DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
The Rivers HealthCare
Resources, Inc.,
Petitioner,
- v. -
Health Care Financing Administration.
DATE: November 26, 1996
Docket No. C-96-326
Decision No. CR446
DECISION
I decide that the Health Care Financing Administration (HCFA)
determined correctly to certify Petitioner, The Rivers
HealthCare Resources, Inc., to participate in the Medicare
program, effective January 23, 1996.
I. Background
The following background facts are undisputed. On June 1,
1995, Petitioner applied to participate in the Medicare
program as a home health agency. Petitioner's Brief. On
February 22, 1996, HCFA notified Petitioner that Petitioner
was certified to participate in Medicare as a home health
agency, effective January 25, 1996. HCFA Ex. 12. 1/ On
April 25, 1996, Petitioner requested HCFA to change the
effective date of Petitioner's certification to participate
in Medicare to December 15, 1995. HCFA Ex. 13. On May 3,
1996, HCFA notified Petitioner that it would not change the
effective date of Petitioner's participation to December 15,
1995. HCFA Ex. 14. 2/
Petitioner requested a hearing, and the case was assigned to
me for a hearing and a decision. The parties agreed that the
case could be heard and decided without an in-person hearing.
The parties each submitted exhibits and written arguments.
I base my decision in this case on the law and on the
parties' submissions.
II. Issue, findings of fact, and conclusions of law
The issue in this case is whether HCFA determined correctly
to certify Petitioner to participate in Medicare, effective
January 23, 1996. I make the following findings of fact and
conclusions of law (Findings) to support my decision that
HCFA correctly determined to certify Petitioner to
participate in Medicare effective January 23, 1996. I
discuss each of these Findings in detail, below.
1. A home health agency that applies for participation
in the Medicare program may not participate until HCFA
determines that the home health agency meets Medicare
participation requirements.
2. A home health agency that applies for participation
in the Medicare program will be surveyed on behalf of
HCFA to determine whether the home health agency meets
Medicare participation requirements. The home health
agency will be certified to participate in Medicare
effective the date that the survey is completed, if the
home health agency meets all conditions of participation
in Medicare, and any other requirements imposed by HCFA.
3. Where a home health agency complies with all
conditions of participation in Medicare on the date that
the survey is completed, but fails to comply with one or
more standards of participation or any other
participation requirements, HCFA will certify the home
health agency to participate in Medicare on the earlier
of the following dates: the date on which the home
health agency complies with all participation
requirements; or, the date on which the home health
agency submits to HCFA a plan of correction which HCFA
accepts.
4. A pre-certification survey was completed of
Petitioner on December 15, 1995. On that date,
Petitioner complied with all conditions of participation
for home health agencies, but did not comply with
several standards of participation.
5. Petitioner did not prove that it complied with all
participation requirements before January 23, 1996, the
date on which it submitted to HCFA a plan of correction
which HCFA accepted.
6. HCFA properly determined to certify Petitioner's
participation in Medicare as a home health agency,
effective January 23, 1996.
III. Discussion
A. Governing law (Findings 1 - 3)
An entity must apply to HCFA to be certified to participate
in Medicare. 42 C.F.R. § 489.10(a). In order to be
certified, an applicant for participation first must be
surveyed in order to determine whether that applicant meets
all Medicare participation requirements. 42 C.F.R. §§
488.10, 489.10(d). HCFA has delegated to State survey
agencies the authority to conduct surveys on HCFA's behalf.
Id. HCFA will accept an applicant's participation agreement
on the date that a survey of that applicant is completed,
assuming that the applicant meets all participation
requirements on that date. 42 C.F.R. § 489.13(a).
If an applicant for participation in Medicare fails to
satisfy all participation requirements as of the date of
completion of the survey, then HCFA will not certify that
applicant to participate in Medicare until HCFA is satisfied
that the applicant meets participation requirements. See 42
C.F.R. § 489.13(b). If HCFA finds, on the basis of a survey,
that an applicant (other than a skilled nursing facility)
complies with all conditions of participation, but fails to
comply with a lesser requirement or requirements, such as a
standard of participation, then HCFA will certify the
applicant to participate on the earlier of the following
dates: the date that the applicant actually complies with all
participation requirements; or, the date on which the
applicant submits a plan of correction which addresses the
outstanding deficiencies and which HCFA accepts. 42 C.F.R. §
489.13(b)(1), (2). 3/
Petitioner notes in its brief that approximately 28 weeks
transpired between the date that Petitioner applied to
participate in Medicare and the date that it became certified
to participate in Medicare. I infer that Petitioner is
arguing that it might have met Medicare participation
requirements sooner than the date of its certification, had
HCFA been more expeditious in processing Petitioner's
application.
