Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In re CMS LCD Complaint:
LCD L29288
Contractor: First Coast Service Options, Inc.
Docket No. C-12-777
Decision No. CR2664

Date: November 9, 2012

DECISION DISMISSING LCD COMPLAINT

An aggrieved Medicare beneficiary (Aggrieved Party) challenges the Local Coverage
Determination (LCD) titled “The list of Medicare Noncovered Services, Contractor
Determination Number NCSVCS, LCD ID L29288, 0275T Minimally Invasive Lumbar
Decompression (MILD)” issued by the Medicare contractor, First Coast Service Options,
Inc. This LCD precludes Medicare reimbursement for the MILD medical procedure. For
the reasons discussed below, I dismiss the Aggrieved Party’s complaint as unacceptable.

Discussion

I find the Aggrieved Party’s complaint is unacceptable and must be dismissed
because it does not include a written statement from her “treating physician”
declaring that she needs the service that is the subject of the LCD.

On May 24, 2012, the Aggrieved Party requested through counsel that the LCD at issue
be reviewed for Medicare reimbursement eligibility pursuant to 42 C.F.R. Part 426.

The Centers for Medicare & Medicaid Services (CMS) administers the Medicare
program (Social Security Act (Act) §§ 1102, 1871, 1874) and contracts with carriers and
intermediaries (Medicare contractors) to act on its behalf in determining and making
payments to providers and suppliers of Medicare items and services. Act §§ 1816, 1842.
To this end, Medicare contractors issue written determinations, called LCDs, addressing
whether, on a contractor-wide basis, a particular item or service is covered. Act
§ 1869(f)(2)(B); see also 42 C.F.R. § 400.202.

A Medicare beneficiary who has been denied coverage for an item or service based on an
LCD may challenge that LCD before an administrative law judge (ALJ). The Medicare
beneficiary initiates the review by filing a written complaint that meets the criteria
specified in the governing regulations. 42 C.F.R. §§ 426.400; 426.410(b)(2). I have no
authority to review the merits of an “unacceptable complaint.” See 42 C.F.R.

§§ 426.405(d)(7); 426.410(c)(2).

To be acceptable, the complaint must include a written statement from the Aggrieved
Party’s treating physician declaring that the beneficiary needs the service that is the
subject of the LCD. 42 C.F.R. § 426.400(c)(3). In her initial filing, the Aggrieved Party
submitted a statement from Dr. Louis J. Raso as her treating physician’s statement. In
Dr. Raso’s initial statement, it was clear that he reviewed the Aggrieved Party’s medical
record and performed the MILD procedure on her. After reviewing the complaint I
issued an Acknowledgement of Receipt of Acceptable Complaint based on my evaluation
required pursuant to 42 C.F.R. § 426.410(b), (c), and (d).

Upon further review, after considering that Dr. Raso did not claim to be the Aggrieved
Party’s primary clinician responsible for her overall care, I questioned whether Dr. Raso
fully met the legal requirements of a treating physician. Therefore, on September 7,
2012, I issued a Notice of Unacceptable Complaint and Opportunity to Amend Complaint
and explained it was unclear whether the complaint complied with the treating physician
requirement. I specifically explained that the beneficiary’s treating physician is defined
as “the physician who is the beneficiary’s primary clinician with responsibility for over-
seeing the beneficiary’s care and either approving or providing the service at issue in the
challenge.” See 42 C.F.R. § 426.110.

I also referenced the final rule’s analysis and response to public comments concerning a
revision of this section, where the Secretary of the U.S. Department of Health and Human
Services explained that, “we continue to believe that the beneficiary’s treating
physician—not any treating physician—is best suited to determine ‘in need’ status both
because he or she is the primary caregiver and also is responsible for the beneficiary’s
overall care.” 68 Fed. Reg. 63,692, 63,696 (Nov. 7, 2003)(emphasis added).

By submission dated September 26, 2012, the Aggrieved Party filed an amended
statement from Dr. Raso. Dr. Raso stated that, “[the Aggrieved Party] has had lumbar
stenosis with neurogenic claudication for at least five years . . . [s]ince June 2008, I have
been the physician with primary responsibility for treating [the Aggrieved Party’s]
lumbar spinal stenosis with neurogenic claudication . . . [and after a variety of ineffective
treatments] I performed the MILD procedure on the [Aggrieved Party] on May 12,
2012.”

