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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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A. W. Schlesinger Geriatric Center, |
DATE: January 3, 2002 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-00-591&C-01-111 |
| DECISION | |
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DECISION I decide that the Centers for Medicare & Medicaid
Services (CMS, formerly known as HCFA) are authorized to impose the following
remedies against Petitioner, A.W. Schlesinger Geriatric Center:
I. Background The facts that I recite in this background section are not disputed. Petitioner is a long-term care facility in Beaumont, Texas. Petitioner participates in the Medicare program and is subject to federal laws and regulations that govern participation of facilities in Medicare. In 2000, Petitioner was surveyed by the Texas Department
of Human Services (Texas State survey agency) in order to determine whether
Petitioner was complying with Medicare participation requirements. These
surveys were completed on March 8, 2000 (March survey), April 28, 2000
(April survey), and June 20, 2000 (June survey). Petitioner was found
not to be complying substantially with federal participation requirements
at the March and April surveys. Petitioner was found to be complying substantially
with these requirements as of the June survey. CMS determined to impose remedies against Petitioner based
on the findings that were made at the March, April, and June surveys.
These remedies consisted of: CMPs of $2,500 per day for each day of the
period which began on April 24, 2000 and which ran through April 28, 2000;
CMPs of $500 per day for each day of the period which began on April 29,
2000 and which ran through June 19, 2000; and denial of payments for new
Medicare admissions for each day of the period which began on June 6,
2000 and which ran through June 19, 2000. Petitioner filed two hearing requests to challenge these
remedy determinations. These requests were docketed as Civil Remedies
cases C-00-591 and C-01-111 and they were assigned to me for hearings
and decisions. I consolidated these two cases. Petitioner moved for summary disposition. CMS opposed
Petitioner's motion and counter moved for summary disposition. Petitioner
opposed CMS's counter motion. The parties each submitted proposed exhibits
with their motions. Petitioner submitted exhibits that are identified
as P. Exs. 1A, 1B, and 2-6. CMS submitted exhibits that are identified
as CMS Exs. 1-8. Neither party objected to my receiving any of these exhibits
into evidence and, therefore, I receive them into evidence. Prior to deciding the parties' motions, I instructed each
party to advise me whether it intended to offer additional evidence should
I deny that party's motion. I was advised by the parties that they are
resting their cases based on the exhibits that they submitted in connection
with their respective motions. II. Issue, findings of fact and conclusions of law
The sole issue raised by Petitioner is the date when Petitioner
came into compliance with federal participation requirements. Petitioner
does not deny that it failed to comply substantially with federal participation
requirements as of both the March and April surveys. Petitioner does not
challenge CMS's determination to impose CMPs of $2,500 per day for each
day of the period that began on April 24, 2000 and which ran through April
28, 2000. Nor does it dispute that the $500 per day amounts of the CMPs
that CMS determined to impose beginning with April 29, 2000 are reasonable,
assuming that CMPs are authorized for any date beginning with April 29,
2000. Finally, Petitioner does not dispute that CMS may deny Petitioner
payments for new Medicare admissions for the period that began on June
6, 2000 and which ran through June 19, 2000 if Petitioner was not complying
substantially with participation requirements during this period. What Petitioner does challenge is CMS's determination
that it was not complying with participation requirements during the period
which began on May 22, 2000 and which ran through June 19, 2000. Petitioner
asserts that CMS may not impose any remedies against it during the May
22 - June 19, 2000 period because Petitioner was, in fact, complying with
Medicare participation requirements during the period. In its motion for
summary disposition, Petitioner contends that CMS is not authorized to
impose any remedies against Petitioner beginning with April 29, 2000 or
on any date thereafter. Petitioner amends this contention in its reply
to CMS's counter motion to assert that, in fact, it attained compliance
with participation requirements as of May 22, 2000.
I make findings of fact and conclusions of law (Findings)
to support my decision in this case. I set forth each Finding below as
a separate heading and I discuss each Finding in detail.
It is appropriate to decide these cases based on the briefs
and exhibits that the parties filed in connection with their respective
motions. The parties advised me that they did not intend to offer additional
evidence.
