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

Universal Health Provider Corp.,
(PTAN: 10-9572),

Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-12-1296
Decision No. CR2747

Date: April 9, 2013

DECISION

Petitioner, Universal Health Provider Corp., a home health agency, appeals a
reconsideration decision dated August 29, 2012. The undisputed evidence establishes
that Petitioner was not in compliance with Medicare program requirements involving
proper home health care certification. As a consequence, I grant the motion of the
Centers for Medicare and Medicaid Services (CMS) for summary judgment and uphold
CMS’s determination to revoke Petitioner’s Medicare enrollment and billing privileges.

I. Background and Procedural History

By letter dated May 25, 2012, Palmetto GBA (Palmetto), a CMS contractor, informed
Petitioner that CMS was revoking Petitioner’s Medicare billing privileges and
terminating Petitioner’s Medicare provider agreement, effective June 24, 2012, because
Petitioner failed to comply with the Medicare enrollment requirements pursuant to 42
C.F.R. § 424.535(a)(1). CMS Exhibit (CMS Ex.) 3, at 1-2. Palmetto also informed
Petitioner that it was establishing a Medicare re-enrollment bar for a period of three
years. CMS Ex. 3, at 2. Specifically, the revocation letter stated that:

Under 42 CFR 424.535(a)(1) CMS may revoke a currently enrolled

provider or supplier’s Medicare billing privileges and any corresponding
provider agreement when the suppliers are not in compliance with the
enrollment requirements specifically outlined in Section 15(a)5

(Certification Statement for 855A application) that states: “I will not
knowingly present or cause to be presented a false or fraudulent claim for
payment by Medicare, and I will not submit claims with deliberate ignorance
or reckless disregard of their truth or falsity.” The supplier submitted claims
for payment that were based upon orders, treatment plans, or other documents
some of which were created by the enrolled supplier that contain the altered or

forged signature of the treating physician.
CMS Ex. 3, at 1.

Petitioner timely filed a request for reconsideration of CMS’s decision to revo!

Petitioner’s noncompliance with Medicare enrollment requirements. CMS Ex.

this case has been reviewed and the decision has been made in accordance wit

at 4.

Petitioner then filed a hearing request (HR) with the Civil Remedies Division o

issued on October 3, 2012, CMS filed its pre-hearing exchange, incorporating a

brief, CMS stated that:

This brief serves as notice of CMS’ amendment of its basis for the
revocation .... CMS is proceeding on the basis of the

same regulation, 42 C.F.R. § 424.535(a)(1), and on the same theory, i.e.,
[Petitioner’s] noncompliance with the requirements on the enrollment
application. CMS amends its basis for the revocation only insofar as to
characterize Petitioner’s behavior as a failure to maintain the required

ec

Petitioner’s Medicare enrollment and billing privileges. CMS Ex. 3, at 3. On August 29,
2012, CMS issued a reconsidered determination that upheld the revocation based on

3, at 3-5.

In the reconsideration decision, CMS states that “[a]ll of the documentation in the file for

Medicare

guidelines as outlined in 42 CFR § 424.535(a)(1). Specifically, [Petitioner] has not
provided evidence to show that it did not submit false or fraudulent claims.” CMS Ex. 3,

the

Departmental Appeals Board on September 27, 2012, and the case was assigned to me for
earing and decision. In accordance with my Acknowledgment and Pre-hearing Order

Motion

for Summary Judgment and brief (CMS Br.), with eight exhibits (CMS Exs. 1-8). In its

conformance to the Medicare laws, regulations, and program instructions

that apply to this provider....

CMS Br. at 2 (internal quotation omitted).
Specifically, CMS claims that home health agencies may only receive Medicare
reimbursement for services provided to beneficiaries who are under the care of a
physician and that the physician must have a face-to-face encounter with the beneficiary
and certify the necessity of the home health services. 42 C.F.R. § 424.22(a); Medicare
Benefit Policy Manual, 100-101, § 30.5.1.1. CMS claims that Petitioner did not meet
these Medicare requirements with regard to the claims Petitioner submitted for

43 beneficiaries. CMS Br. at 9.

Petitioner then filed a Motion for Summary Judgment and brief (P. Br.), with 44 exhibits
(P. Exs. 1-25; P. Exs. A-F, Fl, F2, and G-Q). In Petitioner’s Motion for Summary
Judgment, Petitioner claims CMS has made a “complete 180° change from its initial basis
for revocation” and that CMS has not put forth a prima facie case against Petitioner. P.
Br. at 1, 6-7. CMS subsequently submitted a response in opposition to Petitioner’s
Motion for Summary Judgment (CMS Response). In the absence of objection, I admit
CMS Exs. 1-8, P. Exs. 1-25, and P. Exs. A-F, Fl, F2, and G-Q into the record.

On January 9, 2013, Petitioner filed a Motion for the Issuance of Subpoena in order to
obtain medical records for 21 beneficiaries (P. Motion). CMS then submitted a response
in opposition to Petitioner’s Motion for the Issuance of Subpoena, stating that the request
was untimely and the record was closed in this case. CMS also argued that Petitioner’s
motion did not meet the requirements of 42 C.F.R. § 498.58, and specifically that
Petitioner did not show that the documents requested were reasonably necessary for the
full presentation of its case.

Then, on March 5, 2013, CMS filed a Notice (CMS Notice) with an attachment (CMS
Attachment A) and stated that “CMS has recently learned Petitioner . . . voluntarily
relinquished its license to operate a home health agency as of November 19, 2012” and
that Petitioner’s “voluntary relinquishment of its license has not been disclosed in
[Petitioner’s] filings in the instant appeal.” CMS contends that a license issued by the
State of Florida is required for Petitioner to operate. CMS Notice at 1. CMS also
contends that “[f]or Medicare purposes, the relinquishment of a license means that the
home health agency can no longer satisfy the enrollment regulation at 42 C.F.R.

§ 424.516(a)(2), which calls for continuing compliance with ‘State licensure . . .
requirements.”” CMS Notice at 1. CMS also argues that under Medicare certification
regulations, a cessation of business is deemed to be a voluntary termination of the
provider’s Medicare provider agreement, effective as of the date the provider stopped
providing services. 42 C.F.R. § 489.52(b)(3). CMS’s position is that Petitioner’s
relinquishment of its state license and cessation of operations as a home health agency
would be a separate and additional basis for the revocation of Petitioner’s Medicare
enrollment and billing privileges. CMS Notice at 2. Petitioner did not respond to the
CMS Notice.

II. Applicable Law

The Medicare statute defines “home health services” as “items and services furnished to
an individual, who is under the care of a physician . . . under a plan (for furnishing such
items and services to such individual) established and periodically reviewed by a
physician... .” 42 U.S.C. § 1395x(m). Home health services are covered by Medicare
“only if... a physician certifies... that .. . home health services . . . are or were
required because the individual is or was confined to his home . . . and needs or needed
skilled nursing care... .” 42 U.S.C § 1395f(a)(2)(C); 42 U.S.C § 1395n(a)(2)(A).

A home health agency may receive Medicare payment for home health services for
individuals only after the home health agency has obtained a valid certification from a
physician that the individual is homebound and requires home health services. 42 U.S.C
§§ 1395f(a)(2)(C), 1395n(a)(2)(A). Home health services must be furnished while the
individual is under the care of a physician, and a physician must establish and
periodically review a plan of care for furnishing the services. 42 C.F.R.

§ 424.22(a)(iii),(iv). Also, the certifying physician is required to know the Medicare
beneficiary’s medical status, and therefore there must be a face-to-face encounter with
the individual, 42 C.F.R. § 424.22(a); Medicare Benefit Policy Manual, CMS Publication
100-102, Ch. 7 (Home Health Services), § 30.5.1.1. The face-to-face encounter must be
“related to the primary reason the patient requires home health services ....” 42 C.F.R.
§ 424.22(a)(1)(v).

A physician and the home health agency personnel must review a Medicare beneficiary’s
plan of care at regular intervals. 42 C.F.R. § 484.18(b). Also, the home health agency is
required to “promptly alert the physician” to significant changes that suggest a need to
alter the plan of care. 42 C.F.R. § 484.18(b). The home health agency consults with the
individual’s physician to obtain approval of any “additions or modifications to the
original plan” of care. 42 C.F.R. § 484.18(a).

Section 424.535(a) of 42 C.F.R. authorizes CMS to “revoke a currently enrolled provider
or supplier’s Medicare billing privileges and any corresponding provider agreement or
supplier agreement” for reasons including, as relevant here:

(1) Noncompliance. The provider or supplier is determined not to be in
compliance with the enrollment requirements described in this section,
or in the enrollment application applicable for its provider or supplier type... .

Ill. Analysis
A. Issue

The issue in this case is whether CMS is entitled to summary judgment on the grounds
that CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing
privileges.
B. Applicable Standard

Summary judgment is appropriate when a case presents no issue of material fact, and its
resolution turns on questions of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
48 (1986); Livingston Care Ctr. v. U. S. Dep’t of Health and Human Servs., 388 F.3d
168, 173 (6th Cir. 2004); see also Illinois Knights Templar Home, DAB No. 2274, at 3-4
(2009) (citing Kingsville Nursing Ctr., DAB No. 2234, at 3-4 (2009)).

