The Medical Resort at Bay Area, DAB CR6472 (2024)

DISMISSALS AND DECISIONS

Petitioner, The Medical Resort at Bay Area, is a long-term-care facility, located in Pasadena, Texas, that participates in the Medicare program.  The Centers for Medicare and Medicaid Services (CMS) determined that, for nine weeks, starting with the week that ended on May 29, 2023, through the week that ended on August 6, 2023, the facility did not submit its COVID-19 data to the Centers for Disease Control and Prevention (CDC), as required by 42 C.F.R. §483.80(g)(1)-(2).  CMS imposed civil money penalties (CMPs) of differing amounts for seven of the nine weeks.

Petitioner filed nine separate appeals, which I have consolidated.  For the reasons set forth below:

• I dismiss, as untimely, Petitioner's appeals of the May 30, June 5, and June 12, 2023 determinations (originally docketed as C-23-678; C-23-677; and C-23-676).¹

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• Because CMS imposed no remedies, the July 17 and 24, 2023 determinations (originally docketed as C-23-672 and C-23-673) are not reviewable, and I dismiss them as well.
• With respect to the remaining determinations (originally docketed as C-23-670; C-23-671; C-23-674; and C-23-675), I find that the facility was not in substantial compliance with section 483.80(g) and that the penalties imposed are reasonable.

BACKGROUND

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary's regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility's deficiencies may pose no greater risk to resident health and safety than "the potential for causing minimal harm."  42 C.F.R. § 488.301.

The Covid reporting requirements.  The COVID-19 pandemic disproportionately affected this country's nursing home population.  Responding to the crisis, on May 8, 2020, CMS published an interim final rule, amending its infection control regulation to add Covid-specific requirements.  85 Fed. Reg. 27,550, 27,601-602 (May 8, 2020).

Among other provisions, the new rule adds COVID-19 reporting requirements.  Facilities must electronically report, weekly, to the CDC National Healthcare Safety Network (NHSN), "in a standardized format specified by the Secretary," the following information:

1. suspected and confirmed COVID-19 infections among residents and staff, including residents previously treated for COVID-19;
2. total deaths and COVID-19 deaths among residents and staff;
3. personal protective equipment and hand hygiene supplies in the facility;
4. ventilator capacity and supplies in the facility;
5. resident beds and census;
6. access to COVID-19 testing while the resident is in the facility;

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7. staffing shortages;
8. the COVID-19 vaccine status of residents and staff, including total numbers of residents and staff vaccinated, numbers of each dose of COVID-19 received, and COVID-19 vaccination adverse events; and
9. therapeutics administered to residents for treatment of COVID-19.

42 C.F.R. § 483.80(g)(1) and (2); see e-file # 7h (CMS Ex. 9) at 3 et seq. (emphasizing that NHSN enrollment is required and instructing facilities on how to enroll online).²

Before it published the final rule, CMS issued a policy memorandum, QSO-20-29-NH (Interim Final Rule Updating Requirements for Notification of Confirmed and Suspected COVID-19 Cases Among Residents and Staff in Nursing Homes), dated May 6, 2020, addressing the new participation requirement.  E-file # 7h (CMS Ex. 9).  The memorandum explains that federal (not state) surveyors would review, offsite, facility compliance with the Covid-reporting rule.  After an initial grace period, CMS would "review for timely and complete reporting of all data elements."  CMS would cite a deficiency under section 483.80(g)(1)-(2) (F884) on form CMS-2567 (statement of deficiencies) for facilities identified as not reporting.  The scope and severity level would be F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm).  E-file # 7h (CMS Ex. 9) at 4.

