SUBJECT:

High Tech Home Health,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

High Tech Home Health (Petitioner) filed a timely request for hearing on May 16, 2005, to contest the Centers for Medicare & Medicaid Services' (CMS's) termination of Petitioner's Medicare provider agreement. On October 3, 2005, CMS filed a motion for summary judgment. For the reasons stated below, I grant CMS's motion for summary judgment. CMS was authorized to terminate Petitioner's Medicare provider agreement.

I. Procedural History

Petitioner is a home health agency (HHA) located in Davie, Florida. Petitioner participated in the Medicare program prior to May 9, 2005. On February 8, 2005, the Florida Agency for Health Care Administration (State agency) completed a re-certification survey at Petitioner's facility. CMS exhibit (Ex.) 1, at 1. By letter dated February 17, 2005, the State agency notified Petitioner that it determined Petitioner to be substantially noncompliant with eight conditions of participation. The State agency also advised Petitioner that it would recommend that CMS terminate Petitioner's Medicare provider agreement effective May 9, 2005, and that "[a] revisit will be conducted within 45 days of the survey if an acceptable Plan of Correction has been submitted by you to this office . . . [t]ermination will take place as planned if compliance is not achieved at the time of the revisit." Id. Petitioner subsequently submitted, and the State agency accepted, a plan of correction indicating that all deficiencies would be corrected on or before March 10, 2005. CMS Ex. 2.

The State agency completed a revisit survey on March 23, 2005. CMS Ex. 3, at 2. The State agency determined that Petitioner remained out of substantial compliance with five conditions of participation in addition to some newly-cited deficiencies. CMS Ex. 3. By letter dated April 8, 2005, CMS advised Petitioner that it would involuntarily terminate Petitioner's Medicare provider agreement effective May 9, 2005. CMS Ex. 4, at 1. CMS's letter also instructed Petitioner that "[i]f you believe that these deficiencies have been corrected, please notify this office immediately. You should include a description of the steps you have taken to correct each deficiency. Correction must be verified by an on-site evaluation." Id. at 1.

Petitioner submitted a plan of correction on April 11, 2005 that alleged Petitioner would achieve substantial compliance with applicable federal requirements on or before April 23, 2005. CMS Ex. 3. By letter dated April 26, 2005, however, CMS notified Petitioner that it had determined Petitioner's plan of correction was unacceptable because "[y]our allegation of compliance does not show evidence that you have a[n] HHA that is operational with adequate staff and is currently in compliance . . . ." CMS Ex. 6, at 1. The State agency did not conduct another revisit survey prior to the proposed termination date to determine if Petitioner had implemented its plan of correction. Petitioner submitted additional information with respect to its plan of correction after receipt of CMS's April 26, 2005 letter. CMS Ex. 7. Nonetheless, by letter dated May 10, 2005, CMS notified Petitioner that termination of its Medicare provider agreement had become effective on May 9, 2005. CMS Ex. 8. Petitioner timely filed a request for hearing on May 16, 2005.

On October 3, 2005, CMS filed a motion for summary judgment (CMS Br.) and nine proposed exhibits in support thereof. On November 3, 2005, Petitioner filed its response (P. Br.) and two proposed exhibits. There being no objection, I have admitted all proposed exhibits into the record for purposes of this ruling; CMS Exs. 1-9 and P. Exs. 1 and 2.

II. Applicable Law and Regulations

An HHA is a "provider of services" eligible to enter into a provider agreement with CMS for purposes of Medicare participation. 42 U.S.C. �� 1395cc(a) and 1395x(u); 42 C.F.R. � 488.1.

Regulations which govern the participation of HHAs in the Medicare program are in 42 C.F.R. Part 484. Specifically, the provisions in 42 C.F.R. �� 484.10 through 484.55 set forth the requirements for Medicare participation of HHAs and establish conditions of participation for these entities. The regulations express these conditions of participation as broadly stated participation criteria. The regulations also state standards of participation as subsidiary components of the conditions of participation.

