Morristown Post Acute Rehab and Nursing Center, DAB CR6524

DECISION

Morristown Post Acute Rehab and Nursing Center (Petitioner or facility) is a nursing facility, located in Morristown, New Jersey, that participates in the Medicare program.  Based on a survey completed on August 6, 2021, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with program participation requirements and imposed a total assessed per instance civil money penalty (CMP) of $21,875.00, a mandatory denial of payment for new admissions (DPNA) from November 6, 2021 through February 2, 2022, and a nurse aide training and competency evaluation program (NATCEP) prohibition from August 6, 2021 through August 5, 2023.  CMS Exhibit (Ex.) 2 at 1.  Petitioner here challenges the determination to impose the DPNA¹ and both parties have filed cross motions for summary judgment. 

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For the reasons discussed below, I grant the motion for summary judgment filed by CMS and deny the motion for summary judgment filed by Petitioner.  Based on the undisputed evidence, I conclude that the facility was not in substantial compliance with Medicare requirements governing quality of care, 42 C.F.R. §§ 483.24(a)(2) and 483.80(a)(1)(2)(4)(e)(f), and I affirm the imposition of the DPNA.  

I.     Background

The Social Security Act (Act) sets forth requirements for nursing facility participation in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing the 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 Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance with program participation requirements.  Act § 1864(a); 42 C.F.R. § 488.20.  The regulations require that each facility be surveyed once every 12 months, and more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a); 488.308(a)-(c).  

In this case, surveyors from the New Jersey State Department of Health (NJDOH) and Senior Service conducted a recertification and complaint survey from July 27, 2021 through August 6, 2021.  CMS Ex. 2 at 1.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with federal requirements for nursing homes participating in the Medicare and Medicaid programs.  Specifically, in a notice dated February 16, 2022, CMS found that the facility did not meet federal requirements under:  42 C.F.R. § 483.24(a)(2) (Tag F677 – ADL Care Provided for Dependent Residents), and 42 C.F.R. § 483.80(a)(1)(2)(4)(e)(f) (Tag F880 – Infection Prevention and Control).²  CMS Ex. 2 at 1.  CMS imposed a per instance CMP of $11,875.00 for the deficiency cited under 42 C.F.R. § 483.24(a)(2) and a per instance

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CMP of $10,000 for the deficiency cited under 42 C.F.R. § 483.80(a)(1)(2)(4)(e)(f).  CMS Ex. 2 at 1.  CMS also imposed a NATCEP prohibition from August 6, 2021 through August 5, 2023.  CMS Ex. 2 at 5-6.  Specifically at issue here is the imposition of the DPNA from November 6, 2021 through February 2, 2022.  

Petitioner timely requested a hearing.  On April 18, 2002, Judge Tannisha Bell issued a Standing Pre-hearing Order, setting forth prehearing procedures.³  CMS filed a pre-hearing brief (CMS Br.) and 52 proposed exhibits, including the sworn written testimony of five proposed witnesses.  Petitioner filed a pre-hearing brief (P. Br.) and 12 proposed exhibits, including the direct written testimony of two proposed witnesses.  Petitioner subsequently filed a motion for summary judgment (P. MSJ).  CMS filed a brief opposing Petitioner’s motion for summary judgment and a cross motion for summary judgment (CMS MSJ). 

As neither party objected to any of the opposing party’s proposed exhibits, I admit CMS Exs. 1-52 and P. Exs. 1-12 into the record.  Although Petitioner initially requested to cross-examine the witnesses proposed by CMS, its subsequent motion for summary judgment renders that request moot.  For the reasons discussed below, I grant CMS’s motion for summary judgment and deny Petitioner’s motion for summary judgment. 

II.     Issues

I consider whether summary judgment is appropriate.  On the merits, the issues before me are: 

1. Whether the facility was in substantial compliance with 42 C.F.R. §§ 483.24(a)(2) and 483.80(a)(1)(2)(4)(e)(f); and
2. If the facility was not in substantial compliance, whether the imposition of the mandatory DPNA was appropriate.  

