Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Oak Lawn Pavilion,
Petitioner,
v.
Health Care Financing Administration.
DATE: July 10, 1996
Docket Nos. C-96-078, C-96-139
Decision No. CR426
DECISION
I. Background and Issue
In these two cases filed by Oak Lawn Pavilion
(Petitioner) against the Health Care Financing
Administration (HCFA), I decide that I do not have
jurisdiction to hear and decide the denial by HCFA of
Petitioner's participation in the Medicare program. In
addition to the above captioned two cases, there is
pending before me the case docketed as C-95-155, which
resulted from HCFA's having terminated Petitioner's
participation in the Medicare program effective May 31,
1995. A hearing on Petitioner's challenges to the
termination of Medicare participation has been scheduled
for the week of July 15, 1996.
The two more recently filed actions involve
determinations made by HCFA after it terminated
Petitioner's Medicare participation agreement on May 31,
1995. In the case docketed as C-96-078, Petitioner
requested a hearing after having received HCFA's notice
dated October 6, 1995, which referenced the results of a
survey conducted on August 24, 1995. In the case
docketed as C-96-139, Petitioner requested a hearing
after having received HCFA's notice dated February 16,
1996, which referenced the results of a survey conducted
on October 31, 1995.
In each of its two hearing requests at issue, Petitioner
asserted that it was contesting HCFA's denial of
Petitioner's "application to participate" in the Medicare
program. Hearing Requests dated November 9, 1995 and
February 21, 1996. However, in the two notices
underlying Petitioner's hearing requests, HCFA stated its
determination that Petitioner did not meet the criteria
for "re-entry" into the Medicare program. HCFA Notices
dated October 6, 1995 and February 16, 1996 (HCFA
Notices). In each of the two notices, HCFA stated also
that the relevant survey
revealed that your facility does not qualify for
Medicare certification in accordance with the
Federal regulations at 42 C.F.R. 488.330(b)(2),
since your facility was determined to not be in
substantial compliance, as defined in Federal
regulation at 42 C.F.R. 488.301.
HCFA Notices. 1/
During a prehearing conference held on April 9, 1996, I
suggested that Petitioner move to dismiss the two 1996
actions without prejudice pending the outcome of the
hearing on HCFA's termination of Petitioner's provider
agreement. Order Consolidating Hearing Requests and
Setting Briefing Schedule (April 17, 1996). However,
Petitioner chose not to take this course of action. Both
parties asked me to resolve the question of whether
HCFA's determinations that are challenged in Docket Nos.
C-96-078 and C-96-139 gave rise to hearing rights. Id.
I consolidated the proceedings and established briefing
schedules in the two 1996 cases for those reasons. Id.
The parties's briefs and supporting documents in the
consolidated cases 2/ have placed before me the threshold
legal issue of whether, after HCFA has terminated
Petitioner's Medicare provider agreement (and in the
absence of any adjudication setting aside said
termination), Petitioner is entitled to a hearing to
challenge any of the determinations contained in HCFA's
Notices.
II. The Parties' Arguments and Relevant Statutory and
Regulatory Framework
HCFA contends that Petitioner either has no hearing
rights in Docket Nos. C-96-078 and C-96-139 under either
the statute or the Secretary's implementing regulations.
HCFA correctly notes that neither the statute nor the
Secretary has provided hearing rights in all cases where
an entity has received an adverse determination from
HCFA. Section 1866(h)(1) of the Social Security Act (the
Act) states as follows:
an institution or agency dissatisfied
with a determination by the Secretary
that it is not a provider of services or
with a determination described in
subsection (b)(2) shall be entitled to a
hearing thereon by the Secretary . . . to
the same extent as is provided by section
205(b) . . . .
Act, section 1866(h)(1)(emphasis added). For hearings
held under section 205(b) of the Act, the Secretary is
directed to "adopt reasonable and proper rules and
regulations to regulate and provide for the nature and
extent of the proofs and evidence and the method of
taking and furnishing the same . . . ." Act, section
205(a).
