Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Extenda Care Home Health Agency,
Petitioner,
- v. -
Health Care Financing Administration.
DATE: January 25, 1996
Docket No. A-96-14
Decision No. 1556
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION
Extenda Care Home Health Agency (Petitioner) requested
review of a decision by Administrative Law Judge (ALJ)
Dale A. Garwal denying Petitioner's certification as a
Medicare home health agency. In the Matter of: Extenda
Care Home Health Agency, Docket No. 000-51-7182 (1991)
(ALJ Decision). Petitioner's Medicare certification was
denied based on a determination by the Health Care
Financing Administration (HCFA) that Petitioner did not
meet the conditions of participation in the Medicare
program. See 42 C.F.R. Part 484.
Petitioner offered no substantive argument or evidence to
persuade us that the ALJ's factual findings were not
supported by substantial evidence or that his legal
conclusions were erroneous. Thus, for the reasons stated
below, we summarily affirm the ALJ Decision.
BACKGROUND
A. Law
Certification requirements for a home health agency (HHA)
wishing to serve as a Medicare provider are found at
sections 1861(o) and 1891 of the Social Security Act
(Act). The Department of Health and Human Services
(Secretary) is authorized to establish additional
participation requirements. See section 1861(o)(6) of
the Act.
Under the Medicare program, an HHA is a public agency or
private organization which provides health care services
to a patient on a visiting basis in a place of residence
used by the patient as his or her home. See sections
1861(m) and (o) of the Act. An HHA is primarily engaged
in providing skilled nursing services and other
therapeutic services. Section 1861(o) of the Act.
Section 1891(b) of the Act imposes on the Secretary the
duty and responsibility to enforce conditions of
participation applicable to home health agencies. See 42
C.F.R. Part 484. Section 1864 of the Act authorizes the
use of state agencies to determine a provider's
compliance with conditions of participation. If a state
agency certifies that a provider is not in compliance,
HCFA then determines whether a provider is eligible to
participate in Medicare. 42 C.F.R. 488.12.
All conditions of participation must be met for an HHA to
obtain certification as a provider of services in the
Medicare program. 42 C.F.R. 488.3(a) and
489.10(a)(1).
B. Procedural History
The procedural history is undisputed. On August 25,
1989, Petitioner filed an application seeking Medicare
certification as a provider of home health services.
From April 20-23, 1990, the Wisconsin Bureau of Quality
Compliance performed a certification survey in order to
determine if Petitioner met the Medicare conditions of
participation. Based on the survey results, HCFA
determined that Petitioner was not in compliance with
five of the twelve Medicare conditions of participation.
On May 17, 1990, HCFA notified Petitioner of the
deficiencies and the steps it could take to correct them
and reapply for Medicare certification. On May 24, 1990,
Petitioner requested reconsideration of HCFA's
determination and submitted a plan of correction and
allegation of compliance. On June 13, 1990, HCFA upheld
its original determination. On June 18, 1990, Petitioner
requested a hearing before an ALJ to determine whether
the denial of certification was proper. The ALJ Decision
followed on May 3, 1991.
On May 15, 1991, Petitioner applied to the Social
Security Administration Appeals Council (the Council) for
review of the ALJ Decision. 1/ The Council granted
review on March 4, 1993. The Council informed Petitioner
that --
your letter dated May 5 (sic), 1991 does not
contain the basis of your disagreement with the
[ALJ] decision. You should prepare a statement
as to the specific issues or findings of fact
and conclusions of law in the . . . decision
with which you disagree and the basis for the
contention that the specific issues and/or
findings or conclusions were incorrect (see 42
CFR 498.82).
Letter to Frances M. Koonce, Owner, Extenda Care Home
Health Agency (March 4, 1993). 2/
Petitioner had 20 days from the date of the Council's
letter to make its submission. Id. Petitioner made no
further submission.
On May 14, 1993, HCFA filed a brief in response to
Petitioner's request for review and argued that the ALJ
Decision should be affirmed. Additionally, HCFA noted
that the request for review did not specify the issues,
findings of fact, or conclusions of law with which
Petitioner disagreed, or the basis for contending that
the findings and conclusions were incorrect. Thus, HCFA
argued that Petitioner's request for review "did not
contain the proper content required under 42 C.F.R.