CMS subsequently published another rule, authorizing CMS to impose CMPs for noncompliance with section 483.80(g)(1)-(2) and setting the amounts of those CMPs.  42 C.F.R. § 488.447; see 85 Fed. Reg. 54,820, 54,823-825 (Sept. 2, 2020).  The regulation sets a minimum penalty of $1,000, to which an additional $500 is added for each subsequent occurrence.  42 C.F.R. § 488.447(a)(1)-(2).  Compliance is assessed weekly.  42 C.F.R. § 488.447(c).  As discussed in more detail below, since then, the penalties have been inflation-adjusted.  45 C.F.R. § 102.3; 87 Fed. Reg. 15100, 15120 (March 17, 2022).

CMS's database includes the Certification and Survey Provider Enhanced Reports (CASPER) system.  Through CASPER, facilities connect to CMS's national reporting database.  In a notice dated June 1, 2020, CMS advised nursing homes that it would "use the CASPER shared folders to communicate important information regarding findings of noncompliance with the requirements to report COVID-19 data to the CDC through the National Healthcare Safety Network (NHSN).  This includes the CMS 2567 and Enforcement Notices."  https://qtso.cms.gov/news-and-updates/how-nursing-homes-will-receive-important-information-cms (last visited May 6, 2024) (emphasis added).

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In another policy memorandum, issued on May 11, 2021, CMS reminded facilities of the NHSN reporting requirements and the instructions for registering, enrolling, and reporting to NHSN set forth in QSO-20-29-NH.  QSO-21-19-NH at 7-8.

Here, in notices dated May 30, 2023, June 5, 2023, June 12, 2023, June 20, 2023, June 26, 2023, July 17, 2023, July 24, 2023, July 31, 2023, and August 7, 2023, CMS advised Petitioner that it had reviewed the CDC's National Health Safety Network system data for the facility to determine whether it complied with section 483.80(g)(1)-(2).  CMS determined that the facility was not in substantial compliance with that regulation because it failed to report complete information "about COVID-19 in the standardized format and frequency" required.  CMS imposed remedies as follows:

• May 30, 2023 (for the week ending May 29)      $4,841
• June 5, 2023 (for the week ending June 5)         $5,379
• June 12, 2023 (for the week ending June 12)     $5,917
• June 20, 2023 (for the week ending June 19)     $6,455
• June 26, 2023 (for the week ending June 26)     $6,993
• July 17, 2023 (for the week ending July 17)       no penalty
• July 24, 2023 (for the week ending July 24)       no penalty
• July 31, 2023 (for the week ending July 31)       $6,993
• August 7, 2023 (for the week ending August 7)  $6,993

Petitioner requested hearings on the determinations.

Consolidation and prehearing order.  In an order dated September 11, 2023, I consolidated Petitioner's appeals and directed CMS to file its pre-hearing exchange no later than October 3, 2023.  I directed Petitioner to file its exchange no later than November 11, 2023.  E-file # 5.

CMS timely filed its prehearing exchange, which included three motions:  1) a motion to dismiss three of the appeals (May 30, June 5, and June 12) as untimely filed; 2) a motion to dismiss two of the appeals (July 17 and July 24) because no remedies were imposed; and 3) a motion for summary judgment for the four remaining appeals.

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Petitioner did not timely submit a prehearing exchange or respond to CMS's motions.  In an Order to Show Cause, dated November 21, 2023, I directed Petitioner to show cause why its appeals should not be dismissed for abandonment.  Petitioner responded by apologizing and explaining that, notwithstanding my order, it was "under the impression" that its hearing request and the documents attached to it were sufficient and that it was not required to submit any other responses.

I decline to dismiss Petitioner's appeals for abandonment.

Exhibits.  In preparing and submitting their exhibits, the parties have disregarded my standing order and Civil Remedies Division procedures.  By doing so, they have created an unwieldy and confusing record.  My order directed each party to designate each of its exhibits "with a separate, unique, and whole identifying number beginning with "1."  Standing Order at 4 ¶ 6c (August 29, 2023) (emphasis in original); CRD Procedures at 15 (¶ 14c(iii)).  CMS did not follow these instructions; instead, it submitted a separate set of exhibits with each of its motions, each set of exhibits carrying the same initial exhibit numbers.  Thus, the record includes CMS Exs. 1-9 (e-file # 7-7h), which are attached to its motion for summary judgment; CMS Exs. 1-2 (e-file # 8a-8b), which are attached to its motion to dismiss/ no remedy; and CMS Exs. 1-3 (e-file # 9a-9c), which are attached to its motion to dismiss/untimely.

