Petitioner, On-Call Nursing of Alaska, is a home health agency located in Anchorage, Alaska. In 2002, Petitioner entered into a provider agreement to provide services under the Medicare and Medicaid programs. By letter dated January 16, 2003, the Centers for Medicaid & Medicare Services (CMS) notified Petitioner that, effective February 1, 2003, its provider agreement as a home health agency would be terminated.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. After I issued an order on May 20, 2003, setting forth procedures for the resolution of this case, CMS submitted a dispositive motion to dismiss Petitioner's hearing request as being moot. CMS submitted five exhibits in support of its motion (CMS Exs. 20, 30, 37, 38, and 62). Petitioner submitted a response to CMS's motion, along with one exhibit (P. Ex. A). CMS additionally filed a Motion for Leave to File CMS's Reply to Petitioner's Response, along with one exhibit (CMS. Ex. 34). In the absence of objections from the parties, I admit all the proffered exhibits into the record of this case.

I conclude that there is no matter in controversy over which I have jurisdiction, and I therefore grant CMS's motion to dismiss Petitioner's hearing request as being moot.

I. Factual Background

CMS's determination was based upon a survey completed on December 5, 2002, and a complaint investigation completed on January 13, 2003, by the Alaska Department of Health and Social Services (DHSS or state survey agency). CMS concurred with the state survey agency's finding that Petitioner was out of compliance with the Condition of Participation set forth at 42 C.F.R. § 484.18 at a level representing immediate jeopardy to patients.

On January 16, 2003, DHSS suspended Petitioner's license to provide home health services. CMS Ex. 37. By letter dated January 16, 2003, CMS notified Petitioner that, effective February 1, 2003, its provider agreement as a home health agency would be terminated. CMS Ex. 38. On that same date, Petitioner notified CMS that it was voluntarily terminating its Home Health License and Medicare participation, effective February 15, 2003. CMS Ex. 30. On January 21, 2003, Petitioner submitted a plan of correction (POC) to DHSS which was subsequently rejected. On January 31, 2003, Petitioner submitted the POC to CMS, which on February 14, 2003, concurred with the DHSS determination that the POC did not address how the conditions resulting in the January 13, 2002 finding of immediate jeopardy had been corrected. CMS Ex. 24.

On March 5, 2003, Petitioner requested a hearing to address two issues : 1) the suspension and revocation of its license by DHSS; and 2) DHSS's refusal to accept its POC.

II. The Parties' Arguments

CMS contended that this proceeding is moot because I cannot render a judgment that will return the license for home health services that Petitioner itself terminated and that the State of Alaska suspended. According to CMS, without such a license, Petitioner is ineligible to enter into a provider agreement to provide services under the Medicare and Medicaid programs. As such, CMS argued that Petitioner has raised an issue that is beyond my province to grant meaningful relief.

Petitioner asserts that it was denied due process at the State level as it was denied the opportunity to defend itself against the revocation of its license by DHSS. Petitioner contends that I may determine its compliance with federal program requirements as this is the only forum open to it for such a determination. Petitioner maintains that I can offer Petitioner the remedy of a determination whether its POC meets the necessary requirements for a home health agency, which positive determination Petitioner could use as support for its re-licensing by DHSS.

III. Findings

The remedy imposed by CMS on Petitioner here was the termination of its provider agreement to provide home health services under the Medicare and Medicaid programs. Termination of a provider agreement is one of the initial determinations that an administrative law judge has authority to review. 42 C.F.R. § 498.3. In the normal course of review if I were to find no basis for CMS's termination of a provider agreement, the result would be restoration of the provider's agreement, assuming that the provider were still licensed under State law. Here, however, Petitioner's provider agreement cannot be restored, rendering moot Petitioner's request for a hearing.

Section 1861(o)(4) of the Social Security Act defines a "home health agency" as an agency or organization which is licensed pursuant to State or local law. Alaska state law provides that "an entity that establishes, conducts or represents itself to the public as a home health agency must have a license from the department authorizing it to be a home health agency under AS 18.18.40-18.18.490." AS 18.18.430. Thus, in order to have a provider agreement, Petitioner must first be licensed under Alaska state law. The parties agree that Petitioner has no such license.

Petitioner asks that I review DHSS's suspension and revocation of its license. My authority is limited to that provided for in the regulations. 42 C.F.R. § 498.3. I do not have the authority to review DHSS's actions concerning Petitioner's license here.

First DHSS, then CMS, rejected as unacceptable the POC Petitioner proposed to remedy the deficiencies that led to the suspension and revocation of its license as a home health agency. Petitioner would have me review CMS's decision and find its POC was acceptable as a means of providing evidence that will support its re-licensing by DHSS.

It is well settled that the mere submission of a POC is not sufficient to demonstrate compliance with program requirements; the provider must prove that it meets all the conditions of participation. See, e.g., Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002). It is also well settled that even if a POC is accepted, that acceptance hinges on whether there is a subsequent determination, most often through a re-survey, that the deficiencies which led to the imposed remedy no longer exist. See, e.g., Cross Creek Health Care, DAB CR504 (1998).

Nothing in the regulations or case law suggests that the decision by CMS or a State survey agency to accept or reject a POC is anything other than a matter of discretion. The State Operation Manual (SOM) affords CMS discretion to grant a provider the opportunity to correct deficiencies, and provides guidelines for determining when its exercise of discretion might be appropriate. However, the SOM plainly states that such an opportunity "is not assured." SOM § 7304. Nothing precludes CMS from exercising its authority to impose a penalty without affording an opportunity to correct. See 59 Fed. Reg. 56,171 (Nov. 10, 1994) ("[N]either the Act nor the Constitution require that providers have the opportunity to correct deficiencies before sanctions are imposed."). The Highlands at Brighton, DAB CR1104, at 4 (2003).

Most importantly for purposes of this action, the decision by CMS or the State survey agency to accept or reject a POC is not listed among the appealable initial determinations set forth at 42 C.F.R. § 498.3 that an administrative law judge has the authority to review.

IV. Conclusion

Petitioner no longer has a license to operate as a home health agency in Alaska. I have no authority to review the actions appealed by Petitioner here, the suspension of its license by DHSS and the refusal to accept its POC. Accordingly, I grant CMS's motion to dismiss and order this case dismissed.