Royal Homecare Agency, DAB CR6951 (2026)

DECISION

Petitioner, Royal Homecare Agency, is a home health agency (HHA) that participated in the Medicare program.  At the behest of the Centers for Medicare & Medicaid Services (CMS), the Ohio Department of Health (state agency) conducted multiple surveys and revisit surveys of Petitioner’s HHA from May to November 2024.  At each of these surveys, the state agency concluded that Petitioner was not in substantial compliance with various Medicare conditions of participation.  The state agency found that Petitioner was noncompliant with one condition, involving the organization and administration of services of the HHA, at each of the surveys.  Throughout the surveys, the state agency also found Petitioner to be deficient in three other conditions of participation involving comprehensive patient assessments, care planning and coordination of services, and home health aide services.  The state agency found Petitioner to be deficient in each of those conditions during three of the surveys; however, at some point in the survey process, Petitioner returned to compliance with each of them. 

After the first two surveys, CMS informed Petitioner that it would impose a suspension of payments for new Medicare patients if Petitioner did not return to substantial compliance by August 11, 2024, and that CMS would terminate Petitioner’s Medicare agreement if Petitioner did not return to substantial compliance by November 14, 2024. 

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Despite the imposition of the suspension of payment for new admissions, and later a per-day civil money penalty (CMP), Petitioner did not fully return to substantial compliance by November 14, 2024, and CMS terminated Petitioner’s Medicare agreement. 

Petitioner timely appealed the results of the revisit surveys conducted on September 12, 2024, and November 13, 2024, as well as the imposition of intermediate sanctions and termination.  Because neither party offered any witnesses to testify at an oral hearing, I informed the parties that I would issue a decision based on the parties’ written submissions.  For the reasons stated below, I affirm CMS’s determination that Petitioner was not in substantial compliance with the conditions of participation for HHAs.  I also uphold the imposition of intermediate sanctions as well as termination. 

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 for 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 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). 

A Medicare participating HHA must meet “the conditions of participation specified in [42 U.S.C. § 1395bbb(a)] and such other conditions of participation as the Secretary may find necessary in the interest of health and safety of individuals who are furnished services by such agency or organization.”  42 U.S.C. § 1395x(o)(6).  The Secretary promulgated regulations to implement the statutory conditions of participation and establish those “other conditions of participation . . . necessary in the interests of health

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and safety. . . .”  See 42 U.S.C. §§ 1395bbb(a), 1395x(o)(6); 42 C.F.R. pt. 484, subpts. B-C.1 

Each condition of participation is composed of standards.  See 42 C.F.R. pt. 484, subpts. B-C.  An HHA has a deficiency if it is noncompliant with any condition or standard; however, an HHA is in substantial compliance so long as it remains compliant with all conditions.  42 C.F.R. § 488.705 (definitions of “Deficiency,” “Noncompliance,” and “Substantial compliance.”).  A basic condition-level deficiency occurs when the deficiency is “of such character as to substantially limit the provider’s or supplier’s capacity to furnish adequate care or which adversely affect the health and safety of patients.”  42 C.F.R. §§ 488.24(b), 488.705 (definition of “Condition-level deficiency”).  However, CMS may determine that a condition-level deficiency is sufficiently dangerous that it creates an “immediate jeopardy” situation, which means that “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause serious injury, harm, impairment, or death to a patient(s).”  42 C.F.R. § 488.805. 

“It 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 an [HHA] and to promote the effective and efficient use of public moneys.”  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).  When a standard survey reveals that an HHA provided substandard care, the HHA is subject to an extended survey.  42 U.S.C. § 1395bbb(c)(2)(D).  A complaint survey is a survey conducted to investigate specific allegations of noncompliance with the conditions of participation.  42 C.F.R. § 488.705 (definition of “Complaint survey”). 

When the results of a survey show that an HHA is not in substantial compliance with Medicare statutory and regulatory requirements, the Secretary may terminate the HHA’s provider agreement and/or impose intermediate remedies.  42 U.S.C. §§ 1395cc(b)(2)(B), 1395bbb(e); 42 C.F.R. §§ 488.820, 489.53.  Specifically, CMS may impose sanctions for “noncompliance with one or more conditions of participation found through a survey and may be based on failure to correct previous deficiency findings as evidenced by repeat deficiencies.”  42 C.F.R. § 488.810(b).  The purpose of imposing sanctions is remedial because they are meant “to ensure prompt compliance with program requirements in order to protect health and safety of individuals under the care of an HHA.”  42 C.F.R. § 488.810(a). 

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CMS may terminate an HHA’s provider agreement if the HHA is not in compliance with the conditions of participation.  42 C.F.R. § 488.865(b)(1).  CMS may terminate even if the HHA has a single condition-level deficiency, and CMS’s decision to do so is discretionary.  United Med. Home Care, Inc., DAB No. 2194 at 13-14 (2008); Comprehensive Pro. Home Visits, DAB No. 1934 (2004).  If CMS determines that an HHA’s noncompliance immediately jeopardizes the health and safety of patients, then CMS either immediately terminates the HHA’s provider agreement or terminates the provider agreement within 23 days if the immediate jeopardy is not removed.  42 C.F.R. § 488.825(a)(1)-(2).  If an HHA is noncompliant with the conditions of participation but the noncompliance does not immediately jeopardize the health and safety of patients, then CMS must terminate the HHA’s provider agreement within 6 months of the last day of the survey if the HHA did not return to compliance.  42 C.F.R. § 488.830(d). 

If CMS does not immediately terminate an HHA’s provider agreement, CMS may impose intermediate sanctions.  42 C.F.R. § 1395bbb(e)(2), (f); 42 C.F.R. §§ 488.825(a)(3), 488.830(a)(2).  One intermediate remedy that CMS may impose is a CMP.  42 U.S.C. § 1395bbb(e)(3), (f)(2)(A)(i); 42 C.F.R. §§ 488.820(a), 488.845.  The amount of a CMP is based on whether there is immediate jeopardy or not, as well as other factors.  42 C.F.R. § 488.845(b).  Another intermediate sanction is a suspension of payment for all new patient admissions.  42 C.F.R. § 488.840; see also 42 U.S.C. § 1395bbb(f)(2)(A)(ii). 

An HHA may request a hearing before an administrative law judge (ALJ) to dispute the findings of noncompliance leading to the imposition of termination and/or an intermediate sanction.  42 U.S.C. §§ 1395cc(h)(1) (cross-referencing 42 U.S.C. § 405(b)), 1395bbb(f)(2) (cross-referencing 42 U.S.C. § 1320a-7a(c)(2)); 42 C.F.R. §§ 488.402(f)(1)(iv), 488.408(g)(1), 488.434(a)(2)(viii), 488.740 (cross-referencing 42 C.F.R. § 488.24(c)), 488.810(g), 488.845(c)(2)(i), 488.865(e), 489.53(e), 498.3(b)(8), (13), 498.5(b), 498.40; see 5 U.S.C. §§ 554, 556; see also Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 21 (2000) (holding that skilled nursing facilities are entitled to review of any determination of substantial noncompliance with Medicare participation requirements whether termination or “some other remedy is imposed.”). 

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. Ctr. v. U.S. Dep’t of Health & Hum. Servs., No. Civ.A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); see also Adora Healthcare Servs., 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). 

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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 Akron, Ohio, which participated in the Medicare program. 

In a July 26, 2024 notice of initial determination, CMS informed Petitioner that a May 14, 2024 state agency survey found Petitioner to be noncompliant with four conditions of participation (i.e., 42 C.F.R. §§ 484.55 (Comprehensive Assessment of Patient), 484.60 (Care Planning, Coordination of Services, and Quality of Care), 484.80 (Home Health Aide Service), and 484.105 (Organization and Administration of Services), and that a July 17, 2024 state agency revisit survey also found Petitioner to be noncompliant with those four conditions of participation.  CMS Ex. 1 at 1.  Based on these survey results, CMS stated that Petitioner was precluded from operating a home health aide training and/or competency evaluation program for two years from May 14, 2024, through May 14, 2026.  CMS Ex. 1 at 3.  Further, CMS informed Petitioner that it would suspend Medicare payments for all new admissions as of August 11, 2024, and terminate Petitioner’s Medicare provider agreement as of November 14, 2024, if Petitioner did not return to substantial compliance with Medicare requirements before that date.  CMS Ex. 1 at 2.  CMS advised Petitioner that it had 60 days to request a hearing if it wanted to dispute the findings of noncompliance and the imposition of enforcement remedies.  CMS Ex. 1 at 3-4. 

In a September 26, 2024 notice of initial determination, CMS informed Petitioner that a September 12, 2024 state agency revisit survey found that Petitioner remained noncompliant with three of the four conditions of participation that the earlier surveys identified (i.e., 42 C.F.R. §§ 484.55 (Comprehensive Assessment of Patient), 484.60 (Care Planning, Coordination of Services, and Quality of Care), and 484.105 (Organization and Administration of Services).  CMS Ex. 2 at 1.  The revisit survey also found some additional deficiencies.  CMS Ex. 2 at 1.  CMS advised Petitioner that the suspension of Medicare payments for all new admissions was effective August 11, 2024, and that termination would occur on November 14, 2024, unless Petitioner returned to substantial compliance with all Medicare requirements.  CMS Ex. 2 at 1-2.  Further, CMS stated that it imposed, effective September 12, 2024, a $2,479 per-day CMP.  CMS Ex. 2 at 1-2.  CMS advised Petitioner that it had 60 days to request a hearing if it wanted to dispute the findings of noncompliance and the imposition of enforcement remedies related to the September 12, 2024 survey.  CMS Ex. 2 at 4-5. 

