Senior LIFE Lehigh Valley, Inc., DAB CR6161 (2022)

DECISION

I grant the motion for summary judgment filed by the Centers for Medicare & Medicaid Services (CMS) and deny the motion for summary judgment filed by Senior LIFE Lehigh Valley, Inc. (Petitioner), a provider in the Program of All-inclusive Care for the Elderly (PACE).  Further, I uphold the civil money penalty (CMP) imposed on Petitioner. 

I.    Legal Framework

Congress established the PACE program to provide “comprehensive health care services to PACE program eligible individuals in accordance with the PACE program agreement and regulations under [section 1395eee].”  42 U.S.C. §§ 1395eee(a)(2)(B), 1396u-4(a)(2)(B).  The purpose of the PACE program is to:

• Enhance the quality of life and autonomy for frail, older adults. 
• Maximize dignity of, and respect for, older adults. 

Page 2

• Enable frail, older adults to live in the community as long as medically and socially feasible.
• Preserve and support the older adult’s family unit.

42 C.F.R. § 460.4(b).¹

To be eligible for PACE, an individual must be entitled to Medicare and/or Medicaid, be 55 years of age or older, require nursing facility-level services under the coverage provisions in the state Medicaid plan, reside in a PACE program service area, and meet other requirements in the PACE program agreement.  42 U.S.C. §§ 1395eee(a)(1), (5), 1396u-4(a)(1), (5).  Specifically, to be eligible to enroll, the individual must be determined to have a health status that meets requirements set out in the regulations, which will be based on health indicators in the uniform minimum data set (such as medical diagnoses, measures of activities of daily living, and cognitive impairment) collected by PACE providers.  42 U.S.C. §§ 1395eee(c)(2), 1396u-4(c)(2). 

Enrolled individuals must be reevaluated annually to determine whether they still require nursing facility-level services.  42 U.S.C. §§ 1395eee(c)(3)(A), 1396u-4(c)(3)(A).  Enrolled individuals may only be disenrolled for nonpayment of premiums or for engaging in disruptive or threatening behavior as defined in the regulations.  42 U.S.C. §§ 1395eee(c)(5)(B)(i), 1396u-4(c)(5)(B)(i).  Disruptive behavior includes a situation where a participant with decision-making capacity consistently refuses to comply with his or her care plan.  42 C.F.R. § 460.164(b)(2).  However, except as permitted by regulation, a PACE program will not permit disenrollment of a PACE eligible individual “on the ground that the individual has engaged in noncompliant behavior if such behavior is related to a mental or physical condition of the individual . . . includ[ing] repeated noncompliance with medical advice and repeated failure to appear for appointments.”  42 U.S.C. §§ 1395eee(c)(5)(B)(ii), 1396u-4(c)(5)(B)(ii).  If an individual enrolled in the PACE program later ceases to be enrolled for any reason, including a loss of qualification to be in the program or termination of a PACE program agreement, the PACE program assists in obtaining transitional care and providing medical records to new providers.  42 U.S.C. §§ 1395eee(a)(2)(C), 1396u-4(a)(2)(C). 

Individuals receive services under this program from a PACE provider.  A PACE provider is a public or nonprofit private charitable entity that has entered into a PACE program agreement.  The PACE program agreement must be consistent with PACE statutory provisions and the regulations promulgated to implement those statutory

Page 3

provisions.  PACE providers receive payment in accordance with the program agreement.  42 U.S.C. §§ 1395eee(a)(1), (3)-(4), 1396u-4(a)(1), (3)-(4). 

A PACE program agreement must designate the service area of the program, may provide additional requirements for individuals to qualify as eligible for the PACE program, must require PACE providers to meet all state and local laws and requirements, and may contain additional terms and conditions that are consistent with the PACE statutes and regulations.  42 U.S.C. § 1395eee(e)(2)(A), 1396u-4(e)(2)(A).  Further, a PACE program agreement must require, at a minimum, that PACE providers provide enrolled individuals with:  all items and services covered under Medicare and/or the Medicaid statutes and regulations; provide access to necessary covered items and services 24 hours per day, every day of the year; provide services, as required by regulation, through a comprehensive, multidisciplinary health and social services delivery system that integrates acute and long-term care services; and arrange for delivery of items and services that the PACE provider cannot provide through contracts that meet the requirements in the regulations.  42 U.S.C. §§ 1395eee(b)(1), 1396u-4(b)(1).  The program agreement also requires the PACE provider to have, in accordance with regulations, a written plan of quality assurance and improvement, provisions for implementing that plan, and written safeguards of the rights of enrolled participants.  42 U.S.C. §§ 1395eee(b)(2), 1396u-4(b)(2). 

The Secretary of Health and Human Services (the Secretary), in cooperation with the relevant state agency administering the PACE program, will conduct onsite visits and comprehensive assessments of each PACE provider to consider the performance of the provider and its compliance with all significant PACE statutory and regulatory requirements.  42 U.S.C. §§ 1395eee(e)(4), 1396u-4(e)(4).  If the Secretary determines, in consultation with the state agency, that a PACE provider is failing to substantially comply with the requirements of the PACE statutory and regulatory requirements, the Secretary and the state agency may:  condition continuation of a provider’s PACE program agreement on timely execution of a corrective action plan; withhold some or all future payments for PACE program services until the deficiencies have been corrected; and/or terminate the PACE provider agreement. 42 U.S.C. §§ 1395eee(e)(6)(A), 1396u-4(e)(6)(A); 42 C.F.R. §§ 460.42, 460.48, 460.50.  The PACE statutes provide that one reason to terminate a PACE provider agreement is that the Secretary or state agency determines that a provider either 1) has significant deficiencies in the quality of care provided to individuals enrolled in PACE or 2) fails to comply substantially with PACE statutory requirements, and, learning of these deficiencies by written notice, also fails to either 1) successfully initiate a plan to correct those deficiencies within 30 days of receiving the notice or 2) continue to implement that plan.  42 U.S.C. §§ 1395eee(e)(5)(B), 1396u-4(e)(5)(B). 

In addition to the sanctions discussed above, the PACE statutes authorize the Secretary to provide, through regulation, for the imposition of civil money penalties (CMP) on a

Page 4

PACE provider in the same manner as provided in statutes that permit the imposition of CMPs on Medicare+Choice organizations or Medicaid managed care organizations.  42 U.S.C. §§ 1395w-27(g)(2),1395eee(e)(6)(B), 1396b(m)(5), 1396u-4(e)(6)(B).  Such CMPs are governed by 42 U.S.C. § 1320a-7a (other than paragraphs (a) and (b)).  42 U.S.C. §§ 1395w-27(g)(4), 1396b(m)(5); 42 C.F.R. § 460.46(b). 

The Secretary promulgated a regulation specifying the conduct for which CMS could impose CMPs on a PACE provider.  42 C.F.R. § 460.40.  One provision authorizes sanctions when a PACE provider “[f]ails substantially to provide to a participant medically necessary items and services that are covered PACE services, if the failure has adversely affected (or has substantial likelihood of adversely affecting) the participant.”  42 C.F.R. § 460.40(a)(1).  For CMPs assessed, based on a violation of this provision on or after October 11, 2018, CMS may impose a maximum penalty of $38,159.  45 C.F.R. § 102.3 (2019); see 42 C.F.R. § 460.46(a)(4) (providing maximum CMP of $25,000 before statutory inflation adjustments). 

When CMS issues an initial determination imposing CMPs on a PACE provider, the PACE provider has the right to an administrative appeal before an administrative law judge (ALJ).²  See 42 C.F.R. § 422.1006(a)(1).  In its request for an ALJ hearing, the PACE provider must “identify the specific issues, and the findings of fact and conclusions of law with which the [PACE provider] disagrees; and [s]pecify the basis for each contention that the finding or conclusion of law is incorrect.”  42 C.F.R. § 422.1020(b).  Once a PACE provider challenges a determination to impose a CMP, “CMS has the burden of coming forward with evidence related to disputed findings that is sufficient (together with any undisputed findings and legal authority) to establish a prima facie case that CMS has a legally sufficient basis for its determination.”  42 C.F.R.

Page 5

§ 422.1046(b)(4).  If CMS meets this burden, then the PACE provider “bears the ultimate burden of persuasion [and] must prove by a preponderance of the evidence on the record as a whole that there is no basis for the determination.”  42 C.F.R. § 422.1046(b)(6).  The PACE provider also “has the burden of coming forward with evidence sufficient to establish the elements of any affirmative argument or defense which it offers.”  42 C.F.R. § 422.1046(b)(5). 

If an ALJ concludes that there was a basis for imposing a CMP on a PACE provider, the PACE provider may dispute the amount of the CMP.  The ALJ’s review of the CMP amount is limited to considering the statutory factors for setting a CMP amount.  See 42 U.S.C. § 1320a-7a(d).  However, an ALJ may not set a penalty of zero or reduce a penalty to zero.  42 C.F.R. § 422.1046(c)(1). 

Either party may appeal an ALJ decision to the Departmental Appeals Board (DAB). 

II.    Background and Procedural History

Petitioner is a PACE provider. 

In a March 6, 2019 initial determination, CMS imposed a $38,159 CMP on Petitioner.  CMS Ex. 35.  The initial determination stated the following as the basis for the CMP: 

Pursuant to 42 C.F.R. §§ 460.40(a) and 460.46(a)(4), CMS has determined that [Petitioner’s] violations of PACE requirements are significant enough to warrant the imposition of a CMP.  Specifically, [Petitioner]:

Failed substantially to provide medically necessary items and services that are PACE covered-services, which adversely affected (or had the substantial likelihood of adversely affecting) participants (42 C.F.R. § 460.40(a)).

CMS Ex. 35 at 3.  The initial determination indicated that Petitioner was primarily deficient in ensuring that one of its participants was receiving home care chore services.  Although CMS provided Petitioner with the opportunity to submit a corrective action plan, CMS questioned whether Petitioner was providing home care chore services to the participant.  The initial determination stated: 

CMS received a complaint from the State of Pennsylvania reporting significant concerns for one of [Petitioner’s] participants.  The complaint provided details concerning the condition of the participant’s residence that called into

Page 6

question whether the participant received home care chore services that he/she was entitled to receive.  This incident resulted in the participant’s hospitalization.

[Petitioner] provided documentation showing that home care aides did come to the participant’s residence, however, CMS found complaints from the participant and others that indicated home care aides were missing appointments and did not always provide the level of services that the participant was supposed to receive.  Regardless, it is clear from the evidence in the complaint from the State of Pennsylvania that some of the approved home care chore services were not performed.  When questioned about the incident, [Petitioner] informed CMS that its interdisciplinary team (IDT) was aware of the condition of the participant’s residence, but did not intervene until after the State of Pennsylvania filed the complaint. 

In September 2018, [Petitioner] submitted a corrective action plan for the remediation of its oversight and provision of home care chore services.  Three months later, CMS received information for the same participant regarding the condition of the participant’s residence, again calling into question whether the participant received home care chore services that he/she was entitled to receive.  Therefore, CMS is not confident that [Petitioner’s] oversight of home care chore services was appropriately remedied with their corrective action plan.  

Based on the details of these issues, CMS has determined that [Petitioner] did not provide this participant with home care chore services that were adequate to meet the needs of the participant and that this resulted in the participant being adversely impacted.

CMS Ex. 35 at 1-2. 

The initial determination also asserted that Petitioner violated IDT and service delivery requirements in the regulations.  Regarding a failure to ensure that the IDT remained alert to pertinent input from other team members, participants, and caregivers, CMS charged that Petitioner did not take steps to ensure adequate home care chore services were provided, in violation of 42 C.F.R. § 460.102(d)(2)(ii).  CMS Ex. 35 at 3.  Further, regarding a failure to provide services that were adequate to meet the needs of its participant, CMS charged that Petitioner failed to provide adequate home care chore

Page 7

services, in violation of 42 C.F.R. §§ 460.78 (dietary services), 460.90 (PACE benefits), 460.92 (required services), 460.94 (Medicare services), and 460.98(a) (access to services) and (d)(2) (ensuring accessible and adequate services).  CMS Ex. 35 at 3. 

Attached to the initial determination was CMS’s Statement of Record concerning the facts that CMS found in this matter, which related to one of Petitioner’s PACE participants (H.C. or the Participant).  CMS stated that the Participant had been enrolled with the PACE program and in Petitioner’s care since 2012.  The Participant had been approved for the following services:  home care chore visits scheduled three days a week (including cleaning the kitchen, bathroom, floors, and countertops, and emptying trash); morning home care on the first and third Thursday of each month in preparation to go to the Petitioner’s PACE Center (Center); and laundry cleaning at the Center twice a month.  CMS Ex. 35 at 6. 

CMS’s Statement of Record further stated that in 2018, the Participant complained several times that Petitioner’s cleaning aides were not showing up to clean his apartment.  Petitioner’s records show that home care chores were provided in most cases, including on August 15, 2018 (i.e., trash emptied, laundry was cleaned, kitchen was cleaned, and counters and top of stove were wiped and cleaned).  CMS Ex. 35 at 6-7.  However, only hours after the cleaning of the apartment was supposedly done on August 15, 2018, police were at the Participant’s apartment and they called for Crisis Intervention (CI) to see the Participant.  CMS Ex. 35 at 6. 

CI discovered the Participant to be living in filthy conditions, in poor health, and unable to walk well.  CMS stated:  “The participant’s legs were covered in dog feces, moldy food was on the counters and floor, dentures were on the floor, and piles of dirty laundry were in the apartment and the participant did not have any clean clothes to wear.”  CMS Ex. 35 at 6.  The Participant was taken to the hospital where he was diagnosed with lower extremity cellulitis.  The Participant was at the hospital for nearly a week and spent over a month at a skilled nursing facility (SNF).  CMS Ex. 35 at 6. 

CMS’s Statement of Record further summarized that staff from CMS met with staff from Petitioner on September 18, 2018, to discuss the situation concerning the Participant.  Petitioner’s staff admitted that Petitioner did not provide the home health agents with the necessary tools and education, and did not have sufficient oversight to ensure that the services were being provided to the Participant.  Petitioner’s staff also admitted that the IDT visited the Participant’s apartment in mid-July and noted concerns about the conditions.  Petitioner stated that they could not improve the Participant’s living conditions because the Participant lived that way and was difficult at times.  CMS Ex. 35 at 7. 

CMS also stated in the Statement of Record that, on December 20, 2018, the County of Lehigh Aging and Adult Services (Adult Protective Services or APS) made an

Page 8

unannounced home visit to the Participant’s apartment and found the kitchen was not cleaned and had overflowing trash bins.  Petitioner’s records showed that home care aides completed all cleaning tasks in the apartment, except vacuuming, on December 20, 2018, prior to the county visit.  Petitioner’s staff told CMS that, based on the documented time of the home chore visit (46 minutes), the home care aide would not have been able to clean the participant’s apartment to an acceptable level.  CMS Ex. 35 at 7.  CMS attached numerous documents in support of the Statement of Record.  CMS Ex. 35 at 8-141. 

In May 2019, Petitioner filed a request for a hearing (RFH) before an ALJ.  Petitioner disputed that it violated any of the regulations cited in the initial determination.  Petitioner also asserted that the Statement of Record contained inaccuracies, misinterpretations, and omissions.  RFH at 1.  Petitioner identified three areas of CMS’s fact-finding with which Petitioner disagreed. 

Petitioner asserted that the CMP was based solely on two incidents (August 15, 2018 and December 20, 2018) involving a single participant for which CMS failed to include relevant facts and context.  RFH at 1.  Petitioner stated that the Participant was competent for decision-making despite being bipolar, having chronic medical conditions, and a psychological condition that made him feel safe when his apartment was not neat.  Although the Participant’s hygiene and cleanliness habits were poor, these behaviors were normal to the Participant, and the Participant’s physician did not believe these behaviors were correctable.  RFH at 2. 

Petitioner stated that the Participant said that it does not matter how much the cleaning service did in his apartment, his apartment will become messy again as soon as the aides leave.  Petitioner asserted that the Participant had poor hygiene and cleanliness habits at the SNF in August and September 2018.  Petitioner argued that Petitioner was “left in an untenable position and is limited in what it can accomplish when a Participant is deemed competent and yet chooses to act and/or live in a manner that results in poor hygiene and cleanliness.”  RFH at 2. 

Petitioner also asserted that CMS did not take into account Petitioner’s efforts to mitigate the poor hygiene and cleaning habits of the Participant, including:  adding second and third chore visits each week in 2017; professional deep cleaning in September and October 2018; supervised chore visits; offering placement at an SNF; and pursuing placement for assisted living.  RFH at 2. 

Petitioner denied that its staff admitted any culpability, such as not providing home health agents with the necessary tools and education and that it did not have sufficient oversight over its agents to ensure that services were being provided.  Petitioner also denied admitting that, on December 20, 2018, a home care aide would not have had enough time to clean the Participant’s apartment.  RFH at 2.

Page 9

Petitioner posited that CMS incorrectly concluded that the Participant developed cellulitis because the hospital emergency department made that diagnosis based on the redness and mild edema observed on the Participant’s legs.  However, according to Petitioner, the Participant’s condition was due to his chronic lower extremity vascular condition that resulted in redness, warmth, and mild edema.  RFH at 3. 

After receiving the hearing request, I issued an Acknowledgment and Prehearing Order (APO), which established deadlines and procedures for prehearing submissions.  In compliance with the APO, CMS filed its prehearing exchange, consisting of a prehearing brief (CMS Br.) and 40 proposed exhibits.  Of those exhibits, 15 were declarations from witnesses (CMS Exs. 9, 11, 20-25, 27-31, 36-37).  Petitioner also filed a prehearing exchange consisting of a prehearing brief (P. Br.) and 11 proposed exhibits.  Of those exhibits, five were declarations from witnesses (P. Exs. 3-4, 6, 8, 10). 

Both CMS and Petitioner requested to cross-examine the opposing party’s witnesses.  CMS also objected to the admission of Petitioner Exhibits 3 and 4, which are declarations for two of Petitioner’s witnesses.  Petitioner opposed those objections. 

Petitioner moved for summary judgment (P. MSJ), which CMS opposed (CMS Opp. MSJ).  CMS then moved for summary judgment (CMS MSJ), which Petitioner opposed (P. Opp. MSJ).  CMS filed a reply to Petitioner’s opposition to summary judgment (CMS Reply). 

III.   Issues

1. Whether summary judgment, either for CMS or Petitioner, is appropriate in this case. 
2. Whether Petitioner violated 42 C.F.R. § 460.40(a)(1).  
3. If Petitioner violated 42 C.F.R. § 460.40(a)(1), whether the $38,159 CMP imposed on Petitioner is appropriate under the statutory factors in 42 U.S.C. § 1320a-7a(d) for setting a penalty amount. 

