Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Rafael Convalescent Hospital,
Petitioner,
- v. -
Health Care Financing Administration.
DATE: March 24, 1997
Civil Remedies CR444
App. Div. Docket No.
A-97-59
Decision No. 1616
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION
Rafael Convalescent Hospital (Petitioner) appealed a
November 19, 1996 decision by Administrative Law Judge
(ALJ) Steven T. Kessel to dismiss its request for hearing
based on a determination that Petitioner had no right to
a hearing under the applicable regulations at 42 C.F.R.
Part 498. See Rafael Convalescent Hospital, DAB CR444
(1996) (ALJ Decision). Petitioner, a facility certified
as a nursing facility (NF) under the Medicaid program and
as a skilled nursing facility (SNF) under the Medicare
program, had requested an evidentiary hearing before an
ALJ for the purpose of challenging survey findings that
Petitioner had provided "substandard quality of care"
because such findings would result in the loss of
Petitioner's authorization to conduct an in-house nurse
aide training program for a two-year period. 1/ The
Health Care Financing Administration (HCFA) moved to
dismiss Petitioner's request for a hearing on the ground
that Petitioner had no right to a hearing. 2/
Before the ALJ, Petitioner argued, inter alia, that it
had a right to a hearing based on its constitutional
right to due process.
The record here consists of the record before the ALJ,
the ALJ Decision, and the parties' briefs on appeal. Our
standard for review of an ALJ decision on a disputed
factual issue is whether the decision is supported by
substantial evidence in the record. Our standard for
review on a disputed issue of law is whether the decision
is erroneous. On appeal, Petitioner challenged five of
the 12 findings of fact and conclusions of law (FFCLs) in
the ALJ Decision (FFCLs 7, 8, 9, 10, and 11), renewing
its arguments made before the ALJ.
Section 498.3(d)(11) of 42 C.F.R. specifically provided
that, for NFs and SNFs, the loss of nurse aide training
is not an initial determination which is subject to the
hearing rights and procedures specified in Part 498.
Based on our review of the record before us, we conclude
that there is no error of fact or law in the ALJ
Decision. Therefore, we summarily affirm the ALJ
Decision in its entirety. In doing so we affirm and
adopt each FFCL.
Donald F. Garrett
M. Terry Johnson
Cecilia Sparks Ford
Presiding Board Member
* * * Footnotes * * *
1. Once a facility is subject to an extended
survey based on findings of substandard quality of care,
that facility is statutorily prohibited from conducting a
nurse aide training program for two years. See 42 C.F.R.
§ 488.301; sections 1819(f)(2)(B)(iii)(I)(b) and
1919(f)(2)(B)(iii)(I)(b) of the Social Security Act.
2. Although the ALJ discussed the applicable
regulation, he incorrectly cited to 42 C.F.R.
§ 498.3(d)(12) instead of § 498.3(d)(11). In any event,
technical amendments to Part 498 moved this provision to
§ 498.3(d)(10)(iii) effective June 1996. 61 Fed. Reg.
32347, 32350 (1996).