$05:Civil Money Penalty
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Professional Nurses Home Health Services,
Petitioner,
- v. -
Health Care Financing Administration.
DATE: May 12, 1995
Docket No. C-94-421
Decision No. CR375
DECISION
Petitioner requested a hearing to oppose a determination by the
Health Care Financing Administration (HCFA) to terminate
Petitioner's participation in Medicare. The case was assigned to
me for a hearing and a decision. I held a prehearing conference by
telephone on September 9, 1994. During this conference, the
parties agreed that there was no need for an in-person hearing.
The parties agreed further that I should hear the case based on an
exchange of briefs and exhibits. The parties subsequently filed
exhibits, briefs, and reply briefs.
After considering the briefs and exhibits submitted by the parties,
I held another telephone prehearing conference on March 9, 1995.
During the conference, I advised the parties that they each may
have failed to address pertinent issues. In their briefs, the
parties treated the case as if it were an appellate review of
findings made by the individuals who had surveyed Petitioner on
behalf of HCFA. I observed that the parties' arguments seemed to
ignore the fact that the hearing, rather than being an appellate
review, was a de novo review of HCFA's determination, subject to
the requirements of section 205(b) of the Social Security Act
(Act).
I advised each party that I would afford it the opportunity to
reconsider its submissions to me and to supplement them, either at
an in-person hearing or with additional briefs and exhibits. The
parties advised me subsequently that neither of them desired an
in-person hearing. HCFA then submitted an additional brief and two
additional exhibits. Petitioner submitted an additional brief and
no additional exhibits. 1/
I have considered the applicable law and regulations, the exhibits,
and the parties' arguments. I conclude that HCFA proved, by a
preponderance of the evidence, that Petitioner failed to comply
with a condition of participation in Medicare. Therefore, HCFA was
authorized to terminate Petitioner's participation in Medicare.
I. Issue, findings of fact, and conclusions of law
The issue in this case is whether HCFA was authorized to terminate
Petitioner's participation in Medicare. In deciding that HCFA was
authorized to terminate Petitioner's participation, I make specific
findings of fact and conclusions of law. After each finding or
conclusion, I cite to the page or pages of the decision at which I
discuss the finding or conclusion.
1. HCFA has the burden of proving, by the preponderance of
the evidence, that it was authorized to terminate Petitioner's
participation in Medicare. Pages 5 - 8.
2. For HCFA to meet its burden of persuasion, it had to
prove that Petitioner failed to comply with a condition of
participation in Medicare. Pages 6 - 8.
3. HCFA proved, by the preponderance of the evidence, that
Petitioner failed to comply with the condition of participation in
Medicare governing acceptance of patients, plan of care, and
medical supervision, set forth in 42 C.F.R. 484.18. Pages 8 -
12.
4. HCFA was authorized to terminate Petitioner's
participation in Medicare. Pages 3 - 14.
II. Discussion
A. Background
Petitioner is a home health agency, located in Baton Rouge,
Louisiana. Under the Medicare program, a home health agency is a
public agency or private organization which provides health care
services to a patient on a visiting basis in a place of residence
used by the patient as his or her home. Act, sections 1861(m),
(o). A home health agency is primarily engaged in providing
skilled nursing services and other therapeutic services. Act,
section 1861(o). The services provided by a home health agency
include nursing care, physical, occupational, or speech therapy,
medical social services under the direction of a physician, medical
supplies, and other services. Act, section 1861(m).
