Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:

Apollo Health & Rehabilitation Center, Date: June 20, 2007

(CCN: 10-5202)
Petitioner,
-Vve- Docket No. C-06-508

Decision No. CRI611
Centers for Medicare & Medicaid
Services.

DECISION

[ sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to
impose two $5,000 per-instance civil money penalties against Petitioner, Apollo Health &
Rehabilitation Center.

1. Background

Petitioner is a skilled nursing facility in St. Petersburg, Florida. It participates in
Medicare. Its participation in that program is governed by sections 1866 and 1819 of the
Social Security Act and by implementing regulations at 42 C.F.R. Parts 483 and 488.

On March 30, 2006, Petitioner was surveyed for compliance with Medicare participation
requirements. The surveyors found several distinct failures by Petitioner to comply. On
April 12, 2006, CMS notified Petitioner that it concurred with the surveyors’ findings and
that it had determined to impose remedies against Petitioner. Petitioner requested a
hearing and the case was assigned to me for a hearing and a decision. | scheduled an in-
person hearing in the case. Prior to the hearing the parties agreed that the case could be
decided based on their written submissions. Each party submitted a brief and a reply
5
brief. CMS filed exhibits which it designated as CMS Ex. | - CMS Ex. 33. Petitioner
filed exhibits which it designated as P. Ex. | - P. Ex. 12. | receive the parties’ exhibits
into evidence.

II. Issues, findings of fact and conclusions of law
A. Issues

CMS determined to impose remedies against Petitioner, consisting of two per-instance
civil money penalties of $5,000, for two of the alleged deficiencies that are specified in
the survey report. These consist of Petitioner’s alleged failures to comply with the
requirements of 42 C.F.R. §§ 483.13(c) and 483.20(k)(3)(1). CMS Ex. 3, at 15 - 19; 19 -
23. The first of these two regulations requires that a facility develop and implement
written policies and procedures that prohibit mistreatment, neglect, and abuse of
residents. The second requires a facility to provide services to its residents that meet
professional standards of quality.

In this decision I address each of these two allegations of noncompliance. The issues that
I hear and decide are whether:

1. Petitioner failed to comply substantially with the requirements of 42
C.F.R. §§ 483.13(c) and 483.20(k)(3)(i); and

2. A per-instance civil money penalty of $5,000 for each instance of
noncompliance is reasonable.

I do not address other allegations of noncompliance because they are irrelevant to my
decision. In its April 12, 2006 notice to Petitioner, CMS made it clear that it based its
civil money penalty determinations only on Petitioner’s alleged noncompliance with the
two regulations that I cite above. Furthermore, on May L0, 2007, the parties entered into
a stipulation in which they agreed that other allegations of noncompliance are not relevant
to the issues of whether per-instance civil money penalties should be imposed or the
reasonableness of penalty amounts.'

' The April 12 notice also makes reference to a denial of payment for new
admissions which, arguably, could be based on Petitioner’s noncompliance with other
regulations than those which I address in this decision. However, neither CMS nor
Petitioner offered any argument concerning this possible additional remedy.
3

Nor do I address CMS’s determinations that Petitioner's noncompliance was so egregious
as to constitute immediate jeopardy for the residents of the facility. Such determinations
are unnecessary to deciding whether per-instance — as opposed to per-diem -- civil money
penalties are reasonable. 42 C.F.R. § 488.438(a)(1), (2).

B. Findings of fact and conclusions of law

| make findings of fact and conclusions of law (Findings) to support my decision in this
case. I set forth each Finding below as a separate heading. I discuss each Finding in
detail.

I. Petitioner neglected the needs of one of its residents.

The term “neglect” is defined at 42 C.F.R. § 488.301 to mean a failure by a facility to
provide goods and services to a resident that are necessary to avoid physical harm, mental
anguish, or mental illness. CMS asserts that Petitioner neglected the needs of one of its
residents, identified in the survey report as Resident # 3, by failing to report significant
changes in the resident’s condition to her treating physician, and by failing to provide the
resident with cardiopulmonary resuscitation (CPR). CMS Ex. 3, at 15 - 19. CMS
presented a strong prima facie case to support this allegation which Petitioner failed to
rebut.

Resident # 3 was admitted to Petitioner’s facility on March 13, 2006. CMS Ex. 3, at 15.
On admission the resident was observed to be alert and oriented. /d. The resident’s
record did not contain an advanced directive (instructions concerning providing or
withholding care in the event of a medical crisis) nor did it contain a do not resuscitate
(DNR) order (an order directing that CPR not be attempted in the event that the resident
ceased breathing or went into cardiopulmonary arrest). /d. at 16.

The resident’s physician saw the resident on the morning of March 19, 2006, and ordered
lab work. At around 2:00 p.m. on the 19", the resident ceased to drink and began to
complain of abdominal pain. CMS Ex. 16, at 34. The physician was notified of this
change in the resident’s condition, and the physician advised the nurse that the lab work
could be done the following morning. /d. At about 2:45 p.m. the resident’s vital signs
were noted as stable and the resident was observed to be resting without distress. /d.
4

However, at about 3:30 p.m. on March 19, a nursing assistant observed that the resident's
condition had changed. The resident was disoriented, calling out “mother, mother.” The
nursing assistant notified an attending nurse of the change in the resident’s condition.
CMS Ex. 16, at 34. The nurse observed the resident and concluded that she did not look
well. /d. The resident’s vital signs were checked between 4:00 and 5:00 p.m. and were
recorded to be within normal limits. 4d At about 5:00 p.m. the resident was administered
two Percocet tablets for pain. /d. But, at 6:00 p.m. the resident was observed to be
moaning in apparent pain. No additional vital signs were taken.

At 7:15 p.m. the nurse was summoned to Resident # 3’s room by the nursing assistant.
The resident was observed to be “taking last breaths.” CMS Ex. 3, at 17. No attempt was
made to resuscitate the resident, At 7:25 p.m. the resident was observed to be without
pulse or respiration or blood pressure. /d. It was only then that the staff notified the
resident’s physician and family.

