DECISION GRANTING MOTION OF HEALTH
CARE FINANCING ADMINISTRATION FOR
SUMMARY DISPOSITION

The Health Care Financing Administration (HCFA) moved to dismiss the hearing request of Petitioner, Family Home Health Services, on the ground that the hearing request failed to comply with the specificity requirements of 42 C.F.R. § 498.40(b). Alternatively, HCFA moved that summary disposition be entered against Petitioner on the ground that Petitioner had not requested a hearing with respect to one of the reasons stated by HCFA for its determination to impose against Petitioner the remedy of termination of Petitioner's participation in the Medicare program. I agree with HCFA's argument in support of its motion for summary disposition and I enter summary disposition against Petitioner. I reach no conclusion as to HCFA's motion to dismiss the hearing request inasmuch as it is unnecessary for me to do so.

I. UNDISPUTED MATERIAL FACTS

Petitioner filed five exhibits with its response to HCFA's motions. I am receiving these exhibits into evidence as P. Ex. 1 - P. Ex. 5 and I rely on them as a basis for my recitation of the undisputed material facts of this case.

The undisputed material facts of this case are as follows. On January 13, 1999, HCFA sent a notice to Petitioner's administrator. P. Ex. 1. That notice advised Petitioner that HCFA had determined that Petitioner no longer met the requirements for participation in Medicare as a provider of home health services. Petitioner was advised that, as a consequence, its participation in Medicare would be terminated effective January 28, 1999.

HCFA asserted two bases for terminating Petitioner's participation in the Medicare program. First, it asserted that, at a survey of Petitioner that had been conducted on November 9-10, 1998, Petitioner had been found not to be complying with five separate conditions of participation contained in 42 C.F.R. §§ 484.10, 484.14, 484.18, 484.30, and 484.36. P. Ex. 1 at 2.

Second, HCFA asserted that Petitioner was furnishing home health aide services to at least five Medicare patients residing in residential care facilities for the elderly (RCFEs). P. Ex. 1 at 2. According to HCFA, the home health aide services that were rendered to these patients were for personal care. There was no documentation that aide visits to these five patients were for services that were beyond the scope and responsibility for care that was available from the RCFEs. HCFA advised Petitioner that it had determined that Petitioner knew or should have known that the services it was providing to the five patients were not medically necessary. HCFA averred that it had determined that Petitioner was violating its Medicare provider agreement to provide and claim reimbursement from Medicare for only those covered services that are "reasonable and necessary." According to HCFA, this alleged violation by Petitioner was a separate and distinct basis to terminate Petitioner's participation in the Medicare program. Id. at 2-3.

The notice letter advised Petitioner that it had a right to request a hearing before an administrative law judge if it disagreed with HCFA's determinations. Petitioner was told that its request must identify the specific issues as well as the findings of fact and conclusions of law with which it disagreed and must explain Petitioner's basis for contending that the findings and conclusions are incorrect. P. Ex. 1 at 3-4.

On January 15, 1999, Petitioner filed a written hearing request with HCFA. P. Ex. 2. In its request, Petitioner asserted that HCFA's findings, that Petitioner had failed to comply with five conditions of participation, were based on incomplete investigation by the surveyors who conducted the November 9-10, 1998 complaint survey of Petitioner. Petitioner asserted additionally that it had not been given an opportunity to correct alleged deficiencies and get back into compliance with program requirements. Finally, Petitioner asserted that it did not agree with HCFA's determination to terminate Petitioner's participation in Medicare.

On February 8, 1999, Petitioner sent an additional letter to HCFA. P. Ex. 3. Petitioner also provided HCFA on that date with a plan of correction which responded specifically to the five allegations of failures to comply with conditions of participation that were contained in the report of the November 9-10, 1998 survey of Petitioner and which were cited in HCFA's January 13, 1999 letter to Petitioner as comprising one of the two bases for terminating Petitioner's participation in Medicare. P. Ex. 4; see P. Ex. 1. In its letter, Petitioner quoted from a decision that I issued in another case, evidently in order to assert that Petitioner's circumstances were similar to those of the petitioner in that case. P. Ex. 3 at 2.

The issue in this case is whether a basis exists to impose summary disposition against Petitioner.

I make findings of fact and conclusions of law (Findings) to support my conclusion that a basis exists in this case to impose summary disposition against Petitioner. I set forth each Finding below as a separately numbered heading. I discuss each Finding in detail.

1. Summary disposition is appropriate inasmuch as Petitioner has failed to request a hearing concerning HCFA's determination that Petitioner violated the terms of its Medicare provider agreement with HCFA.