A home health agency that participates in Medicare is obligated to
comply with the requirements of participation stated in the Act,
and with the conditions of participation stated in applicable
regulations. Regulations establishing the conditions of
participation in Medicare for home health agencies are contained in
42 C.F.R. Part 484.
From January 10, 1994 through January 13, 1994, surveyors employed
by the Louisiana Department of Health and Hospitals (Louisiana
State agency) conducted an annual compliance survey of Petitioner
on behalf of HCFA. The surveyors concluded that Petitioner was not
complying with the condition of participation governing clinical
records, contained in 42 C.F.R. 484.48. HCFA Ex. 2. Petitioner
submitted a plan of correction. 2/
On February 25, 1994, the Louisiana State agency resurveyed
Petitioner. The surveyors found that Petitioner continued not to
be in compliance with conditions of participation. The surveyors
found that Petitioner was still not complying with the condition of
participation governing clinical records. HCFA Ex. 3 at 6 - 8.
They found also that Petitioner was not complying with the
condition of participation governing home health aide services,
contained in 42 C.F.R. 484.36. Id. at 3 - 5.
On April 13, 1994, HCFA notified Petitioner that HCFA agreed with
the findings made by the Louisiana State agency surveyors at the
February 25, 1994 resurvey of Petitioner. HCFA Ex. 1. HCFA told
Petitioner that it would terminate Petitioner's participation in
Medicare, effective May 2, 1994. Id. HCFA told Petitioner that,
if it was dissatisfied with the determination, it could request a
hearing before an administrative law judge. Id. HCFA advised
Petitioner that Petitioner might be able to avoid termination by
correcting the deficiencies that the Louisiana State agency
surveyors found at the February 25, 1994 resurvey. HCFA told
Petitioner to notify HCFA immediately if Petitioner was able to
attain compliance with all conditions of participation. Id.
On April 15, 1994, Petitioner notified HCFA that it had attained
compliance with conditions of participation in Medicare. 3/ HCFA
Ex. 4. On April 22, 1994, Louisiana State agency surveyors
conducted a second follow-up survey of Petitioner. HCFA Ex. 5.
The purpose of this survey was to ascertain whether Petitioner had,
in fact, attained compliance with conditions of participation.
The surveyors concluded that, notwithstanding Petitioner's
assertion of compliance, Petitioner remained out of compliance with
Medicare conditions of participation. The surveyors found that
Petitioner still was not complying with the condition of
participation governing clinical records stated in 42 C.F.R.
484.48. HCFA Ex. 5 at 6 - 9. The surveyors found also that
Petitioner was not complying with the condition of participation
governing acceptance of patients, plan of care, and medical
supervision stated in 42 C.F.R. 484.18. Id. at 1 - 4. The
surveyors did not find that Petitioner continued to fail to comply
with the condition of participation governing home health aide
services stated in 42 C.F.R. 484.36.
B. Analysis of the law and the evidence
In question here is whether, as of April 22, 1994, Petitioner
remained noncompliant with conditions of participation in Medicare.
HCFA asserts that, as of that date, Petitioner was not complying
with two conditions of participation, consisting of the condition
of participation governing acceptance of patients, plan of care,
and medical supervision stated in 42 C.F.R. 484.18, and the
condition governing clinical records stated in 42 C.F.R. 484.48.
I conclude that HCFA proved, by a preponderance of the evidence,
that Petitioner was not complying with the condition of
participation governing acceptance of patients, plan of care, and
medical supervision. I do not conclude that HCFA proved that
Petitioner was not complying with the condition of participation
governing clinical records.
I make no findings in this decision as to whether, as of the
January 1994 survey, or as of the February 1994 resurvey,
Petitioner failed to comply with conditions of participation in
Medicare. It is not necessary for me to make findings as to
Petitioner's compliance as of the dates of these surveys in order
for me to decide this case. It is sufficient here for me to find
that, as of April 22, 1994, Petitioner was not complying with a
condition of participation in Medicare.
1. HCFA's burden of persuasion
The Secretary of the Department of Health and Human Services
(Secretary) is authorized to terminate the participation of any
provider, including a home health agency, where that provider has
failed to comply substantially with the provisions of its provider
agreement, with the provisions of the Act and applicable
regulations, or with a mandated plan of corrective action. Act,
section 1866(b)(2)(A). The Secretary has delegated to HCFA the
authority to terminate a noncompliant provider's participation in
Medicare.
