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                              Genuine Love In Home Care, DAB CR6387 (2023)
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Genuine Love In Home Care, DAB CR6387 (2023)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Genuine Love In Home Care
(NPI No.: 1316665177),
Petitioner,

v.

Centers For Medicare & Medicaid Services.
Docket No. C-23-504Decision No. CR6387November 2, 2023

        
              
    

      DECISION

The Medicare enrollment application of Petitioner, Genuine Love In Home Care, is denied pursuant to 42 C.F.R. § 424.530(a)(1).1

I.  Background

Palmetto GBA, a Medicare administrative contractor (MAC) for the Centers for Medicare & Medicaid Services (CMS), notified Petitioner by letter dated January 17, 2023, that Petitioner’s October 7, 2022 application to enroll in Medicare as a home health agency

Page 2

(HHA) was denied.  The MAC stated that the denial was authorized by 42 C.F.R. § 424.530(a)(1) because Petitioner had not been issued a state license to provide home health services by the State of Mississippi.  The MAC advised Petitioner that it could file a corrective action plan (CAP) and request reconsideration.  CMS Exhibit (Ex.) 1 at 8-12, 19-25.

Petitioner submitted a reconsideration request dated March 15, 2023, that CMS treated as a combined CAP and reconsideration request.  CMS Ex. 1 at 6-18.  On April 13, 2023, the MAC issued a reconsidered determination rejecting Petitioner’s CAP and upholding the denial of Petitioner’s enrollment pursuant to 42 C.F.R. § 424.530(a)(1).  CMS Ex. 1 at 1-5.

On May 31, 2023, Petitioner filed a request for hearing before an administrative law judge (ALJ).  On June 1, 2023, the case was assigned to me for hearing and decision, and I issued an acknowledgment and my standing order (Standing Order).

On July 10, 2023, CMS filed a motion for summary judgement and CMS Exs. 1 and 2.  On August 10, 2023, Petitioner filed a response (P. Br.).  On August 30, 2023, CMS waived filing a reply.  Petitioner did not object to my consideration of CMS Exs. 1 and 2 and they are admitted as evidence.

II.  Discussion

**A.  Applicable Law**

Sections 1811 through 1821 of the Social Security Act (the Act) (42 U.S.C. §§ 1395c‐1395i-5) establish the hospital insurance benefits program for the aged and disabled known as Medicare Part A.  Section 1831 of the Act (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.2  Administration of both the Part A and B programs is through the MACs.  Act §§ 1816(a), 1842(a) (42 U.S.C. §§ 1395h(a), 1395u(a)).  Payment under the programs for services rendered to Medicare-eligible beneficiaries may

Page 3

only be made to eligible providers of services and suppliers.3  Act §§ 1815, 1817, 1834(j)(1), 1835(a), 1842(h)(1) (42 U.S.C. §§ 1395g, 1395i, 1395m(j)(1), 1395n(a), 1395u(h)(1)).  Petitioner sought to enroll in Medicare as an HHA, a type of provider.  CMS Ex. 1 at 25.

The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for the enrollment in Medicare of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations, such as denial of enrollment and revocation of enrollment and billing privileges.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).

Pursuant to 42 C.F.R. § 424.505, a provider must be enrolled in the Medicare program and be issued a billing number to have billing privileges and be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.  The Act sets forth requirements for HHAs participating in the Medicare and Medicaid programs and authorizes the Secretary to promulgate regulations implementing the statutory provisions.  Act §§ 1861(m), (o), and 1891 (42 U.S.C. §§ 1395x(m), (o), and 1395bbb).  The Secretary requires by regulation that each enrollment application be complete and include all required supporting documentation including, but not limited to, all applicable federal and state licenses, certifications, and documentation associated with regulatory and statutory requirements necessary to establish a provider’s or supplier’s eligibility to furnish Medicare covered items or services to beneficiaries in the Medicare program.  42 C.F.R. § 424.510(d)(1), (2)(iii).

