Compassionate Home Health LLC, DAB CR6757 (2025)

DECISION

Two surveyors from the Kansas Department of Health & Environment, Bureau of Facilities and Licensing (state agency), attempted to conduct a survey of the offices of a home health agency (HHA) called Compassionate Home Health LLC (Petitioner).  A complaint filed against Petitioner prompted the survey.  The surveyors acted on behalf of both the state agency, as the licensing authority for HHAs in Kansas, and the Centers for Medicare & Medicaid Services (CMS), as the federal agency that certifies participating providers in the Medicare program.  Although the surveyors arrived at Petitioner’s offices during normal business hours, Petitioner’s staff refused to permit the surveyors access to Petitioner’s offices.

The surveyors sought entry by calling the phone number posted near the locked front door to Petitioner’s offices and told Petitioner’s staff who they were and generally why they were there.  However, Petitioner’s staff refused them entry.  The surveyors returned later in the day, also during Petitioner’s posted business hours, and Petitioner’s staff again refused them entry.  The surveyors attempted to provide Petitioner with a copy of the letter authorizing the survey, both through holding it up to front door security camera and by texting a picture of the letter to Petitioner’s phone number.  The surveyors also had identification badges displayed on their person.  But this did not persuade Petitioner’s

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staff.  Based on Petitioner’s actions, CMS terminated Petitioner’s Medicare provider agreement for failing to grant immediate access to its offices so that the survey could be completed.

Petitioner’s Administrator denies that the surveyors identified themselves, had identification badges, or explained why they were there.  The Administrator claims that Petitioner’s offices are in a high-crime area and that Petitioner’s policy is to keep its doors locked to protect staff.  The Administrator also asserts that Petitioner’s staff had trouble in the past with individuals trying to gain access to its offices while falsely claiming to be government officials.  Finally, the Administrator states that Petitioner’s security camera footage shows that the surveyors did not have identification.

As explained below, I credit the evidence submitted by CMS, which shows that the surveyors acted appropriately in their attempt to conduct a survey.  I do not credit the version of events provided by Petitioner’s Administrator because he did not submit evidence, such as a copy of the relevant footage from the security camera or written testimony, showing that the surveyors failed to properly identify themselves.  Without some showing that Petitioner’s staff had a valid concern for their safety and were unable to assuage that concern by communicating with the surveyors in good faith, Petitioner’s staff did not act reasonably when they blocked a survey.  Therefore, I affirm CMS’s determination to terminate Petitioner’s Medicare provider agreement because Petitioner failed to grant immediate access upon a reasonable request by a state survey agency in violation of 42 C.F.R. § 489.53(a)(18).

I.        Legal Framework

The Medicare program “provides basic protection against the costs of . . . home health services” for individuals over the age of 65 who are eligible for Social Security retirement benefits and for individuals under the age of 65 who meet other criteria.  42 U.S.C. § 1395c.  Medicare may pay for home health services if they “were required because the individual is or was confined to his home . . . and needs or needed skilled nursing care . . . on an intermittent basis or physical or speech therapy . . . [under] a plan furnishing such services to such individual has been established and is periodically reviewed by a physician, a nurse practitioner, a clinical nurse specialist, or a physician assistant . . . .”  42 U.S.C. § 1395n(a)(2)(A).  Home health services include intermittent or part-time nursing care, physical and occupational therapy, intermittent or part-time home health aide services, and certain medical supplies provided by an HHA.  42 U.S.C. § 1395x(m).  An HHA is a public agency or private organization that is primarily engaged in providing skilled nursing services and other therapeutic services.  42 U.S.C. § 1395x(o).