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III.     Discussion

A.  Because the undisputed facts establish that the facility was not in substantial compliance with 42 C.F.R. § § 483.24(a)(2) and 483.80(a)(1)(2)(4)(e)(f), CMS is entitled to summary judgment.⁴  

Summary judgment is appropriate if a case presents no genuine issue of material fact, and one party is entitled to judgment as a matter of law.  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. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).  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). 

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.  Brightview Care Ctr.,DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr.,DAB No. 1942 at 8 (2004).  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, 14-15 (2015), aff’d, W. Tex. LTC Partners, Inc. v. United States Dep’t of Health & Human Servs.,843 F.3d 1043 (5th Cir. 2016). 

In this case, both parties have argued in favor of summary judgment, but their positions on what “material facts” are in dispute differ.  CMS alleged that the facility was not in compliance with the provisions of 42 C.F.R. § 483.24(a)(2) because it failed to provide the necessary services to maintain good nutrition, grooming, and personal and oral hygiene to residents who were unable to carry out activities of daily living.  CMS Br. at 5-6.  In addition, CMS alleged that the facility failed to establish and maintain an infection prevention and control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of communicable disease and infections.  CMS Br. at 25 (citing 42 C.F.R. § 483.80).  While

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its submissions are a bit inconsistent on this question,⁵ Petitioner does not appear to assert that the facility was in substantial compliance with the above regulations, stating that “Petitioner does not dispute the validity of the citations of F-677 and F-880.”  P. MSJ at 2.  Instead, it argues that “material issues of fact exist regarding whether CMS gave adequate notice of the DPNA.”  Id. at 12. 

In evaluating the cross motions for summary judgment, I note that “[s]ummary judgment is appropriate when the record shows there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”  Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 5 (2016) (citation omitted).  A dispute of fact is “material” if its resolution might affect the case’s outcome under governing law.  Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).  

As noted above, the initial issue I must resolve is whether the facility was in substantial compliance with 42 C.F.R. §§ 483.24(a)(2) and 483.80(a)(1)(2)(4)(e)(f).  Following the survey conducted at the facility from July 27, 2021 through August 6, 2021, the facility was determined to have failed to:  a) provide fingernail care for dependent residents, b) maintain dependent residents in clean, unsoiled clothing, c) bathe dependent residents according to their shower schedules, and d) provide dependent residents with routine and appropriate incontinence care.  CMS Ex. 1 at 22.  This deficient practice was identified for 8 of 10 residents reviewed for activities of daily living (ADL), and on 3 of 4 active nursing units throughout the facility.  Consequently, the facility was determined to be out of substantial compliance with the provisions of 42 C.F.R. § 483.24(a)(2), governing ADL care provided for dependent residents.  CMS Ex. 1 at 22-45. 

In addition, following the survey, the facility was determined to have failed to follow facility policy and Centers for Disease Control and Prevention guidelines to limit the potential spread of infection by failing to:  a) maintain a system of infection surveillance, per facility policy, to identify and monitor facility infections for all residents who resided on 4 of 4 nursing units, b) ensure physician-ordered transmission-based precautions for 2 of 2 residents were implemented and followed, c) perform appropriate hand hygiene as indicated during a medication observation, upon doffing personal protective equipment, during a meal observation, and as observed in a resident’s room, d) maintain a consistent COVID-19 screening process upon facility entry, e) maintain respiratory suctioning equipment in a clean, sanitary manner for 1 of 2 residents reviewed, and f) maintain 4 out of 4 multi-use vital sign machines in a sanitary manner on 1 of 4 nursing units.  CMS Ex. 1 at 126-156.  Based on these observations, the facility was determined to be out of

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substantial compliance with the provisions of 42 C.F.R. § 483.80(a)(1)(2)(4)(e)(f), governing infection prevention and control. 

