DATE: June 15, 1998
In the Case of:
Hillman Rehabilitation Center,
Petitioner,
- v. -
Health Care Financing Administration.
Decision No. 1663
App. Div. Docket No. A-98-27
Civil Remedies C-97-227
The Health Care Financing Administration (HCFA) appealed an October 20, 1997 determination by Administrative Law Judge (ALJ) Steven T. Kessel on remand from our decision of February 28, 1997. Hillman Rehabilitation Center, DAB CR500 (1997) (ALJ Remand Decision), on remand from Hillman Rehabilitation Center, DAB No. 1611 (1997)(DAB Decision I). The ALJ decided on remand that HCFA lacked authority to terminate the participation in Medicare of Hillman Rehabilitation Center (Hillman). We reverse the ALJ's decision on remand and find that HCFA had legal authority to terminate Hillman. We sustain the ALJ's factual findings on remand that Hillman failed to show that it was in substantial compliance with two Medicare Conditions of Participation (COPs). We therefore uphold HCFA's termination of Hillman.
We defer here to the ALJ's credibility determinations on remand. The main reasons for our conclusion that HCFA had legal authority to act to terminate Hillman are as follows:
Hillman is a rehabilitation agency in New Jersey that provided outpatient physical therapy (OPT) as a Medicare provider beginning in about 1985. Hillman is owned in part and administered by Dr. Benjamin Akinrolabu (who appeared as a witness for Hillman at both hearings).
On June 13, 1995, HCFA notified Hillman by letter that Hillman would be terminated from participation in the Medicare program effective July 5, 1995 based on the results of three survey visits. Petitioner's Ex. 7, at 1. HCFA determined that Hillman failed to comply with the COP requirements relating to physician oversight and plans of care (42 C.F.R. . 405.1717) and to clinical records (42 C.F.R. . 405.1722).
Hillman sought review of HCFA's determination and received a hearing before the ALJ on February 13, 1996 (Hearing I). The ALJ then issued a decision in which he concluded that HCFA had the burden of proving that Hillman failed to comply with a Medicare COP and that HCFA had failed to carry that burden. Hillman Rehabilitation Center, DAB CR419, at 3-4 (1996) (ALJ Initial Decision).
HCFA appealed that decision to the Board. In our first decision, we reversed all but one of the ALJ's six numbered findings of fact and conclusions of law (FFCLs). DAB Decision I, at 65. We issued 17 substitute FFCLs that were binding on the ALJ on remand. Id. at 65-67. We held that HCFA was required to set forth a specific basis for its determination and, if challenged, to come forward with evidence establishing a prima facie case on any disputed findings. FFCLs 1A-1B. We held that the provider has the ultimate burden of showing that it is in substantial compliance with the relevant Medicare requirements, as well as coming forward with evidence to establish any affirmative argument or defense. FFCLs 1C-1D. We then made findings about the specific allegations and the applicable regulatory requirements in this case. FFCLs 3-15. We found that Hillman promised to maintain updated copies of clinical records at its central office and that the State survey agency was entitled to request that records be produced there. FFCLs 3-4. We found that the records produced by Hillman on April 5, 1995 failed to document required physician involvement or timely completion of clinical records. FFCLs 6-7. We explained what would be necessary to establish sufficient physician involvement to satisfy the COP requirements in the context of the treatment provided here. FFCLs 8-12. We found that the evidence produced by HCFA established a prima facie case that Hillman had failed to comply with both COPs. FFCLs 13-14. We found that Hillman had the burden to prove its assertions that it had more complete records readily available on April 5, 1995 which would have demonstrated compliance but did not produce them because the surveyors' document request was too limited. FFCL 15.
We further found that the record as a whole at the time of our decision would support eight additional findings. FFCLs 16-23, DAB Decision I at 67-68. These findings addressed the ultimate issue of whether Hillman had shown substantial compliance and concluded that Hillman had not done so. However, given the possibility that Hillman might have been prejudiced in its presentation of its case by confusion caused by the ALJ's ruling on burden of proof, we determined to permit Hillman an opportunity to present additional evidence on certain limited issues of fact. We thus remanded the case to permit Hillman to make an offer of proof as to its arguments that: (1) "the surveyors on April 5, 1995 requested only a limited subset of patient records," (2) "its patient record exhibits constitute reliable evidence of its compliance as of that survey date," and (3) "physicians performed timely reviews and completed records promptly despite the absence of dated signatures." DAB Decision I at 68. We stated that the ALJ could make appropriate alternative or additional findings on the issues addressed in FFCLs 16-23, if supported by reliable, probative evidence on remand. Id. at 69. Otherwise, the findings at FFCLs 16-23 would also be final and binding.
On remand, the ALJ received an offer of proof from Hillman and held a second hearing. He concluded that Hillman was "under no obligation to prove affirmatively that it was complying with Medicare requirements as of April 5, 1995 because [Hillman] rebutted completely HCFA's prima facie case." ALJ Remand Decision at 1. The ALJ concluded that Hillman's evidence so undercut the evidence on which HCFA's case rested as to reduce it to "unsubstantiated allegations." Id. at 1 and ALJ Remand Findings 1-3. The core of the ALJ's conclusion was that HCFA's prima facie case rested entirely on documents obtained by Mr. End of the New Jersey State survey agency on April 5, 1995, but that no legitimate inferences could in fact be drawn from these documents because Mr. End never conducted a survey of Hillman on that date. Id. at 5-6 and ALJ Remand Finding 4. The ALJ stated that his conclusion was consistent with the binding FFCLs in our decision.
The ALJ further stated that he found it unnecessary to make any findings as to the state of Hillman's compliance on April 5, 1995 in light of his conclusions about HCFA's prima facie case. He noted, however, that our order might be read as directing him to make such findings. Consequently, he made findings (which he described as dicta without effect on his decision) concerning the "weight and quality of Petitioner's affirmative proof." Id. at 2. He rejected three of the FFCLs in our decision, FFCLs 16, 17, and 23. He adopted FFCLs 18-22 and made two additional findings as ALJ Remand Findings 5 and 6. Id. at 6. The substance of the ALJ's additional findings was that Hillman proved that its clinical records were readily accessible on April 5, 1995 but did not prove by a preponderance of the evidence that a physician timely approved and reviewed the care provided to each of Hillman's patients or that a physician timely completed clinical records documenting such approval and review for each patient. Consequently, the ALJ concluded that Hillman did not prove that it was complying with the two COPs at issue.