As relevant to the first category of determinations with
hearing rights (the determinations that the institutions
or agencies are not providers of services), the Act
defines the term "provider of services" as a hospital,
rural primary care hospital, skilled nursing facility,
comprehensive outpatient rehabilitation facility, home
health agency, hospice program, or a fund under the
specified sections of the Act. 3/ Act, section 1861(u).
With respect to the second category of determinations
with hearing rights (determinations described in
subsection (b)(2)), section 1866(b)(2) specifies that the
determinations by the Secretary or her delegate must be
one of three types: a refusal to enter into an agreement
under section 1866 of the Act, a refusal to renew such an
agreement, or a termination of such an agreement.
Section 1866(c)(1) of the Act provides also:
Where the Secretary has terminated or has
refused to renew an agreement under this
title with a provider of services, such a
provider may not file another agreement
under this title unless the Secretary
finds that the reason for the termination
or nonrenewal has been removed and that
there is reasonable assurance that it
will not recur.
Act, section 1866(c)(1). Even though section 1866(h)(1)
of the Act specifically provides hearing rights for those
determinations made under section 1866(b)(2), section
1866(h)(1) does not mention findings made under
1866(c)(1) of the Act.
In interpreting and implementing the foregoing sections
of the Act, the Secretary has created a multi-layered
administrative review process and has issued regulations
which preclude appeals of a finding made pursuant to
section 1866(c)(1) of the Act. By regulation, the
Secretary has designated only certain specified types of
determinations made by HCFA as "initial determinations."
Only "initial determinations" are subject to the multi-
tiered appeals rights and procedures specified in 42
C.F.R. Part 498. 4/ 42 C.F.R. 498.3(a) and (b). The
Secretary specified by regulation that the following is
not an "initial determination" subject to the appeals
procedures of 42 C.F.R. Part 498:
The finding that an entity that had its
provider agreement terminated may not
file another agreement because the
reasons for terminating the previous
agreement have not been removed or there
is insufficient assurance that the
reasons for the exclusion will not recur.
42 C.F.R. 498.3(d)(4). Removing such a finding from
the definition of an "initial determination" and the
appeals process means that the affected entity is not
entitled to request that HCFA reconsider such a finding
under 42 C.F.R. Part 498, Subpart B, or to request a
hearing before an administrative law judge to contest
such a finding under 42 C.F.R. Part 498, Subpart D.
Thus, under the Secretary's regulations, findings made
pursuant to section 1866(c)(1) of the Act are non-
reviewable.
Petitioner acknowledges that the findings described in 42
C.F.R. 498.3(d)(4) are not subject to review. P.
Brief, 3. 5/ However, Petitioner alleges that it "did
not ask HCFA to administratively conclude whether `the
reasons for terminating the previous agreement [had] been
removed,' nor did it merely present HCFA with `assurances
that the reasons for the exclusion will not recur.'" Id.
Petitioner states that it chose to "start over" by
applying for a completely new Medicare certification.
Id. at 3 - 4. Petitioner contends that it is "entitled
to a hearing" regarding the August 24 and October 31,
1995 surveys "because these surveys were `initial
determinations' within the meaning of 42 C.F.R.
498.3(b)(1)." P. Brief, 1.
The regulatory definition of "initial determinations"
includes a determination made by HCFA on whether a
prospective provider qualifies as a provider. 42 C.F.R.
498.3(b)(1). Petitioner contends that it satisfied the
regulatory definition of a "prospective provider"
because, after the termination of its provider agreement
on May 31, 1995, it no longer had in effect a Medicare
provider agreement and was ` "seek[ing] to participate in
Medicare as a provider." ' P. Brief, 2 (citing 42 C.F.R.
