of the Act (42 U.S.C. § 1395u(h)(8)) gives the Secretary discretion to
refuse to enter into an agreement or to terminate or refuse to renew an agreement with a
physician or supplier that “has been convicted of a felony under Federal or State law for
an offense which the Secretary determines is detrimental to the best interests of the
program.” The Secretary has delegated the authority to accept or deny enrollment
applications to CMS. Pursuant to the Secretary’s regulations, CMS may deny a
provider’s or supplier’s enrollment application if the provider or supplier is not in
compliance with Medicare enrollment requirement. 42 C.F.R. § 424.530(a)(1). CMS
may also deny a provider’s or supplier’s enrollment based upon conviction of certain
felonies. The regulation provides:

(a) Reasons for denial. CMS may deny a provider’s or
supplier’s enrollment in the Medicare program for the
following reasons . . .

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(3) Felonies. If within the 10 years preceding enrollment or
revalidation of enrollment, the provider, supplier, or any
owner of the provider or supplier, was convicted of a Federal
or State felony offense that CMS has determined to be
detrimental to the best interests of the program and its
beneficiaries. CMS considers the severity of the underlying
offense.
(i) Offenses include —

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(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.

42 CFR. § 424.530(a)(3).

A supplier enrollment is considered denied when a supplier is determined to be
“ineligible to receive Medicare billing privileges for Medicare-covered items or services
provide to Medicare beneficiaries” for one of more of the reasons listed in 42 C.F.R. §
424.530. 42 C.F.R. § 424.502. When a supplier’s enrollment application has been
denied, the CMS contractor notifies the supplier in writing and explains the reasons for
the determination and provides information regarding the supplier’s right to appeal. 42
C.F.R. § 498.20(a); Medicare Program Integrity Manual (MPIM), Chapter 10 -
Healthcare Provider/Supplier Enrollment, §§ 6.2, 13.2. The supplier may submit a
written request for reconsideration to CMS. 42 C.F.R. § 498.22(a). CMS must give
notice of its reconsidered determination to the supplier, giving the reasons for its
determination and specifying the conditions or requirements the supplier failed to meet.
42 CF.R. § 498.25. If the CMS decision on reconsideration is unfavorable to the
supplier, the Act provides for a hearing by an ALJ and judicial review. Act § 1866(j) (42
USS.C. § 1395cc(j)).

B. Issue

Whether Petitioner met the requirements for participation in Medicare when
the reconsideration decision was made. 73 Fed. Reg. 36,448, 36,452 (June
24, 2008).

C. Findings of Fact, Conclusions of Law, and Analysis.
My conclusions of law are set forth in bold followed by the pertinent facts and analysis.
1. Summary judgment is appropriate.
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. See White Lake Family Medicine, P.C., DAB No. 1951 (2004); Lebanon
Nursing and Rehabilitation Center, DAB No. 1918 (2004). A party opposing summary
judgment must allege facts which, if true, would refute the facts relied upon by the
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, Inc., DAB CR672 (2000); New Life Plus Center, CMHC, DAB CR700 (2000).

There is no dispute that on December 2, 2005, Petitioner was convicted in the U.S.
District Court, Southern District of Florida of three felony counts of federal tax evasion.
P. Brief at 2-3; Request for Hearing at 2-4; CMS Ex. 1, at 7-10. Petitioner identifies no
other material fact that is in dispute. Petitioner advances only arguments that I may not
consider in deciding this case. This case must be decided against Petitioner as a matter of
law based on the undisputed material facts. Accordingly, summary judgment is
appropriate.

2. There is a proper basis for denial of Petitioner’s enrollment
application.

Petitioner admits that on December 2, 2005, he was convicted in the U.S. District Court,
Southern District of Florida of three felony counts of federal tax evasion. CMS Ex. 1, at
9. On December 17, 2008, Petitioner mailed his Medicare Enrollment Application
requesting to enroll in the Medicare program as a chiropractor. CMS Ex. 1, at 5-25.
Petitioner revealed the fact of his conviction and his sentence in his enrollment
application. CMS Ex. 1, at 7-10. Petitioner cannot dispute that his December 2005
conviction occurred within the 10 years preceding the filing of his enrollment application
in December 2008.

Section 1842(h)(8) of the Act is clear that the Secretary may refuse to enroll a provider or
supplier who has a felony conviction of an offense that the Secretary determines is
detrimental to the best interests of the program. The Secretary has specifically provided
by regulation that felony tax evasion is an offense that is detrimental to the best interest
of the program. The Secretary has further provided that if conviction of felony tax
evasion occurred within 10 years preceding the date of application for enrollment the
application may be denied on that basis by CMS or its contractor. 42 C.F.R. §
424.530(a)(3)(i)(B). Accordingly, I conclude that CMS had a legal basis to deny
Petitioner’s enrollment in Medicare.
Petitioner asks that I allow him to re-enroll’ in the Medicare program. P. Brief at 1.
Petitioner argues that it is in the government’s best interest to permit him to participate in
Medicare because: (1) he earns more money to pay toward his tax debt; and (2) he
provides a service to Medicare-eligible beneficiaries in his area. He also argues that the
facts of his case show he is no threat to the Medicare program. Petitioner argues that he
never evaded taxes rather he concluded that he had no obligation to pay taxes. Petitioner
states that he was released from federal prison in August 2008; his chiropractic license
was reinstated in August 2008; and he has been practicing since September 2008. He
graduated from Cleveland Chiropractic College in 1976 and has been in practice since
1977. He also states he paid taxes until 1992 when he determined there was no legal
requirement for him to pay taxes. Petitioner asserts that he currently pays his taxes and is
making payment of back taxes, interest, and penalties. He asserts that the offenses of
which he was convicted are not detrimental to the best interests of the Medicare program.
P. Brief; Request for Hearing.

The Secretary has specifically identified a felony conviction of tax evasion to be
detrimental to the best interests of the program. 42 C.F.R. § 424.530(a)(3)(i)(B). Iam
bound to follow the Secretary’s regulations and have no authority to determine that
Petitioner’s offense of tax evasion is not detrimental. Furthermore, the regulations
specifically grant CMS the discretion to deny Petitioner’s enrollment based upon his
conviction of an offense that the Secretary has determined is detrimental to the best
interests of the program. I have no authority under the Act or regulations to look behind
CMS’s exercise of its discretion or to substitute my judgment for that of CMS. Letantia
Bussell, M.D., DAB No. 2196, at 12-13 (2008); cf: Michael J. Rosen, M.D., DAB No.
2096 (2007), at 14. Accordingly, I conclude that Petitioner’s objections and arguments
are without merit.

II. Conclusion

Petitioner’s application to enroll in Medicare was properly denied.

/s/
Keith W. Sickendick
Administrative Law Judge

> Petitioner states that he was previously enrolled in Medicare and he requests to “re
enroll.” Request for Hearing at 1; P. Brief at 1. The application process to which
Petitioner is subject does not distinguish between initial enrollments and re-enrollments.


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
The Windsor Place,
(CCN: 25-5257),
Petitioner,
Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-09-115 (On Remand)
Decision No. CR2093

Date: March 16, 2010

DECISION ON REMAND

Petitioner, The Windsor Place, was not in violation of 42 C.F.R. § 483.13(a)! from
October 25, 2004 through December 21, 2004. A civil money penalty (CMP) of $75 per
day from October 28, 2004 through December 21, 2004, based on the previously affirmed
violation of 42 C.F.R. § 483.10(n), is reasonable.

I. Background
Petitioner, located in Columbus, Mississippi, is authorized to participate in Medicare as a

skilled nursing facility (SNF) and in the Mississippi Medicaid program as a nursing
facility (NF). Petitioner was subject to surveys by the Mississippi State Survey

' References are to the version of the Code of Federal Regulations (C.F.R.) in effect at
the time of the survey, unless otherwise indicated.
Department (the state agency) completed on September 24, 2004, October 22, 2004, and
October 28, 2004.