CMS, on behalf of the Secretary, is required to determine whether a Medicare provider of services, including an HHA, is complying substantially with the Medicare participation requirements established by the Social Security Act (Act) and regulations. Section 1866(b)(2) of the Act. In order to remain certified as a Medicare provider, an HHA must remain in substantial compliance with all conditions of participation. See 42 C.F.R. � 489.53(a)(1).

The process and criteria for determining whether a provider is complying substantially with Medicare participation requirements are established by regulations contained in 42 C.F.R. Part 488. CMS has entered into agreements with State survey agencies, pursuant to the Act and regulations, to conduct periodic surveys of providers, including HHAs, in order to ascertain whether the providers are complying with Medicare participation requirements. Section 1864(a) of the Act; 42 C.F.R. �� 488.10, 488.11, and 488.20.

State survey agencies conduct surveys of HHAs and make recommendations to CMS as to whether such facilities meet federal participation requirements for the Medicare program. Section 1864(a) of the Act; 42 C.F.R. �� 488.10, 488.11, and 488.20. CMS considers survey results from the State survey agencies as the bases for its determinations regarding the initial or continued participation of an HHA in the Medicare program. 42 C.F.R. �� 488.11 and 488.12.

In determining whether a provider complies with a particular condition of participation, the State survey agency evaluates the manner and degree of the provider's satisfaction of the various standards within each condition. 42 C.F.R. � 488.26(b). The State survey agency documents its findings on CMS Form 2567 (Statement of Deficiencies or SOD), which the provider receives after the survey is completed. 42 C.F.R. � 488.12. The State survey agency also makes a recommendation to CMS as to whether there is a basis for termination. CMS may accept or reject the recommendation after reviewing the survey findings.

CMS, acting for the Secretary, may terminate a provider agreement when it determines, either on its own initiative or based on a state survey agency report, that a provider is not complying with the provisions of the Act and implementing regulations. Section 1866(b)(2)(A) of the Act; see 42 C.F.R. �� 488.20, 488.24, 488.26, and 489.53(a)(1). Failure to comply with a condition of participation occurs where deficiencies, either individually or in combination, are "of such character as to substantially limit the provider's . . . capacity to furnish adequate care or which adversely affect the health and safety of patients . . . ." 42 C.F.R. � 488.24(b).

III. The Parties' Arguments

A. CMS's Arguments

CMS argues that Petitioner has conceded it was not complying substantially with the conditions of participation during the February 8, 2005 and March 23, 2005 surveys because Petitioner has not disputed the actual survey findings. Additionally, CMS argues that Petitioner raised no argument that the level of its noncompliance with conditions of participation was not of such character as to substantially limit its capacity to furnish adequate care or adversely affect the health and safety of patients. 42 C.F.R. � 488.24(b). CMS Br. at 9-10. CMS reasons that given Petitioner's concession of both the fact and degree of deficiencies, CMS was fully authorized to terminate Petitioner's provider agreement.

B. Petitioner's Arguments

Petitioner did not appeal the State agency findings from the February 8, 2005 recertification survey and concedes that "[t]he March 23 survey caught [Petitioner] in a transition phase in both personnel and automation in which [Petitioner] was admittedly in non-compliance." P. Br. at 1. Petitioner submits, however, that it had corrected the deficiencies by April 8, 2005, and that it was in compliance thereafter. Id. Petitioner contends that CMS should have provided another on-site survey before terminating its provider agreement. Petitioner asks that I find it was in compliance on April 8, 2005, as a matter of law, because CMS erred in not following its own procedures and failed to verify Petitioner's compliance by another on-site evaluation. P. Br. at 4. Petitioner further asks that I order CMS to re-survey Petitioner's HHA. Id. Petitioner also contends I should rule in its favor as a matter of equity because the "billions of dollars wasted and the increased risk of patient health as a function of increased utilization overwhelm CMS's refusal to schedule an on-site evaluation to confirm [Petitioner's] compliance." Id. at 6.