A provider that is dissatisfied with a determination to terminate
its participation in Medicare is entitled to a hearing. Act,
section 1866(h)(1). A provider that requests a hearing is afforded
the same hearing rights as are afforded to parties who are entitled
to hearings under section 205(b) of the Act. Id.; see Act, section
205(b). Section 205(b) has been interpreted uniformly and often to
confer a right to a de novo hearing on any party that is entitled
to a hearing under that section.
In a hearing under section 205(b) of the Act as to the propriety of
a determination to terminate a provider's participation in
Medicare, HCFA has the burdens of coming forward with evidence to
justify its determination to terminate, and of proving, by a
preponderance of the evidence, that its determination is justified.
4/ This conclusion is in accord with my decisions in Hospicio en
el Hogar de Utuado, DAB CR371 at 6 - 14 (1995), in Hospicio en el
Hogar de Lajas, DAB CR366 (1995), and in Arecibo Medical Hospice
Care, DAB CR363 (1995).
HCFA has not asserted in this case that Petitioner has the burden
of persuasion. Therefore, it is not necessary for me to reiterate
in detail here the analysis I made in Utuado, Lajas, and Arecibo,
which supports my conclusion that HCFA has the burden of
persuasion. It is sufficient for me to state that both due process
requirements and efficiency considerations support the conclusion
that HCFA bears the burden of persuasion. Utuado, DAB CR371 at 6
- 7.
2. The elements of HCFA's burden of persuasion
In Utuado, I discussed in detail the elements of HCFA's burden of
persuasion. Utuado, DAB CR371 at 10 - 14. In general, HCFA's
burden of persuasion consists of three elements. First, HCFA must
prove the existence of participation requirements with which a
provider whose participation HCFA has terminated allegedly has not
complied. Second, HCFA must establish facts showing that the
provider has failed to comply with Medicare participation
requirements. Finally, HCFA must prove that the provider's failure
to comply with participation requirements is so substantial as to
justify terminating that provider's participation in Medicare.
HCFA meets the first element of its burden of persuasion by
identifying the specific language in the Act or in the regulations
with which it alleges the provider is not in compliance. Where
HCFA is relying on the plain meaning of language in the Act or a
regulation, it only need identify that language. However, where
HCFA is relying on an interpretation of language in the Act or a
regulation which is not apparent from the face of the enactment,
HCFA assumes two additional responsibilities. It must prove that
its interpretation is reasonable, and that the provider is aware of
its obligation to comply with this interpretation. Utuado, DAB
CR371 at 10 - 11.
HCFA meets the second element of its burden of persuasion by
establishing by a preponderance of the evidence the facts which
HCFA alleges prove a provider's failure to comply with a
participation requirement. That evidence may consist of the
testimony of surveyors as to the findings that they made when they
surveyed the provider. It may consist also of supporting
materials, such as patients' records, obtained by the surveyors
from the provider. Utuado, DAB CR371 at 12.
HCFA meets the final element of its burden of persuasion by
proving, also by a preponderance of the evidence, that a provider's
failure to comply with participation requirements is so substantial
as to justify terminating the provider's participation in Medicare.
The test for substantial noncompliance is established in 42 C.F.R.
488.24(a). Under that regulation, a provider will be found to have
failed to comply with conditions of participation in Medicare where
its deficiencies are of such character as to substantially limit
its capacity to render adequate care or where they adversely affect
the health and safety of patients.
There are circumstances where a substantial failure to comply with
participation requirements may be established conclusively by the
facts proving noncompliance. Many regulations state explicitly the
conditions of participation which govern a provider's participation
in Medicare. A regulation's statement of a condition of
participation is a finding by the Secretary that a failure by a
provider to comply with that condition constitutes substantial
noncompliance with Medicare participation requirements.
