SUBJECT:

Kidz Care Home Health Care Inc.,

Petitioner,

Centers for Medicare & Medicaid

I. Background and undisputed material facts

The material facts of this case are not in dispute. Petitioner is a home health agency that operates in the State of Wisconsin. It applied to participate in the Medicare program. The Wisconsin State survey agency surveyed Petitioner on April 10 - 11, 2002 and found that, in one respect, Petitioner was not complying substantially with Medicare participation requirements. Petitioner does not dispute that it was deficient as of the April 10 - 11, 2002 certification survey, although it contends that its deficiency as of those dates was due to a computer software error that was not its fault.

Petitioner mailed a plan of correction to the Wisconsin State survey agency. On April 24, 2002, Petitioner hand-delivered a plan of correction to the survey agency which differed from the previously submitted plan of correction in respects that I shall discuss below. The Wisconsin State survey agency reviewed the hand-delivered plan on April 24, 2002 and concluded that Petitioner had submitted an acceptable plan of correction justifying certification effective that date. The Centers for Medicare & Medicaid Services (CMS) then certified Petitioner to participate in Medicare effective April 24, 2002.

Petitioner was dissatisfied with this determination and requested a hearing. In its request, and subsequently, Petitioner argues that it should have been certified to participate in Medicare effective February 7, 2002, the date when it began providing home health services pursuant to a State license. CMS asserts that the earliest date that it can certify Petitioner to participate in Medicare was April 24, 2002, because that is the date that the Wisconsin State survey agency received an acceptable plan of correction from Petitioner.

CMS moved for summary disposition on December 6, 2002. Petitioner did not explicitly reply to this motion. However, it addressed all of CMS's arguments in a pre-hearing brief that it filed on January 6, 2003. CMS submitted a total of 39 exhibits (Exs.) with its motion, consisting of CMS Ex. 1 - CMS Ex. 39. Petitioner submitted a total of 16 exhibits, consisting of P. Ex. 1 - P. Ex. 16. I am receiving all of these exhibits into evidence.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. CMS may be compelled to certify Petitioner to participate in Medicare effective a date that is earlier than the date when Petitioner submitted an acceptable plan of correction to address the deficiency that was identified at the April 10 - 11, 2002 survey of Petitioner; and

2. What is the date when Petitioner submitted an acceptable plan of correction?

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separately numbered heading. I discuss each Finding in detail.

1. CMS may not be compelled to certify Petitioner to participate in Medicare effective a date that is earlier than the date when Petitioner submitted an acceptable plan of correction to address the deficiency that was identified at the April 10 - 11, 2002 survey of Petitioner.

The process by which CMS certifies a provider to participate in the Medicare program is established at 42 C.F.R. Part 489. The regulations in this part are binding rules which govern certification for participation. I have no authority to supersede these regulations or to order CMS to disregard them.

The regulations establish the following general framework for establishing the effective date of participation:

� The earliest date that a provider may be certified to participate in Medicare is the date of a comprehensive certification survey, assuming that the provider is found to satisfy all Medicare participation requirements as of the survey date. 42 C.F.R. � 489.13(b).

� If a provider (other than a skilled nursing facility) is found not to have satisfied all participation requirements as of the date of the certification survey, and, assuming that the deficiencies that are found at the survey are lower level deficiencies, then the earliest date after that survey that the provider may be certified to participate in Medicare is the date that CMS or a State survey agency receives an acceptable plan of correction for the lower level deficiencies, or an approvable waiver request, or both. 42 C.F.R. � 489.13(c)(2)(ii).

Here, the undisputed material facts establish that Petitioner was surveyed to participate in Medicare on April 10 - 11, 2002. Thus, pursuant to 42 C.F.R. � 489.13(b), the earliest date that CMS potentially could have certified Petitioner to participate in Medicare was on April 10 or 11, 2002. However, Petitioner was found to have manifested a lower level deficiency at the April 10 - 11, 2002 survey, and Petitioner has not disputed that this deficiency existed. Therefore, the earliest date that Petitioner would be eligible to participate in Medicare is the date when it submitted an acceptable plan of correction to CMS or to the Wisconsin State survey agency which addressed the deficiency that was found at the April 10 - 11, 2002 survey. That date necessarily would be a date that is after April 11, 2002.

Petitioner argues that it should have been certified to participate as early as February 7, 2002, the date that it began operating as a home health agency pursuant to a State license. It asserts that it was performing a necessary service which included providing care to Medicare beneficiaries that fell within the purview of covered Medicare services and it deserves to be compensated for that care. It argues additionally that it was ready and willing to be surveyed as of February 7, 2002. According to Petitioner, the Wisconsin State survey agency delayed surveying Petitioner, unreasonably, and due to no fault of Petitioner. Petitioner asserts that it should not be penalized for the failure of the Wisconsin State survey agency to survey Petitioner more promptly.