I have tried to eliminate as much confusion as possible by referring to CMS's exhibits by their electronic file numbers.

For its part, Petitioner made no pretense of submitting its documents in compliance with my order:

• Attached to Petitioner's Response to my order to show cause (e-file # 11) are approximately 53 pages of documents, divided into three "exhibits," which are captioned: Exhibit A (letters of request); Exhibit B (survey results); and Exhibit C (email request for access).  The pages are not numbered.  See Standing Order at 4 (¶ 6d) (requiring that pages be numbered "so that each page can be located easily").
• Attached to Petitioner's next submission, titled, "Petitioner Request for Motion to Not Dismiss for Untimely Appeal to Show Cause" (e-file # 12), are the same 53 pages of documents, divided into Exhibits A, B, and C.³  Again, the pages are not numbered.
• Attached to Petitioner's final submission, titled, "Petitioner's Motion to Dismiss Respondent's Request for Summary Judgment" (e-file # 13),⁴ are Exhibits A, B, and C,

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with an additional set of the documents already submitted, along with three additional sections: Exhibit D (letters from Simple LTC), containing two pages; Exhibit E (Issues with NSHN), containing three pages; and Exhibit F (CMS QSO 20-29), which duplicates CMS Ex. 9.  The pages are not numbered.

In the absence of any objections, I admit into evidence e-file # 7 through 7h (CMS Exs. 1-9 MSJ);  # 8a, 8b (CMS Exs. 1-2, M/Dismiss/no remedy); and e-file # 9 a through 9c (CMS Exs. 1-3, M/Dismiss/untimely).  I also admit into evidence P. Exs. A through E, which are found at e-file # 13.  I decline to admit P. Ex. F because the document is already in the record.

Motion for summary judgment/hearing on the written record.  My standing order directed the parties to exchange, as a proposed exhibit and in the form of an affidavit or written declaration, the written direct testimony of any proposed witness.  Standing Order at 3 (¶ 4(c)(4)).  The order pointed out that a hearing would be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.  Id at 5 (¶ 10).  Neither party presents any witnesses.  An in-person hearing would therefore serve no purpose, and this matter may be decided on the written record, without considering whether the standards for summary judgment have been met.

DISCUSSION

1. Petitioner is not entitled to hearings to challenge CMS's determinations – issued on May 30, June 5, and June 12, 2023 – because it did not file timely hearing requests and no good cause justifies extending the time for filing. ⁵

Section 1866(h) of the Social Security Act authorizes administrative review of determinations that a provider fails to comply substantially with Medicare program requirements "to the same extent as is provided in section 205(b) of the [Act]."  42 U.S.C. § 1395cc(h)(1).  Under section 205(b), the Secretary of Health and Human Services must provide reasonable notice and opportunity for a hearing "upon request by [the affected party] who makes a showing in writing that his or her rights may be prejudiced" by the Secretary's decision.  42 U.S.C. § 405(b)(1).  The hearing request "must be filed within sixty days" after receipt of the notice of CMS's determination.  Id. (emphasis added).  The 60-day time limit is thus a statutory requirement.  See Cary Health and Rehab. Ctr., DAB No. 1771 at 8-9 (2001).

Similarly, the regulations mandate that the affected party "file the request in writing within 60 days from receipt of the notice . . . unless that period is extended."  42 C.F.R. § 498.40(a)(2).  If the request is not filed within 60 days, the party may file a written request for extension, which the ALJ may grant "for good cause shown."  42 C.F.R. § 498.40(c).  The regulations do not define "good cause" but leave that determination to the discretion of the ALJ.