The Centers for Medicare and Medicaid Services (CMS) notified Petitioner by letter
dated October 12, 2004, that based on regulatory violations found during the September
24 survey, CMS was imposing: a CMP of $350 per day beginning on September 24,
2004, and continuing until Petitioner returned to substantial compliance with program
participation requirements; a discretionary denial of payments for new admissions
(DPNA) beginning on October 27, 2004, and continuing until Petitioner returned to
substantial compliance; and a termination of Petitioner’s provider agreement on March
24, 2005, if Petitioner did not return to substantial compliance before that date. CMS
also advised Petitioner that its authority to conduct a nurse aide training and competency
evaluation program (NATCEP) was withdrawn. CMS Exhibit (CMS Ex.) 7. CMS
notified Petitioner by letter dated December 2, 2004 that based upon the survey
completed on October 22, 2004, the CMP was being increased to $550 per day beginning
on October 22, 2004. The other remedies previously imposed were unchanged. CMS
Ex. 6.

Petitioner requested a hearing by letter dated December 9, 2004. Petitioner denied all
findings of deficiency and that there was a basis for the imposition of any enforcement
remedy. The request for hearing was docketed as C-05-98 and assigned to me for hearing
and decision on December 21, 2004. A Notice of Case Assignment and Prehearing Case
Development Order (Prehearing Order) was issued at my direction on December 21,
2004. On March 4, 2005, the case was set for hearing April 25 through 29, 2005.

On October 28, 2004, the state agency completed an annual survey of Petitioner’s
acility. CMS notified Petitioner by letter dated December 14, 2004,” that deficiencies
from the prior complaint surveys had been corrected but that new deficiencies were
found. CMS advised Petitioner that the CMP continued but that it was reduced to $150
per day beginning October 28, 2004, and the other remedies previously imposed were
unchanged. CMS notified Petitioner by letter dated January 18, 2005, that the state
agency completed a revisit survey of Petitioner’s facility on December 22, 2004, and
found that Petitioner had returned to substantial compliance at that time. The accruing
CMP and the DPNA ceased on December 21, 2004, and the termination remedy was
rescinded. CMS Ex. 67.

> The December 14, 2004 CMS notice is attached to Petitioner's February 11, 2005
Request for Hearing as Tab A. The December 14 notice was amended by the CMS letter
dated December 20, 2004. CMS Ex. 57.
Petitioner filed a second request for a hearing by letter dated February 11, 2005,
challenging the CMS action based on the October 28, 2004 survey. Petitioner requested
that its new appeal be consolidated with C-05-98. The case was docketed as C-05-192,
and assigned to me for hearing and decision and a Prehearing Order was issued at my
direction on March 2, 2005. On February 18, 2005, CMS filed an opposition to
Petitioner’s request for consolidation. On March 22, 2005, I issued an order
consolidating C-05-98 and C-05-192 for hearing and decision. I also directed the parties
to consult and advise me whether they could proceed to hearing on the consolidated case
on April 25, 2005, or whether they wished a postponement. On April 12, 2005, the
parties proposed that the hearing on the consolidated case be rescheduled for July 12
through 15, 2005. On April 14, 2005, I issued an order amending the prehearing
schedule and a notice of hearing for the consolidated case, setting the case for hearing
from July 12 through 15, 2005 in Jackson, Mississippi. On July 8, 2005, CMS moved to
reschedule the hearing on grounds that one of its witnesses had been hospitalized.
However, I reviewed the witness lists filed by both parties and learned that the
hospitalized individual was not listed as a witness by either party. Accordingly, on July
8, 2005, I issued an order denying the CMS request to reschedule the hearing.

A hearing was convened on July 12 and 13, 2005 in Jackson, Mississippi. CMS offered
exhibits | through 67, which were admitted as evidence. Hearing Transcript (Tr.) 38.
Petitioner offered exhibits (P. Ex.) 1 through 47, 49 through 60, and 64 through 72.
Petitioner exhibits 48, 61, 62, and 63 were withdrawn. Tr. 15-16. Petitioner exhibits 9
through 24, 28 through 47, 49 through 60, 64 through 68, and 70 through 72 were
admitted. Tr. 21-25. CMS objected to the admission of Petitioner exhibits 1 through 8,
25 through 27, and 69 on grounds that they had not been authenticated. Petitioner
proffered that witnesses would be called to authenticate the exhibits. I deferred ruling
upon the admissibility of Petitioner exhibits 1 through 8, 25 through 27, and 69 pending
testimony to establish authenticity and relevance. Tr. 18-25. Petitioner did not produce
the proffered testimony or reoffer the exhibits for admission and Petitioner exhibits 1
through 8, 25 through 27, and 69 are not admitted. CMS called two witnesses, Surveyors
Linda Ward and Karen Baker. Petitioner elicited testimony from one witness, Gale
McDill, Petitioner’s dietary manager/kitchen supervisor. The parties submitted post-
hearing briefs and reply briefs.

On April 21, 2008, I issued a decision concluding that:

Petitioner, The Windsor Place, was in violation of 42 C.F.R.
§§ 483.20(b)(2)(ii), 483.25(a)(3), and 483.25(c) from
September 24, 2004 through October 27, 2004. Petitioner
was in violation of 42 C.F.R. §§ 483.10(n) and 483.13(a)
from October 25, 2004 through December 21, 2004.
Petitioner returned to substantial compliance with all program
participation requirements effective December 22, 2004.
There is a basis for the imposition of a civil money penalty
(CMP), and a denial of payment for new admissions (DPNA).
A CMP of $350 per day for the 34 days from September 24,
2004 through October 27, 2004, and $150 per day for the 55
days from October 28, 2004 through December 21, 2004, for
a total CMP of $20,150 is reasonable. A DPNA for the
period October 27, 2004 through December 21, 2004, is also
reasonable. Withdrawal of Petitioner’s authority to conduct a
Nurse Aide Training and Competency Evaluation Program
(NATCEP) was required during the period October 12, 2004
through October 11, 2006. 42 C.F.R. §§ 483.151 and
483.152.

The Windsor Place, DAB CR1775, at 1 (2008) (footnote omitted).

On November 26, 2008, an appellate panel of the Departmental Appeals Board (the
Board) issued a “Final Decision and Partial Remand on Review of Administrative Law
Judge Decision,” The Windsor Place, DAB No. 2209 (2008). The Board sustained my
conclusions, and the findings upon which they were based, that Petitioner was in
violation of 42 C.F.R. § 483.20(b)(2)(ii) (Tag F274) from September 24, 2004 through
October 27, 2004 (The Windsor Place, DAB No. 2209, at 4-12); Petitioner was in
violation of 42 C.F.R. § 483.25(c) (Tag F314) from September 24, 2004 through October
27, 2004 (The Windsor Place, DAB No. 2209, at 13-16); Petitioner was in violation of 42
C.F.R. § 483.25(a)(3) (Tag F312) from September 24, 2004 through October 27, 2004
(The Windsor Place, DAB No. 2209, at 16-19); and Petitioner was in violation of 42
C.F.R. § 483.10(n) (Tag F176) from October 25, 2004 through December 21, 2004 (The
Windsor Place, DAB No. 2209, at 19-21). The Board also affirmed my conclusion that
the following remedies were reasonable: a CMP of $350 per day for the 34 days from
September 24, 2004 through October 27, 2004; the DPNA from October 27, 2004
through December 21, 2004; and the withdrawal of Petitioner’s authority to conduct a
NATCEP. The Windsor Place, DAB No. 2209, at 26-27. The Board remanded the case
to me to consider “new evidence and to take whatever actions [I] deem necessary to
develop the record” related to my findings and conclusion that Petitioner was in violation
of 42 C.F.R. § 483.13(a) (Tag F221) from October 25, 2004 through December 21, 2004.
The Windsor Place, DAB No. 2209, at 25. The “new evidence” to which the Board
referred, is the evidence admitted to the record by the Board — the affidavits of two of
Petitioner’s employees. The Board also directed further consideration of the
reasonableness of the CMP imposed based upon the alleged violation of 42 C.F.R. §
483.13(a) and any revised findings and conclusions based upon new evidence. The
Windsor Place, DAB No. 2209, at 25.