Arguments of the Parties and Standard of Review
HCFA appealed the ALJ Remand Decision to us, specifically taking exception to ALJ Remand Findings 1-5. HCFA Br. at 8-10. HCFA argued that the ALJ erred primarily in failing to follow our instructions. HCFA argued that we had already determined that HCFA had established a prima facie case and that we remanded only for the limited purpose of receiving additional evidence regarding the ultimate issue of Hillman's substantial compliance with the two COPs. HCFA Br. at 14-17. In light of his finding that Hillman did not prove that it was in substantial compliance, the ALJ erred, according to HCFA, in reopening the adequacy of the prima facie case and in finding that HCFA was without authority to terminate Hillman.
HCFA further argued that the ALJ erred in his treatment of Hillman's evidence concerning the events of the April 5, 1995 visit by Mr. End, in the company of Mr. Livesey from Aetna (the Medicare intermediary for Hillman). HCFA argued that the ALJ wrongly found that Hillman's staff reasonably interpreted Mr. Livesey's request for documents as limited to those contained in Hillman's billing files. In particular, since the ALJ found that the billing files were created solely for the convenience of its billing clerk and not to document compliance with Medicare billing regulations, HCFA argued that Hillman could not reasonably have thought those files sufficed to answer an inquiry by the fiscal intermediary. HCFA Br. at 23, 33-34, citing ALJ Remand Decision at 24. HCFA asserted that the ALJ incorrectly concluded that whether Hillman's understanding of Mr. Livesey's request was reasonable or not was irrelevant because Mr. Livesey did not represent the State survey agency. HCFA argued essentially that it was irrelevant what documents Hillman's employees thought were being requested if their belief was unreasonable in context. HCFA Br. at 33-34, 38.
Hillman responded that the ALJ was correct in finding that HCFA had not established a prima facie case against it, despite the prior appellate conclusion to the contrary, because the evidence presented at the remand hearing demonstrated that Mr. End's testimony on which the prima facie case rested was false. Hillman Br. at 9-12, 14-15. Hillman argued that the evidence it produced established instead that no request for clinical records was ever made by either Mr. Livesey or Mr. End and that "HCFA never even conducted a compliance inspection" of Hillman on April 5, 1995. Hillman Br. at 12, 15-19, citing ALJ Remand Decision at 13-17. Further, Hillman argued that HCFA's argument that Hillman should have known what documents to produce and what Mr. End's intentions were amounted to the improper imposition of a negligence standard on it. Hillman Br. at 20-24.
Hillman did not appeal any portion of the ALJ Remand Decision. Nevertheless, in its briefing, Hillman argued that the ALJ's conclusion that Hillman failed to prove substantial compliance with the physician involvement COP should either be disregarded because it was dicta or rejected as unfounded. Hillman Br. at 12-13, 27-29. Finally, Hillman argued that it was denied due process because it was unable fully to meet the burden of proof "first imposed on remand two years after the fact," given the inadequacy of the survey and HCFA's use of false testimony against Hillman. Hillman Br. at 29-32.
The standard of review on appeal from an ALJ decision is whether the ALJ decision is erroneous as to any challenged matter of law and whether any challenged finding of fact is supported by substantial evidence in the record as a whole. DAB Guidelines for Provider Participation Appeals at .4(b); see also DAB Decision I at 6, and cases cited therein.
Analysis
I. The ALJ's Conclusion that HCFA's Prima Facie Case Constituted Unsubstantiated Allegations Is Erroneous.
A. Once HCFA Established a Prima Facie Case in Its Presentation, the ALJ Erred in Revisiting the Question of Whether a Prima Facie Case Existed.
The ALJ is certainly correct that every prima facie case is subject to rebuttal. ALJ Remand Decision at 6. A prima facie case does not amount to an irrebuttable presumption, but rather to evidence sufficient to support a decision in a party's favor, absent contrary evidence. If the opposing party presents contrary evidence, the decision-maker must then, as the ALJ recognized, "weigh all of the relevant evidence and base his or her decision on that evidence." Id. at 6.
The ALJ recognized that, in this case, we had already concluded that HCFA had established a prima facie case. ALJ Remand Decision at 2; DAB Decision I; FFCLs 13 and 14. However, he did not proceed to weigh all of the evidence presented to him to determine what a preponderance of the evidence showed about the state of Hillman's compliance with the COPs at issue. He expressly declined to do so because he found that Hillman's attack on HCFA's case reduced it to mere allegations unsupported by relevant, credible evidence, and therefore that the situation reverted to one in which no prima facie case was established. ALJ Remand Decision at 7-8. The ALJ reasoned that, because every prima facie case may be rebutted, no "final conclusion may be made from the evidence which establishes HCFA's prima facie case until after the provider is afforded the chance to rebut that case." Id. at 6. As his later discussion made clear, by "final conclusion," the ALJ was referring to a final conclusion about the existence of HCFA's prima facie case, rather than to a final conclusion on the matters ultimately at issue in the case. We find this reasoning to be erroneous. The ALJ should be able to determine the existence of a prima facie case at the close of HCFA's presentation. Hence, as we pointed out in our first decision, HCFA would lose even if the provider offered no evidence at all, if HCFA did not come forward with evidence sufficient to support a conclusion in its favor in presenting its prima facie case. DAB Decision I at 23. Thus, we held that HCFA must make its case "at the outset." Id. at 24.
Once HCFA has established a prima facie case, the provider may then offer evidence in rebuttal, both by attacking the factual underpinnings on which HCFA relied and by offering evidence in support of its own affirmative arguments. An effective rebuttal of HCFA's prima facie case would mean that at the close of the evidence the provider had shown that the facts on which its case depended (that is, for which it had the burden of proof) were supported by a preponderance of the evidence. The ALJ pointed to no authority, however, under which an effective rebuttal would have the effect of causing the decision-maker to revisit whether a prima facie case had been established at the outset. Such an approach is inconsistent with the purposes for which we concluded that HCFA was obliged to present a prima facie case.
The major purpose of requiring HCFA to establish a prima facie case is to assure that the action taken by HCFA has a legally sufficient foundation, if the facts are determined to be as alleged by HCFA (since it would be unfair and inefficient to require a provider to defend against a case that, even if proven, would not suffice to support the action taken). DAB Decision I at 11. In addition, we concluded that fairness requires HCFA to set out evidence of the factual basis for its action in order that the provider not have to offer a shot-gun defense without adequate notice to respond to the case against it. DAB Decision I at 11, 24. These purposes are accomplished once HCFA has presented a case sufficient, if not effectively rebutted, to sustain its action. At that point, HCFA has established a prima facie case and, to prevail, the provider must proceed to prove its case by the preponderance of the evidence on the record as a whole.
