SUBJECT:

Guardian Health Care Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION ON REMAND

This case originally came before me pursuant to a request for hearing filed by Petitioner, Guardian Health Care Center, on March 10, 2003. That case was docketed as Civil Remedies Docket No. C-03-313.

On August 5, 2003, CMS filed a motion for summary judgment, which I granted on February 20, 2004, finding that Petitioner was not in substantial compliance with regulatory requirements mandating that a skilled nursing facility must provide its residents with adequate supervision and assistance devices to prevent accidents. Additionally, I found that Petitioner did not return to substantial compliance with Medicare participation requirements until December 4, 2002, and that CMS was therefore authorized to impose a civil money penalty (CMP) of between $50 and $3,000 per day from November 7, 2002 through December 4, 2002. Consequently, it was my determination that the CMP of $500 per day imposed by CMS for Petitioner's noncompliance was reasonable. Guardian Health Care Center, DAB CR1144 (2004).

On April 29, 2004, Petitioner appealed the February 20, 2004 decision to the Departmental Appeals Board (Board). The Board affirmed the decision that Petitioner was not in substantial compliance beginning on November 7, 2002. The Board also affirmed the finding that the amount of the $500 per day CMP was reasonable, but found that there was a genuine issue of material fact concerning the duration of the noncompliance for which the CMP was imposed. Accordingly, the Board remanded the case for resolution of that issue and for other appropriate action. See Guardian Health Care Center, DAB No. 1943 (2004). On remand, the case was docketed as Civil Remedies Docket No. C-04-524. That is the case subject of this summary disposition.

While this case was pending a hearing scheduled for May 10-11, 2005, to address the issue noted by the Board in its decision, CMS filed a motion for summary judgment dated April 13, 2005, setting forth the history of this case as stated above, and accepting that Petitioner returned to compliance as of November 14, 2002. I infer that CMS relies on the following language by the Board:

As for the duration of the CMP, Guardian's administrator asserted in her declaration that it would be inappropriate to leave the CMP in effect after November 14, 2002 because the survey agency found, during the December 5, 2002 revisit, that the facility's noncompliance with section 483.25(h)(2) had been corrected as of November 14, 2002. Guardian Health Care Center, DAB No. 1943, at 28 (2004).

. . . if the State determined that Guardian was in substantial compliance with that regulation [section 483.25(h)(2)] on November 14, 2002, we would be compelled to find that Guardian was in substantial compliance with all participation requirements on November 14 and to terminate the CMP as of that date. Id. at 29.

In its response to CMS's motion requesting that summary judgment be issued finding Petitioner to be in noncompliance from November 7 through November 13, 2002, as opposed to November 7, 2002 through December 4, 2002, Petitioner stated that it would submit no response to that motion.

I find that in light of the Board's decision remanding this case for resolution of the duration of the CMP, CMS's modification of its contention regarding the duration of the CMP, and Petitioner's determination not to dispute CMS's acceptance that the period of noncompliance runs from November 7, 2002 through November 13, 2002, there are no material issues of fact in controversy, and that this case may be disposed of by way of summary judgment without the need for an in-person hearing. Livingston Care Center, DAB No. 1871 (2003); Crestview Parke Care Center, DAB No. 1836 (2002); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997); Carmel Convalescent Hospital, DAB No. 1584, at 27 (1996); Fed. R. Civ. P. 56 (summary judgment is appropriate when there is no genuine issue as to any material fact and the proponent is entitled to judgment as a matter of law).

In view of the foregoing, I conclude that CMS is authorized to impose upon Petitioner a CMP from November 7, 2002 through November 13, 2002, in the amount of $500 per day, for a total of $3,500.

I conclude that CMS correctly determined that, beginning November 7, 2002 through November 13, 2002, Petitioner was not complying with federal requirements governing participation of long-term care facilities in Medicare and State Medicaid programs at the less than immediate jeopardy level, and the imposition of a CMP of $500 per day for seven days of noncompliance is reasonable.

José A. Anglada

Administrative Law Judge