CASE | DECISION | JUDGE

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

North Ridge Care Center,

Petitioner,

DATE: May 31, 2002
                                          
             - v -

 

Centers for Medicare & Medicaid Services

 

Docket No.C-98-136
Decision No. CR910
DECISION
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DECISION

With this Decision, I adopt the Summary Judgment rulings against Centers for Medicare & Medicaid Services (CMS) issued by Administrative Law Judge (ALJ) Mimi Hwang Leahy on February 23, 2001. Because CMS have now rescinded all penalties relating to the remaining time period at issue in the above-captioned case, Petitioner no longer has a right to a hearing. I grant CMS's motion for the entry of an ALJ decision for the period of time covered by ALJ Leahy's partial summary judgment, and dismiss the remainder of the case. The hearing previously scheduled to start on July 16, 2002, is cancelled.

I. Background

On December 4, 1997, CMS issued a notice letter to North Ridge Care Center (Petitioner) citing Petitioner's noncompliance posing an "immediate jeopardy" to residents between June 20 and July 20, 1996, because Petitioner had not prevented the death of a resident who had been found asphyxiated due to bed side-rail entrapment. CMS imposed a civil money penalty (CMP) of $7,500 per day for those 30 days. CMS determined that, from July 21, 1996 through January 7, 1997, Petitioner's noncompliance continued - but not at the "immediate jeopardy" level - because changes that should have been made voluntarily by Petitioner had been delayed until January 7, 1997, when an investigator from the state agency made an unannounced visit to investigate the resident's death. CMS imposed a CMP of $300 per day from July 21, 1996 to January 7, 1997.

After a timely request for hearing, this case was assigned to ALJ Leahy. Thereafter, Petitioner moved for summary judgment because, on October 28, 1996 in an intervening time period, the state agency found Petitioner to be in compliance as of August 30, 1996. The state agency issued the certificate of compliance after a "standard survey" and a "resurvey" to verify Petitioner's correction of other problems.

The crux of Petitioner's summary judgment argument was that 42 C.F.R. § 488.430(b) provides that CMS may only impose a CMP for the number of days of past noncompliance since the last standard survey. Because the Petitioner's last standard survey had been completed on October 28, 1996, it asserted it could not be assessed a CMP for any prior time. In an exhaustive and well-reasoned opinion, entitled Rulings Granting Summary Judgment to Petitioner under 42 C.F.R. § 488.430(b) and Denying Summary Judgment as to Remaining Issues (Rulings), ALJ Leahy accepted Petitioner's argument that the plain meaning of § 488.430(b) is a limitation of CMS's ability to impose a CMP for past noncompliance. Rulings, at 10. Therefore, ALJ Leahy set aside the CMP that had been assessed against Petitioner for the period from June 20, 1996 through, and including, October 28, 1996. The $300 per day CMP that CMS imposed against Petitioner for the October 29, 1996 to January 7, 1997 period remained to be adjudicated.

This case was reassigned to me for hearing and decision. I held a prehearing telephone conference with the parties on February 12, 2002. I told the parties I could see no reason to disturb ALJ Leahy's summary judgment ruling in this case and I scheduled a hearing to begin in July, 2002 for the remaining issue; that is, the per day CMP imposed by CMS from October 29, 1996 to January 7, 1997. On May 8, 2002, CMS sent me a letter and attached Centers for Medicare & Medicaid Services' Notice of Rescission of Civil Money Penalty for the Period from October 29, 1996 through January 7, 1997 ($21,300), and Motion for Entry of ALJ Decision Regarding the Remaining Civil Money Penalty for the Period from June 20, 1996 through October 28, 1996 ($262,500) on the Basis of Judge Leahy's Ruling of February 23, 2001. In this Motion, CMS stated, " . . . although CMS disagrees with Judge Leahy's ruling, to this point there has been no ALJ 'decision' disposing of the entire CMP originally imposed by CMS for CMS to appeal to the Departmental Appeals Board."

II. Findings

1. ALJ Leahy has already ruled that CMS cannot legally impose a CMP against Petitioner for the period from June 20, 1996 to October 28, 1996.

2. I see no reason not to adopt her well-reasoned and thorough opinion as the law of this case.

3. CMS has rescinded the remaining penalty not disposed of by ALJ Leahy's Rulings. The regulations authorize appeals only with respect to a finding of noncompliance that results in the imposition of a remedy. 42 C.F.R. § 498.3(b)(13).

4. Because there are no remaining assessed penalties for me to consider, Petitioner no longer has a right to a hearing on those issues. I grant CMS's motion and enter judgment in this case for Petitioner as set forth in ALJ Leahy's Rulings.

JUDGE
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Anne E. Blair

Administrative Law Judge

 

CASE | DECISION | JUDGE