498.2). Also, according to Petitioner, Petitioner was
subjected to the same initial certification procedures as
other "prospective providers" (P. Brief, 4), and the
August 24, 1995 and October 31, 1995 surveys relied upon
by HCFA were labeled "initial certification" and "Second
Initial Certification Survey," respectively (P. Reply, 1
- 2). Petitioner contends further that, by virtue of its
current participation in the Medicaid program, Petitioner
should not have been subjected to any initial
certification surveys at all to determine whether it
could participate in the Medicare program. P. Reply, 5 -
6 (citing State Operations Manual).
III. Findings and Summary of Reasons for Dismissing
Hearing Requests
I reject Petitioner's arguments that it is entitled to a
hearing and dismiss the hearing requests in the above
captioned cases. The following comprise my findings and
summary of reasons for dismissing Petitioner's hearing
requests:
1. The regulations codified at 42 C.F.R.
498.3(b)(1) make applicable the review
process and procedures described in 42
C.F.R. 498 to an initial determination
by HCFA that a prospective provider does
not qualify as a provider under the
Medicare program. 42 C.F.R. 498.3(a).
2. HCFA's finding in each Notice that
Petitioner did not qualify for Medicare
certification under 42 C.F.R.
488.330(b) is an initial determination
within the meaning of 42 C.F.R.
498.3(b)(1), which entitled Petitioner to
pursue only the appeals procedures
specified in the regulations. 42 C.F.R.
498.3(a), referring to Part 498.
3. In order to obtain a hearing before
an administrative law judge on the issue
of whether it qualifies as a provider, a
prospective provider must satisfy all of
the following conditions:
a) be in receipt of an
initial determination that
it does not qualify as a
provider;
b) timely request
reconsideration of said
initial determination in
accordance with 42 C.F.R.
498.22(a);
c) receive a reconsidered
determination that it does
not qualify as a provider;
and
d) timely file a hearing
request to contest the
reconsideration
determination that it does
not qualify as a provider.
42 C.F.R. 498.3(b)(1), 498.5(a),
498.20(b) 498.22, 498.24, 498.25(b),
498.40.
4. Petitioner does not allege, nor does
any evidence show, that Petitioner
requested or received a reconsidered
determination on its qualification to
participate as a provider in the Medicare
program.
5. Whether or not Petitioner was
correctly assigned the status of a
"prospective provider," no prospective
provider is entitled to a hearing before
an administrative law judge after having
received only an initial determination
that it is not qualified to participate
as a provider in the Medicare program.
Id.
6. HCFA included in each of its Notices
an additional finding that Petitioner did
not meet the criteria specified in
section 1866(c)(1) of the Act for re-
entry to the program. HCFA Notices.
7. In the absence of any hearing
decision reversing or modifying HCFA's
initial determination to terminate
Petitioner's provider agreement on May
15, 1995, HCFA had the authority to note
Petitioner's termination from the program
and to decide whether Petitioner should
be re-admitted to the program under the
criteria specified in section 1866(c)(1)
of the Act. 42 C.F.R. 498.5(b),
498.20(b)(2); HCFA Notices.
8. The findings made by HCFA under
section 1866(c)(1) of the Act to deny
Petitioner re-entry to the Medicare
program are not subject to review. 42
C.F.R. 498.3(d)(4); HCFA Notices.
9. Petitioner's efforts to circumvent
the re-admission requirements of section
1866(c)(1) do not make reviewable HCFA's
findings that Petitioner failed to meet
the criteria for re-entering the program.
42 C.F.R. 498.3(d)(4).
10. Petitioner has no right to obtain
review of the methods HCFA used to find
that Petitioner may not re-enter the
program. See 42 C.F.R. 498.3(d)(4).
11. Petitioner has no right to a hearing
on any of the findings or determinations
contained in HCFA's Notices. 42 C.F.R.
498.70(b).
IV. Discussion
A. HCFA set forth two determinations in each notice
letter.