The Secretary has delegated the authority to accept or deny enrollment applications to CMS.  Pursuant to the Secretary’s regulations, CMS may deny a provider’s or supplier’s enrollment application for any of the reasons set out in 42 C.F.R. § 424.530(a).  In this case, the MAC denied Petitioner’s application under 42 C.F.R. § 424.530(a)(1) because Petitioner was not in compliance with the standards and requirements in 42 C.F.R. § 424.510(d).  Specifically, Petitioner did not submit with its application a license to

Page 4

provide home health services in Mississippi as required by 42 C.F.R. § 424.510(d)(2)(iii)(A).  CMS Ex. 1 at 2-3.

A prospective provider whose enrollment application is denied may request reconsideration and review as provided by 42 C.F.R. pt. 498.  42 C.F.R. § 424.545(a).  A prospective provider submits a written request for reconsideration to CMS or its contractor.  42 C.F.R. § 498.22(a), (b).  CMS or its contractor must give notice of its reconsidered determination to the prospective provider, giving the reasons for its determination, specifying the conditions or requirements the prospective provider failed to meet, and advising of the right to an ALJ hearing.  42 C.F.R. § 498.25(a).  If the decision on reconsideration is unfavorable to the prospective provider, the prospective provider has the right to request a hearing by an ALJ and further review by the Board.  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), 498.5(*l*).  A hearing on the record, also known as an oral hearing, is required under the Act.  *Crestview Parke Care Ctr. v. Thompson*, 373 F.3d 743, 748-51 (6th Cir. 2004).  The prospective provider bears the burden to demonstrate that it meets enrollment requirements with documents and records.  42 C.F.R. § 424.545(c).

The hearing before an ALJ is a de novo proceeding.  *Anesthesiologists Affiliated*, *et al.*, DAB CR65 (1990), aff’d, 941 F.2d 678 (8th Cir. 1991); *Emerald Oaks*, DAB No. 1800 at 11 (2001); *Beechwood Sanitarium*, DAB No. 1906 (2004); *Cal Turner Extended Care*, DAB No. 2030 (2006); *The Residence at Salem Woods*, DAB No. 2052 (2006).  The Board has previously ruled upon the allocation of the burden of persuasion and the burden of coming forward with the evidence in cases subject to 42 C.F.R. pt. 498.  The Board has held that CMS must make a prima facie showing of the basis for its action.  “Prima facie” means that the evidence is “(s)ufficient to establish a fact or raise a presumption unless disproved or rebutted.”  Black’s Law Dictionary 1228 (8th ed. 2004); *see also* *Hillman Rehabilitation Ctr.*, DAB No. 1611 at 8 (1997), *aff’d* *Hillman Rehabilitation Ctr. v. U.S. Dept. of Health and Human Services*, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999).  To prevail, a petitioner must overcome CMS’s showing by a preponderance of the evidence.  *Batavia Nursing and Convalescent Ctr.*, DAB No. 1904 (2004); *Batavia Nursing and Convalescent Inn*, DAB No. 1911 (2004) *aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson*, 129 Fed. Appx. 181 (6th Cir. 2005); *Emerald Oaks*, DAB No. 1800 (2001); *Cross Creek Health Care Ctr.*, DAB No. 1665 (1998); *Hillman Rehabilitation Ctr.*, DAB No. 1611.

**B.  Issues******

Whether there is a basis to deny Petitioner’s application to enroll in the Medicare program.

**C.  Findings of Fact, Conclusions of Law, and Analysis**

Page 5

My conclusions of law are set forth in bold text followed by my findings of undisputed fact and analysis.

**1.  Summary judgement is appropriate in this case.**

Petitioner is entitled to a hearing on the record before an ALJ under the Act.  Act §§ 205(b), 1866(h)(1), (j)(8) (42 U.S.C. §§ 405(b), 1395cc(h)(1), (j)(8)); *Crestview*, 373 F.3d at 748-51 (6th Cir. 2004).  A party may waive appearance at an oral hearing but must do so affirmatively in writing.  42 C.F.R. § 498.66.  In this case, Petitioner has not waived the right to oral hearing.  Accordingly, disposition on the written record alone is not permissible, unless CMS’s motion for summary judgement has merit.

