Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Daniel J. Sellinger, D.P.M., P.C.,
(PTAN: 1324940001),
Petitioner,
v.
Centers for Medicare & Medicaid Services.

Docket No. C-15-271

Decision No. CR4267

Date: October 1, 2015

DECISION

Petitioner, Daniel J. Sellinger, D.P.M., P.C., is a supplier of durable medical equipment,
prosthetics, orthotics and supplies (DMEPOS). Petitioner participated in the Medicare
program until the Centers for Medicare & Medicaid Services (CMS) revoked its
Medicare supplier number for reasons including that the contractor was unable to gain
access to Petitioner’s location to conduct a mandatory on-site visit.

Petitioner here appeals the revocation of its supplier number.

For the reasons discussed below, I find that Petitioner was not compliant with Medicare
requirements and that CMS properly revoked its supplier number.
I. Background

In a letter dated July 28, 2014, the Medicare contractor, Palmetto GBA National Supplier
Clearinghouse (NSC), notified Petitioner that its supplier number would be revoked for a
period of two years effective April 16, 2014, because Petitioner’s business location on
record with the contractor at 2340 E. Stadium Boulevard, Suite 5, in Ann Arbor,
Michigan (herein “E. Stadium Boulevard”) was, among other reasons, not accessible to
the public, CMS, NSC and its agents. CMS Ex. 3 at 2. As a result, the contractor’s
representative could not inspect the supplier’s facility to verify its compliance with
supplier standards. CMS Exhibit (Ex.) 3.

In a letter and request for reconsideration dated August 20, 2014, Petitioner responded, at
which time it conceded that the E. Stadium Boulevard location was not operational at the
time of the attempted inspection and that the office had relocated to its new location on
Dexter Road. In doing so, Petitioner explained that “[o]ver the last two years we have
actually gone from two offices to one” and that “during a renovation we did hold three
sites.” Furthermore, Petitioner stated the following: “I am sure that you can appreciate
that an address change, [sic] during this busy time could be overlooked.” CMS Ex. 4 at
1.

In a reconsidered decision dated September 25, 2014, a Medicare hearing officer affirmed
the revocation of Petitioner’s supplier number based on a failure to meet Supplier
Standards 2,7, and 10. CMS Ex. 5. See 42 C.F.R. §§ 424.57 (c)(2), (c)(7), and (c)(10).
Petitioner now appeals that determination.

In an order dated November 14, 2014, Administrative Law Judge Carolyn Cozad Hughes
directed the parties to submit pre-hearing briefs addressing all issues of law and fact,
including any motions for summary judgment, along with any proposed exhibits,
including written direct testimony, in the form of an affidavit or declaration, of any
proposed witness. Acknowledgment and Pre-Hearing Order at 3-5, 99§ 4,8. The order
advised Petitioner of its right to cross-examine any CMS witness whose direct testimony
was offered. Acknowledgment and Pre-Hearing Order at 5, 9. The order also advised
the parties that a hearing for purposes of cross-examining witnesses “will be necessary
only if a party files admissible, written direct testimony, and the opposing party asks to
cross-examine.” Acknowledgment and Pre-Hearing Order at 6,§ 10. This case was
subsequently transferred to me on September 1, 2015.

CMS submitted its brief and motion for summary disposition (CMS Br.) and five
proposed exhibits. Petitioner submitted its brief (P. Br.) and eight proposed exhibits.
CMS and Petitioner submitted several identical exhibits, and for identification purposes,

' NSC is the Medicare contractor responsible for enrollment and re-enrollment of
DMEPOS suppliers. 42 C.F.R. § 424.57(a).
duplicative exhibits will be referred to herein only by the exhibit numbers furnished by
CMS.

CMS, in its reply (CMS Reply), objects to the admission of two of Petitioner’s proposed
exhibits as inadmissible new evidence: P. Ex. 2, identified as a Debra Walters Email
thread; and P. Ex. 3, identified as a CMS Approval Notice May 14, 2013. For reasons
that will be discussed below, I will not admit P. Exs. 2 and 3. In the absence of further
objections, I admit into evidence CMS Exs. 1-5 and P. Exs. 1, 4-6, and 8-92

While Petitioner expressed a desire to cross-examine NSC inspector Daniel Warner,
CMS filed no written direct testimony for this individual, and I was not asked to
subpoena Mr. Warner as a witness. Therefore, there is no basis for any cross-
examination. Petitioner submitted the affidavits of Christina Hammond, P. Ex. 1, and
Daniel Sellinger, P. Ex. 4, and CMS has not requested the opportunity to cross-examine
these witnesses. I consider the record in this case to be closed, and the matter is ready for
a decision on the merits.

II. Discussion

1. Petitioner has not shown good cause for offering new
documentary evidence that it did not submit at the initial
or reconsideration determination phases, and there is no
basis to admit this evidence into the record.>

Petitioner submitted two proposed exhibits that it did not previously submit at either the
initial or reconsideration determination levels. The first document is a printout of a
March through May 2013 email thread with a subject line “Gmail — WPS Medicare
Provider Enrollment Application — Action Required.” P.Ex.2. In that email thread,
Christina Hammond, Petitioner’s office manager, corresponded with Wisconsin
Physicians Service, a Medicare enrollment contractor, regarding a form CMS-855] that
had been submitted to update Petitioner’s enrollment status. While the email thread does
not reference the specific office location that is being updated, Ms. Hammond reported
that “the address in Livonia is for the UofM surgery center.” P. Ex. 2 at 6. The other
proposed exhibit at issue is a letter from Wisconsin Physicians Service, dated May 14,
2013, indicating that the “[p]ractice location, correspondence address [was] changed from
19900 Haggerty Rd Livonia, MI 48152-1054 to 2550 Dexter Rd Ann Arbor, MI 48103-
2702.” P. Ex.3 at 1.

> Petitioner has not submitted a document marked as P. Ex. 7.

5 Findings of fact and conclusions of law are made in bold and italic font.
CMS argues that Petitioner did not previously submit these documents and that Petitioner
has not shown good cause for failing to present them earlier, as required by 42 C.F.R.

§ 498.56(e). CMS Reply at 5-6; see Acknowledgment and Pre-Hearing Order at 5,9 6.
Petitioner did not respond to CMS’s objections. I find the objections to be persuasive.

I must examine any new documentary evidence that is offered by a provider or supplier
and determine whether any good cause exists for receiving that evidence. 42 C.F.R.

§ 498.56(e)(1). I must exclude any new documentary evidence at the administrative law
judge level of appeal if I do not find good cause for Petitioner’s failure to offer that
evidence at the initial or reconsideration determination levels. 42 C.F.R.

§ 498.56(e)(2)(ii). While “good cause” is not defined in the regulations, the term has
been interpreted to mean an event beyond a party’s control that prevents the party from
offering the evidence timely. See, e.g., City Crown Home Health Agency, CR3130
(2014) at 4. Here, Petitioner offered neither of these proposed exhibits during either the
initial or reconsideration determination phases of the case. The dates of the documents
clearly suggest that they were in existence at the time of the initial and reconsidered
determinations. Petitioner has not alleged any factor amounting to good cause, however,
for why it did not submit the documents earlier.

Rather, Petitioner argues there is a fact dispute as to whether it provided the required
notification of its office relocation. Even if I were to find good cause and admit them, the
proposed exhibits offered by Petitioner do not evidence a dispute as to any material fact
because they do not relate to the issue whether Petitioner provided the requisite notice to
NSC of its relocation from the E. Stadium Boulevard address, which is the location of the
failed attempted site inspection. Instead, the proposed exhibits address the office’s
relocation from a third office location in Livonia, Michigan, rather than the E. Stadium
Boulevard location. In addition, the proposed exhibits pertain to Petitioner’s owner’s
status as a Medicare-enrolled physician, rather than as a DMEPOS supplier. A form
CMS-855I, which is referenced in the proposed exhibits, pertains to the enrollment of
physician and non-physician practitioners and does not provide for the enrollment of
DMEPOS suppliers, which is completed through a form CMS-855S, as discussed above.
Additionally, the proposed exhibits suggest that Petitioner’s owner notified the Medicare
contractor, Wisconsin Physicians Service, regarding his office move, but they do not
show that Petitioner ever notified NSC, the Medicare durable medical equipment
contractor, as it acknowledged in its brief was required. Thus, even if I could accept
these exhibits and admit them as evidence, they would not support Petitioner’s appeal.

For the reasons stated above, I decline to admit P. Exs. 2 and 3.
2. CMS properly revoked Petitioner’s Medicare DMEPOS
supplier enrollment.

To receive Medicare payments for items furnished to a Medicare beneficiary, a supplier
of medical equipment and supplies must have a supplier number issued by the Secretary
of Health and Human Services. Social Security Act (Act) § 1834(j)(1)(A); 42 C.F.R.

§ 424.505. To obtain and retain its supplier number, a DMEPOS supplier must meet the
standards set forth in 42 C.F.R. § 424.57(c), and CMS may revoke its billing privileges if
it fails to do so. 42 CFR. §§ 424.57(c)(1), (e)*; 42 CER. § 424.535(a)(1). Among
other requirements, the supplier must provide “complete and accurate information in
response to questions on its application for billing privileges” and “report to CMS any
changes in information supplied on the application within 30 days of the change.” 42
C.F.R. § 424.57(c)(2). It must submit enrollment information on the applicable
enrollment application. 42 C.F.R. § 424.510(a). The supplier must also permit CMS or
its agents to conduct on-site inspections to ascertain its compliance with governing
regulations and ensure its location is accessible to various entities such as the public,
CMS, and NSC. 42 C.F.R. §§ 424.57(c)(7),(8).