Each of HCFA's Notices at issue contains two
determinations: one which finds that Petitioner "does
not qualify for Medicare certification in accordance with
... 42 C.F.R. 488.330(b)" because, based on the results
of a preceding survey, Petitioner "was determined to be
not in substantial compliance as defined by ... 42 C.F.R.
488.301"; and another which finds that, based on the
results of the same survey, Petitioner "does not meet the
criteria for re-entry" into the program under section
1866(c)(1) of the Act. HCFA Notices. These findings are
distinct from one another as evidenced by their contents.
Moreover, HCFA itself separated the two findings with the
phrase "[i]n addition," in each of its Notices.
B. In each notice, HCFA's finding referencing 42 C.F.R.
488.330(b) and 488.301 was appealable.
Each of HCFA's findings referencing 42 C.F.R.
488.330(b) and 488.301 was appealable in accordance with
the procedures specified in 42 C.F.R. Part 498. As
applicable to the facts of this case, 42 C.F.R.
488.330(b) specifies that a "certificate of noncompliance
requires denial of participation for prospective
providers . . . ." 42 C.F.R. 488.330(b)(2) (emphasis
added). The regulation codified at 42 C.F.R. 488.301
contains the definition of "substantial compliance"
relied upon by HCFA in deciding that Petitioner "does not
qualify for Medicare certification in accordance with 42
C.F.R. 488.330(b) . . . ." HCFA Notices. As relevant to
these cases, a "prospective provider" means an entity
such as a skilled nursing facility which is seeking to
participate in Medicare as a provider. 42 C.F.R.
498.2. Here, Petitioner did not have a Medicare provider
agreement in place at the time of the surveys, and also,
according to HCFA's Notices, the surveys were conducted
for certification of a unit within Petitioner's facility
claimed as a "distinct part skilled nursing facility."
HCFA Notices. The appeals rights and procedures
specified in 42 C.F.R. Part 498 are applicable to an
initial determination by HCFA that a prospective provider
does not qualify as a provider. 42 C.F.R. 498.3(a) and
(b)(1).
HCFA contends that the conclusion that it had issued a
reviewable initial determination within the meaning of 42
C.F.R. 498.3(b)(1) "would read subsection 1866(c) and
subsection 498.3(d)(4) [which preclude review of HCFA's
findings that a terminated provider does not meet the
criteria for re-entry into the program] out of the
regulations ...." HCFA Brief, 12. I disagree. A
facility's right of appeal depends on what determinations
were in fact made by HCFA. 42 C.F.R. 498.3. The fact
that HCFA made any given determination does not signify
that it is a legally correct or logical one. Here, HCFA
chose to set out two findings in each Notice: one which
denied Petitioner participation as a prospective provider
under 42 C.F.R. 488.301 and 488.330(b), and another
which denied Petitioner re-entry to the Medicare program
based on its status as a terminated provider and the
criteria contained in section 1866(c) of the Act. 6/
To accept HCFA's argument that its Notices contain only
findings on Petitioner's re-admission to the program
after termination is to read out of HCFA's Notices
complete paragraphs stating the contrary . Even though
HCFA may be correct in arguing now that Petitioner should
not be treated as a prospective provider, HCFA had done
so in fact under 42 C.F.R. 488.301 and 488.330(b). If
HCFA had intended to limit its Notices to its re-entry
findings but had set forth the other finding due to
inadvertence, HCFA had the authority and ample
opportunity to issue revisions on its own initiative. 42
C.F.R. Part 498, subpart C. For these reasons, I
conclude that Petitioner had appeal rights under 42
C.F.R. 498.3(b)(1) with respect to HCFA's determination
that Petitioner, as a prospective provider, did not
qualify as a provider.
Concluding that said determination was appealable does
not mean that I find merit in viewing Petitioner as a
"prospective provider" after its provider agreement had
been terminated by HCFA. Given that I have decided to
dismiss Petitioner's hearing request on the procedural
grounds detailed below, I do not reach the issue of
whether Petitioner properly should be considered a
"prospective provider" entitled to apply anew for program
participation.