According to Petitioner, its related HHA is currently the best home health agency in the State of Florida, as defined by primary variables, and, by terminating Petitioner's provider agreement, CMS lost the opportunity to evaluate a demonstration proposal for Broward County to reduce HHA costs. Id. at 3.

IV. Issues

The issues in this case are: (1) whether summary judgment is appropriate at this juncture; (2) whether CMS had the authority to terminate Petitioner's provider agreement on May 9, 2005, without doing a re-survey of Petitioner; and (3) whether I have the authority to require CMS to do a re-survey of Petitioner.

V. Findings of Fact and Conclusions of Law

I set out my findings of fact and conclusions of law, in the numbered sections below, with my rationale for the finding fully stated in the section.

1. Summary judgment is appropriate in this case.

The parties do not disagree about the standards of review for summary judgment motions as set forth in CMS's brief. P. Br. at 4. CMS points out, and I agree, that while Rule 56 of the Federal Rules of Civil Procedure is not directly applicable to proceedings under 42 C.F.R. Part 498, it does provide guidance for the standard of review for summary judgment motions. Summary judgment is generally appropriate when the record reveals that no genuine dispute exists as to any material fact. White Lake Family Medicine, P. C., DAB No. 1951 (2004). The moving party may establish that no genuine issue of material disputed fact exists by demonstrating that no evidence in the record supports a judgment in favor of the non-moving party. Id. In deciding a motion for summary judgment, the administrative law judge (ALJ) must view the evidence in the light most favorable to the non-moving party, drawing all inferences in that party's favor. A dispute between the parties as to the correct conclusion to draw from undisputed facts is not an impediment to the entry of summary judgment. Id. Importantly, in opposing a motion for summary judgment, the non-moving party may not rely on mere denials but must furnish evidence of a dispute concerning a material fact. Ultimately, summary judgment is appropriate where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Id. at 12. I find, as explained below, that Petitioner has furnished no evidence of a dispute concerning a material fact. Furthermore, summary judgment for CMS as a matter of law is appropriate.

2. Petitioner was noncompliant with Medicare conditions of participation during the survey of February 8, 2005.

Petitioner has never disputed the State agency's findings during the surveys. The statement of deficiencies (SOD) for each survey sets forth in detail the findings. CMS Exs. 2, 3. The State agency determined at the February 8, 2005 survey - and CMS concurred - that Petitioner was out of compliance with eight "conditions" of participation. The failed conditions were in the areas of "organization, services, and administration" at 42 C.F.R. � 484.14; "group of professional personnel" at 42 C.F.R. � 484.16; "acceptance of patients, plan of care, and medical supervision" at 42 C.F.R. � 484.18; "skilled nursing services" at 42 C.F.R. � 484.30; "clinical records" at 42 C.F.R. � 484.48; "evaluation of agency programs" at 42 C.F.R. � 484.52; "release of patient identifiable OASIS information" at 42 C.F.R. � 484.11; and "reporting OASIS information" at 42 C.F.R. � 484.20.

The surveyors initially commented that when they arrived at Petitioner's office there were no administrative staff available to provide an accurate roster of skilled admissions and discharges since the last survey, thus impeding the surveyor's ability to follow required survey protocols. CMS Ex. 2, at 1. However, the surveyors made many findings. Below, I note the deficiencies found by the surveyors.

With respect to the condition of "organization, services, and administration," the SOD cites that Petitioner failed to have a readily identifiable and clearly documented line for the delegation of responsibility down to the patient level (CMS Ex. 2, at 5); Petitioner failed to have the governing body arrange for professional advice (Id. at 7); Petitioner's administrator failed to ensure that state and federal regulations were adhered to, organize and direct the agency's ongoing functions, and maintain liaison among the professional personnel (Id. at 8); Petitioner failed to ensure that accurate information was provided to the public (Id. at 10); Petitioner failed to have documented evidence in writing indicating who was responsible for agency operations in the absence of the administrator (Id. at 10-11); Petitioner failed to ensure that skilled nursing services were furnished under the supervision and direction of a registered nurse (RN) (Id. at 12); Petitioner failed to have an RN available at all times during operating hours to provide supervision and direction for the services provided to patients (Id. at 13-14); Petitioner failed to ensure that a qualified RN was available to maintain supervision and direction of services and to oversee the assignment of personnel (Id. at 15); Petitioner failed to include specific explanatory verbiage in therapy contracts (Id. at 16); Petitioner failed to have liaison between personnel furnishing services to ensure that care was effectively coordinated to support the objectives outlined in plans of care for four of 18 patients (Id. at 17);