On October 14, 2024, Petitioner requested a hearing to dispute the imposition of remedies in CMS’s September 26, 2024 notice of initial determination.  Electronic Filing System (E-File) Dkt. No. C-25-41, Doc. No. 1.  On October 16, 2024, the Civil Remedies

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Division (CRD) docketed that hearing request under C-25-41, acknowledged receipt of Petitioner’s hearing request, informed the parties that Administrative Law Judge Jacinta L. Alves was assigned to hear and decide the case, and issued Judge Alves’s Standing Prehearing Order and the CRD Procedures.  E-File Dkt. No. C-25-41, Doc. Nos. 2-2b. 

On October 16, 2024, Petitioner requested a hearing to dispute the imposition of remedies in CMS’s July 26, 2024 notice of initial determination.  E-File Dkt. No. C-25-51, Doc. No. 1.  Petitioner stated that it received the July 26, 2024 notice by email from CMS on October 15, 2024.  On October 25, 2024, CRD docketed this request under C-25-51, acknowledged receipt of Petitioner’s hearing request, informed the parties that Judge Alves was assigned to hear and decide the case, and issued Judge Alves’s Standing Prehearing Order and the CRD Procedures.  E-File Dkt. No. C-25-51, Doc. Nos. 2-2b. 

In an October 23, 2024 notice, CMS informed Petitioner that it must terminate Petitioner’s Medicare participation unless Petitioner can demonstrate, before November 14, 2024, that Petitioner is in compliance with all conditions of participation for HHAs.     CMS Ex. 3 at 1.  CMS advised Petitioner that it had 60 days to request a hearing if it wanted to dispute the termination.  CMS Ex. 3 at 3-4. 

On November 12, 2024, CMS moved for the dismissal of Petitioner’s hearing request docketed under C-24-51.  CMS alleged that Petitioner’s hearing request was untimely and submitted evidence that CMS emailed the July 26, 2024 notice of initial determination to Petitioner on July 26, 2024.  E-File Dkt. No. C-25-51, Doc. Nos. 4-5b. 

In a November 19, 2024 Disposition of Sanctions & Final Notice of Termination, CMS informed Petitioner that a November 13, 2024 state agency revisit survey found that Petitioner remained noncompliant with two of the original four conditions of participation identified in the May 14, 2024 survey and the July 17, 2024 revisit survey (i.e., 42 C.F.R. §§ 484.80 (Home Health Aide Service) and 484.105 (Organization and Administration of Services)).  CMS Ex. 5 at 1.  CMS “determined that the deficiencies limit the capacity of [Petitioner’s HHA] to render adequate care and ensure the health and safety of [Petitioner’s] patients.”  CMS Ex. 5 at 1.  As a result, CMS terminated Petitioner’s Medicare provider agreement effective November 14, 2024.  CMS Ex. 5 at 1.  CMS also informed Petitioner that, due to the termination, the $2,479 per-day CMP ended on November 12, 2024.  CMS Ex. 5 at 2.  As a result, the per-day CMP was in effect from September 12, 2024, through November 12, 2024.  CMS Ex. 5 at 2.  CMS advised Petitioner that it had 60 days to request a hearing if it wanted to dispute the results of the November 13, 2024 revisit survey.  CMS Ex. 5 at 4. 

On November 25, 2024, Petitioner requested a hearing to dispute the enforcement remedies imposed in the November 19, 2024 Disposition of Sanctions & Final Notice of Termination.  On December 2, 2024, CRD acknowledged receipt of Petitioner’s hearing request, docketed that hearing request under C-25-153, assigned the case to Judge Alves,

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and issued Judge Alves’s Standing Prehearing Order and the CRD Procedures.  E-File Dkt. No. C-25-153, Doc. Nos. 2-2b. 

On December 9, 2024, Petitioner requested consolidation of the cases docketed under C-25-41, C-25-51, and C-25-153, and for an extension of time to hire counsel.  CMS responded that it neither opposed consolidation of C-25-41 and C-25-153 nor a short extension of time for Petitioner to hire counsel; however, CMS opposed consolidation of C-25-51 because there was a pending motion to dismiss that case. 

On January 6, 2025, Judge Alves consolidated C-25-41 and C-25-153 under docket number C-25-153 and reset the prehearing submission deadlines. 

Also on January 6, 2025, Judge Alves dismissed Petitioner’s hearing request docketed under C-25-51 because Petitioner filed it late and did not show good cause for the late filing.  Judge Alves noted that Petitioner did not file any response to CMS’s motion to dismiss.  E-File Dkt. No. C-25-51, Doc. No. 6.  CRD records show that Petitioner did not request DAB review of the dismissal. 

On May 7, 2025, CMS filed a prehearing brief/motion for summary judgment (CMS Br.) along with 85 proposed exhibits (CMS Exs. 1-85).  Judge Alves granted three requests from Petitioner for extensions of time/stays in the prehearing schedule.  On August 29, 2025, Petitioner filed a document entitled Preliminary Objections to CMS Motion for Summary Judgment and Prehearing Brief (P. Br.) and seven unmarked exhibits (E-File Dkt. No. C-25-153, Doc. Nos. 26a-26g).  On September 12, 2025, CMS filed a reply brief (CMS Reply).  On November 14, 2025, Petitioner filed a document entitled Supplementary Objections to CMS Motion for Summary Judgment and Prehearing Brief (P. Supp. Br.) and an Exhibit List, which provided exhibit numbers for the previously submitted unmarked exhibits.2  On November 26, 2025, CMS submitted notice that it would not file an additional reply. 

On December 30, 2025, CRD informed the parties that this case was being reassigned to me for hearing and decision.  CRD transferred the case because Judge Alves would no longer be available to adjudicate it.  See 42 C.F.R. § 498.44(b); see also 5 U.S.C. § 554(d). 

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On May 27, 2026, Petitioner requested an accelerated hearing and decision in this case.  In a May 28, 2026 Order, I acknowledged Petitioner’s request and explained the following: 

I do not need to hold an in-person hearing in this case because the parties did not list any proposed witnesses in their prehearing exchanges.  The Standing Order, issued by the previously assigned administrative law judge (ALJ), states that each party’s prehearing exchange includes a list of proposed witnesses if there are any witnesses and that “[u]nless a hearing is required, the record will be closed and the case will be ready for a decision after all deadlines have passed.” Standing Order ¶¶ 4(e)(v), 12.  Therefore, I will issue a decision based on the written record in this case.  Civil Remedies Division Procedures § 19(d) (An ALJ may issue a decision on the written record when the parties do not identify proposed witnesses). 

Neither party objected to this Order.  Further, neither party objected to any of the proposed exhibits.  Therefore, I admit all of the proposed exhibits into the record and issue this decision based on the written record.3 

III.    Issues

1. Whether CMS had a legitimate basis to impose interim sanctions on Petitioner and to terminate Petitioner’s provider agreement.
2. Whether Petitioner returned to substantial compliance with Medicare requirements for HHAs on or before November 14, 2024.   

VI.    Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law appear in bold and italics below. 

1.  The state agency conducted a survey of Petitioner’s HHA on May 14, 2024, and found that Petitioner was not in substantial compliance with four Medicare

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conditions of participation (i.e., 42 C.F.R. §§ 484.55 (Comprehensive assessment of patients), 484.60 (Care planning, coordination of services, and quality of care), 484.80 (Home health aide services), and 484.105 (Organization and administrative services)).  On July 17, 2024, the state agency conducted a revisit survey and again found Petitioner noncompliant with the same four conditions of participation as previously found in the May 14, 2024 survey.  Based on these survey results, CMS issued an initial determination on July 26, 2024, imposing a suspension of payment for new admissions beginning August 11, 2024, and a termination of Petitioner’s Medicare provider agreement by November 14, 2024, unless Petitioner achieved substantial compliance before November 14, 2024.  Petitioner filed an untimely request for hearing to dispute the initial determination, which was dismissed.  Therefore, those survey findings and the initial determination are final and binding in this proceeding. 

The state agency conducted surveys of Petitioner’s HHA on May 25, 2023, June 29, 2023, August 24, 2023, and December 7, 2023, and found Petitioner noncompliant with some Medicare requirements for HHAs.  However, despite these deficiencies, Petitioner remained in overall compliance with the Medicare conditions of participation for HHAs.  CMS Exs. 6-9. 