The case was received at the Civil Remedies Division from the Board on December 2,
2008 and assigned docket number C-09-115. On December 19, 2009, I convened a

telephonic prehearing conference the substance of which is recorded in my Prehearing
Conference Order and Notice of Hearing of the same date. A supplemental hearing was
convened in Jackson, Mississippi on February 19, 2009, and a 180-page transcript of the
supplemental hearing was prepared (Supp. Tr.).° Petitioner called two witnesses,
Suzanne Talbert, Petitioner’s current Director of Nursing and the Assistant Director of
Nursing during the survey in issue (Supp. Tr. 17-18), and Charlotte A. Howard,
Petitioner’s Social Service Worker currently and at the time of the survey in issue (Supp.
Tr. 142-43). The parties submitted supplemental post-hearing briefs and post-hearing
reply briefs.

IL. Discussion
A. Issues
The general issues in this case are:

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

Whether the remedy imposed is reasonable.
On this remand, the specific issues remaining for adjudication are:

Whether Petitioner was in violation of 42 C.F.R. § 483.13(a) (Tag
F221) from October 25, 2004 through December 21, 2004; and

Whether a CMP of $150 per day is reasonable for the period October
28, 2004 through December 21, 2004.

The Windsor Place, DAB No. 2209, at 27.
B. Applicable Law

The statutory and regulatory requirements for participation by a long-term care facility
are found at sections 1819 (SNF) and 1919 (NF) of the Act and at 42 C.F.R. Part 483.

> No additional exhibits were offered or admitted at the supplemental hearing.
References to the CMS and Petitioner's exhibits in this Decision on Remand are to the
exhibits admitted at the first hearing and to the affidavits admitted before the Board that
were marked by the Board as Board exhibits (Bd. Exs.) A and B.
Section 1819(h)(2) of the Act vests the Secretary with authority to impose enforcement
remedies against a SNF 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 to a SNF 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 SNF 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
SNF’s participation in Medicare, the Act grants the Secretary authority to impose other
enforcement remedies, including a discretionary DPNA, civil money penalties,
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
acilities 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, $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
leficiencies. 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

* Section 1919(h)(2) of the Act gives similar enforcement authority to the states to
ensure that NFs comply with their participation requirements established by section
1919(b), (c), and (d) of the Act.
CMP, $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).

The Act and regulations make a hearing before an ALJ available to a long-term care
facility against which CMS has determined to impose an enforcement remedy. Act

§ 1128A(c)(2); 1866(h); 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 the facility’s
authority to conduct a nurse aide training and competency evaluation program. 42 C.F.R.
§§ 498.3(b)(14) and (d)(10)(i). The CMS determination as to the level of noncompliance
“must be upheld unless it is clearly erroneous” (42 C.F.R. § 498.60(c)(2)), including the
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).

The standard of proof or quantum of evidence required is a preponderance of the
evidence. CMS has the burden of making a prima facie showing of a basis for imposition
of an enforcement remedy. Petitioner bears the burden of showing that it was in
substantial compliance with participation requirements or any affirmative defense. See
Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Ctr.
v. United States Dep’t of Health and Human Services, Health Care Fin. Admin., No. 98-
3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999); Cross Creek Health Care Center,
DAB No. 1665 (1998); Emerald Oaks, DAB No. 1800; Batavia Nursing and
Convalescent Center, DAB No. 1904 (2004), aff'd, Batavia Nursing & Convalescent Ctr.
v. Thompson, 129 F. App’x. 181 (6th Cir. 2005); Batavia Nursing and Convalescent Inn,
DAB No. 1911 (2004).
C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law on remand are set forth in bold followed by a statement of the
pertinent facts and analysis.

The state agency conducted three surveys in this case. The first survey concluded on
September 24, 2004, and the results are reported in a Statement of Deficiencies (SOD) of
that date. CMS Ex. 2. The second survey was completed on October 22, 2004 and the
results are reported in a SOD of that date. CMS Ex. 3. The results of the third survey are
reported in a SOD dated October 28, 2004, the date the survey was completed. CMS Ex.
21. The third survey was both an annual recertification survey and a revisit survey to the
prior complaint surveys that ended on September 24 and October 22, 2004. The revisit
survey concluded that all deficiencies cited by the prior complaint surveys were
corrected. CMS Ex. 57, at 2. In the October 28, 2004 SOD the surveyors allege the
following new violations: 42 C.F.R. §§ 483.10(n) (Tag F176, S/S D); 483.13(a) (Tag
F221, S/S E); 483.35(h)(2) (Tag F371, S/S F); and 483.75(1)(1) (Tag F514 S/S B). CMS
Ex. 21. A revisit survey completed on December 22, 2004, determined that Petitioner
had returned to substantial compliance with all program participation requirements
effective December 22, 2004. CMS Ex. 67. In my prior decision, I concluded that
Petitioner violated 42 C.F.R. §§ 483.10(n) (Tag F176, S/S D); and 483.13(a) (Tag F221,
S/S E) from the October 28, 2004 survey;> and that the violations were a basis for
imposition of a $150 per day CMP from October 28 through December 21, 2004. The
Board upheld the violation of 42 C.F.R. § 483.10(n) (Tag F176, S/S D) but remanded for
my consideration of new evidence related to the alleged violation of 42 C.F.R. §
483.13(a) (Tag F221, S/S E) and for reassessment, if necessary, of the CMP based upon
the two violations from the October 28 survey.

1. Petitioner did not violate 42 C.F.R. § 483.13(a) (Tag F221, S/S E)
contrary to the conclusion of the October 28, 2004 survey.°

> I concluded in my prior decision that Petitioner established by a preponderance of the
evidence that it was in substantial compliance with 42 C.F.R. § 483.35(h)(2) (Tag F371,
S/S F) and this conclusion was not disturbed by the Board. The alleged violation of 42
C.F.R. § 483.75(1)(1) (Tag F514) was cited at a scope and severity of B, which shows
that the surveyors did not find that there was a potential for more than minimal harm;
thus, the alleged deficiency does not amount to an allegation of substantial
noncompliance; therefore the alleged violation may not be the basis for an enforcement
remedy; and it is not subject to my review.

® Lest silence be considered acquiescence, I am compelled to express strong
disagreement with the Board’s decision to admit the two affidavits offered by Petitioner
(Continued next page.)
This regulation provides:

(a) Restraints. The resident has the right to be free from any

(Continued from preceding page.)

on appeal and to accept Petitioner’s argument that it was surprised by the basis for my
initial decision regarding this deficiency. The Windsor Place, DAB No. 2209, at 25.
Petitioner argued before the Board that it was unaware until reviewing the CMS post-
hearing brief and my decision that its evidence was not sufficient to show that Petitioner
considered less restrictive alternatives and counseled the residents or their representatives
regarding the use of restraints, including the right to refuse restraints. The CMS post-
hearing brief was filed on September 28, 2005 and the CMS post-hearing reply brief was
filed on October 31, 2005. I did not issue my decision until April 21, 2008. Thus,
Petitioner had sufficient time to move to reopen the record based upon any surprise by a
change in the CMS theory of the case. Petitioner also had the opportunity to request
reopening and revision of my April 21, 2008 decision, pursuant to 42 C.F.R. §§ 498.100-
103, but failed to do so. The fact that Petitioner offered the affidavits, which I note were
executed on August 15, 2008 nearly four months after my decision and nearly four years
after the survey, indicates that the evidence was available to Petitioner at the time of
hearing and clearly shows that Petitioner simply made a tactical legal judgment not to
offer the evidence at hearing based upon its understanding of the law. The Board’s
acceptance of Petitioner’s argument to justify admission of the affidavits and ultimately
the remand, could suggest to some practitioners that there is no potential cost associated
with a tactical judgment to withhold evidence at the trial-level. Certainly every
governmental or nongovernmental party can voice surprise when it does not prevail upon
its arguments before an ALJ. The argument by a losing party that it was surprised that its
theories were not accepted or that the evidence it chose to present was insufficient could
be made in every appeal, but such arguments generally are not made because parties
recognize that appellate authorities hold them responsible for the presentation of their
case at the trial-level through application of the doctrine of waiver or a similar principle.
I further note that CMS clearly suffers prejudice under these circumstances due to the
time and expense associated with conducting a supplemental hearing and briefing
followed by possible further review by the Board. It also cannot be denied that a remand,
particularly when a supplemental hearing is required, negatively impacts judicial
resources. Despite my disagreement with the Board’s approach in this case, I
nevertheless review the evidence and arguments of the parties with my impartiality intact.
Petitioner’s astute counsel, having been given a second opportunity to address the
specific failings of its evidence identified by my first decision, prevails on remand.