C. Because Petitioner failed to follow the procedures
specified by regulation for appealing initial
determinations that a prospective provider does not
qualify as a provider, Petitioner has no right to a
hearing on said issue.
Petitioner has improperly exercised appeal rights
conferred by 42 C.F.R. 498.3(b)(1) by requesting a
hearing to challenge an initial determination that it
does not qualify as a provider. Petitioner errs in
arguing that it is entitled to a hearing because HCFA has
made an initial determination within the meaning of 42
C.F.R. 498.3(b)(1). P. Brief, 1. The fact that a
determination by HCFA falls within the definition of an
"initial determination" means that the "initial
determination" is subject to challenge in accordance with
the steps and in the forum specified in 42 C.F.R. Part
498. As explained in the relevant regulation, "This part
[i.e., 42 C.F.R. Part 498] sets forth procedures for
reviewing initial determinations that HCFA makes with
respect to the matters specified in paragraph (b) of this
section ...." 42 C.F.R. 498.3(a) (emphasis added).
Nothing in 42 C.F.R. 498.3 states that all initial
determinations should be reviewed by an administrative
law judge at the hearing level.
In fact, a prospective provider dissatisfied with HCFA's
initial determination that it does not qualify as a
provider must file a request for reconsideration with
HCFA or the State surveying agency within 60 days of
receiving the initial determination. 42 C.F.R.
498.5(a), 498.22. Otherwise, the initial determination
becomes binding. 42 C.F.R. 498.20(b). If a request
for reconsideration has been properly filed, HCFA will
review relevant new written evidence or statements and,
based also on the evidence used to reach the initial
determination, make a reconsidered determination which
affirms or modifies the initial determination and the
findings on which it was based. 42 C.F.R. 498.24. If
the prospective provider receives a reconsidered
determination and is dissatisfied with it, only then may
the prospective provider obtain a hearing before an
administrative law judge by filing a written request
within 60 days of receiving the reconsidered
determination. 42 C.F.R. 498.40(a).
Here, on two occasions, HCFA notified Petitioner of its
determinations that Petitioner did not qualify as a
provider: by letters dated October 6, 1995 and February
15, 1996. Shortly thereafter (on November 9, 1995 and
February 21, 1996, respectively), Petitioner requested
hearings by attaching and referencing these Notices.
Petitioner's briefs consistently described these Notices
as containing "initial determinations." E.g., P. Brief,
1, 2; P. Reply, 2. However, there is no allegation or
evidence before me that Petitioner has filed any request
for reconsideration to challenge HCFA's initial
determinations. Nor is there any indication that HCFA
has made a reconsidered determination on whether
Petitioner qualifies to participate in the program as a
provider. Absent a reconsidered determination from HCFA
adverse to Petitioner on this issue, there is no right to
any hearing on this issue. Even though an initial
determination within the meaning of 42 C.F.R.
498.3(b)(1) gave rise to appeal rights, Petitioner has
failed to exercise such rights properly.
For the foregoing reasons, I dismiss Petitioner's hearing
requests under 42 C.F.R. 498.70(b) as they pertain to
HCFA's initial determinations that Petitioner "does not
qualify for Medicare certification in accordance with ...
42 C.F.R. 488.330(b)" because Petitioner "was determined
to be not in substantial compliance as defined by ... 42
C.F.R. 488.301" HCFA Notices.
D. HCFA's finding that Petitioner failed to meet the
statutory criteria for re-entry to the Medicare program
is nonreviewable without regard to Petitioner's alleged
intent to start over as a new prospective provider
applying for initial certification.
As noted previously, each of HCFA's notices contains a
clear finding that Petitioner cannot re-enter the
Medicare program because it failed to meet the criteria
specified by section 1866(c) of the Act. This finding is
nonreviewable, as is made especially clear by 42 C.F.R.