In the Medicare program, an HHA is a “provider of services.”  42 U.S.C. § 1395x(u).  To receive payment for services furnished to Medicare beneficiaries, an HHA must meet the

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requirements to be a provider of services.  42 U.S.C. § 1395n(a).  One requirement is that the HHA file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. § 1395cc(a).  The provider agreement must specify that the HHA is subject to unannounced surveys performed by state or local government agencies.  42 U.S.C. § 1395bbb(c)(1).  Further, an HHA must be licensed by a state or local government and must meet the Medicare conditions of participation for HHAs.  42 U.S.C. § 1395x(o).  The conditions of participation provide a variety of requirements to ensure that HHAs protect the rights of their patients and provide proper services to those patients.  See 42 U.S.C. § 1395bbb(a); 42 C.F.R. pt. 484.1

Under the Social Security Act, “[i]t is the duty and responsibility of the Secretary to assure that the conditions of participation and requirements [specified by other statutory provisions] and the enforcement of such conditions and requirements are adequate to protect the health and safety of individuals under the care of a [HHA] and to promote the effective and efficient use of public monies.”  42 U.S.C. § 1395bbb(b).  To do so, the Secretary contracts with state agencies to survey HHAs participating in the Medicare program.  42 U.S.C. §§ 1395aa(a), 1395bbb(c)(1).  Standard surveys are unannounced and occur at least once every 36 months.  42 U.S.C. § 1395bbb(c)(1)-(2).  A complaint survey is a survey conducted to investigate specific allegations of noncompliance with the conditions of participation.  42 C.F.R. § 488.705 (definitions of “Complaint survey” and “Noncompliance.”).

When the results of a survey show that an HHA is not in substantial compliance with Medicare statutory and regulatory requirements, the Secretary may impose intermediate remedies or may terminate the HHA’s provider agreement.  42 U.S.C. §§ 1395cc(b)(2)(B), 1395bbb(e); 42 C.F.R. pt. 488, subpt. J; 42 C.F.R. § 489.53.  CMS may terminate an HHA’s provider agreement if the HHA has a single condition-level deficiency, and CMS’s decision to do so is discretionary.  United Medical Home Care, Inc., DAB No. 2194 at 13-14 (2008); Comprehensive Professional Home Visits, DAB No. 1934 (2004).  If CMS terminates an HHA’s provider agreement, the HHA has the right to appeal the termination to an administrative law judge (ALJ).  42 C.F.R. §§ 488.865(e), 489.53(e), 498.3(b)(8), 498.5(b); see 42 U.S.C. § 1395cc(h)(1) (making the administrative hearing provisions in 42 U.S.C. § 405(b) applicable to determinations to terminate provider agreements); see also 5 U.S.C. §§ 554, 556-557.

If an HHA challenges a termination, CMS must make a prima facie case that the HHA failed to substantially comply with applicable requirements and, if such a showing is made, the HHA must then prove substantial compliance by a preponderance of the evidence.  See Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997),aff’d, Hillman Rehab.

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Ctr. v. U.S. Dep’t of Health and Human Servs., No. Civ.A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); see also Adora Healthcare Services, Inc., DAB No. 2714 at 4-5 (2016); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson,129 F. App’x 181 (6th Cir. 2005).

Either the HHA or CMS may request that the Departmental Appeals Board (DAB) review an ALJ’s decision.  42 C.F.R. § 498.80; see also 5 U.S.C. § 557.

II.      Background and Procedural History

Petitioner is an HHA located in Wichita, Kansas, which participated in the Medicare program.

State agency surveyors completed a Statement of Deficiencies (SOD) detailing their efforts on September 9, 2024, to conduct “[a] Medicare/Licensure complaint survey” at Petitioner’s offices located at 830 N. Main Street, Wichita, Kansas.  The SOD concluded:  “The HHA refused to allow the survey to take place to determine whether the HHA was following state and federal requirements, as required for participation in the Medicare program.”  CMS Ex. 2.

On September 17, 2024, CMS issued a notice of initial determination in which CMS terminated Petitioner’s Medicare provider agreement, effective October 2, 2024, based on 42 C.F.R. § 489.53(a)(18).  CMS alleged that Petitioner refused “to permit surveyors from the Kansas Department of Health & Environment (KDHE) to conduct a Medicare recertification survey of [Petitioner’s] HHA on September 9, 2024.”  CMS Ex. 1 at 1.

Also on September 17, 2024, Petitioner’s Administrator requested a hearing before an ALJ to dispute the termination of Petitioner’s provider agreement.  On September 18, 2024, the Civil Remedies Division acknowledged receipt of Petitioner’s hearing request, informed the parties that Judge Leslie C. Rogall was assigned to hear and decide this case, and issued Judge Rogall’s Standing Order and the Civil Remedies Division Procedures (CRDP).

