Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Decision No. CR1671
Centers for Medicare &
Medicaid Services.

In the Case of: )
)
Clean Heart Home Health Services, Inc, )
d/b/a CHHHS, )
(CCN: 45-7887) )
) Date: October 11, 2007
Petitioner, )
)
-V.- ) Docket No. C-07-425
)
)
)
)

DECISION AND ORDER

This matter is before me on CMS’s motion for summary judgment filed August 2, 2007
and its motion to dismiss filed May 24, 2007, and is illuminated by all pleadings filed in
this case since my Order of June 11, 2007. On the basis of those filings, and based on the
reasons, findings, and conclusions set out below, I AFFIRM the termination of Petitioner,
or Clean Heart Home Health Services, Inc., (CHHHS) from participation in the Medicare
program as a home health agency.

Those filings all relate to the request for hearing filed by CHHHS on April 30, 2007.
Until March 20, 2007 CHHHS was a participant in Medicare’s home health agency
program, but on March 1, 2007 CMS notified CHHHS that its non-compliance with two
conditions of program participation warranted its termination from the Medicare program.
The Request for Hearing identified no factual findings or legal conclusions with which
CHHHS disagreed, set out no particular basis for its appeal, and merely promised that,
“[djocumentations identifying issues, facts and findings relevant to a fair and just
adjudication of the requested hearing will be submitted under separate cover.” No such
separately-submitted documents appear in this record.
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My Order of June 11, 2007 noted that Petitioner’s request for hearing was defective and
allowed Petitioner an opportunity to amend its request for hearing so as to make it
compliant with the content requirements of 42 C.F.R. § 498.40(b). That Order was the
result of the position CMS marked out in its May 24, 2007 motion to dismiss, and was
guided by the principle that petitioners should be given a reasonable opportunity to
preserve their appeals by correcting defectively-pleaded requests for hearings. High Tech
Home Health, Inc., DAB No. 2105 (2007); The Carlton at the Lake, DAB No. 1829
(2002); Alden Nursing Center - Morrow, DAB No. 1825 (2002). This forum does not
lightly conclude that a petitioner has failed in a good-faith effort to perfect its appeal and
take advantage of its right to a hearing, and expects its administrative law judges (ALJs)
to extend reasonable latitude to a petitioner who seeks a hearing but has faltered “on
minor procedural grounds, in a way that somehow caught the (p)etitioner unaware.” High
Tech Home Health, Inc., DAB No. 2105, at 14. Accordingly, my Order of June 11, 2007
directed CHHHS’s attention to the language of 42 C.F.R. § 498.40(b) and pointed out the
specific items it must include in an amended pleading.

CHHHS filed its amended request for hearing on June 29, 2007. At page four of the
amended request for hearing, and in explicit reference to 42 C.F.R. § 484.55 (G-330),
appears the unequivocal concession that, “CHHHS does not object to the fact that some
conditions under this referenced Regulation were violated and were brought to the
attention of CHHHS during the... survey.” CMS responded on August 2, 2007 with a
motion for summary judgment, in which CMS asserted that Petitioner’s amended request
for hearing conceded its violation of the condition-level standard of Medicare program
participation set out at 42 C.F.R. § 484.55 (G-330). CMS acknowledged that the
amended request for hearing challenged Petitioner’s citation for non-compliance with the
condition-level standard set out at 42 C.F.R. § 484.36 (G-202), but argued in its motion
that the amended request for hearing raised no material issues of fact as to Petitioner’s
citation for non-compliance with 42 C.F.R. § 484.55 (G-330).

It is CMS’s present position that the unappealed deficiency cited pursuant to 42 C.F.R.

§ 484.55 (G-330) has become final through Petitioner’s concession, and that it is fully
adequate without more to support Petitioner’s termination as a Medicare program
provider. 42 C.F.R. § 488.28(a). Put in a slightly different way, CMS asserts that there is
presently no disputed issue of fact relative to the unappealed and final 42 C.F.R.

§ 484.55 (G-330) citation; that the fact of its finality is sufficient in itself pursuant to 42
C.F.R. § 488.28(a) to support the termination of Petitioner’s participation in the Medicare
program; and that it is as a matter of law entitled to summary judgment affirming that
termination.
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Petitioner filed its “Opposition to Respondent’s Motion for Summary Judgment” on
August 27, 2007. The “opposition” it sets out is unclear at best. It does not adequately
reply to CMS’s motion for summary judgment in general, and it fails completely to take
advantage of its opportunity to challenge the 42 C.F.R. § 484.55 (G-330) citation. My
review of that pleading left me persuaded that it remained defective, and my Order of
September 5, 2007 again extended Petitioner an opportunity to correct the defect.
Petitioner’s “Addendum on Opposition to Respondent’s Motion for Summary Judgment”
was filed on September 14, 2007, and CMS filed its response on September 19, 2007.
Disregarding the final paragraph of the September 5, 2007 Order, Petitioner, on
September 21, 2007 filed its “Supplementary Information to Opposition to Respondent’s
Motion for Summary Judgment.”