The foregoing evidence is classic evidence of neglect. It establishes that, at no time
between 3:00 p.m. and the resident’s death at 7:25 p.m. on the 19" of March did
Petitioner’s staff notify Resident # 3’s physician of changes in the resident’s status. Yet,
there obviously were significant changes that demanded notification. One obvious
change was the resident’s sudden disorientation at 3:30 p.m., less than an hour after the
staff had observed the resident to be resting without distress. No less obvious was the
staff's failure to call the physician at 7:15 p.m. when they observed the resident dying.
Moreover, the staff failed even to attempt to resuscitate the resident despite the fact that
nothing in the resident’s record ~ neither an advanced directive nor a DNR order — told
the staff not to attempt to resuscitate Resident # 3 in the event of a crisis.

For the most part, Petitioner does not dispute the evidence that I describe above. It
argues, however, that the failure to provide care to Resident # 3 must be attributed to
simple human error, and it asserts that its overall compliance with participation
requirements should not be measured by this allegedly isolated mistake.’ According to

> Petitioner argues also that its staff's administration of Percocet to Resident #3
was consistent with the resident’s physician’s orders and that it was consistent with
appropriate medical practice for the staff to wait to determine whether the Percocet was
producing beneficial results. Petitioner’s initial brief in lieu of hearing at 6 - 7. However,
CMS does not base its case against Petitioner on whether the staff administered pain
medication appropriately and I make no findings as to that issue. I base my decision that
Petitioner’s staff neglected the resident entirely on the staff's failure to notify the
physician of the significant changes that | identify above and its failure to attempt

(continued...)
5

Petitioner, the failure to attempt to resuscitate Resident # 3 was caused by a misreading of
the resident's chart by a nurse. “[I]t was not foreseeable”, Petitioner contends, that the
nurse would misread that chart, and consequently, that error was an event that was
beyond Petitioner’s ability to control. Petitioner’s initial brief in lieu of hearing at 9.
Moreover, according to Petitioner, this error ~ if it was neglect at all — was an isolated
error for which Petitioner is not accountable. /d. at 9 - 10.

This argument is unpersuasive. | have no doubt that human error accounted for the
failure by Petitioner’s staff to attempt to resuscitate Resident # 3. But, Petitioner’s
arguments notwithstanding, the staff was under Petitioner’s direct control. The nursing
staff are not independent contractors. Petitioner may not deflect its responsibility by
attributing the neglect of the resident’s needs to staff error because, in the final analysis,
the regulations make Petitioner responsible for the care that its staff provides.

Petitioner’s argument, if taken to its logical conclusion, would render the nursing home
regulations essentially meaningless. Virtually all deficiencies in nursing home care are
the consequence of human error. The regulations take that into account by making a
nursing facility ultimately responsible for the performance of its staff.

Additionally, | do not accept Petitioner’s assertion that the staff errors in this case were
confined only to an apparent misreading of Resident # 3’s medical record. Misreading
the record might account for the failure to attempt resuscitation. But, it does not explain
the failure of the staff to notify the resident’s physician of the resident’s disorientation or
of its failure to tell the physician that the resident was in her death throes.

Petitioner also argues that the resident’s physician was, in fact, notified about changes in
the resident’s condition on the afternoon of March 19, 2006. Petitioner’s reply brief at 3.
However, that notification occurred prior to the changes in the resident’s condition that I
address in this decision. The fact that the staff notified the physician at about 2:00 on the
afternoon of the 19" of the resident’s abdominal pain and refusal to drink does not justify
the staff's failure to notify the physician subsequently about the resident’s disorientation

or her death throes.

*(...continued)
resuscitation.
6

Finally, and amazingly, Petitioner contends that there were in fact no significant changes
in Resident # 3°s condition after 2:00 on the afternoon of March 19. Petitioner's reply
brief at 2. That assertion flies in the face of reality. Prior to March 19, 2006, the resident
was described by Petitioner's staff as being alert and oriented and able to make her needs
known. CMS Ex. 3, at 16. But, beginning at about 3:30 on the afternoon of the 19th, the
resident became disoriented and ultimately, died. By any measure or standard the
resident’s disorientation and death throes were significant changes that demanded
physician notification.

2. Petitioner failed to provide care that met professional standards of
quality.

CMS bases its allegation that Petitioner failed to provide care that met professional
standards of quality on the same facts as are the basis for its neglect allegation. And,
Petitioner’s defense to this second allegation of noncompliance is identical to that which
it makes in response to the neglect allegation.

I find CMS’s allegation to be well-founded and I do not find Petitioner’s defenses to be
persuasive. First, the requirement that a nursing staff notify a resident’s physician of a
significant change in that resident’s condition is axiomatic and is made explicit in
regulations governing nursing facilities. A facility must immediately consult with a
resident’s physician of a significant change in that resident’s condition. 42 C.F.R.

§ 483.10(b)(11).* Indeed, a nursing facility operates no more independently from a
physician than does a nurse in a hospital or in a physician’s office. In all three instances
the ultimate authority and responsibility for determining the care that is given to a patient
is vested in the patient’s physician. A failure by a nurse in any of those settings to consult
immediately with a physician about significant changes in a patient’s condition that he or
she observes would impede the physician’s ability to make the necessary judgments about
care that he or she is uniquely responsible for making.

> CMS did not base its determination to impose civil money penalties against
Petitioner on Petitioner’s failure to comply with this regulation. However, the standard of
quality that the regulation embodies — the requirement that a staff consult immediately
with a physician about a significant change in a resident’s condition — is subsumed within
both 42 C.F.R. §§ 483.13(c) and 483.20(k)(3)(i).
7

Second, the failure by Petitioner’s staff to provide resuscitation to Resident # 3 was a
clear failure by it to meet professional standards of quality. Providing resuscitation when
needed is an integral part of a nurse’s duty to a patient. A patient, or a nursing facility
resident, has the right to decline such care. But, a staff may not withhold it absent a
request that it not provide resuscitation.

3. Per-instance civil money penalties of $5,000 are reasonable.

Regulations provide that CMS may impose either per-diem or per-instance civil money
penalties to remedy a nursing facility’s deficiencies. 42 C.F.R. § 488.438(a)(1), (2). In
this case CMS determined to impose two per-instance civil money penalties of $5,000 to
remedy the two deficiencies that I discuss at Findings | and 2.