On May 14, 2024, the state agency completed a partially extended survey in conjunction with a revisit survey based on the previously identified noncompliance.  CMS Ex. 10.  This time the state agency found that Petitioner was noncompliant with the following four Medicare conditions of participation for HHAs: 

• The state agency found that Petitioner had a condition-level deficiency related to the “Comprehensive assessment of patients” under 42 C.F.R. § 484.55.  The state agency summarized its finding as follows:  “[Petitioner] failed to ensure a review of all medications patients were currently using was completed (G536) and [Petitioner] failed to ensure comprehensive assessments were completed within the last five days of every 60 days. (G546).”  CMS Ex. 10 at 1-2.  Underlying this condition-level deficiency were deficiencies in the following two standards:  42 C.F.R. § 484.55(c)(5) (Petitioner failed to review all medications that Patients 4, 5, and 6 were taking); and 42 C.F.R. § 484.55(d)(1)(i)-(iii) (Petitioner failed to complete comprehensive assessments for Patients 4, 6, and 8 within the last five days of every 60-day period).  CMS Ex. 10 at 2-3.
• The state agency found that Petitioner had a condition-level deficiency related to the “Care planning, coordination, quality of care” under 42 C.F.R. § 484.60.  The state agency summarized its finding as follows:  “[Petitioner] failed to ensure services were administered only as ordered by a physician or allowed practitioner.  (G580)  [Petitioner] failed to ensure the plan of care was developed and signed by the physician no less than once every 60 days, beginning with the start of care

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date.  (G588)  [Petitioner] failed to ensure physicians were notified of patient discharges.  (G598).”  CMS Ex. 10 at 4. Underlying this condition-level deficiency were deficiencies in the following four standards:  42 C.F.R. § 484.60(a)(1) (Petitioner failed to provide home health aide services to Patients 1 and 2 as ordered by a physician); 42 C.F.R. § 484.60(b)(1) (Petitioner failed to have signed physician orders and/or care plans for Patients 3, 5, and 8); 42 C.F.R. § 484.60(c)(1) (Petitioner failed to have physician/practitioner signatures on care plans for Patients 1 through 8); and 42 C.F.R. § 484.60(c)(3)(ii) (Petitioner failed to notify the physicians for Patients 1 through 3 that Petitioner had discharged those patients).  CMS Ex. 10 at 4-12.

• The state agency found that Petitioner had a condition-level deficiency related to the “Home health aide services” under 42 C.F.R. § 484.80.  The state agency summarized its finding as follows:  “[Petitioner] failed to ensure . . . the home health aides . . . provided services that are included in the plan of care. (G800) [Petitioner] failed to ensure a registered nurse (RN) made an onsite visit every 60 days to assess the quality of care and services the [home health aides]. (G814).”  CMS Ex. 10 at 12.  Underlying this condition-level deficiency were deficiencies in the following two standards:  42 C.F.R. § 484.80(g)(1) (Petitioner failed to provide home health aides with written instructions from an RN for Patients 4 through 6); 42 C.F.R. § 484.80(g)(2) (Petitioner failed to ensure that an RN made onsite visits to assess the quality of home health aide care provided to Patients 4 through 6).  CMS Ex. 10 at 12-15.
• The state agency found that Petitioner had a condition-level deficiency related to the “Organization and administration services” under 42 C.F.R. § 484.105.  The state agency summarized its finding as follows:  “[Petitioner] failed to provide evidence of a Governing Body for the agency. (G942) [Petitioner] failed to ensure a staff member was responsible for the day to day operations of the agency. (G948) [Petitioner] failed to notify the State survey agency of a branch location. (G972).”  CMS Ex. 10 at 15.  Underlying this condition-level deficiency were deficiencies in the following three standards:  42 C.F.R. § 484.105(a) (Petitioner failed to have an organizational chart and could not prove it had a “governing body”); 42 C.F.R. § 484.105(b)(1)(ii) (Petitioner failed to have a staff member who was responsible for the day-to-day operations of the HHA after the Administrator became ill and was absent for a lengthy period of time); and 42 C.F.R. § 484.105(d)(1) (Petitioner failed have disclose one of its branch locations).  CMS Ex. 10 at 15-18. 

On July 17, 2024, the state agency completed another revisit survey to determine whether Petitioner was in substantial compliance with the conditions of participation.  CMS Ex. 11.  The state agency found that Petitioner was noncompliant with the same four

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conditions of participation as well as most of the same underlying standards as had been found during the May 14, 2024 survey.  CMS Ex. 11. 

In a July 26, 2024 notice of initial determination, CMS adopted the findings from the May 14, 2024 and July 17, 2024 surveys and imposed a suspension of payment for all new Medicare admissions, effective August 11, 2024.  CMS Ex. 1 at 1-2.  CMS advised Petitioner that it had 60 days to request a hearing if it wanted to dispute the findings of noncompliance and the imposition of enforcement remedies.  CMS Ex. 1 at 3-4.  As detailed earlier, Petitioner filed an untimely hearing request, and Judge Alves dismissed that hearing request.  As a result, the July 26, 2024 initial determination and the findings from the May 14, 2024 and July 17, 2024 surveys are binding in this case.  42 C.F.R. § 498.20(b). 

2. The state agency conducted a revisit survey of Petitioner’s HHA on September 12, 2024, and found that Petitioner was not in substantial compliance with three of the four Medicare conditions of participation that the previous surveys had identified (i.e., 42 C.F.R. §§ 484.55 (Comprehensive assessment of patients), 484.60 (Care planning, coordination of services, and quality of care), and 484.105 (Organization and administrative services)).  The evidentiary record supports the state agency’s findings, and Petitioner did not submit evidence showing that it was in substantial compliance with the identified conditions of participation.  Therefore, I uphold the condition-level deficiencies from the September 12, 2024 survey. 

The state agency conducted a revisit survey of Petitioner’s HHA on September 12, 2024, and found Petitioner to be noncompliant with three of the conditions of participation with which Petitioner was noncompliant in the May and July surveys.  CMS Ex. 13.  For the reasons stated below, I uphold the findings of noncompliance. 

1. Condition of Participation 42 C.F.R. § 484.55 (Comprehensive assessment of patients). 

The state agency found Petitioner noncompliant with the condition of participation at 42 C.F.R. § 484.55 (Comprehensive Assessment of Patients) based on the following: 

[Petitioner] failed to ensure all patients had a medication profile, and failed to have the date the medications were prescribed. (G536) [Petitioner] failed to ensure comprehensive assessments were completed within the last five days of every 60 days. (G546) The cumulative effect of these systemic practices resulted in [Petitioner’s] inability to ensure the health and safety of the patients and staff. 

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CMS Ex. 13 at 1. 

The state agency found that Petitioner was noncompliant with the standard at 42 C.F.R. § 484.55(c)(5) because “[Petitioner] failed to ensure a review of all medications patients were currently using were updated with the recertification assessment, failed to ensure all patients had a medication profile, and failed to have the date the medications were prescribed for three (Patient #3, #4 and #5) out of three patient records reviewed.”  CMS Ex. 13 at 2.  Specifically, the state agency alleged: 

• Patient 3 started care on January 12, 2024, but the medication profile in Patient 3’s medical records was blank;
• Patient 4’s home health services were recertified on August 20, 2024, but Patient 4’s medical record was last updated on July 2, 2024, and did not list the dates that the medications were prescribed; and
• Patient 5’s medical record (which was missing Patient 5’s name) had been last updated August 25, 2024, and was not updated on recertification prior to the physician’s plan of care dated September 5, 2024, and did not provide the date the medications were prescribed. 

CMS Ex. 13 at 2. 

The state agency also found that Petitioner was noncompliant with the standard at 42 C.F.R. § 484.55(d)(1)(i)-(iii) because “[Petitioner] failed to ensure that comprehensive assessments were completed within the last five days of every 60 days for two (Patients #3 and #5) out of three medical records reviewed.”  CMS Ex. 13 at 3.  Specifically, the state agency alleged: 

• “Patient #3 was admitted to the agency 01/12/24.  Patient #3’s medical record did not contain a comprehensive reassessment prior to the start of the next certification period starting 07/11/24.”; and
• “Patient #5 was admitted to the agency on 01/09/24.  Patient #5’s medical record did not contain a comprehensive reassessment prior to the start of the next certification period starting 09/05/24.” 

CMS Ex. 13 at 3. 

HHAs must complete a comprehensive assessment no later than five days after the start of care.  42 C.F.R. § 484.55(b)(1).  Except in limited circumstances, an RN performs the comprehensive assessment.  42 C.F.R. § 484.55(b)(2)-(3).  A comprehensive assessment must be updated no less frequently than the last five days of each 60-day period

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beginning with the start of care unless the patient elects to transfer to another HHA, the patient has a significant change in condition, or the patient is discharged but returns to the same HHA within the 60-day period.  42 C.F.R. § 484.55(d)(1).  A comprehensive assessment must include “[a] review of all medications the patient is currently using in order to identify any potential adverse effects and drug reactions, including ineffective drug therapy, significant side effects, significant drug interactions, duplicate drug therapy, and noncompliance with drug therapy.”  42 C.F.R. § 484.55(c)(5). 

A review of Patient 3’s medical record shows that home health services started on January 12, 2024.  CMS Ex. 65 at 3.  The medical record includes a blank “Medication Profile” sheet and does not include an assessment for the July 11, 2024 through September 8, 2024 certification period.  CMS Ex. 65 at 1.  Most of the other documents do not include information about Patient 3’s medications. CMS Ex. 65 at 2, 18-42.  Although the Home Health Certification and Plan of Care document provides medication lists (CMS Ex. 65 at 4, 9, 11, 13), this is a distinct document from the assessment because it is intended to ensure that patients need home health services, and is performed by a physician or other practitioner rather than an RN.  42 C.F.R. § 424.22.  Further, Petitioner did not submit any documents showing that it properly conducted an assessment or included medications as part of its assessment for Patient 3.  Therefore, I conclude that Petitioner was not in substantial compliance with the standards at 42 C.F.R. § 484.55(c)(5) and (d)(1) based on the facts involving Patient 3. 