The moving party may show the absence of a genuine factual dispute by presenting
evidence so one-sided that it must prevail as a matter of law, or by showing that the non-
moving party has presented no evidence “sufficient to establish the existence of an
element essential to [that party’s] case, and on which [that party] will bear the burden of
proof at trial.” Livingston Care Ctr., 388 F.3d at 173 (quoting Celotex Corp. v. Catrett,
477 US. 317, 323-24 (1986)). To avoid summary judgment, the non-moving party must
then act affirmatively by tendering evidence of specific facts showing that a dispute
exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11
(1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing and Rehab.
Ctr., DAB No. 1918 (2004).

To defeat an adequately supported summary judgment motion, the non-moving party may
not rely on the denials in its pleadings or briefs but must furnish evidence of a dispute
concerning a material fact. I/linois Knights Templar, DAB No. 2274, at 4; Livingston
Care Ctr., DAB No. 1871, at 5. In examining the evidence to determine the
appropriateness of summary judgment, I must draw all reasonable inferences in the light
most favorable to the non-moving party. See Brightview Care Ctr., DAB No. 2132, at 2,
9 (2007); Livingston Care Ctr., 388 F.3d at 168, 172; Guardian Health Care Ctr., DAB
No. 1943, at 8 (2004); but see Cedar Lake Nursing Home, DAB No. 2344, at 7 (2010);
Brightview Care Ctr., DAB No. 2132, at 10 (noting entry of summary judgment upheld
where inferences and views of non-moving party are not reasonable). However, drawing
factual inferences in the light most favorable to the non-moving party does not require
that I accept the non-moving party’s legal conclusions. Cedar Lake, DAB No. 2344, at 7;
Guardian, DAB No. 1943, at 11 (“A dispute over the conclusion to be drawn from
applying relevant legal criteria to undisputed facts does not preclude summary judgment
if the record is sufficiently developed and there is only one reasonable conclusion that
can be drawn from those facts.”).

The role of an administrative law judge (ALJ) in deciding a summary judgment motion
differs from the ALJ’s role in resolving a case after a hearing. The ALJ should not assess
credibility or evaluate the weight of conflicting evidence. Holy Cross Vill. at Notre
Dame, DAB No. 2291, at 4-5 (2009).
C. Findings of Fact and Conclusions of Law

1. CMS was authorized to change its revocation basis because
Petitioner had notice and opportunity to respond during this
administrative proceeding.

Petitioner argues that its revocation should be rescinded because CMS has made a
“complete 180° change from its initial basis for revocation.” P. Br. at 1. The
Departmental Appeals Board (Board) has consistently held that after an administrative
appeal has commenced, a federal agency may assert and rely on new or alternative
grounds for the challenged action or determination as long as the non-federal party has
notice of, and a reasonable opportunity to respond to, the asserted new grounds during the
administrative proceeding. Green Hills Enters., LLC, DAB No. 2199 (2008). See also
Abercrombie v. Clarke, 920 F.2d 1351, 1360 (7th Cir. 1990), cert. denied, 520 U.S. 809
(1991) (holding that defects in formal notice may be cured during the course of an
administrative proceeding, and due process is satisfied as long as the party is reasonably
apprised of, and given opportunity to address, the issues in controversy); St. Anthony
Hosp. v. Sec’y, Dep’t of Health and Human Servs., 309 F.3d 680, 708 (10th Cir. 2002)
(“To establish a due process violation [in an administrative proceeding], an individual
must show he or she has sustained prejudice as a result of the allegedly insufficient
notice.”).

It is evident from CMS’s briefs in this matter that CMS chooses to revoke Petitioner’s
Medicare billing privileges under 42 C.F.R. § 424.535(a)(1) on the grounds that
Petitioner failed to maintain the required conformance “to the Medicare laws, regulations,
and program instructions that apply to this provider.” CMS Br. at 2. During this stage of
the appeal, I provided Petitioner with ample opportunity to refute CMS’s determination
that it was found noncompliant based on failure to comply with Medicare laws and
regulations and specifically the requirements of 42 C.F.R. § 424.22. Therefore, I do not
find that Petitioner has been prejudiced.

2. The undisputed evidence shows CMS had a legitimate basis to
revoke Petitioner’s Medicare billing privileges because Petitioner
was not in compliance with Medicare requirements for home
health certifications involving 32 individuals.

Any home health agency that seeks to enroll as a provider in the Medicare program must
complete a CMS 855A enrollment application. Petitioner completed a CMS 855A and
signed the Certification Statement at Section 15 of the CMS 855A enrollment
application. CMS. Ex. 2. Petitioner’s signature “binds this provider to the laws,
regulations, and program instructions of the Medicare program.” CMS Ex. 2, at 6. CMS
contends that Petitioner submitted claims for home health services which did not conform
to “the Medicare laws, regulations, and program instructions that apply to this provider.”
CMS Br. at 2. Specifically, CMS refers to the requirements that home health agencies
may only receive Medicare reimbursement for services provided to individuals who are
under the care of a physician and that the physician must have a face-to-face encounter
with the individuals and certify the necessity of the home health services. CMS contends
that these requirements were not met with respect to claims Petitioner submitted for 43
individuals. CMS Br. at 9.

CMS argues that by signing a CMS 855A Certification Statement and enrolling in the
Medicare program, Petitioner agrees to comport with all Medicare laws of general
applicability and those that apply specifically to home health agencies. In addition,
according to CMS, the text of the CMS 855A places Petitioner on notice that failure to
comply with Medicare laws may be a basis for the revocation of Petitioner’s enrollment
in the Medicare program in the future.

CMS determined to revoke Petitioner’s Medicare billing privileges after an internal CMS
inquiry revealed that the signature of Dr. Emilio Castaneda “was being used in
conjunction with the certification of an enormous number of Medicare beneficiaries for
ome health services” and “‘Dr. Castaneda’s NPI [National Provider Identifier] was
coming up in the Medicare program’s data as having been used by a number of home
ealth agencies [in the south Florida area] with surprising frequency.” CMS Ex. 6, at {J
8-9. CMS contends that Petitioner submitted Medicare home health claims on behalf of
43 individuals and named Dr. Castaneda as the certifying physician in each instance;

iowever, CMS’s Medicare reimbursement records for Dr. Castaneda do not indicate that
Dr. Castaneda was involved in the care of those 43 individuals. CMS Br. at 10; CMS
Exs. 4 and 5. Thus, CMS contends that Petitioner’s submission of Medicare claims for
individuals who were not under the care of a physician constituted noncompliance, and
CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing
privileges.

Petitioner argues that the evidence CMS presents does not prove that these 43 individuals
were not under the care of Dr. Castaneda. P. Br. at 6-8. Petitioner includes an affidavit
of Dr. Castaneda with an attached spreadsheet. P. Ex. G. Petitioner offers a variety of
explanations for why Dr. Castaneda did not bill the Medicare program for services for
these 43 individuals and why CMS’s records do not show that Dr. Castaneda was ever
involved in the care of these 43 individuals. P. Br. at 7-8. Petitioner also suggests that
CMS should have come forward with other types of evidence to establish that Dr.
Castaneda did not actually treat the patients at issue. P. Br. at 6.

Petitioner did not come forward with any actual treatment records for the 43 individuals
in its challenged claims, but it instead submitted documents in reference to a smaller
group of patients, only 11 of whom are among the 43 individuals CMS names. P. Br. at
4; P. Exs. 1-25. In its response brief, CMS argues that if Petitioner “believed that either
Castaneda or his employer possessed patient records that would show that the 43
beneficiaries were actually treated or monitored medically by Castaneda, it would have
been [Petitioner’s] responsibility to obtain those records and come forward with them...
It is . . . [Petitioner] and Castaneda who allegedly had a significant patient-referral

relationship and (more importantly) who allegedly shared responsibility for the health
care needs of the 43 beneficiaries . . . .”_ CMS Response at 6.

Petitioner has requested the issuance of subpoenas through which it could obtain medical
records for patients Dr. Castaneda saw during his employment with C&M Physicians’
Group, Inc., a Miami clinic which Petitioner states is no longer in business. However,
Petitioner has not provided any explanation as to why Petitioner must obtain medical
records for these individuals from another source in order to prove Petitioner’s clients
were under the care of a physician for services it alleges it provided. Petitioner’s motion
for the issuance of subpoenas does not meet the requirements of 42 C.F.R. § 498.58
because it does not show that the documents requested are reasonably necessary for the
full presentation of its case. Further, it does not specify the pertinent facts Petitioner
expects to establish by the witnesses or documents nor does it indicate why those facts
could not be established without the use of a subpoena. 42 C.F.R. § 498.58(c)(3).
Accordingly, I have denied Petitioner’s request for subpoenas. Finally, Petitioner
provides no explanation as to why Petitioner did not have plans of care, face-to-face
encounter documentation, and other certification paperwork indicating that these
Medicare clients of Petitioner’s met the requirements of 42 C.F.R. § 424.22, prior to
Petitioner submitting claims for Medicare payment.

A physician must be involved in the certification of an individual for home health
services and a physician’s ongoing involvement in the care of that individual. 42 U.S.C §
1395f(a)(2)(C); 42 U.S.C § 1395n(a)(2)(A). Medicare program guidance incorporates
these statutory requirements: “[t]he patient must be under the care of a physician who is
qualified to sign the certification statement and plan of care . . . A patient is expected to
be under the care of the physician who signs the plan of care and the physician
certification.” Medicare Benefit Policy Manual, 100-101, § 30.3. The physician must
base his certification of the need for home health services upon a face-to-face encounter
with the patient and the encounter must be related to the primary reason the patient
requires home health services. 42 C.F.R. § 424.22(a).