A per-instance civil money penalty may fall within a range of from $1,000 to $10,000.
42 C.F.R. § 488.438(a)(2). Regulations prescribe criteria for deciding where within that
range a per-instance civil money penalty should fall. 42 C.F.R. §§ 488.438(f)(1) - (4),
488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). Factors which are
relevant to determining penalty amount include: the seriousness of a facility’s non-
compliance; a facility’s compliance history; a facility’s culpability; and, its financial
condition. /d.

| decide that the two per-instance penalties, which are at fifty percent of the maximum
that CMS is authorized to impose, are reasonable because they take into account the
seriousness of Petitioner’s deficiencies. Neither party offered evidence concerning the
other regulatory factors which bear on penalty amount. Thus, I base my decision to
uphold the penalty determination on the seriousness, and only the seriousness, of
Petitioner’s noncompliance.*

* CMS makes two arguments which I find to be essentially irrelevant. First, CMS
contends that I should sustain the penalty determinations because it applied the regulatory
criteria to determine the penalty amounts. That argument is irrelevant because my review
authority in this case is de novo and not appellate. I must weigh the evidence that relates
to penalty amount independently and without regard to whether CMS did a good job or a
poor job in evaluating the same evidence. Second, CMS contends that the penalties are
justified in part because it found that Petitioner’s deficiencies were so serious as to
comprise immediate jeopardy for residents of the facility. That argument is not relevant
here because the range in which a per-instance penalty may fall — as opposed to that of a
per-diem penalty ~ does not depend on a finding of immediate jeopardy.
8

Phe deficiencies in this case were extremely serious. Emergency resuscitation is a service
that is utilized only where a resident’s life is at stake. Withholding resuscitation ~ as
happened here — from a patient who is in cardiac or pulmonary arrest can have
catastrophic consequences. [do not conclude that Resident # 3 would have survived had
Petitioner's staff performed CPR on her. There is no way of deciding whether
withholding CPR caused the resident to die. But, that does not mitigate the seriousness of
Petitioner's noncompliance. In this case withholding CPR from the resident deprived her
of the possibility of life.

Equally serious was Petitioner's staff's failure to notify the resident’s physician of
significant changes in the resident's condition. The fact that this resident, previously
diagnosed as alert, became disoriented should have triggered an immediate call by the
staff to the resident’s physician. But, it did not. Nor did the resident’s apparent cardio-
pulmonary arrest. In both instances the physician was deprived of information that might
have enabled him to make potentially life-saving decisions on behalf of Resident # 3.

The potential for very serious harm to the resident resulting from these failures to notify
is manifest.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Bloomfield Health Care Center, )
(CCN: 07-5138), ) Date: June 20, 2007
)
Petitioner, )
)
-Vv.- ) Docket No. C-03-428

) Decision No. CR1610
Centers for Medicare & Medicaid )
Services. )
)

DECISION

Petitioner, Bloomfield Health Care Center, Bloomfield, Connecticut, did not violate 42
C.F.R. § 483.25(j),' on October 7, 2002. Accordingly, there is no basis for the imposition
of an enforcement remedy.

I. Background

CMS notified Petitioner by letter dated February 26, 2003, that Petitioner was not in
compliance with federal participation requirements based upon the findings of the
Connecticut Department of Public Health, Division of Health Systems Regulation (the
state agency), which completed a complaint survey of Petitioner’s facility on January 28,
2003. CMS proposed to impose remedies against Petitioner, including termination of
Petitioner’s provider agreement effective July 28, 2003, denial of payment for new
admissions effective April 28, 2003, and a per instance civil money penalty (PICMP) of
$1000.

' All references are to the revision of the Code of Federal Regulations (C.F.R.) in
effect at the time of the survey, unless otherwise indicated.
2

Petitioner requested a hearing by an administrative law judge (ALJ) by a document dated
April 21, 2003. The request was docketed and assigned to me for hearing and decision on
May 28, 2003.

A hearing was held in this case on February 11, 2004, in Hartford, Connecticut. CMS
was represented by Joyce E. McCourt, Assistant Regional Counsel, Office of the General
Counsel, Department of Health and Human Services. Petitioner was represented by
Patricia C. Thomas, National Health Care Associates, Inc. CMS offered and I admitted
CMS exhibits (CMS Ex.) 1 through 23 as evidence. Transcript page (Tr.) 14. Petitioner
offered and I admitted Petitioner’s exhibits (P. Ex.) 1 through 12 as evidence. Tr. 16,
148-49. CMS presented the testimony of Patricia Gannon, R.N. (the state agency
surveyor), and Albert L. Geetter, M.D. Petitioner presented the testimony of Rolf Knoll,
M.D., Carolyn Wendrow, Leslie Lindenberg, M.D., and Chidinma Anosike-Byron, R.N.
The parties filed post-hearing briefs (CMS or P. Br.) and post-hearing reply briefs (CMS
or P. Reply).

II. Discussion
A. Findings of Fact

The following findings of fact are based upon the exhibits admitted. Citations to exhibit
numbers related to each finding of fact may be found in the analysis section of this
decision if not indicated here.

1. Petitioner, located in Bloomfield, Connecticut, is authorized to participate in the
federal Medicare program as a skilled nursing facility (SNF) and the state
Medicaid program as a nursing facility (NF). Tr. 18; CMS Ex. 2.

2. Petitioner admitted Resident 2, a 72-year-old woman, into its facility from
Hartford Hospital on September 20, 2002. Tr. 20; CMS Exs. 13, 15.

3. Resident 2 had diagnoses of, among other conditions, congestive heart failure
(CHF), hypertension, cancer of the colon and breast, chronic renal failure, atrial
fibrillation, deep vein thrombosis with a vena cava filter in her left side, and she
had an ileostomy. Tr. 20-21; CMS Exs. 13, 15.

4. Resident 2’s physician noted in his hospital discharge summary that managing her
care would be difficult, specifically noting that her “[f]luid balance will also be
somewhat problematic . . . because if she is to[o] dry her creatinine will rise and if
she is over hydrated she is apt to develop congestive heart failure.” CMS Ex. 13,
at 4.
11.

12.

14.

15.

16

17.

3

Resident 2’s physician did not order monitoring of her input and output. CMS Ex.
20; Tr. 125, 163.

After experiencing vomiting and bowel difficulties, Resident 2 was returned to the
hospital on September 21, 2002. Tr. 20; CMS Ex. 19; P. Ex. 3, at 2, 9.

Resident 2 was readmitted to Petitioner’s facility on September 26, 2002. Tr. 20;
P. Exs. 4-6.

Petitioner assessed Resident 2 upon her admission on September 20, 2002, and
upon her readmission on September 26, 2002. CMS Exs. 15, 21, 22.