Regarding the second issue above, the specific question to be decided is whether Petitioner “[f]ailed substantially to provide medically necessary items and services that are PACE covered services, which adversely affected (or had the substantial likelihood of adversely affecting) participants.”  CMS Ex. 35 at 3 (emphasis added); 42 C.F.R. § 460.40(a)(1).  However, Petitioner has argued that the initial determination only alleged the violation of § 460.40(a)(1) based on H.C. being adversely impacted due to the cellulitis diagnosis.  P. Br. at 1.  Petitioner argued that CMS, for the first time in its prehearing briefing “is attempting to expand its position by arguing that there was the potential for H.C. to be adversely impacted.  The CMS penalty was not based on that

Page 10

‘potential’ for adverse impact and the new basis for a civil penalty should not be permitted in these proceedings.”  P. Br. at 2-3, 5; see P. Opp. MSJ at 2, 10. 

Petitioner is incorrect.  The initial determination does not specify that the diagnosis of cellulitis was the only basis for determining that H.C. had been adversely affected by Petitioner’s alleged violation and, in any event, the initial determination left room for the alleged regulatory violation to have created a substantial likelihood of an adverse effect on H.C.  For example, the initial determination indicated in the second paragraph on the first page that “CMS has determined that [Petitioner] failed substantially to provide its participants with medically necessary items and services that are covered PACE services, and such failure adversely affected (or had the substantial likelihood of adversely affecting) participants.”  CMS Ex. 35 at 1 (emphasis added).  Further, in the section of the Initial Determination entitled “Basis for Civil Money Penalty,” CMS stated that Petitioner’s violation of PACE requirements were significant enough to warrant the imposition of a CMP.  Then CMS wrote:  “Specifically, [Petitioner]:  Failed substantially to provide medically necessary items and services that are PACE-covered services, which adversely affected (or had the substantial likelihood of adversely affecting) participants.”  CMS Ex. 35 at 3 (emphasis added). 

Although Petitioner believes that CMS should not be able to prove the alleged § 460.40(a)(1) violation by showing that there was a substantial likelihood that Petitioner’s violation would adversely affect H.C., CMS argued that its prehearing exchange provided sufficient information to place Petitioner on specific notice of the bases for CMS’s prima facie case: 

So long as CMS gives a Medicare provider “notice and an opportunity to respond to any allegation raised,” the [DAB] will not restrict the scope of evidence CMS can offer in a hearing concerning Medicare noncompliance.  See, e.g., NHC Healthcare Athens v. CMS, DAB No. 2258 at 17 (2009) ([DAB] rejected nursing home’s attempt to preclude CMS from presenting evidence of actual harm where the allegations of actual harm were not “spelled out in the statement of deficiencies” because the nursing home had ample notice of the allegations from the exhibits CMS presented in the administrative proceeding); Laurelwood Care Ctr. v. CMS, DAB No. 2229 at 21 (2009) ([DAB] rejected nursing home’s attempt to strictly constrain CMS to the specific allegations in the statement of deficiencies (“SOD”) based on its determination that the nursing home “had sufficient notice of the issue about the adequacy of the risk-safety assessments both from the face of the SOD and from the pre-hearing proceedings.”).

Page 11

CMS Reply at 4. 

I agree with CMS that the DAB has concluded that, in Medicare provider sanction proceedings, CMS may use its prehearing brief and proposed exhibits to fill in the details of the basis or bases for the CMP.  As stated above, Petitioner was placed on notice by the initial determination of the alleged regulatory violation and the basic factual situations involving H.C. in August and December 2018 that served as a basis for the violation of § 460.40(a)(1).  However, within the general factual scenario involving H.C. and the specific regulatory violations stated in the initial determination, CMS’s prehearing brief and proposed exhibits filled out the specific factual and legal bases for its actions.  

I reject Petitioner’s argument that the alleged § 460.40(a)(1) violation may only be adjudicated based on whether Petitioner’s actions adversely affected H.C. rather than considering whether they created a substantial likelihood of adversely affecting H.C. CMS’s prehearing brief indicated in the “Issues Presented” section of the brief that one issue was whether Petitioner’s alleged violations “adversely affected (or had the substantial likelihood of adversely affecting) H.C.”  CMS Br. at 2.  CMS also devoted four pages of the brief to specifically discussing all of the potential adverse effects, along with citations to its proposed exhibits, that had a “substantial likelihood” of occurring due to Petitioner’s alleged violations.³  CMS Br. at 22-25.  Because I ordered CMS to submit its prehearing exchange first, Petitioner had an opportunity to review the brief and the proposed exhibits to prepare its case before having to file its prehearing submission. 

Petitioner does not explain why CMS should not have the opportunity to fully develop the allegations it made in the initial determination.  CMS’s position in its prehearing brief was not inconsistent with the initial determination, does not allege a new regulatory violation for the CMP, and only asserts facts that are related to H.C. and the general time-period that is discussed in the initial determination.  However, to the extent that CMS’s brief and proposed exhibits could be construed as creating new issues in this case, I authorized those new issues because CMS added them at its first opportunity following Petitioner’s hearing request, and there is no prejudice to Petitioner.  42 C.F.R. § 422.1042(a)(2) (“The ALJ may consider new issues even if CMS has not made initial determinations on them, and even if they arose after the request for hearing was filed or after a prehearing conference.”). 

IV.   Evidentiary Rulings

For purposes of summary judgment, I admit into the record, without objection, CMS Exhibits 1 through 40 and Petitioner Exhibits 1, 2, and 6 through 11.  See APO ¶ 7; Civil

Page 12

Remedies Division Procedures § 14(e).  I also overrule CMS’s objection to Petitioner Exhibit 3 and admit it into the record for purposes of summary judgment.  Finally, I sustain CMS’s objection to Petitioner Exhibit 4 and exclude that exhibit from the record.  Because Petitioner Exhibit 5 supports Petitioner Exhibit 4 and serves no purpose if Petitioner Exhibit 4 is excluded, I also exclude Petitioner Exhibit 5 from the record. 

I explain my rulings below.  In this case, I must admit all relevant and material evidence into the record.  42 C.F.R. § 422.1046(b)(1); see 5 U.S.C. § 556(d) (requiring agencies to provide for the exclusion of irrelevant, immaterial, and unduly repetitious evidence).  Further, I may receive evidence into the record even if it is inadmissible under the rules of evidence used in the courts.  42 C.F.R. § 422.1048. 

A.  Petitioner Exhibit 3

Petitioner Exhibit 3 is a declaration from H.C., the PACE participant who is at the center of this case.  Six months after Petitioner filed H.C.’s declaration in this case, he passed away.  CMS objected to Petitioner Exhibit 3 because CMS can no longer cross-examine H.C.  See APO ¶ 9. 

Petitioner opposed the objection because CMS, during its investigation, did not interview and obtain H.C.’s first-hand knowledge of the events that are the basis for the CMP.  Petitioner stated that, because CMS bears the burden to show a prima facie case for the alleged regulatory violation, CMS should have properly investigated this matter and interviewed H.C.  Petitioner also argued that there was no basis to exclude the declaration because the federal evidentiary rules do not apply in this case and H.C. signed the declaration in conformity with the requirements in 28 U.S.C. § 1746. 

For purposes of determining summary judgment in this case, I will consider H.C.’s declaration in this decision.  Therefore, I overrule CMS’s objection and admit Petitioner Exhibit 3 into the record. 

B.  Petitioner Exhibits 4 and 5

CMS objected to the admission of Petitioner Exhibit 4, the declaration of witness James Pezzuti.  CMS argued that Mr. Pezzuti, who was not a fact witness or qualified as an expert witness, provided irrelevant and inappropriate testimony.  CMS characterized Mr. Pezzuti’s testimony as his opinion as to the utility of the PACE program and whether CMS ought to have imposed a CMP on Petitioner.  CMS asserted that Mr. Pezzuti claimed no personal knowledge of the events in this case, and Petitioner did not expressly seek to qualify him as an expert.  Even if it had, CMS argued that he does not have any scientific, technical, or specialized knowledge of medicine or fire safety from which to opine whether H.C. suffered injury or was at risk.  CMS also stated that Mr. Pezzuti made several legal conclusions, including as to the ultimate issue in this case.

Page 13

Petitioner opposed the objection, stating that Mr. Pezzuti was the former Director of the Bureau of Community Development in the Office of Long Term Living in the Pennsylvania Department of Public Welfare and Aging whose testimony discussed the following:  how the PACE program works, including how services are delivered; the goals and purpose of PACE in Pennsylvania; whether Petitioner provided H.C. with necessary services; whether Petitioner failed to substantially provide covered cervices; the public interest and relevant policy considerations; and the context of the facts in this case.  Petitioner alleges that Mr. Pezzuti’s testimony is necessary because CMS has allegedly changed its basis for a violation in this case and Petitioner must now defend against arguments that call into question Petitioner’s operations as well as the function and utility of the PACE program generally.  Specifically, Petitioner asserted that PACE providers do not provide institutional care and they have limitations as a result of the care being influenced by a PACE participant’s autonomy.  Petitioner argues that Mr. Pezzuti qualifies as an expert in PACE programs because he has 35 years of experience in human services delivery systems and extensive experience with PACE programs. 

Nearly half of Mr. Pezzuti’s declaration appears to be his summary of events in this case.  P. Ex. 4 at 1-4.  His “Testimony Overview” states:  “Based upon my review of the materials made available to me, it is my opinion that it was improper and unwise for CMS to impose a monetary penalty against [Petitioner] in the case of HC,” an opinion that he reiterated at the end of the first paragraph of his “Discussion” section.  P. Ex. 4 at 1, 4.  Mr. Pezzuti opined that there was insufficient support to impose the CMP because poor results from a PACE provider only provide a basis for investigation but not a penalty.  P. Ex. 4 at 4.  Mr. Pezzuti was concerned that upholding CMS’s action would incentivize involuntary terminations of PACE providers.  P. Ex. 4 at 4. 

Mr. Pezzuti’s view is that Petitioner provided H.C. with services, even expensive ones like a recliner to help H.C.’s lower extremity circulation and a motorized wheelchair.  P. Ex. 4 at 4-5.  He also thinks the penalty was inappropriate because Petitioner paid more than $1,500 to deep clean H.C.’s apartment in September 2018, and speculated that CMS imposed the highest CMP amount possible due to the condition of H.C.’s apartment.  P. Ex. 4 at 5.  Mr. Pezzuti stated:  “It is further my considered belief that the imposition of a monetary penalty against [Petitioner] because [Petitioner] had difficulty meeting the needs of a participant that is socially isolated and capable of conduct and decision making that effectively undermines the efforts of a well[-]intended PACE program is inappropriate and unwise.  Regulatory oversight and authority to impose monetary penalties must be utilized in a well[-]reasoned manner.”  P. Ex. 4 at 6.  “As a former regulator,” Mr. Pezzuti indicated that he did not think H.C. was injured or at risk for injury due to the condition of H.C.’s apartment.  P. Ex. 4 at 6.  Further, Mr. Pezzuti stated that “[i]t is important to keep in mind, the purpose of the PACE program,” noting that all PACE participants are vulnerable to acute or accidental injury and that Petitioner’s provision for cleaning services three times a week were “substantial

Page 14

services.”  P. Ex. 4 at 6.  Mr. Pezzuti also conjectured that, if there had been any risk of injury to H.C., Adult Protective Services would have removed him from his apartment and that Petitioner was correct not to discharge H.C.  Mr. Pezzuti ended his declaration with a paragraph on the importance of the PACE program as a financially efficient method of caring for seniors and that “[a] monetary penalty under these circumstances serves only to discourage investment in the expansion of existing PACE programs or alternatively encourage involuntary dis-enrollments, either of which are contrary to the policy objectives of the Commonwealth of Pennsylvania to reduce dependence on institutional care.”  P. Ex. 4 at 7. 

Mr. Pezzuti’s resume at Petitioner’s Exhibit 5 indicates that he spent a lengthy career in the Pennsylvania State Department of Public Welfare and Aging and has since been a consultant to states on policy concerning PACE programs and to managed care organizations.  P. Ex. 5. 

I sustain CMS’s objection to Mr. Pezzuti’s declaration.  Mr. Pezzuti is undoubtedly an expert on PACE policy and, I suspect, well-qualified as a regulator.  However, testimony on whether it was unwise for CMS to impose a CMP is irrelevant.  Regulators may disagree as to whether sanctions or other actions ought to be taken in a given situation; however, such a debate is not relevant to my decision in this case.  I am to determine whether CMS had a factual and legal basis to impose a CMP on Petitioner.  Cf. Letantia Bussell, M.D., DAB No. 2196, at 13 (2008) (“the right to review of CMS’s determination by an ALJ serves to determine whether CMS had the authority to revoke [the provider’s or supplier’s] Medicare billing privileges, not to substitute the ALJ’s discretion about whether to revoke.”).  Indeed, I am expressly prohibited from “[r]eview[ing] the exercise of discretion by CMS to impose a civil money penalty” once I decide there is a basis for imposing the CMP.  42 C.F.R. § 422.1046(c)(2).  As summarized above, Mr. Pezzuti’s opinion in this case is based heavily on PACE policy considerations.  To the extent he occasionally opines about matters outside his policy and government management expertise (such as fire safety), Mr. Pezzuti is not qualified to render those opinions in this case.  Therefore, I exclude Petitioner Exhibits 4 and 5 from the record. 

V.     Summary Judgment

Both parties moved for summary judgment.  As discussed below, I deny Petitioner’s summary judgment motion but grant CMS’s motion because the undisputed material facts in this case are sufficient to show a violation of 42 C.F.R. § 460.40(a)(1).  Further, because neither party presented arguments as to the amount of the CMP imposed in this case, I consider that matter undisputed and uphold the CMP amount. 

Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-

Page 15

25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein. 

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 [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  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); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d sub nom. W. Tex. LTC Partners, Inc. v. U.S. Dep’t of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587). 

In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Heritage House of Marshall Health & Rehab., DAB No. 3035 at 8 (2021); Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); see also Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  W. Tex. LTC Partners,  DAB No. 2652 at 6-7; cf. Guardian, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”); see Green Valley Healthcare & Rehab. Ctr., DAB No. 2947 at 8 (2019), quoting Johnson v. Perez, 823 F.3d. 701, 705 (D.C. Cir. 2016) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”). 

Specifically, in relation to administrative proceedings involving Medicare, it is well-established that an ALJ is empowered to decide a case on summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir.

Page 16

2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added).  

In Fal-Meridian, the Seventh Circuit considered specifically the appropriateness of granting CMS summary judgment in a CMP case involving an SNF.   The court sustained the ALJ’s grant of summary judgment in CMS’s favor because the SNF did not tender “evidence that, if believed, would show that it had done everything possible (within the meaning of the regulation) to minimize the risk of an accident.”  Fal-Meridian, 604 F.3d at 451. 

Finally, deciding a case on summary judgment does not mean that it is decided without a hearing.  In reviewing administrative appeals decided on summary judgment, courts describe the case as having been decided without an “oral hearing” or without an “evidentiary hearing.”  They recognize that, by considering the evidence and applying the law, the ALJ has granted the petitioner a hearing.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”). 

Below, I first explain why I deny Petitioner’s summary judgment motion and summarize why I grant CMS’s motion.  After that, I discuss the material facts that Petitioner has not disputed through the submission of admissible evidence.  Finally, I make conclusions of law based on the undisputed facts.  

A. Denial of Petitioner’s Motion for Summary Judgment

Petitioner moved for summary judgment based on the equitable doctrine of laches.  P. MSJ at 1.  Petitioner’s specific reason for asserting laches is that its witness, H.C., passed away six months after Petitioner filed H.C.’s signed declaration (P. Ex. 3) as H.C.’s written direct testimony in this case.  As already discussed above, CMS objected to the admission of the declaration because, among other things, CMS would not be able to cross-examine H.C.  See P. MSJ at 1-2. 

Petitioner believes that it is essential to its defense that H.C.’s declaration be considered because it shows that H.C. was responsible for the condition of his apartment and not Petitioner.  “The record in this case is clear that intentional conduct and seemingly unwise decisions by H.C., are in whole or in part why H.C.’s apartment was at times found to be in poor condition.  H.C. was competent to make decisions for himself even though H.C.’s decisions were not always within conventions.  H.C. in fact made poor decisions to include refusal of home care chore services and facility placement.”  P. MSJ at 7.

Page 17

Petitioner asserted that an equitable remedy, like laches, applies because CMS did not properly investigate this case before imposing a CMP and before H.C. died.

H.C. died on April 22, 2020. CMS never considered or investigated the reality that H.C.’s living conditions were the product of intentional conduct by H.C.  Moreover, CMS never considered or investigated the reality that [Petitioner] provided adequate services to H.C. that did not change H.C.’s living conditions because H.C. was coherent and determined to remain in his apartment in an unconventional environment.  The opportunity for CMS to conduct an appropriate investigation has been lost with the passing of H.C.  CMS, by failing to appropriately investigate and document H.C.’s mental abilities, intentional actions and thought process prevents CMS from independently arriving at the conclusion that [Petitioner] provided adequate services to H.C. that did not change H.C.’s living conditions because H.C. was coherent and determined to remain in his apartment in an unconventional environment.  The opportunity for the parties to participate in a fair hearing on the merits was lost with the passing of H.C.

P. MSJ at 8. 

CMS argued in opposition that equitable remedies are not available in this administrative sanction case and, in any event, “[e]ven if H.C. was an extremely messy person, [Petitioner] nonetheless was required under the Medicare regulations to provide H.C. medically necessary housekeeping/cleaning services sufficient to ensure a safe and habitable living environment.  42 C.F.R. §§ 460.78, 460.90, 460.92, 460.94, 460.98(a) and (d)(2), and 460.102(d)(2)(ii).”  CMS Opp. at 2, 12. 

CMS is correct.  Laches is an equitable defense that applies when there is (1) a lack of diligence by the party against whom the defense is asserted and (2) a resulting injury to the party asserting the defense.  Mo. Dept. of Social Servs., DAB No. 193 at 9-10 (1981).  CMS is also correct that laches, as an equitable defense, cannot be considered in this proceeding.  See Blair Allen Nelson, M.D., DAB No. 3024 at 12 (2020); Cornelius M. Donohue, DPM, DAB No. 2888 at 9 (2018); Donna Maneice, M.D., DAB No. 2826 at 7-8 (2017).  Further, because I have admitted H.C.’s declaration for purposes of ruling on the summary judgment motions, Petitioner will not be prejudiced by the death of H.C.  However, as discussed below, much of what H.C. stated in his declaration is insufficiently detailed to create many disputes of material fact in this case.  CMS Opp. at 7-8, 15-17. 