I have examined Petitioner's January 15 and February 8, 1999 letters to HCFA, as well as Petitioner's plan of correction, in order to discern whether Petitioner ever disputed HCFA's determination that Petitioner's participation in Medicare should be terminated due to Petitioner's alleged violation of the terms of its Medicare provider agreement with HCFA. P. Exs. 2-4. These documents are silent as to that issue. Although Petitioner disagrees with HCFA's determination that Petitioner did not comply with enumerated conditions of participation, it has never expressed any disagreement with HCFA's determination that Petitioner knew or should have known that it provided services to Medicare beneficiaries that were not reasonable and necessary. Nor has Petitioner ever denied that, if this determination is correct, then there is a separate reason for terminating Petitioner's participation in Medicare over and above Petitioner's alleged failure to comply with conditions of participation.

Petitioner filed a brief in opposition to HCFA's motions. In its brief, Petitioner focuses on whether its January 15 and February 8, 1999 letters to HCFA address HCFA's allegations concerning the five conditions of participation with which Petitioner allegedly failed to comply. It argues also that a "reasonable reading" of its February 8, 1999 letter along with the plan of correction that Petitioner filed with that letter "does indicate a request to appeal" the finding that Petitioner had violated the terms of its provider agreement. Petitioner's Brief (Br.) at 9. According to Petitioner, its February 8, 1999 letter and the accompanying plan of correction challenge this finding in three respects:

1. Petitioner avers that, in its February 8, 1999 letter, it asserts that the report of the November 9-10, 1998 survey does not contain negative reports or outcomes relating to the care administered by Petitioner. Moreover, according to Petitioner, the February 8, 1999 letter indicates that its capacity to provide adequate care is not jeopardized and that it provides quality and compassionate care to all patients. Petitioner's Br. at 10.

2. Petitioner asserts additionally that the last paragraph of its February 8, 1999 letter addresses the issue of patients being discharged in two communities (Stockton and Modesto, California) where Petitioner did not open a home health agency. Id.

3. Petitioner argues that the plan of correction that it filed with its February 8, 1999 letter relates to whether various services were reasonably necessary. Id.; see P.Ex. 4.

Not even the most liberal reading of Petitioner's February 8, 1999 letter or of Petitioner's plan of correction supports the conclusion that this letter and plan of correction challenge HCFA's determination that Petitioner violated the terms of its provider agreement. Petitioner's arguments to the contrary, I do not find that either of the two assertions by Petitioner in its February 8, 1999 letter, which Petitioner cites to in its brief, address HCFA's determination that Petitioner violated the terms of its Medicare provider agreement. Nor does Petitioner's plan of correction challenge that determination. See P. Ex. 4. The fact premise for HCFA's determination that Petitioner violated the terms of its provider agreement is that Petitioner provided services that were not medically necessary to five residents in RCFEs. Petitioner has not identified anything in the plan of correction which addresses that premise.

The gravamen of HCFA's determination is that Petitioner knew or should have known that it was providing care to patients that was not medically necessary. Whether or not such care produced negative outcomes for patients and whether or not it was provided in a compassionate manner are not relevant responses to HCFA's allegations. Nor is it relevant that Petitioner may have ceased doing business in the Stockton and Modesto areas. That action by Petitioner simply does not respond to the question of whether Petitioner provided care in violation of its provider agreement. Finally, Petitioner's plan of correction simply fails to say anything relevant to refute HCFA's determination that Petitioner violated the terms of its provider agreement.

Summary disposition in a case is appropriate where a potentially outcome determinative allegation is made by a party that is not denied by the opposing party. Summary disposition is appropriate here. In its January 13, 1999 notice to Petitioner, HCFA made a potentially outcome determinative allegation when it concluded that Petitioner had violated the terms of its provider agreement by providing care to patients that Petitioner knew or should have known was not medically necessary. To this day, Petitioner has not averred that HCFA's assertion is incorrect either as a matter of fact or of law.

2. It is moot whether Petitioner's hearing request complied with the specificity requirements of 42 C.F.R. § 498.40(b).

HCFA argues that Petitioner's hearing request fails to comply with the specificity requirements of 42 C.F.R. § 498.40(b). Petitioner asserts that, in fact, it complied with the requirements of the regulation.

The issue of Petitioner's compliance with the requirements of 42 C.F.R. § 498.40(b) is moot. Even were I to issue a ruling that is favorable to Petitioner on that issue, there is a basis to enter summary disposition in favor of HCFA. Petitioner's hearing request may or may not have been sufficiently specific to comply with the requirements of the regulation in requesting a hearing from HCFA's determination that Petitioner failed to comply with five enumerated conditions of participation. But, Petitioner's hearing request did not even address HCFA's determination that Petitioner had violated the terms of its provider agreement. For that reason I decline to decide the issue of whether Petitioner's hearing request ought to be dismissed on the ground that it did not comport with the specificity requirements of 42 C.F.R.