Petitioner care planned for Resident 2’s dehydration risk. CMS Exs. 16, 21, 22, at
2-3; P. Ex. 1.

Petitioner monitored Resident 2’s dehydration risk, implementing Resident 2’s
care plan. Tr. 37-44, 64-65; CMS Ex. 22, at 2-3; P. Ex. 3, at 11-14.

On October 5, 2002, Resident 2 experienced some vomiting. Tr. 22.

On October 6, 2002, Resident 2 continued to have some nausea. Tr. 22.

On October 7, 2002, Resident 2 was readmitted to the hospital after vomiting 450
ces of a dark brown foul smelling emesis and exhibiting other signs of distress,
including slight generalized abdominal pain, and becoming diaphoretic and pale.

Tr. 22; CMS Ex. 23, at 5; P. Ex. 3, at 14.

At the hospital, Resident 2 received six liters of fluids intravenously over four
hours and then went into CHF. Tr. 22-23; CMS Ex. 2, at 5; CMS Ex. 23, at 9, 11.

At the hospital, Resident 2 was diagnosed as suffering from mesenteric ischemia.
CMS Ex. 11, at 6; P. Ex. 3, at 14.

The evidence does not show that Resident 2 was dehydrated at the time of her
delivery to the emergency room on October 7, 2002.

On January 28, 2003, the state agency conducted a complaint survey of
Petitioner’s facility. CMS Exs. 1, 2.
4
18. On February 26, 2003, CMS notified Petitioner that it was imposing various
remedies, including a PICMP of $1000, based on Petitioner’s failure to comply

with the participation requirement at 42 C.F.R. § 483.25(j) (Tag F327 in the
January 28, 2003 survey). CMS Exs. 1, 2, 5.

19. On April 21, 2003, Petitioner requested a hearing.
B. Conclusions of Law
l. Petitioner’s request for hearing was timely and I have jurisdiction.

2. The regulation at 42 C.F.R. § 483.25(j) requires a facility to provide each resident
with sufficient fluid intake to maintain proper hydration.

3. Petitioner was not in violation of 42 C.F.R. § 483.25(j) on October 7, 2002, with
respect to Resident 2.

4. The remedies proposed by CMS are not reasonable because there is no violation of
participation requirements and no basis for the imposition of an enforcement
remedy.

C. Issues
The issues presented in this matter are:
Whether there is a basis for the imposition of an enforcement remedy; and,
Whether the remedy imposed is reasonable.
D. Applicable Law
Petitioner is a long-term care facility located in Bloomfield, Connecticut, participating in
the federal Medicare program as a SNF and in the Connecticut Medicaid program as a
NF. The statutory and regulatory requirements for participation by a long-term care
facility are found at sections 1819 and 1919 of the Social Security Act (the Act) and at 42
C.F.R. Part 483. Sections 1819 and 1919 of the Act vest the Secretary of Health and

Human Services (Secretary) with authority to impose CMPs against a long-term care
facility for failure to comply substantially with federal participation requirements.
5

Pursuant to the Act, 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. Facilities that participate in Medicare may be
surveyed on behalf of CMS by state survey agencies in order to determine whether the
facilities are complying with federal participation requirements. 42 C.F.R. §§ 488.10-
488.28, 488.300-488.335. Pursuant to 42 C.F.R. Part 488, CMS may impose a PICMP or
a per day CMP against a long-term care facility when a state survey agency concludes
that the facility is not complying substantially with federal participation requirements. 42
C.F.R. §§ 488.406; 488.408; 488.430. The regulations in 42 C.F.R. Part 488 also give
CMS a number of other remedies that can be imposed if a facility is not in compliance
with Medicare requirements. /d.

The regulations specify that a CMP that is imposed against a facility on a per day basis
will fall into one of two ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper
range of CMP, of from $3050 per day to $10,000 per day, is reserved for deficiencies that
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).
There is only a single range of $1000 to $10,000 for a PICMP, which applies whether or
not immediate jeopardy is present. 42 C.F.R. §§ 488.408(d)(1)(iv); 488.438(a)(2).

The Act and regulations make a hearing before an ALJ available to a long-term care
facility against whom CMS has determined to impose a CMP. Act, section 1128A(c)(2);
42 C.F.R. §§ 488.408(g); 498.3(b)(13). The hearing before an ALJ is a de novo
proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd, 941 F.2d 678
(8" Cir. 1991); Emerald Oaks, DAB No. 1800, at 11 (2001); Beechwood Sanitarium,
DAB No. 1906 (2004); Cal Turner Extended Care Pavilion, 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 ifa successful challenge would affect the
amount of the CMP that could be collected by CMS or impact upon the facility’s nurse
aide training program. 42 C.F.R. §§ 498.3(b)(14) and (d)(10)(i). CMS’s determination as
to the level of noncompliance “must be upheld unless it is clearly erroneous.” 42 C.F.R.
§ 498.60(c)(2). This includes CMS’s finding of immediate jeopardy. Woodstock Care
Center, DAB No. 1726, at 9, 38 (2000), aff'd, Woodstock Care Center v. Thompson, 363
F.3d 583 (6" Cir. 2003). The Departmental Appeals Board (the Board) has long held that
6

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 governed by 42 C.F.R. § 488.438(e).

When a penalty is proposed and appealed, CMS must make a prima facie case that the
facility has failed to comply substantially with federal participation requirements. “Prima
facie” means that the evidence is “[s]ufficient to establish a fact or raise a presumption
unless disproved or rebutted.” Black’s Law Dictionary 1228 (8" ed. 2004); see also,
Hillman Rehabilitation Center, DAB No. 1611, at 8 (1997), aff'd Hillman Rehabilitation
Center vy. U.S. Dep't. of Health and Human Services, No. 98-3789 (D.N.J. May 13, 1999).
To prevail, a long-term care facility must overcome CMS’s showing by a preponderance
of the evidence. Batavia Nursing and Convalescent Center, DAB No. 1904 (2004);
Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Emerald Oaks, DAB No.
1800 (2001); Cross Creek Health Care Center, DAB No. 1665 (1998); Evergreene
Nursing Care Center, DAB No. 2069, at 7-8 (2007).