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The parties agree that, pursuant to its announced practice for serving Covid-related enforcement notices, CMS added each notice to CASPER on the date of the notice itself (May 30, June 5, June 12).  E-file # 7f (CMS Ex. 7); CMS Motion to Dismiss at 3; P. Timeliness Response at 3.  Each of the notice letters included a section prominently captioned "APPEAL RIGHTS," which advises the facility of its right to request a hearing before an administrative law judge (ALJ):  "If you disagree with the noncompliance that resulted in this imposition, you or your legal representative may request a hearing before an (ALJ) of the Department of Health and Human Services, Departmental Appeals Board (DAB)."  The letters then cite the regulations that govern such appeals – 42 CFR § 498.  The letters instruct the facility to file its hearing requests electronically and explains the procedures for doing so.  E-file # 9a (CMS Ex. 1) at 3; E-file # 9b (CMS Ex. 2) at 6; E-file # 9c (CMS Ex. 3) at 5.

The letters emphasize that "A request for hearing must be filed no later than 60 days from the date of receipt of this notice."  E-file # 9a (CMS Ex. 1) at 4; E-file # 9b (CMS Ex. 2) at 7; E-file # 9c (CMS Ex. 3) at 6 (emphasis in originals).

Petitioner appealed the determinations on August 21, 2023 – from ten days to more than three weeks after the deadlines had expired.  Petitioner did not request an extension and did not explain why the filings were late.  Petitioner now concedes that it did not timely appeal the May 30, June 5, and June 12 determinations but offers reasons for its failing to do so.  None of these reasons establish good cause.⁶

First, Petitioner suggests (or seems to suggest) that, because it missed the deadlines for requesting Independent Informal Dispute Resolution (IIDR), it has the right to appeal in this forum, notwithstanding its missing the appeal deadlines.

Petitioner submitted the request for hearing timely[,] as the date for independent informal dispute resolution (IIDR) has passed.  Petitioner has the right to appeal its CMP[,] based on letters that were provided by CMS for each week.

P. Timeliness Response at 2.

This is an unusual argument.  More commonly, facilities argue that they timely requested IIDR and awaited the result before filing an appeal.  In rejecting those arguments, the DAB has repeatedly pointed out that the IIDR process is separate from and in addition to the appeal

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rights provided facilities under federal regulations.  Here, the notice letters say as much:  "An IIDR constitutes an informal administrative process that in no way is to be construed as a formal evidentiary hearing."  E-file # 9a (CMS Ex. 1) at 3; E-file # 9b (CMS Ex. 2) at 6; E-file # 9c (CMS Ex. 3) at 5.  Because the processes are separate, a facility cannot reasonably conclude that participation in IIDR somehow tolls the federal appeals process.  Quality Total Care, L.L.C., d/b/a The Crossings, DAB No. 2242 at 10 (2009) (citing Concourse Nursing Home, DAB No. 1856 (2002)); Hillcrest Healthcare LLC, DAB No. 1879 (2003) (finding that, under any definition of "good cause," a facility's election to resolve its dispute by other means does not excuse its failure to file a timely hearing request).  Suggesting that a facility can reasonably conclude that failing to participate in the IIDR process somehow tolls the federal appeals process makes for an even weaker argument.

Petitioner also complains about the manner of service, characterizing CMS's use of the CASPER Shared Folder as "an unconventional way of sending notices."  P. Timeliness Response at 3.  Petitioner maintains that it was unaware of the notice letters because it "had no need of access CASPER Shared Folder for any types of report."  Id. at 4.  In fact, CMS had been serving these notices via shared folders for three years at the time it served the first of the three notices (May 30, 2023).  And the facility should have known that it was required to access the CASPER Shared Folder for COVID-related and other important notices.⁷

The regulations were drafted at a time when virtually all notices were served by U.S. mail.  Hence, they provide that the date of receipt is presumed to be five days after the date on the notice "unless there is a showing that it was, in fact, received earlier or later."  42 C.F.R. § 498.22(b)(3).  Over time, as technology has made it possible, CMS has adopted more advanced (and, arguably, more reliable) methods of sending its notices, and the DAB has found that these alternative methods are valid.

