Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division

DATE: October 21, 1998

In the Case of:

Heartland Manor at Carriage Town,
Petitioner,

- v. -

Health Care Financing Administration.

Civil Remedies CR543
App. Div. Docket No.A-98-104
Decision No. 1673

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Petitioner, a skilled nursing facility, appealed the July 22, 1998 decision by Administrative Law Judge (ALJ) Steven T. Kessel, Heartland Manor at Carriage Town, DAB CR543 (1998) (ALJ Decision), dismissing Petitioner's request for a hearing. Petitioner had requested an ALJ hearing on an action by the Health Care Financing Administration (HCFA) denying Petitioner participation in the Medicare program, based on alleged deficiencies found during the June/November 1997 survey cycle. The ALJ concluded that Petitioner was not entitled to a reconsideration determination or hearing because Petitioner was a previously terminated provider, without such appeal rights, not a prospective provider, with such appeal rights.

The ALJ concluded that the issues raised by Petitioner in this case were resolved as a matter of law by the Board in Heartland Manor at Carriage Town, DAB 1664 (1998). In DAB 1664, the Board concluded that at the time of a May 1997 survey and HCFA determination to deny Petitioner participation in Medicare based on that survey, Petitioner was a previously terminated provider seeking reentry into the Medicare program. Based on Petitioner's status, HCFA's decision constituted an administrative action not subject to review under 42 C.F.R. . 498.3(d)(4). The Board reasoned that, under the language of relevant sections of the Social Security Act (Act) and regulations, Petitioner's status could not be determined on the basis of facility ownership. Rather, the language of the governing sections of the statute and regulations, together with the legislative history and applicable manual provisions, compelled the conclusion that in questions involving appeal rights in Medicare certification, compliance, and participation matters, an entity's status as either a prospective provider seeking to provide skilled nursing facility services or a terminated provider seeking reentry into the program must be tied to the distinct institution/facility, including the physical plant, in which patients receive care. The Board also concluded that this result was supported by the central principle underlying the certification and participation requirements -- protecting the health and safety of beneficiaries. Applying this conclusion to the facts presented, including the history of Petitioner's physical plant, the Board held that Petitioner was a previously terminated provider seeking reentry into the Medicare program. Accordingly, the Board concluded that HCFA's determination denying Petitioner participation in the program was an administrative action not subject to appeal under sections 1866(h)(1) and 1866(c)(1) of the Act and 42 C.F.R. Part 498.

In its notice of appeal here, Petitioner stated that the Board had ruled on the issue presented in this appeal in DAB 1664. Although Petitioner stated that it disagreed with the ALJ Decision and DAB 1664, Petitioner requested that the Board issue a summary decision in this appeal in order to permit Petitioner to exhaust its administrative remedies and proceed to federal court. HCFA stated that it sees the relevant legal and factual issues in this case as indistinguishable from the appeal addressed in DAB 1664 and that, therefore, this appeal would be appropriately resolved through a summary ruling.

Conclusion

Accordingly, based on the analysis in DAB No. 1664, we affirm the ALJ Decision dismissing Petitioner's request for hearing.

________________________________
Cecilia Sparks Ford

________________________________
Donald F. Garrett

________________________________
Judith A. Ballard
Presiding Board Member