Having improperly revisited the adequacy of the prima facie case presented by HCFA, the ALJ further erred by limiting the evidence on which he rested his re-evaluation to only a portion of the evidence before him. The evidence which he expressly declined to consider included the documents offered by Hillman to attempt to show the state of its clinical records and the affidavits of physicians which Hillman introduced at the second hearing to attempt to show timely physician oversight. The ALJ reasoned that Hillman's affirmative evidence of compliance should not be evaluated at all once Hillman rebutted the factual basis of HCFA's prima facie case, because a provider need not have pursued "multiple theories" in presenting its case. ALJ Remand Decision at 7. It is correct that if a party fails to establish a prima facie case, the opposing party may prevail without producing any evidence. However, it does not follow that, once the opponent has presented evidence, the decision-maker can ignore probative evidence properly in the record before him in weighing whether each party has proven an issue by the preponderance of the evidence. The patient records proffered by Hillman in response to the deficiency findings in themselves effectively show (as the ALJ found) that Hillman was unable to prove that its clinical records were in substantial compliance as of April 5, 1995. The result of disregarding them was that the ALJ expressly declined to consider significant evidence of noncompliance in the record in determining whether even a prima facie case of noncompliance had been made. See ALJ Remand Decision at 28.
The ALJ recognized that this result would raise concerns that beneficiaries would be left unprotected from a provider that was not, in fact, complying with the COPs. Id. He nevertheless felt it necessary to disregard any evidence offered by a provider to show compliance in a case where the provider also attacked the basis of HCFA's prima facie case. He reasoned that to do otherwise would somehow render meaningless HCFA's obligation to present a prima facie case or might necessitate bifurcated hearings in the future. Id. at 28-29. We find these reasons unpersuasive. The existence of a prima facie case should be ascertainable before the provider is obliged to put forward its entire case. Thus, contrary to Hillman's argument, there is no danger, that requiring the ALJ to consider all the evidence in finding the facts would make meaningless the requirement that HCFA present evidence to establish its prima facie case. The possibility that a bifurcated hearing might be called for in a future case hardly justifies disregarding probative evidence in the record.
We discuss below the factual basis for the ALJ's conclusion that HCFA's prima facie case was unfounded -- that Mr. End's visit to Hillman on April 5th was so flawed as not to constitute a survey visit and that the documents he obtained were irrelevant because they were drawn from billing rather than clinical files. The critical point here is that, even were we to accept these premises as supported on the record (which we do not), they would not suffice to sustain the ALJ's conclusions.
First, confronted with a set of patient records that, on their face, appear to be incomplete records of clinical treatments lacking required physician signatures, regardless of how they were obtained, the State agency could not be obligated to ignore them. Hence, the State agency (acting for HCFA) had authority to take further action in the form of communicating its deficiency findings to Hillman. Second, Hillman was not simply terminated as a result of a single visit, however flawed the conduct of that visit. Rather, the April 5th visit occurred in the context of prior findings of deficiencies in the same area and was followed by repeated opportunities for Hillman to respond. The bottom line is that if Hillman had complete clinical records showing timely physician oversight that were available on April 5th but not produced due to the inadequacy of the survey, Hillman should surely have been able to produce them by now.
The conclusion that the State survey agency drew of inadequate record-keeping or lack of timely physician authorizations was thus plainly not based on irrelevant evidence, as the ALJ inferred from his findings about the existence of separate filing systems. That there was relevant evidence of noncompliance did not, of course, mean that no contrary evidence might be offered in response. The existence of a separate billing file system, and consequent confusion about what the surveyors were requesting, might explain the late production of complete records by Hillman or justify extrinsic evidence of physician oversight. Hillman had an opportunity to present such an explanation before the termination recommendation went forward and again before the ALJ at the first hearing.
On remand, we permitted Hillman a further opportunity to show, as the ALJ found it did, that the patient records it proffered at the first hearing were available and could have been produced on April 5, 1995. See DAB Decision I at 68; ALJ Remand Decision at 19-20, 31-32. However, a showing that a better set of records was available and that the failure to produce them was excusable does not make the actions of the State survey agency or HCFA based on the evidence available to them unauthorized ab initio. Rather, it permits Hillman's exhibits to be considered as part of the de novo review to determine whether Hillman was out of compliance and should be terminated. When they are so considered, we conclude, for reasons discussed below, that the ALJ's finding that Hillman did not prove substantial compliance is supported by substantial evidence on the record as a whole.
B. The ALJ's Decision As to the Prima Facie Case Rested on Factual Findings That Are Not Supported by Substantial Evidence.
We next consider the factual bases for the ALJ's conclusion that HCFA's prima facie case was unsubstantiated. The core of his conclusion was that he believed the account of the April 5, 1995 visit presented by Hillman's witnesses and disbelieved the account offered at the first hearing by Mr. End. Id. at 13-17. He believed that Mr. End failed to conduct a survey, because he found that Mr. End did not personally request that Hillman produce records on that day and did not conduct a proper exit conference. Id. at 10-18. He believed the testimony of Hillman's witnesses that they understood Mr. Livesey to have requested "billing files" rather than clinical records and that they provided documents accordingly. Id. at 18-24. The ALJ concluded that this assessment compelled him to treat the documents obtained on April 5, 1995 as wholly irrelevant to the state of Hillman's clinical records on that date. Id. at 24.
1. HCFA's case was based on more than the single visit of Mr. End to Hillman on April 5, 1995.
The ALJ proceeded on an assumption that HCFA's prima facie case rested solely on evidence that Mr. End had conducted a survey on April 5, 1995. This position does not accurately reflect the full basis of HCFA's action. The termination letter cited the results of the survey "completed on January 13, 1995 and the revisits of February 22, 1995 and April 5, 1995." Petitioner's Ex. 7, at 1. Thus, HCFA acted not only on the April 5, 1995 visit but also in the context of the initial survey in January 1995 in which related deficiencies were cited and the follow-up visit in February 1995 in which no records were found to be available for review (and which was resolved with a letter from Hillman assuring the survey agency about how records would be maintained in the future). P. Ex. 7, at 1. Mr. Kozek (Mr. End's supervisor) testified that the survey agency's termination recommendation was based on this entire history of complete records not being available on the prior visits, as well as on the lateness and inadequacy of the plan of correction proffered by Hillman. See Hearing Tr. I at 173. HCFA reasonably viewed the April visit in this context as demonstrating continuing noncompliance in these areas. Hearing Tr. I at 191.
