Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
James Jung, DPM
(NPI: 1649224999),
Petitioner,
v.
Centers for Medicare and Medicaid Services.
Docket No. C-12-1219
Decision No. CR2708

Date: February 14, 2013

DECISION

Palmetto GBA (Palmetto), an administrative contractor acting on behalf of the Centers
for Medicare and Medicaid Services (CMS), determined that Petitioner’s effective date of
enrollment in the Medicare program is March 26, 2012, with a 30-day retrospective
billing period commencing February 25, 2012. Petitioner appealed. For the reasons
stated below, I affirm Palmetto’s determination.

I. Background and Procedural History

On February 8, 2012, Palmetto acknowledged receipt of Petitioner’s first Medicare
supplier enrollment application (Form CMS-855) for reassignment of benefits. P. Ex. 1,
at 1. However, on March 14, 2012, Palmetto rejected this application because there was
no date next to the signature. See Attachment to Request for Hearing (RFH).

On March 26, 2012, Palmetto received a second Medicare supplier enrollment
application from Petitioner. P. Ex. 4, at 1. This application is the subject of this appeal.
On July 13, 2012, Palmetto approved Petitioner’s enrollment application and set February
25, 2012, as the “effective date.” P. Ex. 3, at 1.
Petitioner filed a timely request for reconsideration of Palmetto’s July 13, 2012
determination. In a September 20, 2012 reconsidered determination, Palmetto explained
that Petitioner’s application was received on March 26, 2012, and that 30 days prior to
receipt was February 25, 2012, therefore “the correct effective date of [February 25,
2012] was given.”’ P. Ex. 4.

On August 22, 2012, Petitioner timely filed a RFH by an administrative law judge (ALJ).
In response to my September 11, 2012 Acknowledgment and Pre-hearing Order (Order),
CMS filed a brief (CMS Br.) and four exhibits (CMS Exs. 1-4). Petitioner filed a
response brief and eight proposed exhibits (P. Exs. 1-8); however, P. Ex. 2 was simply a
cover sheet indicating that P. Ex. 2 did not exist. In the absence of an objection, I admit
CMS Exs. | through 4 and Petitioner’s Exs. 1, and 3 through 8 into the record.

The Order stated that the parties must submit written direct testimony for each proposed
witness and that an in-person hearing would only be necessary if the opposing party
requested to cross-examine a witness. Order §{ 5(c)(iv), 8; Vandalia Park, DAB No.
1940 (2004); Pacific Regency Arvin, DAB No. 1823, at 8 (2002) (holding that the use of
written direct testimony for witnesses is permissible so long as the opposing party has the
opportunity to cross-examine those witnesses). Neither party provided a list of proposed
witnesses or written direct testimony. Consequently, I will not hold an in-person hearing
in this matter. See Kate E. Paylo, D.O., DAB CR2232, at 9 (2010). The record is closed
and I decide this matter based on the written record. Order § 12.

IL. Discussion
A. Issue

Whether CMS had a legitimate basis for finding that March 26, 2012, is the effective date
of Petitioner’s Medicare enrollment and that Petitioner could retrospectively bill for
services rendered to Medicare beneficiaries on or after February 25, 2012.

' In both of its determinations in this case, Palmetto erroneously characterized the
beginning of the retrospective billing period to be the “effective date.” See Jorge M.
Ballesteros, DAB CR2067, at 2 (2010) (“CMS apparently sets enrollment effective dates
30 days prior to the date of application”). Therefore, I interpret the determinations to
mean that the “effective date” is the beginning of the retrospective billing period and not
the enrollment effective date. Rizwan Sadig, M.D., DAB CR2401, at 5-6 (2011).
B. Findings of Fact, Conclusions of Law, and Analysis”

The Social Security Act (Act) authorizes the Secretary of Health and Human Services
(Secretary) to promulgate regulations governing the enrollment process for providers and
suppliers.’ 42 U.S.C. §§ 1302, 1395cc(j). Under the Secretary’s regulations, a provider
or supplier that seeks billing privileges under Medicare must “submit enrollment
information on the applicable enrollment application. Once the provider or supplier
successfully completes the enrollment process . .. CMS enrolls the provider or supplier
into the Medicare program.” 42 C.F.R. § 424.510(a).

I. Palmetto received Petitioner’s completed Medicare enrollment
application on March 26, 2012.

CMS asserts that on March 26, 2012, Palmetto received Petitioner’s signed and dated
enrollment application. CMS Ex. 1; P. Ex. 3. Petitioner does not dispute this date of
receipt. Therefore, I conclude that Palmetto received Petitioner’s signed and dated
application on March 26, 2012.

2. Palmetto properly concluded that Petitioner’s enrollment as a supplier
in the Medicare program was effective on March 26, 2012, with a
retrospective billing period commencing on February 25, 2012.

By letter dated July 13, 2012, Palmetto notified Petitioner that his Medicare supplier
enrollment application, which had been received on March 26, 2012, was approved. P.
Ex. 3, at 1. Palmetto set February 25, 2012, as Petitioner’s effective billing date. CMS
Ex. 2, at 1. On reconsideration, Palmetto upheld the February 25, 2012 effective billing
date, noting that this date was 30 days prior to the receipt of the application. P. Ex. 4.

The relevant regulation concerning the effective date of Medicare enrollment states:

The effective date for billing privileges for physicians,
nonphysician practitioners, and physician and nonphysician
practitioner organizations is the later of the date of filing of a
Medicare enrollment application that was subsequently
approved by a Medicare contractor or the date an enrolled

> My findings of fact and conclusions of law are set forth in italics and bold font.

> Petitioner is considered a “supplier” for purposes of the Act and the regulations. See
42 U.S.C. §§ 1395x(d), 1395x(u); see also 42 C.F.R. § 498.2. A “supplier” furnishes
services under Medicare and the term applies to physicians or other practitioners that are
not included within the definition of the phrase “provider of services.” 42 U.S.C.

§ 1395x(d)).
physician or nonphysician practitioner first began furnishing
services at a new practice location.

42 C.F.R. § 424.520(d) (emphasis added). The “date of filing” is the date that the
Medicare contractor “receives” a signed provider enrollment application that the
Medicare contractor is able to process to approval. 73 Fed. Reg. 69,726, 69,769 (Nov.
19, 2008); see also Caroline Lott Douglas, PA, DAB CR2406, at 5-7 (2011); Rizwan
Sadiq, M.D., DAB CR2401, at 5 (2011). Because Palmetto received a complete,
approvable application from Petitioner on March 26, 2012, Palmetto properly considered
this date the effective date for billing privileges.

Further, under the regulations set forth below, CMS may permit limited retrospective
billing if a practitioner meets all program requirements.

Physicians, nonphysician practitioners and physician and
nonphysician practitioner organizations may retrospectively
bill for services when a physician or nonphysician
practitioner or a physician or a nonphysician practitioner
organization have met all program requirements, including
State licensure requirements, and services were provided at
the enrolled practice location for up to—

(1) 30 days prior to their effective date if circumstances precluded enrollment in
advance of providing services to Medicare beneficiaries, or

(2) 90 days [in certain emergencies not applicable to this case.]
42 CFR. § 424.521(a).

In the present matter, the earliest effective date for retrospective billing privileges that
Petitioner could be granted was 30 days prior to March 26, 2012. Thirty days prior to
March 26, 2012, is February 25, 2012. Thus, Palmetto correctly determined February 25,
2012, as Petitioner’s retrospective billing date.

3. Petitioner’s previously filed enrollment application does not provide a
basis for altering Petitioner’s effective date of enrollment because
CMS rejected it.

Petitioner argues that he was denied reimbursement for services provided between
December 12, 2011, and February 25, 2012. RFH; P. Br. at 1-2. Petitioner states that he
submitted an earlier application that was acknowledged by Palmetto’s February 8, 2012
letter and indicates that he should be allowed an earlier effective date based on that
previous application. P. Br. at 1-2.
However, on March 14, 2012, Palmetto rejected this application. See Attachment to
RFH. CMS’s decision to reject an application is not subject to appeal. 42 C.F.R.

§ 424.525(d). Therefore, the previously filed application does not affect the effective
date for a subsequently filed application. My jurisdiction in this matter is based on
Palmetto’s unfavorable September 20, 2012 reconsidered determination. 42 C.F.R.

§ 498.5(1); see also Better Health Ambulance, DAB No. 2475, at 4 (2012); Denise Hardy,
DAB No. 2464, at 4-5 (2012); Hiva Vakil, DAB No. 2460, at 4-5 (2012). The sole
substantive issue before me is whether Palmetto and CMS properly determined
Petitioner’s effective date of enrollment based on Petitioner’s March 26, 2012
application. The fact that Petitioner previously filed an application that CMS rejected is
not relevant to my decision in this case.

4. Equitable estoppel cannot be applied against CMS.

In his brief, Petitioner argues that he is entitled to an earlier effective date because he
spoke with a CMS representative while his application was pending and felt assured that
all claims would be paid after the application was processed. Accordingly, Petitioner
continued to provide services in good faith presuming that the services would be
reimbursed by Medicare. P. Br. at 1-2. Essentially, Petitioner requests that CMS be
equitably estopped.