Prior to its revocation, Petitioner was a Medicare-enrolled DMEPOS supplier located at
E. Stadium Boulevard in Ann Arbor, Michigan. CMS Ex. 1 at 1; CMS Ex. 5 at 2. On
April 16, 2014, an inspector employed by NSC attempted an on-site

inspection at the E. Stadium Boulevard location but found that the supplier was no longer
at the location. The practice location was closed, and there was no signage or posted
hours of business. The suite appeared to be empty, and the inspector was unable to
inspect the premises. CMS Ex. | at 6,7. At some point prior to the failed site inspection
on April 16, 2014, Petitioner moved to a new location but did not report the change of
address to NSC by filing the form CMS-855S. 42. C.F.R. § 424.510(a); see MPIM

§ 15.1.2. Petitioner has not disputed the determination that the office on E. Stadium
Boulevard was not accessible on the day of the attempted site visit. Nor has Petitioner
alleged that it filed a form CMS-855S with NSC within 30 days of its relocation.

In a letter and request for reconsideration dated August 20, 2014, Petitioner
acknowledged that the E. Stadium Boulevard office was not open at the time of the
attempted inspection and that it had already relocated to its new office on Dexter Road.
Petitioner speculated that the required report of the new office location may have been
“overlooked” because its staff was overwhelmed at the time of the move. CMS Ex. 4 at

* Paragraph (e) of section 424.57 was previously designated paragraph (d) and was
redesignated by the rulemaking that imposed the surety bond requirements at paragraph
(d); however, the redesignation was not incorporated in the Code of Federal Regulations
(C.F R.) until November 24, 2014. 79 Fed. Reg. 69,772, 69,773 (Nov. 24, 2014). Prior
versions of the C.F.R. dating back to October 1, 2009 included an Editorial Note
explaining the redesignation.

1. In a form CMS-855S that was submitted in August 2014, Petitioner reported that it
started operating at its new Dexter Road location November 1, 2012. CMS Ex. 4 at 7, 22.
Now, Petitioner’s owner belatedly claims in its brief to have notified “CMS” through the
submission of a form CMS-855I (Medicare Enrollment Application — Physicians and
Non-Physician Practitioners), which is used for Medicare physician suppliers, but not
DMEPOS suppliers, that was sent to the Medicare contractor. P. Br. at 5. As explained
previously, Petitioner has not demonstrated how this notification to Wisconsin Physicians
Service of his move from a Livonia, Michigan office constitutes the required timely
notice to NSC that Petitioner relocated from the E. Stadium Boulevard location to the
Dexter Road location. Petitioner makes no allegation that it notified NSC within the
requisite time period or that it was operational at the E. Stadium Boulevard location at the
time of the failed inspection, and the record does not include any such evidence.

Based on all of the discussion above, I find that Petitioner did not comply with Supplier
Standard 2 that is set forth in 42 C.F.R. § 424.57(c)(2). Petitioner did not, within 30 days
of the office relocation, advise the CMS contractor that it had changed locations.

Likewise, I agree with NSC’s determinations in its reconsidered decision that Petitioner
did not comply with Supplier Standards 7 and 10. I find that Petitioner did not comply
with Supplier Standard 7, which requires, inter alia,a DMEPOS supplier to maintain “a
physical facility on an appropriate site.” 42 C.F.R. § 424.57(c)(7). Petitioner has
conceded that the E. Stadium Boulevard office location was not accessible at the time of
the April 16, 2014 inspection because it had already moved to a new location in the same
city. CMS Ex. 4 at 1. [also find that Petitioner did not comply with Supplier Standard
10, which required it to maintain comprehensive liability insurance at its qualified
physical location. 42 C.F.R. § 424.57(c)(10). Petitioner has not presented evidence that
it carried the requisite liability insurance coverage at the E. Stadium Boulevard location
after it moved to the Dexter Road location.

Finally, I also observe that Petitioner’s owner, in a January 21, 2015 affidavit submitted
contemporaneously with Petitioner’s brief, reported that “[u]pon my knowledge and
belief, CMS sends all correspondence to the Dexter Road address, which indicates that
CMS had our current operational address on file.” P. Ex. 4 at 2,9 10. Likewise,
Petitioner’s office manager, in a January 22, 2015 affidavit submitted contemporaneously
with Petitioner’s brief, stated “CMS sends all correspondence to the Dexter Road address,
which indicates that CMS had our current operational address on file.” P. Ex. 1,9 16.
However, I observe that the July 28, 2014 initial determination from the CMS contractor
was mailed to Petitioner’s owner’s personal residence address and not its business
location on 2550 Dexter Road in Ann Arbor, Michigan (herein “Dexter Road”). CMS
Ex. 3 at 1; CMS Ex. 4 at 2.

III. Conclusion

Petitioner did not meet all of the Medicare supplier requirements, and CMS properly
revoked its supplier number and billing privileges for a period of two years.

/s/
Leslie C. Rogall
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Daughters of Israel Pleasant Valley Home
(CCN: 31-5029),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-14-538
Decision No. CR4259
Date: September 30, 2015
DECISION

Petitioner, Daughters of Israel Pleasant Valley Home, is a long-term care facility in West
Orange, New Jersey, that participates in the Medicare program. Following a complaint
investigation survey in February 2013, the New Jersey Department of Health and Senior
Services (state agency) determined that Petitioner was not in substantial compliance with
abuse prohibition regulations applicable to Medicare-participating long-term care
facilities. The state agency also determined that Petitioner’s noncompliance posed
immediate jeopardy to the health and safety of its residents. The Centers for Medicare
& Medicaid Services (CMS) accepted the state agency’s findings and imposed a $5,300
per-day civil money penalty (CMP) from January 30 through February 11, 2013, fora
total CMP of $68,900. Petitioner requested a hearing to challenge the survey findings
and CMS’s enforcement remedies. CMS now moves for summary judgment, which
Petitioner opposes.

For the reasons set forth below, I grant summary judgment in favor of CMS. The
undisputed material facts of this case establish that: Petitioner was not in substantial
compliance with regulatory requirements during the cited period; CMS’s immediate
jeopardy determination was not clearly erroneous; and the CMP imposed is reasonable.
I. Case Background

In response to two facility-reported incidents of resident injury and abuse, the state
agency conducted a survey of Petitioner’s facility between February 11 and February 13,
2013. The state agency determined that, from January 30 through February 11, 2013,
Petitioner was not in substantial compliance with:

1) 42 CFR. § 483(b), (c)(1) (Tag F-223) — requiring a facility to protect each
resident’s right to be free from verbal, sexual, physical, and mental abuse,
corporeal punishment, and involuntary seclusion; and

2) 42 CFR. § 483.13(c) (Tag F-226) — requiring a facility to develop and implement
written policies and procedures that prohibit mistreatment, neglect, and abuse of
residents and misappropriation of resident property.

The state agency also determined that Petitioner’s noncompliance posed immediate
jeopardy to the health and safety of its residents for the duration of the cited period of
noncompliance. Specifically, the state agency cited the noncompliance at a scope and
severity level “J,” meaning isolated immediate jeopardy. CMS Exhibits (Exs.) 1, 4; see
also State Operations Manual, ch. 7, § 7400.5 (Sep. 10, 2010).

Three incidents of potential abuse and Petitioner’s response to those incidents formed the
basis of the state agency’s noncompliance determination. First, according to the state
agency’s findings, on January 30, 2013, a resident with cognitive impairment, referred to
as “Resident 1” in the related documentation, reported that nurse aides, including a
certified nursing assistant (CNA) referred to as “CNA 5,” wrapped her up in a sheet and
left her in a bathroom for over two hours. The state agency asserted that Petitioner did
not timely report or thoroughly investigate this allegation in violation of regulatory
requirements. The second incident also involved Resident 1 and CNA 5 and occurred
later in the day on January 30, 2013. Resident | showed a bruise on her wrist to a CNA
on the evening shift and reported that CNA 5, who worked on the day shift, had grabbed
her and caused the bruise. The state agency determined that Petitioner did not begin its
investigation of this allegation until the following day, which violated regulatory
requirements. The third incident, on February 3, 2013, involved a separate resident with
dementia, referred to as “Resident 2,” and consisted of a staff-witnessed incident of staff-
to-resident abuse. According to the state agency’s findings, three CNAs, referred to as
“CNA 1,” “CNA 2,” and “CNA 3,” were providing care to Resident 2 when the resident
began to yell. CNA 2 then covered Resident 2’s head with a pillow and pushed down.
Afterwards, CNA 2 began poking near Resident 2’s vagina, over her diaper, in an effort
to stimulate the resident’s habit of masturbating. Neither CNA | nor CNA 3 reported the
incident until the following day, which, according to the state agency, did not comply
with regulatory requirements. CMS Ex. 4

On July 10, 2013, CMS notified Petitioner that it accepted the state agency’s findings and
imposed a per-day CMP of $5,300 for one day, February 11,2013. CMS Ex. 2.
Petitioner requested a hearing before an administrative law judge. On November 13,
2013, CMS issued a “Notice of Reopening and Revision of Initial Determination,” which
stated that CMS reopened and revised its July 10, 2013 initial determination pursuant to
42 CFR. §§ 498.30 and 498.32(a). CMS Ex. 3. Similar to the initial determination, the
revised determination accepted the state agency’s findings from the February 2013
survey and imposed a $5,300 per-day CMP; however, it revised the effective date of the
CMP from one day to 13 days, i.e., from January 30, 2013 through February 11, 2013.
CMS Ex. 3 at 1-2. On November 21, 2013, I dismissed Petitioner’s hearing request
related to CMS’s July 10 initial determination because that determination was no longer
operational, which, in turn, rendered Petitioner’s hearing request moot. Petitioner then
filed a request for hearing disputing the November 13 revised determination.

CMS subsequently moved for summary judgment and filed a supporting brief (CMS Br.)
as well as 12 proposed exhibits (CMS Exs. 1-12). Petitioner opposed summary judgment
and submitted a brief in opposition (P. Br.) as well as 21 proposed exhibits (P. Exs. 1-21).
CMS filed a reply brief (CMS Reply). Neither party objected to any of the proposed
exhibits, therefore, I admit all of the proposed exhibits into the record.