Summary judgement is not automatic upon request but is limited to certain specific conditions.  The Secretary’s regulations that establish the procedure for adjudicating Petitioner’s case are at 42 C.F.R. pt. 498.  42 C.F.R. §§ 424.545(a), 498.3(b)(17), 498.5(*l*).  The regulations do not establish a summary judgement procedure or recognize such a procedure.  However, the Board has long accepted that summary judgement is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  *See, e.g.*, *Ill. Knights Templar Home*, DAB No. 2274 at 3-4 (2009); *Garden City Med. Clinic*, DAB No. 1763 (2001); *Everett Rehab. & Med. Ctr.*, DAB No. 1628 (1997).  The Federal Rules of Civil Procedure do not apply in administrative adjudications such as this.  However, the Board has accepted that Rule 56 of the Federal Rules of Civil Procedure and related court decisions provide useful guidance for determining whether summary judgement is appropriate.  The parties were advised by the Standing Order, paragraph G, that a summary judgement procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and that court decisions related to Rule 56 may be applied.

Summary judgement is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgement as a matter of law.  In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  The party requesting summary judgement bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgement as a matter of law.  Generally, the non-movant may not defeat an adequately supported summary judgement motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven.  *Mission Hosp. Reg’l Med. Ctr.*, DAB No. 2459 at 5 (2012) (and cases cited therein); *Experts Are Us, Inc.*, DAB No. 2452 at 5 (2012) (and cases cited therein); *Senior Rehab. & Skilled Nursing Ctr.*, DAB No. 2300 at 3 (2010) (and cases cited therein); *see also Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 248 (1986).

Page 6

The standard for deciding a case on summary judgement, and an ALJ’s decision-making in deciding a summary judgement motion, differ from that used in resolving a case after a hearing.  On summary judgement, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record.  Rather, on summary judgement, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true.  *Holy Cross Vill. at Notre Dame, Inc.*, DAB No. 2291 at 5 (2009).  The Board also has recognized that on summary judgement it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.  *Dumas Nursing & Rehab**.**, L.P.*, DAB No. 2347 at 5 (2010).  The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden.  However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498.  *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904 (2004), *aff’d*,*Batavia Nursing & Convalescent Ctr. v. Thompson*, 129 F. App’x 181 (6th Cir. 2005).

There is no genuine dispute as to any material fact pertinent to denial of enrollment under 42 C.F.R. § 424.530(a)(1) that requires a trial.  Petitioner’s arguments must be resolved against it as matters of law.  Accordingly, I conclude that summary judgement is appropriate.

**2.  Petitioner must have a license issued by the State of Mississippi to operate as an HHA in Mississippi.  Miss. Code Ann. § 41-71-3.**

**3.  To enroll in Medicare as an HHA, Petitioner must submit with its enrollment application an HHA license issued by the State of Mississippi.  42 C.F.R. § 424.510(d)(2)(iii).**

**4.  Petitioner failed to submit with its enrollment application or as part of its corrective action plan an HHA license issued by the State of Mississippi, which is a basis to deny Petitioner enrollment in Medicare pursuant to 42 C.F.R. § 424.530(a)(1).**

**a.  Undisputed Facts**

The material facts are undisputed.

Petitioner wants to enroll in Medicare with billing privileges as an HHA providing home health services.  On October 7, 2022, the MAC received Petitioner’s application (CMS-855A) to enroll in Medicare as an HHA.  The electronic application indicates that

Page 7

Petitioner uploaded or mailed no supporting documents, such as health care licenses.  CMS Ex. 1 at 30.

On January 17, 2023, the MAC issued its initial determination denying Petitioner’s enrollment as an HHA.  The MAC cited 42 C.F.R. § 424.530(a)(1) as authority for the denial because Petitioner had no license in Mississippi to provide home health services.  The MAC informed Petitioner of the right to submit a CAP and request for reconsideration.  CMS Ex. 1 at 8-12.

Petitioner filed a CAP and request for reconsideration dated March 15, 2023.  CMS Ex. 1 at 6-18.  Petitioner filed with its CAP and request for reconsideration evidence that Petitioner was formed as a limited liability corporation in the State of Mississippi in December 2021 (CMS Ex. 1 at 13, 15), and evidence that Petitioner was issued an Employer Identification Number (EIN) by the Internal Revenue Service (IRS) (CMS Ex. 1 at 14).  Petitioner’s owner asserted in the CAP and request for reconsideration that the documents submitted were all that were needed to provide care in Mississippi and acknowledged that the documents were not submitted with the application.  CMS Ex. 1 at 7.