As I discuss above, Petitioner did not dispute the deficiency
findings that the Texas State survey agency surveyors made at the April
survey of Petitioner. P. Ex. 1B; CMS Ex. 2. Those deficiency findings
therefore establish that Petitioner was not complying substantially with
federal participation requirements as of April 28, 2000. The Texas State survey agency resurveyed Petitioner on
June 20, 2000. It was at the June survey that the surveyors concluded
that Petitioner finally attained substantial compliance with participation
requirements. Evidence of Petitioner's noncompliance on April 28, 2000
establishes a presumption that Petitioner was not complying on dates thereafter.
CMS has no affirmative burden to offer additional evidence to prove that
Petitioner was not complying substantially with participation requirements
on dates between April 28 and June 20, 2000. The burden is on Petitioner
to prove affirmatively that it came into compliance on a date subsequent
to April 28, 2000.
Petitioner asserts that it attained compliance with participation
requirements by May 22, 2000. Its sole proof that it attained compliance
by this date consists of plans of correction that it filed in response
to the April survey. The two plans of correction consist of written statements
by Petitioner in which it explains how and when it will correct the deficiencies
that were identified at the April survey. P. Ex. 2. In these plans, Petitioner
asserted that it would attain compliance with Medicare participation requirements
by April 29, 2000, and with Life Safety Code (LSC) requirements by May
22, 2000. Id. Petitioner contends that there is no evidence in this
case to contradict the compliance assertions that it made in the plans
of correction. Therefore, according to Petitioner, the only credible evidence
which relates to Petitioner's compliance efforts establishes that it attained
substantial compliance with all participation requirements by May 22,
2000. Implicit in Petitioner's argument is the contention that
a plan of correction establishes conclusively that a facility attains
compliance with participation requirements as of the compliance date stated
in the plan unless there is evidence which shows that the plan is inadequate
or has not been implemented. Under Petitioner's reasoning, CMS must accept
Petitioner's plans of correction as truthful statements of Petitioner's
compliance efforts unless it can demonstrate that the plans are incorrect
or were not implemented. Also implicit in Petitioner's argument is the
contention that I must give sufficient evidentiary weight to the plans
of correction to overcome the presumption of noncompliance with participation
requirements that is established by the April survey findings. I disagree with these assertions. A plan of correction
is evidence of a facility's compliance efforts and it should be accorded
the weight that is justified by its contents and the circumstances of
its submission. However there is no requirement, either in applicable
regulations or in principles of evidence, that these plans be found to
be conclusive proof of compliance. The significance and evidentiary weight
that attaches to a plan of correction depends on the contents of the plan
and the attending circumstances of its submission. A plan of correction
is not necessarily dispositive proof of compliance. In and of itself it
is not necessarily sufficient to overcome the presumption of continuing
noncompliance that is established by survey report findings. CMS is not
obligated to accept as true the allegations made in a plan of correction,
nor am I required to find the allegations made in a plan of correction
to be proof of compliance that is sufficient to overcome a presumption
of noncompliance resulting from past survey findings. The regulations that govern the correction of deficiencies
by a long-term care facility make it clear that CMS is not required to
accept on its face the allegations of compliance that a facility makes
in a plan of correction. CMS is given the option of accepting a plan of
correction only if it can verify the truth of the plan without
conducting an additional survey. 42 C.F.R. � 488.454(a)(1). Petitioner has not identified any regulation or principle
of evidence which requires that I must conclude that a facility's plan
of correction is conclusive proof that the facility has corrected its
deficiencies. Indeed, there is no requirement in the law. By contrast,
42 C.F.R. � 488.454(a)(1) suggests strongly that an administrative law
judge (ALJ) is not obligated to accept as true a plan of correction absent
some reason to find the plan to be credible evidence of a facility's actions.
It would make no sense to hold the ALJ to a more restrictive evidentiary
standard than that which applies to CMS.