Page 18

B. Grant of CMS’s Motion for Summary Judgment

CMS moved for summary judgment, asserting that the undisputed material facts in the case were sufficient to show a violation of 42 C.F.R. § 460.40(a)(1) because Petitioner failed to provide adequate housekeeping services for H.C. and H.C.’s apartment was found on multiple occasions to be contaminated by dog and human feces, to contain moldy and spoiled food, to have a dirty and greasy stovetop and oven, as well overall filth.  CMS MSJ at 7.  Even accepting that Petitioner provided housekeeping/cleaning services, CMS asserts that those services were not adequate because H.C.’s apartment was in an unsafe and unsanitary condition.  CMS MSJ at 8.  CMS characterized Petitioner’s position as indicating that H.C. had a mental or psychological condition that caused him to make his apartment messy and that he would make his apartment messy following housekeeping visits.  CMS MSJ at 9.  However, CMS argued in response that because H.C.’s apartment was not merely messy, but was also unsanitary and unsafe, and Petitioner knew H.C. would not keep the apartment clean despite housekeeping visits, the IDT failed to properly address the problem.  CMS MSJ at 10.  Instead, CMS argued, Petitioner’s narrative in this case is to put blame on H.C., who, by the second half of 2018, was unable to walk his dog (so that it could relieve itself outside) and clean his apartment.  CMS MSJ at 11.  CMS also asserted that Petitioner’s prehearing submission, including H.C.’s declaration (P. Ex. 3), indicated that H.C. would not always allow housekeepers into the apartment building or would sometimes refuse cleaning; however, CMS pointed out that Petitioner’s position fails to consider that Petitioner was ultimately responsible for ensuring that H.C. lived in a safe and sanitary environment.  CMS MSJ at 12-14.  CMS also argued that Petitioner did not effectively create a material dispute that H.C.’s living conditions were substantially likely to adversely affect H.C.  CMS indicated that Petitioner’s witness declarations potentially create a dispute as to whether H.C.’s living conditions adversely affected H.C., but not whether they were substantially likely to adversely affect him.  CMS MSJ at 20-22.  CMS argued that because Petitioner’s IDT had determined that housekeeping services were necessary for H.C., not ensuring that H.C.’s apartment was sanitary and safe is a sufficient basis for summary judgement.  CMS MSJ at 22-24. 

Petitioner opposed summary judgement on grounds that CMS failed to establish a prima facie case of a regulatory violation.  P. Opp. to MSJ at 6-7.  Petitioner asserted that H.C.’s declaration makes it clear that he intentionally undermined Petitioner’s efforts and flatly refused appropriate care and support.  P. Opp. to MSJ at 7.  Petitioner also asserted that H.C.’s declaration alone supports that his actions resulted in the poor condition of the apartment based on the poor decisions that he made.  P. Opp. to MSJ at 8-9.  Further, Petitioner argued that there was a genuine dispute of material fact as to whether H.C. was adversely affected.  P. Opp. to MSJ at 9-15.  Petitioner also asserted that there was evidence in the record from the second half of 2018 showing that Petitioner’s apartment was clean or neat and that this raises a dispute as to the evidence CMS used to show that it was not always that way.  P. Opp. to MSJ at 17-18.  Petitioner also pointed to the

Page 19

declarations it submitted that discuss H.C.’s psychological/mental condition that impels him to create mess in his apartment, even after housekeepers had just cleaned.  P. Opp. to MSJ at 18-19.  Petitioner stated that “even if [Petitioner] took steps to clean H.C.’s apartment every day, although no one not even CMS has asserted that every day cleaning was what was required, his apartment would be in disarray and unclean shortly thereafter, as testified to by H.C. himself.”  P. Opp. to MSJ at 18. 

As discussed in more detail below, I agree substantially with CMS’s position.  Ultimately, Petitioner’s primary defense is that H.C. had a mental or psychological condition that made him feel more comfortable in a messy apartment.  Petitioner’s IDT went so far as to authorize aides to clean H.C.’s apartment three times a week; however,  H.C. would, at times, restrict housekeepers from entering his apartment building or his apartment.  By mid-2018, H.C. had significant knee trouble that limited his ability to walk and often caused him to fall, which resulted in H.C. being unable to walk his dog outside.  With no other recourse, the dog defecated and urinated in the apartment.  Making matters worse, H.C. lost the physical ability to clean the apartment himself and would leave food out to rot and become moldy.  Overall, according to uncontroverted and undisputed opinions from CMS’s medical expert, H.C.’s living conditions put him at substantial risk for adverse effects related to the lack of a clean and sanitary apartment. 

Petitioner’s IDT assessed H.C. as in need of SNF care; however, H.C. would not relocate to an SNF.  Neither would H.C. comply at all times with the IDT’s decision that he needed the apartment cleaned three times a week.  Despite all of this, Petitioner neither sought to take other action to permit H.C. to safely remain independent (e.g., provide more housekeeping visits, provide a dog walker, or provide more personal assistance to H.C.) or seek to disenroll H.C. for failing to comply with the necessity of house cleaning visits and sanitary living conditions.  Instead, Petitioner continued in futility to attempt to provide house cleaning assistance that was insufficient to avoid an unsanitary situation based, in significant part, on H.C.’s dog’s inability to relive itself outside and H.C.’s physical inability to clean the dog waste in his apartment.  Because the undisputed facts, and disputed facts taken in the light most favorable to Petitioner, show that Petitioner failed to provide apartment cleaning services that the IDT found to be necessary, and there was a substantial likelihood that H.C. would suffer adverse effects from the failure to have a clean apartment, I conclude that Petitioner violated 42 C.F.R. § 460.40(a). 

VI.    Undisputed Facts

1. Petitioner is a PACE program provider.   
2. H.C. was enrolled as a PACE participant and had received PACE services from Petitioner for several years.  H.C. was male and born in March 1937. 

Page 20

3. H.C “has an extensive long standing medical history significant for BiPolar Disorder, Psychosis, Depression, Major Bipolar Affective Disorder, Paroxysmal Atrial Fibrillation, Hallucinations of Visual Type, Problems Related to Social Environment, Ambulatory Dysfunction, Moderate to Severe Peripheral Arterial Disease, Mycotic Toenails, BPH (Benign Prostate Hyperplasia), Chronic Urinary Incontinence, Chronic Pain Left Knee, Primary and Osteoarthritis of Left Knee.”  P. Ex. 6 at 4; P. Ex. 8 at 2. 

Petitioner’s notes on H.C. before August 15, 2018

4. A November 14, 2017 nurse visit note stated that H.C.’s apartment “was clean except for the [] WEE WEE pads on the floor for his dog.  Kitchen was very clean.”  CMS Ex. 6 at 314. 
5. On November 21, 2017, a nurse conducted a six-month reassessment and noted that H.C. walks frequently and walks outside the room at least twice a day and inside the room at least every two hours; however, H.C. ambulates with a rolling walker and “has difficulty ambulating as left knee often gives out on him.  For this reason, he uses a left knee brace.”  CMS Ex. 6 at 310, 312. 
6. A November 22, 2017 Physical Therapy note indicated that H.C. fell on November 21, 2017, and that he had fallen three times in the last six months.  CMS Ex. 6 at 305.  A November 22, 2017 Social Work note indicated that H.C. stated that his left knee buckled and he fell.  CMS Ex. 6 at 303. 
7. A November 22, 2017 Social Work six-month reassessment indicated that H.C. was his own primary caregiver but that Petitioner provided “chore services” to him.  CMS Ex. 6 at 299.  A December 4, 2017 Home Care Review six-month assessment indicated that Petitioner was providing H.C. with 60-minute chore services three times a week and 30-minute morning care on the first and third Thursdays each month so that H.C. could go to Petitioner’s Center and do laundry.  The assessment identified a safety issue as the living area was cluttered/unclean.  CMS Ex. 6 at 283-85; see CMS Ex. 32 at 5 (H.C.’s care plan printed on August 27, 2018, indicating the same level of services); P. Ex. 2 at 978. 
8. A December 4, 2017, Home Care Review note indicated that a supervisory visit indicated that the aide who was to conduct a chore visit at H.C.’s apartment never appeared.  The supervisor stayed for 45 minutes and eventually provided assistance by gathering up some trash and cleaning up clutter.  The note also indicated that the apartment building management was conducting an inspection of H.C.’s apartment and the apartment needed to be cleaned by December 7, 2017.  CMS Ex. 6 at 264. 

Page 21

9. A December 5, 2017 HomeCare note indicated H.C. would receive a two-hour chore visit on December 6, 2017.  CMS Ex. 6 at 262. 
10. A December 19, 2017 Social Work note indicated that H.C. was dissatisfied with the aide assigned to clean his apartment the day before.  The social worker said cleaning aides had trouble getting H.C. to “buzz[] [them] into his apartment building,” which H.C. explained was due to a problem with his phone.  CMS Ex. 6 at 254.  
11. A January 17, 2018 Physical Therapy home visit note documented that H.C. had fallen twice since his last assessment.  H.C. reported that ongoing chronic knee pain limited his ability to ambulate the distances necessary to go to the senior center, even with a walker.  “He has a dog, but in the snow and cold he places pads around apartment for the dog to go to the bathroom on; apartment cluttered with debris and patient given education for safety with mobility around clutter and items scattered on floor.”  P. Ex. 2 at 986.  
12. A February 2, 2018 Chore Service Home note stated that H.C. complained that “his home was disrupted” by the homecare aides, who had come the previous day.  P. Ex. 2 at 978. 
13. A February 15, 2018 nursing visit note documented that H.C. fell in his apartment on February 14, 2018, without injury.  P. Ex. 1 at 71; P. Ex. 2 at 974, 976.  A February 15, 2018 Physical Therapy note indicated that H.C. stated his chronic bilateral knee pain makes H.C. feel unsteady on his feet.  P. Ex. 2 at 972. 
14. Various clinical notes from early March 2018 indicated that H.C. fell on February 28, 2018, March 1, 2018, or March 2, 2018, in his apartment, which caused profuse bleeding from his nose.  P. Ex. 1 at 70; P. Ex. 2 at 962, 964, 966. 
15. A March 13, 2018 nurse visit note indicated that H.C.’s apartment “was disheveled and cluttered.”  P. Ex. 2 at 956. 
16. In Social Work notes dated March 15, 2018, H.C. complained that the home aide who is supposed to help him get ready did not show up so H.C. missed the bus to Petitioner’s center to do his laundry.  H.C. asked how his laundry would be done, and Petitioner’s staff indicated they would arrange to pick it up.  P. Ex. 2 at 950, 954.  
17. A March 19, 2018 Social Work note indicated that H.C. informed them that, due to a medical test, he would not be home for the March 21 scheduled homecare cleaning of his apartment.  P. Ex. 2 at 948.  A March 20, 2018 Home Care note

Page 22

indicated the homecare cleaning was rescheduled to later in the day on March 21, 2018, so it could be done.  P. Ex. 2 at 946.

18. An April 5, 2018 Physical Therapy note recommended that H.C.’s knee brace be replaced.  P. Ex. 2 at 928. 
19. An April 25, 2018 Social Work note stated that H.C. was not ready for the bus to go to Petitioner’s Center and do his laundry that morning.  He indicated that he still needed his laundry done and voiced appreciation when told his laundry would be picked up the next day.  P. Ex. 2 at 926. 
20. In a May 8, 2018 Physician note, Peter J. Baddick, III, D.O., H.C.’s primary care physician, summarized both a six-month assessment for H.C. as well as a post-fall assessment for four falls which occurred on May 4-5, 2018.  “[H.C.] relates and attributes his fall events from weakness in his left knee joint for which he wears a hinged stabilizing brace which he states he was wearing at the times of his fall.  [H.C.] also states he did have his rollator walker with him and was using it at the time of each fall.  He relates he had one fall that was witnessed by his house cleaner woman and he felt he may have actually tripped over debris on his floor and landed in the corner of the living room on a pile of debris and belongings on the floor.”  P. Ex. 1 at 61.  Dr. Baddick also documents that H.C. said he “feels he is not able to venture out in the community lately . . . [H.C.] has only a medical concern for his left leg and knee weakness” for which H.C. had been seen and would be seen again by an orthopedic surgeon.  P. Ex. 1 at 61; see P. Ex. 2 at 918.  A May 7, 2018 Physical Therapy note concerning the four falls indicated that H.C. has left knee pain and weakness, moves slowly, is unsteady, and neglects to use his walker.  “The home environment is very messy at time of follow up, and [H.C.] reports that his Aide did not do a great job of cleaning up earlier that day.”  P. Ex. 2 at 916. 
21. A May 16, 2018 Social Work note indicated that H.C. wanted to confirm that he was scheduled to attend Petitioner’s Center because he had a lot of laundry to be done.  P. Ex. 2 at 903. 
22. A May 17, 2018 Physical Therapy note stated that H.C. has left knee pain and wears a brace to decrease episodes of buckling; however, H.C. did not meet his goal of being able to ambulate well enough to go to the senior center and was “having signs of deterioration based on recent falls.”  P. Ex. 2 at 895. 
23. A May 23, 2018 nursing visit note (relating to a May 21, 2018 visit) indicated that H.C’s apartment was “messy and dirty.”  P. Ex. 2 at 871. 

Page 23

24. A May 23, 2018 Home Care Review note indicated that “pathways are narrow with clutter and debri[s]” and identified “Living area cluttered/unclean” as a safety issue.  P. Ex. 2 at 866, 868. 
25. A May 30, 2018 Social Work note indicated that an IDT goal for H.C. was to maintain his independence and that H.C.’s goal was “to get out of the apartment more.”  P. Ex. 2 at 861. 
26. In a June 13, 2018 physician note authored by Dr. Baddick as a post-fall assessment, related to a June 9, 2018 fall, Dr. Baddick indicated that the fall occurred in H.C.’s apartment and occurred because H.C. mistakenly took an additional lithium tablet, which made him dizzy, rather than a pill to help him sleep.  H.C. fell while trying to stand with his walker at the entrance to the kitchen sustaining a 2.5 cm laceration to his head resulting in blood on the floor and on himself.  One of Petitioner’s nurses went to H.C.’s apartment and dressed the wound but recommend surgical suture closure.  H.C. refused to go to the hospital.  P. Ex. 1 at 58, 60; see P. Ex. 2 at 855. 
27. A June 26, 2018 Social Work note stated that H.C.’s apartment managers informed Petitioner of their concerns about H.C.’s falls as well as his “living conditions.”  P. Ex. 2 at 833. 
28. A second June 26, 2018 Social Work note indicated that H.C. “said he is aware of his messy living conditions but said he has lived his whole life like this, and now it’s even worse because of his knee problems.  [H.C.] said that it doesn’t matter how much cleaning services he has, that his apartment would become messy as soon as someone left.  He voiced satisfaction with the current homecare services in place, and reported ‘I do the best I can.’”  P. Ex. 2 at 831. 
29. A July 6, 2018 nursing note recorded that H.C. fell on July 5, 2018 when “he was trying to get out of bed, took a step and knees buckled and fell on his knees.”  P. Ex. 1 at 56; see P. Ex. 2 at 823. 
30. A July 11, 2018 Social Work note stated that H.C.’s apartment manager reported H.C. had fallen on July 10, 2018, and management remains concerned with H.C.’s safety in the apartment.  P. Ex. 2 at 816. 
31. A July 12, 2018 physician note authored by Dr. Baddick as a post-fall assessment and family meeting assessment, related to a July 11, 2018 fall, documented what was said at the meeting.  The meeting included Petitioner’s representative and management of H.C.’s apartment building.  Apartment management stated that H.C. was falling four to five times a week in his apartment.  Sometimes the emergency medical service (EMS) would be called to pick H.C. up off the ground.

Page 24

In one fall, H.C. pulled/broke the oven door off his oven.  H.C. also has pulled cabinet doors off in the kitchen when falling.  H.C. admitted to falling about four to five times a week and not reporting most of those falls.  H.C. stated that he has increased weakness in his legs and they just give out.  “It was also reported [H.C.] left his oven on on Saturday night, the oven was so full of grease and grime it began to smoke so much the building fire alarm went on and [H.C.’s] apartment filled with smoke, [H.C.] never reacted to the smoke or the alarm per building staff.  [H.C.’s] apartment is very disorganized and [H.C.] is very disheveled in his appearance and unkempt [sic].  Building management demand [H.C.] clean his apartment and receive additional assistance regarding his fall history and I informed them [H.C.] has been seeing orthopedic surgery for his ambulatory issues and will be referred for an orthopedic surgery second opinion for care.”  P. Ex. 1 at 54.  Dr. Baddick’s assessment was that H.C. had “Severe Ambulatory Dysfunction – UNSTABLE,” and that the plan included education of H.C. concerning ambulation safety and coordinating a second opinion for H.C.’s “Internal Derangement B/L Knee Joints.”  P. Ex. 1 at 55. 

32. A July 12, 2018 Chore Service note summarized a meeting held that day that included the apartment building management, Dr. Baddick, and several others.  The building management thought that H.C. “is no longer able to live without assistance.  Housing questioned:  frequent falls, cleanliness of apartment, inadequate care of dog and repeated issues with setting off the smoke alarm in the apartment. . . . In the past aides expressed having trouble getting into building due to [H.C.] not answering the phone.”  P. Ex. 2 at 810. 
33. A July 12, 2018 Social Work note also summarized the meeting that Petitioner’s staff and the apartment building management had with H.C. concerning his safety regarding falls and setting off the smoke alarm related to the use of his oven.  “Also discussed [H.C.’s] cleanliness and care of his dog.  [H.C.] admits to making messes in his apartment, but that this is how he has always lived and it doesn’t bother him.  He continues to have homecare visits in place 3x/week for cleaning, although sometimes has difficulty allowing the staff into the building.”  The apartment management indicated they would help let cleaning aides into the apartment building.  H.C. stated that he had no interest in getting rid of his dog.  P. Ex. 2 at 808. 
34. In a July 13, 2018 Occupational Therapy note, it is documented that H.C. stated that he fell on July 10, 2018.  P. Ex. 2 at 806. 
35. A July 13, 2018 Physical Therapy note indicated that “although weak and unsteady [H.C.] demonstrated the ability to navigate his apartment independently using his rollator.”  P. Ex. 2 at 804. 

Page 25

36. An August 2, 2018 Social Work note documented that apartment managers from H.C.’s apartment notified Petitioner that H.C. was walked in the community and had trouble walking back.  Two concerned individuals provided H.C.’s a ride back to the apartment building.  The apartment managers questioned H.C.’s ability to live independently.  H.C. stated that he walked to the bank to deposit a check.  H.C. also objected to the apartment managers involving themselves in his personal affairs.  P. Ex. 2 at 792. 
37. An August 14, 2018 Social Work note documented that the social worker received a call from a Jewish Family Services caseworker that one of their volunteers who had been working with H.C. recently was “concern[ed] about the condition of [H.C.’s] apartment and a statement [H.C.] made about ‘firing the aide.’”  P. Ex. 2 at 788. 
38. An August 15, 2018 Social Work note stated that the apartment manager informed Petitioner that H.C. fell around 4:00 a.m. and called EMS.  P. Ex. 2 at 784.  

