DEPARTMENT OF HEALTH & HUMAN SERVICES

Centers for Medicare & Medicaid Services

Jacob K. Javits Federal Building
26 Federal Plaza, Room 37-130
New York, New York 10278-0063

Northeast Division of Survey & Certification

Amended on 6/13/2019 typographical error in 5/14/2019 letter: Corrected to read Substandard
Quality of Care
By Fax: (315)343-1821
May 14, 2019
Email: Admin@pontiaccare.com

Arlyn Mallo
Administrator
Pontiac Nursing Home
303 East River Road
Oswego, NY 13126
RE:
Enforcement Cycle Start Date: April 2, 2019 through April 19, 2019
Additional Surveys: March 7, 2019, April 1, 2019, April 2, 2019
Immediate Jeopardy Period: December 16, 2018
Enforcement Remedies - Pending:
Mandatory Three Month Denial of Payment for New Admissions effective July 19, 2019
Mandatory Six Month Termination effective October 19, 2019
Nurse Aide Training and Competency Program Prohibition (NATCEP)-IMPOSED: April
19, 2019 through April 18, 2021
Civil Money Penalty (CMP) - IMPOSED: CMS is imposing a $21,393.00 Per Instance CMP
for the Immediate Jeopardy and Substandard Quality of Care, described at Federal Tags:
F0580 -- S/S: J -- § 483.10(g)(14)(i)-(iv)(15) -- Notify of Changes; F0684 -- S/S: J -- § 483.25 --
Quality of Care. The total assessed CMP is $21,393.00. T his CMP is a one-time amount that
will not accrue.

Dear Ms. Mallo: CMS Certification Number: 33-5590

On April 2, 2019 through April 19, 2019, a survey was completed at your facility by the New
York State Department of Health, Office of Long Term Care (State Survey Agency). This
survey was conducted to determine if your facility was in compliance with the Federal
requirements for nursing homes participating in the Medicare and Medicaid programs. This
survey found Immediate Jeopardy and Substandard Quality of Care, described at
Federal Tags: F0580 -- S/S: J -- § 483.10(g)(14)(i)-(iv)(15) -- Notify of Changes; F0684 -- S/
S: J -- § 483.25 -- Quality of Care, immediate correction must be made in order for your
facility to continue to participate in the Medicare and Medicaid programs.

Your Enforcement Cycle began with the March 7, 2019 survey. All surveys conducted after
March 7, 2019, will become a part of this Enforcement Cycle.
The enforcement cycle will not end until substantial compliance is achieved for all deficiencies
from all surveys within an enforcement cycle. Facilities are expected to achieve and maintain
continuous substantial compliance.

The State Survey Agency has recommended to the Centers for Medicare & Medicaid Services
(CMS) Regional Office and to the State Medicaid Agency that certain remedies be imposed. The
statutory enforcement remedies go into effect per the effective dates below without additional
notification from this office. CMS may exercise its authority to alter the remedies imposed. All
regulatory references may be found in Part 42 of the Code of Federal Regulations.

PHASE TWO ENFORCEMENT MORATORIUM NOTICE

Based on concerns from stakeholders that some facilities may need additional time to come into
compliance with the new Phase 2 requirements, CMS will not impose civil money penalties,
discretionary denial of payment, and/or discretionary termination for cited non-compliance with
certain Phase 2 provisions for 18 months (Nov. 28, 2017 - May 28, 2019). Further, CMS will
hold constant Nursing Home Compare's health inspection ratings for one year.

Therefore, if this notice includes the imposition of civil money penalties, discretionary denial of
payment for new or all admissions or discretionary termination, those remedies are being
imposed only as a result of violations of Phase 1 or non-exempt Phase 2 deficiencies. For more
information, see S&C Memo 18-04-NH, available at https://www.cms.gov/Medicare/Provider-
Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-
18-04.pdf.