Where a regulation describes explicitly a condition of
participation, it is reasonable to conclude that facts establishing
a failure to comply with that condition may be deemed to prove
substantial noncompliance within the meaning of 42 C.F.R.
488.24(a). If HCFA proves that a provider has not complied with an
explicitly stated condition of participation, HCFA is not required
to offer additional proof of the substantiality of that
noncompliance, because the noncompliance is deemed to be
substantial.
However, there also may be circumstances where the impact of a
deficiency on a provider's ability to provide care or on the health
and safety of patients is not evident from the facts establishing
the existence of the deficiency. A finding that a provider has not
complied with a condition of participation does not always flow
automatically from a finding that a provider has not complied with
a Medicare participation requirement. For example, a finding of
substantial noncompliance is not an automatic consequence of proof
that a provider has not complied with a standard of participation
set forth in a regulation as a lesser included element of a
condition of participation.
In that circumstance, HCFA may have to prove not only the existence
of a deficiency, but may have to offer additional evidence to prove
that the deficiency is substantial within the meaning of 42 C.F.R.
488.24(a) and the Act. Such evidence may consist of evidence which
establishes the impact of the deficiency on the provider's ability
to provide care or on the health and safety of patients. In
proving impact, expert opinion as to the likely impact of the
deficiency on the capacity of the provider to provide care may be
important. Utuado, DAB CR371 at 13 - 14.
3. Analysis of the parties' contentions, arguments, and
the evidence
HCFA asserts that, as of April 22, 1994, Petitioner was not
complying with two conditions of participation in Medicare as
stated in 42 C.F.R. 484.18 and 484.48. I analyze HCFA's and
Petitioner's arguments and the evidence offered by the parties
relevant to these two conditions of participation pursuant to the
elements of HCFA's burden of persuasion which I described at Part
II.B.2. of this decision.
a. Petitioner's alleged failure to comply with the
condition of participation governing acceptance of patients, plan
of care, and medical supervision stated in
42 C.F.R. 484.18
The condition of participation contained in
42 C.F.R. 484.18 includes the requirement that care provided to
each patient by a home health agency:
follows a written plan of care established and periodically
reviewed by a doctor of medicine, osteopathy, or podiatric
medicine.
The plain requirement of the condition of participation stated in
42 C.F.R 484.18 is that a home health agency must provide care
to each of its patients in accord with the directions established
by the plan of care that has been created for that patient.
The preponderance of the evidence in this case is that, as of the
April 22, 1994 resurvey, Petitioner was not providing care to
patients consistent with this condition. HCFA proved that, in two
instances, Petitioner failed to assure that tests and treatments
were provided to patients in accord with explicit instructions
contained in plans of care which had been created to direct the
care to be provided to those patients.
The evidence which HCFA offered to prove that Petitioner failed to
comply with the condition consists of the report of the surveyors
which was generated at the April 22, 1994 resurvey, along with the
affidavit of Erin Rabalais, one of the two surveyors who
participated in the resurvey. HCFA Ex. 5, 9.
This evidence establishes that two of the patients whose records
the surveyors examined were not receiving treatment according to
the plans of care that had been created for those patients. In the
case of one patient, designated as patient # 8 in the survey
report, the plan of care directed that a SMAC blood test be
performed monthly. HCFA Ex. 5 at 1. However, treatment records of
patient # 8 contained no documentation that SMAC tests had been
administered to that patient. Id. at 1 - 2.
In the case of patient # 4, the plan of care directed that the
patient's blood pressure be measured in both arms at each visit by
a skilled nurse. HCFA Ex. 5 at 2. The plan of care directed
further that the patient's weight be monitored. Id. However,
treatment records for patient # 4 contained no documentation that
the patient's blood pressure and weight had been recorded. Id.
Petitioner did not rebut this evidence. Petitioner observes that
HCFA has not produced supporting documentation from Ms. Rabalais
that could be used to test the veracity of her findings.
