A Samuel's Christian Home Care, DAB CR5146 (2018)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS), sustaining its determination to terminate the Medicare participation of Petitioner, A Samuel’s Christian Home Care, a home health agency.

I. Background

On October 17, 2017, CMS originally determined to terminate Petitioner’s Medicare participation based on findings that Petitioner had failed to comply substantially with two Medicare conditions of participation. Petitioner requested a hearing to challenge that determination. On January 3, 2018, CMS reopened and revised its initial determination to include an additional ground for termination of Petitioner’s participation, asserting that Petitioner was ineligible to participate because it fails to satisfy the statutory definition of a home health agency. Petitioner filed an amended hearing request challenging that additional reason for termination of its participation.

CMS moved for summary judgment. It bases its motion only on its revised determination that Petitioner fails to satisfy the statutory definition of a home health agency. It has not abandoned its original determination that Petitioner failed to comply substantially with Medicare conditions governing its participation but argues that it is unnecessary at this

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time to address the original determination. With its motion CMS filed a brief plus 22 proposed exhibits that it identifies as CMS Ex. 1-CMS Ex. 22 (CMS Exs. 1-22). Petitioner filed a brief in opposition to CMS’s motion (P. Br.) but filed no proposed exhibits.

It is unnecessary that I receive CMS’s proposed exhibits into the record inasmuch as I grant summary judgment based on undisputed material facts. I cite to some of the exhibits in this decision, but only for the purpose of illustrating facts that are undisputed.

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether CMS may terminate Petitioner’s Medicare participation due to its failure to satisfy the statutory definition of a home health agency.

B. Findings of Fact and Conclusions of Law

For purposes of Medicare participation a “home health agency” is defined at section 1861(o) of the Social Security Act (Act) to be: “a public agency or private organization . . . which – (1) is primarily engaged in providing skilled nursing services and other therapeutic services.” 

Satisfying this essential minimum participation criterion is necessary for any entity seeking to participate or to continue to participate in Medicare as a home health agency. The Secretary of the United States Department of Health and Human Services, or his delegate, CMS, may terminate the participation as a home health agency of any entity that fails substantially to satisfy the requirements of section 1861(o). Act § 1866(b)(2)(B). 

Two elements of the statutory definition are directly applicable here. First, in order to qualify as a home health agency, an entity must be “primarily engaged in providing skilled nursing services and other therapeutic services” to patients. Act § 1861(o). To qualify, an entity must actively provide services to patients. Id. A cessation of business is deemed to be a termination by the provider. 42 C.F.R. § 489.52. An entity that exists on paper but that does not actively treat patients is not a home health agency within the Act’s definition.

Second, any entity seeking to qualify as a home health agency must provide skilled nursing services to patients “and other therapeutic services.”Act § 1861(o) (emphasis added). An entity that provides only skilled nursing care to its patients does not satisfy the statutory definition and is not a home health agency.

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CMS interprets the Act’s requirement that a home health agency provide other therapeutic services in addition to skilled nursing services to mean that a home health agency must also provide at least one of the following: physical therapy, speech language pathology, occupational therapy, medical social services, or home health aide services. State Operations Manual (SOM), Pub. 100-07, Ch. 2 “The Certification Process,” § 2180D (Services Provided).

The SOM is not a published regulation but it is an influential agency interpretation of the Act. Here, CMS has reasonably defined the minimum services that a home health agency must provide in addition to providing skilled nursing services. I take notice that frail and disabled Medicare beneficiaries who qualify for home health services often need care that includes the therapies and other services identified by the SOM. 

The undisputed material facts plainly establish that Petitioner failed to meet either part of the Act’s definition of a home health agency. Consequently, CMS had ample grounds for termination of Petitioner’s participation.

First, Petitioner was not actively providing services to patients. On June 2, 2017, Petitioner’s owner admitted that Petitioner was not, as of that date, providing services to any patients and that it had provided services to only two patients within the previous year. CMS Ex. 8 at 2; CMS Ex. 11 at 1. The Pennsylvania Department of Health surveyed Petitioner in August 2017. Petitioner had no active patients at that time. CMS Ex. 8 at 5. Petitioner remained without patients as of a revisit survey on September 29, 2017. CMS Ex. 5 at 2-3; CMS Ex. 7 at 1; CMS Ex. 8 at 6-7; P. Br. at 8. Petitioner, in fact, indicates it was operating without a Pennsylvania state home health license during September 2017, and therefore could not have admitted new patients.1 P. Br. at 8. Petitioner did not dispute the absence of patients nor has it offered any evidence to show that it provided care to patients after September 29, 2017. 