II. Issues
The issues before me are:
1. Whether summary judgment is appropriate;
2. Whether Petitioner was in substantial compliance with the participation
requirements in 42 C.F.R. § 483.13(b), (c)(1) (Tag F-223) and 42 C.F.R.
§ 483.13(c) (Tag F-226) from January 30 through February 11, 2013;

3. If Petitioner was not in substantial compliance, whether Petitioner’s
noncompliance posed immediate jeopardy to resident health and safety; and

4. If Petitioner was not in substantial compliance, whether the CMP imposed is
reasonable.

III. Discussion

The Social Security Act establishes the requirements for long-term care facilities that
participate in the Medicare and Medicaid programs. See generally 42 U.S.C. §§ 1395i-3,
1396r. The statute authorizes the Secretary of Health and Human Services (Secretary) to
issue regulations that implement those statutory requirements. Id. The Secretary
established by regulation the Medicare participation requirements for long-term care
facilities, which are currently set forth in 42 C.F.R. Part 483. A long-term care facility
must remain in substantial compliance with program requirements to participate in
Medicare. See 42 C.F.R. § 483.1(b). “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 minimal harm.”

42 CFR. § 488.301. “Noncompliance,” in contrast, means “any deficiency that causes a
facility not to be in substantial compliance.” Id.

The Social Security Act also authorizes the Secretary to impose enforcement remedies
against a long-term care facility that does not comply with the federal participation
requirements. 42 U.S.C. § 1395i-3(h)(2). The Secretary delegated to CMS and the states
the authority to impose remedies against a long-term care facility not in substantial
compliance. State agencies survey facilities on behalf of CMS to determine whether the
facilities comply with federal participation requirements. 42 C.F.R. §§ 488.10-.28,

488 .300-.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. Among
other enforcement remedies, CMS may impose a per-day CMP for the number of days a
facility is not in substantial compliance or a per-instance CMP for each instance of the
facility’s noncompliance. 42 C.F.R. § 488.430(a). A per day CMP, which CMS imposed
in this case, may range from either $50 to $3,000 per day for less serious noncompliance,
or $3,050 to $10,000 per day for more serious noncompliance that poses immediate
jeopardy to the health and safety of residents. 42 C.F.R. § 488.438(a)(1). “Immediate
jeopardy” exists when “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.” 42 C.F.R. § 488.301.

If CMS imposes a CMP on a long-term care facility based on a noncompliance
determination, then the facility may request a hearing before an administrative law judge
to challenge the noncompliance finding and enforcement remedy. 42 U.S.C. §§ 1320a-
Ta(c)(2), 1395i(h)(2)(B); 42 C.F.R. §§ 488.408(g), 498.3(b)(13).

1. Summary judgment is appropriate.’
Summary judgment is appropriate in cases where 42 C.F.R. Part 498 applies if there is no

genuine dispute of any material fact and the moving party is entitled to judgment as a
matter of law. Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 750 (6th Cir.

' My numbered conclusions of law are set forth in bold and italics. I decide this case on
summary judgment, so I do not make any formal factual findings. As discussed in detail
below, the material facts are undisputed.
2004); CRDP § 7 (eff. July 6, 2009), accord CRDP § 19(a) (eff. Jan. 1, 2015). To defeat
a well-pleaded motion for summary judgment, the non-moving party must come forward
with some evidence of a dispute concerning a material fact; mere denials in its pleadings
are not sufficient. Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010). A
dispute is “genuine” if “the evidence is such that a reasonable [trier of fact] could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Moreover, a factual dispute cannot reach a trier of fact if there is no “probative
evidence tending to support the complaint.” Id. (citing First Nat. Bank of Ariz. v. Cities
Serv. Co., 391 U.S. 253, 290 (1968)). As explained below, CMS has presented evidence
in support of its motion for summary judgment that establishes abusive conduct by
Petitioner’s staff, abuse allegations by a resident, and the steps Petitioner’s staff took in
response to these incidents. In response to CMS’s evidence, Petitioner offered no
evidence that raises a genuine dispute of any material fact; its witnesses repeatedly cite
incorrect facts or draw inferences that have no record support. No reasonable trier of fact
could find in favor of Petitioner based on those incorrect factual claims.

a. First Abuse Allegation by Resident 1 on January 30, 2013.

Resident 1, an 87-year-old female resident with moderately impaired cognitive ability,
reported to the “7-3 LPN” after breakfast on January 30, 2013, that three other staff
members wrapped her in a sheet and left her in the bathroom for two hours. CMS Ex. 7
at 8,44, 68; CMS Ex. 10 at 5,8, 16. Petitioner does not dispute that Resident 1 made this
allegation. P. Br. at 5. Resident 1 had a history of “complaining” and “episodes of
outbursts mostly when . . . she does not understand what is being said,” but there is no
evidence that she previously accused staff of abusive conduct. CMS Ex. 7 at 26-27, 47;
see also CMS Ex. 7 at 42-44, 48-55.

In response to Resident 1’s allegation, the 7-3 LPN asked Resident | when the incident
happened, to which she replied “the 31st,” even though it was January 30. P. Ex. 5 at 1.
As CNA 5 passed by, Resident | pointed at her and stated that “she was one of them.”

P. Ex. 5 at 1. The 7-3 LPN tried to contact Petitioner’s social worker by telephone.” P.
Ex. 5 at 2. The social worker did not answer, and the 7-3 LPN did not leave a message or
follow-up with the social worker at a later time. P. Ex. 5 at 2. The 7-3 LPN did not
notify a nursing supervisor, the director of nursing, or the facility administrator of
Resident 1’s allegation until 2:00 p.m., when she called the nursing supervisor to report a
separate incident involving Resident 1 and CNA 5. P. Ex. 5 at 2; P. Ex. 6 at 1. “Later,”
the 7-3 LPN spoke with CNA 5, although the 7-3 LPN did not question her about the

> Tt is not clear whether the 7-3 LPN attempted to contact the social worker to report
Resident 1’s allegation or because Resident | insisted that she had a meeting with the
social worker that morning. See P. Ex. 5. For summary judgment, I accept that the 7-3
LPN was attempting to report the abuse allegation to the social worker.
alleged incident of leaving Resident | in the bathroom for two hours that morning.
Instead, she inquired about whether CNA 5 had additional staff assistance when
transferring Resident | to and from the shower. P. Ex. 5.

Petitioner now asserts that the abuse that Resident 1 alleged could not have happened; she
had a shower at 8:30 a.m., was examined in her room at 8:46 a.m., and was then taken to
the dining area to eat breakfast. P. Br. at 5-6; P. Ex. 19 at 5-7. Petitioner also claims that
the 7-3 LPN “interviewed the aide, and asked the aide who assisted her with the resident
in the shower.” P. Br. at 6. In response, CNA 5 said that CNA R.L. assisted her that
morning. According to Petitioner, CNA R.L. “denied wrapping the resident up in a sheet
and leaving her in the shower room.” P. Br. at 6-7 (citing P. Ex. 5, P. Ex. 6). Also
according to Petitioner, the 7-3 LPN called the nursing supervisor to the room to be a
“second witness” to Resident 1’s allegation of being left in the bathroom. P. Br. at 7.
Petitioner further asserts that the 7-3 LPN overstayed the end of her shift “in an attempt
to continue the investigation of Resident 1’s earlier allegation.” P. Br. at 7.

Petitioner’s claims about the 7-3 LPN’s investigative actions are incorrect
characterizations of the evidence. The 7-3 LPN’s interview of CNA 5 only addressed
how many people assisted Resident | to and from the shower.’ Specifically, the 7-3 LPN
“asked [CNA 5] later how many did she use to transfer [Resident 1] while [in the] shower
room, [CNA 5] said 2 persons, I asked who she said [CNA R.L.] in shower room, not
quite sure who assisted her in room.” P. Ex. 5 at 1-2. CNA RL. provided an undated
written statement that made no reference to the allegation, merely that Resident 1 did not
appear agitated after her shower. P. Ex.4. CNA R.L.’s statement does not comport with
Petitioner’s claim that she “denied wrapping the resident up in a sheet and leaving her in
the shower.” P. Br. at 6-7. There is simply no evidence in CNA R.L.’s written statement
to support Petitioner’s claim about what she said.” Also, despite ample opportunity on

5 Surveyors did not assign this specific CNA a numerical identifier. Therefore, I refer to
her by her title and initials.

* Despite no other record support, I accept for purposes of summary judgment the
reasonable inference that the 7-3 LPN may have questioned CNA 5 to help the 7-3 LPN
establish a timeline of Resident 1’s whereabouts during the morning of January 30, 2013.
See P. Br. at 6. However, the 7-3 LPN never documented her findings or established a
timeline of events for Resident | that morning.

> Tt is not reasonable to infer that CNA R.L. meant to say that she did not wrap up the
resident or leave her in the shower. Her statement about Resident 1’s demeanor after the
shower has no correlation to CNA R.L.’s actions at that time. Therefore, Petitioner’s
incorrect recitation of what CNA R.L. said cannot be construed as a reasonable inference
that would preclude summary judgment.
January 30, Petitioner’s staff made no attempt until the following day to get a formal
statement from CNA 5 about the allegation. The 7-3 LPN stated that she “forgot” to ask
CNA 5 for a statement before she left for the day. P. Ex. 5 at 2.

Petitioner’s claim that the 7-3 LPN overstayed the end of her shift that day “in an attempt
to continue the investigation of Resident 1’s earlier allegation” (P. Br. at 7) is also
unreasonable and unsupported.° Indeed, the 7-3 LPN admitted to the surveyor that she
did not investigate the allegation. CMS Ex. 12 at § 19. The evidence corroborates this.
In her written statement, the 7-3 LPN made no assertions about why she stayed late on
January 30. She wrote that she “was still on the unit working at approximately 3:15 pm
when CNA from 3-11 shift came and asked me what happened to [Resident |’s] hand.”
P. Ex. 5 at 2. Moreover, Petitioner does not address the fact that the results of the
supposed investigation into the shower incident were not included in the facility’s final
report to the state agency about another January 30 allegation. If, as Petitioner claims,
the 7-3 LPN had spent over six hours investigating the allegation, it is untenable that the
report to the state agency (and the rest of the record in this case) is devoid of any
conclusions from that specific investigation. See P. Ex. 2 at 1 (discussing Resident 1’s
allegation about the shower, but not discussing any investigation into the allegation or
results of an investigation).