Based on his statements, and assuming the facts he alleges are all true, I still find Dr.
Raso’s role as a physician clearly limited to treatment of the Aggrieved Party’s lumbar
spinal stenosis condition. His statements do not establish him as the Aggrieved Party’s
primary clinician responsible for her overall care, and therefore he does not meet the
legal definition of a “treating physician.” Accordingly, I must issue a decision dismissing
this complaint as unacceptable pursuant to 42 C.F.R. § 426.410(c)(2).

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In re CMS LCD Complaint:

Category III CPT Codes (L25275)
Contractor: National Government Services, Inc.
Docket No. C-12-1019
Decision No. CR2663

Date: November 9, 2012

DECISION DISMISSING LCD COMPLAINT

An aggrieved Medicare beneficiary (Aggrieved Party) challenges portions of the Local
Coverage Determination (LCD) titled “Category III CPT Codes (L25275)” issued by the
Medicare contractor, National Government Services, Inc. This LCD precludes Medicare
reimbursement for the Minimally Invasive Lumbar Decompression (MILD) medical
procedure. For the reasons discussed below, I dismiss the Aggrieved Party’s complaint
as unacceptable.

Discussion

I find the Aggrieved Party’s complaint is unacceptable and must be dismissed
because it does not include a written statement from his “treating physician”
declaring that he needs the service that is the subject of the LCD.

On July 2, 2012, the Aggrieved Party requested through counsel that the LCD at issue be
reviewed for Medicare reimbursement eligibility pursuant to 42 C.F.R. Part 426.

The Centers for Medicare & Medicaid Services (CMS) administers the Medicare
program (Social Security Act (Act) §§ 1102, 1871, 1874) and contracts with carriers and
intermediaries (Medicare contractors) to act on its behalf in determining and making
payments to providers and suppliers of Medicare items and services. Act §§ 1816, 1842.
To this end, Medicare contractors issue written determinations, called LCDs, addressing
whether, on a contractor-wide basis, a particular item or service is covered. Act
§ 1869(f)(2)(B); see also 42 C.F.R. § 400.202.

A Medicare beneficiary who has been denied coverage for an item or service based on an
LCD may challenge that LCD before an administrative law judge (ALJ). The Medicare
beneficiary initiates the review by filing a written complaint that meets the criteria
specified in the governing regulations. 42 C.F.R. §§ 426.400; 426.410(b)(2). I have no
authority to review the merits of an “unacceptable complaint.” See 42 C.F.R.

§§ 426.405(d)(7); 426.410(c)(2).

To be acceptable, the complaint must include a written statement from the Aggrieved
Party’s treating physician declaring that the beneficiary needs the service that is the
subject of the LCD. 42 C.F.R. § 426.400(c)(3). In his initial filing, the Aggrieved Party
submitted a statement from Dr. Sayed Wahezi as his treating physician’s statement. In
Dr. Wahezi’s initial statement, it was clear that he reviewed the Aggrieved Party’s
medical record and performed the MILD procedure on him. After reviewing the
complaint I issued an Acknowledgement of Receipt of Acceptable Complaint based on
my evaluation required pursuant to 42 C.F.R. § 426.410(b), (c), and (d).

Upon further review, after considering that Dr. Wahezi did not claim to be the Aggrieved
Party’s primary clinician responsible for his overall care, I questioned whether Dr.
Wahezi fully met the legal requirements of a treating physician. Therefore, on September
7, 2012, Lissued a Notice of Unacceptable Complaint and Opportunity to Amend
Complaint and explained it was unclear whether the complaint complied with the treating
physician requirement. I specifically explained that the beneficiary’s treating physician is
defined as “the physician who is the beneficiary’s primary clinician with responsibility
for over-seeing the beneficiary’s care and either approving or providing the service at
issue in the challenge.” See 42 C.F.R. § 426.110.

I also referenced the final rule’s analysis and response to public comments concerning a
revision of this section, where the Secretary of the U.S. Department of Health and Human
Services explained that, “we continue to believe that the beneficiary’s treating
physician—not any treating physician—is best suited to determine ‘in need’ status both
because he or she is the primary caregiver and also is responsible for the beneficiary’s
overall care.” 68 Fed. Reg. 63,692, 63,696 (Nov. 7, 2003)(emphasis added).