Because Petitioner did not bring forth any specific evidence with regard to 32 individuals
that could show that these individuals were under the care of Dr. Castaneda or that Dr.
Castaneda certified the necessity of home health care services, despite the undisputed fact
that Petitioner billed Medicare for these individuals as receiving care that Dr. Castaneda
approved, I find Petitioner did not conform to “the laws, regulations, and program
instructions of the Medicare program.” By signing the Certification Statement at Section
15 of the CMS 855A enrollment application, Petitioner was bound to comply with all
applicable legal requirements. CMS Ex. 2, at 6. Thus, I find that CMS was authorized to
revoke Petitioner’s Medicare billing privileges for noncompliance with the enrollment
application applicable for its provider or supplier type pursuant to 42 C.F.R.

§ 424.535(a)(1).

Additionally, CMS has presented evidence that Petitioner voluntarily relinquished its
license to operate a home health agency in Florida as of November 19, 2012. CMS
Notice, Attachment A. Petitioner did not respond to the CMS Notice regarding the
voluntary relinquishment of its home health agency license. Pursuant to 42 C.F.R.

§ 424.516(a)(2), a provider must maintain an active enrollment status and continue to
meet Medicare requirements including “State licensure, certification, and regulatory
requirements ....” Also, “[a] cessation of business is deemed to be a termination by the
provider, effective with the date on which it stopped providing services to the
community.” 42 C.F.R. § 489.52(b)(3). Therefore, this undisputed evidence suggests
CMS has an additional legitimate basis to revoke Petitioner’s Medicare billing privileges,
as of November 19, 2012, because Petitioner is not in compliance with applicable
Medicare requirements.

3. Dr. Castaneda’s affidavit does not create a genuine dispute of
material fact necessary to overcome CMS’s Motion for Summary
Judgment because Petitioner has not tendered evidence of specific
facts showing that a dispute exists for 32 individuals.

To avoid summary judgment, the non-moving party must act affirmatively by tendering
evidence of specific facts showing that a dispute exists regarding an essential element of
the case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11
(1986). A mere scintilla of supporting evidence is not sufficient to overcome a well-
supported motion for summary judgment. “If the evidence is merely colorable or is not
significantly probative, summary judgment may be granted.” Livingston Care Ctr. v.
U.S. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting
Anderson v. Liberty Lobby, 477 U.S. 242, at 249-50 (1986)).

In order to dispute whether Dr. Castaneda provided the required treatment for the 43
home health clients CMS names, Petitioner came forward with an affidavit of Dr.
Castaneda generally stating that “I hereby attest that I conducted the Face-to-Face
evaluation and signed all home health ordering documentation (such as Plan of Care,
Verbal Orders, Certification Orders, etc.) for all beneficiaries attached here to.” P. Ex. G,
at 1. The affidavit includes several documents that are difficult to decipher, including
several lists of patients, many of whom are not among the 43 individuals CMS identifies
in its Motion for Summary Judgment. P. Ex. G, at 3-5. The affidavit also includes a
“Home Health Claims Review Overpayment Spreadsheet” for Petitioner showing claims
that were denied because “[S]ervices not ordered.” Both the spreadsheet and the list of
patients reference some, but not all, of the 43 individuals CMS identified and include
individuals not identified in the CMS Motion for Summary Judgment. Compare P. Ex.
G, at 3-8 and CMS Br. at 14-26. However, for 32 of the 43 individuals, the only
evidence that Petitioner has ultimately come forward with to prove the disputed fact that
Petitioner met the Medicare requirements for home health certification is Dr. Castaneda’s
sparse affidavit.

Although I am required to draw all reasonable inferences in the light most favorable to
Petitioner in deciding CMS’s motion for summary judgment, Petitioner is required to
come forward with specific evidence to show a genuine issue of material fact exists.
10

However, Dr. Castaneda’s affidavit does not provide the specificity of facts needed to
properly overcome CMS’s motion for summary judgment. The affidavit, for example,
does not specifically describe the 32 individuals, when Dr. Castaneda allegedly certified
that care was provided to the 32 individuals, where Dr. Castaneda saw these individuals,
or attach any documentation required by 42 C.F.R. § 424.22(a). Therefore, without
attaching any actual medical certifications or other specific records, Dr. Castaneda’s
vague statement alone does not provide the specificity for me to draw an inference in
Petitioner’s favor that Dr. Castaneda provided the requisite certifications for these 32
individuals. Therefore, after careful review of the documentation that Petitioner
provided, I cannot conclude that Petitioner has presented evidence sufficient to establish
the existence of a genuine factual dispute to an essential element of its case. Therefore,
CMS is entitled to summary judgment.

IV. Conclusion

Petitioner has not shown a genuine issue of material fact exists with regard to CMS’s
challenge that a physician did not certify 32 of Petitioner’s patients pursuant to Medicare
home health care requirements. As a result, I must sustain CMS’s determination to
revoke Petitioner’s Medicare enrollment and billing privileges because the undisputed
evidence shows that Petitioner was not compliant with Medicare program requirements.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Hoyos Home Health Care, Inc.,
NPI: 1922280361),

Petitioner
v.

Centers for Medicare and Medicaid Services.
Docket No. C-12-1286
Decision No. CR2746
Date: April 9, 2013

DECISION

Petitioner, Hoyos Home Health Care, Inc., a home health agency, appeals a
reconsideration decision dated July 26, 2012. The undisputed evidence establishes that
Petitioner was not in compliance with Medicare program requirements involving proper
home health care certification. As a consequence, I grant the motion of the Centers for
Medicare and Medicaid Services (CMS) for summary judgment and uphold CMS’s
determination to revoke Petitioner’s Medicare enrollment and billing privileges.

I. Background and Procedural History

By letter dated May 25, 2012, Palmetto GBA (Palmetto), a CMS contractor, informed
Petitioner that CMS was revoking Petitioner’s Medicare billing privileges and
terminating Petitioner’s Medicare provider agreement effective June 24, 2012, because
Petitioner failed to comply with the Medicare enrollment requirements pursuant to 42
C.F.R. § 424.535(a)(1). CMS Exhibit (CMS Ex.) 3, at 1-2. Palmetto also informed
Petitioner that it was establishing a Medicare re-enrollment bar for a period of three
years. CMS Ex. 3, at 2. Specifically, the revocation letter stated that:

Under 42 CFR 424.535(a)(1) CMS may revoke a currently enrolled
provider or supplier’s Medicare billing privileges and any corresponding
provider agreement when the suppliers are not in compliance with the
enrollment requirements specifically outlined in Section 15(a)5
(Certification Statement for 855A application) that states: “I will not
knowingly present or cause to be presented a false or fraudulent claim for
payment by Medicare, and I will not submit claims with deliberate
ignorance or reckless disregard of their truth or falsity.” The supplier
submitted claims for payment that were based upon orders, treatment plans,
or other documents some of which were created by the enrolled supplier
that contain the altered or forged signature of the treating physician.

CMS Ex. 3, at 1.

Petitioner timely filed a request for reconsideration of CMS’s decision to revoke
Petitioner. CMS Ex. 3, at 3. On July 26, 2012, CMS issued a reconsidered determination
that upheld the revocation based on Petitioner’s noncompliance with Medicare
enrollment requirements. CMS Ex. 3, at 3-5. In the reconsideration decision, CMS states
that “[a]ll of the documentation in the file for this case has been reviewed and the
decision has been made in accordance with Medicare guidelines as outlined in 42 CFR

§ 424.535(a)(1). Specifically, [Petitioner] has not provided evidence to show that it did
not submit false or fraudulent claims...” CMS Ex. 3, at 4.

Petitioner then filed a hearing request (HR) and administrative subpoena request with the
Civil Remedies Division of the Departmental Appeals Board on September 19, 2012, and
the case was assigned to me for hearing and decision. I subsequently issued an order
denying Petitioner’s request for issuance of subpoenas because Petitioner did not comply
with the requirements of 42 C.F.R. § 498.58. Petitioner filed a motion for
reconsideration of that order, and CMS filed an opposition. I denied Petitioner’s motion
for reconsideration.

In accordance with my Acknowledgment and Pre-hearing Order issued on October 3,
2012, CMS filed its pre-hearing exchange, incorporating a Motion for Summary
Judgment and brief (CMS Br.), with eight exhibits (CMS Exs. 1-8). In its brief, CMS
stated that:

This brief serves as notice of CMS’ amendment of its basis for the
revocation .... CMS is proceeding on the basis of the

same regulation, 42 C.F.R. § 424.535(a)(1), and on the same theory, i.e.,
[Petitioner’s] noncompliance with the requirements on the enrollment
application. CMS amends its basis for the revocation only insofar as to
characterize Petitioner’s behavior as a failure to maintain the required
conformance to the Medicare laws, regulations, and program instructions
that apply to this provider....

CMS Br. at 2 (internal quotation omitted).

Specifically, CMS claims that home health agencies may only receive Medicare
reimbursement for services provided to beneficiaries who are under the care of a
physician and that the physician must have a face-to-face encounter with the beneficiary
and certify the necessity of the home health services. 42 C.F.R. § 424.22(a); Medicare
Benefit Policy Manual, 100-101, § 30.5.1.1. CMS claims that Petitioner did not meet
these Medicare requirements with regard to the claims Petitioner submitted for

50 beneficiaries. CMS Br. at 9.

