Watta Kemah Home Health Services, LLC, DAB CR6945 (2026)

DECISION

Here, we consider what it means for a home health agency to be “operational.” 

Petitioner, Watta Kemah Home Health Services, LLC, is an Ohio home health agency (HHA) that applied for enrollment in the Medicare program as a provider of services.  Finding that the HHA was not “operational” within the meaning of 42 C.F.R. § 424.530(a)(5), the Centers for Medicare & Medicaid Services (CMS) denied its enrollment application, and Petitioner appealed. 

I find that CMS properly denied Petitioner’s enrollment application because the provider was not “operational” within the meaning of 42 C.F.R. § 424.530(a)(5). 

Background

On October 16, 2023, Petitioner applied for enrollment in the Medicare program.  CMS Ex. 2.  In a letter dated April 16, 2025, the Medicare contractor, Palmetto GBA, advised Petitioner that its application was denied pursuant to 42 C.F.R. § 424.530(a)(5) because a site inspector was unable to conduct an on-site inspection despite two attempts (made on

Page 2

February 3 and 6, 2025).  CMS Ex. 1 at 13-16.  The inspector twice found that the business was closed; no staff were present; no one responded to knocks on the door; and no one answered the phone.  CMS Ex. 1 at 1-4, 8. 

Petitioner, represented by counsel, sought reconsideration.  CMS Ex. 1 at 18-19.  In a reconsidered determination, dated December 17, 2025, a CMS hearing officer agreed that the provider was not operational and affirmed the enrollment denial, citing 42 C.F.R. § 424.530(a)(5).  CMS Ex. 1 at 1-6. 

Petitioner now appeals that determination pursuant to 42 C.F.R. § 424.545. 

Hearing on the written record.  Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In my initial order, I instructed the parties to list their proposed witnesses (if any) and to submit those witnesses’ written direct testimony.  Acknowledgment and Pre-hearing Order at 4, 5 (¶¶ 4(iv), 8) (February 24, 2026).  I also directed each party to state, affirmatively, whether it intended to cross-examine any proposed witness.  Pre-hearing Order at 5 (¶ 9).  An in-person hearing is necessary “only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Pre-hearing Order at 6 (¶ 10). 

CMS listed no witnesses.  Contrary to my pre-hearing order, Petitioner provided no witness list.  Buried in its disorganized and unmarked submissions (also submitted contrary to the specific instructions in my pre-hearing order), are three documents that appear to be witness statements – two that are signed under oath and one that is not.  Although Petitioner did not submit its documents in any rational fashion, they can be found at E-file # 16 at 103, 107-110. 

CMS has not asked to cross-examine these individuals. 

Because there are no witnesses to be further examined or cross-examined, an in-person hearing would serve no purpose, and I may decide the case based on the written record, without considering whether the standards for summary judgment are satisfied.  See CRDP ¶ 19b.1 

Page 3

The parties’ submissions.  With its motion and brief (CMS Br.), CMS submitted two exhibits (CMS Exs. 1-2), although each contains multiple documents.  In the absence of any objections, I admit into evidence CMS Exs. 1-2. 

Petitioner responded with four submissions: 

• a 15-page document (pages are not numbered) titled “Petitioner’s Pre-hearing Exchange” (E-file # 13);
• a one-page document titled “Explanatory Note Regarding This Filing” (E-file # 14);
• 201 pages titled “Petitioner’s Exhibits – Documentary Evidence and Photographs” (E-file # 15); these are in no discernable order; the pages are not numbered; and
• 114 pages titled “Petitioner’s Previously Submitted Documentary Evidence” (E-file # 16); again, the pages are not numbered.  A few of these documents are included in CMS Ex. 1 at 17 et seq. 

CMS did not reply to Petitioner’s submissions. 

My pre-hearing order included specific instructions for filing documentary evidence.  I ordered that each proposed exhibit “must be . . . [d]esignated with a separate, unique, and whole identifying number” and that each proposed exhibit be numbered “so that each page can be located easily when the document is being discussed in a brief, during cross-examination, or in the decision.”  Pre-hearing Order at 4 (¶ 5c, d).  I warned that “I also may refuse to receive an exhibit or exhibits into evidence that are not filed in accordance with the requirements of this order.”  Id. ¶ 5. 

I decline to admit Petitioner’s documents because they were not filed in accordance with my explicit order.  See El Med., Inc., DAB No. 3117 at 15 (2023); Chit-Chat, Inc., DAB No. 2936 at 9 (2019) (“Compliance with ALJ orders is not optional”); HeartFlow, Inc., DAB No. 2781 at 16 (2017) (ruling that the ALJ permissibly disregarded a purported request to cross-examine a witness because, contrary to the ALJ’s order, the request was not filed separately and did not list the anticipated amount of time required for cross-examination).2 

Page 4

Discussion

1.  CMS had the authority to deny Petitioner’s enrollment application because the provider was not operational within the meaning of 42 C.F.R. § 424.530(a)(5).  On February 3 and 6, 2025, the HHA was not open for business.  Its doors were locked; staff were not present; there were no signs of customer activity.3 

