Achieve Health Care Services, Inc., DAB CR5105 (2018)

DECISION

I grant summary judgment to the Centers for Medicare & Medicaid Services (CMS) sustaining one of its contractor’s determinations, as was affirmed on reconsideration, to revoke the Medicare billing privileges of Petitioner, Achieve Health Care Services, Inc., a home health care agency.

I.  Background

CMS moved for summary judgment.  In support of its motion it offered seven exhibits, identified as CMS Ex. 1-CMS Ex. 7.  Petitioner opposed the motion and also offered seven exhibits, identified as P. Ex. 1-P. Ex. 7.

It is unnecessary that I rule on the admissibility of the parties’ exhibits inasmuch as I grant summary judgment based on undisputed material facts.  I refer to some of the exhibits in this decision but only to illustrate facts that are not in dispute.

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II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether a regulatory basis exists to revoke Petitioner’s Medicare participation.

B. Findings of Fact and Conclusions of Law

A Medicare-participating home health care agency must comply with all applicable regulations that govern its participation.  Failure to do so is grounds for CMS or one of its contractors to revoke the agency’s participation in Medicare.  42 C.F.R. § 424.535.

CMS alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 424.535(a)(5)(i).  This regulation authorizes revocation of a provider or a supplier’s participation in Medicare if it is “[n]o longer operational to furnish Medicare-covered items or services.”  “Operational” is a defined term.  In order to be “operational” a provider or a supplier must:

Ha[ve] a qualified physical practice location, [be] open to the public for the purpose of providing health care related services, [be] prepared to submit valid Medicare claims, and [be] properly staffed, equipped, and stocked . . . to furnish these items or services.

42 C.F.R. § 424.502 (emphasis added).

The undisputed facts establish that Petitioner was not operational on two occasions because it was not open to the public on those occasions.  On April 7 and April 21, 2017, an inspector attempted to visit Petitioner’s business premises during posted business hours only to find on each occasion that the door to the premises was locked and that no one answered when he knocked on the door.  CMS Ex. 1 at 2; CMS Ex. 7; see CMS Ex. 2 at 1-2, 4-5.

These undisputed facts are ample support for the determination to revoke Petitioner’s Medicare participation.  As I have explained, the definition of “operational” includes the requirement that a participating supplier or provider be open to the public for the purpose of providing health care related services.  Petitioner was not open to the public on the two occasions when the inspector attempted to visit Petitioner’s premises during posted business hours.

Petitioner argues that it was operational, asserting that on the dates in question it was paying rent, issuing payroll, and using electricity.  For purposes of this decision I accept these representations as true.  However, they beg the question.  The fact that Petitioner

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may have met part of the definition of being “operational” doesn’t prove that it met the entire definition.  Being open and accessible to the public is a critical element of the definition of the term.  Paying rent, issuing payroll, and using electricity do not gainsay the facts that Petitioner’s facility was locked and that no one answered the door when the inspector sought to obtain entry on two occasions during posted business hours.

Petitioner argues also that the failure of the inspector to gain access on the dates and times in question may have been simply unfortunate timing accidents.  It contends that on at least one of the two occasions its facility may have been closed because its staff was out to lunch.  However, a facility may not use its staff being out to lunch as an excuse for its being closed during posted business hours.  Petitioner represented to the public that it would be open during certain specified hours.  In order to be operational it had to be open when it said that it would be open.1

• 1. In its request for reconsideration Petitioner speculated that disgruntled former employees may have locked the door to its business premises as a means of retaliating against being fired.  Petitioner did not offer evidence to substantiate that assertion nor has it raised this defense before me.