Petitioner does not dispute the allegations by CMS that it was not in substantial compliance with the cited regulations.  It concedes that “[a] review of the documentation provided by the surveyors to support the citation of this tag were based on actual observation of care for these eight residents.  Petitioner does not dispute the direct observation and staff interviews.”  P. MSJ at 3.  Thus, there are no material facts in dispute on the question of whether the facility was in substantial compliance with the provisions of 42 C.F.R. §§ 483.24(a)(2) and 483.80(a)(1)(2)(4)(e)(f). As a result, I find that the facility was not in substantial compliance with 42 C.F.R. § 483.24(a)(2) and 42 C.F.R. § 483.80(a)(1)(2)(4)(e)(f) during the period from July 27, 2021 through February 2, 2022 and CMS is entitled to summary judgment. 

B.  Because the undisputed facts establish that the imposition of the mandatory DPNA was appropriate, CMS is entitled to summary judgment. 

As noted above, a recertification/complaint survey was conducted at the facility from July 27, 2021 through August 6, 2021.  CMS Ex. 2 at 1.  At the conclusion of this survey, the facility was determined to be out of substantial compliance with the provisions of 42 C.F.R. §§ 483.24(a)(2) and 483.80(a)(1)(2)(4)(e)(f).  On January 24, 2022, a review/revisit survey was conducted and the facility remained out of substantial compliance because the cited deficiencies had not been corrected.  P. Ex. 1.  Following a review/revisit survey on February 4, 2022, the facility was determined to be in substantial compliance as of February 3, 2022.  CMS Ex. 2 at 1.  In a notice dated February 16, 2022, the facility was informed that a mandatory DPNA was imposed effective November 6, 2021 through February 2, 2022.  CMS Ex. 2 at 1.  

Petitioner objects to the imposition of the DPNA, arguing that to impose one of the remedies in 42 C.F.R. § 488.406, which includes imposition of a DPNA on a skilled nursing facility, 42 C.F.R. § 488.402(f)(4) requires that notice must be given “at least 15 calendar days before the effective date of the enforcement action in situations in which there is no immediate jeopardy.”  P. MSJ at 14.  It asserts that “there can be no dispute that CMS and the NJDOH did not provide the proper 15-day calendar notice before imposing the November 6, 2021 through February 2, 2022 MDPNA”.  Id. at 11.  It concludes that because of the lack of required notice, the DPNA was improperly imposed, and the deficiency should be “deleted.”  Id. at 20. 

Before considering Petitioner’s arguments regarding the validity of the imposition of the DPNA, it is necessary to determine whether this question is even reviewable here.  A provider may seek review of an initial determination, as defined in 42 C.F.R. § 498.3.  Included as an initial determination is the “finding of noncompliance leading to the

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imposition of enforcement actions specified in § 488.406⁶. . . of this chapter, but not the determination as to which sanction or remedy was imposed.”  42 C.F.R. § 498.3(b)(13).  Similarly, even regulations governing the notice requirements, discussed below, only include the right to appeal “the determination leading to the remedy.”  42 C.F.R. § 488.402(f)(iv).  As discussed above, Petitioner does not contest the “finding of noncompliance leading to the imposition of enforcement actions.”  The question then becomes whether there is a remaining right to contest the remedy imposed? 

In addressing this question, it is necessary to note that there is a significant difference between the two remedies of denying payment for new admissions identified in Act § 1819(h)(2).  Section 1819(h)(2)(B)(i) provides that the Secretary “may deny any further payments under this title with respect to all individuals entitled to benefits under this title in the facility or with respect to such individuals admitted to the facility after the effective date of the finding.”  (Emphasis added.) Section 1819(h)(2)(D), however, states that “[i]f a skilled nursing facility has not complied with any of the requirements of subsections (b), (c), and (d), within 3 months after the date the facility is found to be out of compliance with such requirements, the Secretary shall impose the remedy described in subparagraph (B)(i) for all individuals who are admitted to the facility after such date.”  (Emphasis added.) In this case, the DPNA was based on the provisions of section 1819(h)(2)(D).  CMS Ex. 2 at 2, 5-6. 