A review of Patient 4’s medical record shows that home health services started on March 4, 2024, and that, by the time of the September 12, 2024 survey, the most recent recertification 60-day period was from July 2, 2024 to August 30, 2024.  CMS Ex. 66 at 1-3.  There is a Medication Profile from March 4, 2024, that lists Patient 4’s medications, and that list appears to have been unchanged based on additional dates (March 6, 2024, and July 2, 2024) noted on the list.  CMS Ex. 66 at 7.  However, a date from the end of August 2024 does not appear on the list to document that the list was reviewed again by the end of the 60-day certification period on August 30, 2024.  Petitioner did not submit any documents showing that it timely reviewed the medication list for Petitioner 4 at the end of August 2024.  Therefore, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 484.55(c)(5) based on the facts involving Patient 4. 

A review of Patient 5’s medical records shows that home health services started on January 9, 2024, and that during the September 12, 2024 survey, Patient 5’s certification period for home health services was from September 5, 2024, through November 3, 2024.  CMS Ex. 67 at 1-2.  The Medication Profile did not have Patient 5’s name on it, and it was last updated on August 25, 2024, which was more than five days before the end of the certification period.  CMS Ex. 67 at 3.  There is no evidence that an assessment was completed for the September 5, 2024 through November 3, 2024 certification period.  Petitioner did not submit any documents showing that it timely reviewed the medication

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list for Petitioner 4.  Therefore, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 484.55(c)(5) and (d)(1) based on facts involving Patient 5. 

Because Petitioner was deficient under two standards involving three patients, I conclude that these deficiencies substantially limit Petitioner’s capacity to furnish adequate care and adversely affect the health and safety of patients.  See 42 C.F.R. §§ 488.24(b), 488.705 (definition of “Condition-level deficiency”).  Therefore, I conclude that Petitioner was noncompliant with the condition of participation at 42 C.F.R. § 484.55. 

2. Condition of Participation 42 C.F.R. § 484.60 (Care planning, coordination, quality of care). 

The state agency found Petitioner noncompliant with the condition of participation at 42 C.F.R. § 484.60 (Care planning, coordination, quality if care) based on the following: 

[Petitioner] failed to ensure services were administered only as ordered by a physician or allowed practitioner. (G580) [Petitioner] failed to ensure the plan of care was developed and signed by the physician no less than once every 60 days, beginning with the start of care date. (588) [Petitioner] failed to ensure physicians were notified of a patient discharge. (G598) The cumulative effect of these systemic practices resulted in the agency’s inability to ensure the health and safety of the patients and staff. 

CMS Ex. 13 at 4. 

The state agency found that Petitioner was noncompliant with the standard at 42 C.F.R. § 484.60(a)(1) because “[Petitioner] failed to ensure patients received home health aide services as written in the plan of care. This affected two (Patients #4 and #5) out of three medical records reviewed.”  CMS Ex. 13 at 4-5.  Specifically, the state agency alleged: 

• According to a July 2, 2024 plan of care authorized by Patient 4’s physician, Patient 4 was to receive 35 hours of home health aide service each week, but the home health aide time sheets for the week of July 28, 2024, showed that home health aides only provided 32 hours of services that week; and
• According to a July 7, 2024 plan of care authorized by Patient 5’s physician, Patient 5 was to receive home health services four days each week, but Petitioner did not provide any home health services from July 7, 2024, through August 17, 2024, and provided five days of home health services for the week of August 18, 2024, through August 25, 2024. 

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CMS Ex. 13 at 5. 

The state agency also found that Petitioner was noncompliant with the standard at 42 C.F.R. § 484.60(b)(1) because “[Petitioner] failed to ensure services were administered only as ordered by a physician or allowed practitioner for two (Patients #3 and #5) out of three medical records reviewed.”  CMS Ex. 13 at 5-6.  Specifically, the state agency alleged: 

• Patient 3 did not have a signed physician order for home health aide services, but Petitioner provided nine hours of home health aide services to Patient 3 for three days per week from May 13, 2024, to August 23, 2024; and
• Patient 5’s physician ordered home health services four days per week, but Petitioner provided services five days per week for the weeks of August 18, 2024 and August 25, 2024. 

CMS Ex. 13 at 6. 

In addition, the state agency also found that Petitioner was noncompliant with the standard at 42 C.F.R. § 484.60(c)(1) because “[Petitioner] failed to ensure the plan of care was developed and signed by the physician no less than once every 60 days, beginning with the start of care date for two (Patients #3 and #4) out of three medical

records reviewed.”  CMS Ex. 13 at 6-7.  Specifically, the state agency alleged: 

• Patient 3 did not have signed plans of care for the certification periods of May 11, 2024 to July 10, 2024, July 11, 2024 to September 8, 2024, and September 9, 2024 to November 7, 2024; and
• Patient 4 did not have signed plans of care for the certification periods of May 3, 2024 to July 1, 2024, July 2, 2024 to August 30, 2024, and August 31, 2024 to October 29, 2024. 

CMS Ex. 13 at 7. 

Finally, the state agency found that Petitioner was noncompliant with the standard at 42 C.F.R. § 484.60(c)(3)(ii) because “[Petitioner] failed to ensure physicians were notified of a patient discharge for one out (Patient #2) of two medical records reviewed of patients who were discharged.”  CMS Ex. 13 at 7-8.  Specifically, the state agency alleged:  “Review of the medical record for Patient #2 revealed the agency’s last aide visit was on 05/29/24.  Review of the undated and unsigned discharge summary revealed Patient #2 was discharged due to the agency could not find a Home Health Aide . . . of the preferred race/ethnicity the patient was looking for.  Dates covered were listed as

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through 08/21/24.  There was no documentation the physician had been notified of the discharge.”  CMS Ex. 13 at 8. 

Each patient of an HHA must receive an individualized written plan of care that specifies the care and services necessary to meet the patient-specific needs as identified in the comprehensive assessment.  42 C.F.R. § 484.60.  “Each patient must receive the home health services that are written in an individualized plan of care . . . established, periodically reviewed, and signed by a doctor of medicine, osteopathy, or podiatry or allowed practitioner . . . .”  42 C.F.R. § 484.60(a)(1).  In addition, “[home health] services . . . are administered only as ordered by a physician or allowed practitioner.”  42 C.F.R. § 484.60(b)(1).  Further, “[t]he individualized plan of care must be reviewed and revised by the physician or allowed practitioner who is responsible for the home health plan of care and the HHA as frequently as the patient’s condition or needs require, but no less frequently than once every 60 days beginning with the start of care date.”  42 C.F.R. § 484.60(c)(1).  Finally, “[a]ny revisions related to the plans for patient’s discharge must be communicated to . . . all physicians or allowed practitioners issuing orders for the HHA plan of care, and the patient’s primary care practitioner or other health care professional who will be responsible for providing care and services to the patient after discharge from the HHA (if any).”  42 C.F.R. § 484.60(c)(3)(ii). 

As mentioned above, a review of Patient 3’s medical record shows that home health services started on January 12, 2024.  CMS Ex. 65 at 3.  The record in this case contains three documents entitled “Home Health Certification and Plan of Care,” which indicate that Patient 3 had the following home health certification periods:  May 11, 2024 through July 10, 2024; July 11, 2024 through September 8, 2024; September 9, 2024 through November 7, 2024.  CMS Ex. 65 at 3, 8, 12.  None of these documents are signed by an attending physician.  CMS Ex. 65 at 3, 8, 12.  Further, the record shows that between May 13, 2024 and August 23, 2024, Petitioner provided nine hours per week of home health services to Patient 3 even though there is no signed physician order for those services.4  CMS Ex. 65 at 18-41.  Petitioner did not submit any documents showing that a physician had ordered the home health services.  Therefore, I conclude that Petitioner was not in substantial compliance with the standards at 42 C.F.R. § 484.60(b)(1) and (c)(1) concerning Patient 3. 

As mentioned above, a review of Patient 4’s medical record shows that home health services started on March 4, 2024.  CMS Ex. 66 at 1.  Patient 4’s Home Health Certification and Plan of Care for the certification period of July 2, 2022, through August 30, 2024, does not have the signature of an attending physician.  CMS Ex. 66 at 1-3.  Petitioner did not submit any documents showing that a physician ordered the home health services.  Therefore, I conclude that Petitioner was not in substantial compliance

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with the standards at 42 C.F.R. § 484.60(c)(1) concerning Patient 4 because a physician did not timely sign the Certification and Plan of Care.  I limit this conclusion to the single certification period of July 2, 2024 through August 30, 2024, and do not include the two other certification periods identified by the state agency because there are no documents in the record to support those allegations by the state agency.  In addition, I do not conclude that Patient 4’s records support a deficiency with the standard at 42 C.F.R. § 484.60(a)(1), because that standard requires Petitioner to comply with physician orders; however, there is no signed physician order in the record related to Patient 4 that required Petitioner to provide 35 hours of home health services per week. 

As mentioned above, Patient 5’s medical records show that home health services started on January 9, 2024.  CMS Ex. 67 at 1.  Patient 5’s physician ordered home health aide services four days per week, seven hours per day, for nine weeks during both the July 7, 2024 through September 4, 2024 certification period and the September 5, 2024 through November 3, 2024 certification period.  CMS Ex. 67 at 1, 14.  For the week of August 19, 2024 through August 23, 2024, Petitioner provided five days of home health aide services to Patient 5 at four hours per day.  CMS Ex. 67 at 12, 17.  This is both more days and fewer hours than the physician’s order required.  Petitioner appears to have done the same thing for the week of August 26, 2024 through August 30, 2024.  CMS Ex. 67 at 13, 16.  There is also a lack of documentation showing that Petitioner provided home health aide services from July 7, 2024 through August 17, 2024.  Petitioner did not submit any documents showing that it provided the services during that time-period. Therefore, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 484.55(a)(1) and (b)(1) concerning Patient 5. 