CMS is conducting a review of these and all other requirements of participation is to look for
ways to reduce burden on providers while ensuring patient safety. We will assess the
appropriateness and necessity of these requirements in protecting the health, safety, welfare and
rights of residents, and determine which may be streamlined or eliminated (See 82 Fed. Reg.
21014 (May 4, 2017) at Section VI. C.). As the CMS standards are under review, any party using
CMS survey reports should be cognizant of this fact.

IMPOSITION OF REMEDIES

TERMINATION OF PROVIDER AGREEMENT

Your provider agreement in the Medicare and Medicaid programs will be terminated October 19,
2019, unless substantial compliance is achieved before October 19, 2019. This action is
mandated by the Social Security Act at §§ 1819(h)(2)(C), 1919(h)(3)(D), 1866(b)(2), as well as
Federal regulations at 42 CFR §§ 488.412, 488.456 and 489.53. We will post a public notice of
the termination on the CMS Website. Please note that the termination of payments for Medicare
includes Medicare beneficiaries enrolled in Medicare managed care plans.

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DENIAL OF PAYMENT FOR NEW ADMISSIONS

Effective July 19, 2019, denial of payment for new admissions will be imposed. This action is
mandated by the Social Security Act at §§ 1819(h)(2)(D) and 1919(h)(2)(C) and Federal
regulations at 42 CFR § 488.417(b). Once imposed, denial of payment for (all) new admissions
under Medicare and Medicaid will continue until substantial compliance is achieved or
termination occurs. Please note that the denial of payment for new admissions includes
Medicare beneficiaries enrolled in managed care plans.

IMPOSITION OF CIVIL MONEY PENALTY (CMP)

As a result of the April 2, 2019 through April 19, 2019 survey, in accordance with §§ 1819(h)
and 1919(h) of the Social Security Act, and the enforcement regulations specified at 42 CFR Part
488, CMS is imposing a Civil Money Penalty (CMP). CMS is imposing a $21,393.00 Per Instance
CMP for the Immediate Jeopardy and Substandard Quality of Care, described at Federal
Tags: F0580 -- S/S: J -- § 483.10(g)(14)(i)-(iv)(15) -- Notify of Changes; F0684 -- S/S: J -- §
483.25 -- Quality of Care. The total assessed CMP is $21,393.00.

This CMP is a one-time amount that will not accrue.

CMP payment is due no later than seventy-five (75) days from the date of your receipt of CMS'
initial CMP notice, unless: 1) a provider waives their appeal rights before the end of the sixty
(60) day appeal period - then CMP payment is due within fifteen (15) days of CMS' receipt of
the waiver request; 2) a provider appeals an enforcement action within the 60 day appeal period,
the CMP payment is due to CMS for placement into escrow within fifteen (15) days of CMS'
notification of the appeal; or, 3) a provider is terminated, payment is then due within fifteen (15)
days of the termination date.

You will be able to receive a thirty-five percent (35%) discount of the final CMP amount if you
waive your appeal rights. You must inform this office via e-mail to
Edwin.Walaszek@cms.hhs.gov within 60 days of the date of your receipt of this letter. The
Civil Money Penalty is subject to immediate payment to an escrow should you appeal this action.
Your agency will be notified at a later date of how and when to make the escrow payment if you
appeal.

FACTORS USED IN DETERMINING THE AMOUNT OF YOUR CMP AND

REQUIREMENTS FOR FINANCIAL HARDSHIP REQUESTS

In determining the amount of the CMP that we are imposing, we have considered your facility's
history of noncompliance, including repeated deficiencies; its financial condition; the factors
specified in the Federal requirement at 42 CFR § 488.404; and the facility's degree of culpability,
including, but not limited to, neglect, indifference, or disregard for resident care, comfort or
safety. (Under 42 CFR § 488.438(f)(4), the absence of culpability is not a mitigating
circumstance in reducing the amount of the penalty.)