Petitioner argues that, in the absence of such documentation, there
remains a serious question as to the truthfulness of the surveyors'
findings. 5/ However, Petitioner has not denied directly the
findings made by the surveyors at the April 22, 1994 resurvey.
Furthermore, Petitioner has not offered any evidence that would
refute those findings. For example, Petitioner has not offered as
evidence any of the treatment records of patients # 4 or # 8, from
which Petitioner might have argued that either of the patients had
received treatments in accord with his or her plan of care.
Petitioner's failure to provide care in accord with the directions
contained in patients' plans of care is deemed to be a substantial
failure to comply with participation requirements. The conclusion
that Petitioner's deficiency is substantial is evident in this case
because Petitioner's failure to provide care as directed by its
patients' plans of care constitutes a failure to comply with the
explicit requirements of the condition of participation stated in
42 C.F.R. 484.18. It is not necessary for HCFA to offer
additional evidence to prove that Petitioner's failure to provide
care to its patients in accord with the directions contained in
these patients' plans of care substantially limits Petitioner's
capacity to render adequate care or adversely affects the health
and safety of patients.
HCFA argues also that the facts discovered by the surveyors at the
April 22, 1994 resurvey of Petitioner establish a failure to comply
with a standard of participation contained in 42 C.F.R.
484.18(a). This standard requires, among other things, that each
patient's plan of care state the frequency of visits that a patient
will be receiving by skilled nurses or other personnel. HCFA
asserts that the evidence proves that two patients, patient # 8 and
patient # 1, received skilled nursing visits more frequently than
prescribed by their plans of care. HCFA Ex. 5 at 2 - 3. According
to HCFA, one patient, patient # 5, received skilled nursing visits
less frequently than prescribed by that patient's plan of care.
Id. at 3.
This evidence has not been rebutted by Petitioner. However, I do
not find that it establishes a failure by Petitioner to comply with
the standard contained in 42 C.F.R. 484.18(a). That standard
addresses only what must be contained within a patient's plan of
care. It does not address the issue of compliance by a home health
agency with the terms of a plan of care. Thus, Petitioner's
failure to provide visits to patients by skilled nurses in
accordance with the schedule of visits established by the patients'
plans of care is not a failure to comply with the requirement that
the plans of care state the frequency of nurses' visits. On the
other hand, the evidence does comprise additional evidence of
Petitioner's failure to comply with the overall condition stated in
42 C.F.R. 484.18, inasmuch as it proves additional failures by
Petitioner to provide care to patients in accord with the
directions contained in these patients' plans of care.
HCFA argues also that Petitioner failed to comply with the standard
contained in 42 C.F.R. 484.18(c). That standard requires, among
other things, that a nurse or therapist who provides care on behalf
of a home health agency immediately record and sign oral treatment
orders that the nurse or therapist receives from a physician and
obtain the physician's countersignature. HCFA asserts that the
evidence proves that Petitioner's staff failed to obtain a
countersignature from a physician for an oral treatment order
prescribing that insulin be administered to patient # 2. HCFA Ex.
5 at 3 - 4. HCFA asserts additionally that Petitioner's staff
failed to obtain a countersignature from a physician for an oral
treatment order from a physician for removal of a catheter from
patient # 10. Id. at 4.
This evidence has not been rebutted by Petitioner, and I find that
it substantiates HCFA's argument that Petitioner failed to comply
with the standard contained in 42 C.F.R. 484.18(c). However, I
do not conclude that this evidence comprises additional proof that
Petitioner failed to comply with the condition stated in 42 C.F.R.