A CMS hearing officer upheld denial of Petitioner’s enrollment as an HHA on April 13, 2023.  CMS Ex. 1 at 1-5.  The hearing officer explained that Petitioner was required by 42 C.F.R. § 424.510(d)(1) to submit a complete application to enroll including supporting documents.  The hearing officer explained that to enroll in Medicare as an HHA, Petitioner had to have an HHA license from the State of Mississippi, which Petitioner has not produced.  The hearing officer denied Petitioner’s CAP because Petitioner failed to correct the deficiency of having no state HHA license.  The hearing officer also concluded that, absent a state issued HHA license, the initial determination denying Petitioner’s Medicare enrollment was correct.  CMS Ex. 1 at 2-3.

Petitioner has not presented evidence to me that it was granted a license by the Mississippi State Department of Health to operate as an HHA providing home health services.

**b.  Analysis**

Petitioner applied to enroll in the Medicare program as a new HHA operating in the State of Mississippi.  To enroll as an HHA, Petitioner must meet the requirements of 42 C.F.R. § 424.510(d).  Petitioner must****submit a complete and truthful enrollment application and supporting documentation to the MAC.  42 C.F.R. § 424.510(d)(1).  Supporting documents that must be submitted include any required state license.  42 C.F.R. § 424.510(d)(2)(iii)(A).  The hearing officer upheld denial of Petitioner’s enrollment in Medicare as an HHA because a home health agency operating in the State of Mississippi must have a license issued by the Mississippi State Department of Health, and Petitioner

Page 8

did not submit a state license.  Accepting the facts asserted by Petitioner as true for purposes of summary judgment and drawing inferences favorable to Petitioner, it is nevertheless necessary to decide this case against Petitioner as a matter of law.  Petitioner has submitted no Mississippi license to operate as a home health agency providing home health services.  Accordingly, there is a basis to deny Petitioner’s enrollment in Medicare as an HHA pursuant to 42 C.F.R. § 424.530(a)(1).

This case may reflect the confusion that exists for many regarding the difference between services referred to as “home care” and skilled services referred to as “home health care.”  In Petitioner’s brief, Petitioner’s owner indicates that Petitioner has been providing care for two years and that Petitioner has “everything [Petitioner] is suppose (sic) to have to operate a successful home care agency.”  P. Br. at 1-2.  Petitioner refers to the fact that it is in good standing as an LLC in Mississippi, it has been issued a National Provider Identifier (NPI) by CMS, and it has an EIN issued by the IRS.  Petitioner indicates that it has 15 potential clients it cannot serve because they are covered by Medicare.  P. Br. at 1-2.  I accept these asserted facts as true for purposes of summary judgment.

Petitioner’s concern is that it cannot be paid to provide services to the 15 clients covered by Medicare, which prompted Petitioner to file an application to enroll in Medicare as an HHA.  Petitioner never explains what services it provides to existing clients or that it hopes to provide to Medicare beneficiaries.  However, because Petitioner has been unable or unwilling to present a license to provide home health care services in Mississippi, I infer that Petitioner provides unskilled home care, which may include such services as cleaning, meal preparation, transportation, and companionship, for example, rather than skilled home health care for which a license is required.  My inference is supported by the fact that it is a misdemeanor criminal offense in Mississippi, subject to a fine of $500 per day, to establish or operate a home health agency or conduct the business of a home health agency without the license required under Mississippi law.  Miss. Code Ann. § 41-71-21.  Because Petitioner claims to have provided services to clients for two years, it is more likely than not that Petitioner has not been providing home health care services, rather than Petitioner has simply not been caught doing so by the State of Mississippi.  CMS checked with the Mississippi Department of Health regarding Petitioner’s status.  The response, which further supports my inference, is that Petitioner provides “non-medical home care” subject to supervision by the Mississippi Division of Medicaid, and Petitioner is not licensed in Mississippi to provide skilled home health care.  CMS Ex. 2 at 1.

