SUBJECT:

Utica Care Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Petitioner, Utica Care Center (Petitioner or Facility), is a long-term care facility certified to participate in the Medicare and Medicaid programs as a provider of services. Petitioner appeals the Centers for Medicare & Medicaid Services' (CMS's) determination that, from August 19 through September 28, 2005, it was not in substantial compliance with program participation requirements because three of its resident bedrooms lacked even one outside window. While Petitioner admits that its rooms had no outside window, it complains that time and expense prevented its correcting the problem any earlier than the September 28 compliance date, and suggests that it should have been given more time to correct before the penalty - a denial of payment for new admissions (DPNA) - was imposed.

CMS now moves for summary judgment.

For the reasons set forth below, I find that this case presents no dispute over genuine issues of material fact requiring an in-person hearing, and that the facility was not in substantial compliance with program participation requirements during the period in question. I have no authority to review CMS's decision to impose a remedy nor its selection of remedies.

I. Background

The Social Security Act (Act) sets forth requirements for nursing facility participation in the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing the statutory provisions. Act, sections 1819 and 1919. The Secretary's regulations governing nursing facility participation in the Medicare program are found at 42 C.F.R. Part 483. The regulation governing physical environment requires that resident rooms be designed and equipped for adequate nursing care, comfort, and privacy of residents. 42 C.F.R. � 483.70(d). Bedrooms must have at least one window to the outside. 42 C.F.R. � 483.70(d)(1)(vi).

To participate in the Medicare and Medicaid programs, facilities periodically undergo surveys to determine whether they comply with applicable statutory and regulatory requirements for Medicare (SNFs) and/or Medicaid (NFs). They must maintain substantial compliance with program requirements, and, to be in substantial compliance, a facility's deficiencies may pose no greater risk to resident health and safety than "the potential for causing minimal harm." 42 C.F.R. � 488.301.

Surveyors from the Ohio Department of Health (state agency) completed a survey of the facility on May 19, 2005. Among other deficiencies, they noted that three occupied resident rooms, Rooms 9, 10, and 11, did not have any windows to the outside. They cited this finding on the Statement of Deficiencies at Tag 461. CMS Exhibit (Ex.) 5, at 28-29. Thereafter, the facility submitted to the state agency a series of proposed plans of correction, none of which were accepted. CMS Exs. 21, 22, 23, 25, 26, 27, 28. Finally, on August 23, 2005, the facility submitted an acceptable plan of correction, proposing to install tubular skylights in each of the affected resident rooms. CMS Ex. 29, at 3-5. The state surveyors subsequently revisited the facility and determined that the facility corrected the deficiency and achieved substantial compliance on September 29, 2005. CMS Exs. 3, 4.

Because the facility did not bring itself into compliance within ninety days, CMS imposed a mandatory DPNA from August 19 through September 28, 2005. 42 C.F.R. � 488.417(b)(1).

The parties have resolved all of the other deficiencies except Tag 461. Petitioner admits that the three rooms lacked outside windows. Petitioner explains that the rooms once shared an exterior wall with windows to the outside, but, years earlier, a sun porch was attached to their exterior wall. Later, the sun porch was enclosed and converted to office and common recreational space. So the residents in Rooms 9, 10, and 11 had no windows to the outside. Petitioner argues that time and cost precluded it from correcting the deficiency any earlier than September 29, 2005, and complains that its deficiency was cited under an "F" tag (health and safety) rather than under a "K" tag (life safety code), for which waivers and extensions may be granted, without penalty.

CMS has moved for summary judgment, and has submitted 32 exhibits (CMS Exs. 1-32). Petitioner opposes summary judgment, and has submitted five exhibits (P. Exs. 1-5). For purposes of resolving this summary judgment motion, and, in the absence of any objections, I admit CMS Exs. 1-32 and P. Exs. 1-5.

II. Issues

I consider first whether summary judgment is appropriate.

On the merits, the sole issue is whether, from August 19 through September 28, 2005, the facility was in substantial compliance with program participation requirements, specifically 42 C.F.R. � 483.70(d)(1)(vi).

If I find substantial noncompliance, I have no authority to review CMS's decision to impose a remedy nor its choice of remedy.