August 15, 2018 Calls to 911 and Hospital Stay

39. On August 15, 2018, one of H.C.’s neighbors called the police when H.C. shouted through the wall and requested that the neighbor call 911 because H.C. said there were people in H.C.’s apartment who should not be there.  CMS Ex. 1 at 8; CMS Ex. 23 ¶ 2.  Allentown Police Officers Aduddell and Good responded to the call at 4:11 a.m. to H.C.’s apartment.  CMS Ex. 1 at 7-8; CMS Ex. 23 ¶ 2.  Officer Aduddell’s report recorded the following observations (CMS Ex. 1 at 8): 

Upon arrival I knocked on the door and heard a male yell to come in.  I went in and saw a male, identified as [H.C.], naked from the waste [sic] down.  I observed that there was dog feces on the floor, throughout the apartment.

I spoke with [H.C.] and asked him what was going on.  [H.C.] stated that there were two people there in the apartment and they wouldn’t leave.  As I turned on the lights, [H.C.] recognized that he was hallucinating.  I checked the rest of the apartment to ensure no one was there.  I spoke with [H.C.] regarding his recent medical history.  [H.C.] stated that he was recently diagnosed with bi-polar.  [H.C.] had a hard time getting around his apartment.  He used a walker but at one point, I had to assist him in sitting down.  Due to the nature in which [H.C.] was acting, I called for EMS to come check him.  EMS arrived on scene and evaluated him.  [H.C.] did

Page 26

not want to go to the hospital and therefore EMS did not transport him.  Comm Center was notified.

40. Officer Aduddell’s declaration confirmed that he wrote the police report of his response H.C.’s apartment on August 15, 2018.  CMS Ex. 23 ¶ 9.  Officer Aduddell stated that, when he opened the door to H.C.’s apartment, he “immediately noticed a foul odor that smelled like an outhouse.  Because the odor was so repulsive, Officer Good refused to enter the apartment and, instead, waited in the hallway.”  CMS Ex. 23 ¶ 3.  Officer Aduddell checked the kitchen, bedroom, hallway, and bathroom looking for the other people reported to be in the apartment.  Officer Aduddell “observed dog feces all over the floors in every single area of the apartment requiring me to watch where I stepped.”  CMS Ex. 23 ¶ 4.  Officer Aduddell observed H.C. to only be wearing a dirty white t-shirt.  CMS Ex. 23 ¶ 6.  Although H.C. refused transport by EMS to the hospital, Officer Aduddell assessed H.C.’s apartment as a significant risk to H.C.’s health and safety because the apartment was sufficiently unsanitary that it posed a risk for disease and infestation of rodents and insects. CMS Ex. 23 ¶ 8; see CMS Ex. 2 at 13.  As a result, Officer Aduddell referred H.C. to the Department of Aging because “it appeared to me that [H.C.] was neglected and needed significant assistance to live independently.”  CMS Ex. 23 ¶ 10. 
41. Allentown EMS was dispatched again to H.C.’s apartment on August 15, 2018, at 7:11 p.m.  Paramedic David Ober wrote a report concerning EMS’s response and indicated that H.C. was wearing only a t-shirt and was “nude and spattered with fecal matter from the waist down.  Two crisis workers are in the apartment with him.”  CMS Ex. 2 at 15.  EMS transported H.C. to a hospital after H.C. indicated he was willing to go and the Crisis personnel found H.C. unfit to be alone in his apartment due to confusion and hallucinations.  CMS Ex. 2 at 15. 
42. Paramedic Ober wrote in a declaration that he authored the August 15, 2018 report.  He also stated:  “When we arrived at [H.C.’s] apartment, he was in the bathroom.  The tile floor of the bathroom was smeared with fecal matter.  [H.C.’s] feet, including the soles of his feet, were covered in fecal matter presumably from walking in feces and smearing it on the floor.  [H.C.] himself was splattered with fecal matter and was naked from the waist down.”  CMS Ex. 22 ¶¶ 4, 10.  Paramedic Ober further stated that “[H.C.’s] apartment also emitted a foul odor of fecal matter, rotting food, and decay.  The carpet throughout the apartment was disgusting and appeared to have old food ground into it.  The floors were covered in debris and clothing.  The living area floor also contained dog feces.”  CMS Ex. 22 ¶ 5. 
43. In an August 29, 2018 letter to the state agency, a County Crisis Caseworker also described the scene at H.C.’s apartment on August 15, 2018.  When the

Page 27

caseworker arrived, H.C. “was barely standing/leaning on his rolling walker, both legs were red and swollen.  He was wearing a dirty and stained white t-shirt, and white briefs, which were soiled with feces. . . . We tried to explain our reason for visit, but [H.C.] was preoccupied trying to clean/pick up items, (dirty clothes were all over his bedroom, bed sheets had old yellowish stains, he had old/rotten food in containers by the TV and on the floor) he stated needing help to clean the house, that he had aides from [Petitioner] coming to help, however, he has to keep calling them, and they don’t want to help him clean up the place.  CI made a quick inspection of the apartment:  carpets were soiled, and dirty, he had no clean clothes in any of his drawers or baskets, (most were stained and dirty with what appeared urine or feces), team found his pre-packed meds (he had not taken today's medications, and there were a few loose packs from different dates around the apartment), also stove burners were on (when asked, [H.C.] said he thought he had turned them off), stove had left over old food sitting in pots, and the counter and whole kitchen was filthy with stains, dirty dishes, and rotten food; dentures were also found on the floor. . . . The bathroom was also filled with dirty clothes, sink was dirty.  In the hall between his bedroom and bathroom, he had a dirty disposable underpad he had been using for his dog to urinate on ([H.C.] said he struggles leaving the apartment and can’t walk the dog.”  CMS Ex. 12 at 1-2. 

44. H.C. arrived at the Emergency Department of the hospital at 7:51 p.m. on August 15, 2018.  CMS Ex. 26 at 3. 
45. When conducting a physical examination at the Emergency Department, the physician noted that H.C. was “[d]isheveled, elderly and frail, filthy, animal hair and possibly feces adhered to his feet, but alert, cooperative and oriented.”  CMS Ex. 26 at 11.  Other observations after H.C. arrived included “patient had feces caked on to both feet from walking on his dog feces” and “unkempt, has feces on his body from his dog.”  CMS Ex. at 26 at 22.  Further, the records stated:  “His legs were covered with feces.”  CMS Ex. 26 at 21.   
46. H.C.’s presenting problem, as stated in the hospital discharge summary, was “lower extremity redness and pain,” which was identified as “[l]ower extremity cellulitis [that] appears related to poor hygiene, was initiated on Ancef then transitioned to Keflex to complete 5 day course and cellulitis resolved with improving hygiene.”  CMS Ex. 26 at 2.  The hospital took X-rays of H.C.’s legs to “[r]ule out cellulitis.”  CMS Ex. 26 at 43-44. 
47. Other problems presented by H.C. which were noted by the hospital were ambulatory dysfunction and bipolar disorder.  CMS Ex. 26 at 2. 
48. H.C. was admitted to the hospital with the justification for his stay noted as “cellulitis vs PAD [peripheral artery disease].”  CMS Ex. 26 at 23.

Page 28

49. The hospital could not rule out that H.C. had vascular issues because H.C. was not able to tolerate a vascular study; however, “good profusion” was noted.  CMS Ex. 26 at 21. 
50. On August 16, 2018, a podiatric assessment at the hospital showed that H.C. had elongated toe-nails, which H.C. stated were painful and caused difficulty when putting on socks and shoes.  H.C. said that he had been unable to cut them adequately.  The podiatrist debrided the nails.  CMS Ex. 26 at 32. 
51. H.C. was discharged from the hospital to Manorcare SNF on August 21, 2018.  CMS Ex. 26 at 1, 21.
52. H.C.’s diagnoses on discharge were severe visual hallucinations, cellulitis of left and right lower extremities, and dirty living conditions.  CMS Ex. 26 at 3. 

Petitioner’s Notes Concerning H.C.’s Hospital and
SNF Stay in August and September 2018

53. An August 16, 2018 Clinic Episodic Visit note indicates that Petitioner learned that H.C. was sent to the hospital by CI personnel.  P. Ex. 2 at 780.
54. An August 17, 2018 Social Work note states that a physician at the hospital was treating cellulitis in H.C.’s legs with IV antibiotics.  P. Ex. 2 at 776. 
55. An August 20, 2018 Social Work note states that H.C.’s daughter called “as a result of information she received from [H.C.’s] apartment management regarding the status of [H.C.’s] living conditions and overall status.  She asked for [Petitioner’s] assistance in addressing the apartments concerns.”  H.C.’s daughter had been estranged from H.C. for over a decade.  P. Ex. 2 at 772. 
56. An August 22, 2018 Social Work note documented that H.C. was hospitalized from August 15-21, 2018, and was discharged to Manorcare SNF for short-term rehabilitation.  H.C.’s goal was to return to his apartment and Petitioner was his only support system.  H.C. scored on one test as having normal cognition and as having mild cognitive impairment on another.  P. Ex. 2 at 766.  
57. In an August 24, 2018 physician note, Dr. Baddick summarized his first evaluation of H.C. since the August 15, 2018 transfer to the hospital.  Dr. Baddick made the assessment that H.C. had “Severe Ambulatory Dysfunction – Walker Dependent – Remains with Instability Issues Due to Degenerative Joint Disease Deformities in B/L Knee Joints. . . . S/P [Status/Post] Hospitalization for Principal Problem Related to Social Environment – MEMBER REMAINS CONTINUOUSLY

Page 29

EDUCATED ON PERSONAL AND DOMESTIC HYGIENE HABITS IN HIS HOME.”  Further, it stated that H.C. had chronic ambulatory dysfunction and that he had pending an orthopedic surgery follow-up to consider left before right total joint arthroplasty.  P. Ex. 1 at 49-51 (capitalization in original).  Dr. Baddick “questioned him about considering a permanent placement into a SNF and he vehemently responded by saying, ‘hell no, I don't ever want to live in a nursing home and I want to only live in my home and I want to get out of here as soon as possible and back to my own home.’  [H.C.] was very cognitive and most appropriate regarding his home circumstances and the concern for his living conditions and understands everyone’s concerns and he admits it is just how he chooses to live his life . Of note, [H.C.] had diffuse food and drink stains all over his clothing at Manor Care and his room was with mild clutter and spillage of food particles at the time of my examination.”  P. Ex. 1 at 49.

58. An August 30, 2018 Social Work note indicates that Petitioner offered to pay for a professional cleaning service to clean his apartment.  H.C. agreed but did not see a need for that.  P. Ex. 2 at 741. 
59. A September 14, 2018 Social Work note documented that Merry Maids was hired to clean H.C.’s apartment; however, “[u]pon arrival to his apartment, Merry Maids staff said they would be unable to clean his apartment stating it required more extensive service than what they can provide.”  The note records that “[H.C.] said that he didn’t realize his apartment was so dirty until today, stating ‘if Merry Maids wouldn’t touch it, it MUST be bad.’  He voiced, again, that he’s lived his whole life like this and the condition of his apartment doesn’t bother him.”  P. Ex. 2 at 719. 
60. September 17, 2018 Occupational Therapy and Social Work notes indicates that H.C. fell while at the SNF on September 15, 2018, when trying to get out of bed.  H.C. continued to have normal cognition.  P. Ex. 2 at 709, 713. 
61. A September 17, 2018 Social Work note indicated that Petitioner hired Service Master to deep clean H.C.’s apartment on September 24, 2018.  Service Master estimated that it would take six to seven hours for a two or three person crew to clean H.C.’s efficiency apartment.  P. Ex. 2 at 711. 
62. A September 18, 2018 physician note signed by Dr. Baddick indicated that H.C. was scheduled to be discharged from the SNF on September 25, 2018, “tentatively pending completion of extensive cleaning services of his entire apartment.”  P. Ex. 1 at 46.
63. A September 20, 2018 Social Work note indicated that H.C. was informed of the IDT recommendation “to have his 3x/week chores visits supervised.”  P. Ex. 2 at

Page 30

690.  September 24, 2018 Social Work notes indicated that the apartment building management replaced the oven in H.C.’s apartment and Petitioner provided H.C. with a new recliner chair.  Service Master came to clean the apartment that day but was unable to complete the cleaning in one day and would return the next day.  P. Ex. 2 at 678. 

64. On September 25, 2018, ManorCare SNF conducted a Minimum Data Set assessment of H.C.  ManorCare SNF indicated that H.C. needed “Extensive assistance” (i.e., staff provide weight-bearing support) with bed mobility, transfers between surfaces, locomotion off the unit, toileting, dressing, and personal hygiene, and “Limited assistance” (i.e., non-weight-bearing assistance) for walking in room, walking in corridors, and locomotion within the unit.  CMS Ex. 10 at 211.  H.C.’s functional status for taking showers, baths, or sponge baths and transferring in and out of the tub/shower was “Total dependence.”  CMS Ex. 10 at 212.  H.C. was assessed as frequently having urinary incontinence and always having bowel incontinence.  CMS Ex. 10 at 215.  The MDS documented that H.C. had fallen two or more times while at ManorCare SNF, with no injury.  CMS Ex. 10 at 218.⁴

H.C.’s Return to his Apartment

65. A September 25, 2018 Physical Therapy note indicated that H.C. was discharged from the SNF and returned to his apartment.  “[H.C.’s] apartment had been professionally cleaned and it was looked [sic] very much improved since the last PT home visit.  Walkways were clear of debris and clutter.  [H.C.] demonstrated his ability to ambulate within the home using a rollator walker or [wheelchair].”  P. Ex. 2 at 674.  However, a Social Work note from that same date indicated that “[H.C.’s] apartment appeared cleaner than previously, but still with dirt/debri[s] on certain areas of the walls and floors.  He continues to have spaces that are cluttered with papers and personal items.”  P. Ex. 2 at 668.

Page 31

66. A September 26, 2018 Occupational Therapy note indicated that H.C.’s dog was present at the apartment and that the therapist “moved cluttered items from walkway in front of kitchen.  Picked up trash around apt on floor. . . . Kitchen counters cluttered, flooring dirty throughout apt. feces on toilet lid, dog bed in tub, dirty depends on bathroom floor.  P. Ex. 2 at 666. 
67. A Service Order note indicated that an aide completed chore cleaning of H.C.’s apartment on September 26, 2018.  CMS Ex. 7 at 2. 
68. A September 28, 2018 Social Work note stated that the apartment manager “voiced concern about [H.C.’s] dog using the potty pads in the apartment.  [The social worker] suggested reaching out to a friend or neighbor for help with walking the dog outside.  [H.C.] said that he doesn’t have anybody to ask, and he said that he will plan to put the potty pads on the bathroom floor so that it will be easier to clean up.”  P. Ex. 2 at 646. 
69. A Service Order note indicated that an aide completed chore cleaning of H.C.’s apartment on September 28, 2018.  CMS Ex. 7 at 3. 
70. A Service Order note indicated that an aide completed chore cleaning of H.C.’s apartment on October 1, 2018.  CMS Ex. 7 at 3.  An October 1, 2018 note from a supervisory visit for house chores indicated that the aide completed the tasks on the care plan with no issues.  P. Ex. 2 at 640. 
71. An October 3, 2018 Social Work note indicated that Service Master had completed cleaning of the apartment the previous day.  P. Ex. 2 at 628. 
72. An October 3, 2018 note from a supervisory visit for house chores indicated that “[t]he apartment has an odor of urine throughout.”  P. Ex. 2 at 626. 
73. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on October 3, 2018, but not wiping and cleaning his rollator.  CMS Ex. 7 at 10. 
74. An October 4, 2018 speech therapy note stated that therapist “assisted [H.C.] with changing brief in bathroom.  [H.C.] required multiple cues to perform task at hand.”  P. Ex. 2 at 622.  An October 4, 2018 nursing visit note stated that there was broken glass on the floor of the entrance to the kitchen because H.C. had gotten angry when his blender did not work and thrown it.  H.C. refused to put shoes on before going into the kitchen to avoid stepping on glass.  The nurse cleaned the glass up from the floor; however, [k]itchen floor had remains of [H.C.’s] dinner from the night before.  [Nurse] swept his kitchen floor.”  The nurse

Page 32

also cleaned dried blood off of a half-inch long cut/scab on H.C.’s right foot.  P. Ex. 2 at 620.  

75. A Service Order note indicated that an aide completed all of the chore cleaning of H.C.’s apartment on October 4, 2018.  CMS Ex. 7 at 23. 
76. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on October 5, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 10.  A supervisory visit, conducted by a social worker, concerning the house chores confirmed that the apartment had been cleaned.  P. Ex. 2 at 616.  
77. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on October 8, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 11.  A supervisory visit concerning the house chores confirmed that the apartment had been cleaned.  P. Ex. 2 at 610. 
78. An October 9, 2018 nursing visit note indicated that H.C. had dried blood on his leg due to multiple small scabbed cuts, and there was also dried blood on the kitchen floor and carpet.  P. Ex. 2 at 606. 
79. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on October 10, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 11.  A supervisory visit, conducted by a social worker, concerning the house chores confirmed that the apartment had been cleaned.  P. Ex. 2 at 604. 
80. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on October 12, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 12.  A supervisory visit concerning the house chores confirmed that the apartment had been cleaned.  P. Ex. 2 at 598. 
81. A Service Order note indicated that an aide did not complete any of the chore cleaning of H.C.’s apartment on October 15, 2018, but showed an attempt to call H.C. for access to the apartment building.  CMS Ex. 7 at 12. 
82. An October 16, 2018 Social Work note documented that the apartment manager did an inspection of H.C.’s apartment and stated that the condition was unsatisfactory.  “She stated specific areas of concern include:  an overall odor, the need for the bathroom and kitchen to be sanitized, and concern of dog feces on the floor.  [Social worker] informed [apartment manager] of the recent professional deep cleaning service of [H.C.’s] apartment and the ongoing 3x/week chore visit for cleaning.  She said that she would be sending [H.C.] a letter about the concerns of the condition of his apartment.”  P. Ex. 2 at 592.