10

physical or chemical restraints imposed for purposes of
discipline or convenience, and not required to treat the
resident's medical symptoms.

42 CFR. § 483.13(a).

The plain language of this regulation prohibits any use of restraint for discipline of a
resident or for the convenience of a facility or its staff. The plain language also prohibits
the use of any restraint not required to treat a resident’s medical symptoms. The
regulation, by its plain language, imposes upon a facility a heavy burden to show that any
use of chemical or physical restraint in contravention of the resident’s right to be free of
such restraint, is warranted by the resident’s medical symptoms.

Congress has directed that a facility must promote the rights of each resident including
the right to be free from restraints.

(ii) Free From Restraints. — The right to be free from physical
or mental abuse, corporal punishment, involuntary seclusion,
and any physical or chemical restraints imposed for discipline
or convenience and not required to treat the resident’s
medical symptoms. Restraints may only be imposed —
(J) to ensure the physical safety of the resident or other
residents, and
(ID only upon the written order of a physician that
specified the duration and circumstances under which
the restraints are to be used (except in emergency
circumstances specified by the Secretary until such an
order could reasonably be obtained).

Act §§ 1819(c)(1)(A)(ii), 1919(c)(1)(A)(ii).

In Cross Creek, the Board interpreted the Act (§§ 1819(c)(1)(A)(ii) & 1919(c)(1)(A)(Gi))
and the regulation (42 C.F.R. § 483.13(a)) to prevent restraints from being used if they
are not medically necessary. Cross Creek, at 10-12. The CMS interpretation of the
regulation is that each resident should be able to attain and maintain the highest
practicable well-being in an environment where use of restraints for discipline or staff
convenience is prohibited and where restraints are only used for treatment of symptoms
that warrant restraints. P. Ex. 34 (State Operations Manual (SOM) App. PP, Tag 221).
According to the Board, it is sufficient when restraints are used, for CMS to show that a
facility lacks documentation of medical necessity or that there is credible evidence of
improper purpose. Cross Creek, at 16. The Board stated that section 483.13(a) “imposes
on nursing facilities, not doctors, an obligation to use restraints in a very prescribed
manner -- not for discipline, not for convenience, and only if required by the resident's
11

medical symptoms.” Cross Creek, at 11 (quoting 59 Fed. Reg. 56,116, 56,227 (Nov. 10,
1994) (“‘[I]t is the facility's responsibility to ensure that the services provided by
physicians will satisfy the facility's obligations under the Act and regulations.”). The
Board also noted in Cross Creek that “nursing facilities are subject to other
Medicare/Medicaid requirements which are also not applicable to doctors and which
could impact on a decision under section 483.13(a) to use or not use restraints.” Jd.
Examples cited by the Board include the following: a long-term care facility is required
to consult with the resident or the resident's surrogate about all treatment decisions (42
C.F.R. § 483.10(d)(2)); a long-term care facility is required to help a resident achieve
is/her highest practicable physical, mental and psychosocial well-being (section
1819(b)(2) of the Act); and a long-term care facility resident has a right to refuse medical
treatment (42 C.F.R. § 483.10(b)(4)). The Board concluded that, because section
483.13(a) is directed at nursing facilities, “the regulation imposes on the long-term care
acility an independent obligation to ensure that the use of restraints, even with a doctor's
order, meets the criteria of the regulation” and “an independent obligation to continue to
assess the impact of the use of a restraint and to consult with the doctor if the nursing
acility finds that use of the restraint no longer meets the criteria of the regulation.” Jd.
Thus, while a physician's order for a restraint is clearly some evidence of its medical
necessity, such an order is not by itself sufficient to establish that use of the restraint met
the criteria of the regulation. See also Lakeridge Villa Heath Care Center, DAB No.
1988 (2005); Milpitas Care Center, DAB No. 1864 (2003).

The evidence necessary to establish permissible use of restraint, absent evidence of
improper use for discipline or staff convenience, must be determined on a case-by-case
basis. Both CMS policy and Petitioner’s policy provide some criteria or standards by
which to judge whether use of restraint is permissible. Petitioner must know and must be
able to show that it and its care planning team knew whether or not restraints were
necessary for treatment of a resident’s condition. Further, Petitioner must reasonably
determine and must be able to show that restraints are being used in the most minimally
restrictive manner necessary to treat the resident’s medical condition. In order for
Petitioner to make the required showing, it must have some evidence that appropriate
assessments were done and that the care planning team engaged in the necessary
decision-making. CMS specifies in the SOM that prior to using restraints a facility must
determine the specific medical symptom that necessitates the use of restraints, how the
restraints effectively treat the symptoms, how the resident’s safety is protected, and how
the resident will be assisted in attaining or maintaining the highest level of well-being.
Medical symptoms, assessments, and care plans must all be documented and a physician
order is required, but an order alone is insufficient evidence of the need for restraint. The
resident or the responsible party must be fully informed to include the condition or
conditions that trigger consideration of restraining the resident, risks and benefits, and
alternatives. P. Ex. 34, at 2-3 (SOM App. PP, Tag 221). Petitioner’s policy on use of
restraints is not inconsistent with the CMS guidance in the SOM, although Petitioner’s
policy is not as detailed as the SOM guidance. Petitioner’s policy provides that restraints
12

are not to be used for convenience or as discipline, an assessment is required, a
physician’s order is required, the reason for and type of restraint and doctor’s order must
be in the medical record, and the resident or the responsible party must be counseled or
educated on the use of restraints. Petitioner lists as examples of devices that are
restraints: a merry walker; a lap buddy; a lap or waist belt; side rails; and a roll belt.
CMS Ex. 58. The SOM is not enforceable as a regulation or statute but rather the SOM is
a policy statement of CMS to provide guidance to surveyors. See Vencor Nursing Ctrs.,
L.P. v. Shalala, 63 F. Supp. 2d. 1, 11-12 (D.D.C. 1999); Beverly Health & Rehab.
Services, Inc., et al. v. Thompson, 223 F. Supp. 2d 73, 98-103 (D.D.C. 2002); Cal Turner
Extended Care Pavilion, DAB No. 2030 (2006); see also State of Indiana by the Indiana
Dep’t of Pub. Welfare v. Sullivan, 934 F.2d 853 (7th Cir. 1991); cf Northwest Tissue Ctr.
v. Shalala, | F.3d 522 (7th Cir. 1993). However, both the SOM and Petitioner’s policy
are good evidence of the standard of care to be delivered to Petitioner’s long-term care
facility residents.

Contrary to the suggestion of CMS, this deficiency was not cited because Petitioner failed
to follow its restraint policy. CMS Initial Post-Hearing Brief filed April 20, 2009 (CMS
Supp. Brief) at 5-6; CMS Post-Hearing Reply Brief filed May 18, 2009 (CMS Supp.
Reply) at 2. Rather, the deficiency citation is based upon Petitioner’s failure to comply
with the requirements of the Act and regulations and standards of care or practice to the
extent such standards are appropriate for consideration under either the Act or regulation.
The SOD alleges generally that the facility violated 42 C.F.R. § 483.13(a) because
Petitioner failed to properly assess, care plan, and document the use of restraints for
Residents 1, 5, 7, 14,” 17, and 19, and failed to inform the residents and/or responsible
parties of their rights and options regarding the use of restraints." CMS Ex. 21, at 4.

7 CMS did not provide information to support an allegation of noncompliance for
Resident 14. Tr. 67. Therefore, I treated the allegations of noncompliance with Tag
F221 regarding Resident 14 to be withdrawn. My conclusion in this regard was left
undisturbed by the Board. The Windsor Place, DAB No. 2209, at 22, n.14.