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If you believe that you have documented evidence that should be considered in establishing the
amount of the CMP, the following documents should be submitted to our office within fifteen
(15) days of your receipt of this notice:

1. A letter outlining the specific financial hardship;

2. Current balance sheet;
3. Current income statement;
4. Cash flow statement;
5. Most recent full year financial statements prepared by an independent accounting firm. Be
certain to include footnotes;
6. Most recent full year financial statements of the home office and/or related entities;
7. Disclosure of expenses and amounts paid/accrued to the home office and/or other related
entities;
8. Copy of tax returns for the preceding two years;
9. Documentation of any/all financing arrangements including mortgages, long term debt and
lines of credit;
10. Copy of a letter from the Bank denying the nursing home a loan;
11. Provide an organizational chart with an explanation/description concerning the related
entities; and,
12. Signed copy of an attestation statement by the Administrator, CFO, CEO, and owner (The
attestation statement form will be sent to you upon submission of your request for a financial
hardship determination.)

Should you decide to waive your appeal rights within 60 calendar days of your receipt of this
notice, CMS will reduce your CMP by thirty-five percent (35%). Your waiver of appeal rights
must be submitted in writing or via e-mail to Edwin.Walaszek@cms.hhs.gov by July 23, 2019.
Should you decide to appeal this action, the CMP will be subject to immediate payment into an
escrow account. Your facility will be notified at a later date of how and when the escrow
payment will occur.

OPPORTUNITY FOR INDEPENDENT INFORMAL DISPUTE RESOLUTION (IIDR)

CMS has determined that due to the seriousness of these deficiencies, under the requirements at
42 CFR § 488.431, this CMP will be subject to escrow and your facility may request an
Independent Informal Dispute Resolution (IIDR). Your request for an IIDR must be sent via e-
mail to idr@health.ny.gov with a hard copy to per State Instructions to Ms. Tarrah Quinlan at the
following address:
IIDR Requests (Attention: Tarrah Quinlan)
Bureau of Quality Assurance & Surveillance
NYS Department of Health
875 Central Avenue
Albany, NY 12206

The State Survey Agency will forward your request to the IIDR group, and they will inform you
when and how the IIDR will be conducted. Your request for an IIDR must be submitted to the
above address no later than 10 calendar days from the date of your receipt of this notice.

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You may not have an Informal Dispute Resolution (IDR) and an IIDR at the same time for the
same survey findings, unless the IDR has already been completed prior to your receipt of this
notice. If you have already requested an IDR from the State, and it has not been completed, you
must withdraw your request for the IDR prior to submitting a request for an IIDR. Requesting an
IDR or IIDR will not delay the imposition of any enforcement remedy.

NURSE AIDE TRAINING AND COMPETENCY EVALUATION PROGRAM (NATCEP)

PROHIBITION

A prohibition against the provision of nurse aide training and competency evaluation program
(NATCEP) has been imposed against your facility effective April 19, 2019 through April 18,
2021. Please note that Federal law, as specified in the Social Security Act at §1819(f)(2)(B) and
§1919(f)(2)(B), prohibits approval of nurse aide training and competency evaluation programs
and/or nurse aide competency evaluation programs offered by, or in, a facility which, has been
subject to an extended or partial extended survey as a result of a finding of substandard quality of
care and/or has been assessed a total civil money penalty of not less than $10,697.00. This
prohibition applies to any program provided by the facility itself, or by another entity on the
premises of the facility. If a program is currently in session, that session may continue to
completion. Once completed, no new sessions will be allowed until April 19, 2021.

APPEAL RIGHTS

If you disagree with the determination made based on the March 7, 2019, April 1, 2019, April 2,
2019, and April 19, 2019 surveys, you or your legal representative may request a hearing before
an administrative law judge of the Department of Health and Human Services, Departmental
Appeals Board. The appeal rights are set out in the Federal regulations at 42 CFR § 498.40, et
seq. The regulation explains the appeal rights following the determination by the CMS as to
whether such entities [meet/continue to meet] the requirements for enrollment/participation in
the Medicare program. Filing an appeal will not stop any termination action by CMS.

The following information is required with all Appeal requests:

- Your legal business name.

- Your Medicare PTAN (if applicable).
- Tax Identification Number (TIN) or Employer Identification Number (EIN).
- A copy of CMS Regional Office (RO) decision.

