Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
IN THE CASE OF | |
Eden Park Community Health Center, Inc., |
DATE: March 13, 2002 |
- v - |
|
Centers for Medicare & Medicaid
Services
|
Docket No.C-00-014
Decision No. CR880 |
DECISION | |
DECISION I decide that the Centers
for Medicare & Medicaid Services ((CMS), formerly known as the Health
Care Financing Administration (HCFA)) correctly terminated Eden Park Community
Health Center's (Petitioner's) Medicare provider number as a federally
qualified health center (FQHC), effective July 15, 1999. I. Background By letter dated June 30,
1999, CMS notified Petitioner that it was no longer eligible to receive
medicare reimbursement under its provider number since its section 330
Public Health Service (PHS) grant was rescinded and that Petitioner's
provider number as a FQHC was canceled, effective April 30, 1997. April
30, 1997 was the date that the Health Resources and Services Administration
(HRSA) informed CMS that Petitioner's section 330 PHS grant was rescinded
and that Petitioner no longer met the requirements for a FQHC . By letter
dated August 13, 1999, CMS notified Petitioner that pursuant to 42 C.F.R.
� 405.2436 (1), the effective date of Petitioner's
termination from the Medicare program would be July 15, 1999 rather than
April 30, 1997. By letter dated September 30, 1999, Petitioner requested
a hearing. Petitioner submitted a Memorandum
in Support of its Appeal accompanied by eight exhibits (P. Exs. 1 - 8).
CMS submitted a filing in opposition and a motion for summary judgment
with eleven accompanying exhibits (CMS Exs. 1 - 11). Neither party objected
to any of the exhibits submitted. I admit into evidence CMS Exs. 1 - 11
and P. Exs. 1 - 8. I base my decision in this case on the law and the
parties' submissions. II. Applicable law
and regulations FQHCs provide both professional
and ancillary health care services in rural and urban areas that are designated
shortage areas or areas that have medically underserved populations and
are also required to provide preventive health care services as mandated
by their specific PHS grant. FQHCs are deemed to be suppliers not providers.
42 C.F.R. � 498.2. FQHCs are eligible to receive 100% reimbursement of
all reasonable costs incurred as a result of their treatment of Medicare
beneficiaries and Medicaid recipients. 42 C.F.R. � 405.501(b). Prospective
FQHCs apply for FQHC status through HRSA. HRSA determines if an entity
meets the PHS Act requirements, as either a FQHC or a "look alike" and
also monitors PHS grantees to ensure their continued compliance with all
statutory FQHC requirements. A FQHC is defined at 42 C.F.R.� 405.2401(b)
as:
Entities qualifying as FQHCs
under subsection (2) above are known as FQHC "look alikes." See
42 C.F. R. � 405.2430(a)(i) and 405.2430(b)(1) - (2). Once it has been determined
that a prospective FQHC meets all requirements, the prospective FQHC enters
into an agreement with CMS, by way of signing an attestation statement,
that it agrees to remain in compliance with all FQHC requirements and
that it agrees to inform CMS of any changes resulting in non compliance
with the FQHC requirements. 42 C.F.R. � 405.2434(a). When CMS terminates an agreement
with a FQHC, CMS must notify the FQHC in writing of its intent to terminate
the agreement at least 15 days before the effective date stated in the
written notice. 42 C.F.R. � 405. 2436. III. Issue, findings
of fact and conclusions of law
The issue in this case is
whether CMS properly determined to terminate Petitioner's participation
as a FQHC, effective July 15, 1999.
I make findings of fact and conclusions of law (Findings) to support my decision. I set forth each Finding below, as a separate heading. I discuss each Finding in detail.
A threshold question in
this case is whether summary disposition is appropriate. Summary disposition
is appropriate where either: there are no disputed issues of material
fact and the only questions that must be decided involve application of
law to the undisputed facts; or the moving party must prevail as a matter
of law even if all disputed facts are resolved in favor of the party against
whom the motion is made. I have looked closely at the parties' arguments to decide whether there are disputed issues of material fact. There are no disputed material facts in this case. Essentially, the parties are relying on the same facts and are making legal arguments based on those facts.