E. Analysis

At the hearing the parties agreed that the only alleged deficiency at issue before me is the
alleged violation of 42 C.F.R. § 483.25(j) (Tag F327) at a scope and severity level of G,
an isolated incident of actual harm that did not constitute immediate jeopardy. Tr. 19;
CMS Ex. 1, at 1; CMS Ex. 2, at 4. The parties agreed that the only resident involved was
Resident 2. Tr. 20. The parties further agreed that the alleged deficiency was corrected
prior to hearing and that the only remaining remedy at issue is the $1000 PICMP. Tr. 23.

Petitioner admitted Resident 2, a 72-year-old woman, to its facility from Hartford
Hospital on September 20, 2002. After experiencing vomiting and bowel difficulties,
Resident 2 was returned to the hospital on September 21, 2002. She was then readmitted
to Petitioner’s facility on September 26, 2002. She was diagnosed with, among other
conditions, CHF, hypertension, cancer of the colon and breast, chronic renal failure, atrial
fibrillation, deep vein thrombosis with a vena cava filter in her left side, and she had an
ileostomy. On October 5, 2002, she experienced some vomiting, and she continued to

> Although CMS points out in its briefs that Petitioner had not completed a
comprehensive assessment of Resident 2, the state agency did not cite Petitioner as
deficient in this regard and I do not consider that issue. I note that under 42 C.F.R.

§ 483.20(b)(2)(i), Petitioner had 14 days to do a comprehensive assessment of Resident 2,
and she was only in the facility for 10 days.
7

have nausea throughout October 6, 2002. On October 7, 2002, she was transferred back
to the hospital after vomiting 450 ccs of a dark brown foul smelling emesis and exhibiting
other signs of distress. Upon her readmission to the hospital, Resident 2 received six
liters of fluids intravenously over four hours and then experienced CHF. It is undisputed
that Resident 2 was at risk for dehydration during her time at the facility.

CMS imposed the PICMP based on its conclusion that Petitioner’s care of Resident 2
violated 42 C.F.R. § 483.25(j), a subsection of the Quality of Care regulation at 42 C.F.R.
§ 483.25. The regulation provides that:

Each resident must receive and the facility must provide the
necessary care and services to attain or maintain the highest
practicable physical, mental, and psychosocial well-being, in
accordance with the comprehensive assessment and plan of
care.

ROKK
(j) Hydration. The facility must provide each resident with
sufficient fluid intake to maintain proper hydration and health.

CMS asserts that the facility failed to provide Resident 2 with sufficient fluid intake to
maintain proper hydration and health, with the result that Resident 2 suffered actual harm.
CMS maintains that Petitioner failed to assess and monitor Resident 2’s fluid intake and
output adequately while at the facility, in order to prevent Resident 2 from being under-
or over-hydrated. CMS relies on findings made by Surveyor Gannon that, while Resident
2 was at risk for dehydration, Petitioner did not do “a dehydration risk assessment” for
Resident 2; Resident 2’s documented intake was less than her need as identified by the
dietician; her resident care plan did not show interventions to maintain fluid level;
Petitioner failed to consistently document Resident 2’s fluid output; and Resident 2 was
dehydrated on admission to the hospital on October 7, as evidenced by the fact that she
received six liters of IV fluid in the emergency room. CMS Ex. 2, at 4-5.

The regulations do not specify how a facility is to provide the proper hydration. The
regulation at 42 C.F.R. § 483.25(j) requires only that a facility provide “sufficient fluid
intake.” The State Operations Manual (SOM) sets out the investigative protocol for
surveyors with regard to hydration, but does not require facilities to monitor resident
input and output. The SOM provides that, when a facility undertakes monitoring a
resident’s input and output, the surveyor should use the input and output record to
determine whether the resident’s fluid goals or calculated fluid needs were consistently
met. The SOM provides surveyors with the guidance that if the facility being surveyed
8

properly assessed a resident, care planned for the resident, implemented the resident’s
care plan, evaluated the resident’s outcome, and revised the resident’s care plan as
needed, then the facility would be in compliance with the regulations. SOM App. PP at
41-43.

Petitioner’s policy with regard to hydration, as reflected at CMS Ex. 10, at 2, indicates
that a licensed nurse will perform a dehydration risk assessment within 24 hours of a
resident’s admission or readmission, annually, and upon a significant change in a
resident’s condition, in order to see if a resident has conditions predisposing them to a
hydration risk. If a resident is at such risk, a care plan for the resident must be developed.
Ifa resident’s physician diagnosed a resident as dehydrated, Petitioner’s protocol was to
follow the physician’s orders, document the resident’s intake and output every shift,
document in the nurse’s notes every shift until symptoms resolved, and, if total fluid
intake was below 1000 ccs in a 24-hour period, notify the resident’s physician. The
dietician would ensure that the resident receives his or her fluids of choice, if appropriate.
CMS Ex. 10, at 3.

Resident 2’s physician noted that Resident 2’s hydration would be difficult to assess.
However, he did not order any particular monitoring of her hydration, including ordering
input and output monitoring. Petitioner’s expert witnesses testified that had Resident 2’s
physician felt it necessary, he would have ordered monitoring input and output. Tr. 125.
Resident 2’s Admission Nursing Assessment, completed on September 20, 2002 (CMS
Ex. 15), does not specifically state that it is addressing hydration, but it does reflect a
“Nutritional Assessment.” This Nutritional Assessment notes the resident is independent
in her eating skills and that her intake by mouth is “good.” CMS Ex. 15, at 3. Resident
2’s Initial Care Plan indicates under “Nutrition/Hydration,” as a problem area, “poor per
Nausea” and notes that staff's approach should be to “monitor offer foods of choice.”
CMS Ex. 16. Resident 2’s Admission Nursing Assessment dated September 26, 2002,
did not include a nutritional or hydration assessment on that particular document. CMS
Ex. 21. However, her Initial Care Plan from the September 26, 2002 readmission notes as
a Nutrition/Hydration problem “Nausea/vomiting” and as a staff approach a regular diet
as tolerated and encouragement of fluids per mouth as tolerated. CMS Ex. 21, at 8. A
separate “Nutritional Assessment/Full” was done on October 1, 2002. Both Resident 2’s
nutritional and fluid needs were specifically assessed. CMS Ex. 22. The dietitian
estimated Resident 2’s daily fluid needs as a range of 1513-1815 ccs per day and noted
that the resident stated her intake had been poor but was slowly improving. The dietician
planned to provide Ensure, to monitor what Resident 2 was taking by mouth, to weigh
her, and to follow her progress. CMS Ex. 22, at 2-3. Resident 2’s fluid intake, ileostomy
output, and vomitus amounts were recorded. Tr. 42-43, 63-64; CMS Ex. 3, at 12; CMS
Ex. 17; P. Exs. 2, 3.
9