As noted above, there is no apparent regulatory authorization for a hearing on the issue of the sanction imposed.  This would appear to be particularly the case when the remedy is mandated by section 1819(h)(2)(D) if the underlying findings are established, which they are in this case.  I am unaware of any judicial or Board authority indicating that there is a right to further review of the imposition of a mandated remedy.  I have considered the Board’s decision in Beechwood Sanitarium, DAB No. 1906 (2004).  While not ruling directly on the question of whether the “DPNA was on its face invalid without a 15 day advance notice,” the Board did not indicate the issue could not be contested. Beechwood at 12.  However, that case appears to involve application of discretionary DPNA since the underlying ALJ decision refers to the fact that “CMS may impose the remedy of denial of payment for new Medicare admissions” (emphasis added), which would be consistent with section 1819(h)(2)(B) rather than section 1819(h)(2)D), which is at issue here.  Beechwood Sanitarium,DAB No. CR821 at 15 (2001). As such, its relevance to the issue before me is questionable and the right to review the remedy imposed here has not been convincingly established. 

Even assuming, however, that there was a right to review of the remedy imposed, it is not entirely clear that the notice provisions of 42 C.F.R. § 488.402 apply to mandatory

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actions.  Section 488.402(b), governing the imposition of remedies, refers to situations in which CMS “chooses to apply one or more remedies specified in § 488.406.”  (Emphasis added.)  Section 488.402(c) indicates CMS “may apply one or more remedies for each deficiency.”  (Emphasis added.)  The subsequent notification requirements in section 488.402(f) do not specifically indicate that they are to be applied when the imposition of remedies is mandatory.  Assuming, however, that the notification requirements of section 488.402(f) do apply to mandatory remedies, such as those required by section 1819(h)(2)(D), Petitioner’s argument that the DPNA was improperly imposed because of CMS’s failure to timely provide the notice required by 42 C.F.R. § 488.402(f) is addressed.  

Petitioner argues that to impose one of the remedies in 42 C.F.R. § 488.406, CMS was required to give 15 days’ notice before imposing the remedy, and, in this case, “there can be no dispute that CMS and the NJDOH did not provide the proper 15-day calendar notice before imposing the November 6, 2021, through February 2, 2022 DPNA.”  P. MSJ at 11.  Petitioner is entirely correct that there is no evidence that it was given the notice specified in 42 C.F.R. § 488.402(f)(4) 15 days before the effective date of the DPNA.  To the contrary, the notice was received significantly after the effective date of the DPNA.  CMS indirectly acknowledges that the 15-day notice was not provided to Petitioner, indicating that “CMS does not dispute that there were flaws in its notice to Morristown.”⁷  CMS MSJ at 4.  CMS argues that despite this “flawed” notice, “nowhere in the statutory and regulatory scheme does it state that the failure to follow the notice requirements of 42 C.F.R. § 488.402(f)(1)(i)-(iv) precludes CMS from imposing a statutorily mandated remedy.”  CMS MSJ at 4. 

Accepting that there is no dispute that CMS did not provide the 15-day notice before imposing the DPNA, the question then becomes whether lack of regulatorily required notice precludes imposition of a remedy mandated by statute.  I find that it does not. 

As indicated above, section 1819(h)(2)(D) of the Act provides that the Secretary “shall” impose a DPNA if a SNF has not complied with Medicare participation requirements within three months after the date the facility is found to be out of compliance.  The statute mandates that action and does not contain any provisions requiring notice before taking that action.  I am unaware of any authority that would allow me to set aside the

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mandatory effectuation of a statute because of a violation of a regulation, and Petitioner has not pointed me to any such authority.⁸ 

To the contrary, the Board has ruled in a case involving similar deficiencies that the failure to comply with a notice requirement does not invalidate an action taken under statutory authority.  In Sunshine Haven Lordsburg, CMS terminated a provider agreement⁹ but failed to comply with regulatory notification and resident transfer provisions.  In its decision, the Board stated that“nothing in 42 C.F.R. § 488.456 suggests that failure to comply strictly with the publication requirements would be a basis for invalidating the termination.”  DAB No. 2456 at 22 (2012) (citing Beechwood Sanitarium, DAB No. 1824 (2002)).  Moreover, the United States District Court for the District of New Mexico concurred with this analysis, stating that “[a]s in § 488.456(c), nothing in § 488.426(b) suggests that the failure to transfer residents in a safe and orderly manner constitutes a basis for invalidating the termination of the provider agreement.”  Sunshine Haven Nursing Operations, LLC v. U.S. Dep’t of Health & Human Servs., No. 2:14-CV-00164-KG-CG, 2016 WL 9777239 at *10 (D.N.M. Sept. 21, 2016).  The Court agreed with HHS’s contention that the DAB correctly determined that the regulations regarding notice to the public and the transfer of residents do not provide a basis to invalidate a termination of a provider agreement.  