498.82(2)(b) . . . and therefore . . . [should] be
dismissed." 3/ HCFA Brief at 1-2.
On October 25, 1995, after reviewing the case file, 4/
the Board notified the parties that it appeared that the
record in this case was complete. The Board stated that,
absent any showing by the parties (within 20 days of
receipt of the Board's letter) that the case was not
ready, it would proceed directly to decision. On
November 7, 1995, the Board staff attorney assigned to
this case telephoned Ms. Koonce to ensure that she had
received and understood the Board's letter. She
indicated that she had and that she would speak with her
attorney to determine if she would pursue this matter.
The Board heard nothing more from Ms. Koonce.
On November 20, 1995, the Board received a letter from an
individual describing himself as a "Partner" in
Petitioner's organization. 5/ He asserted that the case
was not ready for decision, but provided no substantive
reasons why the ALJ Decision was incorrect or why there
should be additional procedures. 6/
ANALYSIS
The standard for our review of an ALJ decision on
disputed factual issues is whether the ALJ's decision is
supported by substantial evidence in the record and on
disputed legal issues is whether the ALJ's decision was
erroneous.
HCFA's determination to deny Petitioner's Medicare
certification was based on Petitioner's failure to meet
five of the 12 Medicare conditions of participation.
Specifically, HCFA asserted that Petitioner had not met
the following conditions --
o Patient rights, which generally provides
that "[t]he patient has the right to be
informed of his or her rights. The HHA must
protect and promote the exercise of those
rights." 42 C.F.R. 484.10;
o Organization, services and administration,
which generally provides that "[o]rganization,
services furnished, administrative control, and
lines of authority for the delegation of
authority down to the patient care level are
clearly set forth in writing and readily
identifiable." 42 C.F.R. 484.14;
o Acceptance of patients, plan of care, and
medical supervision, which generally provides
that "[p]atients are accepted for treatment on
the basis of reasonable expectation that the
patient's medical, nursing, and social needs
can be met adequately by the agency in the
patient's place of residence. Care follows a
written plan of care established and
periodically reviewed by a doctor . . . ." 42
C.F.R. 484.18;
o Skilled nursing services, which generally
provides that "[t]he HHA furnishes skilled
nursing services by or under the supervision of
a registered nurse and in accordance with the
plan of care." 42 C.F.R. 484.30;
o Home health aide services, which generally
provides that "[h]ome health aides are selected
on the basis of such factors as a sympathetic
attitude toward the care of the sick, ability
to read, write, and carry out directions, and
maturity and ability to deal effectively with
the demands of the job. They are closely
supervised to ensure their competence in
providing care." 42 C.F.R. 484.36.
The ALJ Decision contained six findings of fact and
conclusions of law (FFCLs). ALJ Decision at 21-22
(unnumbered). In reaching these FFCLs, the ALJ
thoroughly examined each failed condition of
participation cited by HCFA and addressed Petitioner's
arguments relative to each as well as its general
arguments. The ALJ Decision examined in detail each
disputed condition of participation and determined that
Petitioner had provided either inadequate or no evidence
to prove compliance. FFCL 4 stated that --
"The evidence assessed at the administrative hearing
demonstrates that at the time of the survey on April 20
and 23, 1990 by the Wisconsin Bureau of Quality
Compliance, the Petitioner had failed to meet the five
conditions of participation in the Medicare program set
forth as follows:
42 C.F.R. 484.10 Patient Rights:
Failure to maintain documentation showing
patient notification of rights
information in accordance with agency
policies or otherwise; and failure to
provide written notice of charges for
services.
42 C.F.R. 484.14 Organization, Services,
Administration:
Failure of the governing body (or Equivalent) to
provide adequate oversight/management of the
agency; failure of governing body to develop
policies outlining their duties and
responsibilities; failure of the administrator to
organize and direct the agency functions; and
failure to ensure the availability of the
supervising nurse or similarly qualified
alternate during operating hours.