Petitioner failed to have clinical record documentation establishing that effective interchange, reporting and coordination of patient care occurred for two of 18 patients (Id. at 19); and Petitioner failed to send a written summary report to the physician for two of 18 patients (Id. at 22).

With respect to the condition of "group of professional personnel," the SOD cites that Petitioner failed to develop a group of professional personnel as required by the regulations. CMS Ex. 2, at 25. Petitioner failed to accurately update its policies and procedures to include at least one consumer in the group of professional personnel. Id. at 26. The PAC committee failed to advise Petitioner concerning professional issues and to participate in the evaluation of the agency program. Id. at 27.

With respect to the condition of "acceptance of patients, plan of care, and medical supervision" the SOD cites that Petitioner, during skilled visits, failed to follow a written plan of care established and periodically reviewed by a doctor for 11 of 18 patients (CMS Ex. 2, at 29); failed to develop a complete plan of care for seven of 18 patients (Id. at 36); failed to consult physicians regarding modifications to the plan of care after an evaluation visit for four of 18 patients (Id. at 38); failed to ensure that the total plan of care was reviewed by the attending physician at least once every 60 days for three of 18 patients (Id. at 42); failed to promptly alert the physician to changes for two of 18 patients (Id. at 44); failed to administer drugs and treatment as ordered by the physician for six of 18 patients (Id. at 47); and failed to document signed and dated verbal orders for one of 18 patients (Id. at 50).

With respect to the condition of "skilled nursing services," the SOD cites that Petitioner did not provide skilled nursing services to six of 18 patients under the supervision of a registered nurse (CMS Ex. 2, at 52); did not furnish skilled nursing services in accordance with the plan of care to four of 18 patients (Id. at 58); failed to have a registered nurse make the initial evaluation visit for one of 18 patients (Id. at 61); failed to have a registered nurse regularly re-evaluate patients' nursing needs for four of 18 patients (Id. at 62); failed to have the registered nurse case manager initiate necessary revisions to plans of care for six of 18 patients (Id. at 66); and failed to have the registered nurse prepare accurate detailed clinical notes, coordinate services with other personnel, and inform physicians regarding patient condition (Id. at 67).

With respect to the "clinical records" condition, the SOD cites that Petitioner failed to ensure that the clinical records contained pertinent information in accordance with accepted professional standards, and failed to ensure that clinical record information was safeguarded against loss or unauthorized use. CMS Ex. 2, at 73, 81-82.

For the condition of "evaluation of agency programs," the SOD cites that Petitioner failed to: conduct an overall policy, administrative, and clinical record review (CMS Ex. 2, at 83); evaluate the extent to which its program was appropriate, adequate, effective and efficient (Id. at 84); have evidence that the results of the evaluation were reported to and acted upon by the governing body, board of directors, or advisory board member (Id. at 85); maintain results of the evaluation separately as an administrative record (Id. at 87); review the administrative practices of the agency to determine the extent to which its policies promoted patient care that is appropriate, adequate, effective, and efficient (Id. at 87); at least quarterly have appropriate health professionals review a sample of both active and closed clinical records to determine whether established policies were followed (Id. at 88); or do a continuing review of clinical records for each 60-day period that a patient receives home health services to determine adequacy of the plan of care and appropriateness of continuation of care (Id. at 89).