By submission dated September 26, 2012, the Aggrieved Party submitted an amended
statement from Dr. Wahezi. Dr. Wahezi stated that, “[s]ince October 6, 2011, I have
been the physician with primary responsibility for treating [the Aggrieved Party’s]
lumbar spinal stenosis with neurogenic claudication . . . [and after a variety of treatments]
I performed the MILD procedure on [the Aggrieved Party].”
Based on his statements, and assuming the facts he alleges are all true, I still find Dr.
Wahezi’s role as a physician clearly limited to treatment of the Aggrieved Party’s lumbar
spinal stenosis condition. His statements do not establish him as the Aggrieved Party’s
primary clinician responsible for his overall care, and therefore he does not meet the legal
definition of a “treating physician.” Accordingly, I must issue a decision dismissing this
complaint as unacceptable pursuant to 42 C.F.R. § 426.410(c)(2).

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Trinity Hill Care Center,
(CCN: 07-5268),

Petitioner,
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-486
Decision No. CR2658
Date: November 6, 2012
DECISION

Petitioner, Trinity Hill Care Center (Petitioner or facility), is a long-term care facility
located in Hartford, Connecticut and participates in the Medicare program. Petitioner
challenges the Centers for Medicare and Medicaid Services (CMS) determination that it
was not in substantial compliance with Medicare program requirements for accident
prevention and adequate supervision. Petitioner also challenges CMS’s imposition of a
per-instance civil money penalty (PICMP) of $8,500. For the reasons discussed below, I
sustain CMS’s imposition of the PICMP.
I. Background
The Social Security Act (Act) sets forth requirements for nursing facility participation in
the Medicare program and authorizes the Secretary of Health and Human Services (the
Secretary) to promulgate regulations implementing those statutory provisions. Act

§ 1819 (42 U.S.C. § 1395i-3). The Secretary’s regulations are found at 42 C.F.R. Part
483. To participate in the Medicare program, a nursing facility must maintain substantial
compliance with program requirements. To be in substantial compliance, a facility’s
deficiencies may pose no greater risk to resident health and safety than “the potential for
causing minimal harm.” 42 C.F.R. § 488.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to
determine whether skilled nursing facilities are in substantial compliance. Act § 1864(a)
(42 U.S.C. § 1395aa(a)); 42 C.F.R. § 488.20. The regulations require surveying each
facility once every twelve months, and more often if necessary, to ensure that identified
deficiencies are corrected. Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A));

42 CFR. §§ 488.20(a); 488.308.

Here, following a survey completed on March 15, 2011, CMS found that the facility was
not in substantial compliance with a number of program requirements, including the
participation requirement at 42 C.F.R. § 483.25(h) (Tag F323) (accident prevention and
adequate supervision), which CMS determined posed immediate jeopardy to resident
health and safety. CMS Exhibit (Ex.) 1; CMS Ex. 2. Based solely on the deficiency
cited under 42 C.F.R. § 483.25(h), CMS imposed an $8,500 PICMP. CMS Ex. 2.

Petitioner timely requested a hearing by letter dated May 27, 2011. The case was
assigned to me for hearing and decision. The parties submitted prehearing exchanges and
briefs. By Order issued on March 2, 2012, I informed the parties that because neither
party chose to submit written direct testimony of any proposed witness pursuant to my
Acknowledgment and Pre-Hearing Order, an in-person hearing for cross-examination
was not necessary, and I would issue my decision on the written record. The parties then
filed their final briefs (CMS Br.; P. Br.). CMS submitted thirteen exhibits (CMS Exs. 1-
13). Petitioner submitted three exhibits (P. Exs. 1-3). As explained in my January 11,
2012 Order Following Prehearing Conference (as amended by notice of January 13,
2012), and in my March 2, 2012 Order and Final Briefing Schedule, I admit CMS Exs. 1-
13 and P. Exs. 1-3 into the record.

II. Issues

1. Whether Petitioner was in substantial compliance with 42 C.F.R.
§ 483.25(h) (Tag F-323 — accident prevention and adequate supervision);
and

2. — If Petitioner was not in substantial compliance, whether the remedy
imposed — an $8,500 PICMP — is reasonable.
III. Discussion

My findings and conclusions are set forth in the bold italicized headings and supported by
the discussions in the sections below.

A, Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h) because
Petitioner did not take the reasonable measure to apprise Resident 109’s
physician of a consulting psychiatrist’s concerns with the resident’s leave of
absence.