42 C.F.R. 484.18 Acceptance of Patients, Plan of
Care, Medical Supervision:
Care did not follow a written plan of care
established by a physician as required by
regulation and agency policy; plans of care were
incomplete; and failure to modify the plan of
care as required by changes in patient condition.
42 C.F.R. 484.30 Skilled Nursing Services:
Failure to provide skilled nursing services in
accordance with the plan of care; failure to
notify physician of changes in the patient's
condition; and failure to supervise the home
health aide to ensure adherence to the plan of
care.
42 C.F.R. 484.36 Home Health Aide Services:
Failure to adequately supervise the home health
aide to ensure provision of services in
accordance with the plan of care."
Id.
From the ALJ's analysis, it is clear that he regarded
Petitioner's deficiencies as serious and placing
patients' health and safety at risk. Petitioner has
presented no evidence or argument to rebut this FFCL or
the ALJ's underlying analysis.
Petitioner simply requested review without specifying any
reasons for reversing the ALJ Decision. When the Appeals
Council granted review, Petitioner was informed that it
had failed to meet the requirements in 42 C.F.R.
498.82(b) to specify in its request for review why it
contended that the ALJ decision was incorrect. The
Appeals Council then afforded Petitioner the opportunity
to make a supplemental submission. However, Petitioner
has never cured that deficiency. Although given a
reasonable opportunity during the procedures on review to
demonstrate why the ALJ Decision was wrong, Petitioner
raised no substantive issues in this case. 7/
CONCLUSION
The ALJ thoroughly analyzed the issues underlying HCFA's
denial of certification and found that HCFA's
determinations were correct. See FFCL 6. Before the
Appeals Council and the Board, Petitioner did not assert
that the ALJ's findings of fact were not supported by
substantial evidence or that his legal conclusions were
erroneous. Since there are no issues presented for Board
review, we summarily sustain the ALJ Decision in its
entirety. In doing so we affirm and adopt each FFCL.
_________________________
Donald F. Garrett
_________________________
M. Terry Johnson
_________________________
Cecilia Sparks Ford
Presiding Board Member
1. Effective October 1, 1995, the authority to review
the ALJ Decision was transferred from the Social Security
Administration Appeals Council to the Departmental
Appeals Board (Board) of the Department of Health and
Human Services. This case was then assigned to a panel
of three Board Members.
2. Ms. Koonce is identified in the ALJ Decision as
Petitioner's owner and administrator. She represented
Petitioner before the ALJ.
3. The regulation at 42 C.F.R. 498.82(b) provides -
-
A request for review of an ALJ decision or
dismissal must specify the issues, the findings
of fact or conclusions of law with which the
party disagrees, and the basis for contending
that the findings and conclusions are
incorrect.
The applicable regulations also provide that a party will
be given a "reasonable opportunity to file briefs or
other written statements as to fact and law." 42 C.F.R.
498.85.
4. The case file received by the Board consisted of
the ALJ Decision, the record before the ALJ, and all
correspondence between the parties and the Council prior
to the transfer of authority to the Board.
5. This individual was identified in the ALJ Decision
as Petitioner's Office Manager and testified before the
ALJ. See ALJ Decision at 2 (unnumbered).
6. At best, this letter contained a broad range of
unique and unsupported allegations having no logical
relationship to any issues decided by the ALJ (e.g.,
torts against capitalism, institutional racism and
"outrageous varacity"). These allegations were aimed at
lawyers in general, the Wisconsin Division of Health,
HCFA and, apparently, this Department's Office of Civil
Rights for the Chicago Region. We have no indication
that this individual was authorized to act on
Petitioner's behalf here. Consequently, we do not
address these issues further.
7. We note that the circumstances here are
distinguishable from those in Professional Nurses Home
Health Services, DAB No. 1543 (1995), where HCFA argued
that the Petitioner had failed to meet the requirements
stated in the Board's Guidelines for these cases since
Petitioner had not specified the FFCLs at issue. In that
case, the Board found that Petitioner had raised an issue
before the ALJ and before the Board that was not covered
in an FFCL, but determined that the issue was
sufficiently clear for HCFA to respond.