Because Petitioner did not allege any affirmative misconduct by Palmetto or CMS
personnel, Petitioner’s arguments amount to a claim of equitable estoppel for which I am
unable to grant any relief. 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 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
Personnel Mgmt. v. Richmond, 496 U.S. 414 (1990); Heckler v. Cmty. Health Servs. of
Crawford County, 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); U.S. Ultrasound, DAB No. 2303, at 8 (2010). Therefore, Petitioner’s
equitable estoppel argument must be rejected.
III. Conclusion

For the reasons explained above, I affirm CMS’s determination that Petitioner’s effective
date of enrollment is March 26, 2012, with a retrospective billing period commencing
February 25, 2012.

/s/
Scott Anderson
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

William A. Holley, D.P.M.
(OI File No. 2-05-40678-9),

Petitioner,
v.
The Inspector General.
Docket No. C-12-892
Decision No. CR2707

Date: February 13, 2013

DECISION

Petitioner, William A. Holley, D.P.M., appeals the determination of the Inspector General
(L.G.) to exclude him from participating in Medicare, Medicaid, and all federal health
care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C.
§ 1320a-7(a)(1)), based upon his conviction of a criminal offense related to the delivery
of an item or service under Medicare or a state health care program. For the reasons
discussed below, I find that the I.G. is authorized to exclude Petitioner and that the statute
mandates a minimum five-year exclusion.

I. Background

Petitioner is a podiatrist. In a letter dated April 30, 2012, the LG. notified Petitioner that
he was being excluded from participation in Medicare, Medicaid, and all federal health
care programs for the minimum statutory period of five years pursuant to section
1128(a)(1) of the Act. The I.G. advised Petitioner that the exclusion was based on his
conviction, in the United States District Court for the Western District of New York, of a
criminal offense related to the delivery of an item or service under Medicare or a state
health care program.
Petitioner filed a timely request for hearing. The Civil Remedies Division received the
request on June 18, 2012 and assigned the case to me for possible hearing and written
decision. I convened a prehearing conference by telephone on October 3, 2012, which is
summarized in my Order and Schedule for Filing Briefs and Documentary Evidence,
dated October 4, 2012.!

The LG. filed a motion for summary judgment and an Informal Brief (1.G. Br.) on
November 2, 2012, with I.G. exhibits (I.G. Exs) 1-4. Petitioner filed his Informal Brief
(P. Br.) on December 3, 2012, with Petitioner’s exhibits (P. Exs.) 1 through 5. The 1.G.
filed a reply brief (IG. Reply) on December 21, 2012. There were no objections to any
of the exhibits. I therefore admit into evidence I.G. Exs. 1-4 and P. Exs. 1-5.

The LG. indicated in his brief that an in-person hearing was not necessary, and the case
can be decided on the written record. I.G. Br. at 7. Petitioner indicated in his brief that
an in-person hearing was necessary to decide his case. However, Petitioner stated he had
no oral testimony he wished to offer at an in-person hearing. P. Br. at 3. Considering
Petitioner has no testimony to present, I now decide this matter solely on the written
briefs and documentary evidence.

II. Issue

The issue before me is whether the I.G. had a basis for excluding Petitioner from federal
health care programs. Program exclusion under section 1128(a)(1) must be for a
mandatory minimum period of five years, as the case is here, and therefore the
reasonableness of the length of the exclusion is not an issue. Act § 1128(c)(3)(B) (42
U.S.C. § 1320a-7(c)(3)(B)); 42 C.F.R. § 1001.2007(a)(2).

Ill. Applicable Law

Section 1128(a)(1) of the Act requires the Secretary of the U.S. Department of Health and
Human Services (Secretary) to exclude from participation in all federal health care
programs any “individual or entity that has been convicted of a criminal offense related to
the delivery of an item or service under title XVIII [Medicare] or under any State health
care program.” 42 U.S.C. § 1320a-7(a)(1); see also 42 C.F.R. § 1001.101(a). Section
1128(a)(1) does not distinguish between felonies and misdemeanors as predicates for
exclusion.

' The prehearing conference was originally scheduled for August 17, 2012; however,
counsel for Petitioner requested that the conference be postponed until sometime in
October due to his unavailability and other scheduling conflicts. I granted the request
and rescheduled the telephonic prehearing conference for October 3, 2012.
An exclusion based on section 1128(a)(1) is mandatory, and the I.G. must impose it for a
minimum period of five years. Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)); see
also 42 C.F.R. § 1001.102(a). The mandatory minimum period of exclusion may be
enhanced on the 1.G.’s proof of defined aggravating factors listed at 42 C.F.R.

§ 1001.102(b). In this case, the LG. did not rely on aggravating factors to enhance the
period of Petitioner’s exclusion beyond the minimum mandatory period of five years.

Rights to an administrative law judge (ALJ) hearing and judicial review of the final
action of the Secretary are provided by section 1128(f) of the Act (42 U.S.C.

§ 1320a-7(f)). The standard of proof is a preponderance of the evidence, and there may
be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R.

§ 1001.2007(c), (d). Petitioner bears the burden of proof and the burden of persuasion on
any affirmative defenses or mitigating factors, and the I.G. bears the burden on all other
issues. 42 C.F.R. § 1005.15(c).

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

A. There is a basis for the I.G. to exclude Petitioner pursuant to section
1128(a)(1) of the Act.

The essential elements necessary to support an exclusion based on section 1128(a)(1) of
the Act are: (1) the individual to be excluded must have been convicted of a criminal
offense, whether felony or misdemeanor; and (2) the criminal offense is related to the
delivery of an item or service under Medicare or any state health care program.

1. Petitioner does not contest that he was convicted of a criminal
offense within the meaning of section 1128(a)(1) of the Act.

An individual is “convicted” of a criminal offense when: (1) a judgment of conviction
has been entered by a federal, state, or local court whether or not an appeal is pending or
the record has been expunged; (2) there has been a finding of guilt in a federal, state, or
local court; (3) a plea of guilty or no contest has been accepted in a federal, state, or local
court; or (4) an accused individual enters a first offender program, deferred adjudication
program, or other arrangement where a judgment of conviction has been withheld. Act

§ 1128(i) (42 U.S.C. § 1320a-7(i)); see also 42 C.F.R. § 1001.2.

Petitioner does not dispute that, on January 5, 2011, Petitioner agreed to plead guilty to a
one-count Superseding Misdemeanor Information, which charged Petitioner with
violating 18 U.S.C. § 669(a) — Theft from a Health Care Benefit Program. P. Ex. 1; 1.G.
Ex. 2. Petitioner admitted as part of his plea agreement that, beginning in or about 2001
through May 2006, in the Western District of New York, he submitted claims for
reimbursement to Medicare which falsely reported the services he performed on patients.
Specifically, Petitioner admitted making false Medicare claims that asserted he
performed wedge excisions on patients, which were procedures with a higher
reimbursement rate, when he had actually only rendered routine foot care. LLG. Ex. 2, at
3-4. On May 26, 2011, the United States District Court for the Western District of New
York accepted Petitioner’s guilty plea and imposed judgment. I.G. Ex. 4. The court
sentenced Petitioner to be imprisoned for 6 months at a halfway house followed by a one-
year term of supervised release, home detention for 4 months, to pay an assessment of
$25, and to pay restitution of $36,868.33 ($36,069.57 of this amount to Medicare). LG.
Ex. 4. These events qualify as a conviction under the Act. Act §§ 1128(i)(1), 1128(i)(2),
and 1128(i)(3).

2. Petitioner does not dispute that his offense was related to the
delivery of an item or service under Medicare.

Petitioner also does not dispute that his conviction was related to the delivery of an item
or service under Medicare. His conviction was based on his submission of false claims
to Medicare for services that he did not perform, and it is evident that a “nexus” exists
between his criminal acts and the purported delivery of an item or service under
Medicare. See, e.g., Berton Siegel, D.O., DAB No. 1467 (1994). The fact that the
District Court ordered Petitioner to pay restitution to Medicare in the amount of
$36,069.57 confirms that his offense was program-related.

B. The I.G. had no discretion to exclude Petitioner under the permissive
provisions of the Act.

Although Petitioner concedes that his conviction was program-related, his principal
argument is that the offense to which he pleaded guilty, Theft from a Health Care Benefit
Program, a misdemeanor in violation of 18 U.S.C. § 669(a), meets the requirements for a
permissive exclusion under section 1128(b)(1) of the Act, 42 U.S.C. 1320a-7(b)(1).
Petitioner argues that the I.G. erred in excluding him pursuant to the mandatory exclusion
authority contained in 42 U.S.C. § 1320a-7(a)(1) because Petitioner only pleaded to a
single misdemeanor count for theft or embezzlement related to the Medicare and
Medicaid programs. P. Br. at 2.