On December 17, 2024, CMS filed a prehearing brief (CMS Br.) and 24 proposed exhibits (CMS Exs. 1-24), two of which were written direct testimony from witnesses (CMS Exs. 23-24).  On December 19, 2024, Petitioner filed a prehearing brief (P. Br.), five proposed exhibits (P. Exs. 1-5), and an unmarked document entitled “Witness Testimony.”  On December 20, 2024, Petitioner filed a document entitled “Motion to Dismiss.”  On December 27, 2024, Petitioner filed a document entitled “Affidavit or Written Declaration” in which Petitioner’s Administrator declared, under penalty of perjury, that Petitioner’s prehearing submission was “true and correct to the best of my knowledge and belief.”  On December 30, 2024, Judge Rogall granted a request from

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CMS to set February 5, 2025, as the due date for its reply brief.  On February 3, 2025, CMS filed objections to Petitioner’s proposed exhibits and written testimony from witnesses, and CMS requested to cross-examine Petitioner’s witnesses should their written testimony not be excluded.  On February 6, 2025, Petitioner objected to CMS’s request to cross-examine its witnesses as untimely and requested dismissal of CMS’s case or that other sanctions be imposed on CMS.

On March 27, 2025, the Civil Remedies Division notified the parties that this case was transferred to me from Judge Rogall.  The case was transferred because Judge Rogall was no longer available to adjudicate it.  See 42 C.F.R. § 498.44(b); see also 5 U.S.C. § 554(d).

III.     Rulings and Admission of Evidence

Petitioner moved for dismissal of CMS’s termination under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that CMS did not state a claim upon which relief can be granted.  CMS opposed this motion.  Dec. 27, 2024 Mot. for Leave to Set CMS’s Resp. Deadline to Petitioner’s Prehearing Exchange at 2 n.1.  I deny Petitioner’s motion.  The Social Security Act, the Administrative Procedure Act, the Secretary’s regulations, and the CRDP establish the procedures in this case, and the Federal Rules of Civil Procedure do not apply.  In a case involving the termination of a provider agreement, CMS makes an initial determination to terminate and then the provider has the right to request a hearing to challenge that initial determination.  42 U.S.C. § 405(b); 42 C.F.R. §§ 489.53(e), 498.3(b)(8), 498.5(b), 498.20, 498.40.  While CMS may seek dismissal of the hearing request, a provider will only do so when it wants to withdraw its hearing request.  42 C.F.R. § 498.68-.70.  In this case, Petitioner argued the merits of this case in the motion to dismiss; therefore, Petitioner does not seek to withdraw its hearing request.

Petitioner moved for sanctions against CMS for failing to respond to its motion to dismiss and its prehearing exchange.  Petitioner indicated that CMS only filed a document that critiqued the format used by Petitioner in its prehearing exchange.  I deny Petitioner’s motion for sanctions.  Sanctions are only appropriate when a party fails to comply with an order or procedure, fails to defend an action, or commits other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.  Standing Order ¶ 16; CRDP § 23.  CMS requested and received permission to file a response to Petitioner’s prehearing exchange by a certain date.  CMS chose to file various objections to Petitioner’s prehearing exchange by the due date, which is an appropriate way to respond to a prehearing exchange.  See Standing Order ¶ 10; CRDP § 14(e).  Further, as stated above, CMS adequately opposed Petitioner’s motion to dismiss in its December 27, 2024 Motion.

Petitioner did not object to CMS’s proposed exhibits.  Therefore, I admit CMS Exhibits 1 through 24 into the record.

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CMS objected to all of Petitioner’s exhibits and documents related to written direct testimony for its witnesses.  For the reasons stated below, I sustain CMS’s objection to the document Petitioner entitled “Witness Testimony” (Electronic Filing System (E-File) Doc. No. 5a at 13) and to Petitioner’s possible effort to convert its prehearing brief into written direct testimony.  Therefore, while I exclude the “Witness Testimony” document, I otherwise admit Petitioner Exhibits 1 through 5.  I do not exclude Petitioner’s brief, but neither do I count it as testimony.