That may be so, but the delay in processing Petitioner's
application does not entitle Petitioner to be certified at an
earlier date than the date that it actually satisfies the
criteria for participation. The earliest date that an
applicant for participation will be certified is the date on
which a survey of that applicant is completed, assuming that
the applicant meets all participation requirements as of that
date. 42 C.F.R. § 489.13(a). An applicant may not be
certified to participate at a date earlier than the date the
initial survey is completed, even assuming that the applicant
might have been able to satisfy HCFA that it met
participation requirements at an earlier date, had the survey
been conducted on that earlier date. See id. Where an
applicant is deficient in complying with participation
requirements, that applicant may not be certified at a date
earlier than the date that it satisfies HCFA that the
deficiencies have been corrected. 42 C.F.R. § 489.13(b). An
earlier certification date may not be established, based on
the applicant's argument that the applicant would have
corrected its deficiencies earlier, had HCFA apprised the
applicant of those deficiencies at an earlier date. See Id.
B. The facts of this case and the application of the
law to the facts (Findings 4 - 6)
It is evident from application of the law to the facts of
this case that the earliest date that Petitioner established
that it met Medicare participation requirements is January
23, 1996. Consequently, HCFA correctly certified Petitioner
to participate in Medicare, effective January 23, 1996.
1. The facts (Findings 4 - 5)
A pre-certification survey of Petitioner was completed by the
Commonwealth of Virginia Department of Health (Virginia State
survey agency), acting on behalf of HCFA, on December 15,
1995. HCFA Ex. 4 at 1. On December 27, 1995, the Virginia
State survey agency notified Petitioner that Petitioner had
been found to be deficient in complying with standards under
the following regulations: 42 C.F.R. § 484.14(g), 42 C.F.R. §
484.18, and 42 C.F.R. § 484.18(c). HCFA Ex. 4 at 1, 3 - 9.
Petitioner was not found to be deficient in complying with
any conditions of participation. See Id. The Virginia State
survey agency advised Petitioner that Petitioner must submit
a plan of correction which addressed the specific
deficiencies that had been identified. HCFA Ex. 4 at 1.
Petitioner submitted its first plan of correction on December
31, 1995. HCFA Ex. 5. The Virginia State survey agency
found the first plan of correction to be unacceptable. HCFA
Ex. 6.
The Virginia State survey agency found Petitioner's first
plan of correction to be deficient in several respects. With
respect to the standard of participation contained in 42
C.F.R. § 484.14(g), which requires a home health agency to
coordinate its delivery of patient services and to maintain
liaison among the individuals who provide services, the
Virginia State survey agency found that Petitioner had failed
to explain how it would provide prompt notification to a
physician of any delay in providing care to a patient
pursuant to a plan of care. HCFA Ex. 6 at 5; see HCFA Ex. 5
at 3 - 4.
With respect to the standard of participation contained in 42
C.F.R. § 484.18, which requires that care provided by a home
agency follow a written plan of care that is established and
is periodically reviewed by a physician, the Virginia State
survey agency found that Petitioner did not explain how it
would document a verbal order for treatment issued by a
physician. HCFA Ex. 6 at 5 - 6; see HCFA Ex. 5 at 4 - 5.
Additionally, with respect to this standard of participation,
the Virginia State survey agency found that Petitioner did
not explain how it would document a corrective action
undertaken to redress an error in following a physician's
plan of care. HCFA Ex. 6 at 6; see HCFA Ex. 5 at 5.
With respect to the standard of participation contained in 42
C.F.R. § 484.18(c), which requires that oral orders by a
physician be signed by a nurse or therapist, and that the
physician's signature be obtained, the Virginia State survey
agency found that Petitioner had not explained adequately how
it would redress any failure to do what the standard
required. Specifically, the Virginia State survey agency
found that Petitioner did not explain how it would assure
that a verbal physician's order would be signed and dated
immediately. HCFA Ex. 6 at 6 - 7; see HCFA Ex. 5 at 6 - 8.