In a modern era of electronic mailing and messaging, the term "mails" is not unambiguous.  The core question for due process is whether the transmission method is as capable of accomplishing the essential purpose of notice.

Fairway Medical Clinic & Shadow Creek Medical Clinic, DAB No. 2811 at 9 (2017) (emphasis added).  Thus, the Board has upheld the practices of sending notices by email, fax, or upload into a shared electronic folder and agreed that such notices are received on the date sent or filed.  See Allan L. Silverstein, M.D., DAB No. 2908 at 7-8 (2018); LCD Complaint:  Bioengineered Skin Substitute, DAB No. 2814 at 6-7) (2017).

The Civil Remedies Division's own practice for serving notice involves uploading the document into an electronic file and sending the parties an email indicating that a document has

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been filed.  The parties are expected to check their email accounts regularly and to check the electronic file.  In the Board's view, the agency's uploading the document creates a rebuttable presumption that it has been served on the parties, who have agreed to participate in the electronic filing system.  Silverstein, DAB No. 2908 at 7; Parvin Shafa, M.D., DAB No.2846 at 4-5 (2018); LCD Complaint, DAB No. 2814 at 6-7.  This is so even where the party fails to check the file and, thus, does not actually see the notice.  Silverstein, DAB No. 2908 at 7.

I agree that the date of service is the date CMS uploads a notice into the CASPER system.  Due process requires "notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.  It does not require "rigid conformity in terms of the kind of notice that must be given."  Fairway, DAB No. 2811 at 8 n6 (2017) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (citing Lehner v. United States, 685 F. 3d 1187, 1190-1191 (9^th Cir. 1982)).

Here, all Medicare-certified facilities were required to report COVID data weekly.  CMS had a monumental task in reviewing the NHSN submissions, identifying the facilities that did not comply, assessing penalties, and sending notices to the noncompliant.  Its solution for providing the weekly notices was "reasonably calculated, under the circumstances, to apprise" facilities of the actions taken and to afford them the opportunity to object.  CMS fully informed facilities of their obligations to check CASPER.

CMS thus had in place a reasonable and practical process for service; it was well-publicized; and the facility does not claim that that it was unaware of the CASPER-shared folders.⁸  And, because it was obviously not reporting, the facility knew or should have known that penalties would be imposed and that the notices of penalties would be in the file.  See Michael B. Zafrain, M.D., DAB No. 3075 at 15 (2022) (holding that Medicare providers and suppliers "have a duty to familiarize themselves with Medicare requirements); Waterfront Terrace, DAB No. 2320 at 7 (2010) (confirming that a Medicare-certified provider should possess at least a rudimentary understanding of program rules and terminology).

An additional, practical consideration compels me to reject Petitioner's implication that a facility receives notice only when it checks CASPER.  If the date of service is the date a facility checks the file, the system becomes unworkable.  A facility, particularly one that failed to report, would be able to increase the amount of time it has to appeal by simply not checking CASPER as required.  This is comparable to allowing a facility that was served by U.S. mail to delay the date of service by declining to open the envelope containing the notice.  When service is by U.S, mail, the date of service is the date the envelope arrives, not the date the recipient

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decides to open it.  See Day Op. of North Nassau, Inc., DAB No. 2818 at 5 n7 (2017) (indicating that the date the notices "arrived at [the facility's] offices was the date of receipt.").