For the condition of "release of patient identifiable OASIS information," the SOD cited that Petitioner failed to ensure the confidentiality of all patient identifiable information contained in the clinical record, including OASIS data. CMS Ex. 2, at 91-95. And, for the condition of "reporting OASIS information," the SOD cited that Petitioner failed to: encode and demonstrate the ability to transmit OASIS data sets within seven days of completing the OASIS (Id. at 95); assure that the encoded OASIS data in the clinical record accurately reflected the current status at the time of patient assessment (Id. at 97); electronically transmit accurate, completed, encoded, and locked OASIS data for each patient to the State agency or CMS OASIS contractor at least monthly (Id. at 100); or transmit OASIS data for all assessments completed in the previous months in a format that conforms with requirements (Id. at 102).

3. Although Petitioner had averred in its plan of correction for the February 8, 2005 survey - which CMS had accepted - that it would complete the plan items by March 10, 2005, the plan was not implemented by March 23, 2005.

Petitioner indicated in its plan of correction - that was accepted by the State agency - that the items on the plan would be completed by March 10, 2005. CMS Ex. 2. CMS then returned to Petitioner's agency for a re-survey. As part of the State agency's survey of Petitioner completed on March 23, 2005, CMS determined that Petitioner remained out of compliance with five previously cited conditions of participation. ⁽¹⁾ CMS Exs. 3, 4.

When the surveyors arrived at Petitioner's HHA for the re-survey, the surveyors discovered that the director of nursing (DON) had been working for the agency only about three weeks. They found one registered nurse in the office who was going through her first day of orientation and two LPN case coordinators, one non-licensed staffing coordinator, and clerical support staff. Neither the administrator, alternate administrator, nor alternate DON was present. The DON reported that she met with the administrator monthly and spoke with the owner weekly via telephone. CMS Ex. 3, at 2-3. The surveyors found there were no plans of care in the office for six patients reviewed and that the new DON was only in the midst of reviewing all plans of care and many of those she had reviewed so far did not have physician-signed orders. Id. at 4-5. Moreover, the surveyors determined that, even though Petitioner had received the detailed report of its many cited deficiencies, the HHA's advisory board and/or governing body had not held a meeting since the recertification survey and the HHA was still operating with a computer system that was identified as having many problems. Numerous plans of care continued to be generated with the wrong agency name, address, and provider number. Id. at 11. A surveyor was given information that one staff in-service meeting was held on March 8, 2005, but Petitioner had not provided a sign-in sheet and no minutes of the meeting were kept. The surveyors also learned that the new DON had no documented home health experience or supervisory experience. Id. at 14-15.

Because Petitioner has not disputed any of the survey findings from February 8 or March 23, I can only infer that CMS was correct in concluding that Petitioner was substantially noncompliant with federal regulations at both surveys and that Petitioner's deficiencies were "of such character as to substantially limit the provider's . . . capacity to furnish adequate care or which adversely affect the health and safety of patients . . . ." 42 C.F.R. � 488.24(b).

4. CMS was not required to again survey Petitioner's HHA before terminating Petitioner's provider agreement.

The applicable statute provides that if an HHA is no longer in compliance with federal requirements and the HHA's deficiencies present immediate jeopardy to the health and safety of the patients to whom the HHA provides services, the Secretary shall take immediate action to remove the jeopardy, appoint temporary management, or terminate the HHA's Medicare certification. Section 1891(e)(1) of the Act. For neither survey at issue did CMS determine that Petitioner's deficiencies presented immediate jeopardy to its patients. The Act further provides that if the Secretary determines that an HHA is deficient, but that the deficiencies do not pose immediate jeopardy, "the Secretary may (for a period not to exceed 6 months) impose intermediate sanctions developed pursuant to subsection (f), in lieu of terminating the certification of the agency." Section 1891(e)(2) of the Act.