Dispositions by summary judgment are authorized in this forum, and this forum looks to
FED. R. CIV. P. 56 for guidance in addressing motions for summary judgment. Summary
judgment may be entered when the record shows that there is no genuine dispute as to any
material fact, and that the moving party is entitled to judgment as a matter of law. White
Lake Family Medicine, P.C., DAB No. 1951 (2004); Lebanon Nursing and Rehabilitation
Center, DAB No. 1918 (2004). The party moving for summary judgment bears the initial
burden of showing the basis for its motion and identifying the portions of the record that
it believes demonstrate the absence of a genuine factual dispute. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). This burden may be discharged by showing that there
is no or insufficient evidence proffered to support a judgment for the non-moving party.
Id. at 325.

On the basis of its motion for summary judgment and all of the other pleadings filed thus
far, CMS has made a prima facie showing that there are no material facts in dispute as to
Petitioner’s non-compliance with 42 C.F.R. § 484.55 (G-330), that Petitioner’s citation
for non-compliance with 42 C.F.R. § 484.55 (G-330) has now become final, and that
Petitioner’s termination is therefore justified as a matter of law.

To defeat an adequately-supported summary judgment motion, the non-moving party may
not rely on the denials in its pleadings, but must furnish evidence of a genuine dispute
concerning a material fact — a fact that, if proven, would affect the outcome of this case
under the governing law of this forum. Petitioner’s amended request for hearing does not
reflect that it contests its citation for non-compliance with 42 C.F.R. § 484.55 (G-330),
and neither does its August 27, 2007 “Opposition” nor its September 14, 2007
“Addendum” go beyond oblique suggestions of near-compliance with the cited
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regulation. Each fails completely to furnish evidence of a dispute concerning a material
fact in connection with 42 C.F.R. § 484.55 (G-330), and read together they accomplish
nothing more. Petitioner’s unauthorized September 21, 2007 filing entitled
“Supplementary Information” adds nothing.

Thus, at this point, Petitioner’s termination for noncompliance with 42 C.F.R. § 484.55
(G-330) is subject to summary affirmation. My September 5, 2007 Order told Petitioner,
in language as plain as the adversary process will permit, that if it intended to resist
CMS’s motion for summary judgment, it must furnish evidence sufficient to raise a
genuine issue of fact as to its non-compliance with 42 C.F.R. § 484.55 (G-330) on
February 1, 2007, the date of the survey in question. It was advised to be guided in its
efforts by FED. R. CIv. P. 56.

In the face of these plain admonitions, Petitioner has failed to bring the issue of its non-
compliance with 42 C.F.R. § 484.55 (G-330) on February 1, 2007 into genuine question
before me. CMS argues that the citation has become administratively final by operation
of Petitioner’s failure to appeal it timely, a result Petitioner might have avoided by
properly pleading its amended request for hearing, or even more lately by correcting the
defects in the amended request for hearing by adequate pleading in its “Opposition” or its
“Addendum.” But the record before me now is clear: Petitioner simply does not now
assert a material basis for contesting its citation for non-compliance with 42 C.F.R.

§ 484.55 (G-330). In point of fact, it has never colorably asserted that it was in
substantial compliance with that regulation on February 1, 2007. CMS is entitled to
summary judgment because the predicate for its termination of CHHHS, the citation for
non-compliance with 42 C.F.R. § 484.55 (G-330), is not before me in this appeal.

Once that result has been explained, there is little left to debate. The regulation is clear
that even a single uncorrected condition-level deficiency will support the stern remedy of
termination of a facility’s participation in the Medicare program as an home health
agency. 42 C.F.R. § 488.28(a). Non-compliance with 42 C.F.R. § 484.55 (G-330) isa
condition-level deficiency, and CHHHS was non-compliant with that regulation on
February 1, 2007. CMS’s action in terminating CHHHS was authorized, and even if
CHHHS were to prevail here in its challenge to the citation based on 42 C.F.R. § 484.36
(G-202), its termination from the Medicare program would not be reversed or invalidated.
In general, this forum recognizes that in those circumstances, an ALJ need not adjudicate
challenges that, even if successful, could not affect the imposition of sanctions.
Comprehensive Professional Home Visits, DAB No. 1934 (2004); Ross Healthcare
Center, DAB No. 1896 (2003); Bethel Health Care Center, DAB CR1067 (2003);
EagleCare, Inc., d/b/a Beech Grove Meadows, DAB CR923 (2002); Orchard Grove
Extended Care Center, DAB CR541 (1998).

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For the reasons set forth above, I find and conclude as follows:

1. Petitioner failed to comply substantially with the condition of participation in
the Medicare program as a home health agency as set out at 42 C.F.R. § 484.55 (G-330)
when surveyed on February 1, 2007.

2. CMS was authorized to terminate Petitioner’s participation in the Medicare
program effective March 20, 2007.

ACCORDINGLY, this Decision granting judgment in favor of CMS, in conformity with
the reasons, findings, and conclusions set out above, is entered herewith. The termination
of Petitioner from participation in the Medicare program as a home health agency must
be, and it is, in all respects AFFIRMED.

/s/
Richard J. Smith
Administrative Law Judge