Finally, Petitioner adds some virtually incomprehensible arguments about the difficulties a prior administrator may have had accessing the systems.  Petitioner does not exactly explain what evidence supports this claim but alludes generally to difficulties accessing the NHSN.  In support, Petitioner refers to (without specific citation) correspondence between facility officials and NHSN staff.  Those documents show occasional short-term difficulties, but they also establish that the problems were corrected within a day or two.  I could discern nothing to support the implication that the facility was not able to access the system.  See P. Ex. C.

I therefore grant CMS's motion to dismiss Petitioner's challenges to the May 30, June 5, and June 12, 2023 determinations.  I agree that its hearing requests were untimely and that Petitioner has not shown good cause for my extending the time for filing.

2. Petitioner is not entitled to hearings to challenge CMS's determinations – issued on July 17 and 24, 2023 – because CMS imposed no penalties.

Petitioner does not oppose CMS's motion to dismiss the July 17 and 24 appeals.  P. Response to Order to Show Cause at 3.

In fact, I have no jurisdiction to hear those appeals.  The hearing rights of a skilled nursing facility are established by federal regulations at 42 C.F.R. Part 498.  A facility dissatisfied with an initial determination is entitled to further review, but administrative actions that are not initial determinations are not subject to appeal.  42 C.F.R. § 498.3(a) and (d).  The regulations specify which actions are "initial determinations" and set forth examples of actions that are not.  With an exception not applicable here, a finding of noncompliance that results in CMS imposing a remedy specified in 42 C.F.R. § 488.406 is an initial determination for which a facility may request an ALJ hearing.  42 C.F.R. § 498.3(b)(13).  But a facility has no right to a hearing unless CMS imposes one of the specified remedies.  San Fernando Post Acute Hosp., DAB No. 2492 at 7-8 (2012); Columbus Park Nursing and Rehab. Ctr., DAB No 2316 at 7 (2010); Lutheran Home – Caledonia, DAB No. 1753 (2000); Schowalter Villa, DAB No. 1688 (1999).  The remedy, not the citation of a deficiency, triggers the right to a hearing.  Schowalter Villa, DAB No. 1688 at 3.  Where CMS withdraws the remedies or otherwise declines to impose one, Petitioner has no right to a hearing.  See, e.g., Fountain Lake Health & Rehab., Inc., DAB No. 1985 at 5-6 (2005).

Because CMS has imposed no remedies, Petitioner has no right to an ALJ hearing, and these matters must be dismissed.  42 C.F.R. § 498.70(b).  I therefore grant CMS's motion.

3. The facility was not in substantial compliance with 42 C.F.R. § 483.80(g)(1)-(2) because, for the weeks ending June 18 through August 6, 2023, the facility did not timely submit its Covid-19 data to the CDC, as required.

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As noted above, section 483.80(g) requires facilities to report, electronically, their COVID-19 data "no less than weekly," which CMS determined means "at least once every seven days."  Each Monday, CMS reviews the data submitted from the previous week.  Here, on the following Mondays, CMS reviewed the data from the corresponding week:  June 19, 2023; June 26, 2023; July 31, 2023, and August 7, 2023.  In each instance, review of the data showed that Petitioner did not submit the required data for those weeks.  E-file # 7g (CMS Ex. 8); E-file # 7e (CMS Ex. 6); E-file # 7c (CMS Ex. 4); E-file # 7a (CMS Ex. 2).

Petitioner concedes that it did not timely report as required.  It maintains that it eventually reported and again complains about the process for reporting.  Without pointing to anything specific, Petitioner maintains that "even with complete access, multiple errors and technical difficulties occurs (sic) with NSHN weekly reporting."  P. Response to MSJ at 4.

The regulation does not allow for delayed reporting.  It specifies that the facility must electronically report and that its reporting can be "no less than weekly."

Claiming that the system had glitches does not relieve Petitioner of its obligation to demonstrate that it timely submitted the required data, and, here, it admits that it did not do so.  Because no evidence establishes that the facility timely submitted its COVID-19 data for the weeks in question, it was not in substantial compliance with 42 C.F.R. § 483.80(g)(1)-(2).