The state agency also found that Petitioner was noncompliant with the standard at 42 C.F.R. § 484.60(c)(3)(ii) because it did not inform Patient 2’s physician of Patient 2’s discharge from home health services.  However, the discharge document shows the name, address, and fax number for Patient 2’s physician.  CMS Ex. 64 at 6-7.  I have no reason to conclude that Petitioner did not provide a copy of the discharge document to Patient 2’s physician.  Therefore, I do not uphold a deficiency for this standard. 

Because I conclude that Petitioner was deficient under three standards involving three patients, I conclude that these deficiencies substantially limit Petitioner’s capacity to furnish adequate care and adversely affect the health and safety of patients.  See 42 C.F.R. §§ 488.24(b), 488.705 (definition of “Condition-level deficiency”).  Therefore, I conclude that Petitioner was noncompliant with the condition of participation at 42 C.F.R. § 484.60. 

3. Condition of Participation 42 C.F.R. § 484.105 (Organization and administration of services). 

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The state agency found Petitioner noncompliant with the condition of participation at 42 C.F.R. § 484.105 (Organization and administration of services) based on the following: 

[Petitioner] failed to ensure a staff member was responsible for the day-to-day operations of the agency. (G948).  The cumulative effect of these systemic practices resulted in the agency’s inability to ensure the health and safety of the patients and staff. 

CMS Ex. 13 at 9-10. 

The state agency found that Petitioner was noncompliant with the standard at 42 C.F.R. § 484.105(b)(1)(ii) because “[Petitioner] failed to ensure a staff member was responsible for the day-to-day operations of the agency.”  CMS Ex. 13 at 10.  Specifically, the state agency alleged that Petitioner failed to provide a plan of correction for this deficiency as found during the July 16, 2024 survey.  CMS Ex. 13 at 10.  In addition, the state agency asserted that Petitioner’s Director of Nursing (DON)/Acting Administrator could not identify who was the acting Administrator in the absence of the DON.  CMS Ex. 13 at 10. 

Each “HHA must set forth, in writing, its organizational structure, including lines of authority, and services furnished.”  42 C.F.R. § 484.105.  One of the positions with authority at an HHA is the Administrator.  The HHA must have an Administrator who is appointed by and reports to the HHA’s governing body.  42 C.F.R. § 484.105(b)(1)(i).  The Administrator is responsible for all day-to-day operations of the HHA.  42 C.F.R. § 484.105(b)(1)(ii).  The HHA must have a qualified predesignated person who is authorized in writing by the Administrator and the governing body to assume the responsibilities and obligations of the Administrator when the Administrator is not available.  42 C.F.R. § 484.105(b)(2).  Finally, the Administrator or a pre-designated person must be available during all operating hours.  42 C.F.R. § 484.105(b)(3). 

As early as the May 14, 2024 survey, the state agency found a condition-level deficiency concerning 42 C.F.R. § 484.105 (Organization and administrative services).  CMS Ex. 10 at 15-18.  It is useful to review the earlier deficiencies because the September 12, 2024 survey findings essentially show a failure to fully return to compliance on revisit. 

Based on the May 14, 2024 survey, the state agency found that:  Petitioner did not provide evidence of its governing body or an organizational chart; Petitioner did not have a staff member responsible for the day-to-day operations of the HHA; and Petitioner failed to report to the state agency all of its locations.  CMS Ex. 10 at 15-18. 

Petitioner’s plan of correction related to the May 14, 2024 survey indicated that the governing body documentation was not available during the survey but that Petitioner

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was providing it with the plan of correction.  CMS Ex. 42 at 6.  Further, the plan of correction stated that Petitioner’s Administrator/Owner was not available to perform the Administrator role and that Petitioner’s DON was also serving as Acting Administrator; however, the DON/Acting Administrator “is recovering” and “it is unclear at this time when the DON will be at 100% capacity as of right now.”  CMS Ex. 42 at 6.  The governing body documents that Petitioner provided with the plan of correction indicated on a page entitled “Members of the Governing Body” that the Administrator/DON/ Clinical Manager was Chloe Townsend, RN.  CMS Ex. 49 at 3.  However, on the Organizational Chart, the Administrator is listed as Charles I. Nnabuife and the DON as Chloe Townsend, RN.  CMS Ex. 49 at 11. 

The July 17, 2024 survey resulted in another finding of a condition-level deficiency related to organization and administrative services because Petitioner still failed to ensure that a staff member was responsible for the day-to-day operations of the HHA.  CMS Ex. 11 at 12-13. 

Petitioner did not correct this situation and, as a result, the September 12, 2024 survey again found that Petitioner did not have a staff member who was responsible for the day-to-day operations of the HHA. 

There is some dispute as to whether Petitioner submitted a plan of correction in response to the September 12, 2024 survey results (CMS Ex. 13 at 10; P. Ex. 1); however, there is no doubt that Petitioner revised the plan of correction on October 30, 2024.  As a result, I will discuss the alleged corrective action that Petitioner took in the next section on the November 13, 2024 revisit survey.  The plan of correction does not and cannot show that Petitioner was in substantial compliance with 42 C.F.R. § 484.105 during the September 12, 2024 survey, but is relevant as to whether Petitioner achieved substantial compliance with this condition of participation by or before the November 13, 2024 revisit survey. 

Concerning the September 12, 2024 survey, I uphold the deficiency finding for both the standard at 42 C.F.R. § 484.105(b)(1)(ii) and the condition at 42 C.F.R. § 484.105.  Although the regulations permit an official like Petitioner’s DON to take over the responsibilities and obligations for an administrator who is “not available,” this provision does not mean that the DON may perform both the roles of Administrator and DON indefinitely.  See 42 C.F.R. § 484.105(b)(2),  But it does mean that the DON serving as acting Administrator must be “available during all operating hours.”  42 C.F.R. § 484.105(b)(3).  There is limited evidence in the record concerning the day-to-day administration of Petitioner’s operations; however, Petitioner provided none that indicates that the DON had fully recovered her health by the September 12, 2024 survey and was devoting herself full time to Petitioner’s HHA.  The surveyors noted that the Acting Administrator/DON was “not here” at 8:00 a.m. on September 11, 2024, but did “arrive” at 10:41 a.m.  CMS Ex. 61.  On September 12, 2024, the surveyors noted that the DON “showed up at 11:11 a.m.”  CMS Ex. 61.  Further, during the survey, “the DON

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was asked who would be the acting administrator in her place and couldn’t reply.”  CMS Ex. 60 at 2.  During the survey, the DON was unable to answer questions posed to her and twice had to reply that she needed to ask the staff.  CMS Ex. 60 at 1-2. 

Petitioner provided no evidence that the governing body was actively seeking to fill the Administrator position or had done so to ensure that someone was discharging the obligation of the Administrator to supervise the day-to-day operations.  There is also no evidence that the governing body hired another RN to assist the DON to allow the DON to focus on the duties of the Administrator.  Further, Petitioner’s DON was not able to be available during all operating hours, as evidenced by her later appearances at Petitioner’s offices during the survey, and was not able to handle the day-to-day operations as evidenced by the DON’s inability to answer questions without assistance from staff. 

Because I conclude that Petitioner continued to be deficient in the standard that requires an HHA to have an administrator who is responsible for the day-to-day operations of the HHA, I conclude that these deficiencies substantially limit Petitioner’s capacity to furnish adequate care and adversely affect the health and safety of patients.  See 42 C.F.R. §§ 488.24(b), 488.705 (definition of “Condition-level deficiency”).  Therefore, I conclude that Petitioner continued to be noncompliant with the condition of participation at 42 C.F.R. § 484.105. 

3. The state agency conducted a revisit survey of Petitioner’s HHA on November 13, 2024, and found that Petitioner was not in substantial compliance with two of the four Medicare conditions of participation that previous surveys had identified (i.e., 42 C.F.R. §§ 484.80 (Home health aide services) and 484.105 (Organization and administrative services)).  The evidentiary record supports the state agency’s findings, and Petitioner did not submit evidence showing that it was in substantial compliance with the identified conditions of participation.  Therefore, I uphold the condition-level deficiencies from the November 13, 2024 survey. 

The state agency conducted a revisit survey of Petitioner’s HHA on November 13, 2024, and found Petitioner to be noncompliant with two of the conditions of participation with which Petitioner was previously found to be noncompliant.  CMS Ex. 15.  I uphold the findings of noncompliance. 

1. Condition of Participation 42 C.F.R. § 484.80 (Home health aide services). 

The state agency found Petitioner noncompliant with the condition of participation at 42 C.F.R. § 484.80 (Home Health Aide Services) based on noncompliance with two standards under that condition. 