Petitioner then filed a Motion for Summary Judgment and brief (P. Br.), with three
exhibits (P. Exs. 1-3). In Petitioner’s Motion for Summary Judgment, Petitioner claims
CMS “has wholly abandoned the theory upon which the revocation was based” and that
Petitioner has been prejudiced by CMS’s revocation of its provider number based on a
new legal theory. P. Br. at 6. Also, Petitioner “proffer[ed] the submission of copies of
the actual medical records for the 50 beneficiaries that CMS claims were not treated by
[the certifying physician].” P. Br. at 8. Petitioner stated it was “offering this as a proffer
rather than submitting them as exhibits because the records are extremely voluminous,
contained protected health information, and CMS has not raised any issue outside of the
billing issue.” P. Br. at 8. CMS subsequently submitted a response in opposition to
Petitioner’s Motion for Summary Judgment (CMS Response).

On January 18, 2013, considering Petitioner did not come forward with any actual
medical documentation, I gave Petitioner an opportunity to supplement the record in this
case and to file as exhibits the records for the 50 beneficiaries, identified in CMS’s
Motion for Summary Judgment, whose care was allegedly certified in accordance with
Medicare requirements at 42 C.F.R. § 424.22. On January 28, 2013, Petitioner filed nine
“composite” exhibits. (P. Composite Exs. 1-9). CMS submitted a response to the
additional documents that Petitioner submitted. (CMS Response to Additional
Documents). Petitioner then submitted a reply to CMS’s response. (P. Reply). In the
absence of objection, I admit CMS Exs. 1-8, P. Exs. 1-3, and P. Composite Exs. 1-9 into
the record.

II. Applicable Law

The Medicare statute defines “home health services” as “items and services furnished to
an individual, who is under the care of a physician . . . under a plan (for furnishing such
items and services to such individual) established and periodically reviewed by a
physician... .” 42 U.S.C. § 1395x(m). Home health services are covered by Medicare
“only if... a physician certifies... that .. . home health services . . . are or were
required because the individual is or was confined to his home . . . and needs or needed
skilled nursing care ....” 42 U.S.C § 1395f(a)(2)(C); 42 U.S.C § 1395n(a)(2)(A).

A home health agency may receive Medicare payment for home health services for
individuals only after the home health agency has obtained a valid certification from a
physician that the individual is homebound and requires home health services. 42 U.S.C
§§ 1395f(a)(2)(C), 1395n(a)(2)(A). Home health services must be furnished while the
individual is under the care of a physician, and a physician must establish and
periodically review a plan of care for furnishing the services. 42 C.F.R.

§ 424.22(a)(iii),(iv). Also, the certifying physician is required to know the Medicare
beneficiary’s medical status, and therefore there must be a face-to-face encounter with
the individual, 42 C.F.R. § 424.22(a); Medicare Benefit Policy Manual, CMS Publication
100-102, Ch. 7 (Home Health Services), § 30.5.1.1. The face-to-face encounter must be
“related to the primary reason the patient requires home health services ....” 42 C.F.R.
§ 424.22(a)(1)(v).

A physician and the home health agency personnel must review a Medicare beneficiary’s
plan of care at regular intervals. 42 C.F.R. § 484.18(b). Also, the home health agency is
required to “promptly alert the physician” to significant changes that suggest a need to
alter the plan of care. 42 C.F.R. § 484.18(b). The home health agency consults with the
individual’s physician to obtain approval of any “additions or modifications to the
original plan” of care. 42 C.F.R. § 484.18(a).

Section 424.535(a) of 42 C.F.R. authorizes CMS to “revoke a currently enrolled provider
or supplier’s Medicare billing privileges and any corresponding provider agreement or
supplier agreement” for reasons including, as relevant here:

(1) Noncompliance. The provider or supplier is determined not to be in
compliance with the enrollment requirements described in this section,
or in the enrollment application applicable for its provider or supplier type... .

Ill. Analysis
A. Issue

The issue in this case is whether CMS is entitled to summary judgment on the grounds
that CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing
privileges.

B. Applicable Standard

Summary judgment is appropriate when a case presents no issue of material fact, and its
resolution turns on questions of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
48 (1986); Livingston Care Ctr. v. United States Dep’t of Health and Human Servs., 388
F.3d 168, 173 (6th Cir. 2004); see also Illinois Knights Templar Home, DAB No. 2274,
at 3-4 (2009) (citing Kingsville Nursing Ctr., DAB No. 2234, at 3-4 (2009)).

The moving party may show the absence of a genuine factual dispute by presenting
evidence so one-sided that it must prevail as a matter of law, or by showing that the non-
moving party has presented no evidence “sufficient to establish the existence of an
element essential to [that party’s] case, and on which [that party] will bear the burden of
proof at trial.” Livingston Care Ctr., 388 F.3d at 173 (quoting Celotex Corp. v. Catrett,
477 US. 317, 323-24 (1986)). To avoid summary judgment, the non-moving party must
then act affirmatively by tendering evidence of specific facts showing that a dispute
exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11
(1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing and Rehab.
Ctr., DAB No. 1918 (2004).
To defeat an adequately supported summary judgment motion, the non-moving party may
not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute
concerning a material fact. I/linois Knights Templar, DAB No. 2274, at 4; Livingston
Care Ctr., DAB No. 1871, at 5 (2003). In examining the evidence to determine the
appropriateness of summary judgment, I must draw all reasonable inferences in the light
most favorable to the non-moving party. See Brightview Care Ctr., DAB No. 2132, at 2,
9 (2007); Livingston Care Ctr., 388 F.3d at 168, 172; Guardian Health Care Ctr., DAB
No. 1943, at 8 (2004); but see Cedar Lake, DAB No. 2344, at 7; Brightview, DAB No.
2132, at 10 (noting entry of summary judgment upheld where inferences and views of
non-moving party are not reasonable). However, drawing factual inferences in the light
most favorable to the non-moving party does not require that I accept the non-moving
party’s legal conclusions. Cedar Lake, DAB No. 2344, at 7; Guardian, DAB No. 1943,
at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to
undisputed facts does not preclude summary judgment if the record is sufficiently
developed and there is only one reasonable conclusion that can be drawn from those
facts.”).

The role of an ALJ in deciding a summary judgment motion differs from the ALJ’s role
in resolving a case after a hearing. The ALJ should not assess credibility or evaluate the
weight of conflicting evidence. Holy Cross Vill. at Notre Dame, DAB No. 2291, at 4-5

(2009).

C. Findings of Fact and Conclusions of Law

1. CMS was authorized to change its revocation basis because
Petitioner had notice and opportunity to respond during this
administrative proceeding.

Petitioner argues that its revocation should be “rescinded because CMS could not prove
the actual basis for the revocation” and that CMS “has wholly abandoned the theory upon
which the revocation was based and replaced it with one that CMS believes it could
actually prove.” P. Br. at 5-6. Petitioner also contends that it did not attempt to submit a
corrective action plan (CAP) because it was not reasonable that CMS would accept a
CAP designed to correct CMS’s original theory of the basis for revocation. P. Br. at 7.
Therefore, Petitioner claims it has been prejudiced by CMS’s amending of the basis for
Petitioner’s revocation at this level of review because CMS relies on a new legal theory
for the revocation, and Petitioner did not have an opportunity to submit a CAP.

The Departmental Appeals Board (Board) has consistently held that after an
administrative appeal has commenced, a federal agency may assert and rely on new or
alternative grounds for the challenged action or determination as long as the non-federal
party has notice of, and a reasonable opportunity to respond to, the asserted new grounds
during the administrative proceeding. Green Hills Enters., LLC, DAB No. 2199 (2008).
See also Abercrombie v. Clarke, 920 F.2d 1351, 1360 (7th Cir. 1990), cert. denied, 520
U.S. 809 (1991) (holding that defects in formal notice may be cured during the course of
an administrative proceeding, and due process is satisfied as long as the party is
reasonably apprised of, and given opportunity to address, the issues in controversy); St.
Anthony Hosp. v. Sec’y, Dep't of Health and Human Servs., 309 F.3d 680, 708 (10th Cir.
2002) (“To establish a due process violation [in an administrative proceeding], an
individual must show he or she has sustained prejudice as a result of the allegedly
insufficient notice.”) .

It is evident from CMS’s many briefs in this matter that CMS chooses to revoke
Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(1) on the grounds
that Petitioner failed to maintain the required conformance “to the Medicare laws,
regulations, and program instructions that apply to this provider.” CMS Br. at 2. During
this stage of the proceeding, I provided Petitioner with ample opportunity to refute
CMS’s determination that it was found noncompliant based on failure to comply with
Medicare laws and regulations and specifically the requirements of 42 C.F.R. § 424.22. I
permitted Petitioner to respond to every submission CMS filed at this level of review and
ordered Petitioner to supplement the record with evidence that could support Petitioner’s
position that its revocation was improper, the same type of opportunity that Petitioner
would have if the contractor were to have offered Petitioner a CAP at the initial
determination stage. Therefore, I do not find that Petitioner has been prejudiced, and I
deny Petitioner's Motion for Summary Judgment.

2. The undisputed evidence shows CMS had a legitimate basis to
revoke Petitioner’s Medicare billing privileges because Petitioner
was not in compliance with Medicare requirements for home
health certifications involving five individuals.