CMS objected to the documents entitled “Witness Testimony” and “Affidavit or Written Declaration” because neither is listed on Petitioner’s Exhibit List, neither is on a witness list, and neither is properly marked as an exhibit.  In addition, CMS argues that the “Witness Testimony” document was impermissibly filed as part of a compilation of exhibits and fails to be in the form of an affidavit or a declaration made under penalty of perjury.  CMS also points out that the Affidavit or Written Declaration is unclear as to whether Petitioner’s Administrator is attesting to the truth of the “Witness Testimony,” which he cannot do because he is not the witness who signed the testimony, or whether he is trying to convert his prehearing brief into witness testimony, which he also cannot do because it does not conform to the requirements for written direct testimony.  CMS further objects to all of Petitioner’s marked exhibits because they were impermissibly filed as a compilation rather than individually.

Under the rules governing these proceedings, I am to admit evidence into the record that is material and relevant to this case.  42 C.F.R. § 498.60(b)(1); see 5 U.S.C. § 556(d).  Irrelevant, immaterial, and unduly repetitious evidence should be excluded from the record.  5 U.S.C. § 556(d).  Further, I may receive evidence into the record even if it would be inadmissible under the formal rules of evidence used by the courts.  42 U.S.C. § 405(b)(1); 42 C.F.R. § 498.61.  Ultimately, my decision may only be based on reliable, probative, and substantial evidence.  5 U.S.C. § 556(d).

I sustain the objection to the document entitled “Witness Testimony.”  Written direct testimony must be submitted as a sworn affidavit or as a declaration made under penalty of perjury.  Standing Order ¶ 11; CRDP § 19(b); see also 28 U.S.C. § 1746.  The written direct testimony cannot be accepted when not an affidavit or declaration under penalty of perjury because testimony in these proceedings must be made under oath or affirmation.  42 C.F.R. § 498.62; see also 42 U.S.C. § 405(b)(1); 5 U.S.C. § 556(c)(1).  Therefore, I exclude the unsworn “Witness Testimony” from the record.

I sustain the objection related to the “Affidavit or Written Declaration.”  I agree with CMS that it is uncertain what Petitioner intended by that document.  However, if Petitioner seeks to convert the prehearing brief into written direct testimony, this is not possible.  As explained above, the Standing Order provided requirements for the written direct testimony.  Petitioner ought to have submitted a separate, marked exhibit, that

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provided the testimony.  After reviewing Petitioner’s brief, it is unclear what portions would be considered testimony and what portions are argument.  The Administrator, who authored the brief, states that he was not on the phone calls with the surveyors and attributes all interaction as being with unnamed staff.  P. Br. at 7-11.  Therefore, even if I were to consider the brief to contain testimony, it does not appear that the Administrator is a proper witness to the interactions with the surveyors and, therefore, cannot testify about those interactions.  I note that it has been several months since CMS objected to the possibility that Petitioner was attempting to convert the brief into testimony and Petitioner has not taken the opportunity to correct the situation by properly filing written direct testimony from the Administrator with a request that I accept it as a late filing.

Finally, CMS’s objection to Petitioner Exhibits 1 through 5 is overruled.  CMS’s argument is based on Petitioner’s failure to fully comply with the Standing Order.  Petitioner’s Administrator does not appear to be legally trained; therefore, I will accept the filing even though not perfectly filed in accordance with the Standing Order.

IV.     Decision on the Written Record

Judge Rogall directed the parties to submit the written direct testimony for any witnesses they wanted to offer.  Standing Order ¶ 11; see also CRDP § 16(b).  Judge Rogall also informed the parties that they could cross-examine any witness from whom written direct testimony was submitted so long as the party timely filed a separate notice listing the specific witnesses the party wanted to cross-examine.  Standing Order ¶¶ 12-13; see also CRDP § 19(b).

Petitioner did not request to cross-examine CMS’s witnesses.