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The state agency found Petitioner noncompliant with the standard at 42 C.F.R. § 484.80(c)(1)-(3) because “[Petitioner] failed to ensure the home health aides . . . had a competency evaluation on hire and annually.  This affected three staff (Staff C, Staff B, and Staff E) reviewed and had the potential to affect the care provided to patients.”  CMS Ex. 15 at 2.  Specifically, the state agency alleged: 

• Petitioner hired Staff C on March 11, 2024, but the Initial Competency Checklist was blank, the Home Health Aide Competency Exam was not dated, graded or signed by an RN, and there was no evidence that Staff C’s performance was observed on a patient or pseudo-patient;
• Petitioner hired Staff B on May 6, 2020, the annual competency check list was last done on May 10, 2022, the Home Health Aide Competency Exam was not graded or signed by an RN, and there was no evidence that Staff C’s performance was observed on a patient or pseudo-patient; and
• Petitioner hired Staff E on December 13, 2023, the Initial Competency Checklist was blank, the Home Health Aide Competency Exam was not dated, graded, or signed by an RN, and there was no evidence that Staff E’s performance was observed on a patient or pseudo-patient. 

CMS Ex. 15 at 2. 

The state agency also found Petitioner noncompliant with the standard at 42 C.F.R. § 484.80(g)(1) because “[Petitioner] failed to ensure the registered nurse (RN) wrote the aide plan of care according to the physician’s orders.  This affected two (Patient #3 and #6) out of six records reviewed.”  CMS Ex. 15 at 3.  Specifically, the state agency alleged: 

• On October 20, 2024, a physician’s plan of care required that Patient 6 receive hands-on personal care (i.e., patient hygiene and personal care needs) from a home health aide for two days per week at two hours per day, but a review of Patient 6’s records revealed that the RN last reviewed the aide’s plan of care for Patient 6 on August 29, 2024, and the aide time sheets for Patient 6 from October 1, 2024 to October 10, 2024, did not indicate that any personal care had been done under the physician’s order; and
• On October 20, 2024, a physician plan of care required Patient 3 to receive hands on personal care four hours per day, but a review of Patient 3’s records revealed that the RN last reviewed the aide’s plan of care for Patient 3 on October 18, 2024, and there was no documentation that any personal care was done by an aide. 

CMS Ex. 15 at 3-4. 

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Home health services include, “to the extent permitted in the regulations, part-time or intermittent services of a home health aide who has successfully completed a training program approved by the Secretary.”  42 U.S.C. § 1395x(m)(4).  An HHA may only use a home health aide who 1) has completed a training and competency evaluation program/competency evaluation program that meets the minimum standards established by the Secretary and 2) is competent to provide home health services.  42 U.S.C. § 1395bbb(a)(3)(A).  “The [HHA] must not permit an individual, other than in a training and competency evaluation program that meets the minimum standards established by the Secretary . . . to provide items or services of a type for which the individual has not demonstrated competency.”  42 U.S.C. § 1395bbb(a)(3)(C). 

Consistent with these statutory requirements, the Secretary’s regulations state that “[a]n individual may furnish home health services on behalf of an HHA only after that individual has successfully completed a competency evaluation program” that meets the requirements in the regulations.  42 C.F.R. § 484.80(c).  A home health aide training program must include the following subject areas: 

(i) Communication skills, including the ability to read, write, and verbally report clinical information to patients, representatives, and caregivers, as well as to other HHA staff. 

(ii) Observation, reporting, and documentation of patient status and the care or service furnished. 

(iii) Reading and recording temperature, pulse, and respiration. 

(iv) Basic infection prevention and control procedures. 

(v) Basic elements of body functioning and changes in body function that must be reported to an aide’s supervisor. 

(vi) Maintenance of a clean, safe, and healthy environment. 

(vii) Recognizing emergencies and the knowledge of instituting emergency procedures and their application. 

(viii) The physical, emotional, and developmental needs of and ways to work with the populations served by the HHA, including the need for respect for the patient, his or her privacy, and his or her property. 

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(ix) Appropriate and safe techniques in performing personal hygiene and grooming tasks that include—

(A) Bed bath;
(B) Sponge, tub, and shower bath;
(C) Hair shampooing in sink, tub, and bed;
(D) Nail and skin care;
(E) Oral hygiene;
(F) Toileting and elimination;

(x) Safe transfer techniques and ambulation;

(xi) Normal range of motion and positioning;

(xii) Adequate nutrition and fluid intake;

(xiii) Recognizing and reporting changes in skin condition; and

(xiv) Any other task that the HHA may choose to have an aide perform as permitted under state law. 

42 C.F.R. § 484.80(b)(3), (c)(1).  In addition, several of these areas of instruction “must be evaluated by observing an aide’s performance of the task with a patient or pseudo-patient.  The remaining subject areas may be evaluated through written examination, oral examination, or after observation of a home health aide with a patient, or with a pseudo-patient as part of a simulation.”  42 C.F.R. § 484.80(c)(1).  Significantly, “[t]he competency evaluations must be performed by a registered nurse in consultation with other skilled professionals, as appropriate.”  42 C.F.R. § 484.80(c)(3).  An HHA must maintain documentation of compliance with the requirements of the home health aide competency evaluation program.  42 C.F.R. § 484.80(b)(4), (c)(5). 

Once home health aides are properly evaluated, they “are assigned to a specific patient by a registered nurse or other appropriate skilled professional, with written patient care instructions for a home health aide prepared by that registered nurse or other appropriate skilled professional . . . .”  42 C.F.R. § 484.80(g)(1).  A home health aide provides services ordered by a physician and included in the plan of care.  42 C.F.R. § 484.80(g)(2)(i)-(ii); see 42 U.S.C. § 1395x(m) (HHAs provide home health services “under a plan (for furnishing such items and services to such individual) established and periodically reviewed by a physician, a nurse practitioner, a clinical nurse specialist, or a physician assistant.”).  The duties of a home health aide include “hands-on personal care.”  42 C.F.R. § 484.80(g)(3)(i). 

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A review of the records for Staff B, C, and E do not show that Petitioner complied with the competency evaluation standard for home health aides.  Staff B’s records show that Petitioner completed an Initial Competency Checklist for Staff B in August 2022; however, Petitioner did not observe Staff B “in home with patient.”  CMS Ex. 82 at 1.  Further, while Petitioner administered a Home Health Aide Competency Exam to Staff B, Petitioner did not grade that written examination.  CMS Ex. 82 at 2-8.  Staff C’s records are even weaker because Staff C’s Initial Competency Checklist form is blank and not signed by an RN.  CMS Ex. 83 at 1.  Again, Petitioner administered a Home Health Aide Competency Exam to Staff C; however, Petitioner did not grade it.  CMS Ex. 83 at 2-8.  There is no evidence that Petitioner observed Staff C with a patient.  Finally, Staff E’s records have an Initial Competency Checklist that Staff E signed but is not signed by an RN and is otherwise blank as to Staff E’s competencies and as to whether Staff E was “[o]bserved in home with patient.”  CMS Ex. 84 at 1.  Petitioner administered a Home Health Aide Competency Exam to Staff E; however, Petitioner did not grade it.  CMS Ex. 84 at 2-8.  Therefore, I conclude that Petitioner was not in substantial compliance with the standards at 42 C.F.R. § 484.80(c)(1)-(3). 

A review of Patient 3’s medical record shows that home health services started on August 21, 2024.  CMS Ex. 79 at 5.  On October 16, 2024, a physician signed a Home Health Certification and Plan of Care for Patient 3 for the certification period for October 20, 2024 through December 18, 2024.  CMS Ex. 79 at 5.  The physician ordered home health aide services to provide “hands on personal care or other services to maintain patient health or facilitate treatment of patient’s illness,” for four hours per day, for seven days per week, for nine weeks.  CMS Ex. 79 at 5.  Despite the physician order, the Home Health Aide Plan of Care, updated by an RN on October 18, 2024, indicated that the home health aide should not provide personal care to Patient 3, except that lotion may sometimes be applied to Patient 3’s back.  CMS Ex. 79 at 1. 

A review of Patient 6’s medical records shows that home health services started on February 23, 2024.  CMS Ex. 81 at 1.  On October 16, 2024, a physician signed a Home Health Certification and Plan of Care for Patient 6 for the certification period for October 20, 2024 through December 18, 2024.  CMS Ex. 81 at 1.  The physician ordered home health aide services to provide “hands on personal care or other services to maintain patient health or facilitate treatment of patient’s illness,” for two hours per day, for two days per week, for nine weeks.  CMS Ex. 81 at 1.  Despite the physician order, the Home Health Aide Plan of Care was not updated to indicate that the home health aide should provide personal care to Patient 6.  CMS Ex. 81 at 4.  The state agency also asserted that time sheets from October 1, 2024 to October 10, 2024, show that no personal care was provided to Patient 6 between those dates; however, those dates are outside the certification period related to the October 16, 2024 Home Health Certification and Plan of Care.  There is no evidence in the record as to physician orders for the certification period that covered October 1, 2024, to October 10, 2024.  Therefore, this allegation by the state agency does not support a deficiency.  However, because an RN did not properly

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issue written instructions to home health aides to provide personal care services for Patients 3 and 6 in conformance with physician orders, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 484.80(g)(1). 

Although Petitioner does not expressly deny the existence of the deficiencies concerning 42 C.F.R. § 484.80, Petitioner objects to CMS’s reliance on those deficiencies to impose intermediate sanctions or termination.  Petitioner stated that after the COVID-19 pandemic, Petitioner had difficulty recruiting staff, leading Petitioner to provide only non-skilled home health services.  As a result, Petitioner stopped completing comprehensive assessments for its patients.  Petitioner asserts that it took until September 2024 to hire sufficient staff.  P. Supp. Br. at 1. 