I find, based on the evidence presented, that Petitioner assessed Resident 2 (CMS Exs, 15,
21, 22), and care planned for Resident 2 (CMS Exs. 16, 21), and was implementing the
care plan.* Although Petitioner’s assessments and care plans for Resident 2 may not be
models, the regulations and the SOM do not specify what the assessments and care plans
are to look like or how detailed they are to be. The survey process is a result-oriented
process and, if an adverse result is observed, in this case the alleged dehydration, then a
presumption arises that inaction or deficient action by the facility was the cause. When
such a presumption is triggered, CMS has met the prima facie case and the burden is then
upon a petitioner to show it was actually in compliance or to rebut the presumption. In
this case I find that Petitioner did assess Resident 2 and then developed and implemented
a plan of care, although it was not perfectly documented or executed.

Furthermore, the evidence does not show that Resident 2 was dehydrated when she was
sent to the emergency room on October 7, 2002. Resident 2 was in Petitioner’s facility on
her second admission from September 26, 2002, until early in the morning of October 7,
2002, a period of about 10 days. P. Ex. 3, at 5-14; Tr. 72. Surveyor Gannon clarified
during her testimony that she cited Petitioner because Resident 2 was at risk, she was
dehydrated, and Petitioner did not do a good job of monitoring her. Tr. 72-75. Surveyor
Gannon agreed that her deficiency finding was premised significantly upon her belief that
Resident 2 was dehydrated at the time she was received at the emergency room early in
the morning of October 7, 2002, due to Petitioner’s failure to appropriately monitor her.
Tr. 45-47, 55-57, 74-75.

Surveyor Gannon pointed to Resident 2’s blood urea nitrogen (BUN) and creatinine
results on October 7, 2002, to show that Resident 2 was dehydrated on that date. Tr. 45-
50, 56, 60. There is no dispute that both results were out of normal limits (CMS Ex. 23,
at 7; Tr. 56). Resident 2’s discharge summary from Hartford Hospital for the period
October 7, 2002 through October 30, 2002, indicates a diagnosis of transient renal
insufficiency (TRI), secondary to dehydration. CMS Ex. 11, at 5. The summary does
not, however, indicate when the TRI arose, whether it existed upon admission on October
7, 2002, or whether it developed during her 23-day hospital stay. In fact, a progress note
from the Hartford Hospital shows that on October 31, 2002, Resident 2’s discharge from
the hospital was delayed due to elevated creatinine and BUN, “probably due to

> I note that while Resident 2’s fluid intake was less than the dietician determined
to be ideal on several days (CMS Ex. 2, at 5; P. Ex. 4), I do not infer that, because
Resident 2’s recorded intake was less than her assessed need, the facility’s plan to
encourage the intake of fluids by mouth was inadequate and required the facility to
implement more aggressive measures, such as providing intravenous fluids, because
Resident 2 was ambulatory, coherent, and able to take water/fluid as she felt the need.
10

dehydration” from Lasix and vomiting. P. Ex. 11; Tr. 59-60. No admissions summary is
in evidence. Documents prepared by the hospital contemporaneously with Resident 2’s
admission on October 7, 2002, reflect a diagnosis of mesenteric ischemia but not
dehydration. P. Ex. 8, at 1. The hospital records in evidence do not mention dehydration
until the note of October 31, 2002 (P. Ex. 8, at 2; P. Exs. 9, 10, 11; CMS Ex. 23, at 1-14),
a fact acknowledged by Surveyor Gannon on cross-examination. Tr. 60.

Surveyor Gannon did not make any personal observations of Resident 2 or her
environment at the time of the alleged incident on October 7, 2002, as Resident 2 was no
longer at the facility at the time of the complaint survey. Tr. 31, 33. The allegations on
the statement of deficiencies are largely based upon Surveyor Gannon’s review of facility
and hospital records. Surveyor Gannon testified that she also spoke with the intensive
care unit manager at the hospital and he indicated that Resident 2 was severely
dehydrated. Tr. 55-57, 60, 68-69. I do not find the hearsay statement of the intensive
care manager that Resident 2 was dehydrated on admission as reliable or credible as the
hospital records made at the time of Resident 2’s admission to the hospital which do not
reflect a diagnosis of dehydration.

Petitioner offered two expert witnesses, Drs. Knoll and Lindenberg, to testify about
whether Resident 2 experienced dehydration at the facility. I found their opinions more
persuasive, given their credentials and experience, than the opinion of CMS’s expert, Dr.
Geetter. Dr. Knoll testified that Resident 2’s hospitalization on October 7 was
precipitated by an episodic manifestation of mesenteric ischemia, an event that mimics
dehydration and causes laboratory values that look like those associated with dehydration.
Tr. 113-14. Dr. Knoll further testified that this condition was not preventable by
monitoring an individual’s fluid input or output, as bowel ischemia is not caused by
dehydration but by lack of blood flow to the bowel. Tr. 115-16. Dr. Knoll stated that
when Resident 2 arrived at the emergency room and was found to have a blood pressure
of 70 systolic, she was given the normal treatment of fluid resuscitation with large
volumes of fluid to bring up her blood pressure. Tr. 116. Dr. Knoll further stated that his
examination of Resident 2’s records while she was at Petitioner’s facility from September
26 through October 7 showed that Resident 2’s fluid intake was sufficient, with the
facility monitoring vital signs which indicated that she was receiving adequate fluids. Tr.
117-18. Dr. Knoll concluded that there was nothing that Petitioner could have done to
prevent Resident 2 from developing the ischemia that resulted in her October 7
hospitalization. Tr. 119. Dr. Lindenberg testified that, from his review of the records at
Petitioner’s facility and the hospital to which Resident 2 was admitted, Resident 2’s
October 7 admission to the hospital was triggered by her becoming septic due to a bowel
ischemia. Tr. 152. Dr. Lindenberg stated that the drop in Resident 2’s blood pressure,
the rise in her creatinine levels, and her BUN lab values at the hospital, were all the result
of her ischemia, and not dehydration. Tr. 152-53. Dr. Lindenberg also agreed with Dr.
11

Knoll that this was an acute event that happened to Resident 2, not something that
gradually occurred over several days, and that it was beyond Petitioner’s ability to predict
or prevent. Tr. 158. I note that CMS’s expert, Dr. Geetter, agreed that administering six
liters of fluid would lead to CHF in a person who was not dehydrated. Because he
reviewed only select hospital records, Dr. Geetter was unaware that Resident 2 suffered
CHF at Hartford Hospital after being administered the six liters of fluid. Tr. 89-91.