® As stated in my initial decision, the general allegation from the SOD (CMS Ex. 21, at
4) is, in my opinion, sufficient notice to Petitioner to prepare to defend all aspects of the
imposition of restraints as to the residents discussed in the survey. The surveyor’s
allegation of specific omissions in the case of individual residents should not be viewed
as narrowing or limiting Petitioner’s obligation or burden to show that restraints were
properly imposed. Surveyors, after all, are not attorneys and their skill in drafting legal
documents should not impede enforcement of the Act and regulations for the benefit of
long-term care residents and the long-term care industry except where the notice provided
is so insufficient that one cannot reasonably be expected to prepare to defend, which was
not the case here.
13

CMS argues that “prior to restraint use, the facility must demonstrate that not only did it
assess the resident, but also that the facility considered and attempted less restrictive
means without success.” CMS Supp. Brief at 8; CMS Supp. Reply at 4. CMS cites no
authority for the proposition that a facility must “attempt” less restrictive means before
using a restraint. I find no authority for the requirement that CMS proposes. Prior
decisions, the SOM, and the regulations require for example that Petitioner assess,
consider less restrictive means, and weigh the risk of restraints, but I find no requirement
that Petitioner actually attempt a less restrictive means that has been assessed and
reasonably found to be ineffective or more risky than the use of an appropriate restraint.

Petitioner does not dispute that restraints were being used on Residents 1, 5, 7, and 19 as
alleged by the surveyors.” CMS does not argue that there is evidence that the restraints
were imposed as discipline or as a convenience for the staff in the case of Residents 1, 5,
7, and 19. Tr. 199; CMS Brief at 17-22. However, CMS maintains that the evidence
elicited by Petitioner during the supplemental hearing fails to demonstrate that Petitioner
used physical restraints for Residents 1, 5, 7, and 19 according to the regulations.
Specifically, CMS argues that evidence that a resident or a resident’s family member
attended a care plan meeting does not show that facility staff advised the resident or
responsible party of the right to refuse restraints or that less restrictive methods were
considered and rejected. CMS Supp. Brief at 8-9. To the extent that the CMS arguments
suggest that a facility may only prove its compliance with the Act and regulations by
producing documents, I do not agree. Credible testimony may be probative evidence of
what a facility or its staff did or did not do to achieve or maintain compliance with
program participation requirements.

In my prior decision I concluded that Petitioner failed to satisfy its burden as to four of
the residents cited as examples by the survey. After considering the testimonial evidence
of Petitioner’s witnesses at the supplemental hearing on February 19, 2009, I am satisfied
that Petitioner met the condition for participation established by 42 C.F.R. § 483.13(a)

° Petitioner suggests that it may also rebut the deficiency or establish an affirmative
defense to the deficiency by showing that restraints were not used as restraints, but rather
for example as an aid to mobility. The example cited by Petitioner is use of bed side
rails. Bed side rails are often documented as being for "safety" and/or "mobility." P.
Supp. Brief at 11. Petitioner's observation that some forms of restraint may also be used
as enablers, e.g., side rails ordered as an assist for rolling over in bed or a lap buddy
ordered to remind a resident not to lean forward too far, is accurate. However, to the
extent that any intervention limits freedom of movement, it should also be treated and
assessed as a restraint. As a practical matter, facilities should consider whether it is not
easier to do a proper restraint assessment than to demonstrate that what is typically used
as a restraint did not actually limit freedom of movement of a resident.
14

with respect to Resident’s 1, 5, 7, and 19. The example of each resident is considered as
follows.

(1) Resident 1

The surveyor alleges the resident was observed on October 28, 2004, with one side rail
up and the nurse entered the room and raised the other side rail. There was a physician’s
order for both side rails to be up while the resident was in bed. The surveyor alleged that
there was no documentation of consent for the use of restraint, no documentation that the
use of restraint had been discussed with the resident or the responsible party, the use of
restraint was not documented on the care plan, and it was not documented on the certified
nurse assistant (CNA) instructions.

The evidence shows that on August 17, 2004, the resident’s doctor ordered that both side
rails on the resident’s bed be up for safety and mobility. P. Ex. 52, at 1-2. The resident’s
care plan showed that she was at risk for falls due to gait impairment and decreased
safety awareness and among the interventions ordered and still in effect at the time of the
survey was the use of side rails for safety and mobility when in bed and the use of the
merry walker when the resident was up. CMS Ex. 51, at 25. The resident did not sign
the care plan. CMS Ex. 51, at 32.

Contrary to the allegations of the SOD, there is evidence that both forms of restraint, side
rails and use of the merry walker, are listed in the care plan. The surveyor does not allege
any deficiency based upon the merry walker, so I do not consider it further. The care
plan is evidence that there was some assessment of the need for use of side rails by the
treatment team. There is also a doctor’s order for the use of the side rails. There is also
evidence that the resident and a family member were invited to attend and attended the
care plan conference.

However, in my initial decision I concluded that Petitioner failed to carry its burden in
the example of Resident 1 because Petitioner had not shown that the resident or the
responsible party was counseled regarding the use of restraints, including the right to
refuse restraints. I did not find the fact that a resident and/or family was present at a care
plan conference and the inference that the care plan was discussed during the conference,
sufficient evidence that Petitioner’s staff advised the resident or responsible party of the
right to refuse restraints or that other less restrictive methods were considered and
rejected. I also concluded that there was also no evidence from the counseling of the
resident or responsible party, in the care plan, or in the doctors order that showed
Petitioner considered whether Petitioner’s medical condition could have been
accommodated by less restrictive means, for example the use of alarms or a low bed to
minimize or eliminate the risk for falls. I concluded that in the absence of some evidence
that Petitioner considered less restrictive means, it is not possible to conclude that
15

restraint was medically necessary and, therefore, Petitioner violated 42 C.F.R. §
483.13(a) in the case of Resident 1.

At the supplemental hearing Petitioner elicited the testimony of Suzanne Talbert,
Petitioner’s assistant director of nursing at the time of the surveys. Supp. Tr. 16-18.
Nurse Talbert testified that upon Resident 1’s admission in July of 2004 she received a
complete assessment. Supp. Tr. 42. She testified that all residents admitted to the facility
received a similar formalized assessment and admission packet which included a
resident’s rights book that explained the use of restraints and right to refuse restraints.
Supp. Tr. 19-25. She testified that Resident 1’s responsible party received the admissions
packet and resident’s rights and that their receipt was acknowledged in writing. Supp. Tr.
42-44. The assessment performed for Resident 1 included: (1) an evaluation of Resident
1’s medical history and all current diagnosis; (2) a head-to-toe assessment of all her
systems and vital signs; (3) input from other disciplines such as therapy; (4) a separate

all risk assessment; (4) and an interview with the responsible party. CMS Ex. 51, at 15-
18; Supp. Tr. 44-50. In this instance the responsible party was Resident 1’s daughter who
was very involved with the care of her mother.'® Supp. Tr. 43. Resident 1’s daughter
was advised regarding the use of restraints and the right to refuse restraints on behalf of
er mother. Supp. Tr. 22-23, 63-64. Nurse Talbert testified from Petitioner’s exhibits
that during the admission interview, Resident 1’s daughter indicated that Resident 1 had
been climbing out of bed at the assisted living facility she resided at previously, and that
er dementia had advanced to the point that a skilled nursing facility was necessary.
Supp. Tr. 46. Based on this and Resident 1’s high fall risk assessment, the care plan
team, of which Resident 1’s daughter was a member, determined that the use of side rails
was necessary for safety and mobility. Supp. Tr. 47-48, 54; CMS Ex. 51, at 17. A
doctor’s order was in place for the use of two side rails. CMS Ex. 51, at 17; Supp. Tr. 62.
Nurse Talbert testified specifically that the care plan team considered less restrictive
alternatives such as a single rail, low bed, and a bed alarm. Supp. Tr. 47-49, 57-59, 63-
64. Resident | indicated that she did not want a low bed because it would embarrass her.
Supp. Tr. 48-49, 62. Similarly, the care plan team determined that a bed alarm and a
single rail would not have worked because, “it would have embarrassed [Resident 1] and
brought attention to her, and the one side rail would not have been efficient because of
the frequent history of falls.” Supp. Tr. 48.