Petitioner’s additional claim that the 7-3 LPN called the nurse supervisor as part of her
investigation into the shower incident is disingenuous. P. Br. at 7 (“The supervisor,
Lydia S. was called as a witness or a second person to hear Resident 1’s complaint... .
The LPN promptly called the same nursing supervisor that was contacted earlier about
the shower allegation.” (emphasis added)). The nurse supervisor wrote in her
investigation statement that she received a single phone call, at 2:00 p.m., which reported
a later scratching incident as well as the shower incident that had occurred earlier in the
day. P. Ex. 6 at 1. Also, the 7-3 LPN stated that she first called the supervisor after the
report that Resident 1 scratched the aide, at approximately 2:00 p.m. P. Ex.5 at 2. Thus,
the assertion that the 7-3 LPN called the supervisor as a witness to Resident 1’s shower
allegation omits that she did so much later in the day and as part of her reporting a second
incident involving Resident 1 and CNA 5. Petitioner’s implication that there were two
calls to the supervisor (P. Br. at 7) has no evidentiary support.

® Even if this is a factual inference, the 7-3 LPN did not document her supposed ongoing
investigation, which alone violates the regulatory requirements. See 42 C.F.R.

§ 483.13(c)(3) (“The facility must have evidence that all alleged violations are thoroughly
investigated ....” (emphasis added)). I do not consider a factual inference of conduct
that violates the regulations to be a reasonable one that can defeat summary judgment.
Despite Petitioner’s attempt to color certain facts of this case, the material facts of what
happened after Resident 1’s allegation — the 7-3 LPN’s single question of the resident,
the 7-3 LPN’s failed attempt to contact the social worker, the questioning of CNA 5
regarding the number of staff assisting Resident |, and a statement from CNA R.L. that
Resident 1 did not seem agitated after her shower — remain undisputed.

b. Scratching Incident and Second Abuse Allegation by Resident 1 on
January 30, 2013.

Soon after lunch on January 30, 2013, at approximately 2:00 p.m., CNA 5 reported to the
7-3 LPN that Resident | scratched her. CMS Ex. 7 at 44. CNA 5 also reported that
Resident 1 had accused her and the 7-3 LPN of being “liars.” P. Ex. 3 at 2; P. Ex. 5 at 2.
The 7-3 LPN reported the scratching incident to the nursing supervisor. P. Ex.5 at 2. At
that time, she also reported Resident 1’s earlier allegation of being wrapped up and left in
the bathroom. CMS Ex. 10 at 12. The supervisor did not come to the unit to assess
Resident 1’s behavior or question CNA 5, but told the staff that she was “taking care of
something on another unit” and would be there when she finished. P. Ex. 6 at 1. Later
that afternoon, at approximately 3:15 p.m., a staff member found a large contusion (8cm
x 11cm) on Resident 1’s left posterior hand. Resident | said that a staff member, CNA 5,
said “I’ll show you what I can do” and twisted Resident 1’s arm after she refused to eat
lunch. CMS Ex. 10 at 3, 5,8, 13,17.

CNA 4, who discovered the contusion on Resident 1’s hand, immediately left the room
and notified the 7-3 LPN, who had overstayed her shift. CMS Ex. 10 at 5, 14,17. The
7-3 LPN assessed the contusion and notified the nursing supervisor, who then came to
Resident 1’s room, assessed the contusion, and questioned the resident. CMS Ex. 10 at
12,17. Neither the supervisor nor the 7-3 LPN attempted to question CNA 5 that day.
See CMS Ex. 18 (statement from CNA 5 dated January 31, 2013). While it is undisputed
that Petitioner’s staff psychologist assessed Resident | later that day for “more behavioral
issues,” there are no documented investigative measures related to the contusion for the
remainder of January 30, 2013. See CMS Ex. 7 at 56.” A staff member, the 7-3 LPN,
made a written statement about the contusion the following day, January 31,2013. In
addition, the staff performed an x-ray of Resident 1’s hand and wrist and her physician

7 The psychologist notes “more behavior issues,” but the Behavior Progress Notes do not
record any behavior problems involving altercations with staff. See CMS Ex. 7 at 56.
The record does not include evidence of any related behavior problems prior to January
30, 2013. Petitioner does not argue that the “more” behavior issues refers to Resident 1’s
earlier allegation on January 30, nor would that inference be a reasonable one as there is
no evidence in the record that such a referral was made after the first allegation.
evaluated her for further injury. CMS Ex. 10 at 16 (statement dated January 31, 2013);
CMS Ex. 10 at 8 (referring to x-ray and physician assessment, which occurred on January
31). The physician concluded that Resident 1’s bruise was “self-injury by patient.”*

P. Ex. 13 at 1. Staff also completed an undated “Accident Report.” CMS Ex. 10 at 8.

Petitioner asserts that the nursing supervisor “promptly proceeded to the resident’s room
to assess the resident, interviewed the resident, and completed an incident report. ... The
supervisor then took statements of all involved .... The next day the resident was further
assessed by the attending physician ....” P. Br. at 7-8 (emphasis added). Petitioner’s
description of events implies that the supervisor took several statements on January 30,
because the physician evaluation, “the next day,” was undisputedly on January 31, 2013.
See P. Ex. 13 at 1. But there is only one witness statement other than that of the
supervisor in the record about the bruise on Resident 1’s hand. That witness statement,
which Petitioner alleges was made the day of the incident, is actually dated January 31,
2013. See P. Ex. 5. So, the record belies Petitioner’s summary of the facts and the
supposed investigative actions. There is no record of a statement from Resident 1, the
victim of possible abuse. There is also no evidentiary support that the nursing supervisor
completed the Accident Report. She stated that “the nurse went back to measure the
bruise and complete the incident report.” CMS Ex. 10 at 13 (emphasis added). Overall,
Petitioner has not presented evidence to establish a genuine dispute about the actions of
its staff after Resident 1’s second abuse allegation on January 30.

c. Staff abuse of Resident 2 on February 3, 2013.

It is undisputed that on February 3, 2013, CNA 1, CNA 2, and CNA 3 provided care to
Resident 2, a 93-year-old female resident with severely impaired decision-making skills.
P. Ex. 10. Resident 2 began to yell out during her care. CMS Ex. 9 at 6-8. CNA | and
CNA 3 then watched CNA 2 place a pillow over the face of Resident 2. CNA | removed
the pillow, but CNA 2 put it back and pushed down in an effort to muffle the resident’s
yelling. Before the care was complete, CNA | and CNA 3 also observed CNA 2 poke
Resident 2’s vaginal area (over her diaper) in an attempt to stimulate Resident 2’s habit
of masturbating. CMS Ex. 9 at 6-7. CNA 3 attempted to report the incidents to her
supervisor, “but found her door closed.” P. Ex. 17 at 4. She did not attempt to locate
another supervisor, and neither CNA | nor CNA 3 reported the abusive incident that day.
CNA 3 reported the incident to Petitioner’s nursing educator the following day, February
4, 2013. CMS Ex. 9 at 4, 6, 8.

® There is evidence that suggests the bruise may not have been “self-injury.” See, e.g.,
CMS Ex. 12 at 5 (statement of surveyor describing her interview with Resident 1, who
had maintained for over 11 days that CNA 5 grabbed her, causing the bruise). For the
purposes of summary judgment, however, I accept that Resident 1’s bruise was the result
of “self-injury.”
10

Petitioner’s staff obtained statements from CNA 1| and CNA 3 and reviewed surveillance
footage of the area at the time of the incident. CMS Ex. 9 at 6-7. In their statements,
both CNA | and CNA 3 stated that the “3-11” LPN walked in during the incident, but did
not say anything to CNA 2. Instead, the 3-11 LPN told CNA 2 that she had another
resident to change.’ CMS Ex. 9 at 7. The staff also reported the incident to the local
police, Resident 2’s family, and her physician. The physician conducted an evaluation
and assessment of Resident 2. P. Ex. 7. Petitioner terminated CNA 2’s employment,
although it did not obtain a statement from her. Petitioner’s investigation concluded that
abuse was suspected. P. Ex. 7.

Petitioner does not dispute CMS’s description of the incident, nor has it presented any
evidence to demonstrate that the incident did not happen the way CMS’s evidence shows
it did. Instead, Petitioner presents evidence that the CNA had good references prior to
the facility’s hiring her, indicating her abuse of a resident was not foreseeable, but those
facts are not material to the outcome here. See P. Ex. 8 at 2. A facility cannot disown the
consequences of its employee’s abusive actions, even if those actions were not
foreseeable. See Gateway Nursing Ctr., DAB No. 2283, at 8 (2009). Therefore, the
CNA’s prior positive employment record, though not disputed, is not a material fact in
this case.

Ultimately, Petitioner’s coloring of the facts does not raise a genuine dispute of the
material facts. See Liberty Lobby, 477 U.S. at 249-250 (“If the evidence is merely
colorable . . . or is not significantly probative . .. summary judgment may be granted.”).
Petitioner’s factual assertions are not reasonable inferences of evidence in the record.
Therefore, Petitioner has not raised a genuine dispute of a material fact, and summary
judgment is appropriate.

2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(b) and
(c)(1), cited under Tag F-223, because one of Petitioner’s staff members
abused a resident, and because Petitioner did not take steps to ensure that
another resident was free from abuse after the potential for abuse arose.

A resident of a long-term care facility “has the right to be free from verbal, sexual,
physical, and mental abuse, corporal punishment, and involuntary seclusion.” 42 C.F.R.
§ 483.13(b). To protect that right, a facility cannot use any form of abuse, corporal
punishment, or involuntary seclusion when caring for a resident. Id. § 483.13(c)(1)(i).
“Abuse” is defined as “the willful infliction of injury, unreasonable confinement,
intimidation, or punishment with resulting physical harm, pain, or mental anguish.”