Petitioner argues that, during the survey, it was only providing non-skilled services to the patients identified by the state agency.  Because Petitioner was only providing non-skilled services,  Petitioner asserts that it only needed to be in compliance with the requirements related to non-skilled services.  Petitioner identified 42 C.F.R. § 484.80(h)(2) and (i) as the relevant provisions with which it needed to comply.  Petitioner based its arguments on the State Operations Manual, a CMS manual that guides state agency surveyors.  See P. Supp. Br. at 2-3. 

The State Operations Manual states: 

Two standards in the HHA [conditions of participation] home health aide services, at 42 CFR §484.80, apply to beneficiaries who receive non-skilled services only: 

• 42 CFR §484.80(h)(2) - see also G814
• 42 CFR §484.80(i) - see also G828.
Review of these two requirements during survey is conducted through a separate sample than the sample used to evaluate compliance with skilled services requirements for HHA patients. 

State Operations Manual, (CMS Pub. 100-07), App. B, Pt. II, Task 4(F). 

Petitioner appears to argue that this provision in the State Operations Manual means that only the two regulatory provisions identified may be considered when surveying an HHA providing non-skilled services.  However, the quoted material does not expressly state that HHA’s providing non-skilled services is only responsible for complying with 42 C.F.R. § 484.80(h)(2) and (i).  More importantly, those regulatory provisions do not limit surveys in that manner. 

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Section 484.80(h) sets two different timeframes for an RN to assess the services being provided by a home health aide.  When home health aides are providing care to a patient receiving skilled nursing services or physical, occupational, or speech language pathology services, then assessments must be made no less frequently than every 14 days.  42 C.F.R. § 484.80(h)(1).  However, if home health services are provided without skilled nursing or therapy services, then an RN must assess the services provided by a home health aide every 60 days.  Section 484.80(i) is an even narrow provision, only applying to individuals who furnish personal care services under a Medicaid personal care benefit. 

This interpretation of the regulations is consistent with the preamble to the final rule.  Public comments asked whether patient assessment and care plan requirements should only apply to patients receiving skilled services.  The Secretary rejected these suggestions and stated the following: 

We do not believe that limiting the assessment requirements solely to those patients set to receive skilled care services or to those patients who have Medicare or Medicaid as a payment source would be in the best interest of patients. The patient assessment is designed to identify patient needs, and all patients will have needs to be assessed. Therefore we are maintaining the requirement that all patients must be assessed; otherwise they would not be receiving HHA services in the first place. 

* * * * *

All patient care, regardless of the level of clinical skill involved, should be delivered in accordance with a plan of care. To do otherwise would create opportunities for uncoordinated care, duplication of services, and missing services. 

82 Fed. Reg. 4504, 4529, 4532 (Jan. 13, 2017). 

While it does appear that most of the patients identified in the September 12, 2024 and November 13, 2024 surveys only provided for skilled nursing services once every 60 days (CMS Ex. 65 at 3; CMS Ex. 67 at 1; CMS Ex. 68 at 1; CMS Ex. 79 at 5; CMS Ex. 80 at 1; CMS Ex. 81 at 1) indicative of non-skilled services, others were not that limited and indicating that skilled nursing services were being provided (CMS Ex. 64 at 3; CMS Ex. 66 at 1; CMS Ex. 78 at 1).  In any event, I do not read section 484.80(h) as limiting state agencies from considering other standards in section 484.80 when conducting surveys that involved nurse aide services that were not accompanied by

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skilled services.  Section 484.80(h) simply sets up different time frames by which nurse aides need to be assessed based on whether other skilled services are provided. 

Because I conclude that Petitioner was deficient under two standards involving multiple staff members and patients, I conclude that these deficiencies substantially limit Petitioner’s capacity to furnish adequate care and adversely affect the health and safety of patients.  See 42 C.F.R. §§ 488.24(b), 488.705 (definition of “Condition-level deficiency”).  Therefore, I conclude that Petitioner was noncompliant with the condition of participation at 42 C.F.R. § 484.80. 

2. Condition of Participation 42 C.F.R. § 484.105 (Organization and administration of services). 

The state agency found Petitioner noncompliant with the condition of participation at 42 C.F.R. § 484.105 (Organization and administration of services) based on the following: 

[Petitioner’s] Governing Body failed to document the appointment of the Administrator. (G946), The agency failed to ensure the Administrator managed the day to day operations of the agency by having a qualified acting administrator, ensuring the ability to maintain compliance with recently corrected deficiencies, failed to complete the actions identified in the agency plan of correction, and failed to ensure the competency of home health aides to perform services. (G948) The agency failed to have a clinical manager available during operating hours. (G950) The Governing Body failed to document the appointment of the Acting Administrator and failed to ensure the Acting Administrator was qualified. (G954) The cumulative effect of these systemic practices resulted in the agency’s inability to ensure the health and safety of the patients and staff. 

CMS Ex. 15 at 4-5. 

The state agency found that Petitioner was noncompliant with the standard at 42 C.F.R. § 484.105(b)(1)(i) because “[Petitioner’s] Governing Body failed to document the appointment of the Administrator. . . .  Review of the Governing Body Board meeting minutes dated 05/25/24 did not reveal documented evidence the Administrator was appointed by a Governing Body.”  CMS Ex. 15 at 5. 

The state agency also found that Petitioner was noncompliant with the standard at 42 C.F.R. § 484.105(b)(1)(ii) because “[Petitioner] failed to ensure the Administrator

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managed the day to day operations of the agency by having a qualified acting [A]dministrator, ensuring the ability to maintain compliance with recently corrected deficiencies, failed to complete the actions identified in the agency plan of correction, and failed to ensure the competency of home health aides to perform services.  This could potentially affect all patients and staff.”  CMS Ex. 15 at 5-6.  Specifically, the state agency alleged: 

• The Acting Administrator is not qualified to cover the absence of the Administrator because the Acting Administrator has a computer science degree, a work history that is computer-related, and no other experience as a healthcare administrator;
• Petitioner was found compliant with 42 C.F.R. § 484.80(g)(1) during the September 12, 2024 survey, but Petitioner was unable to maintain compliance based on the results of the November 13, 2024 survey;
• Petitioner did not complete chart audits for all patients to ensure the medical record documentation demonstrated compliance as Petitioner stated it would do in a plan of correction revised on October 30, 2024;
• Petitioner hired Staff C on March 11, 2024, and Staff E on December 13, 2023, but there is no documentation that home health aide competency evaluations occurred involving patients or pseudo-patients; and
• Petitioner did not complete annual competency checklists for Staff B since 2022. 

CMS Ex. 15 at 6. 

The state agency found that Petitioner was also noncompliant with the standard at 42 C.F.R. § 484.105(b)(1)(iii) because “[Petitioner] failed to have a clinical manager available during operating hours.”  CMS Ex. 15 at 7.  Specifically, the state agency alleged that the Administrator is also the DON, who only comes to “the office” once every two weeks and who does not always answer her phone.  Petitioner employs another RN who only comes for three hours on Mondays, Wednesdays, and Fridays.  CMS Ex. 15 at 7. 

Finally, the state agency found that Petitioner was noncompliant with the standard at 42 C.F.R. § 484.105(b)(2) because “[Petitioner] failed to document the appointment of the Acting Administrator and failed to ensure the Acting Administrator was qualified.”  CMS Ex. 15 at 8.  Specifically, the state agency alleged that the Governing Body meeting minutes from May 25, 2024 do not reveal the Acting Administrator’s appointment.  CMS Ex. 15 at 8. 

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Each “HHA must set forth, in writing, its organizational structure, including lines of authority, and services furnished.”  42 C.F.R. § 484.105.  This organizational structure must include a governing body that assumes “full legal authority and responsibility for the agency’s overall management and operation, the provision of all home health services, fiscal operations, review of all the agency’s budget and its operational plans, and its quality assessment and performance improvement program.”  42 C.F.R. § 484.105(a).  The governing body must appoint an administrator of the HHA, and the administrator is responsible for all day-to-day operations of the HHA, ensures that a clinical manager is available during all operating hours, and ensures that the HHA employs qualified personnel.  42 C.F.R. § 484.105(b)(1).  Further, “[w]hen the administrator is not available, a qualified pre-designated person, who is authorized in writing by the administrator and the governing body, assumes the same responsibilities and obligations as the administrator.  The pre-designated person may be the clinical manager . . . .”  42 C.F.R. § 484.105(b)(2).  The Administrator or a pre-designated person must be available during all operating hours.  42 C.F.R. § 484.105(b)(3).  An HHA also must have a clinical manager(s), which are “one or more qualified individuals [who] provide oversight of all patient care services and personnel,” which include making patient and personnel assignments, coordinating patient care and referrals, assuring that patients needs are continually assessed, and assuring the development, implementation, and updates of the individualized plan of care.”  42 C.F.R. § 484.105(c). 

The record supports the concerns identified during the November 13, 2024 survey.  I agree that the bases for the condition-level deficiency at 42 C.F.R. § 484.80, as detailed above, show that Petitioner is not being properly administered.  I also agree that Petitioner’s efforts to promote one of its office managers to Assistant Administrator in order to provide supervision of day-to-day operations is insufficient to return Petitioner to compliance. 