Simply because Petitioner’s offense constituted a misdemeanor does not invalidate the
mandatory exclusion provision of section 1128(a)(1) of the Act. The text of section
1128(a)(1) does not differentiate between misdemeanor and felony convictions. The
Departmental Appeals Board previously held, “the Act expressly provides for mandatory
five-year minimum periods of exclusion whenever an individual has been convicted ‘of a
criminal offense related to the delivery of an item or service’ under specific programs . . .
without any requirement that the offense be a felony.” Craig Richard Wilder, DAB No.
2416, at 7 (2011) (quoting Tanya A. Chuoke, R.N., DAB No. 1721, at 14 (2000) (italics in
original)). Once a conviction is shown to be within the reach of section 1128(a)(1), the
Act requires the I.G. to impose a mandatory exclusion. See, e.g., Wilder, DAB No. 2416,
at 7; Lorna Fay Gardner, DAB No. 1733, at 6 (2000) (rejecting petitioner’s argument
that her misdemeanor conviction should be considered under the permissive exclusion
rather than the mandatory exclusion provisions of section 1128 of the Act.) The I.G. has
no discretion to impose a permissive exclusion where an individual’s conviction satisfies
the elements of section 1128(a)(1) of the Act. See, e.g., Tarvinder Singh, D.D.S., DAB
No. 1752 (2000) (rejecting petitioner’s claim that his misdemeanor conviction was more
properly subject to a three-year permissive exclusion when the threshold provisions of the
mandatory provisions of section 1128(a)(1) have been met).

Cc. Iam unable to consider collateral attacks on underlying convictions.

Petitioner maintains his innocence and claims that he “was swept into a federal
investigation” involving other wrongdoers. P. Br. at 6. He describes himself as “the
victim of a complex and intricate coding system” and maintains that there was no
evidence that he ever participated in any billing scheme to defraud Medicare and
Medicaid. P. Br. at 5-6. Petitioner claims that he provided medically appropriate care at
all times. P. Br. at 5-6.

Petitioner’s arguments attack the basis for his conviction. Under the regulations,
Petitioner’s underlying conviction is not reviewable or subject to collateral attack before
me, whether on substantive or procedural grounds. 42 C.F.R. § 1001.2007(d). The Board
has repeatedly affirmed this categorical preclusion. See, e.g., Lyle Kai, R.Ph., DAB No.
1979, at 8 (2005) (“Excluding individuals based on criminal convictions ‘provides
protection for federally funded programs and their beneficiaries and recipients, without
expending program resources to duplicate existing criminal processes.’” (internal cite
omitted)). Thus, I may not consider Petitioner’s arguments attacking his predicate
conviction.

D. Iam unable to consider mitigating factors for a mandatory minimum
period of exclusion.

Petitioner argues that excluding him from federal health care programs will deprive his
patients in underserved areas from receiving podiatric services. P. Br. at 4, 6-7.
Petitioner offers letters from legislators, church leaders, colleagues, and patients attesting
to his upstanding character. This evidence suggests that Petitioner is well-respected
within his community. However, as discussed above, Petitioner’s exclusion arises under
the mandatory provision of section 1128(a)(1) of the Act. The I.G. may only consider
mitigating factors in the context of a mandatory exclusion where the L.G. has alleged the
existence of certain aggravating factors for extending the period of exclusion beyond the
five-year minimum period. 42 C.F.R. § 1001.102(c). Here, because the I.G. imposed the
statutory minimum five-year period of exclusion against Petitioner, no aggravating
factors are involved, and I therefore may not consider any mitigating factors. Even if the
consideration of mitigating factors were relevant in this case, the regulations defining
mitigating factors are specific, and they do not authorize me to consider good reputation
or underserved populations. See 42 C.F.R. § 1001.102(c) (listing the only mitigating
factors that I am able to consider after aggravating factors are relied upon to increase
mandatory minimum exclusion periods).

V. Conclusion

For the foregoing reasons, I find Petitioner was convicted of a criminal offense related to
the delivery of an item or service under Medicare or a state health care program, and I
sustain the I.G.’s determination to exclude Petitioner from participating in Medicare,
Medicaid, and all federal health care programs for five years pursuant to section
1128(a)(1) of the Act.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
White Sulphur Springs Center,
(CCN: 51-5100),
Petitioner,
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-577
Decision No. CR2706
Date: February 14, 2013
DECISION
White Sulphur Springs Center (Petitioner or facility), challenges the determination of the
Centers for Medicare and Medicaid Services (CMS) that it was not in substantial
compliance with Medicare program requirements for accident prevention and adequate
supervision for one of its residents on May 11, 2011. Petitioner also challenges CMS’s
imposition of a per-instance civil money penalty (CMP) of $10,000. For the reasons
discussed below, I sustain CMS’s imposition of the CMP.

I. Procedural History

Petitioner is a skilled nursing facility, located in White Sulphur, West Virginia, that
participates in the Medicare and Medicaid programs. The West Virginia state survey
agency conducted a survey of Petitioner from May 11 through May 19, 2011. Based on
the survey results, CMS determined Petitioner to not be in substantial compliance with
program participation requirements.

By notice dated June 24, 2011, CMS advised Petitioner that it was imposing a $10,000
per-instance CMP for an instance cited on May 11, 2011 that involved Petitioner’s
supervision of a resident while he ate and drank. Petitioner timely filed its request for
hearing on June 30, 2011, challenging the deficiency findings and the related per-instance
CMP.

I presided over a hearing held in Beckley, West Virginia, from January 18 through 19,
2012. Ata prehearing telephone conference, I admitted into evidence CMS Exhibits
(Exs.) 1-37 and Petitioner Exhibits (P. Exs.) 1-52. Summary of Prehearing Conference
and Order Establishing Procedures for Hearing (December 7, 2011); see also Transcript
(Tr.) at 7-8. At hearing, I also admitted into evidence a revised CMS Ex. 37. Tr. at 9. I
excluded the written direct testimony of one of Petitioner’s witnesses (P. Ex. 46), in
accordance with my July 8, 2011 Prehearing Order, because Petitioner was unable to
produce the witness for cross-examination. Tr. at 436-37.

A transcript of the proceedings was prepared, and I afforded the parties an opportunity to
review the transcript and file post-hearing briefs and replies. CMS filed its suggested
errors and proposed corrections on March 8 and April 3, 2012. In its post-hearing brief
Petitioner (P. Br.) advised me of errata. P. Br. at 2 n.3. There being no objections, the
transcript is amended to reflect the noted errors.

Il. Background

This case involves one resident, referred to as “R14” for privacy reasons, and the events
that occurred on the morning of May 11, 2011, during an annual survey of the facility.
R14 was 68-years-old at the time and had been at the facility since July of 2003,
following a stroke at age 60. He suffered from several severe medical conditions that
included Alzheimers, vascular dementia resulting from a stroke, late effects of a
cerebrovascular accident with left-sided hemiplegia, and severe dysphagia, which posed a
risk for choking and aspiration. He was edentulous, had a history of choking when he
ate, and was identified as at high risk of choking or aspirating due to impaired
swallowing function. CMS Ex. 11, at 16; see also CMS Exs. 10, at 34; 37, at 8. An
April 6, 2011 Minimum Data Set (MDS) assessment noted that R14 required the
extensive physical assistance of one staff member to eat. CMS Ex. 12, at 11.

On May 11, 2011, a nurse assistant served R14 breakfast in bed and then left the room
while he ate. CMS Ex. 7, at 1, 2; P. Ex. 43, at 2-4. The facility claimed it provided
“distant supervision” consisting of a nurse nearby in the hallway auditorily monitoring
R14 while administering medications to other residents whose rooms were also along the
hallway. Tr. at 405-06; P. Exs. 34, at 4; 43, at 2; P. Br. at 18; see also CMS Ex. 9 (floor
plan of Petitioner’s facility).

While conducting a routine survey at Petitioner’s facility this same morning, at
approximately 9:15 a.m., a state surveyor, Jackie Lee Wickline, R.N., was in the hallway
corridor outside of R14’s room when she looked into the room and noticed R14 eating
breakfast. She reported his meal was on a bed tray situated above his abdomen, there was
no staff in or near his room, and she found him slumped sideways with his head, right
arm, and right shoulder pressed against the side-rail of his bed. When she approached
R14, she reported that he told her “I choked on my eggs.” She noticed that there were
partially chewed eggs on the front of his shirt and on his chin. The surveyor also reported
that R14 told her that he did not know where his call light was, and she noticed that the
call light was wedged between the air mattress and the side-rail of the bed. She observed
that he was unable to position himself upright upon her cueing. After discovering R14 in
that position, the surveyor requested assistance from a nursing assistant who came and
repositioned R14 away from the side-rail. CMS Exs. 1, at 23, 25; 22, 4913, 14; Tr. at 27.

The parties do not dispute that R14 required supervision during meals due to his choking
and aspiration risks. Rather, the parties disagree as to the level of supervision that
Petitioner was required to provide to ensure an environment that would make it as safe as
possible for R14 to consume food and liquids. CMS argues that Petitioner failed to
provide R14 with the supervision he required to be as safe as possible while eating and
drinking in his bed, which included visually supervising him while he ate to ensure he
practiced safe swallowing strategies, positioning him in a 90 degree angle, and ensuring
he had access to his call light. Petitioner argues, however, that its staff did monitor R14
and that he only required “distant supervision” while he ate in his room. Petitioner
maintains that this level of supervision allowed the facility to maintain a proper balance
between R14’s safety and his autonomy. CMS Post-hearing Brief (CMS Br.) at 1; P. Br.
at 2.

III. Issues

a. Whether Petitioner was in substantial compliance with adequate
supervision requirements at 42 C.F.R. § 483.25(h) (Tag F323) considering
its level of supervision of R14’s eating and drinking situation on May 11,
2011; and,

b. Whether the $10,000 per-instance CMP that CMS imposed was reasonable.

I have no authority to review CMS’s determination that Petitioner’s noncompliance
constituted immediate jeopardy. See, e.g., Hanover Hill Health Care Ctr., DAB No.
2617, at 3-4 (2012) citing Social Security Act § 1819(f)(2)(B); 42 C.F.R.