I find Nurse Talbert’s testimony credible, supported by the documentary evidence as she
explained it, and her testimony is unrebutted. Based on the additional testimonial
evidence, I conclude that Petitioner has satisfied the requirements of the Act and

'° Resident 1 could not make medical care decisions for herself due to dementia.
However, she was able to make day-to-day personal decisions and communicate her
needs and desires. Tr. 44.
16

regulations in that Resident 1’s daughter was counseled regarding the use of restraints
including the right to refuse restraints, and the care plan team adequately assessed
whether Resident 1’s medical condition and emotional well being could have been
accommodated by less restrictive means. 42 C.F.R. § 483.13(a).

(2) Resident 5

The surveyor observed the resident on October 26, 2004, lying in bed with both side rails
up. The surveyor alleged there was no documentation that use of restraint had been
discussed with the resident or the responsible party and no documentation on the care
plan.

On August 16, 2004, Resident 5’s doctor ordered that her side rails on both sides of her
bed be up for safety and mobility, due to her decreased mental status. P. Ex. 53, at 1.
Contrary to the surveyor’s allegation, the resident’s care plan reflects that the resident
was at risk for falls and, among other interventions, her side rails were to be up for safety
and mobility.'! Petitioner also produced the signature page for the care planning
conference, which shows the resident did attend. P. Ex. 53, at 3. However, the doctor’s
order and the signature sheet for the care planning do not show that the resident was ever
advised that she had the right to refuse restraint or that other less restrictive interventions
has been considered and rejected by Petitioner and/or the resident’s doctor as ineffective
to address her medical condition. Accordingly, I concluded in my initial decision as in
the case of Resident 1, that Petitioner had not shown it complied with the resident’s right
to be free of restraint except when medically necessary.

Nurse Talbert, testified that Resident 5’s responsible party received a complete
assessment and information packet upon admission to the facility in June of 2004,
including a statement of resident’s rights that advised of the right to refuse restraints.
Supp. Tr. 64-66. Because of Resident 5’s dementia, history of falls and high fall risk
assessment, the care plan team recommended the use of bed side rails. Supp. Tr. 67-68;
CMS Ex. 39, at 14. However, Resident 5’s daughter (her responsible party) indicated
that Resident 5 did not want bed side rails because she did not want to feel “caged-in.”
CMS Ex. 39, at 12, 14; Supp. Tr. 67-68. As a result, the care plan team recommended

' The fact that the doctor or Petitioner states that side rails are to be up for “safety and
mobility” does not negate the fact that the side rails are also restraints to the extent that
they limit or restrict the residents freedom of movement, even though they may also have
an additional function for some activities of daily living such as serving as a grab bar to
permit turning over in bed or stability while standing next to the bed.
17

and implemented a less restrictive alternative - a concave mattress. Supp. Tr. 68. Nurse
Talbert explained the use of the concave mattress:

It’s raised a little bit on the side, so when she [Resident 5]
rolled over it would remind her not to, you know we hope,
will remind her not to try to get up over the edge of it. It’s
just a little lift.

Supp. Tr. 68. She testified that Resident 5’s daughter agreed with the use of the concave
mattress. Supp. Tr. 69. Resident 5 later experienced a decline in her physical and mental
condition as a result of a series of mini-strokes, and on July 25, 2004 suffered a fall as she
attempted to get out of bed unassisted to go to the bathroom. Supp. Tr. 69; Ex. 39, at 17-
18. Resident 5 was then reassessed for the use of side rails, and with the consent of
Resident 5’s daughter, side rails were implemented for safety and mobility. Supp. Tr. 69-
70.

I find Nurse Talbert’s testimony credible, supported by the documentary evidence as she
explained it, and her testimony is unrebutted. Based on the additional testimonial
evidence, less restrictive means were assessed and the responsible party was
appropriately counseled regarding the restraints and the right to refuse. I conclude that
Petitioner did not violate 42 C.F.R. § 483.13(a) in the example of Resident 5.

(3) Resident 7

The surveyor observed the resident on October 26, 2004, lying in bed with both side rails
up. The surveyor alleged that there was no signed consent for the use of restraints, there
was no documentation that the use of restraint had been discussed with the resident
and/or responsible party, and no documentation of assessment of the least restrictive
means.

Resident 7’s admission assessment shows that she was to have both side rails on her bed
up. P. Ex. 54, at 1, 3,4, and 6. She attended her care planning conference on September
24, 2004, and her care plan included the intervention of keeping both side rails up due to
her risk for falls. P. Ex. 54, at 7-8. For this resident Petitioner produced a document
entitled “Side Rail Rational Screen,” which shows Petitioner made some assessment of
the need for side rails. However, as alleged in the SOD there is no evidence that the
resident was ever counseled that she had a right to refuse restraint or whether or not less
restrictive interventions had been considered and rejected by Petitioner as insufficient to
meet the resident’s medical needs. The surveyor specifically alleged for this resident that
Petitioner failed to determine whether less restrictive means would have been all that
were necessary to meet the resident’s medical needs. I found in my initial decision that
Petitioner had provided me no evidence that it assessed less restrictive means and had
thus failed to establish medical necessity for the restraint imposed.
18

Nurse Talbert testified regarding Resident 7, who like Resident’s 1 and 5, received a full
assessment and an information packet upon her admission to the facility in September of
2004. Supp. Tr. 70, 76-77. Her responsible party was her son and he signed all the
admissions papers. Supp. Tr. 70. Resident 7 was a total care resident, which meant that
she was totally dependent on others for her care and activities of daily living. Supp. Tr.
70. Resident 7 had a medical diagnosis of seizures, a history of psychiatric problems,
was not ambulatory and required a feeding tube. Supp. Tr. 70-71. Because of Resident
7’s severe seizures and medical condition she was assessed for and received bed side rails
because:

side rails were the leas[t] restrictive for her [Resident 7]
because when she had a seizure it was a high chance that she
could flail and go out of the bed if there were no side rails
there.

Supp. Tr. 71. Nurse Talbert further testified that it would have been “difficult” to use a
less restrictive low bed because Resident 7’s feeding tube required the bed to be of a
certain height and because she was incontinent of bowel and bladder, she had to be
changed frequently.'* Supp. Tr. 74-75; CMS Ex. 52, at 4. Resident 7’s son was
counseled about the use of restraints and the right to refuse restrains and did not object to
the use of side-rails. Supp. Tr. 73-74, 77, 81-82. The evidence also shows that less
restrictive modes were considered and rejected.

I find Nurse Talbert’s testimony credible, supported by the documentary evidence as she
explained it, and her testimony is unrebutted. Based on the additional testimonial
evidence, less restrictive means were assessed and the responsible party was
appropriately counseled regarding the restraints and the right to refuse. I conclude that
Petitioner did not violate 42 C.F.R. § 483.13(a) in the example of Resident 7.

(4) Resident 19

The resident was observed on October 28, 2004, sitting in a wheel chair with a roll belt
on. The surveyor alleged in the SOD that there was no evidence the family was informed
of the use of the restraint.

2 Use of side rails rather than a low bed because the resident had to be frequently
provided incontinent care, implies that the decision was for the convenience of staff. Use
of restraint for the convenience of staff is impermissible. However, I do not conclude
there was a violation here as there were other permissible reasons for using side rails
rather than a low bed.
19

Resident 19 was assessed for the use of a roll belt in bed on September 28, 2004. The
resident had problems with safety awareness and confusion and reportedly he would
attempt to climb over the bed side rails. P. Ex. 57, at 1. He was also assessed for the use
of a lap buddy when up in his wheelchair, but that was changed to a lap belt on October
5, 2004, because he could remove the lap buddy. P. Ex. 57, at 2-3, 7. The use of a lap
belt and then a “waist belt” while the resident was up in his wheelchair and side rails
while in bed are interventions in his care plan. P. Ex. 57 at 6-7. The pages of the care
plan provided by Petitioner do not list the use of a roll belt while the resident was in bed.
Petitioner presented evidence that the resident attended his care planning conference on
October 11, 2004.

I concluded in my initial decision that Petitioner had not shown that the resident or the
responsible party was counseled regarding the use of restraints as required by Petitioner’s
policy and the SOM, including the right to refuse restraints. I found no evidence that
showed Petitioner considered whether Petitioner’s medical condition could have been
accommodated by less restrictive means, for example the use of alarms or a low bed to
minimize or eliminate the risk for falls from bed or a personal alarm while the resident
was up in his wheelchair. I further concluded that in the absence of some evidence that
Petitioner considered less restrictive means, it was not possible to conclude that restraint
was medically necessary.