CMS only requested to cross-examine Petitioner’s witnesses if I did not sustain CMS’s objections to the “Witness Testimony” document and to the possibility that Petitioner was converting its brief to testimony.  Since I have sustained CMS’s objections, there are no witnesses for CMS to cross-examine.  Therefore, I issue this decision on the record.  CRDP § 19(d).

V.       Issue

Whether CMS had a legitimate basis to terminate Petitioner’s provider agreement under 42 C.F.R. § 489.53(a)(18).

VI.     Findings of Fact

1. Petitioner is an HHA located in Wichita, Kansas.

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2. M.A., a registered nurse, is Petitioner’s owner and Administrator.  CMS Ex. 22 at 11; see also CMS Ex. 22 at 2-3, 6, 11, 15.

3. On April 6, 2023, the Community Health Accreditation Partner (CHAP) informed Petitioner that, based on a site visit in March 2023, it recommended Medicare certification for Petitioner.  P. Ex. 3 at 1; CMS Ex. 22 at 8.

4. On May 10, 2023, CMS issued a Certificate of Waiver to Petitioner under the Clinical Laboratory Improvement Amendments (CLIA).  M.A. is listed as the Laboratory Director.  CMS Ex. 22 at 12.

5. On June 30, 2023, a CMS contractor notified Petitioner that contractor personnel would conduct an unannounced site visit for Petitioner’s offices at 2828 South Ida Avenue, Wichita, Kansas.  This site visit was due to a Medicare enrollment application that Petitioner filed with CMS.  The notice stated that the inspectors from the CMS contractor will carry a photo identification and a CMS-issued authorization letter that Petitioner could review.  P. Ex. 2.

6. In a September 1, 2023 notice of initial determination, CMS approved Petitioner’s Medicare enrollment application and Medicare provider agreement, and enrolled Petitioner in the Medicare program as an HHA effective March 16, 2023.  CMS Ex. 22 at 10.

7. In September 2023, Petitioner filed an application with the state agency to renew its state license as an HHA.  CMS Ex. 22 at 2-5.  On October 25, 2023, the state agency renewed Petitioner’s state license as Skilled Services Home Health Agency.  CMS Ex. 22 at 1.

8. In May 2024, the state agency received a complaint involving allegations of physical violence (strangling) perpetrated by Petitioner’s Administrator (M.A.) against one of Petitioner’s patients/clients.  P. Ex. 4 at 1-2; CMS Ex. 17; CMS Ex. 18 at 1-2; CMS Ex. 23 ¶ 9(a); CMS Ex. 24 ¶ 10(a).

9. On June 1, 2024, Petitioner changed its physical address to 830 North Main Street, Wichita, Kansas.  P. Ex. 5. at 1; see also P. Ex. 5 at 2-3.

10. On September 9, 2024, at 10:20 a.m., two surveyors from the state agency attempted to conduct a survey of Petitioner’s offices as part of a Medicare/License complaint survey.  CMS Ex. 2 at 1; CMS Ex. 18 at 2; CMS Ex. 23 ¶ 9(b); CMS Ex. 24 ¶ 7.

1. The surveyors located the building where Petitioner’s offices were located.  The address was 830 North Main Street, Wichita, Kansas.  The door facing