Page 33

83. An October 17, 2018 home chore service supervisory note indicated the apartment was unkempt and “had a slight odor of urine.”  Once the chore visit was completed, the urine odor was gone.  P. Ex. 2 at 590.  A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on October 17, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 13. 
84. An October 17, 2018 nursing visit notes indicated that on October 13, 2018, H.C. had a cut on his left leg and the “surrounding area is red and inflamed.”  P. Ex. 2 at 588.  Further, on October 16, 2018, the nurse cleaned broken glass from the kitchen floor and picked up used incontinent supplies from the bathroom floor.  P. Ex. 2 at 584. 
85. An October 18, 2018 Social Work note stated:  “[Social worker] met with [H.C.] in the center today to discuss his living situation.  [Social worker] reiterated the importance of trying to maintain the apartment’s standards of his living conditions, including the proper care of his dog.  [H.C.] continues to state that he does not have anyone to help care for his dog, and that he will continue to allow the dog to urinate and defecate [sic] in the apartment.  [H.C.] voiced that he is able to clean up after the dog.  He said he has no intentions of getting rid of his dog either.”  P. Ex. 2 at 582.  
86. A Service Order note indicated that an aide completed some chore cleaning of H.C.’s apartment on October 18, 2018, but not cleaning the kitchen, wiping and cleaning counters and top of stove, and cleaning the bathroom and kitchen floors.  CMS Ex. 7 at 4. 
87. A Service Order note indicated that an aide completed the chore cleaning of H.C.’s apartment on October 19, 2018.  CMS Ex. 7 at 13. A supervisory visit, conducted by a social worker, concerning the house chores confirmed that the apartment had been cleaned.  P. Ex. 2 at 576.  
88. A Service Order note indicated that an aide completed the chore cleaning of H.C.’s apartment on October 22, 2018.  CMS Ex. 7 at 14. 
89.  An October 22, 2018 home chore service supervisory note indicated that soiled incontinence briefs were on the floor of the apartment and H.C. was told that he needed to properly dispose of them because they cause an odor in the apartment.  P. Ex. 2 at 572. 
90. A Service Order note indicated that an aide completed chore cleaning of H.C.’s apartment on October 24, 2018.  CMS Ex. 7 at 4.

Page 34

91. An October 25, 2018 Social Work note indicated that H.C.’s kitchen was cluttered and dirty.  H.C. stated he had just cleaned broken glass up from the floor.  H.C.’s coffee mug was on a stovetop burner and H.C. said that he always heated his coffee up that way and refused to use a microwave.  H.C. was told this was a fire hazard.  P. Ex. 2 at 570.  
92. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on October 26, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 14. A supervisory visit concerning the house chores confirmed that the apartment had been cleaned.  P. Ex. 2 at 564. 
93. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on October 29, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 15.  A supervisory visit concerning the house chores confirmed that apartment was in better condition.  The supervisory note indicated that “[H.C.] again had numerous soiled Depends thru out [sic] the apartment.”  P. Ex. 2 at 556. 
94. An October 30, 2018 physical therapy note documented that H.C. fell on October 24, 2018.  The note stated that “the apartment was cleaner than normal however education was provided to keep items out of his walkways.”  P. Ex. 2 at 558. 
95. An October 30, 2018 home chore service supervisory note documented “numerous soiled Depends thru out the apartment.”  P. Ex. 2 at 556. 
96. An October 31, 2018 Occupational Therapy note stated that H.C. said he fell on October 28, 2018.  P. Ex. 2 at 554.  A Social Work note from the same date recorded that “the kitchen was cluttered and dirty.”  Further, the social worked noticed that a pair of H.C.’s shorts appeared to be burned and H.C. said that they had gotten wet and he dried them in the oven.  The social worker informed H.C. that doing that was a fire risk.  P. Ex. 2 at 552; see P. Ex. 2 at 544. 
97. A home chore service supervisory note from October 31, 2018, noted food spilled on the kitchen floor and counters.  P. Ex. 2 at 548.   A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on October 31, 2018, but not emptying trash or wiping and cleaning rollator.  CMS Ex. 7 at 15. 
98. A Service Order note indicated that an aide completed some chore cleaning of H.C.’s apartment on November 1, 2018, but not cleaning the kitchen, wiping and cleaning counters and top of stove, wiping and cleaning rollator, emptying trash, cleaning the bathroom and kitchen floors, and cleaning the shower, toilet, and basin.  CMS Ex. 7 at 5.

Page 35

99. A Service Order note indicated that an aide completed the chore cleaning of H.C.’s apartment on November 2, 2018.  CMS Ex. 7 at 16. 
100. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on November 5, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 16. 
101. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on November 7, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 17. 
102. A Service Order note indicated that an aide completed chore cleaning of H.C.’s apartment on November 9, 2018.  CMS Ex. 7 at 5. 
103. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on November 12, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 17. 
104. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on November 14, 2018, but not emptying trash and cleaning rollator.  CMS Ex. 7 at 18.  
105. A Service Order note indicated that an aide did not complete any chore cleaning of H.C.’s apartment on November 16, 2018.  The aide indicated that she did not try calling the apartment building or H.C. for access.  CMS Ex. 7 at 18. 
106. A November 19, 2018 home chore note stated:  “The apartment was malodorus and unkept. There were soiled Depends on the floor in the apartment in various places.”  P. Ex. 2 at 494.  “Living area cluttered/unclean” was identified as a safety issue.  P. Ex. 2 at 492.  
107. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on November 19, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 19. 
108. A November 19, 2018 Six-Month Assessment and Post Fall Assessment of H.C. by Dr. Baddick indicated that H.C. had “Severe Ambulatory Dysfunction – Walker Dependent – Remains with Instability Issues Due to Degenerative Joint Disease Deformities in B/L Knee Joints.  History for Principle Problem Related to Social Environment Hygiene Issues. – MEMBER REMAINS CONTINUOUSLY EDUCATED ON PERSONAL AND DOMESTIC HYGIENE HABITS IN HIS HOME.”  P. Ex. 1 at 35 (capitalization in original).  Further, it stated that H.C. had

Page 36

chronic ambulatory dysfunction “and that he had pending an orthopedic surgery followup to consider left before right total joint arthroplasty.  P. Ex. 1 at 35.

109. A Service Order note indicated that an aide completed all chore cleaning of H.C.’s apartment on November 21, 2018.  CMS Ex. 7 at 6. 
110. A November 21, 2018 Occupational Therapy note indicated that H.C. fell on that date when his knee buckled.  P. Ex. 2 at 483.  Also, on November 21, 2018, one of Petitioner’s nurses conducted a six-month assessment of H.C.  P. Ex. 2 at 484-89.  The assessment indicated that H.C. required assistance with light housekeeping (P. Ex. 2 at 487), had fallen five or more times in the past 90 days, (P. Ex. 2 at 484) and had a skin tear on his right shin due to a fall.  P. Ex. 2 at 486.  The nursing goal was for H.C. to be safe without falls, hospitalizations, or ER visits.  P. Ex. 2 at 488.  
111. A November 23, 2018 Social Work note indicated that H.C. reported two falls on November 22, 2018.  P. Ex. 2 at 473. 
112. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on November 24, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 19. 
113. A November 26, 2018 nursing visit note indicated that the “[u]rinal spilled on floor.  Assisted to clean up area of clutter and urine spill.”  P. Ex. 2 at 471. 
114. A November 26, 2018 nursing visit note stated:  “Clothing was soiled and dog feces was present on floor in hallway.  Instructed to keep pathways clear and clean.  Encouraged to find someone to assist in caring for his dog.”  P. Ex. 2 at 467. 
115. A Service Order note indicated that an aide completed some chore cleaning of H.C.’s apartment on November 26, 2018, but not wiping and cleaning rollator or emptying the trash.  CMS Ex. 7 at 20. 
116. A November 27, 2018 Physical Therapy note documented that H.C. had fallen on November 24, 2018, due to weakness in his legs as a result of his chronic knee pain and dysfunction that affects his ability to ambulate longer distances or stand for prolonged periods.  H.C. reported that aides have been showing up to assist him with cleaning.  H.C. was encouraged to use his wheelchair; however, he preferred walking.  P. Ex. 2 at 465.

Page 37

117. A November 28, 2018 Occupational Therapy note indicates that H.C. had dried blood inside his right ear and contusion on his right temple.  H.C. did not recall how he injured his head.  P. Ex. 2 at 463. 
118. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on November 28, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 20. 
119. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on November 30, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 21. 
120. December 3, 2018 Social Work notes documented that H.C. fell on November 29, 2018.  H.C. was assessed to have normal cognition.  P. Ex. 2 at 459.  Further, it was noted that there were several incontinent briefs on the floor of the apartment, but H.C. said they were unused and would not allow the social worker to pick them up.  P. Ex. 2 at 457.  Also the social worker conducted a care plan review during which the social worker told H.C. that the apartment management was still concerned with H.C.’s overall health and living conditions.  P. Ex. 2 at 456. 
121. A Service Order note indicated that an aide completed some chore cleaning of H.C.’s apartment on December 3, 2018, but not emptying trash or wiping and cleaning rollator.  CMS Ex. 7 at 21. 
122. A December 4, 2018 Social Work note indicated the social worker attempted to locate volunteer assistance for H.C.’s dog.  P. Ex. 2 at 452. 
123. A December 5, 2018 Social Work note indicated that the social worker passed on a message from H.C. to the apartment management that Petitioner had recently paid for a deep clean of his apartment and that he was satisfied with Petitioner’s services, but that he did not think he could “meet the high standards of his apartment management.”  P. Ex. 2 at 448. 
124. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on December 5, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 21. 
125.  A December 6, 2018 Occupational Therapy note documented that H.C. arrived at Petitioner’s center with soiled pants and an unclean shirt.  H.C. refused assistance to change his clothes and wash up.  P. Ex. 2 at 444.

Page 38

126. A Service Order note indicated that an aide wiped and cleaned H.C.’s rollator on December 6, 2018, at 7:43 a.m.  CMS Ex. 7 at 7.  Another Service Order note indicated that an aide completed all of the cleaning of H.C.’s apartment on December 6, 2018, at 5:04 p.m.  CMS Ex. 7 at 22. 

Petitioner’s notes and Police/EMS reports concerning
incidents from December 2018 through April 2019

127. A December 7, 2018 Physical Therapy note documented that H.C. fell on December 7, 2018, due to his “[l]egs giving out.”  H.C. did not want to use his wheelchair.  P. Ex. 2 at 440. 
128. In a December 7, 2018 Allentown Police Department report, Officer Snyder stated that “Life Alert activation at [H.C.’s] address.  Upon arrival Officers located [H.C.] down on the floor near his bathroom.  Officers picked [H.C.] up and put him in his chair.  [H.C.] was very weak and had significant issues moving around.  [H.C.] refused multiple requests to go to the hospital.  The apartment is in disarray and has a foul odor.  Forward to County Aging.”  CMS Ex. 1 at 27-28.  In a declaration Officer Snyder confirmed that he wrote this report and confirmed its contents.  CMS Ex. 30 ¶¶ 5, 6. 
129. In a December 8, 2018 Allentown Police Department report, Officer Snyder stated that he was called to H.C.’s apartment because H.C. activated his Life Alert device.  “Upon exiting the elevator Officers could smell an odor that is known to eminate [sic] from [H.C.’s] apartment.  [H.C.] does not lock his door, so Officers entered the apartment and found [H.C.] down on his knees near his kitchen.  [H.C.,] is very weak and had significant issues moving around.  [H.C.] got himself up off his knees and was assisted to his bed.  [H.C.] refused multiple requests to go to the hospital.  The apartment is in disarray and there was dog feces on the floor near the bathroom.”  CMS Ex. 1 at 11-12.  In a declaration Officer Snyder confirmed that he wrote this report and confirmed its contents.  CMS Ex. 30 ¶¶ 5, 7. 
130. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on December 10, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 22. 
131. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on December 12, 2018, but not emptying trash.  CMS Ex. 7 at 7. 
132. A December 14, 2018 Social Work note documented that one of H.C.’s oven mitts caught on fire after falling into the oven.  The apartment management

Page 39

discussed with the social worker H.C.’s home safety and living conditions and intended to evict H.C. over H.C.’s living environment and lease violations.  H.C. indicated to the social worker that he refused to have his oven turned off because he would not use a microwave.  The social worker noticed “clutter, soiled briefs, and dirty dishes throughout the apartment,” which H.C. allowed the social worker to clean up.  P. Ex. 2 at 424. 

133. A Service Order note indicated that an aide completed the chore cleaning of H.C.’s apartment on December 14, 2018.  CMS Ex. 7 at 7. 
134. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on December 17, 2018, but not emptying trash.  CMS Ex. 7 at 8. 
135. A Service Order note indicated that an aide completed some chore cleaning of H.C.’s apartment on December 19, 2018, but not emptying trash, vacuuming carpeted areas, wiping, and cleaning the rollator, cleaning the toilet, tub, basin and bathroom floor, and the refrigerator.  CMS Ex. 7 at 8. 
136. A December 19, 2018 Social Work note documented that the apartment management placed an eviction notice on H.C.’s door.  P. Ex. 2 at 414. 
137. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment on December 20, 2018, at 6:55 a.m., but not vacuuming carpeted areas.  CMS Ex. 7 at 8. 
138. A December 20, 2018 Allentown EMS report stated that paramedics were dispatched to H.C.’s apartment at 9:27 a.m.  Paramedic Trexler wrote a report of the incident, which indicated that EMS found H.C. in the lobby of his apartment building with a large hematoma in the center of his forehead.  H.C. refused to allow EMS to assess him.  CMS Ex. 2 at 9-10. 
139. December 20, 2018 Physical Therapy and Social Work notes indicated that “the kitchen [was] cluttered with dishes and food throughout the floors and counter” and that H.C. had two falls on December 18, 2018, resulting in bruising to his face, and two falls on December 20, 2018.  H.C. said the falls are due to his knee problems.  H.C. refused to use his wheelchair.  P. Ex. 2 at 404, 408, 410.  
140. A Service Order note indicated that an aide completed most chore cleaning of H.C.’s apartment at 5:46 p.m. on December 21, 2018, but not wiping and cleaning rollator.  CMS Ex. 7 at 9.

Page 40

141. A December 21, 2018 Social Work note indicated that there was “food splattered on the walls, kitchen counters, and stovetop.  [H.C.] allowed [social worker] to assist with general clean up within the kitchen.  [Social worker] provided [H.C.] with a fire extinguisher, and encouraged him to keep it within a readily available space in his kitchen.”  The social worker also told H.C. that the IDT recommended temporary SNF placement “until he has a follow up for his knees”; however, H.C. refused that suggestion.  H.C. stated that he wanted to remain in his apartment and suggested “increased homecare services if needed (although it’s noted that he has a history of non-compliance with allowing home visits).”  P. Ex. 2 at 398. 
142. In a December 21, 2018 Allentown Police Department report, Officer Tanner stated that he had been dispatched to H.C.’s apartment at 8:53 p.m. based on a “medical panic alarm.”  “Arrived on location with EMS and contact was made [with H.C.].  He activated his medical panic due to falling in his kitchen.  [H.C.] refused medical care at the time of contact and did not go to the hospital.  When making contact with [H.C.], the living conditions of his apartment were terrible.  The apartment was dirty and dog feces on the floor and it seems [H.C.] is unable to take care of himself.  Requesting that the department of aging do a follow up at this address.”  CMS Ex. 1 at 13-14.  Officer Tanner provided a declaration that confirmed this report (CMS Ex. 31 ¶ 6) and added that EMS found H.C. lying on the floor because he had fallen.  CMS Ex. 31 ¶ 3.  Officer Tanner also stated that “[w]hen I entered [H.C.’s] apartment, an overwhelming odor of dog feces hit me.  I also immediately noticed dog feces all over the floor.  By my observation, [H.C.’s] living conditions were deplorable.”  CMS Ex. 31 ¶ 6. 
143. A December 24, 2018 Clinic Episodic Visit note indicated that H.C. pushed his Lifeline button because he fell and EMS was sent to assist him.  P. Ex. 2 at 396. 
144. A December 26, 2018 nurse visit note (completed at 4:16 p.m.) indicated that H.C. fell on both December 22 and 24, 2018, and pushed Lifeline each time.  H.C. had a “black eye” around his right eye and did not know which fall caused that.  Member's home was disorganized, chuck pads were on the floor in the hallway to the bathroom soaked with urine and a pile of dog feces. Member had a used chuck pad on his bed [nurse] went to throw it away and [H.C.] stated “No, I’m drying it out.”  P. Ex. 2 at 386. 
145. In December 26, 2018 Social Work notes, the social worker informed H.C. that it arranged for H.C. to stay at ManorCare SNF.  P. Ex. 2 at 394.  In another December 26, 2018 Social Work note, the social worker discussed with H.C. his functional decline and increased falls at home.  H.C. indicated that his knees continued to give out.  Although initially agreeable, H.C. decided he did not want

Page 41

to go to the SNF but indicated Petitioner could provide increased therapy or other services.  “[Social worker] also had a discussion with [H.C.] to make him aware of his right to voluntarily disenroll from [Petitioner’s] program, if he felt there were other services that could better meet his needs.”  P. Ex. 2 at 382.

146. A December 26, 2018 Home Care Review note stated:  “The apartment had an odor of urine due to [H.C.’s] bed having disposable soiled chucks on it and numerous soiled depends on the floor throughout the apartment.  The apartment was untidy with papers scattered on the kitchen counter, dirty clothing and soiled bed linens scattered in the living room and bathroom area.  The kitchen had food spilled on the counters, the top of the stove had food splattered on it and the kitchen and bathroom floors needed to be swept and mopped. . . . [H.C.] allowed [home care reviewer] to gather the soiled depends and debris from the floor and place them in the trash.  [Home care reviewer] removed the trash from [H.C.’s] apartment and disposed of it properly.  [Home care reviewer] gathered dirty clothing and put it in [H.C.’s] laundry basket.  [Home care reviewer] assisted [H.C.] in putting on his shorts with his suspenders to hold up the shorts as [H.C.] was sitting in his recliner wearing a shirt and a disposable brief.  [Home care reviewer] went over the importance of keeping clear pathways and debris off the floors as this creates tripping hazard in the home and [H.C.] verbalized understanding.  [Home care reviewer] checked the kitchen and there was a limited amount of food in the refrigerator and cabinets.  The refrigerator and oven are in need of a cleaning.  [Home care reviewer] will follow up with [H.C.] and conduct supervisory visits during scheduled aide chore visits to ensure [H.C.] is letting aides complete care plan tasks, [H.C.] was in agreement with the home care schedule that is currently in place.  [Home care reviewer] contacted the contracted provider that is in place to complete the home care chores visits and there have not been any notes or exceptions submitted by the aides completing the visits 3x a week on Monday, Wednesday and Friday.  [Home care reviewer] will monitor the home care services in place to ensure [H.C.] will remain living in the community independently.”  P. Ex. 2 at 376. 
147. A Service Order note indicated that an aide completed all chore cleaning of H.C.’s apartment on December 26, 2018, at 3:14 p.m.  CMS Ex. 7 at 9. 
148. A December 27, 2018 Social Work note indicated that the social worker spoke with Adult Protective Services, which suggested a review of H.C’s care plan to increase services.  Further, “[i]t was explained that SNF admission would be suggested, due to [H.C.’s] increased falls and functional decline at home.”  P. Ex. 2 at 368.  In her declaration, the social worker stated “the [IDT] offered H.C. placement at a [SNF] at least 6 times between the summer of 2018 and March 2019; one time H.C. agreed to placement, then backed out of it after I had already begun to make arrangements for him.”  P. Ex. 10 ¶ 20. 