Medicare Parts A and B cover home health services provided by a home health agency properly enrolled in Medicare.  Act §§ 1812(a)(3), 1832(a)(2)(A).4  The following

Page 9

extracts from the federal and state statutes are provided for the benefit of Petitioner.  Mississippi defines a home health agency as follows:

(a) “Home health agency” means a public or privately owned agency or organization, or a subdivision of such an agency or organization, properly authorized to conduct business in Mississippi, which is primarily engaged in providing to individuals, at the written direction of a licensed physician, nurse practitioner, physician assistant or clinical nurse specialist, in the individual’s place of residence, skilled nursing services provided by or under the supervision of a registered nurse licensed to practice in Mississippi, and one or more of the following services or items:

(i) Physical, occupational or speech therapy;

(ii) Medical social services;

(iii) Part-time or intermittent services of a home health aide;

(iv) Other services as approved by the licensing agency;

(v) Medical supplies, other than drugs and biologicals, and the use of medical appliances; or

(vi) Medical services provided by an intern or resident in training at a hospital under a teaching program of such hospital.

Miss. Code Ann. § 41-71-1(a).  In Mississippi, a home health agency must have a license issued by the State Department of Health.  Miss. Code Ann. §§ 41-71-1(b), 41-71-3.

The federal Medicare program covers home health services, which are defined as follows:

(m) The term “home health services” means the following items and services furnished to an individual, who is under the care of a physician, by a home health agency or by others under arrangements with them made by such agency, under a plan (for furnishing such items and services to such individual) established and periodically reviewed by a

Page 10

physician, which items and services are, except as provided in paragraph (7), provided on a visiting basis in a place of residence used as such individual’s home—

(1) part-time or intermittent nursing care provided by or under the supervision of a registered professional nurse;

(2) physical or occupational therapy or speech-language pathology services;

(3) medical social services under the direction of a physician;

(4) to the extent permitted in regulations, part-time or intermittent services of a home health aide who has successfully completed a training program approved by the Secretary;

(5) medical supplies (including catheters, catheter supplies, ostomy bags, and supplies related to ostomy care, and a covered osteoporosis drug (as defined in subsection (kk)), but excluding other drugs and biologicals) and durable medical equipment and applicable disposable devices (as defined in section 1834(s)(2)) while under such a plan;[496]

(6) in the case of a home health agency which is affiliated or under common control with a hospital, medical services provided by an intern or resident-in-training of such hospital, under a teaching program of such hospital approved as provided in the last sentence of subsection (b); and

(7) any of the foregoing items and services which are provided on an outpatient basis, under arrangements made by the home health agency, at a hospital or skilled nursing facility, or at a rehabilitation center which meets such standards as may be prescribed in regulations, and—

(A) the furnishing of which involves the use of equipment of such a nature that the items and

Page 11

services cannot readily be made available to the individual in such place of residence, or

(B) which are furnished at such facility while he is there to receive any such item or service described in clause (A), but not including transportation of the individual in connection with any such item or service;

excluding, however, any item or service if it would not be included under subsection (b) if furnished to an inpatient of a hospital and home infusion therapy (as defined in subsection (iii)(i)). For purposes of paragraphs (1) and (4), the term “part–time or intermittent services” means skilled nursing and home health aide services furnished any number of days per week as long as they are furnished (combined) less than 8 hours each day and 28 or fewer hours each week (or, subject to review on a case-by-case basis as to the need for care, less than 8 hours each day and 35 or fewer hours per week). For purposes of sections 1814(a)(2)(C) and 1835(a)(2)(A), “intermittent” means skilled nursing care that is either provided or needed on fewer than 7 days each week, or less than 8 hours of each day for periods of 21 days or less (with extensions in exceptional circumstances when the need for additional care is finite and predictable).[497]

Act § 1861(m).