§ 483.151(b)(2)(iv) (explaining that with the imposition of a penalty of $5,000 or more, a
state agency cannot approve a nurse aid training program regardless of any immediate
jeopardy finding, which ultimately precludes administrative law judge (ALJ) review of
CMS’s immediate jeopardy finding that involves a per-instance CMP). Further, a finding
of actual harm to a resident is not necessary to conclude that Petitioner was not in
substantial compliance. See 42 C.F.R. § 488.301. Therefore, in order to substantiate that
Petitioner was not in substantial compliance with federal requirements, I need only find
that Petitioner’s violation resulted in the potential for more than minimal harm to R14.
Id.

A facility must ensure that each resident receives adequate supervision and assistance
devices to prevent accidents. 42 C.F.R. § 483.25(h)(2). In Meridian Nursing Ctr., DAB
No. 2265, at 3 (2009), the Board interpreted the requirements of this subsection, stating:

Section 483.25(h)(2) requires that a facility take “all reasonable steps to
ensure that a resident receives supervision and assistance devices that meet
his or her assessed needs and mitigate foreseeable risks of harm from
accidents.” Briarwood Nursing Center, DAB No. 2115, at 11 (2007), citing
Woodstock Care Ctr. v. Thompson, DAB No. 1726 (2000) (facility must
take “all reasonable precautions against residents’ accidents”), aff'd,
Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).

The Board has also held that facilities “have the ‘flexibility to choose the methods of
supervision’ to prevent accidents so long as the methods chosen are adequate in light of
the resident’s needs and ability to protect himself or herself from a risk.” Briarwood
Nursing Ctr., DAB No. 2115, at 5, citing Liberty Commons Nursing & Rehab —
Alamance, DAB No. 2070, at 3 (2007). A facility is not required by 42 C.F.R.

§ 483.25(h)(2) to ensure that its residents never sustain accidents, thus the regulation does
not impose a strict liability standard on a facility.

IV. Findings of Fact and Conclusions of Law
a. R14 had impaired swallowing, breathing, cognition, and mobility.

It is undisputed that R14 had several medical conditions that affected his swallowing,
breathing, cognition, and mobility. CMS Ex. 10, at 1. As for his mobility challenges,
R14 had partial paralysis of one side of his body, and his April 2011 MDS noted that he
required extensive assistance with his activities of daily living (ADLs) with one, and at
times two, staff assisting him. CMS Exs. 10, at 1; 12, at 1; see also CMS Ex. 11, at 5
(R14’s plan of care).

The level of assistance required for R14’s ADLs as noted in his April 2011 MDS is
consistent with prior MDS assessments. See CMS Exs. 13-15, at 7-8. As for his
cognitive ability, R14 had significant impairment due to a stroke, dementia, and
schizoaffective disorder. CMS Exs. 10, at 1; 11, at 8. The record shows that R14’s
attending physician noted in February 2011, that R14 lacked “sufficient mental or
physical capacity to appreciate the nature and implication of health care decisions,” and
that the duration of his incapacity was long-term. CMS Ex. 34, at 1. The record also
shows that R14 had poor sitting balance and could not always maintain a 90 degree
position in bed. Tr. at 204. R14 was also diagnosed with chronic obstructive pulmonary

disease (COPD), a condition that resulted in a compromised respiratory system. As of
April 27, 2011, he was on continuous oxygen due to being short of breath and tiring
easily. CMS Ex. 10, at 1, 2, 26.

Petitioner acknowledges that R14 was at risk when he ate and drank. In its post-hearing
brief Petitioner states: “Petitioner’s witnesses testified that the Resident’s attempts to eat
or drink virtually any foods or beverages can cause him to aspirate foreign matter into his
trachea, which can cause choking and a life-threatening condition known as aspiration
pneumonia.” P. Br. at 5-6, citing P. Exs. 41, at 1; 42, at 1; Tr. at 203, 382. So clearly, if
Petitioner did not to take all reasonable steps to prevent R14 from choking or aspirating,
it is undisputed that there was the potential for more than minimal harm to R14.

b. Petitioner did not substantially comply with adequate supervision
requirements because no one was in the room observing R14 while he ate
and drank on May 11, 2011.

1. A staff member was not present in the room to immediately intervene
if he choked or aspirated.

R14’s care plan recognized that he was a “very high risk for aspiration,” and that he
“chokes easily.” CMS Exs. 10, at 2; 11, at 6, 16. R14’s most recent care plan meeting
summary, dated April 27, 2011, stated that “[t]he resident continues to be [a] very high
risk for aspiration. . . . He is to be supervised while eating/drinking.” CMS Ex. 10, at 2.
R14’s MDS states that he requires extensive assistance of one staff with eating. CMS
Exs. 12, at 11; 13, at 8; 14, at 8; 15, at 8.

However, on May 11, 2011, the record shows that a nurse assistant served R14 breakfast
in bed and then left him alone to eat with what Petitioner describes as “distant
supervision” being provided. The “distant supervision” consisted of a nurse nearby in the
allway monitoring R14 while administering medications to other residents whose rooms
were also along the hallway. Tr. at 405-06; CMS Ex. 7, at 1, 2; P. Exs. 34, at 4; 43, at 2-
3; CMS Ex. 9.

The evidence clearly shows that distant supervision was not adequate to meet R14’s
needs. R14’s care plan did not specify that distant supervision was an adequate level of
supervision to facilitate the interventions identified so R14 could safely consume food
and liquids. Further, R14’s MDS notes that he requires the extensive assistance of at
least one staff when eating eat. CMS Ex. 12, at 11.

When considering the record as a whole, it is reasonable to expect that staff needed to
observe R14 in order to immediately assist him if he choked or aspirated.
Lindsay McWilliams Day, a speech and language pathologist (SLP) who worked with
R14, explained that R14 had significant swallowing problems, noted that he had a history
of choking when he ate, and was at high risk of aspiration. P. Ex. 40, at 2. At hearing,
SLP Day testified that it was a risk for R14 to be on an oral diet. Tr. at 200. Jennifer
Groves, another SLP who worked with R14, stated in her direct testimony that “my
professional judgment is that it is not safe for him to have any oral intake at all at this
point.” SLP Groves stated that she and her colleagues recommended that R14 receive
intake via a feeding tube, but both the resident and his family insisted that he continue
with a mechanical soft diet with some pureed items. P. Ex. 41, at 1-2.

During the survey, Surveyor Wickline interviewed SLP Day regarding the level of
supervision R14 required to eat. SLP Day initially responded that R14 could be
supervised by indirect supervision, i.e., by staff passing by in the hall. When Surveyor
Wickline asked SLP Day if staffing were not an issue, what type of supervision would
she recommend for R14, SLP Day responded that she would recommend direct
supervision. CMS Exs. 1, at 24; 37, at 1; 23, 8. During the survey Surveyor Beverly
Hissom, RN, sat in on the interview of SLP Day. Surveyor Hissom confirmed in her
written direct testimony that when SLP Day was asked the level of supervision needed
for R14 while eating if staffing issues were not a concern, SLP Day responded that R14
needed direct supervision, meaning staff had to be present when R14 was eating. CMS
Ex. 23, 98.

Petitioner argues that distant supervision was adequate because a staff member would be
able to hear R14 choke or aspirate and then be able to quickly enter the room and assist
im. P. Reply at 6-8. However, just being within earshot of the resident was not

sufficient because R14 could choke or aspirate quietly or silently, as SLP Donna Rife
confirmed. Ms. Rife provided speech and language therapy to R14 and was familiar with
is safety needs. She explained that when she was working with R14 she noticed that he
aspirated on everything due to his severe dysphagia. P. Ex. 42, at 1. Further, SLP Rife
stated that back in 2006 and 2008 when she worked with R14, he would cough and get
choked up, but he had silent aspirations as well. Jd.

I find Petitioner’s failure to follow R14’s plan of care interventions, the interventions that
its own interdisciplinary team developed to address R14’s foreseeable risk of aspirating
and choking, persuasive evidence that Petitioner was not in compliance with the
requirements of 42 C.F.R. § 483.25. See Alden Town Manor Rehab., DAB No. 2054, at
7-8 (2006)(if a facility has identified and planned for a hazard and then failed to follow
its own plan, that may be sufficient to show a lack of compliance with the regulatory
requirement (quoting Maine Veterans’ Home — Scarborough, DAB No. 1975
(2005)(footnote omitted)). Based on R14’s care plan and supporting documents and
testimony, I do not find credible Petitioner’s claims that distant supervision outside of
R14’s room would suffice as adequate supervision while he ate and drank.
2. A staff member was not present in the room to ensure R14 practiced
safe swallowing strategies.

R14’s care plan also specified that he had “impaired swallowing due to dysphagia and is
edentulous — Resident is at risk for aspiration, chokes easily.” One of the interventions
required to ensure R14’s safety was that staff should supervise, cue, and assist R14 as
needed with meals. CMS Ex. 11, at 16. R14’s speech therapy progress notes confirm
that he required cueing to implement safe swallowing strategies to reduce aspiration.
CMS Ex. 10, at 28, 30.