As I discuss above, at Finding 3, the only evidence that
Petitioner offered to support its contention that it complied with all
participation requirements by May 22, 2000 consists of the plans of correction
that Petitioner submitted in response to the April survey. Petitioner's
plans of correction constitute only promises by Petitioner to take remedial
action. They fall short of proving that Petitioner actually took the promised
actions. CMS had every reason not to accept Petitioner's promises as proof
of compliance given Petitioner's previous failures, at two surveys (the
March and April surveys), to comply with participation requirements. And
I do not find that the plans of correction, in and of themselves,
are proof that Petitioner took the promised actions, especially in light
of its past failures to comply with participation requirements. The plans of correction address deficiency findings with
brief assertions of the actions that Petitioner and its staff took or
intended to take in order to attain compliance with participation requirements.
The plans do not provide any corroborative evidence that these actions
actually were taken. They do not suggest any way, other than conducting
an additional on-site survey, for the Texas State survey agency or CMS
to verify that Petitioner took the promised remedial actions. For example, at Tag 309 of the April survey report, the
Texas State survey agency surveyors found that Petitioner failed to comply
substantially with the requirements of 42 C.F.R. � 483.25. This regulation
requires a facility to give each of its residents care and services that
are necessary for the resident to attain his or her highest practicable
physical, mental, and psychosocial well-being, in accordance with the
resident's comprehensive assessment and plan of care. The survey report
describes the care that Petitioner gave to five of its residents as evidence
of Petitioner's failure to comply with this requirement. CMS Ex. 2, at
5-12. Petitioner's plan of correction for the deficiency asserts
that the residents, whose care was found to be deficient, were assessed
and that interventions were made for those residents in order to assure
proper treatment of their problems. CMS Ex. 2, at 5. The truth and accuracy
of these assertions cannot be ascertained in the absence of some corroboration.
But the plan of correction provides no such corroboration. It attaches
none of the assessments that Petitioner asserts to have made of the residents.
Nor does it provide any documentation of the interventions that Petitioner
claimed that it made. The plan of correction for Tag 309 also recites the actions
that Petitioner and its staff intended to take to assure that the problems
identified under Tag 309 would not recur. It asserts that unit managers
would make daily rounds to identify and assess residents having quality
of care problems. CMS Ex. 2, at 5. It states that Petitioner's director
of nurses and quality assurance nurse would monitor residents to ensure
that the residents receive necessary medical services. Id. And,
it provides that Petitioner's quality assurance nurse would randomly review
selected charts monthly in order to determine if assessments were being
performed timely and that proper interventions were taking place. Id. The plan of correction constitutes a promise by Petitioner
to take the remedial actions described in the plan. But it does not offer
any proof that the actions were being effectuated. Petitioner might have offered proof at the June survey
showing that it had, in fact, effectuated its plans of correction by no
later than May 22, 2000. For example, it could have provided the Texas
State survey agency surveyors with documentation that it had corrected,
prior to May 22, 2000, the specific residents' problems that were identified
under Tag 309 in the April survey report. It could also have provided
the surveyors with documentary proof that the remedial actions that were
described in the plan of correction for Tag 309 had been taken prior to
May 22, 2000. Such evidence might have included nurses' notes showing
that unit managers were making the daily rounds that were described in
the plan of correction. Such evidence, had it been provided, would have
corroborated the assertions that were made in the plan of correction for
Tag 309. And such evidence might have overcome the presumption that Petitioner
remained out of compliance until the date of the June survey. Such independent corroboration was necessary to establish
compliance with 42 C.F.R. � 483.25, given that the plan of correction
could not be verified in the absence of corroborating evidence. But Petitioner
has not averred that it provided such evidence to the surveyors at the
June survey. Nor has Petitioner provided such evidence as part of its submission in this case. Absent such evidence, I am left in the identical position that CMS was in when it received Petitioner's plans of corrections. I have documents from Petitioner which assert that corrective action would be taken. But I have no proof - aside from Petitioner's assurances - that corrective action was taken according to the timetable set forth in the plans. I do not find Petitioner's plans of correction to be persuasive evidence that Petitioner complied with participation requirements according to Petitioner's timetable absent credible corroborating evidence. |
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| JUDGE | |
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Steven T. Kessel Administrative Law Judge
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