484.18. In this instance, proof that Petitioner failed to comply
with a standard contained in a regulation does not lead
automatically to a conclusion that Petitioner failed to comply with
a condition of participation. In order to prove that Petitioner's
failure to comply with the standard comprises also a failure to
comply with the overall condition stated in 42 C.F.R. 484.18,
HCFA must prove that the failure to comply is substantial within
the meaning of
42 C.F.R. 488.24(a).
I am not persuaded from the evidence offered by HCFA that it met
its burden of persuasion in this instance. To support its
assertion that deficiencies manifested by Petitioner, including the
failure to comply with the requirements of 42 C.F.R 484.18(c),
were substantial, HCFA offered the affidavit of Andrew Roger Perez.
HCFA Ex. 10. Mr. Perez is the Associate Regional Administrator for
the Division of Health Standards and Quality in the Dallas Regional
Office of HCFA. Id. at 1. I do not find Mr. Perez to be qualified
to render expert opinion as to whether Petitioner failed
substantially to comply with Medicare participation requirements.
Mr. Perez has not been shown by HCFA to possess any training or
skills that would qualify him to provide expert opinion as to the
impact of deficiencies in Petitioner's operations on its ability to
provide care. Indeed, Mr. Perez admits that he formed his opinion
from the advice provided to him by unnamed health care
professionals. Id. at 1 - 2.
HCFA offers additionally the opinion of Ms. Rabalais that the
deficiencies manifested by Petitioner are substantial. HCFA Ex. 9
at 8. Ms. Rabalais is a registered nurse, and she might possess
the professional training and expertise to testify authoritatively
concerning whether some of the deficiencies manifested by
Petitioner are substantial. Id. at 1. However, I am not persuaded
by Ms. Rabalais' affidavit that the deficiencies manifested by
Petitioner are substantial. Her opinion is stated as a bare
conclusion, without foundation. It is unclear from her affidavit
how she formed her opinion. Moreover, Ms. Rabalais states her
conclusion in such a sweeping fashion that it may encompass areas
beyond her professional expertise, including judgments that could
be made reasonably only by a physician.
b. Petitioner's alleged failure to comply with the
condition of participation governing clinical records stated in 42
C.F.R. 484.48
The condition of participation which governs the duty of home
health agencies to maintain clinical records for their patients
states:
A clinical record containing pertinent past and current
findings in accordance with accepted professional standards is
maintained for every patient receiving home health services. In
addition to the plan of care, the record contains appropriate
identifying information; name of physician; drug, dietary,
treatment, and activity orders; signed and dated clinical and
progress notes; copies of summary reports sent to the attending
physician; and a discharge summary.
42 C.F.R. 484.48.
Central to application of this section is the language in the first
sentence which requires that a home health agency maintain its
clinical records in accordance with "accepted professional
standards." The term "accepted professional standards" is not
defined. However, interpretation of this term is critical because
the condition of participation governing clinical records in effect
states that, in order to evaluate a home health agency's compliance
with the condition, that provider's recordkeeping must be measured
against "accepted professional standards."
It is evident from the face of the regulation that the Secretary
has determined that there exist accepted professional standards
which govern recordkeeping by home health agencies. HCFA, as the
Secretary's delegate, has the authority to identify those standards
and to hold home health agencies accountable to them.
There may be recordkeeping standards that are professionally
recognized by home health agencies that are so widely known that
HCFA need not publish them in order to put home health agencies on
notice that they are required to comply with them. If so, then
HCFA's burden of persuasion in a case involving an alleged failure
by a home health agency to comply with these standards is to
identify them, and to prove, by a preponderance of the evidence,
that they are in fact widely known and accepted.
HCFA asserts that Petitioner failed to comply with the condition
governing clinical records in several respects. In the case of
patient # 1, HCFA contends that Petitioner failed to maintain
records which documented the administration of insulin to the
patient as prescribed by the patient's physician. HCFA Ex. 5 at 7.
In the case of patient # 2, HCFA contends that the patient's
records contain an inappropriate diagnosis of "heart trouble."
Furthermore, according to HCFA, the medications listed for this
patient include a medication whose name does not appear in the
standard texts describing medications, nor do the patient's records
describe the dosage, frequency, or route of administration of the
medication. Id. at 7 - 8.