Petitioner’s plan of correction, dated October 30, 2024, stated that Chloe Townsend, RN, was serving as both the DON and Administrator.  CMS Ex. 69 at 12.  It further stated as follows: 

G0940 – Organization and administrative services

After holding an administrative meeting with the DON/Administrator, owner, and office managers, it has been decided that until the DON can return to full time or another full time DON can be found, the senior office manager, Chris Nabuife, B.SC, (10 years experience in home care) is appointed Assistant Administrator effective immediately.  He will step in to take over for the daily administrative duties while the current nursing staff handles any tasks that must be done by a nurse, which include clinical duties.  The Assistant

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Administrator will still answer to the DON/Administrator and give updates on a weekly or as needed basis.  Monthly meetings will be done to discuss any issues the Assistant Administrator may have regarding policies, staffing or the like. 

G0948 – Responsible for all day-to-day operations. 

After holding an administrative meeting with the DON/Administrator, owner, and office managers, it has been decided that until the DON can return to full time or another full time DON can be found, the Assistant Administrator will step in to take over the administrative duties while the current nursing staff handles any tasks that must be done by a nurse, which include clinical duties.  The Assistant Administrator will still answer to the DON/Administrator and give updates on a weekly or as needed basis.  Monthly meetings will be done to discuss any issues the Assistant Administrator may have regarding policies, staffing or the like. 

CMS Ex. 69 at 12; P. Ex. 2 at 12; P. Ex. 3 at 12; P. Ex. 5 at 12. 

Supervision of the day-to-day operations is the responsibility of the Administrator.  42 C.F.R. § 484.105(b)(ii).  For someone to fill that role “when the administrator is not available,” the HHA would need to pick a “qualified” individual “who is authorized in writing by the administrator and governing body.”  42 C.F.R. § 484.105(b)(2).  In this case, the office manager selected for this role appears to be neither qualified nor authorized in writing by the Administrator and governing body to supervise the day-to-day operations of Petitioner’s HHA. 

The surveyor summarized an interview with the Acting Administrator as follows: 

Acting Administrator stated he has a degree in Computer Science with a work history that was computer related.  No other experience as a healthcare administrator.  He has been with the agency since 2018.  He is a [state tested nursing assistant] and worked in a nursing home “a long time ago”.  He has done referrals and intake, orientation on the Dos and Don’ts when working with patients and policies.  He talks to the Administrator daily on the phone.  The Administrator stops in “about once every two weeks”. 

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CMS Ex. 73 at 2.  The surveyor’s notes from the November 13, 2024 survey show that the office manager assigned to supervise the day-to-day operations of Petitioner’s HHA could not answer many of the surveyor’s questions and could not identify proof that the governing body appointed him in writing to act as the Administrator.  CMS Ex. 73.  The minutes from Petitioner’s governing body meeting on May 25, 2024, which appears to be the only meeting minutes in the record, did not include any discussion or action to appoint an Administrator, Acting Administrator, or Assistant Administrator.  CMS Exs. 62, 77.   

Petitioner asserts that CMS is wrong to conclude that Chris Nabuife, the office manager selected to be the Assistant Administrator and the official exercising day-to-day supervision of the HHA, is not qualified because Chris Nabuife has six years of homecare experience.  P. Br. at 3; P. Ex. 7 at 4.  Despite this statement in briefing, Petitioner did not submit any evidence showing Chris Nabuife’s qualifications to serve as the Assistant Administrator who will act for the Administrator in the day-to-day supervision of Petitioner’s HHA.  Further, Petitioner did not provide the required documentation that Petitioner’s governing body and Administrator appointed him in writing to serve temporarily as the Administrator when the Administrator is unable to do so. 

In addition, Petitioner argues that it is in compliance with 42 C.F.R. § 484.105(c), which requires HHAs to have “one or more qualified individuals [who] provide oversight of all patient care services and personnel,” which include making patient and personnel assignments, coordinating patient care and referrals, assuring that patients’ needs are continually assessed, and assuring the development, implementation, and updates of the individualized plan of care.  42 C.F.R. § 484.105(c).  Petitioner asserts that its DON, as well as a case manager who is an RN, meet this requirement.  P. Br. at 3.  However, Petitioner again only makes vague statements without submitting evidence to show that it meets this standard.  This is insufficient for me to conclude that Petitioner is in compliance with 42 C.F.R. § 484.105(c). 

Petitioner also asserts that the state agency found new deficiencies during the November 13, 2024 survey that had not been found during the September 12, 2024 survey.  Petitioner argues that the newly found deficiencies “are out of scope of the resurvey and [Petitioner] should not have been cited.”  P. Br. at 2-3; P. Ex. 7 at 5.  Petitioner cited no legal authority for its position. 

CMS responded to this argument by citing the regulatory definition of “Revisit Survey,” which states, in pertinent part, that it is a survey “designed to evaluate the extent to which previously-cited deficiencies have been corrected and the provider or supplier is in substantial compliance with applicable conditions of participation, requirements, or conditions for coverage.” 42 C.F.R. § 488.30; CMS Reply at 3-4; see also Donelson Place Care & Rehab. Ctr., DAB No. 3046 at 24 (2021). 

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I agree with CMS.  The regulations pertaining to the intermediate sanction of suspension of payment for new Medicare admissions provides that the suspension will remain in effect until CMS determines that the HHA “is in substantial compliance with all of the conditions of participation” or until CMS terminates the HHA.  42 C.F.R. § 488.840(c) (emphasis added).  Indeed, CMS may terminate an HHA’s provider agreement whenever an HHA “is not in compliance with the conditions of participation.”  42 C.F.R. § 488.865(b)(1).  Therefore, I find no basis for rejecting the findings in the November 13, 2024 survey simply because it contains newly found deficiencies. 

Even if the state agency revisit survey was limited to considering whether Petitioner returned to compliance with the deficiencies found in the September 12, 2024 survey, Petitioner would still be subject to termination because Petitioner has remained noncompliant with the condition of participation at 42 C.F.R. § 484.105 for six months.  As stated above, I upheld the same deficiency that has remained throughout these surveys, i.e., Petitioner has not had an official who supervises the day-to-day operations for the HHA.  This standard alone is sufficient to place Petitioner out of compliance with the condition of participation at 42 C.F.R. § 484.105 because a properly run HHA is necessary to ensure that patients receive safe and adequate services.  Petitioner’s other condition-level deficiencies, along with Petitioner’s inability to quickly correct them, shows the extent to which Petitioner’s lack of a permanent Administrator has negatively affected Petitioner. 

As a result, I conclude that these deficiencies substantially limit Petitioner’s capacity to furnish adequate care and adversely affect the health and safety of patients.  See 42 C.F.R. §§ 488.24(b), 488.705 (definition of “Condition-level deficiency”).  Therefore, I conclude that Petitioner was noncompliant with the condition of participation at 42 C.F.R. § 484.105. 

4. Based on the condition-level deficiencies that the state agency found during the surveys it conducted from May 2024 through November 2024, CMS was authorized to impose the intermediate sanctions of a suspension of payment for new Medicare admissions and a per-day CMP, as well as termination of Petitioner’s Medicare provider agreement. 

Although Petitioner believes that CMS incorrectly found that condition-level deficiencies existed at Petitioner’s HHA, Petitioner did not provide any arguments challenging the imposition of the suspension of payments for new admissions, a per-day CMP, or termination. 

Having affirmed CMS’s findings of condition-level deficiencies in this case, I conclude that CMS was authorized to impose the intermediate sanctions that it did and when it did to incentivize Petitioner to return to compliance as quickly as possible.  See 42 C.F.R. § 488.810(a).  CMS may impose a suspension of payment for new Medicare admissions

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“anytime an HHA is found to be out of substantial compliance” and that sanction remains in place until the HHA returns to compliance with all conditions of participation or CMS terminates the HHA after six months of being noncompliant.  42 C.F.R. § 488.840(a)(1), (b)(2)(i), (c).  In the present case, CMS acted within its authority to impose the suspension of payments. 

CMS may also impose a per-day a CMP for the number of days that an HHA is noncompliant with one or more conditions of participation.  42 C.F.R. § 488.845(a)(1).  When an ALJ finds that the basis for imposing a CMP exists, an ALJ may not set the CMP to zero, review CMS’s exercise of discretion to impose the CMP, or consider any other factors when reviewing the amount of the CMP than those in 42 C.F.R. § 488.845(b).  42 C.F.R. § 488.845(h).  In this case, CMS imposed a $2,479 per-day CMP only after Petitioner failed to return to compliance following the third (September 12, 2024) survey.  CMS Ex. 2 at 1-2.  The amount of the CMP indicates that CMS properly imposed a CMP in the lower range for penalties.  See 42 C.F.R. § 488.845(b)(5).  In this case, CMS also properly continued to impose the CMP until CMS terminated Petitioner’s provider agreement following six months of condition-level noncompliance.  42 C.F.R. § 488.845(d)(4). 

Finally, CMS only terminated Petitioner after Petitioner was found to be noncompliant with the conditions of participation for six months.  CMS may terminate an HHAs provider agreement whenever an HHA is not in compliance with the conditions of participation.  42 C.F.R. § 488.865(b)(1).  However, CMS must terminate an HHA’s provider agreement within 6 months if the HHA is not in compliance with the conditions of participation.  42 C.F.R. § 488.830(d).  In the present case, CMS gave Petitioner the entire six-month maximum period to return to substantial compliance before terminating Petitioner’s provider agreement.  Therefore, CMS acted properly. 

IX.    Conclusion

I affirm CMS’s initial determinations to impose intermediate sanctions on Petitioner and to ultimately terminate Petitioner’s Medicare provider agreement because Petitioner was noncompliant with the conditions of participation for HHAs for six months.