Fame Health Care Services, Inc., DAB CR5970 (2021)

DECISION

Petitioner, Fame Health Care Services, Inc., was a Colorado-based home health agency.  At one time, it participated in the Medicare program.  Its participation ended on March 15, 2019, when, pursuant to 42 C.F.R. § 489.53(a), the Centers for Medicare and Medicaid Services (CMS) terminated its provider agreement because it did not comply with Medicare conditions of participation.  Thereafter, the Medicare contractor, CGS Administrators, LLC, revoked Petitioner’s Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(1).

Here, Petitioner appeals the revocation.  CMS moves for summary judgment, which Petitioner opposes.CMS has also moved to dismiss, arguing that this appeal is moot because I have no authority to restore Petitioner’s billing privileges.  While I agree that Petitioner is not entitled to the relief it seeks, I am not convinced that it is not entitled to this review.

For the reasons set forth below, I conclude that CMS properly revoked Petitioner’s Medicare enrollment.

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Background

In a letter dated April 1, 2019, the Medicare contractor, CGS Administrators, LLC, advised Petitioner that its Medicare billing privileges were being revoked, effective May 1, 2019, pursuant to 42 C.F.R. § 424.535(a)(1) because CMS terminated its provider agreement, effective March 15, 2019.  CMS Ex. 5.  The letter includes two provisions that, although consistent with the regulations, are essentially meaningless when applied to a provider whose Medicare participation was terminated as part of the survey and certification process (explained below):

• The letter says that the contractor’s action “will also terminate your corresponding provider agreement.”  CMS Ex. 5 at 1.  This is consistent with the regulations that govern revocation, which provide that “when a provider’s . . . billing privilege is revoked, any provider agreement in effect at the time of revocation is terminated effective with the date of the revocation.”  42 C.F.R. § 425.535(b).  But Petitioner’s provider agreement had already been terminated, pursuant to sections 1866(b)(2)(B) of the Social Security Act (Act) and 42 C.F.R. § 489.53(a).  See Act 1861(o)(6).  That termination was not appealed and is final, so, in fact, Petitioner’s Medicare provider agreement was not terminated pursuant to section 424.535(b).
• The letter offers Petitioner the opportunity to submit, within 30 calendar days, a corrective action plan (CAP) “[i]f you believe that you are able to correct the deficiencies and establish your eligibility to participate in the Medicare program.”  CMS Ex. 5 at 1.  A provider whose billing privileges have been revoked under section 424.535(a)(1) may submit a CAP and has one opportunity to correct all of the deficiencies that served as the basis of its revocation.  42 C.F.R. § 405.809(a).  Given the circumstances of Petitioner’s Medicare termination, I am not sure how Petitioner could have accomplished this.  In any event, CMS’s (or the contractor’s) refusal to reinstate billing privileges based on a CAP is not reviewable.  42 C.F.R. § 405.809(b)(2).

In letters dated April 30 and May 13, 2019, Petitioner requested reconsideration and submitted a CAP.  CMS Ex. 6; P. Ex. A.  The May 13 letter also asked to appeal the termination of Petitioner’s provider agreement as well, claiming that CMS did not follow due process nor comply with 42 C.F.R. § 489.57.  P. Ex. A.Petitioner’s reliance on section 489.57 is puzzling.  That regulation establishes fairly rigorous requirements for a provider’s reinstatement after termination; it must show that the reasons for termination have been removed and provide reasonable assurances that they will not recur.  The provider must also show that it “has fulfilled” or has “made satisfactory arrangements to fulfill” all of the statutory and regulatory requirements of its previous agreement.

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In the meantime, on July 1, 2019, Petitioner’s state license expired.  CMS Ex. 7 at 2.

In a reconsidered determination, dated July 3, 2019, a CMS hearing officer denied Petitioner’s CAP, determined that the provider was not currently in compliance with Medicare requirements (42 C.F.R. § 424.516(a)(2)), and upheld the revocation.  CMS Ex. 8.

Petitioner appealed, and now CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Prehearing Order at 4, 5 (¶¶ 4(c)(iv), 8) (Sept. 24, 2019).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.

With its motions to dismiss or for summary judgment (CMS Br.), CMS submits eight exhibits (CMS Exs. 1-8).  Petitioner submits a response to CMS’s motions (P. Response) with one exhibit, which it labeled P. Ex. A.  In the absence of any objections, I admit into evidence CMS Exs. 1-8 and P. Ex. A.

Discussion

1.  Because Petitioner does not comply with federal and state licensure, certification, and regulatory requirements, CMS properly revoked its Medicare enrollment.  42 C.F.R. § 424.535(a)(1).My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

Survey and certification.  A home health agency is a public agency or private organization that “is primarily engaged in providing” skilled nursing and other therapeutic services to patients in their homes.  Social Security Act (Act) § 1861(o).  It may participate in the Medicare program as a provider of services if it meets that statutory definition and complies with certain requirements, called conditions of participation.  Act §§ 1861(o), 1891; 42 C.F.R. Part 484; 42 C.F.R. § 488.3.  The provider enters into an agreement with CMS to provide services to Medicare beneficiaries and to comply with the requirements of the Act.  42 C.F.R. §§ 489.3, 489.11.