An appeal/request for hearing must be filed no later than sixty (60) calendar days from the date
of your receipt of this letter. Upon appeal, any assessed Civil Money Penalty (CMP) will be due
for payment within fifteen (15) days to the CMS Escrow account. Instructions will be sent at a
later date indicating how, where and when to send payment.

You must file your appeal electronically at the Departmental Appeals Board Electronic
Filing System Web site (DAB E-File) at https://dab.eflle.hhs.gov.

To file a new appeal using DAB E-File, you first need to register a new account by:

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(1) clicking Register on the DAB E-File home page;
(2) entering the information requested on the "Register New Account" form; and
(3) clicking Register Account at the bottom of the form. If you have more than one
representative, each representative must register separately to use DAB E-File on your behalf.
The e-mail address and password provided during registration must be entered on the login
screen at https://dab.efile.hhs.gov/user_sessions/new to access DAB E-File. A registered user's
access to DAB E-File is restricted to the appeals for which he is a party or authorized
representative.

Once registered, you may file your appeal by:

(1) clicking the File New Appeal link on the Manage Existing Appeals screen;
(2) then clicking Civil Remedies Division on the File New Appeal screen; and,
(3) entering and uploading the requested information and documents on the "File New Appeal-
Civil Remedies Division" form.

At a minimum, the Civil Remedies Division (CRD) requires a party to file a signed request for
hearing and the underlying notice letter from CMS that sets forth the action taken and the party's
appeal rights. All documents must be submitted in Portable Document Format ("PDF"). Any
document, including a request for hearing, will be deemed to have been filed on a given day, if it
is uploaded to DAB E-File on or before 11:59 p.m. ET of that day. A party that files a request for
hearing via DAB E-File will be deemed to have consented to accept electronic service of appeal-
related documents that CMS files, or CRD issues on behalf of the Administrative Law Judge, via
DAB E-File. Correspondingly, CMS will also be deemed to have consented to electronic service.
More detailed instructions on DAB E-File for CRD cases can be found by clicking the CRD E-
File Procedures link on the File New Appeal Screen for CRD appeals. If you have any questions
about the CRD E-File process, please contact 608-301-2787 between the hours of 8:00AM and
4:00 PM.

You are required to e-file your appeal request.

Important: The Administrator of Records should notify the CMS Regional Office if the
facility files an appeal via email to Edwin.Walaszek@cms.hhs.gov and
RONYdsc@cms.hhs.gov .

You may be represented by counsel at a hearing at your own expense.

REMINDER

Our letter sets forth specific timeframes to which your facility must comply:

1. A request for IIDR must be made within 10 calendar days of your receipt of this notice,
per the instructions noted above.

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2. A request for reconsideration of the amount of the CMP based on hardship must be made
within 15 calendar days of your receipt of this notice, per the instructions noted above.

3. Payment of the assessed CMP must be made on or before the above payment due date to
avoid accrued interest. Keep in mind that electronic transfer of funds is the most efficient way to
send payment. Mailing your payment could result in that payment being received after the
payment due date and subject your facility to interest for each day beyond the payment due date.

4. A request for appeal must be made electronically per the instructions noted above, within
60 calendar days of the date of your receipt of this notice, regardless of whether an IDR or an
IIDR has been requested or is in process. An appeal will not stop the time-clock for any
termination action.

5. A waiver of appeal rights must be made in writing or via email, per the instructions noted
above, within 60 calendar days of the date of your receipt of this notice, regardless of whether an
IDR or an IIDR has been requested or is in process.

6. The Civil Money Penalty imposed is subject to escrow if your facility appeals this
action. Your facility will be notified at a later date of how and when the escrow payment will
occur.

If you have any questions regarding this matter, please contact Edwin Walaszek at (212) 616-
2512 or via email at Edwin.Walaszek@cms.hhs.gov .

Sincerely,

Lauren D. Reinertsen, MPA, Ph.D., NHA

Associate Regional Administrator
Northeast Division of Survey & Certification

cc:
State Survey Agency
State Medicaid Agency
National Government Services Inc.