Further, Hillman had been given an opportunity to submit a plan of correction after receiving the deficiency notice informing it of the State agency's findings. The deficiency findings specifically stated that 10 out of the 20 records reviewed had no written physician's order for physical therapy and 19 out of 20 did not contain physician certifications that a plan of care had been reviewed and approved. Had Hillman responded with a prompt and complete plan of correction containing a coherent explanation of why these unsigned versions existed and where complete and adequate versions could be reviewed, the termination action might well have been avoided. See 42 C.F.R. . 488.456(b)(1)(ii). However, Hillman failed to meet the deadline and submitted a plan of correction only on May 19, 1995 (two weeks late). P. Ex. 6. The plan of correction does not anywhere explain that the provider kept a dual set of records and provided the questioned records only from a billing file. Certainly, if complete clinical records existed for these patients on April 5, 1995, they should still have been in existence and accessible on May 19, 1995. Yet, Dr. Akinrolabu neither provided them to the survey agency with his late plan of correction nor offered any explanation of why they were not available then.
The ALJ suggested that Hillman's staff had a justified sense of security after the February revisit, because Hillman was certified as in compliance, after its letter promising to update its clinical records in the central office on a monthly basis was accepted. ALJ Remand Decision at 26. The ALJ inferred that Hillman would have had no notice that the State survey agency had any questions about its compliance and hence no idea why Mr. End might have appeared at Hillman's office. Id. While it is reasonable to infer that Dr. Akinrolabu was happy that his assurances were accepted so Hillman could continue to operate, it cannot reasonably be inferred that Dr. Akinrolabu assumed (or had any basis to assume) that no further action would be taken to verify that his assurances were actually carried out. Dr. Akinrolabu testified that Mr. End had told him that "the only way they are going to certify me for this year was that I should send a letter . . . saying that I will make photocopies of all the files . . . and keep them in the central office." Hearing I, Tr. 210-11. Neither Hillman nor the ALJ pointed to any authority by which assurances made by a provider on which a survey agency relies in certifying compliance are immune from subsequent verification. To the contrary, as noted below, the survey regulations put Hillman on notice that the survey agency may resurvey as necessary to confirm that a provider has corrected a prior deficiency. In fact, Hillman's prior experience had been that the surveyor returned about six weeks after its initial survey to determine if the plan of correction had been implemented.
Thus, in assessing the significance of the events of the April visit to the basis for HCFA's action, the ALJ erred by singling out the visit as if it occurred in a vacuum.
2. The ALJ erred as matter of law in interpreting the minimum requirements for a compliance survey visit.
The ALJ's reasoning implied that no survey could be found to have occurred absent certain elements, including, in particular, a document request initiated by Mr. End and a full exit conference. The ALJ understood Mr. End's testimony in the first hearing to assert, inter alia, that these elements and other indicia of a full survey were present on April 5th, in what the ALJ characterized as a "seamless account." ALJ Remand Decision at 8. However, the ALJ determined that Mr. End was not a credible witness, and he discounted Mr. End's version of events completely. He concluded that, if Mr. End's testimony about these events was not credible, then the visit did not constitute a survey and no conclusions concerning the state of Hillman's compliance with Medicare COPs could be based on the resulting documents. We conclude that, however desirable the elements relied on by the ALJ might have been to improving the conduct of this visit, they are not minimum elements required to define a follow-up survey visit under the regulations.
The ALJ pointed to the regulations governing surveys in holding that, while they require providers to comply with survey requests, they do not impose on providers any duty to "divine the surveyor's purpose" or to "interrogate the surveyor." ALJ Remand Decision at 25, citing 42 C.F.R. Part 488. Hence, he concluded that Mr. End had to make clear independently of Mr. Livesey what his purpose was and what documents he wished to review. However, the survey regulations nowhere suggest that a survey visit is without effect if the document request is not initiated and articulated personally by the State surveyor. Hillman cited nothing in the regulations precluding a surveyor from relying on the formulation of a document request by another reviewer. Furthermore, neither the ALJ nor Hillman identified any requirement in the regulations that every survey visit conclude with an exit conference in which all deficiencies are identified. Specifically, Hillman cited nothing precluding a surveyor from indicating, as Mr. End did here, that further review of documents is necessary to reach a conclusion and therefore that he must take copies back to his office for such review.
Clearly, the regulations do not contemplate that every survey (much less every follow-up visit) must include a full review of all COPs or must occur only at specific intervals. To the contrary, the survey regulations specifically provide for resurvey visits "as frequently as necessary" and for the narrower purpose of "confirm[ing] the correction of deficiencies." 42 C.F.R. . 488.20(b)(1). Rather than spelling out the particular steps to be taken in every individual situation, the regulations provide that State survey agencies are to "[t]ake appropriate actions that may be necessary to achieve compliance or certify noncompliance" and that "[s]urveyors are professionals who use their judgments, in concert with Federal forms and procedures, to determine compliance." 42 C.F.R. .. 488.20(b)(4) and 488.26(c)(3). In light of the flexibility provided in the survey process and the absence of any identified requirement in the survey regulations as to who must initiate or articulate the scope of a document request or what must occur in an exit conference of a rehabilitation agency, we reject as a matter of law the conclusion that Mr. End's visit was not a survey simply because it lacked the two elements highlighted by the ALJ.
3. Even considering only the testimony of Hillman's witnesses, there is not substantial evidence in the record as a whole to support the finding that no survey occurred.
We turn next to whether as a matter of fact what occurred can fairly be characterized as a survey visit. For this purpose, we will evaluate only the evidence offered by Hillman's witnesses whose testimony the ALJ credited. Relying on the testimony of Hillman's witnesses about the events of April 5, 1995 establishes that, at a minimum:
Mr. End was known to and recognized by Hillman's staff as a surveyor for the State survey agency. See, e.g., Hearing Tr. II at 42 (Reed), 106 (Sidberry), 114 (Akinrolabu); DAB Decision I at 32-33, 48.
Hillman's staff, and in particular Dr. Akinrolabu, was aware of the history of two prior survey visits. Further, the prior deficiency notices and Hillman's letter in response to the February visit all clearly show that Dr. Akinrolabu knew that Mr. End had questions during and after the earlier visits about Hillman's record-keeping system. See P. Exs. 1, 2.
Dr. Akinrolabu testified that Mr. End asked if Dr. Akinrolabu remembered the records he promised "to keep in the central office on a regular basis" and requested to be shown where they were being kept, evidencing that Mr. End demonstrated some continuing interest in the subject of Hillman's record-keeping during this visit. Hearing Tr. II at 117.