Other evidence also supports this care plan intervention. SLP Day discussed safe
swallowing strategies in her discharge recommendations and testified at hearing that R14
needed supervision “to implement small bites, small sips, things along those lines, to
reduce the risk,” and that he required “cues to demonstrate safe swallowing strategies, or
to remember them all the time.” She also noted that he would do the chin tuck
(positioning his head to limit aspiration) if she were “sitting there telling him to do it.”
Tr. at 209, 212, 213, 220; CMS Ex. 10, at 29. In a therapy progress notation dated
January 13, 2011, SLP Day wrote that she cued R14 to keep his chin down, and when she
did, he demonstrated no more overt signs and symptoms of aspiration. P. Ex. 50, at 1.
SLP Groves also testified that she cued R14 in order to encourage him to implement the
chin tuck strategy. Tr. at 192. The evidence shows that the SLPs who had worked with
R14 confirmed that he required some cueing to implement safe swallowing strategies.
CMS Ex. 10, at 28, 30.

SLP Day also testified that although R14 had shown that he knew what was required if
asked, he needed cues to demonstrate and even to remember the strategies consistently.
So, while he was eating he would need to be cued at times to remember to practice the
safe swallowing strategies. Tr. at 210. While R14 needed to implement small bites and
small sips to swallow safely while eating, he did not have capacity to be relied upon to
recall this without staff present to cue him. SLP Day testified that she provided
instruction to CNAs on how to implement these strategies with R14. Tr. at 213.

Although R14’s medical record shows that he required staff cues to implement safe
swallowing strategies, and these strategies were also a part of his care plan requirements,
on May 11, 2011, the nursing assistant served R14 served breakfast in bed and then left
him alone in the room to eat and drink with “distant supervision” which entailed a nurse
nearby in the hallway monitoring R14 while she administered medications to other
residents along the hallway. Tr. at 405-06; CMS Ex. 7, at 1, 2; P. Exs. 43, at 2-3; 34, at
4. Clearly, R14 could not be effectively cued to implement safe swallowing strategies
during oral intake if no one was present in his room while he ate and drank.

Staff’s failure to provide the required cueing to R14 on May 11" does not appear to be an
isolated incident either. At hearing, two of Petitioner’s witnesses testified that, prior to
the survey, they did not visually supervise R14 when he ate in his room. Tr. at 407-08,
426-27; P. Ex. 43, at 2. Byrda Tincher, who was related to R14 and worked as a CNA at
the facility for 11 years testified that it was the aides who supervised R14 when he ate.
She also testified that she was not aware of any standing instructions for the CNAs to
monitor R14 when he ate in his room. CNA Tincher noted that prior to the survey R14
ate in bed by himself after staff had set him up in bed at a 90 degree angle. She stated
that “he ate by himself, we didn’t have to supervise.” Tr. at 426-27. Judy Fogus, LPN,
had worked at the facility for seven years at the time of the survey and was also related to
R14. She was responsible for overseeing a total of 36 beds and supervising two to three
CNAs. She acknowledged at hearing that prior to the survey when R14 was eating in his
room she did not keep an eye on R14 herself, and there were no instructions that she was
aware of requiring staff to watch R14 when he ate in his room. She further stated she
was not aware if CNAs took any special action to watch R14 when he ate his meal in his
room. Tr. at 407-08.

R14’s assessments and his SLP progress notes show that he was inconsistent in his
performance of the compensatory strategies required for his safety while eating. The
assessments from the SLPs and his care plan required staff to supervise, cue and assist
him while he ate his meals. It is unreasonable to expect staff would be able to adequately
supervise R14 for signs of aspiration, coughing or choking and also cue him to use the
safe swallowing strategies, including the chin tuck, while also having primary
responsibility for medication passes for the other residents down the hall. Additionally, I
do not find being within earshot of R14 via “distant supervision” is adequate, especially
in light of the evidence that R14 could choke or aspirate silently. Clearly these quiet or
silent episodes would not be detectible to staff who were attending to other resident needs
in other rooms.

c. Petitioner did not substantially comply with adequate supervision
requirements on May 11, 2011 because it did not maintain R14 in a 90
degree upright position while he ate and drank alone, and it did not ensure
he could reach his call light to request assistance.

R14’s care plan also required that he be in a 90 degree upright position when he was
swallowing food or drinking. CMS Ex. 11, at 16.

This care plan requirement was consistent with other evidence in the record including
R14’s assessment to maintain a midline position in bed. R14 had poor balance while
sitting and was unable to position himself in bed without the extensive assistance of two
staff members. CMS Exs. 10, at 31; 12, at 11. An SLP also assessed R14 in January
2011 and determined he required a pillow to maintain midline position in bed during
meals. In a note dated December 31, 2012, SLP Groves recommended that R14 sit in an
upright position while in bed with “pillow positioning” under his right side to assist him
in maintaining an upright position. CMS Ex. 10, at 30. A December 31, 2010 progress
note states: “Swallowing Therapy (92526) to assess and modify positioning to enhance
swallow function including repositioning the patient in bed, with head of bed elevation
and pillow positioning under right side of body to increase ability to sustain midline
position... .” CMS Ex. 10, at 31. A Speech Therapy Discharge Summary for services
ending January 14, 2011 notes that “Therapist provides staff education for safe swallow
strat[egies], specifically for sitting upright 90 degrees in bed or [wheelchair]for meals to
take small bites/sips. CMS Ex. 10, at 29. However, at hearing SLP Day testified that she
was not surprised when the surveyor found R14 slumped over while eating. She
explained that R14 could slip to that position even after staff had set him up in a 90
degree upright position. Tr. at 205. She testified further that once R14 fell from the 90
degree position he needed assistance for repositioning in bed. Tr. at 204. In a treatment
note dated January 12, 2011, SLP Day wrote that when R14 was placed in an upright 90
degree position and drank milk he did not show any overt signs and symptoms of
aspiration. P. Ex. 50, at 1. SLP Day testified that R14 needed to be supervised by staff,
and that with staff assistance, he could sit upright 100 percent of the time. Tr. at 212,
215. SLP Donna Rife testified that sitting in a 90 degree angle “could reduce [R14’s]
risk of aspiration.” Tr. at 387.

At hearing LPN Fogus testified that it was important for R14 to be sitting in an upright
position when he ate in a bed or in his wheelchair. As for R14’s ability to maintain an
upright position on his own, she stated that he was able to pull himself up with the use of
side-rails — “most of the time.” Tr. at 408-09. In her written direct testimony, LPN
Fogus noted that R14 would tend to slide down even when bolstered with pillows and
that staff were aware of this. P. Ex. 43, at 2. She further explained at hearing that when
R14 does slide he is unable to reposition himself without the assistance of staff. She
stated “[h]e could get the rail and pull himself over. But to pull himself up in the bed, he
couldn’t do that.” Tr. at 410. LPN Fogus also noted that even after R14 was
repositioned, he would eventually slide down given he was on an air mattress, and staff
would need to upright him and place “some pillows behind him” so he could eat. She
noted that these interventions would assist him in maintaining an upright position so he
could eat. Tr. at 411.

The testimonial and documentary evidence, which includes R14’s clinical assessments,
all note that it was important for him to eat at a 90 degree angle while sitting in bed or in
his wheelchair. While R14’s care plan required that staff implement this strategy, on
May 11, 2011, the state surveyor found R14 slumped over. Prior to Surveyor Wickline
discovering R14 at 9:15 a.m., the record shows that earlier that morning at about 8:35
a.m., R14 had experienced an episode of coughing. The evidence shows that a nurse
assistant brought R14 his breakfast tray that morning at around 8:30 a.m., set him up and
then left. She then returned about 5 minutes later after hearing him cough. She found
him leaning to the left so she then pulled him to the middle of the bed and had an LPN to
assist her. P. Exs. 32, at 2; 39, at 2; CMS Ex. 7; P. Br. at 19. R14 was then left alone to
continue to eat his meal until he was discovered by Survey Wickline at 9:15 a.m. ina
slumped position. Although the evidence shows that a nurse propped R14 up earlier,

10

Petitioner does not dispute that the surveyor found him slumped over when she observed
him.

The evidence also shows that it was a continuing challenge for R14 to maintain a midline
balance while eating, and facility staff were specifically directed to ensure he was
maintained in a 90 degree angle while he ate. CMS Exs. 10, at 31; 11, at 16; 12, at 11.
To facilitate this, R14 had the option of eating his meal in the restorative nursing rehab
dining room where he would be supervised. If R14 chose not to go to the restorative
nursing rehab dining room, then he could have his meal in his room, either in his
wheelchair or in his bed. CMS Ex. 11, 1-3; P. Exs. 26, at 1; 32, at 1. Regardless of the
option R14 chose, Petitioner needed to ensure that staff provided R14 with the identified
supervision and assistance that his care plan required.

R14’s care plan also required staff to place a call light within his reach at all times. CMS
Ex. 11, at 16. It was foreseeable that R14 could choke or aspirate while eating.
Therefore, if he was left alone in his room, which was undisputed on the morning of May
11, R14 should have at least been able to activate his call light for help if he started to
choke or aspirate. However, when Surveyor Wickline observed R14 that morning, she
discovered him wedged into the side-rail of the bed with his forehead pressed against the
side-rail. CMS Ex. 22, §13. When she asked him where his call light was, he told her
that he did not know. She then looked for the call light and saw that it was wedged
between the right side-rail and the mattress. She also noted that he was not able to reach
the call light. CMS Ex. 22, 414.