Nurse Talbert testified that Resident 19 received a full assessment and an information
packet upon his admission to the facility in September of 2004. Resident 19’s daughters,
one of whom was his responsible party, were counseled regarding the use of restraints
including the right to refuse restraints. Resident 19 had a history of falls, was generally
disoriented, and was not ambulatory due to weakness caused by osteoarthritis. Resident
19 received several different assessments for restraints. Ultimately, he was assessed for
more restrictive restraints after demonstrating that less restrictive restraints such as a lap
buddy and a lap tray did not work because he could easily remove the lap buddy and the
lap tray. A roll belt and side rails were recommended and implemented because Resident
19 was at a high risk for falls because: (1) he would try to get out of bed without
assistance; (2) he had unsteady gait; (3) he had weakness and decreased balance; (4) he
had decreased safety awareness and confusion; (5) he was agitated and combative; and
(6) he would attempt to climb over bed rails. Supp. Tr. 85-99.

Thus, based on the additional testimonial evidence, I conclude that Petitioner has satisfied
the requirements of the Act and regulations in that Resident 19’s daughters were
counseled regarding the use of restraints including the right to refuse restraints, and the
care plan team adequately assessed whether Resident 19’s medical condition and
emotional well being could have been accommodated by less restrictive means.
Accordingly, I conclude that Petitioner did not violate 42 C.F.R. § 483.13(a) in the
example of Resident 19.
20

On cross-examination and my examination, Nurse Talbert conceded that she did not do
the counseling of the four residents discussed as examples. However, she testified that
her testimony described the practice at Petitioner and that the practice would have been
followed for each resident. Supp. Tr. 106-10, 133-34. I do not find that this concession
negatively impacts the credibility of Nurse Talbert’s testimony. As the assistant director
of nursing for Petitioner at the time of the survey and at the time of the admission of the
four residents, she was well positioned to know Petitioner’s policy, procedures, and
practices. There is also no evidence that is inconsistent with her testimony.

Accordingly, I conclude that Petitioner was not in violation of 42 C.F.R. § 483.13(a)
from October 25, 2004 through December 21, 2004.

2. A CMP of $150 per day from October 28, 2004 through December
21, 2004, is not a reasonable enforcement remedy.

3. A CMP of $75 per day from October 28, 2004 through December
21, 2004, is a reasonable enforcement remedy.

I previously concluded that Petitioner was in violation of 42 C.F.R. § 483.10(n) (Tag
F176) from October 25, 2004 through December 21, 2004; the violation posed more than
minimal harm that was not immediate jeopardy and there was no actual harm; and those
conclusions were sustained by the Board on appeal. I have now concluded that Petitioner
was not in violation of 42 C.F.R. § 483.13(a) from October 25, 2004 through December
21, 2004. Petitioner returned to substantial compliance with all program participation
requirements effective December 22, 2004. There is a basis for the imposition of a CMP
and the Board authorized me to determine on remand the appropriate CMP for the period
October 28, 2004 through December 21, 2004.

Ifa facility is not in substantial compliance with program requirements, CMS has the
authority to impose one or more of the enforcement remedies listed in 42 C.F.R.

§ 488.406, including a CMP. CMS may impose a CMP for the number of days that the
facility is not in compliance or for each instance that a facility is not in substantial
compliance. 42 C.F.R. § 488.430(a). There are two ranges for per day CMPs. 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 constitute immediate jeopardy to a facility’s
residents, and, in some circumstances, for repeated deficiencies. 42 C.F.R.

§§ 488.438(a)(1)(i), (d)(2). The lower range of CMP, from $50 per day to $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).
21

In determining whether the amount of the CMP is reasonable, the following factors
specified at 42 C.F.R. § 488.438(f) must be considered: (1) the facility’s history of non-
compliance, including repeated deficiencies; (2) the facility’s financial condition; (3) the
seriousness of the deficiencies as set forth at 42 C.F.R. § 488.404; and (4) the facility’s
degree of culpability.

There is no evidence that Petitioner has a history of noncompliance. Petitioner has not
provided any evidence to show that its financial condition precludes it from paying the
CMP. I have considered the required factors and I conclude that a CMP of $75 per day
for the 55 days from October 28, 2004 through December 21, 2004, is reasonable.

Il. Conclusion

For the foregoing reasons, I conclude: that there is a basis for the imposition of a CMP
based upon the previously affirmed violation of 42 C.F.R. § 483.10(n) (Tag F176) from
October 25, 2004 through December 21, 2004; that Petitioner was not in violation of 42
C.F.R. § 483.13(a) from October 25, 2004 through December 21, 2004; and that a CMP
of $75 per day for 55 days is reasonable.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Akube Wuromoni Ndoromo a.k.a.
Akiuber Ndoromo James, (#28507-016),
Petitioner,

Vv.

The Inspector General.

Docket No. C-09-540
Decision No. CR2092

Date: March 16, 2010

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Akube
Wuromoni Ndoromo, a.k.a. Akiuber Ndoromom James, from participating in Medicare,
Medicaid, and other federally funded health care programs for a period of 25 years.

I. Background

On May 29, 2009 the LG. notified Petitioner that he had determined to exclude him from
participation in Medicare, Medicaid, and other federally funded health care programs for
a period of 25 years because he had been convicted of a criminal offense as is described
at section 1128(a)(1) of the Social Security Act (Act). The LG. informed Petitioner that
the length of the exclusion, 25 years, was based on evidence relating to three aggravating
circumstances: the acts resulting in his conviction caused a financial loss to a
government program of more than $5000; the acts were committed over a period of one
year or more; and the sentence imposed by the court included incarceration. I.G. Ex. 1.

Petitioner requested a hearing and the case was assigned to me for a hearing and a
decision. Neither party requested that I convene an in-person hearing to receive
testimony. Each party filed a brief. The LG. filed six proposed exhibits which he
identified as I.G. Ex. 1 — LG. Ex. 6. Petitioner did not file any proposed exhibits. The
1G. filed a reply brief.

Il. Issue, findings of fact and conclusions of law
A. Issues
The issues in this case are whether:
1. Exclusion of Petitioner is mandated by section 1128(a)(1) of the Act; and
2. An exclusion of 25 years is reasonable.
B. Findings of fact and conclusions of law

1. Petitioner’s exclusion is mandated by section 1128(a)(1) of the Act
because Petitioner was convicted of a criminal offenses related to the
delivery of items or services under the District of Columbia Medicaid
program.

Section 1128(a)(1) of the Act mandates that the I.G. exclude any individual who is
convicted of a criminal offense related to the delivery of an item or service under
Medicare or a State health care program. In this case Petitioner’s exclusion is mandated
by the fact that he was convicted of a criminal offenses related to the delivery of items or
services by the United States District Court for the District of Columbia.

An Indictment was filed in the United States District Court for the District of Columbia
against Petitioner on January 25, 2006. LG. Ex. 3. A Superseding Indictment was filed
in the United States District Court for the District of Columbia on February 1, 2006,
charging Petitioner with: count one, Health Care Fraud, in violation of 18 U.S.C. § 1347;
counts two through five, Wire Fraud, in violation of 18 U.S.C. § 1343;! counts six
through 18, False Statements Regarding Health Care Matters, in violation of 18 U.S.C. §
1035(a)(2);? and counts 19 through 26, Money Laundering, in violation of 18 U.S.C. §
1957. Id.

' Petitioner was not convicted of these offenses since the four counts of Wire fraud were
not presented to the jury.