One ALJ at the Departmental Appeals Board (Board) has interpreted the statute as meaning that if the HHA has no immediate jeopardy deficiencies on the actual date of termination, CMS must impose intermediate sanctions rather than termination; that is, if the HHA can prove its abatement of immediate jeopardy prior to the proposed termination date, the termination is not authorized. See Act for Health, DAB CR1177 (2004). I do not agree with the ALJ's interpretation in Act for Health. Section 1891(e)(2) of the Act says the Secretary "may" impose intermediate sanctions, not that the Secretary "must" impose intermediate sanctions. As generally defined, if a person "may" do something, the person has authority or permission to do the act. Merriam-Webster's Collegiate Dictionary (10th Edition, 2001). I conclude that CMS has the authority to decide whether it will terminate an HHA agreement if the HHA is noncompliant with Medicare conditions of participation or, if the noncompliance presents no immediate jeopardy, to impose intermediate sanctions instead. See Beechwood Sanitarium, DAB No. 1906, at 27 (2004). ⁽²⁾ By regulation, CMS's choice of alternative sanction or remedy to be imposed on a provider or supplier is not an initial determination that can be appealed pursuant to the process set out in 42 C.F.R. Part 498. 42 C.F.R. � 498.3(d)(14). Further, I may consider whether CMS had authority to impose a remedy, but I do not have authority to review whether the remedy selected, if authorized, was too harsh or otherwise inadvisable. Rosewood Living Center, DAB No. 2019 (2006).

I conclude that even if, as claimed by Petitioner, it had reached substantial compliance by the proposed date of termination, CMS could terminate Petitioner's provider agreement. Certainly with respect to skilled nursing facilities, the Board has expressed that the dispositive issue is not whether a facility came back into substantial compliance before the effective date of the termination, but whether the facility was in substantial compliance as of the day that the survey was completed. Rosewood Living Center, DAB No. 2019. I see nothing in the regulations regarding HHAs that would lead to a different conclusion for HHAs. 42 C.F.R. �� 488.28(a), (b). In Rosewood, the Board concluded that because CMS had adequate legal grounds to terminate the facility based on the surveys, it was immaterial whether the facility took steps after these surveys to bring itself back into substantial compliance.

The regulations provide that

[i]f a provider or supplier is found to be deficient with respect to one or more of the standards in the conditions of participation or conditions for coverage, it may participate in or be covered under the [Medicare program] only if the facility has submitted an acceptable plan of correction for achieving compliance within a reasonable period of time acceptable to the Secretary.

42 C.F.R. � 488.28(a). Petitioner did not submit a plan of correction after the March 23, 2005 survey that was acceptable to CMS. The regulations suggest that a "reasonable" period of time for a provider to take the steps needed to achieve compliance is within 60 days of being notified of the deficiencies. 42 C.F.R. � 488.28(d). In this case, the first survey was completed on February 8, 2005, and Petitioner was notified of the deficiencies on February 17, 2005. Petitioner was given an opportunity to correct its deficiencies. CMS accepted both the content and timing of Petitioner's proposed plan of correction; e.g., corrections to be implemented by March 10, 2005. Unfortunately, when the surveyors returned to Petitioner's HHA on March 23, 2005, Petitioner was still out of compliance with five conditions of participation. About 60 days after Petitioner's first survey, on April 8, 2005, CMS notified Petitioner that it would terminate Petitioner's provider agreement on May 9, 2005. Petitioner had approximately 60 days to come into compliance, but it filed another plan of correction with a proposed compliance date of April 23, 2005.

I see no reason why CMS, faced with a previously failed plan of correction and implementation date, should have concluded that Petitioner's claims on another plan merited yet another re-survey. Although Petitioner now claims that "within two weeks of March 23, 2005 the new processes were fully implemented" (P. Br. at 4), and that it was in compliance, Petitioner has proffered no evidence to that effect.