Dr. Akinrolabu acknowledged that Mr. End requested from Dr. Akinrolabu copies of the documents being reviewed by Mr. Livesey. Hearing Tr. I at 225; see also Hearing Tr. II at 32, ALJ Remand Decision at 21 (Mr. End asked "for Xeroxed copies of what Mr. Livesey received.").
In requesting those copies, Mr. End explicitly asserted that he did so under his authority as a Medicare surveyor for HCFA. Hearing Tr. I at 225 (Akinrolabu).
Mr. End indicated at the close of the visit that he would have to review the documents further. Id.
Perhaps Hillman's staff, as the ALJ apparently found, did conclude in the face of these events that Mr. End's visit was simply inexplicable, unconnected to his role as a state surveyor evaluating their compliance with HCFA's record-keeping requirements, and that his request for copies of the records was mere caprice rather than part of his ongoing inquiry into their record-keeping. The notice of appeal asserted that Mr. End's April 5th visit was "confusing." Notice of Appeal at 3. However, the existence of a survey visit must be evaluated on an objective basis, i.e., in light of whether the actions of the surveyor reasonably constituted a follow-up survey visit. The actual subjective beliefs of Hillman's employees may be admissible in terms of understanding their actions and explaining how they determined which documents to produce, but cannot be the basis for deciding whether a Medicare survey visit was conducted. In that light, the facts as admitted by Hillman are inconsistent with a conclusion that no survey visit occurred.
As an objective matter, the admitted facts present numerous indicia that a survey visit did occur following up on questions about record-keeping. The uncontested evidence is that Mr. End requested for further review a set of copies of the documents produced in response to Mr. Livesey's inquiries. We conclude that this situation does not differ in any meaningful way, in terms of concluding whether the visit was a survey visit, from a situation in which Mr. End had initially asked that the patients' records be pulled.
To say that a survey revisit did occur is not to assert that Mr. End's conduct of that visit was irreproachable. Certainly, the ALJ had some foundation for his criticisms of Mr. End's relative passivity and poor communication with the provider's staff. However, the ALJ emphasized that he was not rejecting HCFA's case because Mr. End did not comply with requisite survey procedures and acknowledged that a procedural flaw would not necessarily render evidence obtained at the survey irrelevant. ALJ Remand Decision at 28.
We agree that a procedural defect in a survey is not alone a sufficient basis to overturn a determination not to certify a noncompliant provider. See DAB Decision I at 46. This is critical because if a provider could seek to force HCFA to certify it simply because errors occurred during a survey, the purpose of the Medicare COPs to assure that only qualified providers participate in providing services to Medicare beneficiaries would be undermined. In this case, however, the ALJ concluded not that the visit was poorly handled, but that no survey at all was conducted on April 5, 1995. For the reasons stated above, we find this conclusion erroneous as a matter of law and without factual support in the record as a whole.
4. The ALJ erred in disregarding the documents obtained from Hillman on April 5th on the grounds that Hillman understood them to be requested only by the fiscal intermediary.
The ALJ on remand rejected HCFA's exhibits as wholly irrelevant because they were requested by Mr. Livesey who did not act as "a representative of the New Jersey State survey agency" in requesting the documents. ALJ Remand Decision at 24-25. Consequently, the ALJ concluded, it is irrelevant what documents Mr. Livesey requested or whether Hillman's staff acted reasonably in responding to his requests. This assessment reflects a misunderstanding of both the Medicare billing requirements and the role of a fiscal intermediary in enforcing them. First, Mr. Livesey acted as an agent for HCFA in seeking to audit the documentation supporting Hillman's Medicare claims. Second, no claims for Medicare reimbursement could have been acceptable without timely documentation evidencing physician certifications of need. Third, the documentation required to support those claims was often the very same documentation that was required by the COPs to show timely record-keeping and physician oversight.
Dr. Akinrolabu testified that Mr. Livesey announced that he was doing a claims integrity check and that it was "mandated by HCFA." Hearing Tr. I at 211; Hearing Tr. II. at 113-14. Mr. Livesey was known to Hillman (and identified himself) as a representative of Aetna. Hearing Tr. II at 113-14. It is undisputed that Aetna was Hillman's fiscal intermediary for Medicare, a role which entails evaluating claims for their propriety for payment under Medicare billing requirements. Aetna's role was thus not unrelated to the Medicare survey follow-up, as the ALJ implied by repeatedly referring to Aetna's billing requirements, as if Aetna were an unrelated private party imposing requirements irrelevant to the Medicare program. See, e.g., Hearing Tr. II at 85. That approach is entirely inconsistent with the role of the intermediary as HCFA's agent. Mr. Livesey specifically testified that he was at Hillman "to assure that the Medicare program was being billed for services that had been appropriately documented" including "the appropriate certification and/or recertification." Hearing Tr. II at 64 (emphasis added).
Dr. Akinrolabu stated that Mr. Livesey told him exactly what documents were wanted for that purpose. Hearing Tr. I at 213. Dr. Akinrolabu reported that Mr. Livesey requested records of specific patients marked off on a list of patients for whom Hillman had submitted Medicare claims to Aetna. Hearing Tr. II at 114. Dr. Akinrolabu said that Mr. Livesey asked for whatever was used to bill Medicare for these patients, and that when asked if he wanted a particular form, Mr. Livesey answered "Whatever you have." Id. at 115.
These billing requirements in many respects parallel the physician involvement and documentation requirements in the COPs at issue here. See DAB Decision I, at 48. As we pointed out in our first decision, claims for reimbursement under Medicare must be supported by physician certification and recertifications of need (depending on the service period). DAB Decision I at 48. The documentation to show these physician certifications would have sufficed as well to show physician oversight of care. Thus, we note that on the HCFA forms 700 and 701, which Ms. Reed testified were part of the billing file, the same physician's signature acts as evidence of both physician review of plans of care or progress reviews and certification or recertification of the need for care. See Hearing Tr. II at 36-37; HCFA Ex. 31, at 5-6. Yet the documents produced on April 5th had virtually no physician signatures to support claims reimbursement.
