SUBJECT: Guardian Health Care Center,

Petitioner,

Centers for Medicare & Medicaid Services

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Guardian Health Care Center (Guardian) filed a request for review of a June 13, 2005 decision issued by Administrative Law Judge (ALJ) José A. Anglada. Guardian Health Care Center, DAB CR1314 (2005).

This is Guardian's second appeal to the Board in this matter. In December 2002, the Centers for Medicare & Medicaid Services (CMS) determined that Guardian was not in substantial compliance with Medicare participation requirements. Based on that determination, CMS imposed civil money penalties (CMPs) and other remedies on Guardian. Guardian appealed the remedies by requesting an ALJ hearing. During the ensuing proceeding before the ALJ, CMS filed a motion for summary judgment, asking the ALJ to uphold a $500 per day CMP for the period of Guardian's alleged noncompliance.

In a February 20, 2004 decision, DAB CR1144, the ALJ granted CMS's summary judgment motion, finding that: (1) as of November 7, 2002, Guardian was not in substantial compliance with the participation requirement in 42 C.F.R. � 483.25(h)(2); (2) Guardian did not come back into substantial compliance with section 483.25(h)(2) until December 4, 2002; (3) because of [Page 2] Guardian's noncompliance, CMS had a legal basis to impose a per-day CMP of between $50 and $3,000; and (4) the amount of the CMP imposed by CMS for the period of Guardian's noncompliance -- $500 per day -- was reasonable. Guardian Health Care Center, DAB CR1144 (2004).

On April 29, 2004, Guardian appealed DAB CR1144 to the Board, contending, among other things, that disputes of material fact precluded summary judgment on the issue of whether it was in substantial compliance with section 483.25(h)(2). Guardian did not challenge the ALJ's finding that the amount of the CMP was reasonable.

On August 31, 2004, the Board issued a decision, DAB No. 1943, finding that there were no genuine disputes of material fact concerning Guardian's alleged noncompliance and that CMS was entitled to judgment as a matter of law on that issue. Guardian Health Care Center, DAB No. 1943, at 11-13, 19 (2004). Accordingly, the Board affirmed the ALJ's conclusion that Guardian was not in substantial compliance with section 483.25(h)(2) as of November 7, 2002. Id. at 19-27, 30. The Board also affirmed the ALJ's finding that the amount of the CMP imposed by CMS for Guardian's noncompliance was reasonable. Id. at 30. However, the Board found that there was a dispute of material fact concerning the duration of Guardian's noncompliance since Guardian had proffered evidence that it was back in substantial compliance with section 483.25(h)(2) by November 14, 2002 (instead of December 4, 2002, as the ALJ had found). Id. at 27-30. Accordingly, the Board remanded the case to the ALJ for additional proceedings to determine the date on which Guardian came back into substantial compliance with section 483.25(h)(2). Id. at 30-31.

On remand, CMS chose not to present evidence of continuing noncompliance by Guardian for the period from November 14 through December 4, 2004. Instead, CMS filed an unopposed motion for summary judgment, asserting that Guardian did not come back into substantial compliance with section 483.25(h)(2) until November 14, 2002. On June 13, 2005, the ALJ issued the decision now under appeal, DAB CR1314. In that decision, the ALJ granted CMS's summary judgment motion, finding that Guardian's period of noncompliance ran from November 7 through November 13, 2002, and that CMS was therefore authorized to impose a $500 per day CMP for that one-week period.

In the pending appeal, Guardian takes no exception to any finding or conclusion in DAB CR1314 regarding the duration of the noncompliance. Instead, Guardian indicates that it is appealing [Page 3] the ALJ's prior determination, affirmed by the Board in DAB No. 1943, that it was not in substantial compliance with section 483.25(h)(2) as of November 7, 2002 and that therefore a basis existed to impose a $500 per day CMP. Request for Review at 2. Although Guardian states that its pending appeal is based on the arguments it raised in its prior appeal to the Board, Guardian suggests no legal or other reason why the Board can or should reconsider the merits of those arguments. Id. Guardian states only that it is reasserting its prior arguments in order to preserve its "right to raise those issues on subsequent review." Id.

It is clear from the foregoing that Guardian is not raising any issues regarding the merits or validity of the ALJ's June 13, 2005 decision. Moreover, it is apparent that Guardian filed this appeal principally to obtain assurance that it may seek judicial review of the findings and conclusions in DAB No. 1943. To the extent that Guardian is asking us to reconsider issues that we ruled upon in DAB No. 1943, we decline to do so.

Accordingly, we affirm DAB CR1314 and sustain CMS's imposition of a $500 per day CMP for the period November 7 through November 13, 2002. To ensure that Guardian's right to judicial review of our findings and conclusions in DAB No. 1943 is not abridged, we hereby adopt and incorporate that decision by reference.

This decision and DAB No. 1943 together constitute the final administrative action in this matter.

Cecilia Sparks Ford

Donald F. Garrett

Judith A. Ballard
Presiding Board Member