4. The penalties imposed are consistent with regulatory requirements.

CMS argues that based on 42 C.F.R. § 488.438, the penalties imposed are reasonable because they are well below the regulatory maximums.  CMS MSJ at 7-8.  CMS cites to the wrong regulations.  As CMS's notice letters consistently advise, the "authority for imposing remedies is contained in . . . 42 C.F.R. § 488.477."  See, e.g., e-file # 9c (CMS Ex. 3) at 4.  As noted above, that regulation sets a minimum of $1,000 for the first offense, to which $500 is added for each additional offense.  The amount has been inflation-adjusted.  According to the most recent adjustment in place at the relevant time, the minimum penalty for the first occurrence was $1,075.  For each subsequent occurrence, according to the federal register, an additional $537 is added.  87 Fed. Reg. 15100, 15120 (March 17, 2022).

CMS, however, puts the incremental increase amount at $538.  It has not explained the $1 discrepancy.  In any event, except to argue that it should not have any penalty imposed, Petitioner has not challenged the amount of the penalty.  In the absence of any objection, I accept CMS's slightly higher amount.

That CMS imposed a penalty of $4,841 for the week ending May 29 shows that this was not the first time the facility failed to meet its reporting obligations.  In fact, this was the eighth offense.  For the first offense, CMS would have imposed the minimum penalty of $1,075.  With each additional week of noncompliance, CMS added $538.

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$4,841 = $1,075 + $538x

$4,841 - $1,075 = $538x

$3,766 = $538x

$3,766 ÷ $538= x

7 = x

Adding $538 for each additional week of noncompliance, by June 19, the amount was up to $6,455, and the following week the amount reached what CMS describes at the maximum (although it offers no authority for setting a maximum) of $6,993.

The penalties imposed are therefore consistent with the regulation, and I must affirm them.

Conclusions

Petitioner's hearing requests challenging the May 30, June 5, and June 12, 2023 determinations are untimely, and no good cause justifies my extending the times for filing.  I therefore dismiss them.  42 C.F.R. § 498.70(c).

Petitioner is not entitled to review of CMS's July 17 and 24, 2023 determinations because CMS imposed no penalties.  I therefore dismiss those hearing requests.  42 C.F.R. § 498.70(b).

For the weeks ending June 18 through August 6, 2023, the facility did not timely submit its Covid-19 data to the CDC and was therefore not in substantial compliance with 42 C.F.R. § 483.80(g)(1)-(2).

The penalties imposed are reasonable.

Endnotes

¹  Notice letters suggest that Petitioner may have waived its right to review of the May 30 and June 5 determinations, in return for 35% reductions in the penalties.  See e-file # 7 (CMS Ex. 2) at 1; e-file # 9c (CMS Ex. 3) at 1.  For whatever reason(s), the waivers seem to have been rescinded; Petitioner has attempted to pursue the appeals, and the full amounts of the penalties have been restored.  Neither party explains what happened.

²  As discussed below, the parties disregarded my orders for marking exhibits.  To avoid confusion, I refer to the documents in the record by their electronic file number.

³  For purposes of clarity, I will refer to this document as "P. Timeliness Response."

⁴  I refer to this document as "P. Response to MSJ."

⁵  My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion sections of this decision.

⁶  Petitioner's arguments are confusing, bordering on incomprehensible.  Adding to the confusion, Petitioner responded to each of CMS's motions separately, which would have been fine, except that its repetitive and overlapping arguments are scattered among its three submissions.  An individual "response" does not necessarily respond to the arguments CMS made in the supposedly corresponding motion.

⁷  In fact, as discussed below, evidence supports the proposition that these were not the first Covid-reporting notices sent to the facility.

⁸  The facility also well knew (or should have known) that it was obligated to report COVID data weekly through NHSN, but it did not do so.  For that reason, if I were to reach the merits of these three appeals, Petitioner would not prevail.