In this case, there is no dispute that the facility was found to be out of compliance as of July 27, 2021 and it did not return to substantial compliance until February 3, 2022.  Petitioner does not dispute these facts, as discussed above.  Therefore, the factual findings necessary to trigger the provisions of section 1819(h)(2)(D) are not in dispute.  In the absence of any apparent basis to void the statutorily mandated DPNA, I find the DPNA was appropriately imposed.¹⁰  

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Petitioner next raises an equitable argument, asserting that it was “severely prejudiced” and experienced “significant financial consequences that will likely take months or years to recover from” because of the lack of timely notice of the DPNA and asserts that, had it been aware of the DPNA, “new admissions would not have been accepted until it was lifted.”  P. MSJ at 19.  While I do not doubt that Petitioner has experienced severe financial consequences as a result of the DPNA, I also note that it should have been aware of the pending DPNA. 

Courts and the Board have consistently held that “Medicare providers and suppliers, as participants in the program, have a duty to familiarize themselves with Medicare requirements.”  Francis J. Cinelli, Sr., D.O., DAB No. 2834 at 10 (2017) (citing Gulf South Medical, DAB No. 2400 at 9 (2011)); John Hartman, D.O., DAB No. 2564 at 3 (2014) (quoting Heckler v. Cmty. Health Servs. of Crawford County, Inc., 467 U.S. 51, 63 (1984) (“[T]hose who deal with the government are expected to know the law[.]”))  In Community Health Services, the Supreme Court stated that “[a]s a participant in the Medicare program, respondent had a duty to familiarize itself with the legal requirements for cost reimbursement.”  467 U.S. at 64.  The Court also noted that the regulations “should and did put respondent on ample notice of the care with which its cost reports must be prepared.”  Id. at 65-66.  

The provisions triggering the mandatory imposition of a DPNA are clearly set forth in both section 1819(h)(2)(D) of the Act and 42 C.F.R. § 488.417(b)(1).  Participants in the Medicare program are expected to be aware of the mandatory consequences when a skilled nursing facility has not returned to substantial compliance within three months after the date it was found to be out of compliance. 

According to the surveyors’ notes, a meeting was held at the conclusion of the survey on August 6, 2021 with facility administrative staff.  CMS Ex. 47 at 8; CMS Ex. 40 at 5, 11.  One would presume that, at this final meeting, the deficiencies found during the survey would be identified.  While this was not specifically stated in the surveyors’ notes, those notes do indicate that at that meeting, an individual from “Chava corporate” reportedly stated that “as a management team as a company we recognize there are things we need to work on,” suggesting that the identified deficiencies were discussed at that time.  CMS Ex. 40 at 5.  Even assuming this was not the case and Petitioner was still unaware that deficiencies were identified during the survey, Petitioner acknowledged receiving the CMS-2567, the Summary Statement of Deficiencies, on August 19, 2021.  P. Ex. 3 at 1.  This document clearly identified the deficiencies found during the survey.  CMS Ex. 1. 

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Thus, the facility should have been aware that it was likely out of compliance as of the conclusion of the survey on August 6, 2021. 

Even in the unlikely event the facility still had no reason to believe it was out of compliance as of August 6, 2021, it did receive a notice from the NJDOH dated November 24, 2021 indicating that it was “not in compliance with the Federal requirements and that corrections must be made in order for your facility to continue to participate in the Medicare and Medicaid programs.”  P. Ex. 2 at 1.  At this point, a facility familiar with Medicare requirements would have done the math.  As of November 24, 2021, Petitioner was aware that it had been found out of compliance since at least August 6, 2021 and remained out of compliance as of November 24, 2021.  This should have triggered an inquiry into whether it was facing a mandatory DPNA since it now knew that it had been found to be out of compliance for more than three months. 

