Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
NHC Healthcare - Moulton, |
DATE: May 7, 2002 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-01-281 Decision No. CR898 |
DECISION | |
DECISION I enter summary
disposition in favor of Petitioner, NHC Health Care-Moulton. The undisputed
material facts show that no basis exists in this case for me to sustain
the imposition of civil money penalties against Petitioner. I summarize
my decision as follows:
I.
Background and undisputed material facts The material
facts of this case are not in dispute. In part I base my recitation of
the undisputed facts on documents that the parties exchanged as proposed
exhibits and which are cited by Petitioner in its motion for summary disposition.
The exhibits cited by Petitioner are: P. Ex. 1; P. Ex. 3; P. Ex. 8; P.
Ex. 9; CMS Ex. 4; and, CMS Ex. 6. Petitioner
is a long term care facility located in Moulton, Alabama. It participates
in the Medicare program and is subject to regulations at 42 C.F.R. Part
483 that govern the participation in Medicare of nursing facilities and
skilled nursing facilities. Petitioner
was surveyed on October 17 - 20, 2000 (October survey) by surveyors employed
by the Alabama Department of Public Health. The purpose of the survey
was to determine whether Petitioner was complying substantially with Medicare
participation requirements. The surveyors concluded that Petitioner was
not complying substantially with participation requirements in several
respects. Their findings included an allegation at Tag 312 of the report
of the October survey that Petitioner was not complying substantially
with the quality of care requirements that are set forth at 42 C.F.R.
� 483.25(a)(3). P. Ex. 8 at 5 - 11. On November
9, 2000, CMS sent a notice to Petitioner. CMS Ex. 4. CMS advised Petitioner
that it concurred with the noncompliance findings and remedy recommendations
made by the Alabama Department of Public Health. CMS told Petitioner that
it would impose remedies against Petitioner consisting of: denial of payment
for new admissions effective January 19, 2001; civil money penalties effective
October 19, 2001; and, termination of Petitioner's Medicare provider agreement
effective April 19, 2001. Specifically, CMS told Petitioner that it was:
Id.
at 2. The only remedy
that CMS ultimately determined to impose against Petitioner was the $50
per day civil money penalties. The other remedies were not imposed evidently
because Petitioner attained substantial compliance with participation
requirements prior to the dates when those remedies were to have gone
into effect. Petitioner
requested a hearing to contest CMS's determination to impose civil money
penalties and the case was assigned to me for a hearing and a decision.
Additionally, Petitioner requested an opportunity to participate in informal
dispute resolution (IDR) at the State level, in order to contest the deficiency
findings that were made in the report of the October survey. See
42 C.F.R. � 488.331. On June 15,
2001, and after completion of the IDR process, the Alabama Department
of Public Health notified Petitioner of its findings. CMS Ex. 6 at 1.
It advised Petitioner that it had determine to delete from the report
of the October survey the deficiency finding that was made at Tag 312.
Id. Subsequently, the
Alabama Department of Public Health issued a revised report for the October
survey. P. Ex. 3. The revised report deleted all reference to a deficiency
at Tag 312. Id. CMS has not
averred that it considered and rejected the findings that were made at
IDR. Nor has it asserted that it made an independent determination to
find that Petitioner was deficient under Tag 312 after the Alabama Department
of Public Health rescinded its deficiency finding.
II.
Issue, findings of fact and conclusions of law
The issue in
this case is whether any basis exists to impose civil money penalties
against Petitioner in light of the Alabama Department of Public Health's
determination to rescind its finding that Petitioner failed to comply
with quality of care requirements stated at 42 C.F.R. � 483.25(a)(3) and
also in light of CMS' failure to aver that it subsequently made an independent
determination that Petitioner was deficient in complying with these requirements.
I make findings
of fact and conclusions of law (Findings) to support my decision in this
case. I set forth each Finding below, as a separate heading. I discuss
each Finding in detail.
The undisputed
material facts of this case establish that the Alabama Department of Public
Health made a recommendation to CMS that it impose civil money penalties
of $50 per day against Petitioner based on a finding at Tag 312 of the
report of the October survey that Petitioner failed to comply substantially
with a participation requirement governing quality of care. The undisputed
facts establish also that CMS made its determination to impose civil money
penalties against Petitioner in amounts of $50 per day based solely on
the finding of noncompliance at Tag 312. That determination
is expressed explicitly in CMS's notice letter of November 9, 2000 to
Petitioner. The letter tells Petitioner that the civil money penalty determination
is based on the finding of deficiency that is made at Tag 312. CMS Ex.