As noted earlier, if care plan supervision requirements are not met, then that may
constitute a violation of accident prevention and adequate supervision regulations. See
Alden Town Manor Rehab., DAB No. 2054, at 7-8. Here, on May 11, 2011, Petitioner
failed to meet the supervision requirements outlined in R14’s care plan — that he be in a
90 degree upright position when he swallowed food or drank liquids and that he be within
reach of his call light. Considering Petitioner did not take these reasonable steps, I find
R14’s potential to choke or aspirate was a foreseeable risk that involved the possibility of
more than minimal harm. Therefore, I do not find that Petitioner was in substantial
compliance with the Medicare requirement at 42 C.F.R. § 483.25(h).

d. Petitioner did not rebut, by a preponderance of the evidence, CMS’s showing
of an inadequate supervision deficiency.

A sanctioned facility must prove substantial compliance by a preponderance of the
evidence once CMS has established a prima facie case that the facility was not in
substantial compliance with relevant statutory or regulatory provisions. See Cross Creek
Health Care Ctr., DAB No. 1665 (1998), applying Hillman Rehab. Ctr., DAB No.
1611(1997), aff'd, Hillman Rehab. Ctr. v. HHS, No. 98-3789 (GEB), at 25 (D.N.J. May
13, 1999). The evidence CMS offers to support its arguments that Petitioner failed to
11

provide adequate supervision to R14 is persuasive, and Petitioner does not sufficiently
rebut it.

Consistently throughout these proceedings, Petitioner has argued that R14 did not wish to
be supervised while eating and that R14 had the right to refuse this treatment. A resident
does have the right to refuse treatment, choose health care, and to make choices about
significant aspects of his or her life in the facility. See 42 C.F.R. §§ 483.10(b)(4);
483.15(b)(1); 483.15(b)(3). However, the resident’s care plan must outline the services
to be provided to the resident. Any services that would otherwise be required under the
quality of care requirement at 42 C.F.R. § 483.25, but can not be provided due to the
resident’s exercise of his or her rights, including the right to refuse treatment, and the
resident’s right to choose health care must be identified and “consistent with his or her . .
. assessments, and plans of care.” See 42 C.F.R. §§ 483.20(k)(1)(ii), 483.15(b)(1).

In Van Duyn Home & Hosp., DAB No. 2368 at 6-7 (2011) the Board noted that when a
resident refuses treatment, a facility has an obligation to ensure that the refusal is an
informed one, that the basis for the resident’s refusal is properly addressed, and that the
facility offers alternatives. Here, the record shows that Petitioner failed to specifically
assess and plan for any refusal of R14 for the interventions outlined in his care plan goal
that addressed his impaired swallowing and risk for aspiration and choking. Although
Petitioner permitted R14 to eat in his room rather than the restorative rehab nursing
dining area, staff did not provide the necessary resources R14 needed to safely effectuate
that resident choice.

While there is no dispute that residents have a right to refuse treatment, Petitioner has a
countervailing duty to protect the individuals under its care against accidents. Therefore,
while the regulations support a resident’s right to refuse care, such right is not absolute
and should be consistent with the resident’s interest, assessments, and plans of care. See
Innsbruck HealthCare Ctr., DAB No. 1948, at 7-8 (2004). Additionally, a resident’s
right to refuse treatment does not absolve a facility from a continuous effort to comply
with the regulations by use of other means — to allow this would mean facilities could
permit residents to refuse treatments to the point of injury or death. See Koester
Pavillion, DAB No. 1750, at 28 (2000) (“It is simply unacceptable to abdicate the duty to
supervise or use assistive devices to prevent falls even when the resident, for whatever
reason, is resistant, noncompliant, or difficult to deal with.”). A facility is entrusted with
balancing necessary care and services with a resident’s right to refuse treatment. See also
54 Fed. Reg. 5316, 5332 (Feb. 2, 1989) (preamble to the implementing regulations
stating: “ [w]e also think it is reasonable to require the facility to ensure that the resident
does not deteriorate within the confines of a resident’s right to refuse treatment and
within the confines of recognized pathology and the normal aging process”); CMS’s State
Operations Manual, App. P (Tag F323)(the regulations do not create a right for a
resident, legal surrogate or representative to demand a facility use specific medical
interventions or treatments that the facility deems inappropriate).

12

Petitioner’s claim that they were respecting R14’s wishes and rights when they allowed

im to eat with distant supervision while he was in his bed is not persuasive. Petitioner
was still required to continue to provide adequate supervision to R14 and cannot avoid
this deficiency citation by claiming to have been honoring the resident and family’s
wishes without modifying his care plan.

Petitioner maintains that its staff was well aware of R14’s risk of choking and aspirating.
P. Br. at 5, 6, 24. Petitioner also asserts that R14 has been a resident at the facility for
eight years and that staff was providing exactly the level of supervision both the resident
and his family demanded over the years. There is no doubt that over the years
Petitioner’s staff provided much care and attention to R14. As Petitioner asserts in its
post-hearing brief, R14’s treatment and care were without significant adverse
consequences over that period of time. However, this good historical safety record for
R14 cannot compensate for Petitioner’s inadequate supervision of R14 on May 11, 2011,
when facility staff failed to provide R14 with the interventions outlined in his care plan in
order to keep him safe while eating. Further, for Petitioner to argue that R14 historically
received the same level of supervision as on May 11 increases its culpability by
demonstrating an ongoing disregard for R14’s safety.

Petitioner’s assertions regarding R14’s wife’s desire to allow R14 to eat where he wanted
do not justify why R14 was not provided with the required interventions to keep him safe
while eating. Even when R14 chose to eat in his room and in his bed, there was no
reason why he was not provided with the level of supervision that would have allowed
staff to monitor him as necessary and to provide him with the assistance required to
remain safe. Further, R14’s wife’s testimony and the evidence Petitioner presented
simply do not support Petitioner’s assertions as to R14’s wife’s refusals. Specifically,
Petitioner has presented no evidence to show that R14’s wife, as his medical power of
attorney, refused permission for Petitioner to use proper positioning pillows, to remind
R14 to use safe swallowing strategies, to ensure R14 remained in an upright position
while eating, and to assist R14 in clearing his airway in the event his airway became
blocked. CMS Ex. 7, at 5; P. Exs. 3; 22, at 2; 25, at 2; 38; P. Br. at 3.

In summary, the record shows that in spite of the concerns of R14’s SLP’s, his
occupational therapist, and his attending physician as to his safety when consuming an
oral diet, Petitioner continued to allow R14 to eat without proper supervision in his room
— thus failing to take into account the recommendations of its own professionals and the
concerns they continually raised over the years regarding R14’s safety in regards to the
risks of his consuming food orally. Although R14’s wife, as his medical power of
attorney, declined recommendations of a feeding tube option, Petitioner still had a duty to
ensure R14 was adequately supervised while eating. The record is clear that given R14’s
swallowing difficulties, cognitive deficits, and limited physical functioning, he needed a
staff member present while he ate and drank. If Petitioner wanted to continue to provide
13

residential nursing services to R14, then Petitioner was responsible to provide the level of
staff needed to ensure R14’s safety while in its facility.

e. The $10,000 per-instance CMP that CMS imposed is reasonable.

To determine whether a CMP is reasonable, I apply the factors listed in 42 C.F.R.

§ 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial
condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of
culpability, which includes neglect, indifference, or disregard for resident care, comfort
or safety. The absence of culpability is not a mitigating factor. The factors in 42 C.F.R.
§ 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the
deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior
history of noncompliance in general and specifically with reference to the cited
deficiencies.

I consider whether the evidence supports a finding that the amount of the CMP is at a
level reasonably related to an effort to produce corrective action by a provider with the
kind of deficiencies found, and in light of the section 488.438(f) factors. I am neither
bound to defer to CMS’s factual assertions nor free to make a wholly independent choice
of remedies without regard for CMS’s discretion. Barn Hill Care Ctr., DAB No. 1848, at
21 (2002); Cmty. Nursing Home, DAB No. 1807, at 22 et seq. (2002); Emerald Oaks,
DAB No. 1800, at 9 (2001); CarePlex of Silver Spring, DAB No. 1638 at 8 (1999).

Unless a facility contends that a particular regulatory factor does not support the CMP
amount, the ALJ must sustain it. Coquina Ctr., DAB No. 1860 (2002). With respect to
its financial condition, it would be Petitioner’s responsibility to show that it cannot pay
the CMP. Petitioner was free to call any witnesses to testify to its financial condition or
to submit any documentary evidence regarding its financial condition. However,
Petitioner provided no evidence to show that its financial condition hinders it from
paying the proposed CMP.

The seriousness of the deficiency was high and had the potential of causing at least
minimum harm to R14. R14’s swallowing difficulties placed him at risk of choking, thus
food could block his airway and if not promptly dislodged could result in death. P. Reply
at 1 (stating that R14 was at high risk of choking and aspirating and that these risks could
cause harm and even death); see also P. Br. at 5-6, citing P. Exs. 41, at 1; 42, at 1; Tr. at
203, 382. R14 was also at risk of aspirating when food could enter his lungs rather than
his digestive system and, once there, could result in a lung infection and lead to
pneumonia. This scenario was particularly disconcerting given R14’s lung function was
already compromised by COPD, which placed him at further risk of aspirating food and
liquids. CMS Ex. 10, at 1, 2, 26.
14

The facility’s culpability here was high. R14’s record is replete with documentation that
R14 needed to be directly supervised while eating. Not only did I find that Petitioner left
R14 alone on May 11, 2011, but the evidence shows this was not a one-time occurrence.