Any home health agency which seeks to enroll as a provider in the Medicare program
must complete a CMS 855A enrollment application. Petitioner completed a CMS 855A
and signed the Certification Statement at Section 15 of the CMS 855A enrollment
application. CMS. Ex. 2. Petitioner’s signature “binds this provider to the laws,
regulations, and program instructions of the Medicare program.” CMS Ex. 2, at 6. CMS
contends that Petitioner submitted claims for home health services which did not conform
to “the Medicare laws, regulations, and program instructions that apply to this provider.”
CMS Br. at 2. CMS argues that by signing a CMS 855A Certification Statement and
enrolling in the Medicare program, Petitioner agrees to comport with all Medicare laws
of general applicability and those that apply specifically to home health agencies. In
addition, according to CMS, the text of the CMS 855A places Petitioner on notice that

' Specifically, CMS refers to the requirement that home health agencies may only
receive Medicare reimbursement for services provided to individuals who are under the
care of a physician, and the physician must have a face-to-face encounter with the
individuals and certify the necessity of the home health services. CMS contends that
these requirements were not met with respect to claims Petitioner submitted for 50
individuals. CMS Br. at 9.
failure to comply with Medicare laws may be a basis for the revocation of Petitioner’s
enrollment in the Medicare program in the future.

CMS determined to revoke Petitioner’s Medicare billing privileges after an internal CMS
inquiry revealed that the signature of Dr. Emilio Castaneda “was being used in
conjunction with the certification of an enormous number of Medicare beneficiaries for
ome health services” and “‘Dr. Castaneda’s NPI [National Provider Identifier] was
coming up in the Medicare program’s data as having been used by a number of home
ealth agencies [in the south Florida area] with surprising frequency.” CMS Ex. 6, at {J
8-9. CMS contends that Petitioner submitted Medicare home health claims on behalf of
50 individuals and named Dr. Castaneda as the certifying physician in each instance;
iowever, CMS’s Medicare reimbursement records for Dr. Castaneda do not indicate that
Dr. Castaneda was involved in the care of those 50 individuals. CMS Br. at 10; CMS
Exs. 4 and 5. Thus, CMS contends that Petitioner’s submission of Medicare claims for
individuals who were not under the care of a physician constituted noncompliance, and
CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing
privileges.

Petitioner argues that the evidence CMS presents does not prove that these 50 individuals
were not under the care of Dr. Castaneda. P. Br. at 4. Petitioner offers as evidence an
affidavit of Andres Hernandez, R.N., who generally states that as the director of nursing
for Petitioner, “I am familiar with the standard procedures and policies at Hoyos for
obtaining and processing physician orders for home health services” and that when a new
patient is referred for home health services, Petitioner receives a physician order faxed
from the physician’s office, and upon receipt of the order, a nurse is dispatched to the
patient’s home to conduct an initial evaluation and complete the plan of care. P. Ex. 2, at
§ 3-6. Then, “[t]he plan of care is returned to the agency and I review all paperwork
including the physician order for regulatory compliance” and “[t]he plan of care is then
taken by a driver to the physician’s office for review and signature. Once the plan of care
as been signed by the physician, it gets picked up by the driver and returned to our
office.” P. Ex. 2, at §§] 7-8. In addition, Petitioner includes an affidavit of Osmany
Hoyos, Petitioner’s owner, who attaches a list of “all of the patients who received home
ealth services from [Petitioner] between January 1, 2011 and June 24, 2012 as a result of
an order received from Emilio Castaneda, M.D.” P. Ex. 1. Petitioner’s owner also states
that “[t]he patients whose names have a check mark next to them also appear on CMS’
Exhibit 5 to its summary judgment motion. The exhibit is a list of all patients for whom
Dr. Castaneda billed for services rendered between 2010 and October 16, 2012.” P. Ex.
1, at 75. Petitioner also offers a variety of explanations for why Dr. Castaneda did not
bill the Medicare program for services for the 50 individuals identified by CMS and why
CMS’s records do not show that Dr. Castaneda was ever involved in the care of these 50
individuals. P. Br. at 4-5. Petitioner also suggests that CMS should have come forward
with other types of evidence to establish that Dr. Castaneda did not actually treat these 50
individuals. P. Br. at 5.

Petitioner did not initially come forward with any actual treatment records of its patients
but instead filed a “proffer of home health records as evidence” and proffered the
“submission of copies of the actual medical records for the 50 beneficiaries that CMS
claims were not treated by Dr. Castaneda.” Petitioner requested “the opportunity to
include these as exhibits if either the ALJ or CMS has concerns as to whether appropriate
medical records exist for these beneficiaries.” P. Br. at 8. In its response brief, CMS
argues that Petitioner has presented no evidence “from any of its home health patients to
attempt to show that the patient was under the medical care of Castaneda or even knew
Castaneda.” CMS Response at 6. CMS also argues that “a home health agency is always
responsible for ensuring that its own Medicare billing practices comply in full with
Medicare law and policy, and so the home health agency is accountable for the integrity
of the information contained in the claims by which it seeks Medicare funds.” CMS
Response at 6. CMS contends that Petitioner was obligated to timely present its case
after CMS came forward with Medicare program records indicating that Dr. Castaneda
was never involved in the care of 50 individuals for which Petitioner submitted claims for
home health care services to Medicare and argues that Petitioner’s proffer of unspecified
voluminous home health records is inappropriate in this proceeding. CMS Response at 7.

In order to determine whether CMS had a legitimate basis for revoking Petitioner’s
Medicare billing privileges for submitting home health claims that allegedly had no
physician certification, I determined Petitioner must submit copies of the medical records
for the 50 individuals for whom CMS claims Dr. Castaneda did not certify. In response
to my Order to Supplement the Record, which directed Petitioner to file as exhibits
documentation for these 50 individuals, Petitioner provided nine “composite exhibits.”
These composite exhibits provide some documentation for 45 out of the 50 individuals
CMS references in its Motion for Summary Judgment.’ P. Composite Exs. 1-9; CMS Br.
at 14-28.

However, Petitioner did not submit any documentation at all for individuals whom CMS
identified as Beneficiary #1, #2, #3, #30 and #39. P. Composite Exs. 1-9; CMS Br. at 14,
22, 25. Petitioner presented nothing to suggest that these individuals were ever under Dr.
Castaneda’s care for home health services in accordance with 42 C.F.R.

§ 424.22. Petitioner does not dispute, however, that it billed Medicare for services Dr.
Castaneda purportedly approved for these beneficiaries.

Petitioner argues that it has requested the issuance of subpoenas through which it could
obtain medical records for patients Dr. Castaneda saw during his employment with C&M
Physicians’ Group, Inc., a Miami clinic which is no longer in business, and that “CMS
must not be permitted to complain about [Petitioner’s] inability to obtain medical records

> The documentation for the 45 of the 50 beneficiaries includes CMS forms for home
health certification and plan of care, model verification forms for documentation of face-
to-face encounters, verbal order forms, and other referral paperwork. P. Composite Exs.
1-9.
and at the same time oppose the only legal vehicle through which [Petitioner] might . . .
obtain those records.” P. Reply at 2-3. However, Petitioner has not provided any
explanation as to why Petitioner must obtain medical records for these individuals from
another source in order to prove Petitioner’s clients were under the care of a physician.*
Petitioner also provides no explanation as to why Petitioner did not have plans of care,
face-to-face encounter documentation, and other certification paperwork indicating that
all Petitioner’s Medicare clients met the requirements of 42 C.F.R. § 424.22, prior to
submitting claims for Medicare payment.

The law clearly requires that a physician must be involved in the certification of an
individual for home health services and a physician’s ongoing involvement in the care of
that individual. 42 U.S.C § 1395f(a)(2)(C); 42 U.S.C § 1395n(a)(2)(A). Medicare
program guidance echoes these statutory requirements: “[t]he patient must be under the
care of a physician who is qualified to sign the certification statement and plan of care. . .
A patient is expected to be under the care of the physician who signs the plan of care and
the physician certification.” Medicare Benefit Policy Manual, 100-101, § 30.3. The
physician must base his certification of the need for home health services upon a face-to-
face encounter with the patient and the encounter must be related to the primary reason
the patient requires home health services. 42 C.F.R. § 424.22(a).

Because it is undisputed that Petitioner did not bring forth any evidence with regard to
five individuals which could show that these individuals were under the care of Dr.
Castaneda or that Dr. Castaneda certified the necessity of home health care services, I
find Petitioner did not conform to “the laws, regulations, and program instructions of the
Medicare program.”* By signing the Certification Statement at Section 15 of the CMS
855A enrollment application, Petitioner was bound to comply with all applicable legal
requirements. CMS Ex. 2, at 6. Thus, I find that CMS was authorized to revoke
Petitioner’s Medicare billing privileges for noncompliance with the enrollment
application applicable for its provider or supplier type pursuant to 42 C.F.R. §
424.535(a)(1).

3. Petitioner’s owner’s affidavit, the affidavit of Petitioner’s director of
nursing, and the composite exhibits do not create a genuine dispute of
material fact which could overcome CMS’s Motion for Summary
Judgment because Petitioner does not tender evidence of specific facts
showing that a dispute exists for five individuals.

>A proper subpoena request requires a party to specify the pertinent facts the party
expects to establish by the witnesses or documents and indicate why those facts could not
be established without the use of a subpoena. 42 C.F.R. § 498.58(c)(3).