A facility is required to take all reasonable measures to protect its residents against
accidents including: assessing each of its residents to determine what unique aspect of
that resident’s condition might cause the resident to be vulnerable to accidents and
determining exactly what hazards the resident is exposed to; planning each resident’s care
in accordance with its assessment of the resident’s vulnerabilities; and implementing the
care plan that it develops for each resident. Van Duyn & Home Hospital, DAB No. 2368
(2011). When a resident is outside the facility, the facility should be aware of when the
resident is expected to be returned to the facility and consider factors that would impact
the resident’s health and safety when away, such as the resident’s need for medication.
Eastwood Convalescent Ctr., DAB No. 2088, at 16-17 (2007) (upholding an (h)(2)
deficiency where a resident was missing for four and one half hours while needing
medication). A facility has an obligation “to take steps to protect residents from harm
when they temporarily [leave] the facility,” by being aware of the circumstances of a
resident’s departure. Heritage Park Rehabilitation & Nursing Ctr., DAB No. 2231
(2009) (rejecting assertion that a skilled nursing facility has no responsibilities as to
known departures by competent residents).

During the relevant time period, Resident 109 (R109) was a 60-year old man whose
diagnoses included cerebrovascular accident (CVA or stroke), with left-side hemiparesis;
hypertension (HTN); acute kidney injury; and cardiomyopathy secondary to cocaine and
alcohol abuse. CMS Ex. 8, at 1; CMS Ex. 10, at 56. He received antipsychotic
medication three times per day, pain medication, and other medications. CMS Ex. 9, at
4-24; CMS Ex. 10, at 46. He was admitted to the facility on September 28, 2010, and he
gradually made significant progress. By March 2011, R109 was preparing for discharge
with an independent leave of absence (LOA) from the facility in order to search for an
apartment.

On January 24, 2011, R109’s physician provided that R109 may go on an independent
LOA three times a week for a three-hour period, except weekends, and that R109 would
undergo a urinalysis upon return to assure that he remained free from illicit drugs and
alcohol. CMS Ex. 9, at 6, 8. That order was later modified on February 18, 2011, to
include an independent LOA for a three-hour period (between 9:00 a.m. and 12:00 noon)
on Wednesdays and Fridays. CMS Ex. 9, at 12. On Wednesday, March 2, 2011, R109

left the facility on an authorized independent LOA to view an apartment. CMS Ex. 13, at
4. R109 did not return to the facility by noon as required by the doctor’s order, nor did
he contact the facility to inform them of his whereabouts. P. Br. at 5. It was not until
9:36 a.m. on March 3, 2011, approximately 24 hours after R109 left the facility, that
Petitioner’s staff eventually located him at a gas station. R109 explained that he stayed
overnight at a friend’s house and was in the process of returning to the facility.
Petitioner’s staff transferred R109 back to the facility and then sent him to the emergency
room for evaluation and assessment where he tested positive for cocaine use.

Petitioner argues it acted reasonably when authorizing the LOA because, “Resident #109
was a competent, discharge-ready resident who was able to meet his minimum basic
needs and was legally entitled to take leaves of absence in order to prepare for his
anticipated discharge from the Facility.” P. Br. at 2.

However, I find Petitioner authorized R109’s LOA without taking the reasonable
measure to apprise R109’s physician of a consulting psychiatrist’s concerns with the
LOA. Specifically, a psychiatrist’s assessment on January 21, 2011 indicated that R109
was a poor historian and responded to simple questions. The assessment indicated that in
the psychiatrist’s opinion R109 had significant neurological/psychological impairments
from the CVA, and - due to the resident’s disabilities - R109 was not capable of an
independent LOA and would need a chaperone if he were to leave the facility. CMS Ex.
1, at 9 (as set forth by the SOD). The facility later failed to notify R109’s attending
physician of this assessment prior to recommending and obtaining the attending
physician’s order for an independent leave of absence. R109’s attending physician
indicated that he was not aware of the psychiatrist’s recommendations, and if he were
aware of them he would not have given an order for R109 to have an independent LOA
over the telephone. Instead, he would have evaluated the resident on his next visit to the
facility. CMS Ex. 1, at 11-12 (as set forth by the SOD).