Under Medicare, a home health agency is defined as follows:

(o) The term “home health agency” means a public agency or private organization, or a subdivision of such an agency or organization, which—

(1) is primarily engaged in providing skilled nursing services and other therapeutic services;

(2) has policies, established by a group of professional personnel (associated with the agency or organization), including one or more physicians and one or more registered professional nurses, to govern the services (referred to in paragraph (1)) which it provides, and

Page 12

provides for supervision of such services by a physician or registered professional nurse;

(3) maintains clinical records on all patients;

(4) in the case of an agency or organization in any State in which State or applicable local law provides for the licensing of agencies or organizations of this nature, (A) is licensed pursuant to such law, or (B) is approved, by the agency of such State or locality responsible for licensing agencies or organizations of this nature, as meeting the standards established for such licensing;

(5) has in effect an overall plan and budget that meets the requirements of subsection (z);

(6) meets the conditions of participation specified in section 1891(a) and such other conditions of participation as the Secretary may find necessary in the interest of the health and safety of individuals who are furnished services by such agency or organization;

(7) provides the Secretary with a surety bond—

(A) in a form specified by the Secretary and in an amount that is not less than the minimum of $50,000; and

(B) that the Secretary determines is commensurate with the volume of payments to the home health agency; and

(8) meets such additional requirements (including conditions relating to bonding or establishing of escrow accounts as the Secretary finds necessary for the financial security of the program) as the Secretary finds necessary for the effective and efficient operation of the program;

except that for purposes of part A such term shall not include any agency or organization which is primarily for the care and treatment of mental diseases. The Secretary may waive

Page 13

the requirement of a surety bond under paragraph (7) in the case of an agency or organization that provides a comparable surety bond under State law.

Act § 1861(o).

To be a home health agency providing home health services in Mississippi, Petitioner must have a license issued by the Mississippi State Department of Health.  To enroll in Medicare as a home health agency to be qualified for reimbursement for home health services, Petitioner must submit with its application a home health agency license issued by the Mississippi State Department of Health.  42 C.F.R. § 424.510(d)(2)(iii)(A).

Petitioner has not asserted or offered evidence to show that it has the required license.

To the extent that Petitioner’s argument may be viewed as a request for equitable relief, I have no authority to grant such relief.  *US Ultrasound*, DAB No. 2302 at 8 (2010).  I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid.  *1866ICPayday.com, L.L.C.*, DAB No. 2289 at 14 (2009).

Accordingly, I conclude there is a basis to deny Petitioner’s enrollment in Medicare as a home health agency pursuant to 42 C.F.R. § 424.530(a)(1), because Petitioner is noncompliant with the requirement to submit with its application the home health agency license required by the State of Mississippi.

III.  Conclusion

For the foregoing reasons, I conclude there was a basis to deny Petitioner’s enrollment application to enroll in Medicare pursuant to 42 C.F.R. § 424.530(a)(1).

Endnotes

1 Citations are to the 2022 revision of the Code of Federal Regulations (C.F.R.), which was in effect at the time of the initial determination, unless otherwise indicated.  An appellate panel of the Departmental Appeals Board (Board) concluded in *Mark A. Kabat, D.O.*, DAB No. 2875 at 9-11 (2018) that the applicable regulations are those in effect at the time of the initial determination.  The Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination.  *Neb Group of Ariz. LLC*, DAB No. 2573 at 7 (2014).

2 In the case of Medicare-eligible beneficiaries not enrolled in Medicare Part B, home health services are paid under Part A subject to the limitations specified in section 1812(a)(3) of the Act (42 U.S.C. § 1395d(a)(3)).  Home health services are also covered under Medicare Part B for those enrolled.  Act § 1832(a)(2)(A) (42 U.S.C. § 1395k(a)(2)(A)).  Thus, HHAs, which are defined as providers by section 1861(u) of the Act (42 U.S.C. § 1395x(u)), may be reimbursed under Part A or Part B depending upon the facts of the particular case.

3 A “supplier” furnishes services under Medicare and includes physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.”  Act § 1861(d) (42 U.S.C. § 1395x(d)).  A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) and 1835(e) of the Act (42 U.S.C. §§ 1395f(g), 1395n(e)).  Act § 1861(u) (42 U.S.C. § 1395x(u)).  The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes.

4 Some Medicare Part C plans may cover some non-skilled home care services.
  
          /s/
        Keith W. Sickendick

                      Administrative Law Judge Back to top
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