498.3(a) and (d)(4), which implement the statutory
authorization for the Secretary to provide hearings in
only limited types of cases. Act, section 1866(h)(1).
As noted also above, Petitioner does not dispute that
such a finding by HCFA is nonreviewable. See P. Brief, 3.
Therefore, at best, Petitioner's arguments that it had
not asked or intended for HCFA to make a determination on
re-entry appear to challenge HCFA's authority to issue a
nonreviewable finding under 42 C.F.R. 498.3(d)(4) in
the absence of Petitioner's request to do so. In the
present cases, I find Petitioner's intentions immaterial
to the issue of whether HCFA had the authority to make a
finding within the meaning of 42 C.F.R. 498.3(d)(4). 7/
HCFA is authorized and required to make certain specified
findings under section 1866(c) of the Act whenever a
provider previously terminated from the Medicare program
seeks to participate again in the program. Act, section
1866(c)(1).
It is a fact that, on May 31, 1995, Petitioner was
terminated from participation in the Medicare program.
Even though that termination action is pending before me
for a hearing in the near future, Petitioner's status
remains that of a terminated provider. Terminations of
provider agreements are "initial determinations," which
remain binding unless they are reversed or modified by a
hearing decision. 42 C.F.R. 498.3(b), 498.20(b)(2).
How Petitioner would have wished to be treated by HCFA
does not negate the fact that Petitioner had the legal
status of a terminated provider at all times relevant to
these cases.
Therefore, I conclude that HCFA had the authority to make
determinations under section 1866(c) of the Act by virtue
of Petitioner's status as a terminated provider and the
absence of a hearing decision to the contrary.
E. Petitioner's efforts to circumvent the re-admission
requirements of section 1866(c)(1) do not make reviewable
HCFA's findings that Petitioner failed to meet the
criteria for re-entering the program.
Without doubt, Petitioner was attempting to circumvent
the requirements of section 1866(c)(2) of the Act, which
specifies that, after a provider had been terminated from
the program, it may not submit another agreement for the
Secretary's approval unless the Secretary has determined
that the reasons for the termination have been removed
and that there exists reasonable assurances that such
reasons will not recur. Act, section 1866(c)(2).
Petitioner's assertions that it "chose to `start over'"
like other prospective providers and that it had filed
its agreement because HCFA did not bar it from doing so
(P. Brief, 3 - 4) constitute acknowledgements that it was
attempting to circumvent section 1866(c)(2) of the Act.
The law clearly states that a terminated provider "may
not file another agreement" unless the Secretary has made
the requisite findings. Act, section 1866(c)(2). There
is no merit to Petitioner's argument that it "had not
been barred from `filing another agreement' by HCFA" and
therefore, after Petitioner "filed its agreement," HCFA's
activities in surveying were "removed from the
application of section 498.3(d)(4)." P. Brief 3.
The "filing of an agreement" meant only that Petitioner
submitted an instrument for HCFA to accept or reject.
HCFA was obligated to follow the requirements of section
1866, irrespective of what Petitioner intended to
accomplish. HCFA did so in this case by making the
findings required by the statute applicable to terminated
providers. Petitioner has no valid basis for complaining
that HCFA performed its duties under the law.
F. Whether or not HCFA had made its re-admission
determinations based on "initial certification surveys"
or a survey inapplicable to other Medicaid providers
seeking Medicare participation, Petitioner cannot obtain
review of the methods used by HCFA in reaching the
unreviewable finding on re-entry to Medicare.
Petitioner's arguments concerning the types of surveys
conducted by HCFA do not alter the fact that HCFA made
findings that are nonreviewable. If HCFA's Notices were
unclear on the issue of whether HCFA had denied
Petitioner re-entry to the program, Petitioner's
arguments on the type of surveys HCFA conducted might be
relevant to resolving such ambiguities. However, HCFA's
Notices are clear that HCFA made findings denying
Petitioner re-entry to the program under section 1866(c).