See supra Parts IV(b)(2) & (c).

Given the seriousness of the deficiency and the culpability of the facility, the CMP is
reasonable. CMS imposed a penalty of a $10,000 per-instance CMP, which although at
the higher range for a per-instance CMP ($1,000-$10,000), is modest considering what
CMS might have imposed considering the evidence of continuing non-compliance and
disregard for safety requirements in R14’s care plan. 42 C.F.R. § 488.408(e)(1)(iv); see
Plum City Care Ctr., DAB No. 2272, at 18-19 (2009) (observing that even a $10,000 per-
instance CMP can be “a modest penalty when compared to what CMS might have
imposed”). Further, the absence of a history of non-compliance is not a mitigating factor
and not a basis to find a $10,000 per-instance CMP unreasonable. Jd. at 19.

V. Conclusion

Petitioner did not substantially comply with 42 C.F.R. § 483.25(h)(2) because on May 11,
2011, it did not take all reasonable steps necessary, as specified in a resident’s care plan,
to adequately supervise the resident while eating to prevent the foreseeable risk of his
choking or aspirating. Furthermore, I find the $10,000 per-instance CMP that CMS
imposed is reasonable.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Christina Diane Guerrero
(O.L File No. H-10-40489-9),

Petitioner
v.
The Inspector General.
Docket No. C-12-1105
Decision No. CR2703
Date: February 6, 2013
DECISION
Petitioner, Christina Diane Guerrero, is excluded from participation in Medicare,
Medicaid, and all other federal health care programs pursuant to section 1128(a)(2) of the
Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(2)), effective June 20, 2012.
Petitioner is excluded because Petitioner was convicted in the Superior Court of
California for failure to report abuse under California Welfare and Institutions Code
§ 15630(h). There is a proper basis for the exclusion. Petitioner’s exclusion for the

minimum period! of five years is mandatory pursuant to section 1128(c)(3)(B) of the Act
(42 U.S.C. § 1320a-7(c)(3)(B)).

' Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after the
period of exclusion expires. Reinstatement is not automatic upon completion of the
period of exclusion.
I. Background

The Inspector General for the Department of Health and Human Services (L.G.) notified
Petitioner by letter dated May 31, 2012, that she was being excluded from participation in
Medicare, Medicaid, and all federal health care programs for the minimum statutory
period of five years pursuant to section 1128(a)(2) of the Act. The basis cited for
Petitioner’s exclusion was her conviction in the Superior Court of California, County of
Mendocino, of a criminal offense related to neglect or abuse of patients in connection
with the delivery of a health care item or service. Act § 1128(a)(2); 42 C.F.R.

§ 1001.101(a). Petitioner requested a hearing pursuant to 42 C.F.R. § 1005.2, by letter
dated July 5, 2012, which was received by the Civil Remedies Division on July 16, 2012.
The case was assigned to me for hearing and decision on August 7, 2012. On August 29,
2012, I convened a telephonic prehearing conference, the substance of which is
memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and
Documentary Evidence (Prehearing Order) dated August 29, 2012. During the
conference, Petitioner did not waive an oral hearing and the I.G. requested an opportunity
to file a motion for summary judgment.

The LG. filed a motion for summary judgment and supporting brief (1.G. Brief) on
September 20, 2012, with I.G. Exhibits (I.G. Exs.) 1 through 7. Petitioner filed her
response (P. Brief) on November 7, 2012, with several documents attached that I treat as
P, Ex. 1.? Petitioner filed several documents with her request for hearing that were also
not marked as exhibits that I treat as P. Ex. 2.> The LG. filed a reply on November 28,
2012. The LG. included eight exhibits with the I.G. Reply, marked as LG. Exs. 1 through
8. On November 30, 2012, I declined to accept the I.G. Reply and LG. exhibits
submitted with the reply as the exhibit numbers duplicated the exhibits numbers used for

> Petitioner failed to properly mark her documents as exhibits as instructed in my August
29, 2012 Prehearing Order and the Civil Remedies Division Procedures (CRDP). Rather
than return the documents to Petitioner to be correctly marked, I will refer to the
documents collectively as P. Ex. 1. The documents attached to Petitioner’s brief are
described as follows: Letter, dated October 27, 2012, from Cammy Michel, PhD.; Order
For Dismissal, dated November 6, 2012; Notice and Order re: Fees Due for Dismissal,
dated November 6, 2012; Petition for Dismissal, dated October 18, 2012.

> The documents filed with the request for hearing that I treat as P. Ex. 2 are described as
follows: Order of Summary Probation dated April 7, 2011; letter dated December 9,
2009, from John P. Jones; letter dated July 5, 2012, from Jane Dressler; letter dated
September 2, 2010, from Liona Andrew; letter dated July 5, 2012, from Adam Willits;
undated letter from Ashley Buonanno; undated letter from Allison Buell; letter dated June
15, 2012, from Andria Callas.
different documents marked as I.G. Exs. 1 through 7 filed with the LG. Brief. On
November 30, 2012, the LG. filed a corrected Reply Brief (I.G. Reply) and exhibits
properly marked I.G. Exs. 8 through 15. Petitioner submitted a sur-reply (P. Sur-Reply)
on December 27, 2012.

No objection has been made to my consideration of I.G. Exs. 1 through 15 and they are
admitted as evidence. The I.G. did not object to my consideration of the documents
submitted by Petitioner with her request for hearing (P. Ex. 2) and with her response to
the motion for summary judgment (P. Ex. 1). P. Ex. 1 and 2 are admitted and considered
but only to the extent that they are relevant to the limited issues before me. The I.G.
objects in his Reply Brief to my consideration of Petitioner’s response to the motion for
summary judgment on the grounds that Petitioner’s response was untimely and Petitioner
failed to follow established procedures to obtain an extension of the time to file or to
obtain leave to file out-of-time. I.G. Reply at 1-2. The I.G.’s objection is overruled. The
1.G. has articulated no prejudice to the I.G. due to Petitioner’s late filing and failure to
follow procedures. Petitioner’s explanation for late filing is also adequate to avoid the
imposition of a sanction for failure to comply with my Prehearing Order and the CRDP.

IL. Discussion
A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner’s right to
reasonable notice and an opportunity for a hearing before an administrative law judge
(ALJ) and judicial review of the final action of the Secretary.

Pursuant to section 1128(a)(2) of the Act, the Secretary must exclude from participation
in Medicare, Medicaid, and all federal health care programs, any individual who has been
convicted under federal or state law of a criminal offense relating to neglect or abuse of
patients in connection with the delivery of a health care item or service. 42 C.F.R.

§ 1001.101(b). The statute does not distinguish between felony convictions and
misdemeanor convictions and does not require that the health care item or service be
delivered under Medicare, Medicaid, or a federal or state healthcare program. The Act
defines “conviction” to include: (1) “when a judgment of conviction has been entered
against the individual or entity by a Federal, State, or local court, regardless of whether
there is an appeal pending or whether the judgment of conviction or other record relating
to criminal conduct has been expunged” or (2) “when there has been a finding of guilt
against the individual or entity by a Federal, State, or local court” or (3) when a plea of
guilty or no contest is accepted by a court or (4) when an individual enters “a first
offender, deferred adjudication, or other arrangement or program where a judgment of
conviction has been withheld.” Act § 1128(i)(1), (2).
Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section
1128(a) of the Act shall be for a minimum period of five years. The exclusion is
effective 20 days from the date of the notice of exclusion. 42 C.F.R. § 1001.2002(b).
Pursuant to 42 C.F.R. § 1001.102(b), the period of exclusion may be extended based on
the presence of specified aggravating factors. Only if aggravating factors justify an
exclusion of longer than five years are mitigating factors considered as a basis for
reducing the period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c).

Petitioner bears the burden of going forward with the evidence and the burden of
persuasion on any affirmative defenses or mitigating factors. The I.G. bears the burden
on all other issues. 42 C.F.R. § 1005.15(b), (c). The burden of persuasion is judged by a
preponderance of the evidence. 42 C.F.R. §§ 1001.2007(c), 1005.15(d). Petitioner may
not obtain review of, or collaterally attack on procedural or substantive grounds, a
criminal conviction or civil judgment of a federal, state, or local court or another
government agency that is cited in this forum as the basis for exclusion. 42 C.F.R.
§ 1001.2007(d).