Petitioner contends that, because this is a summary judgment motion and I must view the evidence in the light most favorable to it as the non-moving party, that I must assume for purposes of this motion that Petitioner did indeed achieve compliance by April 8, 2006 (P. Br. at 4.). To the contrary, in opposing a motion for summary judgment, the non-moving party may not rely on mere allegations but must furnish evidence of a dispute concerning a material fact. Petitioner has provided nothing other than an allegation from which I could infer that it achieved compliance by April 8, 2005. In both the letters of April 8, 2005, and April 26, 2005, CMS invited Petitioner to provide information to CMS that it had achieved compliance. Instead, Petitioner, after April 26, wrote to CMS that it has "made significant progress toward complete compliance. . ." and "[i]t is our goal" to be in full compliance" and "if that survey were conducted today (April 28, 2005) the surveyors would find substantial improvement." CMS Ex. 5, at 1; CMS Ex. 7, at 2. Rather than providing evidence from which I could possibly infer that Petitioner had returned to compliance by April 8, 2006 (or even the termination date), Petitioner's statements indicate that Petitioner was working on coming into compliance but was not yet fully compliant. I conclude that CMS had no responsibility to allow Petitioner more time to fulfill its commitment to meet federal requirements for Medicare participation.

Petitioner contends that CMS was required to survey Petitioner yet again. CMS notified Petitioner on April 8, 2005, that it intended to involuntarily terminate Petitioner's Medicare provider agreement effective May 9, 2006. CMS Ex. 4. The notice letter told Petitioner that

[i]f you believe that these deficiencies have been corrected, please notify this office immediately. You should include a description of the steps you have taken to correct each deficiency. Correction must be verified by an on-site evaluation.

Id. (emphasis added).

Petitioner assumes from CMS's notification quoted above that it had a right to another survey and that CMS failed to follow its own stated policies by not again surveying the Petitioner. I find that CMS's notice was inviting a statement of compliance from Petitioner and was not inviting a plan of correction with a stated future compliance date. But see CMS Br. at 20. On April 12, 2005, Petitioner forwarded another plan of "correction" and CMS reviewed it, but, on April 26, 2005, CMS found it to be unacceptable. "Your allegation of compliance does not show evidence that you have a HHA that is operational with adequate staff and is currently in compliance with federal regulations." CMS Ex. 6, at 1. CMS added that "[i]f you believe that these deficiencies have been corrected, please notify this office immediately." Id. at 2. As noted above, Petitioner provided no evidence to CMS thereafter that it had reached compliance and has proffered no evidence to me that even raises its compliance on the termination date as a material fact in dispute.

5. ALJs in Board cases do not have authority to do equity.

Even if I were to find that equity required Petitioner to have another survey before termination - which I do not - I have no authority to do equity. My authority to hear and decide a case involving CMS is limited to that which the Secretary has delegated through regulations. The Secretary has not delegated to ALJs the authority to decide whether any equitable principles apply to the merits of cases involving CMS. 42 C.F.R. Part 498. I have no authority to require CMS to do another survey of Petitioner's HHA. Moreover, Petitioner's arguments about its affiliated HHAs are not relevant here. Nor are Petitioner's claims relevant about money wasted by CMS or money saving proposals by Petitioner. The only relevant issue in this case - to which Petitioner concedes - is the fact of and scope of its deficiencies found during the surveys of February 8 and March 23, 2005.

VI. Conclusion

CMS was authorized to terminate Petitioner's Medicare provider agreement as of May 9, 2005.

Anne E. Blair

Administrative Law Judge

1. Petitioner was deemed out of compliance with the conditions for: organization, services and administration; acceptance of patients, plan of care, and medical supervision; skilled nursing services; clinical records; and reporting OASIS information. CMS Ex. 4.

2. Similar regulatory language for skilled nursing facilities has been interpreted by the Board. CMS may act immediately to terminate a SNF based on a survey finding that the SNF is not in substantial compliance, without affording an opportunity to the SNF to correct the noncompliance. See Beechwood, DAB No. 1906; 59 Fed. Reg. 56,116, 56,213 (Nov. 10, 1994) ("Neither immediate jeopardy nor a full 6 months of noncompliance have to have occurred in order for the State or [CMS] to terminate a provider agreement").