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«Pearsall Nursing and Rehabilitation Center – North (Pearsall) requests review of the Administrative Law Judge (ALJ) decision upholding the Centers ...»

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1800, at 11-13 (2001). Pearsall claims that “[t]here is no evidence that the penalty assessment in this case is based on the requisite factors....” RR at 14. As discussed below, that is not correct.

CMS stated in its notice letter that it had considered the factors, and the ALJ applied the factors to the undisputed facts material to the factors. CMS Ex. 2, at 8; ALJ Decision at

12. With respect to compliance history, see 42 C.F.R. § 488.438(f)(1), the ALJ noted the We note, as did the ALJ, the regulatory provision stating that “absence of culpability is not a mitigating circumstance in reducing the amount of the penalty.” 42 C.F.R. § 488.438(f)(4), cited in ALJ Decision at 12.

absence of any dispute (which Pearsall confirms here) that Pearsall had no recent prior enforcement actions. Id. With respect to financial condition, see 42 C.F.R.

§ 488.438(f)(2), Pearsall argues that there is no evidence CMS considered this factor. RR at 16. That argument is clearly rebutted by CMS’s statement to the contrary in its notice letter and by CMS’s informing Pearsall in the same letter of its opportunity to submit any “pertinent financial information” for CMS’s consideration in determining the amount of the CMP. CMS Ex. 2, at 8. In any event, “[t]he Board has repeatedly held that in a proceeding to challenge CMS’s determination of noncompliance and imposition of a CMP, an ALJ or the Board properly presumes that CMS considered the regulatory factors and that those factors support the amount imposed.” Pinecrest Nursing & Rehab. Ctr., DAB No. 2446, at 23 (2012). Accordingly, it is not CMS’s burden to present evidence on each factor or to explain either how it weighed the factors or made its decision as to the amount of the CMP; instead, the nursing facility has the burden “to demonstrate through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.” Id. (citation omitted).

Here, the ALJ found, “Petitioner has not alleged or offered evidence that its financial condition affects its ability to pay the CMP.” ALJ Decision at 12. Pearsall does not dispute this finding, and, as the Board cases cited above indicate, the ALJ correctly allocated to Pearsall the responsibility for coming forward with such evidence. As the Board stated in Coquina Center, “[u]nless a facility contends that a particular regulatory factor does not support that CMP amount, the ALJ must sustain it.” DAB No. 1860, at 32 (2002), cited in ALJ Decision at 12.

The ALJ found the $8,750 CMP amount “well-supported by the record before me.” ALJ Decision at 13. That record, as discussed above, included undisputed evidence that Pearsall did not give Resident 1 care or treatment for a known hip fracture for 30 days.

Section 488.438(f)(3) required the ALJ to factor into his determination of a reasonable CMP amount the scope and severity of this noncompliance with section 483.25. He did

so, and found the noncompliance to be very serious:

Once Petitioner’s staff knew of Resident 1’s acute femur fracture and the refusal of one orthopedic surgeon to see Resident 1 based on her insurance, Petitioner did not take any other steps to provide the necessary care and services to Resident 1, which left her with an untreated fracture for nearly one month. It is impermissible for Petitioner to shift blame to the orthopedic surgeon’s office or Medicaid, or to downplay its culpability in this case. Petitioner’s staff allowed Resident 1’s fracture to go untreated for a month and did not ensure she received care during that time. In fact, but for the dialysis center’s nursing staff – not Petitioner – making arrangements for Resident 1 to see a surgeon, it may have been even longer while the fracture went untreated.

We conclude that the ALJ properly applied the factors in section 488.438(f) and determined that the $8,750 CMP amount was reasonable. 7 The facts on which the ALJ based that determination are undisputed, and Pearsall has pointed to no other evidence material to that determination or offered any argument that would lead us to conclude that the ALJ erred in finding the CMP amount reasonable. Pearsall cites Madison Health Care, Inc., DAB No. 1927 (2004) as purportedly holding that “where ‘... the reasonableness of the amount’ of a CMP is ‘at issue, an ALJ may not dispose of the case entirely on a summary judgment motion.’” RR at 14 (citation omitted). Since Pearsall has not raised a genuine factual dispute affecting this ALJ’s noncompliance determination or his determination of the reasonableness of the per-instance CMP amount, Madison Health Care would not apply even if Pearsall’s statement of the holding were accurate and the case were factually on point, neither of which is true. The Board held in Madison Health Care that “even where summary judgment properly lies against a facility as to the existence of a basis sufficient to authorize CMS to impose remedies, a factual dispute material to the factors justifying the reasonableness of the amount of a CMP may preclude summary judgment on this issue.” DAB No. 1927, at 21.

The basis for that holding was the Board’s finding that there were factual disputes about the seriousness of Madison Health Care’s noncompliance – a factor in determining the reasonableness of a CMP amount under section 488.438(f) – because the ALJ based his noncompliance determination on only one of the seven deficiencies on which CMS’s motion for summary judgment rested and, unlike the ALJ here, did not draw all factual inferences in Madison Health Care’s favor. Here there are no factual disputes affecting the ALJ’s determination of either Pearsall’s noncompliance or the seriousness of that noncompliance. Moreover, the Board in Madison Health Care did not rule out an ultimate conclusion that the CMP amount was reasonable but found summary judgment improper because the ALJ “did not explain how he arrived at a judgment that the same amount of CMP remained reasonable in the absence of any findings about the validity of the other deficiency findings.” 8 DAB No. 1927, at 22. Here, there is only one deficiency finding at issue, and the ALJ clearly explained why he found the CMP amount reasonable in light of the seriousness of that deficiency. Thus, Madison Health Care is factually distinguishable, legally not on point and offers no support for Pearsall. We conclude that the ALJ did not err in finding $8,750 a reasonable per-instance CMP amount.

“The determination of whether a CMP amount is reasonable is a conclusion of law, not a finding of fact.” Cedar Lake Nursing Home at 12.

On remand, the ALJ held a hearing and issued a decision upholding CMS’s finding of noncompliance and the $450 per day CMP amount based on the same single deficiency citation, and the Board affirmed the decision. See Madison Health Care, Inc., DAB CR1325 (2005), aff’d, Madison Health Care, Inc., DAB No. 2049 (2006).

Conclusion For the reasons stated above, we affirm the ALJ Decision.

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