Also with respect to the standard of participation contained
in 42 C.F.R. § 484.18(c), the Virginia State survey agency
found that Petitioner did not explain how it would document
the date that it received a verbal order from a physician.
HCFA Ex. 6 at 7; see HCFA Ex. 5 at 8. Finally, the Virginia
State survey agency found that Petitioner's first plan of
correction did not address a failure by Petitioner's staff to
follow Petitioner's policy concerning assuring that a
physician sign a verbal order for care. HCFA Ex. 6 at 7; see
HCFA Ex. 5 at 9.
On January 19, 1996, the Virginia State survey agency
communicated by telephone to Petitioner some, but not all, of
its conclusions that Petitioner's first plan of correction
was unacceptable. HCFA Ex. 2 at 5. On January 22, 1996, the
Virginia State survey agency attempted to fax its written
findings to Petitioner. Id.; see HCFA Ex. 6. However, the
fax machine at Petitioner's office would not receive the
transmission. HCFA Ex. 2 at 5.
On January 22, 1996, Petitioner submitted to the Virginia
State agency a second plan of correction. HCFA Ex. 7.
Petitioner submitted this second plan of correction to the
Virginia State survey agency prior to receiving the Virginia
State survey agency's written findings that Petitioner's
first plan of correction was unacceptable. HCFA Ex. 2 at 5;
HCFA Ex. 7 at 1.
On January 23, 1996, the Virginia State survey agency
notified Petitioner, by telephone, that the second plan of
correction had not addressed all of the problems that had
been found with the first plan of correction. HCFA Ex. 2 at
6.
On January 23, 1996, Petitioner submitted a third plan of
correction to the Virginia State survey agency. HCFA Ex. 8.
In this plan, Petitioner made revisions to address the
outstanding problems with the first plan of correction that
Petitioner had not addressed in its second plan of
correction. Id.; see HCFA Ex. 6. The Virginia State survey
agency found the third plan of correction to be deficient
only in that it had not been signed and dated and in that it
did not contain completion dates for proposed corrections.
HCFA Ex. 9. On January 25, 1996, Petitioner submitted a
fourth plan of correction which addressed these remaining
deficiencies. HCFA Ex. 10. HCFA has now agreed to certify
Petitioner to participate in Medicare effective January 23,
1996, based on Petitioner's fourth plan of correction.
Petitioner does not dispute that it was obligated to comply
with Medicare participation requirements, as described by the
Virginia State survey agency. However, Petitioner asserts
that it was in compliance with all Medicare conditions of
participation on December 18, 1995, and ought to have been
certified to participate effective that date. Petitioner's
Brief. It is possible that the reference to "December 18" in
Petitioner's Brief is a typographical error, and that
Petitioner intends to say that it was in compliance with all
Medicare conditions of participation on December 15, 1995,
the date that the pre-certification survey was completed.
It also may be that Petitioner is asserting that, as of
December 15, 1995, it was in compliance with all Medicare
participation requirements, and not just conditions of
participation in Medicare. As I discuss above, at Part
III.A. of this decision, an applicant for participation may
not be certified to participate as of the completion date of
the pre-certification survey on the basis that it complied
with all conditions of participation if, in fact, it was not
complying with standards of participation on that date.
HCFA's determination in this case in part is that Petitioner
was complying with all conditions of participation as of
December 15, 1995, but that Petitioner was not complying with
standards of participation on that date. To be fair to
Petitioner, I have examined the evidence offered by
Petitioner to decide if, in fact, Petitioner was complying
with all standards of participation, as well as conditions of
participation, at any time prior to January 23, 1996.
Petitioner has offered an exhibit which arguably is relevant
to deciding this question. The exhibit consists of
Petitioner's policy and procedure manual, which describes the
policies and procedures in effect in Petitioner's operations
as of December 15, 1995. P. Ex. 8. I have looked closely at
the policies and procedures described in the manual, in order
to decide whether they establish that Petitioner was
complying with all standards of participation on December 15,
1995, or thereafter. I conclude that the policy and
procedures manual does not answer all of the concerns raised
by the Virginia State survey agency.