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1. Main Street had Petitioner’s name on it.  The door was locked, and a sign provided a phone number to call during the “Business Hours” of 9:00 a.m. to 3:00 p.m.  CMS Ex. 2 at 1; CMS Ex. 3 at 1; CMS Exs. 5-8; CMS Ex. 18 at 2; CMS Ex. 23 ¶ 9(b), (d); CMS Ex. 24 ¶ 10(b), (d).
2. At 10:25 a.m., the surveyors noted that lights and a security camera were on inside Petitioner’s building.  CMS Ex. 3 at 1; CMS Ex. 18 at 2; CMS Ex. 23 ¶ 9(e); CMS Ex. 24 ¶ 10(e).
3. At 10:28 a.m., one of the surveyors called the number provided on the sign on the door.  A man answered the call but did not identify himself.  The surveyor identified himself and stated that he was there to conduct an unannounced complaint survey.  The man on the phone with surveyor questioned the surveyor about the complaint and then denied the surveyors entry to Petitioner’s offices.  The man on the phone threatened to call the police and the surveyors advised that failing to allow the surveyors access could result in Petitioner losing the ability to operate as an HHA.  The man on the phone threatened to call the police and hung up the phone.  CMS Ex. 2 at 1-2; CMS Ex. 3 at 1; CMS Ex. 18 at 2; CMS Ex. 23 ¶ 9(f); CMS Ex. 24 ¶ 10(f).
4. At 10:32 a.m., the surveyors called the Deputy Director for the state agency’s Bureau of Facilities and Licensing, and the Deputy Director told the surveyors to take pictures of Petitioner’s signage.  CMS Ex. 2 at 2; CMS Ex. 3 at 1; CMS Ex. 5-8; CMS Ex. 23 ¶ 9(g); CMS Ex. 24 ¶ 10(g).
5. At 10:40 a.m., the surveyors observed that an unidentified male got into a silver car parked at the rear of the building with Petitioner’s offices in it and drove away.  CMS Ex. 2 at 2; CMS Ex. 3 at 1; CMS Ex. 18 at 3; CMS Ex. 23 ¶ 9(g); CMS Ex. 24 ¶ 10(g).
6. At 10:45 a.m., the surveyors left Petitioner’s building.  CMS Ex. 3 at 1; CMS Ex. 18 at 3.

11. The surveyors returned to Petitioner’s offices at 1:40 p.m. the same day, and noted that the door to those offices was still locked.  There were no cars in the parking lot.  At 1:41 p.m., the second surveyor called the phone number posted on the door for Petitioner.  The man who answered the phone identified himself as Petitioner’s Administrator.  The surveyor introduced herself and stated she was there to conduct a re-licensure and complaint survey.  The man who answered the phone  stated that surveyors could not just show up to conduct a survey and that the state agency would have sent a letter about the survey first.  The surveyor stated that she had a letter and could provide it by email.  The man who answered the phone

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stated that he wanted the letter mailed to him and that he was not at Petitioner’s offices and would not return that day.  The surveyor warned that a failure to allow the survey could impact Petitioner’s licensure and certification.  The man hung up the call and did not answer when the surveyor called back again.  The surveyor left a voicemail again warning of the potential consequences of refusing the survey.  CMS Ex. 2 at 2; CMS Ex. 3 at 2; CMS Ex. 9; CMS Ex. 18 at 3; CMS Ex. 23 ¶ 9(h), (i), (j); CMS Ex. 24 ¶ 10(h), (i), (j).

1. During the phone call with Petitioner’s Administrator, the surveyors asked the Administrator if he could see them through the security camera because they had their identification badges and were holding the letter from the state agency authorizing the survey.  CMS Ex. 23 ¶ 9(i); CMS Ex. 24 ¶ 10(i).
2. At 1:48 p.m., the surveyor texted the letter concerning the survey to Petitioner’s number.  CMS Ex. 2 at 3; see also CMS Ex. 10; CMS Ex. 23 ¶ 9(j); CMS Ex. 24 ¶ 10(j).
3. The letter that the surveyors attempted to provide stated that the surveyors were authorized by the state agency to perform the duties of a health facility surveyor.  It also outlined the survey process, which included an entrance conference where the surveyors would introduce themselves, explain the purpose of the survey, give an overview of the survey process, and request records and interviews.  The letter stated that the surveyed facility must furnish all information that the surveyors find necessary to determine compliance with regulatory requirements.  Finally, the letter stated that, “[i]f you have any questions or concerns at any time during the survey process regarding the identification or right of access of the bearer of this letter or the conduct of the survey process,” the facility should call various state agency management officials, whose names and contact information were provided.  CMS Ex. 4.

12. In October 2024, the state agency issued a notice indicating its intent to revoke Petitioner’s state HHA license based on Petitioner’s failure to allow surveyors to enter Petitioner’s offices on September 9, 2024, to conduct a survey.  Petitioner requested a hearing to appeal the potential revocation.  CMS Exs. 19-21.