Petitioner was a FQHC providing
health care services in Baton Rouge, Louisiana. On or about April 29,
1991, Petitioner submitted an application for designation as a FQHC and,
thereafter, on September 30, 1991, Petitioner obtained a section 330 PHS
grant. By letter dated August 18, 1992, Petitioner was notified by CMS
that it became a FQHC as of October 1, 1991. CMS Ex. 2. CMS's August 18,
1992 letter stated that Petitioner's signed attestation agreement will
serve as the Medicare FQHC benefit agreement. The signed attestation statement
provided that Petitioner agreed to remain in compliance with all FQHC
requirements specified in 42 C.F.R. Parts 405 and 491, and also that Petitioner
agreed to inform CMS of any changes resulting in noncompliance with these
provisions. 42
C.F.R. � 405.2434(a). By letter dated February
3, 1997, the Bureau of Public Health Care (BPHC) of the PHS notified Petitioner
that it was not renewing Petitioner's section 330 grant application for
funding based on Petitioner's failure to maintain compliance with the
provisions of the PHS Act, as described in 42 C.F.R. � 405.2434(a). CMS
Ex. 4. This BPHC letter listed the deficiencies found and also notified
Petitioner that this was a preaward decision and therefore not subject
to appeal under 42 C.F.R. Part 50, Subpart D. Id.
The BPHC letter also notified Petitioner that its section 330 PHS grant
would expire as of April 30, 1997. Id. By letter dated April 8,
1997, HRSA notified CMS and the Louisiana State Medicaid Department that
Petitioner's section 330 PHS grant would be terminated as of April 30,
1997 and that Petitioner would no longer meet FQHC requirements. CMS Ex.
5. By letter dated October
29, 1997, in response to an inquiry by the State of Louisiana Medicaid
Department, HRSA confirmed that Petitioner had its FQHC grantee status
rescinded as of April 30, 1997 and that no application from Petitioner
had been received for Medicaid FQHC look alike status. CMS Ex. 6. In Petitioner's
Memorandum in Support of Appeal, at page 2, Petitioner admits that on
or about November 10, 1997, the State of Louisiana notified Petitioner
that it was no longer eligible to participate in the Medicaid program
since it failed to maintain its FQHC status. By letter dated March 30,
1998, HRSA again notified Petitioner that the effective date of Petitioner's
"termination of grantee/FQHC status" was April 30, 1997. CMS Ex. 7. By letter dated June 30,
1999, CMS notified Petitioner its FQHC grantee status was rescinded on
April 30,1997 and that in light of this, Petitioner's Medicare provider
number had been canceled effective April 30, 1997. CMS Ex. 8. However,
by letter dated August 13, 1999, CMS informed Petitioner that it had inadvertently
stated that the effective date of Petitioner's Medicare termination was
April 30, 1997 but that in accordance with the 15 day notification requirement
of 42 C.F.R. � 405.2436, the Medicare termination would be effective July
15, 1999. CMS Ex. 9. By letter also dated August
13, 1999, CMS confirmed that its determination to terminate Petitioner's
Medicare agreement was appropriate and confirmed that Petitioner had not
applied for FQHC look alike status since its removal on April 30, 1997.
Enclosed with this confirmation letter was an application package for
readmission into the Medicare FQHC program. CMS Ex. 10. Petitioner filed
its request for hearing on September 30, 1999. CMS is authorized to terminate
an agreement with a FQHC if it finds that the FQHC either no longer meets
the requirements specified under 42 C.F.R. � 405, subpart X, or is not
in substantial compliance with either the provisions of the agreement,
other applicable regulations of 42 C.F.R. � 405, subpart X, or any other
applicable provisions of title XVIII of the Social Security Act. 42 C.F.R.