42 CFR. § 488.301. “Protecting and promoting a resident’s right to be free from abuse
necessarily obligates the facility to take reasonable steps to prevent abusive acts,

° The 3-11 LPN told the surveyor that she did not observe the abuse, which I accept as
true for purposes of summary judgment. See CMS Ex. 12.
11

regardless of their source.” Pinehurst Healthcare & Rehab. Ctr., DAB No. 2246, at 6
(2009) (quoting Western Care Mgmt. Corp., d/b/a Rehab Specialties Inn, DAB No. 1921,
at 12 (2004)) (internal quotation marks omitted). Actual abuse need not occur for a
facility to violate 42 C.F.R. § 483.13(b) and (c)(1)(i). See Holy Cross Vill. at Notre
Dame, Inc., DAB No. 2291, at 7 (2009) (citation omitted). “It is sufficient for CMS to
show that that the facility failed to protect residents from reasonably foreseeable risks of
abuse.” Id. (citing Western Care Mgmt., DAB No. 1921, at 15). However,
“considerations of foreseeability are inapposite when staff abuse has occurred,” and a
facility, which acts through its staff, cannot disown the consequence of the actions of its
employees. Gateway Nursing Ctr., DAB No. 2283, at 8 (emphasis added).

It is undisputed that, on February 3, 2013, CNA 2 held a pillow down over Resident 2’s
face after the resident began yelling out during care. CMS Ex. 9, at 4, 6, 7; P. Br. at 9.
According to CNA 3, who witnessed the event, CNA 2 held down the pillow over
Resident 2’s face because “she didn’t want to he[a]r [Resident 2] scream.” P. Ex. 10.
But CNA 2 did not stop there. She began poking Resident 2’s vaginal area in an attempt
to stimulate the resident’s habit of masturbating. CMS Ex. 9 at 6-8. CNA 2 explained to
CNA 1, who was new to the facility, about Resident 2’s habit, and stated that she was
“getting her started.” P. Ex. 10. CNA | also observed CNA 2’s abuse of Resident 2.
According to CNA 1’s statement during Petitioner’s internal investigation, CNA 2 poked
Resident’s vaginal area and was “asking her if she likes that.” CMS Ex. 9 at 7.

These undisputed facts establish that CNA 2 abused Resident 2 on February 3, 2013.
Holding a pillow over a resident’s head as retaliation for that resident’s screaming is
injurious, life-threatening, and is punishment that results in physical harm, pain, and
mental anguish. In addition, while CNA 2 was pressing on Resident 2’s vaginal area,
CNA 2 described to CNA | that she was “getting her started,” and asked Resident 2, who
was non-verbal, whether she “likes that,” a question that can only be understood as
mocking Resident 2’s incoherence and habit of masturbating. Thus, the only reasonable
inference from CNA 2’s behavior and contemporaneous comments is that she intended to
humiliate Resident 2, which, regardless of Resident 2’s cognitive status, may be deemed
likely to cause her mental anguish. See 59 Fed. Reg. 56,116, 56,130 (Nov. 10, 1994)
(“Our obligation is to protect the health and safety of every resident, including those that
are incapable of perception or are unable to express themselves. This presumes that
instances of abuse of any resident, whether cognizant or not, cause physical harm, pain,
or mental anguish.”). CNA 2’s abuse of Resident 2 violates the regulatory requirement to
protect a resident’s right to be free from abuse and to prohibit staff abuse of residents.

42 C.F.R. § 483.13(b), (c)(1). As noted above, whether the abuse was foreseeable
through prior work history or behavior is not relevant when a staff member perpetrates
the abuse. Gateway Nursing Ctr., DAB No. 2283, at 8.

12

With regard to Resident 1, Petitioner’s staff should have known that there was a potential
for abuse after she made the first allegation of abuse against CNA 5 and after the incident
at lunchtime when she accused staff members of being liars and then scratched CNA 5.
At that point, staff should have recognized the escalating tension between Resident 1 and
CNA 5, but nothing was done to address it. The escalating tension resulted in a potential
for abuse because it could have caused more physical altercations if Resident | continued
to believe that CNA 5 abused her and then lied about it. She had already demonstrated
aggressive behavior and refused to eat when CNA 5 brought her lunch. Petitioner should
have taken reasonable steps following Resident 1’s altercation with CNA 5 to address
this growing potential for abuse. However, staff ignored the issue until Resident 1
presented with a large bruise on her hand. While the facility later determined that the
injury to Resident 1’s hand was self-inflicted, Resident 1 immediately and consistently
blamed CNA 5. Staff did not interview CNA 5 that day, nor did staff obtain a statement
or any additional information about the alleged incidents from Resident 1.

In Honey Grove Nursing Center, DAB No. 2570 (2014), a noncompliance was affirmed
when the facility took no steps to address a resident’s escalating behavioral problems.
See DAB No. 2570, at 5-6. Ultimately, a male staff member engaged in a physical
altercation with the resident, who had previously shown aggression towards male staff
members. Honey Grove Nursing Center upheld the administrative law judge’s finding
that the omission of any steps to address that escalating tension between the resident and
male staff members demonstrated a violation of the regulatory standard. DAB No. 2570,
at 5. Similarly, Petitioner overlooked the escalating tension between Resident 1 and
CNA 5, which included a physical altercation, but took no steps to address it. Thus,
Petitioner did not comply with the regulatory requirement to keep residents free from
abuse because it did not take any meaningful steps to protect Resident | (for example, by
removing CNA 5 from her care to avoid confrontation) after she alleged that CNA 5 had
left her in the bathroom that morning and after Resident | scratched CNA 5 following an
altercation over her lunch. See Western Care Mgmt., DAB No. 1921 (2004) (“The goal
of section 483.13(b) is to keep residents free from abuse. This goal cannot be achieved if
a facility could be found in compliance even though it failed to take reasonable steps to
protect residents from potentially injurious acts which it knew or should have known
might occur and which might be willful . . ..”).

3. Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(c), cited
under Tag F-226, because Petitioner did not implement its written policies
and procedures that prohibit mistreatment, neglect, and abuse of residents.

A facility must develop and implement written policies and procedures that prohibit
mistreatment, neglect, and abuse of residents and misappropriation of resident property.
42 C.F.R. § 483.13(c). One instance of abuse or neglect is generally not sufficient to
establish that the facility did not implement its anti-abuse policy. The goal of section
483.13(c) is to ensure a facility adopts effective anti-abuse and anti-neglect policies, “not
13

targeting isolated events.” Emerald Oaks, DAB No. 1800, at 18 (2001). However,
multiple instances of abuse, or other examples where a facility’s staff did not carry out its
anti-abuse policy “support a reasonable inference that a facility failed to develop or
implement policies and procedures” that prohibit abuse. See Dumas Nursing & Rehab.,
L.P., DAB No. 2347, at 15 (2010) (discussing facility anti-neglect policies under

42 CFR. § 483.13(c)). A facility does not implement its anti-abuse policy if the
circumstances surrounding each instance of abuse or alleged abuse demonstrate an
“underlying breakdown” of the implementation of that anti-abuse policy. See Oceanside
Nursing & Rehab. Ctr., DAB No. 2382, at 11 (2011) (citing Columbus Nursing & Rehab.
Ctr., DAB No. 2247, at 27 (2009)).

Here, the facility has two relevant policies: “Abuse Prohibition” and “Recognizing and
Reporting Signs and Symptoms of Abuse/Neglect.” CMS does not argue that the
substance of the policies is improper, but that Petitioner did not implement those policies.
Petitioner’s Abuse Prohibition policy states, in relevant part: “This facility will do
everything in its control to prevent occurrences, and will conduct thorough investigations
for all cases of alleged abuse.” P. Ex. | at 19. The policy does not define a “thorough
investigation.” Section 5 of the policy states that Petitioner will “investigate different
types of incidents [and] identify the staff member responsible for the initial reporting,
investigation of alleged violations[,] and reporting of results to the proper authorities.”

P. Ex. 1 at 20. In addition, Petitioner’s Recognizing and Reporting Signs and Symptoms
of Abuse/Neglect policy provides, in relevant part, that “all personnel are to report any
signs and symptoms of abuse/neglect to their supervisor, the director of Nursing
Services[,] or an Administrator immediately.” P. Ex. 1 at 22.

The undisputed facts of this case demonstrate that Petitioner’s staff members did not
implement the relevant facility policies because staff members: (1) did not conduct a
thorough investigation of the alleged abuse against Resident 1 that occurred in the shower
on January 30, 2013; (2) did not identify an individual who would be responsible for
investigating that allegation of abuse; (3) did not immediately notify a supervisor of the
first abuse allegation; and (4) did not immediately notify a supervisor of the abuse by a
staff member against Resident 2. All of these instances demonstrate a systemic
breakdown in the implementation of Petitioner’s abuse prohibition and prevention
policies.