Based on the evidence before me, I find that Resident 2 suffered mesenteric ischemia on
October 7, 2002, as reflected in her discharge summary’s citation of mesenteric ischemia
as a primary diagnosis (CMS Ex, 11, at 6) (of which diagnosis Petitioner had been
informed by 6:30 a.m. on October 7, 2002, as reflected in Petitioner’s Nursing Notes at P.
Ex. 3, at 14). Petitioner’s experts’ opinion of the diagnosis of mesenteric ischemia, and
their explanation of its impact and effect on Petitioner, is consistent with all the medical
evidence and provides a credible explanation for Resident 2’s signs and symptoms as
reflected in the record. Petitioner’s experts’ testimony is also consistent with emergency
room notes (CMS Ex. 23) that indicate six liters of fluid were given to get Resident 2’s
blood pressure to rise (CMS Ex. 23, at 11), which led to her CHF/pulmonary edema,
which condition required that she be intubated (CMS Ex. 23, at 12). Moreover, the only
person who actually saw Resident 2 on October 7, 2002, R.N. Anosike-Byron, testified
that Resident 2 was not showing signs of dehydration. R.N. Anosike-Byron is a
registered nurse, with a master’s degree in nursing, and I have no cause to believe that her
testimony is not credible. Tr. 165-68. Buttressing her testimony is that, at the emergency
room on October 7, 2002, Resident 2’s skin moisture was noted to be normal and her skin
temperature was noted to be cool. CMS Ex. 23, at 3; CMS Ex. 10, at I.

Considering all the evidence, I find no violation of 42 C.F.R. § 483.25(j). The evidence
does not show that Resident 2 was dehydrated on October 7, 2002. Although Resident 2
had abnormal laboratory values that are often associated with dehydration, Petitioner has
produced credible evidence that those laboratory values are more consistent with the
diagnosis of mesenteric ischemia for which she was admitted to the hospital and treated.
Furthermore, when Resident 2 was full of fluids she shortly thereafter experienced CHF,
which the credible testimony reflects is inconsistent with the resident having been
dehydrated. The evidence does not show that Resident 2 was dehydrated and no
inference arises in this case that Petitioner failed to provide Resident 2 “with sufficient
fluid intake to maintain proper hydration and health.”
III. Conclusion

For the foregoing reasons, I conclude that Petitioner did not violate 42 C.F.R. § 483.25(j)
on October 7, 2002, and there is no basis for the imposition of an enforcement remedy.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Family Care Center of Kingston )
(CCN: 37-5437), ) Date: June 18, 2007
)
Petitioner, )
)
-V.- ) Docket No. C-06-611

) Decision No. CR1609
Centers for Medicare & Medicaid )
Services. )
)

DECISION DISMISSING
REQUEST FOR HEARING

In this case, the Centers for Medicare & Medicaid Services (CMS) filed a motion to
dismiss the hearing request of Petitioner Family Care Center of Kingston on the grounds
that CMS did not impose a remedy, and thus, Petitioner has no right to a hearing. I
conclude that Petitioner is not entitled to a hearing in the absence of an extant remedy
determination and grant CMS’s motion to dismiss pursuant to 42 C.F.R. § 498.70(b).

I. Background

Petitioner, located in Kingston, Oklahoma, is a skilled nursing facility participating in the
Medicare and Medicaid programs as a provider of services. On May 17, 2006, the
Oklahoma State Department of Health (OSDH) completed a survey of Petitioner and
found the Petitioner not in substantial compliance with federal regulations. CMS Ex. 1.
By letter dated June 8, 2006, OSDH informed Petitioner that CMS had authorized the
denial of payment for all new Medicare and Medicaid admissions to the facility effective
August 17, 2006. /d. The letter also informed Petitioner that it would have an
“opportunity to correct” the identified deficiencies before the final imposition of
additional remedies. /d. Petitioner was given a deadline of July 1, 2006 to correct the
deficiencies. /d. A revisit survey, completed on August 7, 2006, found that the facility
had achieved substantial compliance as of June 17, 2006. CMS Ex. 2. Thus, Petitioner
2

achieved substantial compliance before the deadline for the imposition of additional
remedies and before the effective date of the mandatory denial of payment of new
admissions. Consequently, CMS took no enforcement action against the facility.

On August 8, 2006, Petitioner requested a review by an administrative law judge of the
findings. By letter dated September 12, 2006, Counsel for CMS sent a letter to
Petitioner’s representative advising her that CMS had not taken an enforcement action
against the facility as a result of the May 17, 2006 survey and that there were no
remaining issues for the appeal. CMS Ex. 2. To date, Petitioner has not withdrawn its
appeal or responded to CMS’s Motion to Dismiss.

Il. Discussion

The hearing rights of a long-term care facility are established by federal regulations at 42
C.F.R. Part 498. A provider dissatisfied with CMS’s initial determinations is entitled to
further review, but administrative actions that are not initial determinations are not
subject to appeal. 42 C.F.R. § 498.3(d). The regulations specify which actions are
“jnitial determinations” and sets forth examples of actions that are not. A finding of
noncompliance that results in the imposition of a remedy specified in 42 C.F.R. § 488.406
is an initial determination for which a facility may request an administrative law judge
(ALJ) hearing. 42 C.F.R. § 498.3(b)(13). No right to a hearing exists pursuant to 42
C.F.R. § 498.3(b)(13), unless CMS determines to impose — and actually imposes — one of
the specified remedies. Lutheran Home — Caledonia, DAB No. 1753 (2000); Schowalter
Villa, DAB No. 1688 (1999); Arcadia Acres, Inc., DAB No. 1607 (1997). The remedy,
not the citation of a deficiency, triggers the right to a hearing. Schowalter Villa, DAB No.
1688 (1999); Arcadia Acres, Inc., DAB No. 1607 (1997). Where, as in this case, CMS
rescinds its remedy determination, Petitioner no longer has a hearing right because the
determination that is subject to a hearing no longer exists. Fountain Lake Health &
Rehabilitation, Inc., DAB No. 1985 (2005) and cases cited therein.