HCFA offered evidence that, as a consequence, these claims were denied by Aetna on forms prepared by Mr. Livesey. Hearing Tr. II at 82-83; see, e.g., P. Ex. 9, at 10; P. Ex. 16, at 8; P. Ex. 23, at 8. HCFA further proffered evidence that Hillman attempted to respond to the denials by providing additional records to Aetna but still failed to establish the required documentation of physician approvals. However, the ALJ ruled this evidence irrelevant because HCFA did not base its termination on Hillman's noncompliance with Aetna billing requirements. Hearing Tr. II at 82-86. This ruling was erroneous because the reasons for the claims denials largely parallel the reasons for the deficiency findings (many claims lacked signed certifications or physician orders for treatment). Hence, a showing as to what Hillman produced in an effort to support the claims was relevant to whether Hillman had available documentation that would also have shown compliance with the COPs. Contrary to the ALJ's ruling, Hillman's inability to overcome the claims denials was therefore relevant here even though HCFA's termination was not based on Hillman's billing problems.
5. The records obtained during the April 5th visit, whether obtained from Hillman's billing files or clinical files, on their face supported the deficiency findings.
Regardless of the quality of the survey conducted by Mr. End, once the documents collected by Mr. End came to the attention of the survey agency, the survey agency was justified in reviewing whether they raised questions on their face about the provider's compliance with the COPs at issue. The documents included forms used for clinical record-keeping that lacked critical indicia of physician oversight, such as orders for treatment (as opposed to merely evaluation for treatment) and evidence of physician reviews of care. See HCFA Exs. 17-35. These documents in themselves provide a basis for the State survey agency to take some further action to assure Hillman's compliance.
Even if Hillman might later provide satisfactory documentation to establish that the required physician oversight had occurred, we conclude that (given its prior experience with Hillman's compliance problems) the State agency could properly recommend termination. In essence, the State survey agency was confronted with copies of patient treatment records that were facially incomplete for 19 out of 25 files requested by the Medicare billing intermediary (five having been returned as compliant and one not found deficient on review). Neither the State survey agency nor HCFA should be obligated to ignore a set of documents that purport on their face to be copies of patient records and that do not include critical physician authorizations.
The ALJ accepted Hillman's characterization of the documents obtained on April 5th as mere "billing files." Based on this characterization, the ALJ concluded that the exhibits could not constitute "relevant evidence of the state of [Hillman's] clinical records on April 5, 1995" or of its physician authorization practices. ALJ Remand Decision at 24.
In our first decision, we explained in detail why Hillman's inconsistent representations about its recordkeeping systems did not persuasively establish that it kept two filing systems in its central office -- one with partial records selected for use by the billing clerk and another with complete clinical records. See DAB Decision I at 35-41. The ALJ on remand suggested that additional testimony on this point established that Hillman did maintain separate billing and clinical files. ALJ Remand Decision at 22. He further found that Hillman's staff believed that Mr. Livesey's requests were directed solely to billing matters and therefore that only records from the files maintained for the billing clerk's convenience were required to be produced. Id. He then held that, whether or not this understanding was reasonable, Hillman could not be faulted for its honest understanding given Mr. End's passivity in articulating the needs of the State survey agency. Id. Since the documents came from billing files, the ALJ then inferred that they were not evidence as to the state of Hillman's clinical records because clinical records are not the same as billing files.
In our first decision, we pointed out that the distinction between billing and clinical files had no legal basis, so that surveyors for either the State survey agency or the Medicare intermediary would have had no notice that they needed to be on guard to spell out clearly which set of records they wished to review. DAB Decision I at 48. Further, we noted that the almost complete identity between the two sets of requirements in the areas relevant here made it unlikely that documents would be selected from a file of incomplete billing records in order to support claims if complete records meeting the billing requirements were available. Id. The ALJ on remand rejected these points on the basis that the new evidence established that Hillman nevertheless did in fact maintain separate billing files to use in generating claims. ALJ Remand Decision at 23.
However, the ALJ missed the far more important inference to be drawn in this regard from the fact, discussed above, that the two sets of Medicare requirements are nearly identical as to physician authorization documentation requirements. The Medicare intermediary simply could not lawfully pay a claim not supported by a record meeting the timely physician approval requirements. The State survey agency could reasonably infer that any documents produced in part to substantiate the legitimacy of Medicare payment claims for patient treatment, without regard to what filing system they came from, would also substantiate the state of compliance with the same physician authorization requirements found in the COPs. The State survey agency was particularly justified in relying on this inference in this case, given the complete absence of any notice to the agency from Hillman about its idiosyncratic filing systems (despite repeated correspondence with Hillman about its recordkeeping).
This is also true since Hillman had made an express commitment to have updated clinical records in its central office monthly. The fact that, as late as two or three months after treatments were provided, there were sets of patient records without any order for treatment or with blank spaces where physician signatures and dates were called for was certainly enough to raise some question as to when, if ever, those physician authorizations occurred. Further, the plan of correction offered by Hillman to respond to the deficiencies found in these records repeatedly asserts that all patients' "charts" contain physicians' orders evidenced by signatures in the appropriate locations. See P. Ex. 6, at 3-5. Nowhere does Hillman suggest that Mr. End received copies of something other than the patients' "charts." Even if the records provided on April 5th were pulled from a limited file used by a billing clerk, Hillman's response in the face of the deficiency findings clearly justified the State survey agency in recommending termination based on a conclusion that the patient charts did not contain adequate, timely and complete documentation. An honest belief that records from only a limited set of files were called for, even if unreasonable, may undercut the otherwise compelling presumption that because complete clinical records were not produced, they must not have been complete or accessible on the date production was requested. Such a subjective belief, however, does not suffice to undercut the authority of the State survey agency to evaluate the records actually provided.
We thus find that the documents obtained during the April 5, 1995 visit, in the context set forth above, were sufficient in themselves to provide authority to the State survey agency to recommend and HCFA to act to terminate Hillman.
However, we defer to the ALJ's findings that Hillman did in fact have another set of records relating to the treatment of these patients available at the time of the visit but not produced, and that the exhibits and physician affidavits proffered by Hillman constituted the best available evidence of the state of those records. Consequently, we must next proceed to review whether those exhibits in the context of the record as a whole substantiate compliance.
II. The ALJ's Findings That Hillman Failed to Prove Substantial Compliance With Two COPs Are Supported by Substantial Evidence on the Record as a Whole.
The ALJ concluded that his decision obviated the need to address Hillman's actual compliance on April 5, 1995. Our analysis above makes clear that this was error, since HCFA had established a prima facie case of substantial noncompliance which authorized it to terminate Hillman unless Hillman could show that it was in substantial compliance on the relevant date. Recognizing, however, that we had directed him to make findings regarding compliance, the ALJ made such findings but characterized them as dicta. Having rejected the basis for the ALJ's conclusion that these findings were unnecessary to his decision and so were dicta, we conclude that these findings are necessary to resolve the case. We therefore address Hillman's arguments that the ALJ erred in finding that Hillman did not carry its burden of proof to establish substantial compliance with the COPs at issue.
