Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
North Ridge Care Center, |
DATE: May 31, 2002 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-98-136 Decision No. CR910 |
DECISION | |
DECISION With
this Decision, I adopt the Summary Judgment rulings against Centers for
Medicare & Medicaid Services (CMS) issued by Administrative Law Judge
(ALJ) Mimi Hwang Leahy on February 23, 2001. Because CMS have now rescinded
all penalties relating to the remaining time period at issue in the above-captioned
case, Petitioner no longer has a right to a hearing. I grant CMS's motion
for the entry of an ALJ decision for the period of time covered by ALJ
Leahy's partial summary judgment, and dismiss the remainder of the case.
The hearing previously scheduled to start on July 16, 2002, is cancelled.
I. Background On December 4, 1997, CMS issued a notice
letter to North Ridge Care Center (Petitioner) citing Petitioner's noncompliance
posing an "immediate jeopardy" to residents between June 20 and July 20,
1996, because Petitioner had not prevented the death of a resident who
had been found asphyxiated due to bed side-rail entrapment. CMS imposed
a civil money penalty (CMP) of $7,500 per day for those 30 days. CMS determined
that, from July 21, 1996 through January 7, 1997, Petitioner's noncompliance
continued - but not at the "immediate jeopardy" level - because changes
that should have been made voluntarily by Petitioner had been delayed
until January 7, 1997, when an investigator from the state agency made
an unannounced visit to investigate the resident's death. CMS imposed
a CMP of $300 per day from July 21, 1996 to January 7, 1997. After a timely request for hearing, this
case was assigned to ALJ Leahy. Thereafter, Petitioner moved for summary
judgment because, on October 28, 1996 in an intervening time period, the
state agency found Petitioner to be in compliance as of August 30, 1996.
The state agency issued the certificate of compliance after a "standard
survey" and a "resurvey" to verify Petitioner's correction of other problems. The crux of Petitioner's summary judgment
argument was that 42 C.F.R. � 488.430(b) provides that CMS may only impose
a CMP for the number of days of past noncompliance since the last standard
survey. Because the Petitioner's last standard survey had been completed
on October 28, 1996, it asserted it could not be assessed a CMP for any
prior time. In an exhaustive and well-reasoned opinion, entitled Rulings
Granting Summary Judgment to Petitioner under 42 C.F.R. � 488.430(b) and
Denying Summary Judgment as to Remaining Issues (Rulings),
ALJ Leahy accepted Petitioner's argument that the plain meaning of � 488.430(b)
is a limitation of CMS's ability to impose a CMP for past noncompliance.
Rulings,
at 10. Therefore, ALJ Leahy set aside the CMP that had been assessed against
Petitioner for the period from June 20, 1996 through, and including, October
28, 1996. The $300 per day CMP that CMS imposed against Petitioner for
the October 29, 1996 to January 7, 1997 period remained to be adjudicated. This case was reassigned to me for hearing
and decision. I held a prehearing telephone conference with the parties
on February 12, 2002. I told the parties I could see no reason to disturb
ALJ Leahy's summary judgment ruling in this case and I scheduled a hearing
to begin in July, 2002 for the remaining issue; that is, the per day CMP
imposed by CMS from October 29, 1996 to January 7, 1997. On May 8, 2002,
CMS sent me a letter and attached Centers
for Medicare & Medicaid Services' Notice of Rescission of Civil Money
Penalty for the Period from October 29, 1996 through January 7, 1997 ($21,300),
and Motion for Entry of ALJ Decision Regarding the Remaining Civil Money
Penalty for the Period from June 20, 1996 through October 28, 1996 ($262,500)
on the Basis of Judge Leahy's Ruling of February 23, 2001. In this
Motion, CMS stated, " .
. . although CMS disagrees with Judge Leahy's ruling, to this point there
has been no ALJ 'decision' disposing of the entire CMP originally imposed
by CMS for CMS to appeal to the Departmental Appeals Board."
II. Findings 1. ALJ Leahy has already ruled that CMS
cannot legally impose a CMP against Petitioner for the period from June
20, 1996 to October 28, 1996. 2. I see no reason not to adopt her well-reasoned
and thorough opinion as the law of this case. 3. CMS has rescinded the remaining penalty
not disposed of by ALJ Leahy's Rulings.
The regulations authorize appeals only with respect to a finding of noncompliance
that results in the imposition of a remedy. 42 C.F.R. � 498.3(b)(13). 4. Because there are no remaining assessed penalties for me to consider, Petitioner no longer has a right to a hearing on those issues. I grant CMS's motion and enter judgment in this case for Petitioner as set forth in ALJ Leahy's Rulings. |
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JUDGE | |
Anne E. Blair Administrative Law Judge
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