To monitor compliance, CMS contracts with state agencies that periodically survey the home health agencies.  42 C.F.R. §§ 488.10, 488.700.

CMS may terminate a provider agreement if it determines that the home health agency fails substantially to meet the applicable provisions of section 1861 of the Act and the

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applicable regulations.  Act § 1866(b)(2)(B); 42 C.F.R. § 489.53(a)(1).  If CMS determines that the home health agency does not qualify to participate in the Medicare program because it is not in compliance with the conditions of participation, the provider may request review, following the procedures set forth in 42 C.F.R. part 498.  42 C.F.R. §§ 488.24(c), 489.53(e), 498.3(b)(8), 498.5(b), 498.40.

Here, the Colorado Department of Public Health and Education (state agency) completed Petitioner’s recertification survey on February 15, 2019.  Based on the survey findings, CMS determined that Petitioner did not comply with multiple conditions of participation and that its deficiencies posed immediate jeopardy to patient health and safety.  CMS Exs. 1, 2.  Although given the opportunity, Petitioner did not submit an acceptable plan of correction.  Instead, in a letter dated March 11, 2019, Petitioner’s authorized representative advised CMS that the home health agency would “terminate the continuation of our operation.”  CMS Ex. 3.

In a notice letter dated March 13, 2019, CMS advised Petitioner that it was terminating the home health agency’s provider agreement, effective March 15, 2019, because it failed to maintain compliance with Medicare Conditions of Participation.  CMS Ex. 4 at 1.  The letter advised Petitioner of its appeal rights:

If you disagree with the finding of noncompliance, 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.  Procedures governing this process are set out in Federal regulations at 42 CFR §498.40 et seq.  The hearing request must be filed electronically by using the Departmental Appeals Board’s Electronic Filing System (DAB E-File) at https://dab.efile.hhs.gov no later than sixty (60) days from the date of receipt of this letter.

CMS Ex. 4 at 2 (emphasis in original).  Consistent with the applicable regulations, the notice letter also advised that the hearing request “should identify the specific issues, and the findings of fact, and conclusions that you consider to be incorrect.”  Id.; see 42 C.F.R. § 498.40(b).

Petitioner did not appeal the termination, which is therefore final and binding.  42 C.F.R. § 498.20(b).  I therefore have no authority to disturb the survey and certification findings.

Revocation of enrollment.  Under a separate statutory provision and set of regulations, CMS regulates the Medicare enrollment of providers and suppliers.  Act § 1866(j)(1)(A).  To receive payment for services furnished to Medicare beneficiaries, a provider must be enrolled in the program and must maintain active enrollment status.  42 C.F.R. § 424.505.  “Enrollment” is the process that CMS (or its contractor) uses to 1) identify the prospective provider; 2) validate the provider’s eligibility to provide items or services to

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Medicare beneficiaries; 3) identify and confirm a provider’s owners and practice locations; and 4) grant the provider Medicare billing privileges.  42 C.F.R. § 424.502.

CMS may revoke a home health agency’s billing privileges and corresponding provider agreement if (among other reasons) it is not in compliance with Medicare enrollment requirements.  42 C.F.R. § 424.535(a)(1).  This section has its own appeals process.  A revoked provider may ask that CMS reconsider the revocation, and, if unsuccessful, may request a hearing before an administrative law judge to challenge the unfavorable reconsidered determination.  42 C.F.R. §§ 424.545, 498.5(1), 498.22, 498.40.

Inasmuch as Petitioner’s provider agreement has been terminated, and Petitioner is no longer licensed to provide home health services in the State of Colorado, it unquestionably does not comply with Medicare enrollment requirements.  CMS therefore appropriately revoked its billing privileges under section 424.535(a)(1).

Petitioner, however, asks me to review the termination.  Hearing Request (filed Sept. 6, 2019); P. Ex. A.  I simply have no authority to review, in this forum, a section 489.53 determination.  When that determination was made, Petitioner was given ample notice of its appeal rights, including detailed instructions of where and how to file that appeal.  It did not do so.  Moreover, the request for review that it filed in these proceedings does not comply with the requirements for an adequate hearing request under section 498.40(b) and Petitioner has not corrected that during these proceedings.

The determination to terminate Petitioner’s provider agreement is therefore final and binding, and I must abide by it.

Conclusion

CMS properly revoked Petitioner’s Medicare enrollment because the home health agency does not comply with federal and state licensure, certification, and regulatory requirements.  42 C.F.R. § 424.535(a)(1).

I have no authority to review in this forum CMS’s determination to terminate Petitioner’s provider agreement.