After the LOA and the state survey, the consulting psychiatrist provided a written
statement, dated April 6, 2011, which Petitioner presented as evidence. P. Ex. 1. In this
statement the psychiatrist emphasized that when making his recommendation he tried to
“err on the side of safety,” and the state surveyors did not interview him. Jd. He also
explained he only met the patient once, he did not comprehensively assess R109, and
“[t]here would have been no major effect or harm from [R109] having missed 2 dosages
of his [antipsychotic medication] while away from the facility.” P. Ex. 1. Nonetheless, I
find Petitioner offered no acceptable explanation why Petitioner did not take the
reasonable precaution to share the psychiatrist’s valid and safety-conscious concerns with
the attending physician so that he could make a fully informed decision regarding R109’s
independent LOA.
B. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h) because
Petitioner did not comply with its own Missing Resident Policy regarding
Resident 109’s leave of absence.

The facility’s undisputed noncompliance with its own Missing Resident Policy
demonstrates that the facility was not taking reasonable steps to protect its residents from
harm. I may reasonably rely on the facility’s protocol as evidence of professional
standards of quality, as well as evidence of the facility’s “own judgment as to what must
be done to attain or maintain its residents’ highest practicable physical, mental and
psychosocial well-being, as required by section 483.25.” Agape Rehab. of Rock Hill,
DAB No. 2411, at 7, 18 (2011); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300
(2010), aff'd, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Svcs., 405 F.
App’x 820 (5th Cir. 2010) (quoting Sheridan Health Care Ctr., DAB No. 2178, at 15
(2008)); Spring Meadows Health Care Ctr., DAB No. 1966, at 18 (2005) (holding that “it
is reasonable to presume that the facility’s policy reflects professional standards of
quality, absent convincing evidence to the contrary”).

When the incident at issue occurred, Petitioner had a Missing Resident Policy that
enumerated steps that the facility staff must take once a resident fails to return from an
approved LOA. CMS Ex. 6. Ifa resident failed to return from an authorized LOA within
two hours of the designated time of return without calling, the following relevant
provisions in the policy were to be immediately implemented:

4. The Supervisor will notify the Administrator and the [Director of
Nursing Services (DNS)].

ORK

8. If the resident is still not located the supervisor will notify the local
Police Department, Administrator and DNS. The Administrator is
responsible to immediately notify their Regional Director of
Operations and the DNS is responsible to notify the Chief Clinical
Officer.

9. The Nursing Supervisor will notify the attending physician, and the
responsible party. The responsible party and/or family will be
questioned as to where they think the resident may have gone.

10. | While waiting for the police to arrive, the person in charge will
direct staff in a search of the facility’s grounds.

11. A picture of the resident, if available, will be given to the police
upon their arrival. The police will also be made aware of whether
the resident has been deemed capable of meeting his/her minimal
needs outside of the facility or is cognitively impaired and of any
applicable special medical needs (e.g., insulin).

12. The Administrator is responsible to coordinate the facility off
grounds search. The Administrator will assign staff to drive to

specific locations to search for the resident.

. Off duty staff will be called in to assist with off site

search
. Department Heads will participate in off site search
. Area hospitals will be notified of missing resident
. Area shelters will be notified and visited and given a

picture/description of the missing resident

13. | When the resident is found and returned to the facility, the
responsible person and attending physician will be notified (as well
as the police, if they did not locate the resident).

14. | The Nurse Supervisor or charge nurse will assess the resident for any
evidence of injury or distress and take appropriate action.

15. If the resident has been deemed capable of meeting his/her minimal
needs outside of the facility, and has not returned to the facility or
been located within 24 hours of the time he/she was deemed
missing, the resident will be discharged [against medical advice].

CMS Ex. 6, at 1-3. (Emphasis in original).

In this case, when R109 failed to return at 12:00 noon, according to its own policy,
Petitioner should have waited until no later than 2:00 p.m. to implement proper
notifications, beginning with the charge nurse notifying her supervisor. However, the
charge nurse (LPN1) did not even recognize that R109 failed to return until about three
hours after he was due to return. Rather than immediately notifying her supervisor in
accordance with Petitioner’s policy, LPN1 simply informed the oncoming charge nurse
(RN1) that R109 was missing but otherwise took no other action. RN1 then failed to
immediately contact his supervisor, again violating the policy. Rather, RN1 attempted to
reach a family member during the 3-11 p.m. shift, where he made “several attempts” to
contact R109’s family at a number that was “out of service.” CMS Ex. 12, at 11.
It was not until the end of his shift, at about 10:30-11:00 p.m., when RN1 finally began to
follow the missing resident protocol and notified his nursing supervisor. Finally, over
eight hours after the facility’s emergency protocol should have been instituted, the

facility initiated its procedure and contacted R109’s family, physician, area hospitals, and
police. CMS Ex. 2, 3-4; CMS Ex. 5, at 3, 12; CMS Ex. 7, at 4-11; CMS Ex. 12, at 11.
The facility’s Administrator, however, was not notified at the same time as the DNS,
according to facility policy. Instead, the DNS did not notify the Administrator until 7:42
a.m. the following morning that R109 remained missing. CMS Ex. 7, at 4-5.