VII.    Conclusion of Law

1. CMS was authorized to terminate Petitioner’s Medicare provider agreement because Petitioner’s staff refused state agency surveyors immediate access to Petitioner’s offices to conduct a survey based on a complaint involving a potential

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violation of a condition for participation in the Medicare program in contravention of 42 C.F.R. § 489.53(a)(18).

VIII.  Analysis

The Secretary’s regulations state CMS may terminate the agreement with any provider if CMS finds that the following is attributable to the provider:  “The provider . . . fails to grant immediate access upon a reasonable request to a state survey agency or other authorized entity for the purpose of determining, in accordance with § 488.3, whether the provider . . . meets the applicable requirements, conditions of participation, conditions for coverage, or conditions for certification.”  42 C.F.R. § 489.53(a)(18).

CMS argues that the state agency surveyors made a reasonable request to enter Petitioner’s offices to conduct a survey concerning a complaint and that Petitioner failed to permit immediate access to those offices because Petitioner’s staff disputed that the surveyors could make an unannounced survey.  CMS asserts that Petitioner’s staff did not question the identity of the surveyors, and the surveyors wore identification badges and tried to provide Petitioner’s staff with a letter authorizing the survey.  CMS concludes that it properly terminated Petitioner’s provider agreement for denying the surveyors immediate access to Petitioner’s offices.  CMS Br. at 8-10.

I agree with CMS.

Surveys of HHAs are done without providing warning.  42 U.S.C. § 1395bbb(c)(1); 42 C.F.R. § 488.725(a) (“All HHA surveys must be unannounced . . . .”).  One type of survey that a state agency may conduct is a “complaint survey,” which is “a survey that is conducted to investigate specific allegations of noncompliance.”  42 C.F.R. § 488.705.

In the present case, the surveyors were conducting a complaint survey based on an allegation that Petitioner’s Administrator strangled one of Petitioner’s patients.  Such an allegation constituted a potential violation of the HHA condition of participation involving patient rights, i.e., HHA patients have the right to be free from verbal, mental, sexual, and physical abuse.  42 C.F.R. § 484.50(c)(2).  Therefore, the surveyors had legal grounds to conduct a complaint survey at Petitioner’s offices.

Petitioner primarily makes one argument throughout its brief to show that it was not in violation of 42 C.F.R. § 489.53(a)(18):  the surveyors allegedly refused to provide identification proving they were from the state agency.  P. Br. at 6-12.  However, Petitioner made no effort to provide evidence to substantiate the alleged concern that Petitioner’s staff had that the surveyors were imposters posing as state agency surveyors.

Petitioner did not name which employee or employees spoke with the surveyors.  The Administrator stated in the brief that he did not speak with them.  P. Br. at 7.  Petitioner

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did not provide written direct testimony from the employee or employees who spoke with the surveyors.  Therefore, the surveyors’ testimony about those phone calls stands uncontradicted.

Petitioner could have submitted footage from Petitioner’s security camera.  Petitioner stated that its staff conducted an investigation of the September 9, 2024 incident involving the state agency surveyors’ efforts to gain access to 830 North Main Street, Wichita, Kansas, at about 10:28 a.m. on September 9, 2024.  Based on video footage, Petitioner stated that one of the surveyors repeatedly tried to open the locked door and looked into the offices through the glass door.  Petitioner also asserted that it is Petitioner’s policy to keep the doors locked for the security of its employees because “[i]n the past, we have faced frivolous attempts by intruders impersonating government officials to gain access to our office.”  P. Br. at 1.  Petitioner confirms that one of the surveyors called Petitioner’s phone number and stated that the surveyors were there to conduct a complaint survey, but the surveyor would not state the specific basis of the complaint.  P. Br. at 1-2.  Petitioner also stated that the surveyors merely waved at Petitioner’s security camera but did not show identification.  P. Br. at 1-2.  Petitioner also stated that the security camera showed one of the surveyors making a phone call in which she stated that Petitioner’s staff was denying the surveyors access to the building and that the surveyors then took pictures of the front of Petitioner’s building.  P. Br. at 2.