B. Issues

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

Whether there is a basis for the imposition of the exclusion; and
Whether the length of the exclusion is unreasonable.
42 CFR. § 1001.2007(a)(1).
C. Conclusions of Law, Findings of Fact, and Analysis
My conclusions of law are in bold followed by my findings of fact and analysis.
1. Petitioner’s request for hearing is timely, and I have jurisdiction.
2. Summary judgment is appropriate in this case.
There is no dispute that Petitioner timely requested a hearing and that I have jurisdiction.
The right to hearing before an Administrative Law Judge (ALJ) is accorded to a
sanctioned party by 42 C.F.R. §§ 1001.2007(a) and 1005.2, and the rights of both the
sanctioned party and the LG. to participate in a hearing are specified by 42 C.F.R. §

1005.3. Either or both parties may choose to waive appearance at an oral hearing and to
submit only documentary evidence and written argument for my consideration. 42
C.F.R. § 1005.6(b)(5). An ALJ may also resolve a case, in whole or in part, by summary
judgment. 42 C.F.R. § 1005.4(b)(12). Summary judgment is appropriate, and no hearing
is required, where either: there are no disputed issues of material fact, and the only

questions that must be decided involve application of law to the undisputed facts; or the
moving party prevails as a matter of law, even if all disputed facts are resolved in favor of
the party against whom the motion is made. A party opposing summary judgment must
allege facts that, if true, would refute the facts that the moving party relied upon. See,
e.g., Fed. R. Civ. P. 56(c); Garden City Med. Clinic, DAB No. 1763 (2001); Everett
Rehab. and Med. Ctr., DAB No. 1628, at 3 (1997) (finding in-person hearing required
where non-movant shows there are material facts in dispute that require testimony);
Thelma Walley, DAB No. 1367 (1992); see also New Life Plus Ctr., DAB CR700 (2000);
New Millennium CMHC, Inc., DAB CR672 (2000).

Summary judgment is appropriate in this case. There is no dispute that Petitioner pled
guilty to a misdemeanor offense of failure to report abuse in violation of California
Welfare and Code Section 15630(h). I.G. Ex. 6. There is also no dispute that the
Superior Court of California entered an Order of Summary Probation, accepting
Petitioner’s plea of guilty. I.G. Ex. 4. The facts underlying the conviction are not subject
to dispute before me. There is no genuine dispute as to any material issue of fact related
to the issue of whether Petitioner was convicted of a criminal offense related to neglect or
abuse of patients in connection with the delivery of a health care item or service as
discussed hereafter. Whether the LG. has authority to exclude Petitioner pursuant to
1128(a)(2) is an issue that must be resolved against Petitioner as a matter of law based
upon the undisputed facts. The issue of the reasonableness of the period of exclusion
must also be resolved against Petitioner as the period of exclusion is specified by section
28(c)(3)(E) of the Act. Accordingly, summary judgment is appropriate.

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

The LG. cites section 1128(a)(2) of the Act as the basis for Petitioner’s exclusion. I.G.
Ex. 1. Exclusion from participation in Medicare, Medicaid, and all federal health care
programs is required by section 1128(a)(2) of the Act when: (1) the individual was
convicted of a criminal offense under federal or state law; (2) the conviction was related
to the neglect or abuse of patients; and (3) the patient neglect or abuse occurred in
connection with the delivery of a health care item or service.

a. Petitioner was convicted of a criminal offense within the
meaning of section 1128(a)(2) of the Act.

There is no dispute that on April 7, 2011, Petitioner pled guilty to a violation of
California Welfare and Institutions Code § 15630(h), Failure to Report Abuse, in the
Superior Court of California for Mendocino County. LG. Exs. 4, 6, 11, 12; P. Exs. 1, 2.
The court accepted Petitioner’s plea and entered an Order of Summary Probation,
sentencing Petitioner to 24 months of probation, 100 hours of community service, and
restitution in the amount of $100.00. I.G. Exs. 4, 11.

Petitioner disputes that she was convicted of a criminal offense under state or federal law
within the meaning of section 1128(a)(2) of the Act. Petitioner argues that her plea in the
Superior Court of California for Mendocino County was made with the advice of counsel,
but she was not told that she was subject to exclusion from Medicare. Petitioner claims
she understood that the judgment was suspended subject to completion of two years of
probation. Petitioner argues she understood that the diversion program would protect her
Certified Nursing Assistant (CNA) license. She states she understood that she was
obligated to complete community service, pay fees and restitution, and complete
probation and her conviction would be expunged. Petitioner states that had she been
aware that she could be excluded based on the conviction, she would have gone to trial or
appealed the plea. She argues it is not fair for her to be excluded given the facts.

Hearing Request; P. Brief. Petitioner does not disputed that she pled guilty to a violation
of California Welfare and Institutions Code § 15630(h), Failure to Report Abuse, the plea
was accepted, and she was sentenced. The gist of her argument is that it is unfair for her
to now be excluded given that her lawyer never advised her she was subject to exclusion
from Medicare. Whether or not Petitioner’s legal counsel in the criminal proceeding
advised Petitioner adequately is an issue between Petitioner and her counsel. When the
1.G. proposes to exclude an individual based on a criminal conviction by a federal, state,
or local court in which the facts were adjudicated, the basis for the conviction is not
reviewable and not subject to collateral attack on substantive or procedural grounds in
this proceeding. 42 C.F.R. § 1001.2007(d). Therefore, Petitioner is bound before me by
the facts upon which she pled guilty in the California court. Petitioner is prohibited from
obtaining review of the basis for the conviction in this forum and I have no jurisdiction to
review the basis for her conviction.

Petitioner also argues that her case has subsequently been dismissed. P. Brief. Petitioner
petitioned to have her criminal charge dismissed and for early termination of her
probation. I.G. Exs. 12, 13, 14, 15; P. Ex. 2. The trial court subsequently ordered that
Petitioner’s guilty plea be set aside and vacated. I.G. Ex. 15; P. Ex. 2. However, the fact
that Petitioner’s probation was terminated early and the charge dismissed by the trial
court does not negate Petitioner’s conviction as if it had been reversed on appeal.
Petitioner’s plea of guilty on April 7, 2011, the court’s acceptance of the plea, and the
court’s Order of Summary Probation satisfy the definitions of “conviction” in sections
1128(i)(1) and (i)(3) of the Act. The term “conviction” includes the acceptance of a plea,
the finding of guilty, as well as deferred adjudications and similar programs where a
judgment of conviction is withheld by the court. Act § 1128(i)(4). Accordingly, I
conclude that Petitioner was convicted of a criminal offense under state law within the
meaning of section 1128(a)(2) of the Act.
b. Petitioner’s conviction was related to failure to report abuse
of nursing home residents.

Petitioner does not dispute that she was convicted of failure to report the abuse of long-
term care residents that occurred on November 28, 2009, while she was working as a
CNA at Valley View Skilled Nursing Facility in Ukiah, California. Petitioner also does
not dispute that the abuse involved patients cared for by Petitioner. Hearing Request; P.
Brief. Thus, there is no genuine dispute that Petitioner’s conviction was related to abuse
of patients under her care. Narendra M. Patel, DAB No. 1736, at 8 (2000); Bruce
Lindberg, D.C., DAB No. 1280 (1991).

c. Petitioner’s failure to report abuse of nursing home residents
occurred in connection with the delivery of a health care item or
service within the meaning of section 1128(a)(2) of the Act.

On April 7, 2011, Petitioner pled guilty to a misdemeanor offense of failure to report
abuse in violation of California Welfare and Institutions Code Section 15630(h), under
which a person who has assumed full or intermittent responsibility of an elder or
dependent adult must report knowledge of any incident that appears to be physical abuse.
1.G. Ex. 4; California Welfare and Institutions Code § 15630(a), (b), (h). The underlying
complaint states that on November 28, 2009, while working at the Valley View Skilled
Nursing Facility, Petitioner and five other CNA’s conspired to apply excessive amounts
of A & D ointment over the bodies of nursing home patients without authorization, as a
prank against another CNA. I.G. Ex. 3. Petitioner, by her plea of guilty admitted that she
failed to report this incident of elder abuse to the appropriate authorities. LG. Ex. 7. The
Bureau of Medi-Cal Fraud and Elder Abuse reported the conviction to the I.G. I.G. Ex.

7.

Petitioner’s conviction was clearly in connection with the delivery of a health care
service given her status as a CNA at the Valley View Skilled Nursing Facility at the time,
the fact she was caring for residents, and her failure to report abuse of her residents by
other CNAs and herself. The nexus is apparent as Petitioner had access to the residents
as a healthcare provider and she failed to report the abuse of her residents. Accordingly, I
conclude that there is a basis for Petitioner’s exclusion, and her exclusion is mandated by
section 1128(a)(2) of the Act. The elements of section 1128(a)(2) are satisfied, and I
have no discretion not to exclude Petitioner.

4. Pursuant to section 1128(c)(3)(B) of the Act, five years is the
minimum period of exclusion pursuant to section 1128(a) of the Act.
5. Petitioner’s exclusion for five years is not unreasonable as a matter
of law.

Petitioner argues that not being allowed to work as a CNA is a hardship for Petitioner and
for nursing home residents she is not permitted to serve. Hearing Request. The fact that
Petitioner is experiencing hardship may have no impact on my decision, because the law
requires Petitioner’s exclusion for a minimum statutory period of five years without
consideration of any mitigating or equitable factors. Petitioner submitted letters of
individuals in support of her case. However, I have no discretion to reduce the period of
exclusion below five years and the letters submitted and the favorable comments in
support of Petitioner are not relevant. I have found there is a basis for Petitioner’s
exclusion pursuant to section 1128(a)(2) of the Act. Congress has provided that
exclusion pursuant to section 1128(a) will be for a minimum period of five years.
Accordingly, exclusion for the minimum five-year period is not unreasonable as a matter
of law.

II. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare,
Medicaid, and all federal health care programs for five years pursuant to section
1128(a)(2) of the Act, effective June 20, 2012.

/s/
Keith W. Sickendick
Administrative Law Judge