* CMS also argues that Petitioner has presented only “referral paperwork” and no proper
evidence of actual treatment, care, or medical monitoring of all 50 individuals. However,
for purposes of summary judgment, considering Petitioner has come forward with some
specific evidence, I will infer in Petitioner’s favor that Dr. Castaneda provided
appropriate certifications of the need for home health services for 45 beneficiaries.
10

To avoid summary judgment, the non-moving party must act affirmatively by tendering
evidence of specific facts showing that a dispute exists regarding an essential element of
the case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11
(1986). A mere scintilla of supporting evidence is not sufficient to overcome a well-
supported motion for summary judgment. “If the evidence is merely colorable or is not
significantly probative, summary judgment may be granted.” Livingston Care Ctr. v.
Dep't. of Health & Human Services, 388 F.3d 168, 173 (6th Cir. 2004) (quoting
Anderson vy. Liberty Lobby, 477 U.S. 242, at 249-250 (1986)).

In order to dispute whether Dr. Castaneda provided the required treatment for the 50
home health clients CMS names, Petitioner came forward with an affidavit of Petitioner’s
owner with an attached list of “all of the patients who received home health services . . .
between January 1, 2011 and June 24, 2012 as a result of an order received from Emilio
Castaneda, M.D.” P. Ex. 1. Petitioner also presented an affidavit of Petitioner’s director
of nursing generally describing the standard procedures and policies with regard to
obtaining and processing physician orders for home health services, which does not
mention any of the individual home health patients at issue.

Once I ordered Petitioner to supplement the record, Petitioner came forward with actual
medical records for only 45 of the 50 home health clients that CMS named. Therefore,
for five patients, the only evidence that Petitioner has ultimately come forward with to
prove the disputed fact that Dr. Castaneda provided certification for care, is Petitioner’s
owner’s affidavit.

Although I am required to draw all reasonable inferences in the light most favorable to
Petitioner in deciding CMS’s motion for summary judgment, Petitioner is required to
come forward with specific evidence to show a genuine issue of material fact exists.
However, Petitioner’s owner’s affidavit does not provide the specificity of facts needed
to properly overcome CMS’s motion for summary judgment. The affidavit, for example,
does not describe the five patients, the type of care Dr. Castaneda allegedly provided to
the five patients, when the care was provided, or why home health certifications and
plans of care could not be produced for these five individuals. Therefore, without any
supporting documentation, the owner’s vague statement alone does not provide the
specificity for me to draw an inference in Petitioner’s favor that Dr. Castaneda provided
the requisite certifications for those five patients. After careful review of the
documentation that Petitioner provided, Petitioner has not presented evidence sufficient
to establish the existence of a genuine factual dispute to an essential element of its case.
Therefore, CMS is entitled to summary judgment.

11

IV. Conclusion

Petitioner has not shown a genuine issue of material fact exists with regard to CMS’s
challenge that a physician did not certify five of Petitioner’s patients pursuant to
Medicare home health care requirements. As a result, I must sustain CMS’s
determination to revoke Petitioner’s Medicare enrollment and billing privileges because
the undisputed evidence shows that Petitioner was not compliant with Medicare program
requirements.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

IFA Universal Home Care, Inc.,
(NPI: 1396890562),

Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-12-1285
Decision No. CR2745

Date: April 9, 2013

DECISION

Petitioner, IFA Universal Home Care, Inc., a home health agency, appeals a
reconsideration decision dated July 26, 2012. The undisputed evidence establishes that
Petitioner was not in compliance with Medicare program requirements involving proper
home health care certification. As a consequence, I grant the motion of the Centers for
Medicare and Medicaid Services (CMS) for summary judgment and uphold CMS’s
determination to revoke Petitioner’s Medicare enrollment and billing privileges.

I. Background and Procedural History

By letter dated May 25, 2012, Palmetto GBA (Palmetto), a CMS contractor, informed
Petitioner that CMS was revoking Petitioner’s Medicare billing privileges and
terminating Petitioner’s Medicare provider agreement effective June 24, 2012, because
Petitioner failed to comply with the Medicare enrollment requirements pursuant to 42
C.F.R. § 424.535(a)(1). CMS Exhibit (CMS Ex.) 3, at 1-2. Palmetto also informed
Petitioner that it was establishing a Medicare re-enrollment bar for a period of three
years. CMS Ex. 3, at 2. Specifically, the revocation letter stated that:

Under 42 CFR 424.535(a)(1) CMS may revoke a currently enrolled
provider or supplier’s Medicare billing privileges and any corresponding
provider agreement when the suppliers are not in compliance with the
enrollment requirements specifically outlined in Section 15(a)5
(Certification Statement for 855A application) that states: “I will not
knowingly present or cause to be presented a false or fraudulent claim for
payment by Medicare, and I will not submit claims with deliberate
ignorance or reckless disregard of their truth or falsity.” The supplier
submitted claims for payment that were based upon orders, treatment plans,
or other documents some of which were created by the enrolled supplier
that contain the altered or forged signature of the treating physician.

CMS Ex. 3, at 1.

Petitioner timely filed a request for reconsideration of CMS’s decision to revoke
Petitioner. CMS Ex. 3, at 3. On July 26, 2012, CMS issued a reconsidered determination
that upheld the revocation based on Petitioner’s noncompliance with Medicare
enrollment requirements. CMS Ex. 3, at 3-5. In the reconsideration decision, CMS states
that “[a]ll of the documentation in the file for this case has been reviewed and the
decision has been made in accordance with Medicare guidelines as outlined in 42 CFR

§ 424.535(a)(1). Specifically, [Petitioner] has not provided evidence to show that it did
not submit false or fraudulent claims.” CMS Ex. 3, at 4.

Petitioner then filed a hearing request (HR) and administrative subpoena request with the
Civil Remedies Division of the Departmental Appeals Board on September 19, 2012, and
the case was assigned to me for hearing and decision. I subsequently issued an order
denying Petitioner’s request for issuance of subpoenas because Petitioner did not comply
with the requirements of 42 C.F.R. § 498.58. Petitioner filed a motion for
reconsideration of that order, and CMS filed an opposition. I denied Petitioner’s motion
for reconsideration.

In accordance with my Acknowledgment and Pre-hearing Order issued on October 3,
2012, CMS filed its pre-hearing exchange, incorporating a Motion for Summary
Judgment and brief (CMS Br.), with eight exhibits (CMS Exs. 1-8). In its brief, CMS
stated that:

This brief serves as notice of CMS’ amendment of its basis for the
revocation.... As previously, CMS is proceeding on the basis of the
same regulation, 42 C.F.R. § 424.535(a)(1), and on the same theory, i.e.,
[Petitioner’s] noncompliance with the requirements on the enrollment
application. CMS amends its basis for the revocation only insofar as to
characterize Petitioner’s behavior as a failure to maintain the required
conformance to the Medicare laws, regulations, and program instructions
that apply to this provider....

CMS Br. at 2 (internal quotation omitted).

Specifically, CMS claims that home health agencies may only receive Medicare
reimbursement for services provided to beneficiaries who are under the care of a
physician and that the physician must have a face-to-face encounter with the beneficiary
and certify the necessity of the home health services. 42 C.F.R. § 424.22(a); Medicare
Benefit Policy Manual, 100-101, § 30.5.1.1. CMS claims that Petitioner did not meet
these Medicare requirements with regard to the claims Petitioner submitted for

66 beneficiaries. CMS Br. at 9.

Petitioner then filed a Motion for Summary Judgment and brief (P. Br.), with two
exhibits (P. Exs. 1-2). In Petitioner’s Motion for Summary Judgment, Petitioner claims
CMS “has wholly abandoned the theory upon which the revocation was based” and that
Petitioner has been prejudiced by CMS’s revocation of its provider number based on a
new legal theory. P. Br. at 6. Also, Petitioner “‘proffer[ed] the submission of copies of
the actual medical records for the 66 beneficiaries that CMS claims were not treated by
the certifying physician].” P. Br. at 8. Petitioner stated it was “offering this as a proffer
rather than submitting them as exhibits because the records are extremely voluminous,
contained protected health information, and CMS has not raised any issue outside of the
billing issue.” P. Br. at 8. CMS subsequently submitted a response in opposition to
Petitioner’s Motion for Summary Judgment (CMS Response).

On January 18, 2013, considering Petitioner did not come forward with any actual
medical documentation, I gave Petitioner an opportunity to supplement the record in this
case and to file as exhibits the records for the 66 beneficiaries, identified in CMS’s
Motion for Summary Judgment, whose care was allegedly certified in accordance with
Medicare requirements at 42 C.F.R. § 424.22. On January 28, 2013, Petitioner filed five
“composite” exhibits. (P. Composite Exs. 1-5). CMS submitted a response to the
additional documents that Petitioner submitted. (CMS Response to Additional
Documents). Petitioner then submitted a reply to CMS’s response. (P. Reply). In the
absence of objection, I admit CMS Exs. 1-8, P. Exs. 1-2, and P. Composite Exs. 1-5 into
the record.