As a preliminary matter, we note that Hillman failed to appeal the ALJ's conclusion that Hillman did not prove that it was in substantial compliance. Normally, those conclusions which neither party appeals are no longer contestable. 42 C.F.R. . 498.82(b). However, the circumstances of this case are peculiar given the repeated language of the ALJ describing his own findings on compliance as dicta. As a result, Hillman may not have understood that it needed to assert any challenge to these findings by taking exception to them on appeal. Consequently, we will proceed to consider whether either party's arguments would merit revisiting the ALJ's conclusions.
The ALJ accepted Hillman's witnesses' testimony as establishing that copies of its clinical records updated monthly were maintained at the central office and would have been produced had the staff understood the record review request to be directed at the clinical records. On that basis, he concluded that Hillman had proven that clinical records were accessible for review as required by 42 C.F.R. . 405.1722. ALJ Remand Finding 5, ALJ Remand Decision at 31. HCFA appealed this conclusion. HCFA's attack on the conclusion largely rested on its invitation to us to overturn the ALJ's findings about the events of April 5, 1995 and the existence of dual filing systems as contrary to the weight of the evidence and inconsistent with our instruction on remand. We decline to disturb the ALJ's assessment of the credibility of the witnesses appearing before him. We therefore conclude that substantial evidence supports the ALJ's conclusion that clinical records were accessible at the central office.
However, this conclusion does not resolve the question of Hillman's compliance, because the ALJ further concluded that Hillman did not provide evidence sufficient to establish that its clinical records documented compliance with either the requirement of prompt completion of clinical records at 42 C.F.R. . 405.1722 or that of physician oversight at 42 C.F.R. . 405.1717. ALJ Remand Finding 6, ALJ Remand Decision at 31.
As to the prompt completion of clinical records, the ALJ found in his initial decision that Hillman was not complying with that standard as set forth at 42 C.F.R. . 405.1717(c), but that HCFA had failed to prove that this noncompliance rose to a condition-level deficiency. Hillman Rehabilitation Center, DAB CR419, at 26-27 (1996). As we noted in our first decision, the ALJ's conclusion that HCFA had established noncompliance with this standard was never appealed by Hillman. DAB Decision I at 61, n.45. At that time, we found that Hillman had not proven that this deficiency was not of a condition level, but we permitted Hillman a further opportunity on remand to make such a showing. Id. at 68-69. On remand, the ALJ found that Hillman failed to adduce any evidence to address the level of severity of this proven deficiency. ALJ Remand Decision at 35. Consequently, the ALJ concluded that Hillman failed to prove that it was in compliance with the clinical records COP at 42 C.F.R. . 405.1722.
The ALJ also found that Hillman did not prove that it was in compliance with the physician authorization COP at 42 C.F.R. . 405.1717. Our first decision found that Hillman's patient record exhibits did not establish compliance because even Hillman's versions of many of the documents lacked required physicians' signatures, many of the physicians' signatures that were present were undated and therefore could have been added at a time not evidencing prompt review of patient care, some that were dated actually established that the review was not timely, and at least one required signature was dated after April 5, 1995. DAB Decision I at 41-44, 59-60.
On remand, Hillman offered affidavits from five physicians, representing 10 of the 19 patients whose records are at issue. See P. Exs. 30-34. The ALJ found the affidavits lacked specificity but accepted the general conclusions in each as sufficient to provide assurance of physician oversight as to those 10 patients. ALJ Remand Decision at 34. As to the remaining patients, Hillman offered no additional evidence of the requisite physician oversight. The ALJ found that Hillman did not show compliance with 42 C.F.R. . 405.1717 as to the patient records not addressed by any physician affidavits. ALJ Remand Decision at 34. Hillman argued that the affidavits established adequate physician oversight for all the patients because they constituted a "sufficient sampling," given the passage of time, from which to infer that physicians properly reviewed the care received by all the patients at issue.
A review of the records of the patients for whom no affidavits were submitted indicates that at least eight other physicians were involved in their care and would have had to provide documentation of timely oversight. Hillman's offer of proof did not reflect even an intention to provide testimony from these physicians, (except for one who was included on Hillman's list but who never provided an affidavit). Hillman made no representations as to whether these physicians continue to treat its patients or as to any efforts Hillman made to obtain information from them. At the least, we decline to accept the inference Hillman proposed that the testimony of the other eight physicians would be in accord with that of the minority of physicians whose affidavits Hillman obtained. Such an inference is unreasonable. It is equally possible that Hillman presented affidavits only from those whose testimony or memory proved compatible with Hillman's position. Certainly, the affidavits do not, as Hillman asserted, represent any valid form of "sampling" of treating physicians, absent any evidence of random selection. Cf. Hillman Br. at 31.
Hillman argued that it was unreasonable to expect it to produce affidavits from the physicians for all 19 patients at issue at this late date. However, Hillman should have long been on notice that the records for these specific patients were under scrutiny and should have made all possible efforts to obtain evidence that the proper physician oversight had occurred. This notice should have been evident, if not from the point where Mr. Livesey returned the five adequately-documented records and (along with Mr. End) removed copies of the remaining patients' records for further review, then certainly from the point when the State survey agency notified Hillman of its deficiency findings. An obvious underlying purpose of the clinical records participation requirements is to make it possible for reviewers to fairly ascertain the extent of a provider's compliance with substantive requirements based on a review of records rather than forcing them to track down individuals involved in particular treatments after-the-fact. Hillman cannot reasonably claim that it became aware that it had an obligation to ensure and document physician oversight (and that its performance of that obligation as to these specific treatments for these patients was at issue) only when we remanded the case to the ALJ. Yet, from all that appears in the record it was only at that point that Hillman initiated efforts to obtain affidavits from the physicians. Thus, if some testimony was unavailable to Hillman because of the passage of time, Hillman must be held responsible since Hillman itself failed to assure that the records were completed in such a way as to provide an adequate documentary record of timely physician oversight and then delayed seeking extrinsic proof of such oversight.