III. Discussion

A. Summary disposition is appropriate because this case presents no dispute over genuine issues of material fact. ⁽¹⁾

Summary judgment is appropriate if a case presents no genuine dispute as to any material fact, and one party is entitled to judgment as a matter of law. The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law, or by showing that the non-moving party has presented no evidence "sufficient to establish the existence of an element essential to its case, and on which it will bear the burden of proof at trial." Livingston Care Center v. Dep't of Health and Human Services, 388 F.3d 168, 173 (6^th Cir. 2004). To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986). See also Vandalia Park, DAB No. 1939 (2004), and Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004).

This matter rests on one critical fact, which the parties do not dispute: the resident rooms in question had no windows to the outside. If that means substantial noncompliance, then CMS is entitled to judgment as a matter of law. I next discuss that issue.

B. The facility was not in substantial compliance with program participation requirements, specifically 42 C.F.R. � 483.70(d), because three of its resident rooms lacked outside windows.

The facility's admitted failure to provide its residents with rooms that had at least one outside window necessarily puts the facility out of substantial compliance if that deficiency presents the potential for more than minimal harm. Where the regulations set forth a direct and unambiguous requirement (such as not housing people in rooms that lack outside windows), the strong presumption is that the requirement is in place to prevent potential harm to residents. After all, the regulations are purposeful. In promulgating section 483.70(d), the Secretary recognized the importance of natural light to resident well-being.

Living in a room that does not have an outside window seems inherently depressing. Petitioner, however, argues that the facility dealt with the "quality of life issues" in other ways. It added plants and shrubs to a courtyard outside the facility, and installed window blinds in the resident rooms that the residents themselves could control. Although they were looking directly into an adjacent room, that room had windows through which they might see the outside. The residents of Rooms 9, 10, and 11 were also encouraged to leave their rooms. P. Brief at 6. For summary judgment purposes, I accept as true these factual allegations, but I find these steps an insufficient substitute for outside windows in one's own room.

Under Petitioner's alternative plan, the residents might have some indirect access to outside light by keeping their shades open, but they would have to sacrifice all privacy, subjecting themselves to view from the office and/or the admittedly well-frequented common area. P. Ex. 4, at 2 (Rosser Decl. � 3) ("a valuable room used constantly by residents"). This alone could justify the finding of potential for more than minimal harm.

Moreover, CMS has alleged facts - which Petitioner does not challenge - showing that these interventions did not resolve the problem for the residents. Resident (R) 21 resided in Room 11. She suffered from dementia and was observed during the May survey spending most of her time in her room. CMS Ex. 15, at 1; CMS Ex. 31, at 4 (Gibson Decl. � 17). R17, who resided in Room 10, suffered from depression, and spent all of his time in his room during the May survey. CMS Ex. 14, at 1; CMS Ex. 31, at 17. At no time did the surveyors observe the blinds open in these rooms. Nor did the rooms have any natural light. CMS Ex. 31, at 4 (Gibson Decl. � 16).

I therefore conclude that Petitioner's failure to provide even one outside window in these three rooms presented the potential for more than minimal harm, and the facility was therefore not in compliance with program participation requirements.

C. I have no authority to review CMS's decision to impose a remedy nor its choice of remedies.

Petitioner complains bitterly about CMS's decision to impose a remedy. However, if a facility is not in substantial compliance with program requirements, CMS has the discretion to impose one or more of the enforcement remedies listed in 42 C.F.R. � 488.406, which include a DPNA. Act, section 1819(h); 42 C.F.R. � 488.402. I may neither review CMS's determination to impose a remedy nor CMS's choice of remedies. 42 C.F.R. � 488.408(g)(2). Moreover, CMS is required to deny payments for all new admissions to any facility that has not achieved substantial compliance three months after the last day of the survey during which its noncompliance was identified. 42 C.F.R. � 488.417(b)(1). As of August 19, 2005 (three months after the last day of the May survey), the facility had not corrected its deficiency, so CMS appropriately imposed a DPNA until September 29, 2005, the day the parties agree the facility corrected its deficiency. The regulations seem to afford CMS no discretion to do otherwise.

IV. Conclusion

For the reasons discussed above, I find that, from August 19 through September 28, 2005, the facility was not in substantial compliance with program participation requirements, specifically 42 C.F.R. � 483.70(d)(1)(vi). CMS therefore had a basis for imposing a remedy, and I have no authority to review its choice of remedies. Even if I had such discretion, CMS was required to impose the DPNA because the facility did not bring itself into substantial compliance within three months of the survey.

Carolyn Cozad Hughes

Administrative Law Judge

1. I make Findings of Fact and Conclusions of Law (Findings) to support my decision in this case. I set forth each finding in italics and bold, as a separate heading.