As I have stated, an entity that fails actively to provide services to patients does not satisfy the Act’s definition of a home health agency. That is more than sufficient grounds for termination of its participation in Medicare. A.M. Home Health Servs., DAB No. 2354 (2010); United Medical Home Care, Inc., DAB No. 2194 (2008). Here, Petitioner failed actively to provide services to patients for a period of at least five months. In the year prior to that five-month period it provided almost no patient services.

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Second, Petitioner did not provide therapeutic services in addition to skilled nursing services. In fact, it provided only skilled nursing services. CMS Ex. 2 at 2; CMS Ex. 3 at 2; CMS Ex. 8 at 5; CMS Ex. 11 at 1. 

Petitioner filed a lengthy brief in opposition to CMS’s motion. However, it does not refute any of the facts that I have discussed. It provides no facts to show that it provided services to patients on or after June 2, 2017. And, although it alleges that it provided home health aide services to residents as a therapeutic service in addition to skilled nursing services, it provided no facts and no supporting evidence to establish this claim. It offered neither patient records nor testimony as support.

Petitioner’s assertion that it was providing home health aide services to its patients is a naked claim without support. In my Acknowledgment and Pre-Hearing Order at ¶ 4.a, I explained that: “[a] party opposing a motion for summary disposition must come forward with evidence of specific facts showing that a dispute exists. It is never sufficient for a party opposing a motion to aver only that it ‘disputes’ alleged facts or that it demands an in-person hearing.” In evaluating the merits of a motion for summary judgment I am required to accept as true any allegations of fact that are supported by at least some evidence. However, I am not required to accept naked claims that are not supported by evidence of specific facts. Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010), aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs.,405 F. App’x 820 (5th Cir. 2010). 

Moreover, CMS would have a basis to terminate Petitioner’s participation even if in the past it had provided some therapeutic services other than skilled nursing services, because, as of September 2017, there is no dispute that Petitioner was providing no services of any kind to patients, and had not done so for quite some time. CMS Ex. 5 at 2-3; CMS Ex. 7 at 1; CMS Ex. 8 at 2-3, 5; CMS Ex. 11 at 1; P. Br. at 8. 

Petitioner also argues that CMS has opted to rely on an interpretation of section 1861(o) of the Act that is interpreted differently by Pennsylvania authorities. P. Br. at 2, 7-8. It asserts that the State has found Petitioner to meet the statutory definition of a home health agency apparently because it has on occasion renewed Petitioner’s State license. P. Br. at 2, 9, 16-18.

I cannot discern from Petitioner’s argument whether he is averring that Pennsylvania authorities considered the facts relied on by CMS or if they actually interpret section 1861(o) in a manner that differs from CMS’s interpretation of the section. But, even if they did, it would be of no avail to Petitioner. Medicare is a federal program governed by federal law. The federal agency – CMS – charged with applying the Act interprets it to require Petitioner to actively treat patients and to provide services other than skilled nursing services in order to qualify as a home health agency. That interpretation takes precedence over any possibly conflicting interpretation that a State agency might make.

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Petitioner also argues at length that CMS’s actions against it are tinged by bias, by inconsistency, and by misfeasance. Those assertions are irrelevant unless they somehow raise a dispute as to the material facts of this case. They do not. As I have discussed, Petitioner offers nothing aside from naked assertions to respond to the facts offered by CMS.

Petitioner devotes the lion’s share of its brief to arguing that it was in fact in substantial compliance with the conditions of participation implicated in CMS’s initial determination. Those arguments are irrelevant to my decision. CMS’s motion for summary judgment does not rely on its findings of noncompliance with conditions of participation. Stated directly, it does not matter at this juncture whether or not Petitioner complied with conditions of participation because CMS’s motion – and my decision – hinge on Petitioner’s failure to satisfy the Act’s definition of a home health agency.

• 1. Although Petitioner argues that this fact should excuse Petitioner from the requirement to actively treat patients, Petitioner provides no justification for this claim. I note that this failure to maintain the required state licensure actually indicates potential violation of an additional condition of participation (42 C.F.R. § 484.12(a)); however, in this decision it only serves to illustrate that Petitioner was not providing services to patients during the time of the suspension.