Page 42

149. A December 27, 2018 Social Work note indicated that Petitioner proposed to increase his therapy at Petitioner’s Center to three times per week; however, H.C. stated he would only go one day per week, although he later agreed to two days per week.  P. Ex. 2 at 352, 362. 
150. A January 2, 2019 Home Care Review supervisor note indicated that an aide arrived for the chore visit at H.C.’s apartment; however, the home care reviewer and the aide needed to gain access into the building through maintenance staff.  “Upon entry into [H.C.’s] apartment the kitchen had food on the floor and counter tops.  Living room area was untidy with papers, clothing and empty food containers on the floor.  Bathroom toilet and basin were in need of cleaning.  There were soiled [D]epends and disposable bed pads on the floor in the living room and bathroom areas.”  The apartment was cleaned and trash taken out and disposed of properly.  P. Ex. 2 at 346. 
151. A January 9, 2019 Social Work note stated that Petitioner scheduled a Service Master deep cleaning for the apartment on January 11, 2019, which would take the entire day.  P. Ex. 2 at 306. 
152. A January 9, 2019 Home Care Review supervisory note indicated that an  aide arrived to complete a schedule chore visit.  “There were soiled depends on the floor in the apartment in multiple places.  The kitchen floor, counters and stove top were in poor condition.  The floor in the living room had papers and debris scattered all over and the bathroom needed to be cleaned as well.”  A representative of the “Office of Aging” visited H.C. during the cleaning, who told H.C. he needed to keep the apartment cleaner and needed to dispose of Depends properly.  P. Ex. 2 at 304. 
153. In a January 9, 2019 letter, Lehigh County’s Aging and Adult Services requested that Petitioner provide more than three personal care hours (i.e., apartment cleaning) for H.C. each week.  Further, the letter stated that H.C.’s apartment needed a “‘heavy” cleaning for H.C. to avoid eviction.  CMS Ex. 3 at 1. 
154. Petitioner responded to the January 9 letter from the County’s Aging and Adult Services in a letter faxed on January 10, 2019, which stated that it had scheduled a cleaning of H.C.’s apartment on January 11, 2019.  Petitioner indicated that it would continue to provide 3 hours of chore visits per week.  CMS Ex. 3 at 3-4.  Petitioner did increase H.C.’s Center visits to twice a week, which included increased personal care visits to get him ready .  CMS Ex. 3 at 4; CMS Ex. 3 at 14 (H.C.’s care plan, printed on January 9, 2019, reflected the 3 chore hours per week and the twice weekly personal care visits).

Page 43

155. A January 11, 2019 Social Work note indicated that, H.C. and a social worker were present when Service Master was cleaning the apartment; however, the social worker only arrived as Service Master was completing the cleaning.  P. Ex. 2 at 294. 
156. A January 14, 2019 Chore Service note indicated that H.C.’s apartment was untidy.  “There were papers and clothing all over the floor in the living room, hallway.  The kitchen counters and floor had food spilled on them and there where [sic] soiled [D]epends on the floor throughout the apartment.  [House cleaning aide] gathered clothing and put it in a laundry basket.  Picked up papers and placed them on [H.C.’s] computer desk.  Wiped kitchen counters an[d] stove top.  Cleaned kitchen floor.”  P. Ex. 2 at 289. 
157. In a January 15, 2019 Allentown Police Department report, Officer Beky stated:  “I responded to assist EMS with a medical alert alarm.  Upon arrival we located 81 year old [H.C.] in the kitchen of the apartment.  He was on the floor and unable to get up.  EMS assisted him into his wheelchair. . . . I noted that the apartment was extremely dirty.  There was a urine soaked bed sheet on the floor and various other clutter.  The stove burners had been left on either in an attempt to provide heat or as an oversight.  EMS stated that they are frequently at the apartment because [H.C.] falls and can not get back up.  [H.C.] was oriented to time and space and there was no legal reason to force him to go to the hospital.  [H.C.’s] ability to properly care from [sic] himself is questionable.”  CMS Ex. 1 at 15-16.  In a declaration, Officer Beky confirmed the statements he made in his report and added that the apartment “had a foul odor” and, in the kitchen, “food [was] laying out on the counter tops as well as dirty pots and pans.”  CMS Ex. 25 at 1. 
158. A January 15, 2019 Home Care Review note stated that the home care reviewer “met with [H.C.] in his apartment today 1/15/19 at 1:20pm along with [social worker] and [police officer] to speak to [H.C.] about a short term stay at SNF.  Upon arrival to the apartment [H.C.] was in the living room on his knees not wear any incontinence products or pants.  [Home care reviewer] assisted [H.C.] with getting up and assisted him with dressing.  [H.C.] was talking but appeared more confused and was not able to focus.  The apartment was unclean with clothing, papers and debris throughout the apartment and the kitchen had food spilled on the floors, counters, refrigerator and the stove top had been taken apart.”  P. Ex. 2 at 286. 
159. January 16, 2019 nursing visit notes indicated that, on January 14, 2019,  H.C. was having hallucinations of people in his apartment.  H.C. wanted to boil water; however, the nurse advised against it because the stove was unclean and

Page 44

H.C. had removed the burners.  P. Ex. 2 at 278.  A January 16, 2019 Social Work note indicated that H.C. was a resident at ManorCare SNF.  P. Ex. 2 at 272. 

160. A January 18, 2019 Physical Therapist note indicated that H.C. fell at the SNF while trying to transfer from the bed to a wheelchair in order to go to the bathroom unassisted.  P. Ex. 2 at 264. 
161. A January 29, 2019 nurse visit note indicated that H.C. “signed himself out of the SNF AMA [against medical advice]” on January 28, 2019.  P. Ex. 2 at 221; P. Ex. 10 ¶ 21. 
162. A January 29, 2019 Home Care Review note stated:  “Upon entering the apartment [home care reviewer] noticed a plastic lid to a microwaveable meal had melted onto one of the electric burners on the stove and there was dog food spilled on the kitchen floor.  [Home care reviewer] cleaned up kitchen counters and removed plastic lid that was melted onto the burner of the stove and also cleaned up the dog food that was spilled. [Home care reviewer] provided re-education to H.C. regarding not to put items on the burner that may cause a fire.  The living room had debris and soiled depends on the floor.  [Home care reviewer] cleaned up living room floor and disposed of soiled depends.  P. Ex. 2 at 215.  
163. A January 31, 2019 Physical Therapy note stated that H.C. fell on January 29, 2019 and January 31, 2019.  P. Ex. 2 at 209. 
164. A January 31, 2019 Social Work note indicated that H.C. missed an appointment with the dog walking service.  The social worker “reminded him of the concerns regarding the dog urinating and defacating [sic] in the apartment, and he voiced understanding.”  P. Ex. 2 at 203. 
165. A February 4, 2019 Physical Therapy note indicated that H.C. fell on February 1, 2019.  P. Ex. 2 at 195. 
166. In a February 8, 2019 Allentown Police Department report, Officer Diaz-Gonzalez stated that police and EMS arrived at H.C.’s apartment and H.C. appeared to be okay.  Officer Snyder added a supplemental statement to the report that “[H.C.] routinely falls and can not get up.  [H.C.] is living in filth and can not properly care for himself.”  CMS Ex. 1 at 21-22.  In a declaration Officer Snyder confirmed that he wrote the supplemental statement in this report.  CMS Ex. 30 ¶ 8. 
167. A February 10, 2019 Allentown EMS report, authored by Paramedic Tripp, stated:  Dispatched to [H.C.’s apartment] for a medical alert alarm with no response.  Arrived on location to find an elderly male lying face down in the

Page 45

kitchen covered in a clear foul smelling liquid a [sic] discolored salad . . . . The patient was only wearing a dirty t-shirt and a soiled adult diaper.  The patients residence was dirty and had decaying food lunch meat and olives on the counter along with large jar of mayonnaise open on the counter that was discolored. . . . The patient states that he fell and just need [sic] assistance to get up.  Once the patient was assisted to his feet he was unsteady and couldn’t stand up straight nor walk the 2 feet to his stretcher.  Due to the nature of the patients living conditions and the patients inability to . . . ambulate around the apartment it was recommended that the patient go to the hospital for evaluation.”  CMS Ex. 2 at 6.  Paramedic Tripp also wrote a declaration that confirmed the substance of this report and added that the apartment smelled of a foul odor, was filthy, and looked as though it had never been cleaned before.  CMS Ex. 21 ¶¶ 3, 8.  In a February 10, 2019 Allentown Police Department report about the same incident, Officer Cashatt stated:  “I, Ofc Cashatt, was dispatched to [H.C.’s] address for a medical alert alarm.  We arrived on scene, made entry, and found the combative male on the ground.  The elderly male was argumentive [sic] about his welfare, along with the welfare of the dog, and the male was transported to the local hospital.  The male had soiled himself, could not stand on his own feet, and the apartment reeked of feces and urine with no dog food seen.”  CMS Ex. 1 at 20.  In a declaration, Officer Cashatt verified the statements he made in his report (CMS Ex. 24 ¶ 8) and added additional details about the February 10 situation.  He stated that he, another officer, and EMS took the elevator to the second floor and “[w]hen the elevator door opened, I immediately smelled an extraordinary stench of feces, urine, and body odor.  The smell was extreme even when compared to what I have experienced in my fourteen years as an officer . . . it was clear that the extraordinary stench was coming from [H.C.’s] apartment.  CMS Ex. 24 ¶ 3.  Officer Cashatt also stated that “[H.C.’s] apartment was unsanitary and it appeared as if it had not been cleaned in weeks.  Specifically, I observed there were approximately four square shaped disposable pads placed on the floor, each of which was covered in urine and dog feces.  There was also so much feces scattered about on other areas of the floor that I had to watch where I walked.  Additionally, I observed that the kitchen counters were full of stacks of dirty dishes that smelled foul as well as scraps of food and other filth.”  CMS Ex. 24 ¶ 6.  Officer Jarrouj was with Officer Cashatt and wrote a declaration that provided information about the incident in question that was consistent with Officer Cashatt’s report and declaration.  CMS Ex. 29.  

168. A February 11, 2019 Social Work note described a conversation with staff from the hospital emergency room, which indicated that H.C. would not be admitted.  The case manager stated the report was that he had a fall at home that required EMS assist, and EMS insisted on taking [H.C.] to the hospital due to the condition of his living environment . . . there is no medical indication for admission.  P. Ex. 2 at 163. 

Page 46

169. A February 15, 2019 Social Work note documented that H.C.’s apartment management would not renew his lease because he had a fire in his kitchen that day.  The social worker offered placement at an SNF but H.C. declined.  H.C. indicated an interest in going to an assisted living facility.  P. Ex. 2 at 135. 
170. A February 18, 2019 Social Work note stated that H.C. no longer had an interest in assisted living and instead wanted a knee replacement because it would give him independence again.  P. Ex. 2 at 119. 
171. H.C. had a successful left knee total joint arthroplasty on March 4, 2019.  P. Ex. 1 at 8.  H.C. was transferred to ManorCare SNF on March 6, 2019.  P. Ex. 2 at 54. 
172. A March 11, 2019 Social Work note indicated that Service Master was scheduled to perform a deep clean of H.C.’s apartment on March 18, 2019.  P. Ex. 2 at 42. 
173. In a March 15, 2019 Physician Note, Dr. Baddick summarized a discussion he held with H.C., representatives from his apartment building, Petitioner’s representative, legal advocates, and SNF staff on March 15, 2019, about H.C.’s return to his apartment.  Dr. Baddick stated that the discussion included “developing aspects of his domestic care to assist with meal planning and domestic assistance to maintain safety to [H.C.] as he has had numerous at risk events cooking his food and maintain a safe and clean home environment.”  P. Ex. 1 at 15. 
174.  In March 2019, a Social Work note indicated that the apartment building would not replace carpets/the floor unless H.C. got rid of his dog.  P. Ex. 2 at 2, 6. 
175. According to the social worker’s declaration, the apartment management renewed H.C.’s lease in April 2019, stating that the cleanliness issues and fire risk issues had been resolved.  P. Ex. 10 Para. 29. 
176. By September 2019, H.C. was still at the SNF related to his knee surgery and H.C. voluntarily disenrolled from Petitioner’s PACE program effective September 30, 2019.  P. Ex. 3 ¶ 35; P. Ex. 10 ¶¶ 27-28.

Page 47

VII. Disputed Material Facts

Diagnosis of Cellulitis

As indicated above, H.C. was diagnosed with cellulitis of his lower extremities during his emergency room visit and hospital stay that commenced on August 15, 2018.  However, Petitioner submitted declarations from two physicians stating that H.C.’s legs appeared red in color due to a vascular problem and not cellulitis.  Satish Muluk, M.D., a board-certified surgeon with an added qualification in vascular surgery, stated in his declaration that “[t]o a reasonable degree of medical certainty, H.C. did not have cellulitis on 8/15/18.”  P. Ex. 8 at 1; P. Ex. 9 at 4.  “My opinion is that [H.C.] did not have cellulitis,  Instead, his presentation was more likely related to a combination of venous insufficiency of his legs, volume overload, and peripheral arterial disease.”  P. Ex. 8 at 3. 

Dr. Baddick, a primary care physician who had been involved in H.C’s case for three years (P. Ex. 6 at 1; P. Ex. 7 at 7-8), stated in his declaration that: 

H.C. did not have cellulitis on August 15, 2018.  [H.C.’s] living conditions did not result in him suffering cellulitis on August 15, 2018.  [H.C.] has a chronic lower extremity vascular condition that fluctuates and results in chronic redness, warmth and mild edema to varying degrees to his bilateral lower extremities.  This chronic condition was misinterpreted on admission [to the hospital] as cellulitis. 

P. Ex. 6 at 3 (internal citations omitted); see P. Ex. 6 at 5-6. 

Therefore, I accept for purposes of summary judgment that H.C. did not have cellulitis of his lower extremities on August 15, 2018, or during his stay at the hospital. 

H.C.’s Psychological Need for a Messy Environment

Dr. Baddick assessed H.C.’s mental state regarding his living conditions as follows:

Participant has a psychological condition that makes him feel safe in his living conditions when it is not neat.  This occurred not only in his home, but also when he was residing at a rehab/nursing home in 2018.  Participant’s behaviors and habits may not appear “normal” to society, but they are normal to him.  Participant even stated that it does not matter how much cleaning service he has, his apartment will become messy again as soon as the aides provided by [Petitioner]

Page 48

leave his apartment.  He also stated that he makes messes in his apartment; that is how he always lived and it does not bother him.  In my opinion, Participant’s hygiene and cleaning problems are not correctable or resolvable, given Participant’s mental and physical conditions.

P. Ex. 6 at 1-2.  

In the report attached to his declaration, Dr. Baddick stated that he would address H.C.’s “history of medical conditions and how they manifested and continue to manifest a domestic existence that must not be discounted as pathological.”  CMS Ex. 6 at 4.  Dr. Baddick also stated the following in the report attached to his declaration: 

H.C. is a very mentally competent and cognitively appropriate participant in [Petitioner’s program].  He is an educated man who lives and has lived according to his own personal standards of care and cleanliness his entire adult life.  His mental health diagnosis of Bi-Polar Disorder is perhaps a part of his domestic decisions of existence.  Furthermore, his Bi-Polar Disorder is a very dominating aspect of H.C.’s personality and it has prevented [Petitioner] from fulfilling domestic oversight in accomplishing order, cleanliness and decreasing his risks from in home elements CMS has concluded were a failure of [Petitioner’s] IDT and home health aides assigned to H.C.’s homecare chore service’s needs.  [H.C.] has completely directed [Petitioner’s] employee and agents . . . to what specific aspects of his home care chores services he will allow to be [] completed and on what schedule and time frame.

P. Ex. 6 at 6.  Finally, Dr. Baddick stated: 

It is my absolute medical opinion, that H.C.’s behaviors, existence and the manner in which he elects to live his life allows and provides him with a level of security and the level of comfort we all seek in our own home.  It is also my absolute medical opinion that [Petitioner] and its affiliates have done and gone far and beyond its duty to insure the health, safety, and welfare of H.C. regarding his medical care, the stability of his mental health and his domestic existence are as appropriate and as safe as he will allow, and they have been monitored and effectively corrected to the only level our [H.C.] will allow.

Page 49

P. Ex. 6 at 7. 

CMS’s medical expert disputes Dr. Baddick’s opinion.  CMS Ex. 37 ¶ 50.  However, for purposes of summary judgment, I will accept that H.C. has a psychological condition that causes him to prefer a messy household rather than a neat one, and that he has a higher tolerance for a lack of cleanliness than the average person.  However, the question as to whether Petitioner provided sufficient home cleaning services in this case is a question that is reserved to the ALJ.  Therefore, I do not defer to Dr. Baddick’s view as to that issue. 

H.C.’s Testimony about Petitioner’s services

Petitioner submitted a declaration from H.C.  Petitioner believes that this declaration alone is sufficient for it to defeat summary judgment.  Petitioner is incorrect.  H.C’s declaration is insufficiently detailed.  However, I will consider the declaration in its most favorable light to Petitioner. 

H.C. stated that “[Petitioner] regularly cleaned my apartment.”  P. Ex. 3 ¶ 6.  For purposes of summary judgment, I accept that Petitioner generally regularly cleaned H.C’s apartment.  However, as to whether at any given time the apartment had been cleaned and to what extent it had been cleaned will turn on more than this single statement. 

H.C. stated that “[Petitioner] has worked with me to improve my living conditions with my input.”  P. Ex. 3 ¶ 8.  For purposes of summary judgment, I accept that Petitioner’s staff generally acted to improve H.C.’s living conditions.  However, as to whether Petitioner acted sufficiently to avoid a regulatory violation will turn on more than this statement. 

H.C. stated that “[a]s soon as [Petitioner’s] aides leave my apartment, I make myself comfortable in my apartment.”  P. Ex. 3 ¶ 9.  This statement is extremely ambiguous and, even considering it in a light most favorable to Petitioner, simply means H.C. made himself physically at ease.  

H.C. stated that “[Petitioner] provided additional services when needed” and “[Petitioner] regularly offered me additional services, which I did or did not take.”  P. Ex. 3 ¶¶ 11-12.  This statement is also ambiguous as to which additional services were offered or provided.  There is no doubt Petitioner did offer H.C. additional services; however, this statement lacks clarity as to whether the services H.C. is referring to are relevant to this case. 

H.C. stated that “[o]n some days when I was scheduled to have [Petitioner] clean my apartment, I would not let the cleaning aides into the apartment because I did not want

Page 50

them in the apartment when they arrived.”  P. Ex. 3 ¶ 13.  I accept for purposes of summary judgement that H.C. occasionally did not let cleaning staff into his apartment. 

H.C. stated the following:  “I am told [CMS] believe[s] cleaning records from August 15, December 20, and December 27, 2018 are false because my apartment was in dis-order soon after cleaning had taken place.  The condition of my apartment on any day is consistent with my habit to make myself comfortable in my apartment as soon as [Petitioner’s] aides leave my apartment.  My choice to make myself comfortable in my apartment does not mean [Petitioner] failed to clean my apartment.”  P. Ex. 3 ¶¶ 14-16.  Again, H.C.’s reference to making himself “comfortable” is extremely unclear in the circumstances of this case.  Even given the context of this statement, it is sufficiently ambiguous that it is of little value. 