4 at 2. The notice's announcement to Petitioner that the remedy is being
imposed "for the deficiency" that is stated at Tag 312 clearly expresses
CMS's intent to impose the remedy based only on the presence
of that deficiency. That intent is reinforced by the fact that the letter
refers to no other deficiency finding as a basis for the remedy.
CMS has not asserted that it took other deficiency findings into consideration in determining to impose civil money penalties against Petitioner. I note that the report of the October survey alleges deficiencies in addition to that which was alleged at Tag 312. See P. Ex. 8. CMS might have determined to impose remedies based on these other alleged deficiencies, either in and of themselves, or in conjunction with the allegations that were made at Tag 312. However, CMS has not contended that it based its remedy determination on any of these additional alleged deficiencies.
On November
17, 2000, Petitioner requested to make an IDR presentation before the
Alabama Department of Public Health. P. Ex. 9 at 1. The Alabama Department
of Public Health issued its IDR determination on June 15, 2001. CMS Ex.
6. That determination included a finding that the deficiency alleged at
Tag 312 of the report of the October survey was not substantiated and
should be deleted. The consequence of the IDR determination was that all references to the original deficiency finding at Tag 312 were deleted from the report of the October survey. This result is in accord with regulatory requirements:
42 C.F.R. �
488.331(c). The Alabama Department of Public Health reissued its survey
report for the October survey deleting all reference to an alleged deficiency
at Tag 312. The consequence of the IDR determination was not only to expunge the deficiency determination but to withdraw the Alabama Department of Public Health's recommendation to CMS that civil money penalties be imposed against Petitioner. That is because 42 C.F.R. � 488.331(c) provides for rescission of enforcement actions as well as expungement of deficiency findings in cases where a facility is successful at IDR.
Petitioner
argues that, as a matter of law, summary disposition should be entered
in its favor as a consequence of its successful IDR contest of Tag 312.
As support for this argument Petitioner relies on the letter of 42 C.F.R.
� 488.331(c), which I have discussed above, at Finding 2. Read in isolation the regulation certainly supports Petitioner's argument. Literally, it provides for not only expungement of any deficiency finding that is withdrawn as a result of IDR but it also provides for rescission of any enforcement action that is based on such a finding. However, the text of 42 C.F.R. � 488.331(c) is not the only regulatory language that must be considered in deciding whether this case ended with Petitioner's successful IDR presentation. As CMS points out, there is another regulation that potentially impacts on this case. That is 42 C.F.R. � 448.452. This regulation applies when "CMS and the State disagree over findings of noncompliance or application of remedies . . . ." The regulation provides that CMS' findings of noncompliance take precedence over those of a State agency in a case involving a Medicare-participating facility when:
42 C.F.R. �
488.452(a)(2)(i), (ii). CMS's findings take precedence where CMS and a State agency disagree. In that circumstance, CMS is free to impose a remedy and to proceed to enforce its remedy regardless whether the State concludes that no deficiency is present. It, therefore, cannot be concluded as a matter of law that Petitioner must prevail based on its successful IDR presentation. In theory, CMS could disagree with the outcome and determine independently from the Alabama Department of Public Health to impose remedies against Petitioner even though the Alabama Department of Public Health concluded that no deficiency existed at Tag 312 of the October survey report.
When read together,
the texts of 42 C.F.R. �� 488.331(c) and 488.425(a)(2)(i), (ii) stand
for the conclusion of law that a successful IDR presentation by a facility
concerning an alleged deficiency will end any enforcement action, State
or federal, that is based on the alleged deficiency unless CMS
subsequently makes an independent determination to disagree with the outcome
of IDR. However, disagreement
should not be found where there is no showing that there was disagreement.
A primary purpose of IDR is to allow a facility an opportunity to expunge
adverse deficiency findings without having to incur the additional expense
of an administrative hearing or possible court proceedings. The IDR process
would be meaningless if CMS could simply disregard it without making an
independent finding that it disagreed with its outcome in a particular
case. CMS has made no showing here that it independently determined to proceed against Petitioner notwithstanding Petitioner's success at having the deficiency findings that were made at Tag 312 rescinded at the State level. It has advocated no facts to show that its staff independently reviewed the original deficiency findings after the completion of IDR and determined to proceed against Petitioner despite Petitioner's success. I cannot conclude that CMS made such a determination absent any assertions by it that it did so.
The undisputed material facts of this case show only that CMS concurred with a recommendation by the Alabama Department of Public Health to impose a remedy against Petitioner that was subsequently rescinded. CMS has not advocated facts to show that it disagreed with the rescission of that recommendation. Therefore, there is no basis for me to conclude that there is a present disagreement between CMS and the Alabama Department of Public Health and no basis to impose a remedy against Petitioner. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge
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