Petitioner concedes, “[w]ithout a doubt, some of the Facility’s employees made mistakes
and failed to follow all of the Facility’s internal policies.” P. Prehearing Br. at 2. I agree
considering the facility did not even notice that R109 had not returned until
approximately three hours after he was due to return, and that two charge nurses, on two
successive shifts, failed to promptly respond and follow the facility missing resident
policy. Petitioner’s failure to follow its own policy designed to protect its residents in the
vulnerable position of independent leaves of absence, including R109, is sufficient to
show that Petitioner failed to take all reasonable steps to protect R109 from accidents and
azards, in violation of 42 C.F.R. § 483.25(h).

Petitioner argues, “[e]ven if the Facility’s employees had started actively searching for
Resident #109 at 12:01 p.m., there is no reason to believe that they would have had a
better chance at locating him, nor is there any reason to believe that he would have been
in less danger at that time than at a later time.” P. Br. at 15. This argument does not
reconcile with the facility’s establishment of a Missing Resident Policy. The fact that the
facility failed to follow its own protocol designed for such circumstances, without good
reason, shows that it failed to take those reasonable measures.

C. The $8,500 PICMP 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). Here, Petitioner
has not alleged or offered evidence that its financial condition affects its ability to pay the
CMP. Further, Petitioner’s history of non-compliance includes a G-level deficiency
identified during a January 22, 2009 survey. CMS Ex. 3.

In its brief, Petitioner minimizes the seriousness of the deficiencies and questions CMS’s
determination of immediate jeopardy, arguing that the circumstances surrounding the
LOA did not, and were not, likely to cause serious harm to the resident. As previously
explained during my January 10, 2012 telephone prehearing conference and in my
January 11, 2012 Order Following Prehearing Conference, Petitioner has no right to
review of CMS’s immediate jeopardy determination. Scope and severity is only
reviewable if a successful challenge would affect the range of the CMP that CMS could
collect or the resulting loss of a nurse aid training program.

Here, CMS imposed a PICMP where there is only one range allowable. In contrast,
amounts of per-day CMPs which CMS may impose are divided into two ranges; an upper
range from $3,050 to $10,000 per day for deficiencies that constitute immediate jeopardy
and a lower range from $50 to $3,000 per day for deficiencies at lower levels of scope
and severity. 42 C.F.R. § 488.438(a). Only a single range of $1,000 to $10,000 applies
to per-instance CMPs, whether or not immediate jeopardy is present. 42 C.F.R. §
488.438(a)(2). Consequently, where, as here, the only CMP imposed is a per-instance
CMP, a successful challenge to the immediate jeopardy determination would not affect
the range of CMP amounts that CMS could collect. Fort Madison Health Ctr., DAB No.
2403, at 12-13 (2011). Further, Petitioner does not have a nurse aid training program that
could be affected. CMS Ex. 4, at 1. Accordingly, Petitioner’s challenge of CMS’s
immediate jeopardy finding remains out of my purview.

Despite my limited standard of review in considering the scope and severity of the
penalty, I agree with CMS that this was a significantly serious deficiency in considering
the amount of the penalty. I find the facility culpable in its disregard for its own policy
and for not sharing an adverse psychiatrist’s recommendation with R109’s physician
before the physician ordered R109’s LOA. Although Petitioner contends that R109 did
not suffer actual harm, I find it highly concerning that R109 returned so late to the
facility’s care with cocaine in his system, especially considering his known substance
abuse issues, treatment for cardiomyopathy, and weakened and enlarged heart. Further,
not following the facility’s LOA policy not only affected R109 but also any other resident
subject to it.

IV. Conclusion

I find Petitioner did not take all reasonable measures in its assessment sharing and policy
compliance to protect R109 with regard to his independent LOA. Therefore, I find
Petitioner was not in substantial compliance with Medicare participation requirements at
42 C.F.R. § 483.25(h). Furthermore, the $8,500 PICMP that CMS imposed is reasonable.

/s/
Joseph Grow
Administrative Law Judge