There is no discretion involved in the application of these statutory and regulatory provisions so there can be no argument that the facility did not know whether a DPNA would be applied.  Petitioner had ample notice that it had been found to be out of compliance for three months after the last day of the survey and should have known that a mandatory DPNA would be imposed.  With at least constructive notice, if it elected to continue to admit new residents at that point, it would have done so at its own risk.  As a result, while Petitioner did reportedly experience some financial consequences from the imposition of the DPNA, I cannot find, based on this record, that the imposition of that remedy was not proper. 

IV.     Conclusion

I affirm CMS’s imposition of a DPNA on Petitioner for the period from November 6, 2021 through February 2, 2022, pursuant to the provisions of section 1819(h)(2)(D) of the Act. 

Endnotes

¹  Petitioner does not raise any argument in either its pre-hearing brief or its motion for summary judgment on the per instance CMP of $21,875.00, other than to seek to have it refunded.  P. MSJ at 20.  Judge Bell’s pre-hearing order directed the parties to address “all issues of law and fact in their briefs.”  Standing Prehearing Order, ¶ 6(d).  Given that Petitioner does not contest the underlying basis for the imposition of the CMP, as discussed below, and does not address any of the factors set forth in 42 C.F.R. § 488.438(f), the imposition of the CMP is not further addressed in this decision.

²  Although the survey identified other regulations with which Petitioner was not in compliance, remedies were imposed only for the regulations cited above.  CMS Ex. 2 at 2.  As a result, only those deficiencies are reviewed in this decision.  42 C.F.R. § 498.3(d)(10)(ii); Schowalter Villa, DAB No. 1688 (1999) (The imposition of a remedy, not the citation of a deficiency, triggers the right to a hearing.).

³  The case was reassigned to me on May 9, 2024.

⁴  My findings of fact and conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

⁵  In a somewhat confusing manner, Petitioner filed a Motion for Summary Judgment but then argued that “[s]ummary judgment is not appropriate here, where the record demonstrates that material issues of fact remain in dispute.”  P. MSJ at 12.

⁶  Section 488.406 governs available remedies and includes the DPNA.  42 CFR § 488.406(a)(2)(ii).

⁷  This was not the government’s finest hour.  P. Ex. 3 demonstrates the great difficulty Petitioner had in getting any kind of clarification from CMS and/or the state agency.  P. Ex. 8 and CMS Ex. 2 illustrate the confusing notices provided to Petitioner regarding the DPNA.

⁸  Petitioner cites two decisions as authority for its position:  Victoria Falls Skilled Nursing and Rehab, DAB No. CR6071 (2022) and Manorcare Nursing and Rehabilitation Center, DAB No. CR4917 (2017).  P. MSJ at 13.  However, both of these decisions are ALJ decisions, which do not carry precedential weight and are not binding on the Board or other ALJs.  Green Oaks Health & Rehab. Ctr., DAB No. 2567 at 9 (2014); Lopatcong Ctr., DAB No. 2443 at 12 (2012); Universal Health Care – King, DAB No. 2383 at 9 (2011) (and cases cited therein).  Moreover, the cited ALJ decisions imposed the DPNA under section 1819(h)(2)(B) of the Act, a discretionary remedy, which is not the authority at issue in this case.

⁹  Termination of a provider agreement is a mandated action under certain circumstances, as specified in section 1819(h)(4).

¹⁰  In so doing, I have not weighed or evaluated the opinion of Petitioner’s expert witness that the imposition of the DPNA was “unjust and unwarranted.”  P. Ex. 9 at 21. Evaluation of this opinion on the imposition of the DPNA would not be appropriate since I have granted CMS’s motion for summary judgment.  However, I would note that, even in granting summary judgment, I am not required to accept opinions on the ultimate legal conclusion, such as that offered in P. Ex. 9, or inferences that are not reasonable.  W. Tex. LTC Partners, Inc.,DAB No. 2652 at 6-7 (2015).