The 7-3 LPN admitted that she did not investigate Resident 1’s allegation of being left in
the bathroom on January 30, 2013. CMS Ex. 12 at § 19. Even absent this admission, the
evidence shows that there was no investigation, let alone a thorough one, into the alleged
abuse and neglect against Resident 1 in a bathroom. Despite having the opportunity to do
so, the 7-3 LPN did not directly ask the alleged perpetrator, CNA 5, about the incident.
The 7-3 LPN did not assess Resident | physically or ask her follow-up questions other
than what day the incident occurred. Indeed, the 7-3 LPN admitted that she could not
understand what Resident | was saying, yet there is no evidence that shows she took any

14

effective steps to clarify what Resident | had alleged. See CMS Ex. 10 at 12. It is
unclear why the 7-3 LPN only asked Resident | about the date and ceased further inquiry
when she responded “the 31st.” Petitioner’s policy does not vest any staff member with
the discretion to move forward with an investigation into alleged abuse or not. All such
incidents must be investigated and reported immediately. P. Ex. 1 at 20. The 7-3 LPN
did not document any findings or conclusions about the incident, contrary to a separate
regulatory requirement. See 42 C.F.R. § 483.13(c)(3). There is no evidence that the 7-3
LPN tried to report the incident to a supervisor after being unable to reach the social
worker. The 7-3 LPN did not successfully report the abuse allegation until 2:00 p.m.,
nearly five hours after the allegation, and that report was only made in tandem with a
report of a separate incident that involved a physical altercation. Neither the nursing
supervisor nor the 7-3 LPN assessed or interviewed Resident 1 at that time, neither made
any finding about the incident, and neither obtained any additional information about the
allegation. Petitioner’s staff did not identify either the 7-3 LPN or the nursing supervisor
as the individual responsible for reporting the incident, investigating it, or reporting the
findings to the appropriate authorities. Petitioner now argues that the 7-3 LPN was
responsible for investigating the incident (see P. Br. at 13-14), yet there is no
contemporaneous documentation identifying the 7-3 LPN as such. Most importantly,
there were no formal findings about the abuse allegation, which renders any claim of a
thorough investigation to be unreasonable. Thus, with regard to the first instance of
alleged abuse on January 30, staff did not implement the Abuse Prohibition policy to
identify the individual responsible for investigating the allegation and investigate the
allegation thoroughly. Certainly, an investigation that lacks contemporaneous statements
from the alleged perpetrator, contains no contemporaneous assessment of the alleged
victim, has no witness statements that specifically address the allegation, and has no
formal conclusion, is not a thorough one. Staff also did not implement the Recognizing
and Reporting Signs and Symptoms of Abuse/Neglect policy to report the allegation
immediately to a supervisor, nursing supervisor, or administrator. In the nearly five
hours after the incident, the 7-3 LPN only once attempted to contact the social worker,
who was not identified as a supervisor.

In addition, the nursing staff who observed CNA 2 hold a pillow over Resident 2’s face
waited until the following day to report the abuse. The fact that the staff members were
recently hired or threatened by CNA 2 has no relevance — they were still required to
comply with the facility’s policy to report the incident immediately. P. Ex. | at 22.
Neither CNA did so. Accepting as true that CNA 3 attempted to report the incident to her
supervisor but found her door closed, that single attempt does not explain why CNA 3 did
not immediately report the abuse to the nursing supervisor or facility administrator,
which the facility policy requires. Petitioner points out that CNA | and CNA 3 ended
their shifts only 15 minutes after the incident. But Petitioner’s policy does not carve out
an end-of-shift exception to reporting abuse immediately. Even if I accept that it was
reasonable for CNA 1| and CNA 3 to ignore facility policy because their shifts ended,
Petitioner overlooks that only CNA 3 reported the incident; CNA | did not. Instead,
15

Petitioner’s staff approached CNA | about it. CNA 1’s failure to report the incident is
yet another example of the failure to implement the facility’s policies. Moreover,
CNA 3’s comfort level with reporting abuse and whether she felt threatened by the
perpetrator of abuse is irrelevant to whether she followed facility written policies about
reporting abuse. Protecting residents from abuse cannot happen if those required to
report abusive behavior are too intimidated or too inconvenienced to do so.

The undisputed evidence shows repeated instances of facility staff not implementing the
facility’s policies, which, in turn, sufficiently demonstrates a systemic breakdown of the
implementation of the relevant abuse prohibition policies and procedures. Petitioner,
therefore, had not effectively implemented those policies and was not in substantial
compliance with 42 C.F.R. § 483.13(c).

4. The determination that Petitioner’s noncompliance posed immediate
jeopardy was not clearly erroneous.

A determination of “immediate jeopardy” must be affirmed unless Petitioner shows that it
is clearly erroneous. 42 C.F.R. § 498.60(c)(2). The Board directs that the “clearly
erroneous” standard imposes on facilities a heavy burden to show no immediate jeopardy
and has sustained determinations of immediate jeopardy where CMS presented evidence
“from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” See
Barbourville Nursing Home, DAB No. 1962, at 11 (2005) (citing Florence Park Care
Ctr., DAB No. 1931, at 27-28 (2004)). The regulation does not require that a resident
actually be harmed. See Lakeport Skilled Nursing Ctr., DAB No. 2435, at 8 (2012). As
noted above, “immediate jeopardy” is “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.” 42 C.F.R. § 488.301.

Here, the facility did not respond in any meaningful way to Resident 1’s initial abuse
allegation on January 30, 2013. Staff did not immediately report the allegation to the
nursing supervisor or administrator, nor did staff take steps to investigate the allegation
further, contrary to facility policy. Even if staff believed that the allegation was false,
they needed to follow Petitioner’s written policies by beginning an investigation and
making a formal conclusion. P. Ex. | at 19-20. By not following its own policies in
reporting or investigating a serious abuse allegation, one may reasonably conclude that
the facility was likely to cause serious injury to a resident by failing to protect residents
from abusive situations. In addition, the staff took no steps to address the apparent
problem that Resident | was having with CNA 5, and ignored the issue until Resident |
appeared with a bruise on her hand. While the bruise was possibly self-inflicted, the fact
that Resident 1 had to sustain an actual injury before the facility initiated any type of
investigation amply supports an immediate jeopardy finding.

16

In addition, there is little doubt that holding a pillow over a resident’s head and assaulting
her by poking her vaginal area posed immediate jeopardy to resident health and safety. It
likely caused serious injury — physically and mentally — to Resident 2 to have to endure a
staff member punishing her for yelling out during care. Moreover, it is beyond dispute
that holding a pillow down over an elderly woman’s head is more than likely to cause
serious injury or death.

Petitioner argues that any noncompliance did not pose immediate jeopardy because its
staffs conduct did not result in actual harm. P. Br. at 20,22. Petitioner also points out
that the evidence shows that Resident 1’s first abuse allegation could not have happened.
P. Br. at 21. As already noted, actual harm to a resident is not required to establish
immediate jeopardy. Further, Petitioner does not address how its failure to report or
investigate an abuse allegation immediately and thoroughly was unlikely to cause serious
injury to a resident, especially when a resident had incurred physical and emotional abuse
at the hands of an employee and another resident had become more physically aggressive
with a specific CNA over the course of a day. Petitioner’s has not met its “heavy burden”
of showing that the immediate jeopardy determination was clearly erroneous.

5. The CMP imposed is reasonable in duration and amount.

An administrative law judge must consider several factors de novo when determining if
the amount of a CMP is reasonable: (1) the facility’s history of noncompliance; (2) the
facility’s financial condition, i.e., its ability to pay the CMP; (3) the severity and scope of
the noncompliance, the “relationship of the one deficiency to other deficiencies resulting
in noncompliance,” and the facility’s prior history of noncompliance; and (4) the
facility’s degree of culpability, which includes neglect, indifference, or disregard for
resident care, comfort or safety. 42 C.F.R. §§ 488.438(f), 488.404(b), (c). Unless a
facility contends that a particular regulatory factor does not support the CMP amount, the
administrative law judge must sustain it. Coquina Ctr., DAB No. 1860, at 32 (2002).

CMS imposed a $5,300 per day CMP from January 30, 2013 through February 11, 2013,
for a total CMP of $68,900. CMS may impose an enforcement remedy against a facility
for as long as the facility is not in substantial compliance with participation requirements.
42 CFR. § 488.430(a). Petitioner bears the burden of persuasion with regard to the
duration of its noncompliance. Owensboro Place & Rehab. Ctr., DAB No. 2397 at 12-13
(2011). Petitioner was not in substantial compliance with participation requirements
beginning on January 30, 2013, after staff did not investigate Resident 1’s first allegation
of abuse, and ending February 12, 2013, when Petitioner implemented an acceptable plan
of correction. Petitioner has not offered any evidence or argument that the period of
noncompliance was shorter than what CMS cited. Accordingly, I find the duration of the
CMP is reasonable.

17

CMS has not offered any evidence of Petitioner’s history of noncompliance. Petitioner
has not offered any financial information. The noncompliance here posed immediate
jeopardy to the health and safety of residents, and included appalling conduct against an
elderly and dependent resident. Accordingly, a middle-range CMP is justified based on
the severity of the noncompliance. The facility was highly culpable, as well. Its own
staff member seriously abused a resident, and other staff appeared ill-informed about how
to respond properly to an abuse allegation. Petitioner is responsible for the acts of its
employees and cannot escape its significant culpability by blaming a single, rogue employee.
See Gateway Nursing Ctr., DAB No. 2283, at 8. Moreover, while Petitioner points to
training sessions it held for its staff, it cannot disown or disavow the conduct of its staff
merely because it reflects poorly on Petitioner as a whole. Who Petitioner hires as its
staff and places in direct contact with its residents reflects the overall care and services it
provides. See Life Care Ctr. of Gwinnett, DAB No. 2240, at 13 n.9 (2009). Thus, the
middle-range CMP imposed here is very reasonable in light of the seriousness of the
noncompliance and Petitioner’s high culpability.

IV. Conclusion

For the foregoing reasons, the undisputed material facts establish that Petitioner was not
in substantial compliance with 42 C.F.R. § 483.13(b), (c), and (c)(1), the state agency’s
determination of immediate jeopardy is not clearly erroneous, and the penalty imposed is
reasonable. Therefore, I grant summary judgment in favor of CMS.

/s/
Scott Anderson
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division

Healthy Point Medical Care, PC
(NPI: 1881948313 / PTAN: A100079019),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-15-1614
Decision No. CR4258
Date: September 29, 2015
DECISION

The Medicare enrollment and billing privileges of Petitioner, Healthy Point Medical
Care, PC, are revoked pursuant to 42 C.F.R. § 424.535(a)(9)! because Petitioner, a
physician practitioner organization, failed to report a change in practice location within
30 days of the change as required by 42 C.F.R. § 424.516(d)(1)(iii). The effective date of
the revocation is January 14, 2015, 30 days after National Government Services (NGS), a
Medicare administrative contractor for the Centers for Medicare & Medicaid Services
(CMS), notified Petitioner of the factual and legal basis for the revocation. 42 C.F.R.

§ 424.535(g). CMS has imposed a two-year bar on Petitioner’s re-enrollment in the
Medicare program, which is permissible under the applicable regulations. 42 C.F.R.

§ 424.545(c).