> Counts seventeen and eighteen were also not presented to the jury, so Petitioner was
not convicted of these two counts.
The Superseding Indictment describes Petitioner’s underlying crime. Petitioner was
president, Chief Executive Officer and owner of Voice of Social Concern, Inc. (VSCA), a
business incorporated in the District of Columbia. I.G. Ex. 4. Petitioner was also
residing at VSCA’s business address. VSCA was a Medicaid transportation provider
since January 10, 2001 and became a transportation provider under the Medicaid program
for Mentally Retarded and Developmentally Disabled individuals on or about July 2002.
Petitioner signed the Medicaid Transportation Applications as President and Chief
Executive Officer of VSCA. Between January 2002 and continuing through December
2004 Petitioner individually and through VSCA defrauded Medicaid by preparing and
submitting false claims to Medicaid that included services that were not provided for:
Medicaid beneficiaries who were deceased, Medicaid beneficiaries who had never used
VSCA’s services; Medicaid beneficiaries who had discontinued VSCA’s services; and
Medicaid beneficiaries who had used VSCA’s services but through false claims had
inflated the services provided. 1.G. Ex. 4. VSCA also submitted false claims for services
where VSCA was not the authorized transportation provider for certain Medicaid
beneficiaries and when the transportation services were not authorized because the
Medicaid beneficiary was not in need of transportation services or the destination was not
one for which transportation was authorized by Medicaid. Jd. Further, Petitioner
solicited or caused others to solicit Medicaid beneficiaries whether or not they were in
need of transportation services in order to obtain their Medicaid numbers so that these
Medicaid numbers could be used to submit fraudulent claims. Jd.

A jury found Petitioner guilty on counts one, six through 16, and 19 through 26 on March
30, 2007. 1.G. Ex. 5. A judgment of conviction and sentence was entered against
Petitioner on November 14, 2008. I.G. Ex. 6. Petitioner was sentenced to: 57 months of
incarceration; 36 months of supervised release; pay an assessment fee of $2000; and pay
restitution to CMS’s Division of Accounting of $1,299,768.89 and to the DC Department
of Health of $557,043.81, totaling $1,856,812.70. I.G. Ex. 6.

The indictment is clear as to the nature of the crime to which Petitioner was found guilty.
It explicitly provides that in relation to the health care fraud charge:

Between in or about January 2002 and continuing through in or about December
2004, in the District of Columbia and elsewhere, the defendants [Petitioner and
VSCA, Inc.] knowingly and willfully devised and executed a scheme and artifice
to defraud a health care benefit program, namely Medicaid, and to obtain from
Medicaid, money under the custody and control of Medicaid, by fraudulent
pretenses, representations, and promises, namely false claims, in connection with
the delivery of, and payment for, health care benefits, items, and services.

LG. Ex. 4, at 8.
Further, the indictment explicitly provides in relation to the making of false statements
relating to health care matters that:

[Defendants] in a matter involving a health care benefit program, knowingly and
willfully made material false, fictitious, and fraudulent statements and
representations and made and used materially false writings and documents
knowing the same to contain materially false, fictitious, and fraudulent statements
and entries in connection with the delivery of and payment for health care benefits,
items, and services....

Id. at 10.
In addition, the indictment explicitly provides in relation to money laundering that:

[Defendants] knowingly engaged and attempted to engage in the monetary
transactions . . . by, through, and to a financial institution, affecting interstate
commerce, in a criminally derived property . . . such property having been derived
from a specified unlawful activity, that is health care fraud and wire fraud.

Id. at 12.

The crimes of health care fraud and false statements relating to health care matters,
clearly meets the criteria of section 1128(a)(1). It is well-established that theft from the
Medicaid program by falsely claiming reimbursement for items or services that were not
provided as claimed constitutes a crime related to the delivery of a healthcare item or
service. Making false statement relating to health care matters and money laundering of
unds derived from health care fraud also constitute crimes related to the delivery of a
ealth care item or service. Aroostock E.N.T. Clinic, P.A., DAB CR1691 (2007); Jeffrey
Jerome Thigpen, DAB CR1158 (2004); Bruno Real Choiniere, DAB CR1653 (2007);
Pura Ester Medina, DAB CR1526 (2007).

Petitioner challenges the integrity, validity and the facts and circumstances of his
underlying conviction. However, collateral attacks on Petitioner’s underlying conviction,
on either substantive or procedural grounds, are not reviewable in this forum. 42 C.F.R.
§ 1001.2007(d); see also Mohammad A. Adas, M.D. DAB CR1202 (2004). In addition,
Petitioner raises constitutional challenges to his underlying conviction. I cannot address
these issues as they are not within my jurisdiction.

Further, Petitioner challenges whether the acts that resulted in his conviction caused or
intended to cause a financial loss to the government of $5000 because “the health care
raud as Count 1, has no amount in it.” P. Response at 2. I address this argument below.

2. An exclusion of 25-years is reasonable.

The purpose of imposing an exclusion is remedial. The purpose of the Act is to protect
federally funded health care programs and their beneficiaries and recipients from
individuals and entities who are untrustworthy.

As a matter of law, an individual must be excluded for a minimum of five years if he or
she is convicted of a crime for which section 1128(a)(1) mandates exclusion. Act,
section 1128(c)(3)(B). The I.G. is authorized to exclude an individual beyond the
minimum five year period where the evidence shows that individual to be so
untrustworthy as to necessitate a longer exclusion. When the I.G. excludes an individual
or more than five years that raises the issue of whether his determination is reasonable.

Regulations governing the imposition of exclusions define certain aggravating and
mitigating factors to consider when evaluating the reasonableness of the length of
exclusions. 42 C.F.R. § 1001.102(b), (c). Evidence of aggravating factors may justify
imposing an exclusion longer than the five-year minimum. Evidence of mitigating
actors may justify reducing the length of an exclusion but never below the five-year
minimum.

The regulatory aggravating and mitigating factors establish what evidence is relevant to
the length of exclusion. However, the regulations do not dictate how to weigh that
evidence when deciding whether the length of an exclusion is reasonable.

Here, evidence relating to three aggravating factors strongly supports the I.G.’s
letermination to exclude Petitioner for 25 years. Petitioner did not submit any evidence
or written argument relative to mitigating factors that I can consider. First, the evidence
proves that Petitioner was convicted of a crime that caused a financial loss of $5000 or
more to the Medicare program. 42 C.F.R. § 1001.102(b)(1). Petitioner was ordered to
pay restitution to CMS’s Division of Accounting of $1,299,768.89 and to the DC
Department of Health of $557,043.81, totaling $1,856,812.70. LG. Ex. 6. This amount
far exceeds a financial loss to the program of more than $5000.

Second, Petitioner’s crimes extended over a period of more than a year. 42 C.F.R.
§ 1001.102(b)(2). The indictment charges Petitioner with crimes that extended for a
period of nearly three years from January 2002 through December 2004. LG. Ex. 4.

Third, Petitioner’s sentence included incarceration. 42 C.F.R. § 1001.102(b)(5).
Petitioner was sentenced to 57 months of incarceration. I.G. Ex. 6.

Petitioner mistakenly argues that aggravating factors include “if there is [sic] injuries
involve [sic], or if it results to [sic] death.” P. Response at 2. The evidence as to
aggravating factors is sufficient to support an exclusion of 25 years in this case because it
establishes Petitioner to be manifestly untrustworthy. Regardless of whether anyone was
injured or died or whether Petitioner made restitution after he was caught, he engaged in
a systematic large scale scheme to steal program monies over a lengthy period of time.
The persistence and scale with which Petitioner conspired to defraud the Medicaid
program establishes a pattern of criminal activity. The regulations specifically outline
what factors may be considered mitigating, and none of Petitioner’s arguments falls
within that definition.’ See 42 C.F.R. § 1001.102(c).

Ill. Conclusion

Based on my review of all of the evidence and argument advanced in this case, I sustain
the determination of the Inspector General (I.G.) to exclude Petitioner, Akube Wuromoni
Ndoromo, a.k.a. Akiuber Ndoromom James, from participating in Medicare, Medicaid,
and other federally funded health care programs for a period of 25 years.

/s/
Alfonso J. Montafio
Administrative Law Judge

* The only factors that may be considered mitigating are: the individual was convicted of
three or fewer misdemeanors and the entire financial loss to a federally funded health

care program was less than $1500; the record in the criminal proceeding, including
sentencing documents, demonstrates that the individual had a mental, emotional, or
physical condition before or during the commission of the offense that reduced his
culpability; or the individual’s cooperation with federal or state officials resulted in others
being convicted or excluded from Medicare or Medicaid, additional cases being
investigated or reports identifying program weaknesses, or the imposition of a civil
money penalty or assessment against anyone. 42 C.F.R. § 1001.102(c).