H.C. stated that “[i]n August of 2018, I was not injured by my living conditions and my living conditions did not put me in danger.”  P. Ex. 3 ¶ 27.  To the extent that this statement relates to the hospital’s diagnosis in August 2018 that H.C. had cellulitis, as mentioned above, for purposes of summary judgment, I will accept that H.C. did not have cellulitis.  However, as to whether H.C.’s living conditions may have subjected him to potential adverse effects, H.C. did not have the requisite qualifications to render such an opinion.  Therefore, his testimony to this point does not create a dispute of material fact. 

VIII.  Undisputed Expert Testimony

CMS’s Expert Peter Boling, M.D.’s opinion that H.C.’s living
conditions were substantially likely to adversely affect him was
not disputed by Petitioner’s evidence or expert witnesses.  

CMS submitted the declaration of Peter Boling, M.D., as an expert witness in this case.  Dr. Boling has 38 years of clinical experience, is Board-Certified in Internal Medicine with a Certificate of Added Qualification in Geriatrics, and has written books, chapters in books, and scholarly articles on geriatric care.  CMS Ex. 37 ¶ 4-5.   In 2012, Dr. Boling became the Chair of the Division of Geriatric Medicine at the Virginia Commonwealth University, a division that he helped to create.  CMS Ex. 37 ¶ 6.  Through the Virginia Commonwealth University’s Geriatrics program, Dr. Boling gained direct experience with the PACE program because the Riverside Health System contracted with the Geriatrics program to provide medical directors.  Dr. Boling oversaw the medical director services delivered through the PACE program.  CMS Ex. 37 ¶ 7.  Petitioner did not object to Dr. Boling’s status as an expert or to his declaration.

Page 51

Based on his review of CMS’s exhibits,⁵ Dr. Boling concluded that H.C. started a period of functional decline in 2015; however, he had a significant decline in the summer of 2018.  CMS Ex. 37 ¶ 16.  The functional decline appeared to be based on arthritis in his knees, which reduced his ability to walk, made him more prone to falling, and made him less capable of self-care and caring for his dog and apartment.  CMS Ex. 37 ¶ 17.  Dr. Boling summarized key events, such as H.C.’s hospitalization and the unsanitary conditions in his apartment in mid-August 2018; H.C.’s discharge assessment from an SNF that indicated H.C. needed extensive assistance with many aspects of mobility and was completely dependent on assistance for bathing; and H.C.’s many falls in the second half of 2018.  CMS Ex. 37 ¶ 18.  Dr. Boling did not believe that Petitioner care-planned for H.C.’s significant limitations and stated the following: 

Here, H.C. wanted to remain in his apartment even after he experienced a significant decline in mobility and functionality.  However, in my expert opinion, [Petitioner] ultimately failed to adequately address H.C.’s decline in functionality and ability to perform self-care, and despite stated intentions to address the problems, missed opportunities to intervene effectively.

CMS Ex. 37 ¶ 19. 

Dr. Boling stated that the housekeeping services Petitioner provided to H.C. were inadequate because, even by the accounts of Petitioner’s personnel (several of which Dr. Boling itemized), the apartment “was extremely unsanitary and concerning despite the fact that H.C. was supposed to be receiving housecleaning services three times a week (approximately one hour for each visit).”  CMS Ex. 37 ¶ 20.  Dr. Boling also considered accounts from individuals not employed by Petitioner of H.C.’s apartment that showed it “was extremely unsanitary and concerning even though H.C. was receiving housecleaning services three times a week (approximately one hour for each visit).”  CMS Ex. 37 ¶ 21.  Dr. Boling believed that Petitioner should have known that the frequency and duration of the housekeeping services were inadequate to maintain H.C.’s overall health status based on the unsanitary conditions of his apartment, and “[r]egardless of the cause (inadequately performed or insufficiently frequent), the service was clearly not effective.”  CMS Ex. 37 ¶ 22-23. 

Dr. Boling stated that there were a variety of options available to a PACE provider to handle the situation with H.C.  Petitioner could have:  increased the frequency/duration of the housekeeping services; added a regular deep cleaning of H.C.’s apartment; added

Page 52

personal care assistance, particularly in the second half of 2018 when H.C. was physically unable to maintain proper hygiene or use the toilet without assistance; and/or employed a dog walker because H.C. could no longer walk his dog, which was his primary companion.  CMS Ex. 37 ¶¶ 26-29. 

Dr. Boling also stated that, in his expert opinion, given the extremely unsanitary conditions of [H.C.’s] apartment, Petitioner’s failure to provide sufficient housekeeping services was substantially likely to adversely affect H.C. as follows:  [H.C.] could contract cellulitis due to contact with dog feces or other filth because H.C. often walked around barefoot and repeatedly suffered falls serious enough to require medical assistance; become ill due to eating spoiled food or from contact with moldy or spoiled food or accidental ingestion of fecal matter from contamination; and/or suffer falls and injury due to tripping on clutter or slipping on wet, soiled floors.   CMS Ex. 37 ¶¶ 31-32.  Dr. Boling indicated that the adverse effects he identified were substantially likely to occur because:  the unsanitary condition of the apartment was often extreme and presented a number of different types of risks such as infection and inadvertent ingestion of contaminated food; the unsanitary conditions persisted over several months; and H.C.’s functional limitation combined with continual clutter meant H.C. would continue to fall and into contaminants like fecal matter.  CMS Ex. 37 ¶ 33. 

It is important to note that, even though the physicians from whom Petitioner submitted declarations reviewed Dr. Boling’s declaration and acknowledged that H.C. lived in non-hygienic living conditions, neither of Petitioner’s physician witnesses (i.e., Dr. Muluk or Dr. Baddick) expressly or implicitly disagreed with his assessment that H.C.’s living environment was substantially likely to negatively affect him or dispute the additional options Petitioner could have employed to better care for H.C.  P. Ex. 6 at 1; P. Ex. 8 at 1, 2.  Dr. Muluk indicated that H.C. “had very non-hygienic living conditions.”  P. Ex. 8 at 2.  Neither physician opined that H.C.’s living environment was not substantially likely to negatively affect him.  Dr. Baddick did opine, in relation to CMS’s CMP determination “that H.C. was not adversely impacted” by Petitioner’s failure to provide H.C. with adequate home care.  P. Ex. 6 at 1.  However, this falls short of disputing that H.C. was not substantially likely to be adversely impacted because it only disputes that H.C. was not in fact adversely impacted.  Dr. Baddick opined that “Participant’s hygiene and cleanliness habits are poor and are not considered within the realm of ‘normal’ behaviors, but they are normal to Participant.”  P. Ex. 6 at 2.  Further, Dr. Baddick opined that “Participant’s hygiene and cleaning behaviors are not resolvable.”  P. Ex. 6 at 2.  However, this does not mean there was not a very real threat of an adverse effect from H.C.’s environment. 

Page 53

IX. Conclusions of Law and Analysis

1. Petitioner failed to comply with 42 C.F.R. § 460.98(a) and (d)(2) by ensuring that H.C. received adequate and sufficient chore/homecare services. 

CMS’s initial determination in this case primarily focused on the adequacy of chore/homecare services that Petitioner provided to H.C.  The regulations require PACE programs to provide certain services to PACE participants.  One regulatory provision states: 

The PACE benefit package for all participants, regardless of the source of payment, must include the following: (a) All Medicare-covered items and services. (b) All Medicaid-covered items and services, as specified in the State’s approved Medicaid plan. (c) Other services determined necessary by the interdisciplinary team to improve and maintain the participant’s overall health status.

42 C.F.R. § 460.92 (emphasis added).  Therefore, in addition to providing items and services covered by the Medicare and Medicaid programs, PACE providers must provide other services that the IDT determines are necessary to improve and maintain a participant’s overall health. 

In the present case, it is undisputed that Petitioner’s IDT approved chore/homecare services for Petitioner each week.  In 2017, the IDT increased the chore services to three times each week at 60 minutes per visit along with personal care services twice a month for 30 minutes per visit to assist H.C. in getting ready to go to Petitioner’s Center.  CMS Ex. 6 at 285; P. Ex. 2 at 978; see P. Ex. 10 ¶ 16 (declaration from social worker stating that the IDT increased “frequency of weekly home care chore visits.”); CMS Ex. 5 at 4; P. Br. at 7. 

A copy of H.C.’s care plan, printed on August 27, 2018, indicates that H.C. was still to receive “Home services to include:  3xwk chore visit 60 min.  AM care on 1st & 3rd Thursday Center Days, Laundry at the center 2x’s a month.”  CMS Ex. 32 at 5.  However, Petitioner did commit to sending supervisors to check that the chore visits were done properly for the first month after H.C. returned from August to September 2018 hospital and SNF stays.  CMS Ex. 35 at 121; CMS Ex. 39 at 4. 

By January 9, 2019, Petitioner maintained the chore visits at three per week, but increased H.C.’s days at Petitioner’s center to twice per week, which resulted in increased personal care visits to twice per week to assist H.C. in getting ready to go to Petitioner’s Center.  The care plan stated:  “Home services to include:  “Chore 3x week, AM care

Page 54

every Monday and Thursday for Center Attendance.”  CMS Ex. 3 at 14; see P. Ex. 10 ¶ 16.  In a January 9, 2019 letter, Petitioner indicated that it considered the three chore visits per week to be part of the “medically necessary services” that it provided to H.C.  CMS Ex. 3 at 4. 

As can be seen from the undisputed facts enumerated earlier, H.C.’s physical mobility deteriorated in 2018.  Undisputed Fact 11 discusses a January 2018 note by one of Petitioner’s physical therapists that stated H.C. reported falling twice and that he had chronic knee pain that limited his ability to ambulate, even with a walker, to go to the senior center.  Given the snow at that time of year, H.C. had placed pads around the apartment for his dog to use for urination and defecation.  The physical therapist educated H.C. on safety related to his mobility around the clutter and debris that were scattered on the floor of the apartment. 

The information in the physical therapy note is significant because it contained reference to much of the problems that were to come.  H.C.’s knee condition had resulted in falls and had begun to limit his ability to take his dog outside for the purpose of relieving itself.  As a result, the dog would need to do so in the apartment, and H.C. would need to be able to properly dispose of pads filled with urine and containing fecal matter.  Further, H.C.’s reduced ability to ambulate, combined with clutter and debris on the floor of his apartment, presented a safety hazard for him. 

Undisputed Fact 13 discussed a February 2018 note from one of Petitioner’s nurses stating that Petitioner had fallen in the apartment and, also, another February 2018 note from one of Petitioner’s physical therapists which noted that H.C. stated that chronic bilateral knee pain made him feel unsteady on his feet.  As summarized in Undisputed Fact 14, by March 2018, notes from Petitioner’s personnel show another fall in which H.C. had profuse bleeding from his nose. 

Undisputed Fact 20 summarized and quoted from Dr. Baddick’s May 8, 2018 note concerning his assessment of H.C.  In it he discussed H.C.’s falls and that H.C. attributed them to the weakness in his left knee.  H.C. also thought he tripped over debris in his apartment once.  H.C. stated that he could not go out of the apartment into the community recently.  Dr. Baddick indicated that H.C. would be seen again by an orthopedist. 

In multiple notes from Petitioner’s staff from May 2018, as summarized in Undisputed Facts 22 through 25, H.C. was unable to attain the goal of getting out of his apartment more to go to the senior center, and H.C.’s apartment was not only messy but dirty.  The cluttered and unclean conditions were noted as a safety issue.  A physical therapist indicated there were signs of H.C.’s condition deteriorating based on recent falls. 

Notes from Petitioner’s staff in June 2018, including one from Dr. Baddick, as summarized in Undisputed Facts 26 through 28, documented another fall resulting in a

Page 55

head laceration as well as concern related to the living conditions in H.C.’s apartment.  H.C. indicated that he has lived his entire life “like this” (apparently a reference to the messy conditions); however, H.C. indicated that it was worse because of his knee problems and that he was doing the best he could.  H.C. also stated that the amount of cleaning services would not matter and that, after cleaning aides would finish cleaning, his apartment would revert to a messy state. 

Notes from Petitioner’s staff in July 2018, including one from Dr. Baddick, as summarized in Undisputed Facts 29 through 34, documented H.C.’s continued falls, weakness, and unsteadiness when using his walker, and concerns voiced by the management of H.C.’s apartment building that H.C. had frequent falls, an unclean apartment, was unable to take care of his dog, and repeated issues with setting the smoke alarm off.  A Social Work note indicated that H.C. had trouble letting cleaning aides into his apartment building but that the apartment management stated it would assist aides in entering the building in the future.  It also noted that homecare visits three times a week were in place.  Dr. Baddick documented that H.C. was falling four to five times per week and, in some instances, broke cabinet doors and the oven door while falling.  Dr. Baddick diagnosed H.C. as having “Severe Ambulatory Dysfunction – UNSTABLE.”  Dr. Baddick also stated that H.C.’s apartment management demanded that H.C. clean his apartment. 

Undisputed Fact 37 summarized one of Petitioner’s Social Work notes that a Jewish Family Services caseworker informed Petitioner on August 14, 2018, that a volunteer was concerned about the condition of H.C.’s apartment. 

By mid-August 2018, Petitioner’s documentation was showing a significant increase in falls and decrease in mobility.  Further, outside sources informed Petitioner that H.C.’s apartment was unclean despite aides cleaning (or attempting to clean) H.C.’s apartment three times a week.  However, Petitioner did not seem to react except to start efforts for another orthopedic consultation.  However, there is no evidence that Petitioner thought to increase chore visits or provide other personal assistance to H.C., or to supervise the cleaning aides sent to H.C.’s apartment. 

Undisputed Facts 39 to 52 summarize police, paramedic, crisis workers, and hospital records related to H.C.’s August 15, 2018 calls for assistance and resulting hospital stay.  Those records, which Petitioner did not dispute, indicate that H.C.’s apartment was not only messy and dirty, but foul smelling due to dog feces throughout the apartment.  H.C. was found naked from the waist down and had dog feces on his feet and legs.  The records also describe a filthy environment. 

Undisputed Fact 57 summarized an August 24, 2018 note by Dr. Baddick who continued to diagnose H.C. with “Severe Ambulatory Dysfunction,” noting that H.C was to be

Page 56

considered for orthopedic surgery.  Dr. Baddick also educated H.C. on personal and domestic hygiene habits in his home. 

H.C. went to an SNF following his stay in the hospital and, before returning to his apartment, Petitioner paid for a deep clean of H.C.’s apartment.  However, as stated in Undisputed Fact 59, Merry Maids declined the job after seeing the condition of the apartment.  As summarized in Undisputed Facts 61 and 63, Petitioner had to engage Service Master to clean H.C.’s efficiency apartment, which was estimated as a six-seven hour job for two to three workers; however, the workers ultimately could not complete the cleaning in one day and had to return later. 

After Petitioner returned to his apartment at the end of September, and until December 2018, records show that cleaning aides cleaned H.C.’s apartment three times per week.  Petitioner added supervisory home care chore visits for the first month of his return.  CMS Ex. 35 at 121; CMS Ex. 39 at 4; P. Ex. 10 ¶ 16.  Undisputed Facts 70, 72, 76, 77, 79, 80, 83, 87, 89, 92, 93, 95, and 97 indicate the supervisory visits occurred in October 2018.⁶  Many of those notes indicate various problems with the cleanliness of the apartment.  It appears that with the end of supervision, the cleaning aides started to reduce their cleaning activities.  Undisputed Facts 131, 134, and 135 indicate that documentation shows H.C.’s trash was not removed on December 12 and 17, 2018, and that, on December 19, 2018, the tasks of emptying the trash, vacuuming carpeted areas, wiping and cleaning the rollator, cleaning the toilet, tub, basin, bathroom floor, and the refrigerator were not completed.  Further,  Undisputed Fact 137 indicated that documentation showed H.C.’s apartment was not vacuumed on December 20, 2018. 

Because H.C. continued to fall and sometimes could not get up again, H.C. would call for police or EMS to assist him via his medical alert alarm.  Reports from police and EMS personnel at H.C.’s apartment on December 7, 8, and 21, 2018, as summarized in Undisputed Facts 128, 129, 142, again documented filthy living conditions with dog feces on the floor of the apartment and a foul odor.  The police reported their observation to the County’s Office for Aging and Adult Services.  Undisputed Facts 144 and 146 summarize Petitioner’s staff’s visits to H.C.’s apartment on December 26, 2022, and cleanliness issues that were present. 

Undisputed Facts 146 through 152 show that contact with the Office for Aging and Adult Services appears to have caused Petitioner to take additional action, such as resume chore supervisory visits in January 2019, schedule another deep cleaning of the apartment, and suggest to H.C. that he ought to reside in an SNF.  However, as detailed in Undisputed

Page 57

Facts 153-154, despite being requested to do so by the County’s Office for Aging and Adult Services, Petitioner refused to increase the number of days per week that aides would clean H.C.’s apartment.⁷  Petitioner did increase H.C.’s Center visits to twice a week, which included increased personal care visits to get him ready.  CMS Ex. 3 at 4, 14. 

Undisputed Facts 156 through 158, 162, 166, and 167 summarize reports from the police, EMS, and Petitioner’s staff as to observations regarding H.C.’s apartment in January and February 2019 that varied from disheveled and unclean to filthy.  

In March 2019, H.C. finally received surgery to replace his left knee.  It does not appear that H.C. returned to his apartment after the surgery.  P. Br. at 12. 

Although the facts stated above were mostly from Petitioner’s records or from records the contents of which were not disputed by Petitioner, Petitioner’s position is that it provided adequate home care chore services and that H.C., who was competent, made his own choices concerning his health and welfare.  P. Br. at 1-2.  Even though H.C.’s choices were “unconventional,” Petitioner argues that it was limited in what it could do and could not force H.C. into an SNF.  P. Br. at 2.  Petitioner asserted that disenrollment of H.C. from Petitioner’s PACE program would not have resulted in improved living conditions for H.C.  P. Br. at 2.  

Regarding H.C.’s mobility, Petitioner stated that he occasionally fell due to degenerative joint disease in his knees.  An initial orthopedic consult in Spring 2018 advised conservative treatment; however, by July 2018, Dr. Baddick recommended a second opinion because he believed a knee replacement was necessary.  P. Br. at 7-8.  Petitioner

Page 58

also indicated that by July 2018, Petitioner resolved the issue of cleaning aide inaccessibility to H.C.’s apartment by making an arrangement with the apartment building.  P. Br. at 7.  Although Petitioner acknowledged the August 15, 2018 police and EMS responses to H.C.’s apartment and transport of H.C. to the hospital, Petitioner neither disputed nor discussed the condition of H.C.’s apartment as stated in police, EMS, and crisis intervention reports.  P. Br. at 8.  , Petitioner asserted that, while H.C. was in the SNF during August 2018, Dr. Baddick suggested to H.C. that he permanently reside in an SNF but H.C. declined.  P. Br. at 8.