' Citations are to the 2014 revision of the Code of Federal Regulations (C.F.R.), unless
otherwise indicated.
I. Background

Petitioner was enrolled in the Medicare program as a physician group practice in
Brooklyn, New York. CMS Exhibit (CMS Ex.) 1 at 8; CMS Ex. 3; Petitioner Exhibits
(P. Exs.) 1,7. NGS notified Petitioner by letter dated December 15, 2014, that
Petitioner’s Medicare enrollment and billing privileges were revoked effective January
14, 2015, pursuant to 42 C.FR. § 424.535(a)(9). CMS Ex. | at 10-11. NGS cited as
grounds for revocation that an on-site inspection of Petitioner’s location at 2769 Coney
Island Avenue 2, Brooklyn, New York 11235, on September 23, 2014, revealed that
Petitioner was no longer operating a practice at that location; an unrelated business was
operating at that location; and Petitioner failed to notify CMS within 30 days of ending
its practice at that location. CMS Ex. | at 10. NGS also notified Petitioner that it was
subject to a two-year bar to re-enrollment pursuant to 42 C.F.R. § 424.535(c). CMS Ex.
lat ll.

Petitioner requested reconsideration. On January 14, 2015, a contractor hearing officer
issued a reconsidered determination in which she upheld the revocation pursuant to

42 CFR. § 424.535(a)(9). CMS Ex. | at 1-3. On February 24, 2015, Petitioner
requested a hearing before an administrative law judge (ALJ). On March 23, 2015, the
case was assigned to me for hearing and decision, and an Acknowledgement and
Prehearing Order (Prehearing Order) was issued at my direction.

On April 21,2015, CMS filed a motion for summary judgment and supporting brief
(CMS Br.), with CMS Exs. | through 4. On May 22, 2015, Petitioner filed an opposition
to CMS’s motion (P. Br.), with P. Exs. | through 7. On June 3, 2015, CMS filed a reply
brief and on June 10,2015, CMS filed an amended” reply (CMS Reply). The parties
have not objected to my consideration of CMS Exs. | through 4 and P. Exs. | through 7,
and they are admitted.

II. Discussion

A. Applicable Law
Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the
supplementary medical insurance benefits program for the aged and disabled known as
Medicare Part B. Administration of the Part B program is through contractors, such as

NGS. Act § 1842(a) (42 U.S.C. § 1395u(a)). Payment under the program for services
rendered to Medicare-eligible beneficiaries may only be made to eligible providers of

> The CMS motion for leave to file the amended reply is granted.
services and suppliers. Act §§ 1834()(1) (42 U.S.C. § 1395m(j)(1)), 1835(a) (42 U.S.C.
§ 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)). Petitioner, a physician
organization, is a supplier. 42 C.F.R. § 410.41.

The Act requires the Secretary of Health and Human Services (Secretary) to issue
regulations that establish a process for the enrollment in Medicare of providers and
suppliers, including the right to a hearing and judicial review of certain enrollment
determinations, such as revocation of enrollment and billing privileges. Act § 1866(j)
(42 USC. § 1395cc(j)). Pursuant to 42 C.F.R. § 424.505, a supplier such as Petitioner
must be enrolled in the Medicare program and be issued a billing number to have billing
privileges and to be eligible to receive payment for services rendered to a Medicare-
eligible beneficiary.

Suppliers must submit complete, accurate, and truthful responses to all information
requested in the enrollment application. 42 C.F.R. § 424.510(d)(2). Pursuant to 42
C.F.R. §§ 424.502 and 424.510(d)(3), a supplier’s application to enroll in Medicare must
be signed by an authorized official, i.e., one with authority to bind the provider or
supplier both legally and financially. The regulation provides that the signature attests to
the accuracy of information provided in the application. The signature also attests to the
fact that the provider or supplier is aware of and abides by all applicable statutes,
regulations, and program instructions. 42 C.F.R. § 424.510(d)(3). Suppliers must meet
basic requirements depending on their type of service. 42 C.F.R. §§ 424.505, 424.516,
424.517. Suppliers are also subject to additional screening requirements depending upon
the type of service they provide. 42 C.F.R. § 424.518.

The Secretary has delegated authority to CMS or its Medicare contractor to revoke an
enrolled supplier’s Medicare enrollment and billing privileges and any supplier
agreement for any of the reasons listed in 42 C.F.R. § 424.535(a). Pursuant to 42 C.F.R.
§ 424.535(a)(9), CMS may revoke the enrollment and billing privileges of physician

> A “supplier” furnishes services under Medicare and includes physicians or other
practitioners and facilities that are not included within the definition of the phrase
“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, and a fund as described in sections 1814(g) (42 U.S.C.

§ 1395f(g)) and 1835(e) (42 U.S.C. § 1395n(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.
practitioner organizations, such as Petitioner, if a change in practice location is not
reported within 30 days as required by 42 C.F.R. § 424.516(d)(1)(iii).

If CMS revokes a supplier’s Medicare billing privileges for not complying with
enrollment requirements, such as those found at 42 C.F.R. § 424.516, then the revocation
is effective 30 days after CMS or its contractor mails notice of its determination to the
supplier. 42 C.F.R. § 424.535(g). After a supplier’s Medicare enrollment and billing
privileges are revoked, the supplier is barred from re-enrolling in the Medicare program
for one to three years. 42 C.F.R. § 424.535(c).

A supplier whose enrollment and billing privileges have been revoked may request
reconsideration and review as provided by 42 C.F R. pt. 498. A supplier submits a
written request for reconsideration to CMS or its contractor. 42 C.F.R. § 498.22(a).
CMS or its contractor must give notice of its reconsidered determination to the supplier,
giving the reasons for its determination, specifying the conditions or requirements the
supplier failed to meet, and advising the supplier of its right to an ALJ hearing. 42 C.F.R.
§ 498.25. If the decision on reconsideration is unfavorable to the supplier, the supplier
has the right to request a hearing by an ALJ and further review by the Departmental
Appeals Board (the Board). Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R.

§§ 424.545, 498.3(b)(17), 498.5. A hearing on the record, also known as an oral hearing,
is required under the Act. Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51
(6th Cir. 2004). The supplier bears the burden to demonstrate that it meets enrollment
requirements with documents and records. 42 C.F.R. § 424.545(c).

B. Issues
Whether summary judgment is appropriate*; and

Whether there was a basis for the revocation of Petitioner’s billing
privileges and Medicare enrollment.

C. Findings of Fact, Conclusions of Law, and Analysis

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

* Petitioner purports to waive an oral hearing in its brief. P. Br. at 9. However,
Petitioner states that it desires a decision based on the testimony, among other things.
Realizing Petitioner’s non-attorney representative may be unaware of the differing
standards applied on summary judgment and a decision on the merits, I elect to resolve
this case applying the more restrictive summary judgment procedures and standard.
. Summary judgment is appropriate.

. Petitioner did not file a CMS-855 with the CMS contractor to
provide notice of a change in Petitioner’s practice location within 30
days of the change as required by 42 C.F R. § 424.516(d)(1)(iii).

. Petitioner was not in compliance with 42 C.F.R. § 424.516(d)(1)(iii)
because an on-site review determined Petitioner stopped operating
at a practice location on file with CMS, but Petitioner did not notify

the CMS contractor of that change within 30 days as required by

the regulation.

4. There is a basis for revocation of Petitioner’s enrollment and billing
privileges pursuant to 42 C.F.R. § 424.535(a)(9) for failure to
comply with the Medicare enrollment requirement established by

42 CFR. § 424.516(d)(1)(iii).

a. Facts

The material facts that establish a basis to revoke Petitioner’s Medicare billing privileges

pursuant to 42 C.F.R. § 424.535(a)(9) are not disputed.

Petitioner was enrolled in the Medicare program as a physician’s organization effective
November 7, 2012. Petitioner had at various times as many as three practice locations on
file with CMS: 1386 Flatbush Avenue, Brooklyn, New York 11210; 2769 Coney Island

Avenue 2, Brooklyn, New York 11235; and 157 Greenpoint Avenue 1, Broo

York 11222. P. Ex. 7; CMS Ex. 3.

On September 23, 2014, a CMS inspector visited Petitioner’s 2769 Coney Isl

lyn, New

and Avenue

2, Brooklyn, New York address, which CMS records listed as one of Petitioner’s practice

locations. The inspector reported that Petitioner was no longer operating at tl

CMS Ex. | at 6-9.

at address.

NGS notified Petitioner by letter dated December 15, 2014, that Petitioner’s Medicare
enrollment and billing privileges were revoked effective January 14, 2015, pursuant to

42 CFR. § 424.535(a)(9), because Petitioner did not notify NGS within 30

closing its 2769 Coney Island Avenue 2 practice location. CMS Ex. | at 10-

4 at 1; P. Ex.7.

lays of
1; CMS Ex.

Petitioner submitted a Corrective Action Plan (CAP) received by NGS on January 5,
2015. CMS Ex. 4 at 1. Petitioner included as part of its CAP a CMS-855B dated
December 30, 2014. CMS Ex. 4 at 6-12. The CMS-855B was completed to report the
deletion of Petitioner’s practice location at 2769 Coney Island Avenue 2 effective July 1,
2014. CMS Ex. 4 at 7, 10. Petitioner states in the CAP that patients were no longer seen
at that location beginning in July 2014 and that there were no Medicare claims from that
location after that date. CMS Ex. 4 at 2.

On February 19, 2015, Petitioner submitted another CMS-855B to NGS for the purpose
of reporting the closing of that practice location at 2769 Coney Island Avenue 2 effective
July 1, 2014. P. Ex. 4 at 1-4,8, 10.

Petitioner submitted an affidavit executed by Marina Morgulis, Petitioner’s office
manager, and non-attorney representative in this case. Ms. Morgulis states that it was her
fault that a CMS-855B was not sent deleting “a non-operational facility.” P. Ex. 2. She
admits that she was told that the facility was no longer operational on about October 15,
2014, which was after the September 23, 2014 site visit had occurred. She states that the
failure to submit the CMS-855B was simply a clerical error. P. Ex. 2.