HCFA asserts that the records of patient # 4 contain reference to
a medication whose name cannot be found in standard texts
describing medications. HCFA Ex. 5 at 8. With respect to patient
# 9, HCFA contends that the patient's record contains erasures and
alterations. Id. HCFA asserts that the records of patient # 10
contain an inappropriate diagnosis of "bladder problems." Id.
HCFA contends that, as with other records, the record of this
patient contains a reference to a medication whose name does not
appear in standard texts describing medications. Id. at 8 - 9.
Petitioner has not rebutted the facts alleged by HCFA. I conclude
that HCFA proved its fact assertions by the preponderance of the
evidence. However, I do not find that these facts prove that
Petitioner failed to comply with the condition stated in 42 C.F.R.
484.48.
HCFA has offered no evidence to establish the accepted professional
standards which govern recordkeeping by home health agencies. HCFA
assumes the conclusion that the facts identified by the surveyors
prove that Petitioner failed to keep records in accord with
accepted professional standards without ever identifying those
standards. There is, thus, a critical gap in the evidence offered
by HCFA concerning Petitioner's alleged failure to comply with 42
C.F.R. 484.48.
I am not suggesting that the recordkeeping practices manifested by
Petitioner may not have constituted a failure to comply with the
condition governing clinical records. However, it is HCFA's burden
to establish the criteria with which Petitioner is obligated to
comply. HCFA has not met that burden here.
4. HCFA's authority to terminate Petitioner's
participation in Medicare
HCFA proved by a preponderance of the evidence that, as of April
22, 1994, Petitioner was not complying with the condition of
participation in Medicare stated in 42 C.F.R. 484.18. That
noncompliance is sufficient basis for HCFA to terminate
Petitioner's participation in Medicare.
The Act provides that HCFA may terminate a provider's participation
in Medicare where that provider is not complying substantially with
Medicare participation requirements. Act, section 1866(b)(2)(A).
As I hold above, failure by a provider to comply with a condition
of participation is substantial noncompliance within the meaning of
the Act. Furthermore, regulations provide explicitly that HCFA may
terminate a provider's participation in Medicare where the provider
is not complying with a condition of participation. 42 C.F.R.
489.53(a)(3).
III. Conclusion
HCFA proved that, as of April 22, 1994, Petitioner was not
complying with the condition of participation stated in 42 C.F.R.
484.18. HCFA was authorized to terminate Petitioner's
participation in Medicare. I therefore sustain HCFA's
determination to terminate Petitioner's participation in Medicare.
_______________________
Steven T. Kessel
Administrative Law Judge
1. HCFA submitted a total of ten exhibits (HCFA Ex. 1 - 10).
HCFA Ex. 1 - 8 were submitted initially, and HCFA Ex. 9 and 10 were
submitted with HCFA's supplemental brief. Petitioner submitted a
total of 15 exhibits (P. Ex. 1 - 15). I have admitted into
evidence HCFA Ex. 1 - 10 and P. Ex. 1 - 15.
2. It is unclear whether either the Louisiana State agency or
HCFA found this plan of correction to be acceptable. In any event,
neither Petitioner nor HCFA argues that Petitioner's relationship
with HCFA is governed by the plan of correction.
3. Also, Petitioner requested a hearing.
4. I refer to the burdens of coming forward with evidence and
of proof as the burden of persuasion.
5. Much of Petitioner's evidence is offered to show that the
findings made by the Louisiana State agency surveyors at the first
compliance survey of Petitioner, conducted in January 1994, were
inconsistent with or not supported by documentation made by the
surveyors in conjunction with that survey. See P. Ex. 1 - 15. It
is unnecessary for me to address the purportedly unsupported
findings or the allegedly inconsistent documentation here, because
I make no findings in this decision based on that January 1994
survey.