These are equitable arguments. Essentially, Petitioner asserts that the Wisconsin State survey agency unfairly delayed conducting its survey of Petitioner and that Petitioner suffered needlessly due to this delay.

I make no findings in this decision that the Wisconsin State survey agency or CMS unfairly delayed surveying and certifying Petitioner to participate in Medicare. But, I would not be able to compel a certification date that is earlier than the date when Petitioner submitted an acceptable plan of correction even if, in fact, there were needless delays in the survey and certification process. As I discuss above, the regulations which govern certification establish a process which permits no exceptions. I have no authority to either disregard these regulations or to compel CMS to waive them.

2. The date when Petitioner submitted an acceptable plan of correction is April 17, 2002. Consequently, CMS should certify Petitioner to participate in Medicare effective April 17, 2002.

CMS contends that Petitioner did not submit an acceptable plan of correction until April 24, 2002. Thus, according to CMS, the earliest effective date that it could certify Petitioner to participate in Medicare was April 24, 2002.

I find that Petitioner submitted an acceptable plan of correction to the Wisconsin State survey agency on April 17, 2002. I base my finding on my conclusion that the plan Petitioner submitted on that date was substantively not different from the plan that it submitted again on April 24, 2002 and which CMS found to be acceptable.

At Finding 1, above, I conclude that Petitioner could not have been certified to participate in Medicare on any date that is earlier than the date when Petitioner submitted an acceptable plan of correction that addressed the deficiency that was identified at the April 10 - 11, 2002 survey of Petitioner. However, I do not find that the date when Petitioner submitted an acceptable plan is April 24, 2002, as is contended by CMS. Rather, the date of submission of that plan is April 17, 2002.

The undisputed material facts concerning the submission of a plan of correction to the Wisconsin State survey agency are as follows. On April 16, 2002, Petitioner mailed a plan of correction (first plan of correction) to the Wisconsin State survey agency. The plan of correction was delivered to this agency on the following day, April 17, 2002. CMS Ex. 19.

I note that CMS states in its motion for summary disposition that the first plan of correction was received by the Wisconsin State survey agency on April 19, 2002 and not on April 17, 2002. However, CMS has not objected to Petitioner's recitation of facts. Moreover, it is CMS's own exhibit - CMS Ex. 19 - which contains a statement from a Wisconsin State survey agency employee that:

We have a copy of the original plan of correction stamped in HSS on 4/17/02.

CMS Ex. 19. I am concluding that the first plan of correction was received by the Wisconsin State survey agency on April 17, 2002, as opposed to April 19, 2002, in view of this admission by a State survey agency employee and CMS's failure to dispute Petitioner's recitation of facts.

The undisputed material facts show also that Petitioner became impatient with the review process and, on April 24, 2002, hand-delivered another plan of correction (second plan of correction) to the Wisconsin State survey agency. The second plan of correction was reviewed immediately upon receipt and, Petitioner was found to have complied with participation requirements and to be qualified for certification based on its contents. Consequently, CMS certified Petitioner to participate in Medicare effective April 24, 2002.

The earliest date that Petitioner could have been certified to participate in Medicare was the date that the Wisconsin State survey agency received an acceptable plan of correction from Petitioner. 42 C.F.R. � 489.13(c)(2)(ii); Finding 1. In this case that date could be April 17, 2002, the date that the Wisconsin State survey agency received Petitioner's first plan of correction, or April 24, 2002, the date that the Wisconsin State survey agency received Petitioner's second plan of correction. Here, the certification date depends on the substantive elements of the plans. If, in fact, the plan that the Wisconsin State survey agency received on April 17, 2002 contains the same substantive elements as those which were present in the April 24, 2002 plan, then the correct certification date would be April 17, 2002. If, on the other hand, there were material differences between the first and second plans of correction, then the correct certification date would be April 24, 2002 inasmuch as the Wisconsin State survey agency and, ultimately, CMS, determined the second plan of correction to be acceptable.

Based on the parties' contentions it does not appear that there were any substantive differences between the two plans. The two plans bear different dates, but that is not a substantive difference. The second plan of correction was three pages in length whereas the first plan was 15 pages in length. But, the three pages in the second plan were contained also in the first plan of correction. CMS Exs. 15-16. Thus, the operative representations that the Wisconsin State survey agency and CMS found to be acceptable were identical in both plans. Finally, the second plan evidently bore a different deficiency number than the first plan. This is not a substantive difference as, evidently, the Wisconsin State survey agency and CMS had no difficulty in deducing what deficiency the plan addressed (there was only one deficiency and confusion would have been impossible under the circumstances).

Steven T. Kessel
Administrative Law Judge