II. Applicable Law

The Medicare statute defines “home health services” as “items and services furnished to
an individual, who is under the care of a physician . . . under a plan (for furnishing such
items and services to such individual) established and periodically reviewed by a
physician....” 42 U.S.C. § 1395x(m). Home health services are covered by Medicare
“only if... a physician certifies .. . that .. . home health services . . . are or were
required because the individual is or was confined to his home . . . and needs or needed
skilled nursing care... .” 42 U.S.C § 1395f(a)(2)(C); 42 U.S.C § 1395n(a)(2)(A).
A home health agency may receive Medicare payment for home health services for
individuals only after the home health agency has obtained a valid certification from a
physician that the individual is homebound and requires home health services. 42 U.S.C
§§ 1395f(a)(2)(C), 1395n(a)(2)(A). Home health services must be furnished while the
individual is under the care of a physician, and a physician must establish and
periodically review a plan of care for furnishing the services. 42 C.F.R. §
424.22(a)(ili),(iv). Also, the certifying physician is required to know the Medicare
beneficiary’s medical status, and therefore there must be a face-to-face encounter with
the individual, 42 C.F.R. § 424.22(a); Medicare Benefit Policy Manual, CMS Publication
100-102, Ch. 7 (Home Health Services), § 30.5.1.1. The face-to-face encounter must be
“related to the primary reason the patient requires home health services ....” 42 C.F.R.
§ 424.22(a)(1)(v).

A physician and the home health agency personnel must review a Medicare beneficiary’s
plan of care at regular intervals. 42 C.F.R. § 484.18(b). Also, the home health agency is
required to “promptly alert the physician” to significant changes that suggest a need to
alter the plan of care. 42 C.F.R. § 484.18(b). The home health agency consults with the
individual’s physician to obtain approval of any “additions or modifications to the
original plan” of care. 42 C.F.R. § 484.18(a).

Section 424.535(a) of 42 C.F.R. authorizes CMS to “revoke a currently enrolled provider
or supplier’s Medicare billing privileges and any corresponding provider agreement or
supplier agreement” for reasons including, as relevant here:

(1) Noncompliance. The provider or supplier is determined not to be in
compliance with the enrollment requirements described in this section,
or in the enrollment application applicable for its provider or supplier type... .

II. Analysis
A. Issue

The issue in this case is whether CMS is entitled to summary judgment on the grounds
that CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing
privileges.

B. Applicable Standard

Summary judgment is appropriate when a case presents no issue of material fact, and its
resolution turns on questions of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
48 (1986); Livingston Care Ctr. v. United States Dep’t of Health and Human Servs., 388
F.3d 168, 173 (6th Cir. 2004); see also Illinois Knights Templar Home, DAB No. 2274,
at 3-4 (2009) (citing Kingsville Nursing Ctr., DAB No. 2234, at 3-4 (2009)).
The moving party may show the absence of a genuine factual dispute by presenting
evidence so one-sided that it must prevail as a matter of law, or by showing that the non-
moving party has presented no evidence “sufficient to establish the existence of an
element essential to [that party’s] case, and on which [that party] will bear the burden of
proof at trial.” Livingston Care Ctr., 388 F.3d at 173 (quoting Celotex Corp. v. Catrett,
477 US. 317, 323-24 (1986)). To avoid summary judgment, the non-moving party must
then act affirmatively by tendering evidence of specific facts showing that a dispute
exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11
(1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing and Rehab.
Ctr., DAB No. 1918 (2004).

To defeat an adequately supported summary judgment motion, the non-moving party may
not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute
concerning a material fact. I/linois Knights Templar, DAB No. 2274, at 4; Livingston
Care Ctr., DAB No. 1871, at 5 (2003). In examining the evidence to determine the
appropriateness of summary judgment, I must draw all reasonable inferences in the light
most favorable to the non-moving party. See Brightview Care Ctr., DAB No. 2132, at 2,
9 (2007); Livingston Care Ctr., 388 F.3d at 168, 172; Guardian Health Care Ctr., DAB
No. 1943, at 8 (2004); but see Cedar Lake Nursing Home, DAB No. 2344, at 7 (2010);
Brightview, DAB No. 2132, at 10 (noting entry of summary judgment upheld where
inferences and views of non-moving party are not reasonable). However, drawing factual
inferences in the light most favorable to the non-moving party does not require that I
accept the non-moving party’s legal conclusions. Cedar Lake, DAB No. 2344, at 7;
Guardian, DAB No. 1943, at 11 (“A dispute over the conclusion to be drawn from
applying relevant legal criteria to undisputed facts does not preclude summary judgment
if the record is sufficiently developed and there is only one reasonable conclusion that
can be drawn from those facts.”).

The role of an Administrative Law Judge (ALJ) in deciding a summary judgment motion
differs from the ALJ’s role in resolving a case after a hearing. The ALJ should not assess
credibility or evaluate the weight of conflicting evidence. Holy Cross Vill. at Notre
Dame, DAB No. 2291, at 4-5 (2009).

C. Findings of Fact and Conclusions of Law

1. CMS was authorized to change its revocation basis because Petitioner
had notice and opportunity to respond during this administrative
proceeding.

Petitioner argues that its revocation should be “rescinded because CMS could not prove
the actual basis for the revocation” and that CMS “has wholly abandoned the theory upon
which the revocation was based and replaced it with one that CMS believes it could
actually prove.” P. Br. at 5-6. Petitioner also contends that it did not attempt to submit a
corrective action plan (CAP) because it was not reasonable that CMS would accept a
CAP designed to correct CMS’s original theory of the basis for revocation. P. Br. at 7.
Therefore, Petitioner claims it has been prejudiced by CMS’s amending of the basis for
Petitioner’s revocation at this level of review because CMS relies on a new legal theory
for the revocation, and Petitioner did not have an opportunity to submit a CAP.

The Board has consistently held that after an administrative appeal has commenced, a
federal agency may assert and rely on new or alternative grounds for the challenged
action or determination as long as the non-federal party has notice of, and a reasonable
opportunity to respond to, the asserted new grounds during the administrative proceeding.
Green Hills Enters., LLC, DAB No. 2199 (2008). See also Abercrombie v. Clarke, 920
F.2d 1351, 1360 (7th Cir. 1990), cert. denied, 520 U.S. 809 (1991) (holding that defects
in formal notice may be cured during the course of an administrative proceeding, and due
process is satisfied as long as the party is reasonably apprised of, and given opportunity
to address, the issues in controversy); St. Anthony Hosp. v. Sec’y, Dep't of Health and
Human Servs., 309 F.3d 680, 708 (10th Cir. 2002) (“To establish a due process violation
[in an administrative proceeding], an individual must show he or she has sustained
prejudice as a result of the allegedly insufficient notice.”) .

It is evident from CMS’s many briefs in this matter that CMS chooses to revoke
Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(1) on the grounds
that Petitioner failed to maintain the required conformance “to the Medicare laws,
regulations, and program instructions that apply to this provider.” CMS Br. at 2. During
this stage of the proceeding, I provided Petitioner with ample opportunity to refute
CMS’s determination that it was found noncompliant based on failure to comply with
Medicare laws and regulations and specifically the requirements of 42 C.F.R. § 424.22. I
permitted Petitioner to respond to every submission CMS filed at this level of review and
ordered Petitioner to supplement the record with evidence that could support Petitioner’s
position that its revocation was improper, the same type of opportunity that Petitioner
would have if the contractor were to have offered Petitioner a CAP at the initial
determination stage. Therefore, I do not find that Petitioner has been prejudiced, and I
deny Petitioner's Motion for Summary Judgment.

2. The undisputed evidence shows CMS had a legitimate basis to revoke
Petitioner’s Medicare billing privileges because Petitioner was not in
compliance with Medicare requirements for home health certifications
involving two individuals.

Any home health agency which seeks to enroll as a provider in the Medicare program
must complete a CMS 855A enrollment application. Petitioner completed a CMS 855A
and signed the Certification Statement at Section 15 of the CMS 855A enrollment
application. CMS. Ex. 2. Petitioner’s signature “binds this provider to the laws,
regulations, and program instructions of the Medicare program.” CMS Ex. 2, at 3, 5.
CMS contends that Petitioner submitted claims for home health services which did not
conform to “the Medicare laws, regulations, and program instructions that apply to this
provider.”’ CMS Br. at 2. CMS argues that by signing a CMS 855A Certification
Statement and enrolling in the Medicare program, Petitioner agrees to comport with all
Medicare laws of general applicability and those that apply specifically to home health
agencies. In addition, according to CMS, the text of the CMS 855A places Petitioner on
notice that failure to comply with Medicare laws may be a basis for the revocation of
Petitioner’s enrollment in the Medicare program in the future.

CMS determined to revoke Petitioner’s Medicare billing privileges after an internal CMS
inquiry revealed that the signature of Dr. Emilio Castaneda “was being used in
conjunction with the certification of an enormous number of Medicare beneficiaries for
ome health services” and “‘Dr. Castaneda’s NPI [National Provider Identifier] was
coming up in the Medicare program’s data as having been used by a number of home
ealth agencies [in the south Florida area] with surprising frequency.” CMS Ex. 6, at {J
8-9. CMS contends that Petitioner submitted Medicare home health claims on behalf of
66 individuals and named Dr. Castaneda as the certifying physician in each instance;
iowever, CMS’s Medicare reimbursement records for Dr. Castaneda do not indicate that
Dr. Castaneda was involved in the care of those 66 individuals. CMS Br. at 10; CMS
Exs. 4 and 5. Thus, CMS contends that Petitioner’s submission of Medicare claims for
individuals who were not under the care of a physician constituted noncompliance, and
CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing
privileges.