In addition, Petitioner stated that the surveyors returned in the afternoon and one of the surveyors called Petitioner’s number and identified herself as being from the state agency.  Petitioner’s staff who spoke on the phone with the surveyor asked for identification and, even though the surveyor took a picture of a letter authorizing the survey and texted it to Petitioner’s phone number, that phone number was to a phone that could not accept text messages.  P. Br. at 2.

Petitioner also disputes the surveyors’ testimony that Petitioner’s staff stated that the surveyors would not be allowed to enter the offices and that Petitioner’s staff would call the police.  P. Br. at 6.  Petitioner disputes a variety of other aspects of the phone calls between Petitioner’s staff and the surveyors.  P. Br. at 6-7.

Petitioner asserts or argues the following:

• Petitioner understood that it was subject to unannounced surveys but that surveyors needed to have proper identification with them.  Petitioner asserts that the surveyors never attempted to present their identification to Petitioner’s staff.  P. Br. at 9.
• Petitioner believes that the termination has been a rush to judgment based on miscommunication, assumptions, or misinformation.  Petitioner accuses the surveyors of refusing to show proper identification.  P. Br. at 9.

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• Petitioner states that its employee became cautious when surveyors stated that the complaint they were investigating was a private matter because government business is not private.  P. Br. at 9.
• Petitioner believes that a brief interaction with Petitioner’s staff should not be the basis for a termination and the surveyors instead should have sought to communicate with senior management.  P. Br. at 9.
• Petitioner argues that it has never before had a complaint about its employees refusing access to Petitioner’s offices.  P. Br. at 10.

Petitioner has no evidentiary basis to dispute the version of events as testified to and documented by the surveyors.  Petitioner’s brief is not evidence and, even if it were, it would be testimony from an individual (i.e., the Administrator) who states that he was not a witness to the pertinent events in questions.  Again, if, as Petitioner asserts, it has video and audio recordings of the surveyors’ actions and interactions with Petitioner’s staff, Petitioner should have submitted this.  Petitioner asserts that the footage shows the surveyors are not wearing their identification badges.

Although Petitioner did not submit the video allegedly showing the surveyors to be without identification badges, I note that the record does contain some evidence that the surveyors did wear identification badges.  In addition to the testimony of the surveyors themselves (CMS Ex. 23 ¶ 9(i); CMS Ex. 24 ¶ 10(i)), one can see the reflection of a surveyor who was taking pictures of Petitioner’s glass door.  On the surveyor’s chest is a white rectangle that would be the location of an identification badge hanging around his neck.  CMS Ex. 6.  Therefore, I have no reason to doubt the surveyors’ testimony that they wore identification badges and Petitioner has not proven otherwise.

On September 1, 2023, and May 29, 2024, Petitioner’s Administrator attested to the state agency that he understood the following:  “I understand that [the state agency] may conduct survey inspections at any time during normal business hours and that failure to allow access for conducting such surveys constitutes grounds for denial, suspension, or revocation of a license.”  P. Ex. 5 at 2-3; CMS Ex. 22 at 14.  Petitioner’s staff ought to have been trained and ready to receive state agency surveyors at any moment during normal business hours.  On September 9, 2024, Petitioner’s staff ought to have taken reasonable steps to verify that the surveyors were from the state agency and then allowed them to enter and conduct the complaint survey.  This did not happen, and Petitioner violated 42 C.F.R. § 489.53(a)(18).  See Bennybright Home Health Services, Inc., DAB CR5161 at 2-3 (2018) (upholding a termination under 42 C.F.R. § 489.53(a)(18) because the HHA was closed and locked when the surveyor arrived and the HHA’s administrator was unable to send a person to unlock it for the survey); Harmony Home Health Care, LLC, DAB CR5218 at 7 (2018) (rejecting an argument that the HHA did not violate

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42 C.F.R. § 489.53(a)(18) because surveyors allegedly failed to provide the HHA with proper documentation for the survey, and noting that the HHA impeded the survey by threatening to the call the police if surveyors looked at the HHA’s files).  Violation of 42 C.F.R. § 489.53(a)(18) results in the termination of Petitioner’s provider agreement.

IX.     Conclusion

I affirm CMS’s determination to terminate Petitioner’s Medicare provider agreement.