Program requirements.  To receive Medicare payments for items furnished to a Medicare-eligible beneficiary, a provider, such as Petitioner, must be enrolled in the Medicare program.  Social Security Act § 1834(j)(1)(A); 42 C.F.R. § 424.505.  To enroll and maintain its enrollment, the provider must comply with Medicare program requirements, including the “enrollment requirements” set forth in 42 C.F.R. Part 424, subpart P (sections 424.500 through 424.575).  Among those requirements, the provider must be “operational.”  To be operational, it must have a qualified physical practice location, be open to the public, and be properly staffed, equipped, and stocked to furnish items and services.  42 C.F.R. §§ 424.502, 424.510(d)(6).  CMS may deny a provider’s enrollment if it determines, based on “on-site review or other reliable evidence, . . . that the provider is not operational.”  42 C.F.R. § 424.530(a)(5); Vamet Consulting & Med. Servs., DAB No. 2778 at 1-2 (2017); Mission Home Health, et al., DAB No. 2310 (2010). 

Petitioner’s enrollment application and the site investigations.  In an application filed on October 16, 2023, Petitioner applied for enrollment in the Medicare program.  CMS Ex. 2 at 3, 11, 73. 

On February 3, 2025, at 9:42 a.m., a site inspector went to Petitioner’s practice location to conduct the required on-site inspection.  The business was closed; the door was locked.  The inspector knocked but no one responded.  CMS Ex. 1 at 8; see CMS Ex. 1 at 9-10 (photographs of the premises, taken from 9:42 a.m. through 9:47 a.m. on February 3, 2025). 

On February 6, 2025, at 2:52 p.m., the site inspector returned to the practice location.  Again, the business was closed; no one answered the inspector’s knock; no staff were present; there were no signs of customer activity; no one answered the site inspector’s call to the phone number provided by Petitioner.  CMS Ex. 1 at 8; see CMS Ex. 1 at 10-11 (photographs of the premises, taken from 2:52 p.m. through 2:55 p.m. on February 6, 2025). 

Thus, notwithstanding the inspector’s efforts to inspect, the premises were locked and empty, with no staff present and no customer activity.  Because the HHA was not open to

Page 5

the public and was not properly staffed, it was not “operational,” and CMS has properly denied its enrollment application. 

Having determined that CMS had a legal basis for the denial of enrollment, I must uphold that determination.  Cardiac Imaging Assocs. A Med. Corp., DAB No. 3133 at 16 (2024); Thomas Falls, M.D., DAB No. 3056 at 8 (2022); Vamet Consulting & Med. Servs., DAB No. 2778 at 6 (2017). 

Petitioner concedes that its office was closed when the inspector arrived.  Petitioner’s Pre-hearing Exchange at 6 (E-file # 13).  It characterizes the failed inspections as “isolated observations” and points out that the HHA satisfied other section 424.530(a)(5) criteria:  it had a physical practice location and was equipped and stocked to furnish items and services.  It had even been surveyed by CHAP (Community Health Accreditation Partner) earlier in the year.  Id. 

Petitioner also claims that, at the time of the February 3 inspection, the HHA’s owner, Charlotte Braima, had completed an overnight nursing shift at the hospital where she is employed and had returned home to change clothes.  When a neighboring tenant called to report that someone was looking for the HHA, she went to the office, arriving at “approximately” 10:20 a.m.  She characterizes the empty office as a “temporary delay in office accessibility.  Id. at 10. 

On February 6, Owner Braima was traveling to Washington, D.C. to arrange “emergency international travel” to England and Africa so that she could be with family during an emergency.  Id.  She had arranged for a replacement, Claire Nzimiro, but, according to Owner Braima, Ms. Nzimiro had left for lunch when the inspector arrived at 2:52 p.m. 

To allow the reader easier access to Ms. Nzimiro’s declaration, I have admitted it as ALJ Ex. 1 (E-file # 17).  In that written declaration, Ms. Nzimiro contradicts Owner Braima’s version of events.  She maintains that, on February 3, she “briefly” left the office for lunch (apparently at 9:42 a.m.) and “inadvertently did not place the office attendance sticker on the door.”  ALJ Ex. 1 (Nzimiro Decl. ¶ 3). 

Ms. Nzimiro confirms that Owner Braima was traveling on February 6, and that Ms. Nzimiro should have been staffing the office.  However, she was not in the office when the inspector arrived because she had left “earlier than scheduled.”  ALJ Ex. 1 (Nzimiro Decl. ¶ 4). 

It is well-settled that to be “operational,” a provider (or supplier) must meet all of the criteria listed in section 424.530(a)(5), including that it be open to the public and properly staffed.  When inspectors find that offices are closed and empty during normal business hours, CMS may reasonably determine that the provider is not operational and may deny

Page 6

(or revoke) Medicare enrollment.  Vamet Consulting & Med. Servs., DAB No. 2778 at 6, 9 (2017); AR Testing Corp., DAB No. 2679 (2016); I & S Healthcare Servs., DAB No. 2519 at 1 (2013); Mission Home Health, et al., DAB No. 2310 (2010). 

Conclusion

Petitioner concedes that, when an inspector showed up at its practice location on February 3 and again on February 6, 2025, the HHA’s door was locked and no one was present.  It was therefore not “operational,” and CMS justifiably denied its Medicare enrollment application pursuant to section 424.530(a)(5). 

_____________________

Carolyn Cozad Hughes

Administrative Law Judge