Petitioner argues that the evidence CMS presents does not prove that these 66 individuals
were not under the care of Dr. Castaneda. P. Br. at 4. Petitioner includes an affidavit of
Mayelin Moner, Petitioner’s owner, who generally states that Dr. Castaneda ordered the
66 individuals referenced in CMS’s Motion for Summary Judgment to receive home
ealth services. P. Ex. 1. Petitioner offers a variety of explanations for why Dr.
Castaneda did not bill the Medicare program for services for these 66 individuals and
why CMS’s records do not show that Dr. Castaneda was ever involved in the care of
these 66 individuals. P. Br. at 4-5. Petitioner also suggests that CMS should have come
forward with other types of evidence to establish that Dr. Castaneda did not actually treat
these 66 individuals. P. Br. at 5.

Petitioner did not initially come forward with any actual treatment records of its patients
but instead filed a “proffer of home health records as evidence” and proffered the
“submission of copies of the actual medical records for the 66 beneficiaries that CMS
claims were not treated by Dr. Castaneda.” Petitioner requested “the opportunity to
include these as exhibits if either the ALJ or CMS has concerns as to whether appropriate
medical records exist for these beneficiaries.” P. Br. at 8. In its response brief, CMS

' Specifically, CMS refers to the requirement that home health agencies may only
receive Medicare reimbursement for services provided to individuals who are under the
care of a physician, and the physician must have a face-to-face encounter with the
individuals and certify the necessity of the home health services. CMS contends that
these requirements were not met with respect to claims Petitioner submitted for 66
individuals. CMS Br. at 9.
argues that Petitioner has presented no evidence “from any of its home health patients to
attempt to show that the patient was under the medical care of Castaneda or even knew
Castaneda.” CMS Response at 6. CMS also argues that “a home health agency is always
responsible for ensuring that its own Medicare billing practices comply in full with
Medicare law and policy, and so the home health agency is accountable for the integrity
of the information contained in the claims by which it seeks Medicare funds.” CMS
Response at 6-7. CMS contends that Petitioner was obligated to timely present its case
after CMS came forward with Medicare program records indicating that Dr. Castaneda
was never involved in the care of 66 individuals for which Petitioner submitted claims for
ome health care services to Medicare and argues that Petitioner’s proffer of unspecified
voluminous home health records is inappropriate in this proceeding. CMS Response at 7.

In order to determine whether CMS had a legitimate basis for revoking Petitioner’s
Medicare billing privileges for submitting home health claims that allegedly had no
physician certification, I determined Petitioner must submit copies of the medical records
for the 66 individuals for whom CMS claims Dr. Castaneda did not certify. In response
to my Order to Supplement the Record, which directed Petitioner to file as exhibits
documentation for these 66 individuals, Petitioner provided five “composite exhibits.”
These composite exhibits provide some documentation for 64 out of the 66 individuals
CMS references in its Motion for Summary Judgment.’ P. Composite Exs. 1-5; CMS Br.
at 14-38.

However, Petitioner did not submit any documentation at all for individuals whom CMS
identified as Beneficiary #43 and Beneficiary #58. P. Composite Exs. 1-5; CMS Br. at
29, 34-35. Petitioner presented nothing to suggest that these individuals were ever under
Dr. Castaneda’s care for home health services in accordance with 42 C.F.R.

§ 424.22. Petitioner does not dispute, however, that it billed Medicare for services Dr.
Castaneda purportedly approved for these beneficiaries.

Petitioner argues that it has requested the issuance of subpoenas through which it could
obtain medical records for patients Dr. Castaneda saw during his employment with C&M
Physicians’ Group, Inc., a Miami clinic which is no longer in business, and that “CMS
must not be permitted to complain about [Petitioner’s] inability to obtain medical records
and at the same time oppose the only legal vehicle through which [Petitioner] might. . .
obtain those records.” P. Reply at 2-3. However, Petitioner has not provided any
explanation as to why Petitioner must obtain medical records for these individuals from

> The documentation for the 64 of the 66 beneficiaries includes CMS forms for home
health certification and plan of care, model verification forms for documentation of face-
to-face encounters, verbal order forms, and other referral paperwork. P. Composite Exs.
1-5. Petitioner submitted a plan of care that Dr. Castaneda signed for 63 of the 64
individuals for whom Petitioner provided documentation. P. Composite Exs. 1-5; CMS
Br., at 16. Petitioner also submitted a face-to-face encounter document for only 47 of the
64 individuals with documentation. Jd.

another source in order to prove Petitioner’s clients were under the care of a physician.*
Petitioner also provides no explanation as to why Petitioner did not have plans of care,
face-to-face encounter documentation, and other certification paperwork indicating that
all Petitioner’s Medicare clients met the requirements of 42 C.F.R. § 424.22, prior to
submitting claims for Medicare payment.

The law clearly requires that a physician must be involved in the certification of an
individual for home health services and a physician’s ongoing involvement in the care of
that individual. 42 U.S.C § 1395f(a)(2)(C); 42 U.S.C § 1395n(a)(2)(A). Medicare
program guidance echoes these statutory requirements: “[t]he patient must be under the
care of a physician who is qualified to sign the certification statement and plan of care. . .

A patient is expected to be under the care of the physician who signs the plan of care and
the physician certification.” Medicare Benefit Policy Manual, 100-101, § 30.3. The
physician must base his certification of the need for home health services upon a face-to-
face encounter with the patient and the encounter must be related to the primary reason
the patient requires home health services. 42 C.F.R. § 424.22(a).

Because Petitioner did not bring forth any evidence with regard to two individuals which
could show that these individuals were under the care of Dr. Castaneda or that Dr.
Castaneda certified the necessity of home health care services, I find Petitioner did not
conform to “the laws, regulations, and program instructions of the Medicare program.”*
By signing the Certification Statement at Section 15 of the CMS 855A enrollment
application, Petitioner was bound to comply with all applicable legal requirements. CMS
Ex. 2, at 3,5. Thus, I find that CMS was authorized to revoke Petitioner’s Medicare
billing privileges for noncompliance with the enrollment application applicable for its
provider or supplier type pursuant to 42 C.F.R. § 424.535(a)(1).

3. Petitioner’s owner’s affidavit and composite exhibits do not create a
genuine dispute of material fact which could overcome CMS’s Motion for
Summary Judgment because Petitioner does not tender evidence of
specific facts showing that a dispute exists for two individuals.

To avoid summary judgment, the non-moving party must act affirmatively by tendering
evidence of specific facts showing that a dispute exists regarding an essential element of
the case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11
(1986). A mere scintilla of supporting evidence is not sufficient to overcome a well-

3 A proper subpoena request requires a party to specify the pertinent facts the party
expects to establish by the witnesses or documents and indicate why those facts could not
be established without the use of a subpoena. 42 C.F.R. § 498.58(c)(3).

* CMS also argues that Petitioner has presented only “referral paperwork” and no proper
evidence of actual treatment, care, or medical monitoring of all 66 individuals. However,
for purposes of summary judgment, considering Petitioner has come forward with some
specific evidence, I will infer in Petitioner’s favor that Dr. Castaneda provided
appropriate certifications of the need for home health services for 64 beneficiaries.
10

supported motion for summary judgment. “If the evidence is merely colorable or is not
significantly probative, summary judgment may be granted.” Livingston Care Ctr. v.
Dep’t. of Health & Human Services, 388 F.3d 168, 173 (6th Cir. 2004) (quoting
Anderson vy. Liberty Lobby, 477 U.S. 242, at 249-250 (1986)).

In order to dispute whether Dr. Castaneda provided the required treatment for the 66
home health clients CMS names, Petitioner came forward with an affidavit of Petitioner’s
owner simply stating that “[i]n preparations for this appeal, I have reviewed our agency’s
records” and “[t]he 66 Medicare beneficiaries appearing on Exhibit 5 of [CMS’s] Motion
for Summary Judgment were ordered to receive home health services by Emilio
Castaneda, M.D.” P. Ex. 1, at §§ 4-5.

Once I ordered Petitioner to supplement the record, Petitioner came forward with actual
medical records for only 64 of the 66 home health clients that CMS named. Therefore,
for two patients, the only evidence that Petitioner has ultimately come forward with to
prove the disputed fact that Dr. Castaneda provided certification for care, is Petitioner’s
owner’s affidavit. CMS emphasized in its Response to Additional Documents that,
despite assertions in Petitioner’s brief that records were maintained for all the patients
CMS identified, Petitioner did not account for these two patients.

Although I am required to draw all reasonable inferences in the light most favorable to
Petitioner in deciding CMS’s motion for summary judgment, Petitioner is required to
come forward with specific evidence to show a genuine issue of material fact exists.
However, Petitioner’s owner’s affidavit does not provide the specificity of facts needed
to properly overcome CMS’s motion for summary judgment. The affidavit, for example,
does not describe the two patients, the type of care Dr. Castaneda allegedly provided to
the two patients, when the care was provided, or the level of review of records that the
owner conducted. Therefore, without any medical records, the owner’s vague statement
alone does not provide the specificity for me to draw an inference in Petitioner’s favor
that Dr. Castaneda provided the requisite certifications for those two patients. Therefore,
after careful review of the documentation that Petitioner provided, I cannot conclude that
Petitioner has presented evidence sufficient to establish the existence of a genuine factual
dispute to an essential element of its case, and CMS is entitled to summary judgment.

IV. Conclusion

Petitioner has not shown a genuine issue of material fact exists with regard to CMS’s
challenge that a physician did not certify two of Petitioner’s patients pursuant to
Medicare home health care requirements. As a result, I must sustain CMS’s
11

determination to revoke Petitioner’s Medicare enrollment and billing privileges because
the undisputed evidence shows that Petitioner was not compliant with Medicare program
requirements.

/s/
Joseph Grow
Administrative Law Judge