Surveyors not ruled biased for seeking $42,600 in fines

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Judge Louis H. Pollak
Judge Louis H. Pollak
A Jewish nursing home in Pennsylvania has been turned back in its attempt to have a penalty reviewed that it said resulted from a biased survey process.

The Jewish Home of Eastern Pennsylvania filed an administrative appeal over a Centers for Medicare & Medicaid Services' $42,600 penalty. It said it wasn't contesting the deficiencies, but said that the facility's citations were the results of selective enforcement based on its Jewish ethnicity.

The appeal was based, in part, on a comment that a surveyor made to the JHESP administrator that was essentially, “Well, I'm Christian, and I wouldn't feel comfortable [sharing] Kiddush [a non-denominational pastry repast]” offered to residents. 

In an earlier survey, the facility was cited for inadequate activities and contested this citation on the basis that it was determined based on a Christian viewpoint.

The home had prepared a side-by-side comparison of F-324 citations issued to non-Jewish facilities in the Scranton Field Office. The comparison would show “that JHEPA is treated more harshly than non-Jewish facilities for alleged violations,” the court records state. This was the second appeal filed by the home involving similar facts but different fines; the first appeal was denied in 2011.

Louis H. Pollak, senior judge of the United States District Court for the Eastern District of Pennsylvania, sat by designation and wrote the March 14 opinion.

The judges determined that the nursing home had not demonstrated that CMS “issued fines with an intentionally discriminatory purpose.” 

“We find JHEP's reliance on the surveyor's alleged statement to be misplaced as it was clearly taken out-of-context, was not contemporaneous to the surveys in question, and was not relevant or facially discriminatory,” Pollak wrote.