Petitioner stated that it had H.C.’s apartment deep cleaned for his return from his hospital and subsequent SNF stay, but within one day the floors were dirty, feces were found on the toilet lid, and dirty incontinence briefs were on the floor.  P. Br. at 9.

Regarding home cleaning, Petitioner asserted that it had increased home care or chore visits to three times per week in 2017.  P. Br. at 7.   Petitioner asserted that its staff made home care visits on the following dates: 

Home care:  9/27/18; 10/1/18; 10/3/18; 10/8/18; 10/12/18; 10/17/18; 10/22/18; 10/26/18; 10/30/18; 10/31/18; 11/2/18; 11/19/18 6 month review; 12/26/18; 12/31/18; 1/2/19; 1/3/19; 1/7/19; 1/9/19; 1/10/19; 1/14/19; 1/15/19; 1/29/19; 2/6/19; 2/7/19; 2/18/19; 2/25/19; 2/28/19.

P. Br. at 7.  Further, following H.C.’s return from the SNF in September 2018, Petitioner added supervised home care chore services.  P. Br. at 9. 

Despite providing additional medical items and services, Petitioner indicated that H.C. continued to fall after returning from the SNF.  P. Br. at 9-10.  Without disputing or acknowledging police reports from December 2018 concerning the condition of H.C.’s apartment, Petitioner merely described how it suggested to H.C. in December 2018 that he should accept a short-term admission to an SNF while awaiting knee surgery.  P. Br. at 10.  H.C. refused and the IDT decided at that time not to provide additional cleaning aide services to H.C.  P. Br. at 10.  For January and February 2019, Petitioner detailed that it again had H.C.’s apartment deep cleaned and took additional actions related to H.C.; however, Petitioner neither disputed nor acknowledged the police and EMS reports from January and February 2019 indicating the condition of H.C.’s apartment.  P. Br. at 10-12.

Based on the facts as Petitioner presented them, Petitioner argued that “[p]oor results, in and of themselves, do not provide a foundation for the imposition of a Penalty.”  P. Br. at 14.  Petitioner asserted that CMS had not considered H.C.’s poor decisions, including not permitting aides into his apartment, and unconventional choices as to how he should live, and that this posed a conundrum to Petitioner.  P. Br. at 14.  Petitioner said that

Page 59

CMS failed to consider Petitioner’s efforts generally to help H.C., such as increased nursing and therapy visits, and providing him with items like a knee brace and power wheelchair.  P. Br. at 15.  In a declaration from the social worker who was employed by Petitioner, she summarized Petitioner’s efforts concerning H.C.: 

We responded to H.C.’s situation in various ways, including increasing the frequency of weekly home care chore visits, adding supervisory home care chore visits, adding weekly nursing home visits, adding weekly social work visits, increasing the frequency of monthly PACE Center visits by H.C. (which included increased personal care) and adding supervisory home care chore visits; providing deep cleaning services through a third-party; providing HC with Lifeline; and providing HC with a lift recliner.

P. Ex 10 ¶ 16. 

Generally, regarding the police reports of filth in H.C.’s apartment, Petitioner essentially stated that, even after receiving a cleaning of the apartment earlier in the day, H.C. could make the apartment filthy by later in the day.  See P. Br. at 15.  Petitioner then asserted that its IDT determined “that no amount of additional cleaning visits would address H.C.’s cleanliness habits and clutter on a permanent basis.”  P. Br. at 15.  Petitioner cited Dr. Baddick’s declaration to show that H.C.’s behaviors were simply unresolvable.  P. Br. at 16.

The regulations require the following: 

A PACE organization must establish and implement a written plan to furnish care that meets the needs of each participant in all care settings 24 hours a day, every day of the year.

* * * * *

A PACE organization must ensure accessible and adequate services to meet the needs of its participants.  If necessary, a PACE organization must increase the number of PACE centers, staff, or other PACE services. 

42 C.F.R. § 460.98(a), (d)(2). 

As stated above, Petitioner’s IDT found that homecare and chore services were necessary services for H.C.  See 42 C.F.R. § 460.92.  Therefore, § 460.98(a) and (d)(2) required that Petitioner ensure that those homecare and chore services were adequate to meet the needs

Page 60

of H.C. and, if necessary, increase services.  Further, Petitioner needed to have a plan to furnish necessary care 24 hours a day, every day of the year. 

The undisputed facts show that, during 2018 and early 2019, H.C. was increasingly at risk for falls and unable to move about his apartment to perform tasks that would ensure the cleanliness of his apartment.  Petitioner was well aware of this.  At the end of September 2018, the SNF assessed H.C. as a person in need of extensive assistance for most physical tasks, including toileting (Undisputed Fact 64).  Having a dog that he could no longer walk outside and being incontinent himself, H.C. was unable to clean his apartment himself or properly dispose of his own incontinence briefs and the pads that his dog used for urination and defecation.  Add to this his proclivity for messy conditions, as asserted by Dr. Baddick, and it is clear that the IDT’s decision from 2017 that H.C. should have cleaning aides three times a week for 60 minutes at a time was, by mid-2018, no longer adequate for the changed circumstances.  Further, while I credit the fact that cleaning aides sometimes could not access H.C.’s apartment and that many records indicate the apartment had been cleaned, the undisputed facts show that sometimes the level of cleaning was insufficient and other times H.C.’s disabilities made it essential for increased cleaning services. 

Although Petitioner asserted in briefing that there simply was nothing that could be done to deal with the condition of H.C.’s apartment, the undisputed facts do not show this.  As noted above, Petitioner briefly increased supervision of the cleaning services in October 2018.  During that time, the cleaning records show most tasks were performed and there are no reports from the police or EMS that H.C.’s apartment conditions were unsanitary.  However, as supervision of cleaning aides appears to have dropped off, the undisputed evidence shows that H.C.’s apartment condition worsened.  Whether it was continuing to direct more resources toward supervision of cleaning staff and/or adding more cleaning aide hours, Petitioner cannot state that such resources would not have helped the condition of H.C.’s apartment. 

Petitioner also asserted that it had provided sufficient cleaning services because it provided three deep cleanings of H.C.’s apartment within six months and tried to resolve the dog walking issue.  P. Br. at 16.  However, the need for repeated deep cleaning indicated a recurring significant problem with cleanliness in the apartment.  Further, Petitioner made only limited efforts to deal with the problem of H.C.’s dog urinating and defecating in the apartment which, until H.C.’s mobility limitations could be resolved, was one of the primary reasons that H.C.’s apartment would become unsanitary.  Given no resolution to the dog walking issue, Petitioner needed to provide adequate cleaning services to ensure the apartment was not unsanitary and foul smelling. 

Finally, in January 2019, Petitioner would not increase the number of days per week that an aide would clean H.C.’s apartment but did increase the number of days per month that an aide would provide H.C. with a half-hour of personal care.  There is no evidence that

Page 61

this personal care included cleaning the apartment and was only provided to assist H.C. in the morning to get ready to go to Petitioner’s Center more often.  P. Ex 10 ¶ 16 (social worker stating that Petitioner had “increase[ed] the frequency of monthly PACE Center visits by H.C. (which included increased personal care).”).  Therefore, while Petitioner increased other services to H.C. in early January 2019, these services did not help resolve the cleanliness of H.C.’s apartment. 

Petitioner has made it clear that its IDT chose not to seek H.C.’s disenrollment from its PACE program while also concluding that H.C. needed to reside in an SNF.  P. Ex. 10 ¶¶ 26, 30.  It is important to consider that, while PACE has the noble purpose of providing assistance to the elderly so that they can maintain autonomy by living in their own homes, rather than reside in a facility like an SNF, the Secretary acknowledged there were limits on achieving this goal.  PACE is to “[e]nable frail, older adults to live in the community as long as medically and socially feasible.”  42 C.F.R. § 460.4(b)(3); see also 42 C.F.R. § 460.150(c)(1) (“At the time of enrollment, an individual must be able to live in a community setting without jeopardizing his or her health or safety.”).  Further, PACE is expressly meant to “[m]aximize dignity of, and respect for, older adults.”  42 C.F.R. § 460.4(b)(2).  The undisputed facts in this case show that H.C. was physically unable to care for himself and his dog so long as his knees significantly compromised his mobility.  Further, H.C. had little to no social support and Petitioner was H.C.’s only support system to maintain independent living.  P. Ex. 2 at 766, 768.  While Petitioner continued to provide services to H.C., they were inadequate to ensure that H.C. could live in a clean and safe abode.  Based on the undisputed reports from the hospital, police officers, and paramedics, H.C. was also not living in a dignified manner. 

However, having understood that H.C. needed the increased care that an SNF could afford and having decided not to seek his disenrollment, Petitioner was obligated to increase its cleaning services to effectively address the issue of cleanliness in H.C.’s apartment based on his physical and psychological limitations (as described by Dr. Baddick).  The undisputed facts show that Petitioner failed in that regard, and I conclude that Petitioner failed to comply with 42 C.F.R. § 460.98(a), (d)(2). 

2. CMS had a legitimate basis to impose a CMP under 42 C.F.R. § 460.40(a). 

CMS may impose a CMP on a PACE provider if the PACE provider “[f]ails substantially to provide to a participant medically necessary items and services that are covered PACE services, if the failure has adversely affected (or has substantial likelihood of adversely affecting) the participant.”  42 C.F.R. § 460.40(a). 

Above, I discussed how Petitioner’s IDT determined that cleaning or chore services were medically necessary PACE services for H.C. and authorized three cleaning visits per week.  Further, above, I explained why Petitioner’s provision for the three cleaning visits was inadequate due to a lack of continued supervision and/or because they were simply

Page 62

too few to ensure a sanitary and safe environment based on H.C.’s physical condition and psychological tolerance to live in a messy environment.  While taking into account that Petitioner did provide sufficient cleaning services at times, and was precluded by H.C. from providing cleaning services at other times, I still conclude that Petitioner failed to substantially provide cleaning services based on the severity and number of the undisputed instances documented in the record as to particularly egregious situations in H.C.’s apartment as well as less egregious notations of uncleanliness in Petitioner’s documentation.  Therefore, Petitioner failed to substantially provide the cleaning services necessary for H.C. 

It is only left to decide whether the failure to substantially provide the cleaning services for H.C. either adversely affected H.C. or had a substantial likelihood of adversely affecting H.C.  As discussed earlier, I found that the question as to whether H.C. had cellulitis was a disputed material fact.  Further, based on a review of the record, I also conclude that the parties dispute in general whether H.C. was adversely affected by the failure to provide sufficient cleaning services.  Therefore, for purposes of summary judgment, I do not conclude that H.C. was adversely affected. 

Also as discussed in detail in Section VIII of this decision, I accept CMS’s expert medical witness’s opinion that the records in this case show that the lack of cleanliness in H.C.’s apartment had a substantial likelihood of adversely affecting H.C.  I will not repeat the earlier discussion as to Dr. Boling’s declaration except to note that the physician declarations submitted by Petitioner in this case, which were prepared after CMS had submitted Dr. Boling’s declaration, do not contradict his assessment as to whether the conditions in H.C.’s apartment had a substantial likelihood for adversely affecting H.C.  Therefore, his expert opinion on this point was not disputed.  Further, his opinion was based on facts that are not in dispute. 

In its prehearing brief, Petitioner simply made a general denial as to the likelihood of an adverse effect on H.C. in a footnote at the end of its brief:  “For all the reasons stated in this Brief, there was not a substantial likelihood that H.C. would incur infection or illness.”  P. Br. at 23 n.4.  Given that Petitioner’s brief, its opposition to CMS’s summary judgment motion, and its experts, did not substantively address the issue of substantial likelihood of an adverse effect, Petitioner’s general denial is insufficient to avoid summary judgment on this issue.  Therefore, based on the undisputed facts and undisputed opinion of CMS’s medical expert witness, I conclude that CMS had a legitimate basis for imposing a CMP based on Petitioner’s violation of 42 C.F.R. § 460.40(a). 

Page 63

3. I do not need to decide whether Petitioner failed to comply with 42 C.F.R. §§ 460.78, 460.90, 460.94, and 460.102(d)(2)(ii). 

In alleging a violation of 42 C.F.R. § 460.40(a), CMS asserted in the initial determination that Petitioner failed to comply with a number of regulations concerning services that PACE providers must provide to PACE participants.  Given that a failure to provide cleaning/chore services was the underlying necessary service under 42 C.F.R. § 460.92 that Petitioner failed to provide, it is sufficient that I have concluded that Petitioner’s actions violated 42 C.F.R. § 460.98(a) and (d)(2).  This provides an adequate basis to support the CMP in this case.  Therefore, I need not conclude whether other regulatory provisions concerning PACE services were violated as well. 

4.  Petitioner did not dispute the amount of the CMP imposed.  Therefore, I summarily uphold the $38,159 CMP. 

In the initial determination, CMS indicated that it was imposing a $38,159 CMP on Petitioner. 

When determining whether a CMP amount is appropriate, statutory factors I would consider are:  1) Petitioner’s degree of culpability; 2) Petitioner’s history of prior offenses; 3) Petitioner’s financial condition; and 4) other matters as justice requires.  See 42 U.S.C. §§ 1320a-7a(d)(2), (3).  However, the DAB has stated that, unless a petitioner contends that a particular factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002). 

Petitioner did not dispute any of these factors or seek to reduce the CMP amount.  Therefore, I summarily uphold the $38,159 penalty amount. 

I note that the CMP in this case is the maximum permissible amount.  I also note that the Secretary stated in the final rule establishing the PACE regulations that “the imposition of the maximum financial penalty is an option that would only be used in cases of egregious violations.”  71 Fed. Reg. 71,244, 71,260, (Dec. 8, 2006). 

As can be discerned from the undisputed facts and my conclusion in this case, the living conditions for H.C. became egregious as his mobility decreased through 2018 and into 2019.  While Petitioner provided H.C. with many services, Petitioner’s failure to effectively deal with H.C.’s decline in mobility by providing adequate and additional cleaning services resulted in H.C. living in deplorable and unsanitary circumstances.  These circumstances caused the police to refer H.C.’s situation several times to the county agency for the elderly.  Even after the county agency determined that more cleaning services were needed, Petitioner declined to provide them.

Page 64

Petitioner determined that H.C. had a proclivity for creating a messy environment in his apartment and that Petitioner was unable to effectively deal with H.C. in that regard.  However, while H.C. may have preferred a messy apartment, it is also true that H.C. was unable to properly dispose of his used incontinence briefs and the feces from the dog which were present on pads within the apartment.  H.C. also had problems with disposing of spoiled food in his apartment.  All the while, H.C. was regularly falling in his apartment while attempting to conduct normal activities of daily living. 

While I accept that H.C. preferred a messy to an organized apartment, the record does not show that H.C. preferred a putrid environment in his apartment.  Petitioner cannot simply blame H.C. for his living conditions, after the decline in his mobility, and leave him to live in those conditions. 

X.      Conclusion

I uphold CMS’s initial determination that Petitioner violated 42 C.F.R. § 460.40(a) and that Petitioner is subject to a $38,159 CMP.

---

Endnotes:

¹ All citations to the Code of Federal Regulations are to the version in effect at the time of the survey unless otherwise indicated. 

² At the time CMS imposed a CMP on Petitioner in this case, the PACE regulations did not specify which procedures should be applied when there was an appeal.  As indicated above, the Secretary considered the provisions of 42 U.S.C. § 1320a-7a (other than paragraphs (a) and (b)) to apply to PACE CMP cases.  42 C.F.R. § 460.46(b).  Section 1320a-7a(c)(2) states that the Secretary must provide notice and opportunity for a hearing on the record when imposing a CMP, which is terminology invoking the Administrative Procedure Act’s (APA) hearing provisions.  See 5 U.S.C. §§ 554(a), 556(a).  Therefore, hearing procedures for a formal APA hearing are necessary to adjudicate this case.  In my prehearing order in this case, I notified the parties that I would apply the regulatory appeal procedures applicable to CMPs imposed on Medicare+Choice organizations/Medicaid managed care organizations (i.e., 42 C.F.R. Part 422, Subpart T) because the PACE statutes cross-reference the statutory CMP provisions for those cases.  Neither party objected.  Significantly, in 2021, the Secretary amended the PACE regulations to clarify that the 42 C.F.R. Part 422, Subpart T procedures apply to PACE CMP cases.  42 C.F.R. § 460.56(b) (2021). 

³ CMS used the phrase “substantial likelihood” 16 times in those four pages and provided significant citation to its proposed exhibits.  CMS Br. at 22-25. 

⁴ In its brief, Petitioner took issue with the SNF’s assessment that H.C. needed assistance with most physical activity, asserting that the assessment was not a physical therapy or occupational therapy assessment.  Petitioner cited an October 3, 2018 occupational therapy/physical therapy assessment that H.C. was able to transfer from his lift chair to his rollator walker.  P. Br. at 20.  For purposes of summary judgment, I consider H.C. capable of transferring from his lift chair to his rollator walker.  However, the SNF assessment, made after H.C. had been at the SNF for a month, assessed H.C.’s need for assistance with various activities and not simply whether H.C. could transfer from a lift chair to his walker.  For example, toileting would be a different assessment.  Therefore, I consider the assessment as mostly undisputed for purposes of summary judgment. 

⁵ Much of Petitioner’s records concerning H.C. were included in CMS’s proposed exhibits.  Compare CMS Exs. 4, 6 with P. Exs. 1-2.  Further, Petitioner did not object to any of CMS’s other proposed exhibits. 

⁶  Although Undisputed Facts 106 and 146 appear to show home chore assessments in November 2018 and December 2018, these do not appear to have been supervisory visits of the aides’ work.  

⁷ It is undisputed that following an increase in chore visits to H.C.’s apartment to three times per week in 2017, Petitioner did not increase the number of chore visits in 2018, despite the serious cleanliness and sanitary problems found to be endemic at H.C.’s apartment.  P. Br. at 7.  “The apartment management and APS suggested increasing home care chore visits; however, it was the opinion of the [IDT] that H.C.’s situation would not be remedied by increasing home care chore services beyond that already provided.”  P. Ex. 10 ¶ 17.  This testimony from one of Petitioner’s witnesses, who was also an IDT member, is likely referring to a January 9, 2019 letter from the Lehigh County Aging and Adult Services documenting conversations on December 12 and 26, 2018 and January 3, 2019, in which APS requested additional “personal care hours” for H.C.  CMS Ex. 3 at 2.  “It is my understanding that [H.C.] is still only receiving 3 hours per week of personal care services through [Petitioner], even though [a] Protective Service Supervisor and I request[ed] an increase in personal care hours to avoid [H.C.’s] pending eviction.”  CMS Ex. 3 at 2.  Petitioner responded in a January 9, 2019 letter that it would not increase the chore services for H.C.  CMS Ex. 3 at 4.