Bennybright Home Health Services, Inc., DAB CR5161 (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, Bennybright Home Health Services, Inc., a home health agency.

I. Background

CMS moved, alternatively, that I dismiss Petitioner's hearing request on the ground that it was not filed timely or that I enter summary judgment favorable to CMS on the merits. With its motion, CMS filed nine proposed exhibits that it identified as CMS Ex. 1-CMS Ex. 9. Petitioner did not reply to the motion.

I do not admit CMS's proposed exhibits as evidence inasmuch as I enter summary judgment based on undisputed material facts. I refer to some of these exhibits, but only to illustrate facts that are undisputed.

II. Ruling on CMS's Motion to Dismiss

CMS contends that Petitioner did not timely file a hearing request and did not offer good cause for its failure to do so. I deny this motion. On September 13, 2016, CMS sent a notice to Petitioner advising it that CMS was terminating Petitioner's Medicare

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participation on September 28, 2016, and informing Petitioner of its right to appeal CMS's determination. CMS Ex. 1. The notice advised Petitioner that it had 60 days within which to request a hearing and, further, instructed Petitioner to file its request electronically unless Petitioner requested a waiver. Id.

CMS contends that Petitioner did not file a hearing request until March 2018, about 16 months after its deadline for filing a request had expired.

The record establishes otherwise. Petitioner produced a letter that it contends that it sent to the Departmental Appeals Board (Board) on September 19, 2016. Petitioner's Hearing Request. CMS argues that this letter, if Petitioner sent it, violated instructions that it file its appeal request electronically. However, if Petitioner sent that letter in hard copy form, it is reasonable to infer that the letter itself constructively requested a waiver from electronic filing requirements.

CMS argues that there is no proof aside from the copy of the letter produced by Petitioner that it actually sent a hearing request to the Board. The Board never docketed the request. Petitioner did not produce a mailing receipt for the letter or a date-stamped copy of it. However, the record shows that Petitioner sent more than one inquiry to CMS in September and December 2016, inquiring about the status of its request. I infer from these communications that Petitioner filed a request and that the request was timely.

III. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether undisputed facts establish that CMS was authorized to terminate Petitioner's participation in Medicare.

B. Findings of Fact and Conclusions of Law

CMS terminated Petitioner's Medicare participation on the authority of 42 C.F.R. § 489.53(a)(18). This regulation states in relevant part that CMS may terminate a Medicare provider's or supplier's participation if it fails to grant immediate access to a representative of a state survey agency or other authorized entity in order that the representative may survey the provider or supplier for compliance with Medicare participation requirements.

The undisputed facts plainly establish that Petitioner failed to comply with this requirement, justifying CMS's determination to terminate Petitioner's Medicare participation. On July 25, 2016, at 8:50 a.m., a surveyor from the Texas state survey agency attempted to conduct a recertification survey at Petitioner's business address. CMS Ex. 9 at 1-2. The surveyor found Petitioner's facility to be locked, and she was

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unable to gain entry to it. Id. at 2; CMS Ex. 2 at 2. The surveyor eventually spoke with one of Petitioner's administrators, who told the surveyor that she was at a meeting but that she would attempt to return to the facility. CMS Ex. 2 at 2. The administrator told the surveyor that she lacked keys to Petitioner's facility and that she would have to call one of Petitioner's owners, in Chicago. Id. There then ensued a series of phone calls in which the surveyor attempted to find someone who could provide her with access to Petitioner's facility. Id. at 2-3. The person with whom the surveyor spoke told the surveyor that the person who had keys to the facility was traveling outside the country and was unavailable. Id. at 3. At 11:00 a.m., the surveyor gave up and left the facility without having been able to enter it. Id.

Petitioner admits that no one was available to allow the surveyor to enter the facility. It contends that the individuals who could have allowed entry were unavailable due to unforeseen family issues and emergencies. Petitioner's Hearing Request. That may be so, but that does not provide a defense for failure to provide access to the state agency surveyor. The regulation allows for no exceptions.