Petitioner states in the request for hearing that the failure to report within 30 days that the
2769 Coney Island Avenue 2 practice location was no longer being used was a clerical
error. P. Ex. 6.

b. Analysis

CMS requests summary judgment in this case. A provider or supplier denied enrollment
in Medicare or whose enrollment has been revoked has a right to a hearing and judicial
review pursuant to section 1866(h)(1) and (j) of the Act and 42 C.F.R. §§ 498.3(b)(1),
(5), (6), (8), (15), (17), 498.5. A hearing on the record, also known as an oral hearing, is
required under the Act. Act §§ 205(b), 1866 (h)(1) and (j)(8); Crestview, 373 F.3d at
748-51. A party may waive appearance at an oral hearing but must do so affirmatively in
writing. 42 C.F.R. § 498.66. I have not accepted Petitioner’s waiver and proceed to
decide this case on summary judgment.

Summary judgment is not automatic upon request but is limited to certain specific
conditions. The Secretary’s regulations that establish the procedure to be followed in
adjudicating Petitioner’s case are at 42 C.F.R. pt. 498. 42 C.F.R. §§ 405.800, 405.803(a),
424.545(a), 498.3(b)(5), (6), (15), (17). The regulations do not establish a summary
judgment procedure or recognize such a procedure. However, the Board has long
accepted that summary judgment is an acceptable procedural device in cases adjudicated
pursuant to 42 C.F R. pt. 498. See, e.g., Ill. Knights Templar Home, DAB No. 2274 at 3-
4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr.,
DAB No. 1628 at 3 (1997). The Board also has recognized that the Federal Rules of
Civil Procedure (Fed. R. Civ. Pro.) do not apply in administrative adjudications such as
this, but the Board has accepted that Fed. R. Civ. Pro. 56 and related cases provide useful
guidance for determining whether summary judgment is appropriate. Furthermore, a
summary judgment procedure was adopted as a matter of judicial economy within my
authority to regulate the course of proceedings and made available to the parties in the
litigation of this case by my Prehearing Order. The parties were given notice by the
Prehearing Order that summary judgment is an available procedural device and that the
law as it has developed related to Fed. R. Civ. Pro. 56 will be applied. Prehearing Order
ILG.

Summary judgment is appropriate when there is no genuine dispute as to any material
fact for adjudication and/or the moving party is entitled to judgment as a matter of law.
The party requesting summary judgment bears the burden of showing that there are no
genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of
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. Generally, the non-movant may
not defeat an adequately supported summary judgment motion by relying upon the
denials in its pleadings or briefs but must furnish evidence of a dispute concerning a
material fact, i.e., a fact that would affect the outcome of the case if proven. Mission
Hosp. Reg’l Med. Ctr., DAB No. 2459 at 4 (2012) (and cases cited therein); Experts Are
Us, Inc., DAB No. 2452 at 4 (2012) (and cases cited therein); Senior Rehab. & Skilled
Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The standard for deciding a case on summary judgment and an ALJ’s decision-making in
deciding a summary judgment motion differ from those used in resolving a case after a
hearing. On summary judgment, the ALJ does not make credibility determinations,
weigh the evidence, or decide which inferences to draw from the evidence, as would be
done when finding facts after a hearing on the record. Rather, on summary judgment, the
ALJ construes the evidence in a light most favorable to the non-movant and avoids
deciding which version of the facts is more likely true. Holy Cross Vill. at Notre Dame,
Inc., DAB No. 2291 at 5 (2009). The Board also has recognized that on summary
judgment it is appropriate for the ALJ to consider whether a rational trier of fact could
find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.
Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010). The Secretary has not
provided in 42 C.F.R. pt. 498, for the allocation of the burden of persuasion or the
quantum of evidence required to satisfy the burden. However, the Board has provided
some persuasive analysis regarding the allocation of the burden of persuasion in cases
subject to 42 C.F.R. pt. 498. Batavia Nursing & Conv. Ctr., DAB No. 1904 (2004), aff’d,
Batavia Nursing & Conv. Ctr. v. Thompson, 129 Fed. App’x 181 (6th Cir. 2005).

In this case, the reconsidered determination cited 42 C.F.R. § 424.535(a)(9) as the basis
for revocation of Petitioner’s Medicare enrollment and billing privileges. CMS requests
summary judgment in its favor, arguing that Petitioner failed to report within 30 days, as
required by 42 C.F.R. § 424.516(d)(1)(iii), that it was no longer operating its practice
location at 2769 Coney Island Avenue 2, Brooklyn, New York. CMS Br. at 7-10; CMS
Reply.

I conclude summary judgment is appropriate in this case as there is no genuine dispute as
to a material fact necessary to resolve the issue before me, that is, whether or not there
was a basis for revocation of Petitioner’s enrollment and billing privileges. Petitioner
does not deny that beginning about July 1, 2014, patients were no longer being seen at
2769 Coney Island Avenue 2, Brooklyn, New York. Petitioner admits that no Medicare
claims were filed based on treatment at the 2769 Coney Island Avenue 2 address.
Petitioner does not deny the findings of the CMS inspector based on the September 23,
2014 visit to 2769 Coney Island Avenue 2, which were that Petitioner no longer had a
practice location at that address. Petitioner also does not deny that it did not notify CMS
or NGS prior to December 30, 2014, of the fact that it was no longer using 2769 Coney
Island Avenue 2 as a practice location in July 2014. Petitioner has identified no material
fact that is in dispute that could affect the resolution of the issue. All that is required is to
apply the law to the undisputed facts and summary judgment is appropriate.

“Practice location” is not specifically defined in 42 C.F.R. pt. 424. However the term
“operational” is defined and that definition describes a “qualified physical practice
location” as one that is:

open to the public for the purpose of providing health care
related services, is prepared to submit valid Medicare claims,
and is properly staffed, equipped, and stocked (as applicable,
based on the type of facility or organization, provider or
supplier specialty, or the services or items being rendered), to
furnish these items or services.

42 CFR. § 424.502. Petitioner offers no evidence that after July 2014, it had a practice
location at 2769 Coney Island Avenue 2 that fit the description of a practice location
under 42 CFR. § 424.502.

Petitioner argues that there was no move or change to another location involved.
Petitioner argues that about June 2014, a decision was made to move medical records
from the 2769 Coney Island Avenue 2 location to another of Petitioner’s practice
locations for the convenience of CMS auditors. Petitioner states that it did not “make a
decision at that time whether or not it [would] resume its practice at 2769 Coney Island
Avenue floor #2 Brooklyn NY 11235, which temporarily stopped seeing patients as of
July 1, 2014.” P. Br. 2 (emphasis in original). Rather than identifying a genuine dispute
of material fact, Petitioner concedes that patients were not being seen at 2769 Coney
Island Avenue beginning about July 1, 2014. Petitioner, therefore, concedes that the
2769 Coney Island location was not open to the public for the delivery of health care
services and that it was no longer a practice location. Petitioner argues that it made a
“definite decision” not to resume seeing patients at 2769 Coney Island Avenue 2 on about
October 14 or 15,2014. P. Br. at 3,5. Even if I accept that fact as true, Petitioner still
concedes it failed to file a notice of change in practice location within 30 days as required
by 42 C.F.R. § 424.416(d)(1)(iii). Petitioner does not dispute that the first notice to NGS
and CMS was when it filed a CMS-855R on December 30, 2014, more than 30 days after
it made the decision to permanently cease operating the practice location in question.

P. Br. at 4-6.

Petitioner argues that the two-year bar to re-enrollment is unfair. P. Br. at 4. CMS is
authorized to impose a bar to re-enrollment of one to three years. 42 C.F.R. § 424.535(c).
The regulations grant Petitioner no right to review of the CMS decision as to the
appropriate period of the bar, and I have no authority to conduct review of that issue. 42
CFR. § 424.545.

Petitioner’s arguments may be construed to be a plea for equitable relief. However, I
have no authority to grant equitable relief. US Ultrasound, DAB No. 2302 at 8 (2010),
(“[nJeither the ALJ nor the Board is authorized to provide equitable relief by reimbursing
or enrolling a supplier who does not meet statutory or regulatory requirements.”).
Furthermore, I am bound to follow the Act and regulations, and I have no authority to
declare statutes or regulations invalid or ultra vires. 1866ICPayday.com, L.L.C., DAB
No. 2289 at 14 (2009) (“[a]n ALJ is bound by applicable laws and regulations and may
not invalidate either a law or regulation on any ground.”).

Petitioner is also not entitled to relief if I construe its arguments to be that the government
should be estopped from revoking Petitioner’s enrollment and billing privileges. It is
well-established that: (1) estoppel cannot be the basis to require payment of funds from
the federal fisc; (2) estoppel cannot lie against the government, if at all, absent a showing
of affirmative misconduct, such as fraud; and (3) I am not authorized to order payment
from the public fisc contrary to law based on equitable grounds. It is well-settled that
those who deal with the government are expected to know the law and may not rely on
the conduct of government agents contrary to law. See, e.g., Office of Pers. Mgmt. v.
Richmond, 496 U.S. 414 (1990); Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc.,
467 U.S. 51 (1984); Oklahoma Heart Hosp., DAB No. 2183 at 16 (2008); Wade
Pediatrics, DAB No. 2153 at 22 n.9 (2008), aff'd, 567 F.3d 1202 (10th Cir. 2009); US
Ultrasound, DAB No. 2302 at 8. Here, Petitioner has not alleged affirmative misconduct
on behalf of the CMS contractor of the type that could be considered grounds for
estoppel, and any argument that amounts to a claim of equitable estoppel must be
rejected.

III. Conclusion

For the foregoing reasons, I conclude that Petitioner’s Medicare enrollment and billing
privileges are properly revoked effective January 14, 2015, pursuant to 42 C.F.R.
10

§ 424.535(a)(9) because Petitioner failed to report within 30 days as required by

42 CFR. § 424.516(d)(1)(iii), that it was no longer operating a practice location at 2769
Coney Island Avenue 2. A two-year bar to enrollment is within the authorized range and
not subject to review.

/s/
Keith W. Sickendick
Administrative Law Judge