REQUEST FOR HEARING

October 7, 2021

 

 

DEPARTMENT OF HEALTH AND HUMAN SERVICES

DEPARTMENTAL APPEALS BOARD

(CIVIL REMEDIES DIVISION)

 

 

FNI Healthcare, Inc.

 

(Appellant)

 

v.

 

Center for Medicare & Medicaid Services

 

(Appellee) 

 

 

PURSUANT TO 42 C.F.R. §

498.40

 

 

REQUEST FOR HEARING

 

 

The Appellant respectfully requests for a hearing before an Administrative Law Judge of the Department of Health and Human Services, Departmental Appeals Board (DAB) to appeal an action imposed on their facility by the Appellee.  

Background

FNI Healthcare Inc, the Appellant, is a Medicare certified home health company with CMS Certification Number 497702. The Appellant is in the State of Virginia with their registered address at 5716 Cleveland Street – Suite 170, Virginia Beach, VA (23462-1784). On August 6, 2019, Center for Medicare & Medicaid Services (CMS) sent a letter to the Appellant’s Representative, Mr. Digvijay Singh. This letter determined that the Appellant had failed to meet the requirements for participation as a provider of services in the Health Insurance Program established under Title XVIII of the Social Security Act and Title XIX of the Medicaid Act. As a result, the Appellee decided to impose a Federal Civil Monetary Penalty (CMP) of $18,468.00 as well as a CMP of $4,500.00 per day based on the deficiencies found during the survey done effective June 7, 2019. Subsequently, the Appellant received another letter from CMS on August 11, 2019 which finally set the CMP $189,000.00 for the period of non-compliance from June 6, 2019 through June 18, 2019. 

Appellant’s Request for Hearing

The Appellant seeks to appeal this decision and requests for hearing with an Administrative Law Judge of the Department of Health and Human Services, Departmental Appeals Board. The Appellant’s right to appeal the Appellee’s decision is provided for under 42 C.F.R. § 498.40 and was also highlighted in the Appellee’s letter on August 6, 2019.

Request for Hearing Grounds

This hearing request is based on the Appellant’s disagreement with the following specific issue, finding of fact and conclusion of law:

The Appellee claims to have determined the amount of the CMP based on applicable factors listed at 42 C.F.R. § 488.845(b)(1) including, but not limited to, a) the nature of the deficiency, b) the facility’s history of non-compliance (including repeated deficiencies), c) the extent to which the deficiencies are directly related to a failure to provide quality patient care, c) indications of system-wide failures to provide quality care, d) the size of the facility, and e) the financial condition of the facility to the extent it is known.

  1. The Appellant disagrees with the Appellee’s reasoning and application of factors in determining the amount of the CMP; and
  2. The Appellant disagrees with the amount of the CMP imposed by the Appellee.

The Appellant’s basis for contending that these findings and conclusions are incorrect are as follows:

  1. The Appellant contends that the factors used by the Appellee to determine the CMP under 42 C.F.R. § 488.845(b)(1) are inapplicable. The Appellant specifically argues that they were incorrectly applied due to the following:
    1. Nature of deficiency: The Appellant contends that this is not entirely applicable because observations made and the evidence presented by the state surveyors does not dispute the fact that the staff of the company procured the agreement of the patient about the schedule and clinical scope of the planned visits before delivering any care.
    2. History of non-compliance including repeated deficiencies: The Appellant contends that this is inapplicable and irrelevant because the Appellant has never been cited for the tag G434. Therefore, the company has no history of non-compliance
    3. Extent to which deficiencies relate to failure to provide quality patient care: The Appellant contends that this is not entirely applicable because the missing verbiage in the POC of this agreement per se would have had no impact on the ability of the company staff to provide quality patient care.
    4. Indications of system-wide failures to provide quality care: The Appellant contends that this is not entirely applicable because this deficiency has no impact on the ability of the company staff to provide quality patient care, it cannot possibly be an indication of system-wide failures to provide quality care.
    5. Size of the facility: The Appellant contends that this is not entirely applicable because the size of the facility has changed making the amount more than the total aggregate reimbursement from Medicare per month.
    6. Financial condition of the facility: The Appellant contends that this is incorrectly applied since the financial condition of the facility does not match the amount of CMP imposed based on a proportionality test. 
  2. Therefore, the Appellant also contends that, in light of the above, the amount of the CMP imposed by the Appellee is excessive because it was determined incorrectly. 

Conclusion

As demonstrated by the Appellant, the grounds for the Request for Hearing set under 42 C.F.R. § 498.40 have been met in this case since the Appellant has: a) identified the specific issues, findings and conclusions with which they disagree, and b) specified the basis for contending that the findings and conclusions are incorrect. The Appellant has also attached a copy of the Appellee’s notice letter which set forth CMS’s adverse action and the Appellant’s appeal rights as prescribed therein. Furthermore, the Appellant has made this request within the time limit of 60 days specified in the statute. 

WHEREFORE, for the foregoing reasons, the Appellant respectfully submits this request for hearing. 

 

Dated this 1 day of October, 2019.

Respectfully submitted,

 

____________________________________

Mr. Digvijay Singh

FNI Healthcare, Inc.

5716 Cleveland Street – Suite 170

Virginia Beach, VA 23462-1784

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