� 405.2436(c). Here, CMS was authorized to terminate Petitioner's FQHC
Medicare number, firstly, because Petitioner no longer met the requirements
for a FQHC since its section 330 PHS grant was rescinded and, secondly,
because it failed to notify CMS of a change that resulted in non-compliance
with FQHC requirements. Under the FQHC definition
at 42 C.F.R. � 405.2401, Petitioner does not qualify as a FQHC under subsection
(3) because it was not treated by CMS as a FFHC as of January 1, 1990,
or under subsection (4) because it has not claimed to have any connection
with an Indian tribal organization. In addition, it cannot qualify as
a FQHC under subsection (2) because it has not applied for FQHC look alike
status. CMS Exs. 6 and 10. Further, it can no longer qualify as a FQHC
under subsection (1) because its section 330 PHS grant was rescinded as
of April 30, 1997 and it has not regained a subsection 329, 330, or 340
PHS grant since that time. CMS Exs. 4 - 9. It is undisputed that Petitioner's
section 330 PHS grant was rescinded and Petitioner has offered no evidence
that such a grant was reinstated. Therefore, as of April 30, 1997, Petitioner
no longer met the statutory definition of a FQHC. Although, CMS was notified
by HRSA on March 30, 1998 that Petitioner no longer qualified as a FQHC,
CMS did not act on this notification until its June 30, 1999 letter to
Petitioner. Thereafter, in accordance to 42 C.F.R. � 405.2436(c), the
effective date of Petitioner's termination became July 15, 1999. CMS Ex.
9. Petitioner's signed attestation statement that evidenced its Medicare FQHC agreement required Petitioner to maintain compliance with FQHC requirements and to also promptly report any changes that result in non-compliance with any requirement. 42 C.F.R. �� 405.2430, 405.2434. Petitioner did neither. Petitioner's loss of its section 330 PHS grant resulted in non-compliance under 42 C.F.R. � 405.2430 because it no longer met the statutory definition of a FQHC. 42 C.F.R. � 405.2401. In addition, Petitioner failed to promptly report its loss of its section 330 PHS grant in violation of its signed attestation statement even though it was aware of the loss of this grant since February 3, 1997. CMS Ex. 4. Petitioner continued to receive FQHC Medicare reimbursement to which it was not entitled from April 30, 1997 until its Medicare number was terminated effective July 15, 1999 when CMS discovered its error. Petitioner continued to receive monies to which it was not entitled because, in part, of Petitioner's failure to promptly report its loss of its PHS grant.
Petitioner argues that it
is entitled to a hearing prior to termination. Petitioner is not so entitled.
In addition, Petitioner argues that it, its patients and its employees
have suffered irreparable harm due to its termination. However, this is
not relevant to my consideration concerning whether CMS properly terminated
Petitioner's Medicare number. Further, Petitioner argues
that its FQHC Medicaid status was inappropriately terminated. This argument
is not properly before me and must be addressed through an administrative
appeal process established by the State of Louisiana. Lastly, Petitioner argues
that the termination violated its due process and equal protection rights
under the United States Constitution. I do not have the authority to hear
and decide these arguments. My authority in cases involving CMS is limited
to hearing and deciding those issues which the Secretary of this Department
has delegated authority to me to hear and decide. That authority is specified
at 42 C.F.R. � 498.3; 498.5. The regulations authorize me to hear and
decide only cases involving specified initial determinations by CMS. Orchard
Grove Extended Care Center, CR541 (1998). FQHCs are deemed to be suppliers. 42 C.F.R. �� 498.2. Petitioner may only appeal those initial determinations for which appeal rights have been granted to suppliers. 42 C.F.R. �� 498.1(g); 498.3(b)(8); 498.5(e). Therefore, I am limited only to hearing the issue of whether or not CMS properly terminated Petitioner's FQHC Medicare number. I may not review BPHC's determination to decline the renewal of Petitioner's section 330 PHS grant. In addition, I may not hear and decide Petitioner's constitutional arguments. Also, I do not have authority to decide if CMS's determination was arbitrary and capricious. Lauderhill Community Mental Health Center v. HCFA, DAB CR652 (2000); Vermillion Behavioral Health Center, CR751 (2001). Further, I may not hear and decide whether Petitioner can be reinstated because denial of reinstatements are not appealable initial determinations but are administrative actions over which CMS has discretionary authority. Heartland Manor at Carriage Town, DAB No. 1664 at 4 (1998); Palm Grove Convalescent Center, CR858 (2002). IV. Conclusion I decide that CMS correctly terminated Petitioner's Medicare FQHC number, effective July 15, 1999. |
|
JUDGE | |
Anne E. Blair Administrative Law Judge
|
|
FOOTNOTES | |
1. 42 C.F.R. � 405.2436(c)(2) provides that CMS notifies a FQHC of its intention to terminate the agreement at least fifteen days before the effective date of the termination. | |