Therefore, it cannot be said that Petitioner's arguments
on the type or nature of surveys conducted by HCFA serve
the legitimate purpose of helping establish the nature of
the findings made by HCFA.
Since the findings made under section 1866(c) are
nonreviewable, Petitioner cannot obtain review of HCFA's
methods or rationale for reaching those findings. To
conclude otherwise would evade the explicit terms of 42
C.F.R. 498.3(d)(4) and open an avenue for Petitioner to
challenge what it is not permitted to challenge.
Besides, nothing in 42 C.F.R. Part 498 permits review of
the surveys conducted by HCFA when those surveys have not
led to any result defined as an "initial determination"
in 42 C.F.R. 498.3(b). Therefore, I do not address the
merits of Petitioner's allegations that HCFA had relied
on the results of "initial certification surveys" and had
subjected Petitioner to a survey no Medicaid provider
applying for Medicare participation was required to
undergo.
V. Conclusion
For the foregoing reasons, under 42 C.F.R. 488.70(b), I
dismiss Petitioner's hearing requests.
Mimi Hwang Leahy
Administrative Law Judge
1. The quote is from HCFA's October 6, 1995 notice.
The February 16, 1996 notice contains the same language,
minus two commas.
2. Petitioner has filed two briefs: Petitioner's
Response to Show Cause and Petitioner's Reply to Response
of Health Care Financing Administration to Petitioner's
Showing of Cause Against Dismissal. I will refer to
these two briefs as "P. Brief" and "P. Reply"
respectively. I will refer to the brief filed by HCFA,
Response of Health Care Financing Administration to
Petitioner's Showing of Cause Against Dismissal, as "HCFA
Brief."
In addition, HCFA has filed various excerpts of
publications as Attachments I through III to its brief,
and Petitioner has filed two excerpts of survey reports
and one letter from the State surveying agency designated
as Petitioner's Exhibits A through C. The foregoing
documents are in the record only because the parties have
attached them to their briefs. The parties appeared to
have attached these documents in an effort to help
explain the nature of the findings made by HCFA and why
HCFA made them. Since my conclusion is that, as a matter
of law based on other grounds, Petitioner is without a
right to a hearing on any of the findings contained in
the two Notices, I have not found it necessary or
appropriate to evaluate the contents of these documents.
3. There does not appear to be any dispute that
Petitioner is one of these types of entities or that the
determinations in controversy do not pertain to whether
Petitioner is a type of entity eligible to participate in
the Medicare program if other conditions were met as
well.
4. Part 498 applies to all phases of the
administrative appeals process, including requests for
reconsidered and revised determinations (Subpart B),
requests for hearing (Subpart D), and requests for review
of the hearing decision (Subpart E). Part 498 also
includes regulations relevant to requests for judicial
review of final agency decisions. 42 C.F.R. 498.5,
498.90 and 498.95.
5. Petitioner states, "The shortcut evaluations
described in Section 498.3(d)(4) are understandably not
subject to review, because they involve limited fact
finding by HCFA based largely upon the findings of
earlier surveys which were themselves subject to appeal."
P. Brief, 3.
6. I recognize that the practical result of the two
determinations is the same: Petitioner cannot
participate in the Medicare program. Given also that I
find HCFA's denial of re-entry to the program is an
unreviewable determination, Petitioner would still be
barred from participating in the program whether or not
HCFA's other determination under 42 C.F.R. 488.330(b)
is reviewable. Nevertheless, whether the latter
determination is appealable is an issue of law which must
be decided without considering Petitioner's motives for
requesting review and without speculating on whether
Petitioner will gain any practical advantages from its
efforts.
7. Even if there had existed a duty on the part of
HCFA to accede to Petitioner's intent to begin anew as a
prospective provider seeking to enter the program for the
first time, HCFA discharged such a duty by having issued
the determination referencing 42 C.F.R. 499.301 and
488.330(b).