Furthermore, we share the ALJ's concerns about the meager content of the affidavits that were proffered. In fact, the five affidavits are virtually identical and very vague in language. See P. Exs. 30-34. None of the affidavits explains why signatures are missing from particular documents or why some physician's signatures are dated well after the physical therapist's dated signatures. The affidavits assert that the physicians did certify these patients for physical therapy and review plans of care. They further say that they signed plans "shortly after" the physical therapists but sometimes did not personally date them, adopting "the existing date on the document." While the affiants deny "backdating" signatures, they make no direct assertions about the crucial question of when undated signatures were added to the documents at issue. The explanation that the physicians meant to rely on the date already on the document is hard to credit because some of these documents had multiple entries with a variety of dates. See, e.g., P. Ex. 10, at 16; P. Ex. 20, at 4. ALJ Remand Decision at 34. In addition, those physician signatures that were dated were sometimes dated later than the 14 days within which physicians were required to sign any order or review which they approved, so that an undated signature cannot be assumed to assert timely review. See DAB Decision I at 62; ALJ Initial Decision at 26. The inadequacy of the affidavits that were produced is another reason we decline to base on them an inference of compliance in the cases of patients for whom no affidavits were provided at all.
Given the unquestionable absence of evidence of timely physician reviews in almost half the patient records provided by Hillman, there is ample support for the finding of noncompliance with this COP as to the patients for whom no affidavits were proffered. Therefore, it is not necessary for us to assess the remaining cases on a record-by-record basis to determine whether the affidavits offered substantial evidence to support findings that physicians provided requisite timely review of care in those cases.
We therefore uphold the ALJ's Remand Findings that Hillman failed to prove substantial compliance as of April 5, 1995 with 42 C.F.R. .. 405.1717 and 405.1722. III. Hillman's Due Process Arguments Are Unfounded.
Hillman also argued that it has been denied due process because the burden of proof to show that it was in compliance with Medicare COPs was "first imposed on remand two years after the fact." Hillman Br. at 29-30. As a consequence, Hillman contended that it could not be expected to obtain affidavits from the physicians involved or to establish the actual state of its records as of the survey date. Hillman also alleged that the absence of a survey before termination itself constituted a deprivation of due process. Finally, Hillman alleged that the case against it was based on false testimony by Mr. End and that this amounted to a gross denial of due process.
Contrary to these arguments, Hillman has been afforded not only due process but the benefit of every possible doubt. Indeed, we afforded Hillman a second opportunity to establish the facts which it should have known were at issue even in the first hearing. Moreover, the duty on Hillman to show that it operated in compliance with the Medicare COPs did not arise from our decision remanding the case. Rather, as we discussed in detail in that decision, the burden on Hillman to be able to demonstrate compliance derives from the underlying authority and purpose of the Medicare program. DAB Decision I at 8-22. The substantive obligation on Hillman to maintain promptly completed clinical records and to comply with the physician oversight requirements derives from the Act and regulations directly, and Hillman can hardly have been surprised by the obligations it undertook with its provider agreement.
The case against Hillman rests ultimately on its own records, not on the testimony of HCFA's surveyor witness. None of the elements of the survey visit testified to by Mr. End but disputed by Hillman's witnesses is essential to the outcome of the case, as our analysis above demonstrates.
Further, we reject Hillman's argument that it was denied due process because HCFA's case was based on false testimony by Mr. End. As discussed above, the termination was based primarily on review of the records in light of the earlier survey actions, the resultant findings, Hillman's assurances, and the lack of an adequate plan of correction. Moreover, while we have deferred to the ALJ's credibility determination in disregarding Mr. End's testimony, we observe that many of the discrepancies which the ALJ cited for his determination are not irreconcilable. We therefore find Hillman's characterization of the testimony as "perjured" to be unwarranted. See Hillman's Br. at 31.
For example, the ALJ did not credit Mr. End's assertions that he personally asked for the clinical records of 20 patients and waited two to three hours for the records to be brought in by fax, finding that Mr. End exaggerated his role and was contradicted by the other witnesses as to the time involved and the purported use of faxing. ALJ Remand Decision at 15. Mr. End testified that he waited two to three hours for documents to be brought to him piecemeal by Dr. Akinrolabu. Ms. Reed testified that copying the documents took her one to 1 � hours (and that she then gave them to Dr. Akinrolabu who "gave them to the surveyors"). Hearing Tr. II at 30-31; see also id. at 58 (Livesey)(documents brought in to surveyors "on a flow basis" over 1 to 1� hours), 96 (Sidberry)(1� to 1 hours). She also testified that she copied them again when the surveyors were preparing to leave (which presumably took some additional time). Id. at 32. Since the two witnesses may have been referring to different times (Mr. End to his total wait for the documents that he took with him and Ms. Reed to the time she spent in the initial copying process), the discrepancy between 1� and two hours seems minor and reconcilable.
In part, the ALJ relied heavily on HCFA's failure to recall Mr. End on rebuttal. ALJ Remand Decision at 14. However, the discrepancy between the testimony on remand and Mr. End's testimony at the original hearing was in many respects not so great as to plainly require rebuttal. For example, the ALJ pointed to the lack of corroboration for Mr. End's initial assertion that the records were faxed in. ALJ Remand Decision at 12. Mr. End explained that he got the impression from Dr. Akinrolabu that the delay in producing records was caused by faxing. Hearing Tr. I at 151. Ms. Reed and Ms. Sidberry denied at length telling Mr. End that the documents were coming in by fax. Hearing Tr. II at 30-31, 94-97. However, Dr. Akinrolabu never denied giving Mr. End this impression, even though Dr. Akinrolabu testified again at the second hearing.
Finally, the essential point is that, on their face, Hillman's exhibits demonstrate that Hillman did not assure that its clinical records were completed timely or in a manner that demonstrated timely oversight by physicians. The argument that the state of its records could not be established because of the passage of time is untenable. Hillman's records should have been complete on the date of the survey. They were required to be retained in order to meet Medicare requirements. Hillman cannot assert that it was unaware of the particular patients and treatments at issue at least from the time of the deficiency notice. Therefore, Hillman plainly knew that it should at least maintain those records, if not that it should have promptly proffered them to the survey agency. If the records had been complete and had been maintained, there should not have been any difficulty in establishing their condition. If any question then arose, it would be whether they were completed only after the fact rather than fairly documenting the actual compliance as of the survey date. The fact that the documents provided later by Hillman were still on their face inadequate is damning.
Conclusion
As explained above, we reverse the ALJ's decision to the extent that he concluded that HCFA lacked authority to terminate Hillman. We affirm the ALJ's conclusion that Hillman did not demonstrate that it was in substantial compliance with the Medicare conditions of participation. We therefore uphold HCFA's termination of Hillman.
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Cecilia Sparks Ford
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M. Terry Johnson
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Judith A. Ballard
Presiding Board Member