SUBJECT:

Alpine Living Center,

Petitioner,

Centers for Medicare & Medicaid Services

Docket No. C-01-594 and

C-01-812

Decision No. CR897

DECISION

I enter disposition in favor of Petitioner in these cases pursuant to section 1128A(c)(4)(F) of the Social Security Act (Act) because the Centers for Medicare & Medicaid Services (CMS) failed to comply with my orders in both cases. Indeed, counsel for CMS has not replied to any of the communications that I have sent to her. Under the circumstances it is not possible for me to provide the parties with a speedy or fair hearing.

I. Background

In each case Petitioner is the same facility, Alpine Living Center. Petitioner is a long term care facility that is located in Thornton, Colorado. It participates in the Medicare program and is subject to regulations at 42 C.F.R. Part 483 that govern the participation in Medicare of nursing facilities and skilled nursing facilities. In each case CMS determined to impose remedies against Petitioner pursuant to section 1819 of the Act and regulations at 42 C.F.R. Part 488 because CMS determined that Petitioner failed to comply substantially with regulations at 42 C.F.R. Part 483. The remedies that CMS determined to impose in each case include civil money penalties.

Counsel for Petitioner and for CMS are the same in each case.

In each case I issued an initial order to the parties. In the case docketed as C-01-594, the Order was dated April 24, 2001. It directed the parties to file, within 60 days of the date of the Order, reports in which they stated among other things their readiness to proceed to hearing. Petitioner complied with this initial Order and filed a report of readiness to proceed to hearing. On April 27, 2001, counsel for CMS filed a notice of appearance in the case. However, she did not file a readiness report. In the case docketed as C-01-812, on July 17, 2001, I sent the same initial Order to the parties as I had sent in C-01-594. On October 10, 2001 Petitioner complied timely with my Order. I received nothing from counsel for CMS.

In an Order dated October 22, 2001, which I issued in the case that is docketed as C-01-812, I ordered CMS to show cause why the case should not be remanded in light of CMS's failure to comply with my initial Order. Counsel for CMS did not respond to that Order.

Thus, the history of these two cases is that CMS failed to respond to any of the orders that I have issued. My various attempts to communicate with counsel for CMS have been met with total silence.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. A basis exists for me to impose sanctions against CMS; and

2. Entering disposition in favor of Petitioner is appropriate.

B. Findings of fact and conclusions of law

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. I discuss each Finding in detail.

1. A basis exists for me to impose sanctions against CMS

In these cases counsel for CMS failed to comply with any of the pre-hearing orders that I issued. In fact, counsel for CMS has not communicated with me at all, not even to respond to the Order to Show Cause that I sent. I find that counsel's multiple failures to communicate are a basis for me to impose sanctions against CMS pursuant to section 1128A(c)(4) of the Act.

Both of these cases involve CMS's determinations to impose civil money penalties against Petitioner. CMS's statutory authority to impose such penalties is contained in section 1819(h)(2)(B)(ii) of the Act. It provides that the Secretary of this Department may impose penalties against a facility that fails to comply substantially with a participation requirement. It provides further that such a penalty shall be imposed and collected in the same manner as applies to a penalty that is imposed pursuant to section 1128A of the Act, which governs civil money penalties imposed by the Department's Inspector General as remedies for claims for items or services that are false, fraudulent, or not provided as claimed. Specifically, it states that:

The provisions of section 1128A . . . shall apply to a civil money penalty . . . in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a).

Id.

Section 1128A contains procedures to govern hearings in cases involving the imposition of civil money penalties. These procedures include sanctions that an administrative law judge may impose against a party or an attorney for failing to comply with an order or procedure, failing to defend an action, or other misconduct as would interfere with the speedy, orderly, or fair conduct of a hearing. Act, section 1128A(c)(4).

I find that sanctions against CMS are appropriate here because counsel for CMS has not complied with any of the orders that I have issued. Her noncompliance has made it impossible for me to move this case towards resolution.

2. Disposition in favor of Petitioner is reasonable in light of CMS's counsel's failure to comply with my orders.

Section 1128A(c)(4) of the Act specifies a range of sanctions that I may impose for failure of counsel or a party to comply with my orders in a case. Such sanctions "shall reasonably relate to the severity and nature of the failure or misconduct." They include, among other things:prohibiting a party from introducing certain evidence or otherwise supporting a particular claim or defense; striking pleadings in whole or in part; staying the proceedings; dismissing a case; entering a default judgment against a party; and, ordering a party or an attorney to pay attorneys' fees and costs. Act, section 1128A(c)(4)(A) - (F).

I have considered carefully the question of what is appropriate here and I conclude that the only appropriate sanction is for me to enter disposition in favor of Petitioner in each of these cases. Entering a disposition in favor of Petitioner is the same as entering a "default judgment" against CMS.

I have no choice but to enter disposition in favor of Petitioner. Any other sanction against CMS would be meaningless in light of its counsel's failure to respond to my orders or even to communicate with me. For example, there is no point in my barring CMS from presenting evidence as to a given issue in view of its counsel's failure to communicate with me at all. There is no likelihood that counsel would even appear to present evidence were I to schedule a hearing for that purpose.

A consequence of my entering disposition in favor of Petitioner, is that CMS has no basis in either of these cases to impose or to enforce any remedies against Petitioner. I am troubled by this outcome. It is of considerable concern to me that Petitioner may have been deficient in complying with participation requirements. If that is so, remedies certainly would have been appropriate as a means of inducing future compliance from Petitioner. However, I cannot in good conscience continue cases if counsel for CMS is not going to make even minimal efforts to prosecute them, to comply with my orders, or even to communicate with me. Thus, I conclude that I have no choice but to enter disposition in favor of Petitioner in each of these cases despite my reservations about doing so.

Finally I stress that I have not concluded that "dismissal" of CMS's cases are appropriate based on grounds of abandonment. See 42 C.F.R. C.F.R. § 498.69. That regulation permits only dismissal of a hearing request where a party requesting a hearing abandons its case. Here, CMS is not the party that requested hearings.

Steven T. Kessel

Administrative Law Judge