The deficiencies that the surveyors identified in the report
of the pre-certification survey, completed on December 15, in
many respects were based on review of Petitioner's care of
individual patients. HCFA Ex. 5 at 4 - 9. Petitioner has
not denied that it failed, in these individual cases, to
provide care that met standards of participation. Thus, even
if Petitioner did have policies in effect on December 15,
1995 that may have comported with the requirements of the
standards of participation governing home health agencies, it
was not complying with those policies, and the standards, in
individual cases. Petitioner has not offered any evidence
that it corrected its failures to comply prior to January 23,
1996.
Furthermore, the policies stated in the policy and procedure
manual do not completely address the concerns raised by HCFA
as of December 15, 1995, or thereafter. Thus, Petitioner
would not have been in full compliance with applicable
participation requirements, even if it had carried out to the
letter the policies contained in its policy and procedure
manual. As I describe above, one deficiency noted by the
Virginia State survey agency under 42 C.F.R. § 484.14(g) was
that Petitioner did not explain how it would assure that a
physician would be notified of any delay experienced in
following the physician's plan of care for a patient. The
policy and procedure manual states that a patient's case
manager will determine the frequency of communication with a
patient's physician. P. Ex. 8 at 3. Among the
communications which are to be made are communications
concerning delays in implementing a patient's plan of care.
Id. I do not find that these statements in the policy and
procedure manual address fully the concern raised by the
Virginia State survey agency. Although these statements in
the policy and procedure manual identify the individual who
has the duty to notify a physician of a delay in implementing
a patient's plan of care, they do not define a mechanism for
assuring that such notification will take place.
Another deficiency identified by the Virginia State survey
agency, pursuant to 42 C.F.R. § 484.18(c), which I have
discussed above, was a failure by Petitioner to explain how
it would address a failure by Petitioner's staff to assure
that Petitioner followed its internal policies concerning
documentation of a physician's verbal order. The policy and
procedure manual does establish a policy for documenting a
verbal order by a physician. P. Ex. 8 at 3. However, it
does not explain what Petitioner would do in the event that
its staff was remiss in executing the policy. See id.
2. Application of the law to the facts (Finding 6)
As I discuss at Part III.A. of this decision, HCFA will not
certify an applicant to participate in Medicare effective the
completion date of a pre-certification survey if the
applicant is not complying with all Medicare participation
requirements as of that date. In the event that an applicant
is not complying with a participation requirement other than
a condition of participation, the applicant may not
participate until it satisfies HCFA that it is complying with
all participation requirements. HCFA will certify an
applicant to participate on the earlier of the following
events: when the applicant attains compliance, or when the
applicant submits an acceptable plan of correction.
The evidence in this case establishes that Petitioner was not
complying with all Medicare participation requirements on
December 15, 1995. HCFA determined correctly that Petitioner
could not be certified to participate effective that date.
Petitioner has not proved that it complied with all Medicare
participation requirements prior to January 23, 1996, the
date when it submitted an acceptable plan of correction.
Therefore, HCFA correctly determined that the earliest date
that it could certify Petitioner to participate in Medicare
was January 23, 1996.
IV. Conclusion
I conclude that HCFA determined correctly to certify
Petitioner as a Medicare participant, effective January 23,
1996.
_______________________
Steven T. Kessel
Administrative Law Judge
* * * Footnotes * * *
1. HCFA offered as evidence 16 exhibits (HCFA
Exs. 1 - 16). Petitioner offered as evidence with its
initial brief six exhibits (P. Exs. 1 - 6) and two
documents which Petitioner designated as "supporting
documents." The first "supporting document" is a letter
to Petitioner's President, dated March 11, 1996, from the
Joint Commission on Accreditation of Healthcare
Organizations, with attachments. I have designated this
document as P. Ex. 7. The second "supporting document"
is a nine-page policy and procedure manual prepared by
Petitioner. I have designated this document as P. Ex. 8.
Additionally, Petitioner has offered P. Exs. 9 and 10.
Neither party has objected to my receiving into evidence
the other party's exhibits. I admit into evidence HCFA
Exs. 1 - 16 and P. Exs. 1 - 10.
2. However, HCFA has now agreed to change the
effective date of Petitioner's participation in Medicare
to January 23, 1996. HCFA's Brief at 1.
3. The criteria for establishing compliance
are not the same for skilled nursing facilities as they
are for other applicants for participation. 42 C.F.R.
§ 489.13(b)(2). Petitioner is not a skilled nursing
facility, so those different criteria are not at issue
here.