III. Conclusion

Because CMS has rescinded its remedy determination, Petitioner no longer has a right to
an ALJ hearing. An ALJ may dismiss a hearing request where a party has no right to a
hearing. 42 C.F.R. § 498.70(b). I therefore grant CMS’s motion to dismiss and order this
case dismissed.

/s/

Alfonso J. Montano
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)

Katrina Harris, L.P.N., ) Date: June 14, 2007
)
Petitioner, )
)

-V.- ) Docket No. C-07-96

) Decision No. CR1608
The Inspector General. )
)
DECISION

I sustain the Inspector General’s (1.G.) determination to exclude Katrina Harris, Petitioner
(Petitioner), from participation in Medicare, Medicaid, and all federal health care
programs for a five-year period pursuant to sections 1128(a)(1) and 1128(c)(3)(B) of the
Social Security Act (Act).

BACKGROUND

This case is before me pursuant to a request for hearing dated November 6, 2006, by
Petitioner.

By letter dated September 29, 2006, the I.G. notified Petitioner that she was being
excluded from participation in the Medicare, Medicaid, and all federal health care
programs as defined in section 1128B(f) of the Act for a period of five years. The I.G.
informed Petitioner that her exclusion was imposed under section 1128(a)(1) of the Act,
due to her conviction of a criminal offense (as defined in section 1128(i) of the Act)
related to the delivery of an item or service under Medicare or a State health care
program.
2

On December 19, 2006, I convened a telephone prehearing conference during which I
advised Petitioner that she is entitled to have legal counsel if she wishes, but that my
office could not appoint an attorney to represent her. Petitioner stated that she did not
have an attorney and would represent herself.

I advised Petitioner that this case appeared to be resolvable without an in-person hearing.
I stated that the parties would have the opportunity to submit their legal arguments in
writing.

Consequently, I issued an Order establishing briefing deadlines. Pursuant to that Order,
on March 14, 2007, the I.G. filed a brief (IG. Br.), accompanied by four proposed
exhibits, I.G. Exhibits (Exs.) 1-4. In the absence of objection, I admit into evidence I.G.
Exs. 1-4. Although granted until April 18, 2007, Petitioner did not file a response brief,
nor did she request an extension. Consequently, on May 30, 2007, I notified the parties
that inasmuch as the briefing period had passed, I was closing the record and proceeding
to the issuance of a decision in this case.

It is my decision to sustain the determination of the I.G. to exclude Petitioner from
participating in the Medicare, Medicaid, and all federal health care programs, for a period
of five years. 1 base my decision to sustain the five-year exclusion in this case on the
documentary evidence, the applicable law and regulations, and the arguments of the
parties.' It is my finding that Petitioner was convicted of a criminal offense related to the
delivery of an item or service under a state health care program and that the I.G. has a
basis for the exclusion.

ISSUE

Whether the I.G. had a basis for excluding Petitioner from participation in
Medicare, Medicaid, and all federal health care programs pursuant to section
1128(a)(1) of the Act.

' Although Petitioner did not file a response brief, her contentions are briefly
outlined in her request for hearing.
3

APPLICABLE LAW AND REGULATIONS

Section 1128(a)(1) of the Act authorizes the Secretary of Health and Human Services
(Secretary) to exclude from participation in any federal health care program (as defined in
section 1128B(f) of the Act), any individual convicted of a criminal offense relating to the
delivery of a health care item or service under Title XVIII of the Act (Medicare) or a state
health care program (Medicaid)

An exclusion under section 1128(a)(1) of the Act must be for a minimum period of five
years. Act, § 1128(c)(3)(B).

Pursuant to 42 C.F.R. § 1001.2007, an individual or entity excluded under section
1128(a)(1) of the Act may file a request for a hearing before an administrative law judge.

FINDING AND DISCUSSION

The finding of fact and conclusion of law noted below, in bold face, is followed by a
discussion of the finding.

Petitioner’s conviction of a criminal offense related to the delivery of
an item or service under the Medicaid program requires her exclusion
by the I.G. from participation in the Medicare, Medicaid, and all other
federal health care programs.

Petitioner was a licensed practical nurse licensed in Ohio and rendered health care
services under the Ohio Medical Assistance Program. 1.G. Exs. 3 and 4. On August 16,
2005, a Special Grand Jury returned a one count indictment against Petitioner, charging
that, within Franklin County, Ohio, as part of a course of criminal conduct, she did
knowingly make false or misleading statements or representations to the Ohio
Department of Job and Family Services, in claims for services purportedly rendered
under the Ohio Medical Assistance Program. I.G. Ex. 3, at 1.

On December 5, 2005, in the Franklin County, Ohio Court of Common Pleas, Petitioner
entered a guilty plea to a lesser included misdemeanor offense of Medicaid fraud in the
first degree involving a violation of Ohio Rev. Code Ann. § 2913.40(B). The court
accepted the plea and sentenced Petitioner to pay court costs and make restitution in the
sum of $664.60. I.G. Ex 2.
4

In her request for hearing, Petitioner does not dispute her conviction of Medicaid fraud
nor does she contest the I.G’s authority to exclude her, but rather, she contests the length
of the exclusion. I.G. Ex. 4. Thus, there is no dispute that she was convicted of a
program-related crime. | note, moreover, that the record establishes that Petitioner pled
guilty to an offense related to the delivery of an item or service under a state health care
program, and that the Franklin County, Ohio Court of Common Pleas accepted her plea.
Therefore, I find that Petitioner was convicted of a criminal offense, as defined in
section 1128(i)(3) of the Act, and that the offense was related to the delivery of an item
or service under the Ohio Medicaid program. As a result of Petitioner’s program-related
conviction, the I.G. was required to exclude her pursuant to section 1128(a)(1) of the
Act, for a mandatory period of at least five years. Therefore, Petitioner’s argument that a
three-year exclusion should have been imposed because she has made restitution and was
forthright and cooperative during her investigation, is unavailing. I.G. Ex. 4.

CONCLUSION

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded
from Medicare, Medicaid, and all other federal health care programs, for a period of at
least five years, because she was convicted of a criminal offense related to the delivery
of an item or service under Medicaid.

/s/

Jose A. Anglada
Administrative Law Judge