Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Everett Rehabilitation and Medical Center,
Petitioner,
- v. -
Health Care Financing Administration.
Docket No. C-96-108
Decision No. 1628
DATE: September 9, 1997
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION
Everett Rehabilitation and Medical Center (Petitioner)
appealed a January 28, 1997 decision by Administrative
Law Judge (ALJ) Jill S. Clifton. See Everett
Rehabilitation and Medical Center, DAB CR455 (1997) (ALJ
Decision). Petitioner initially had requested an
evidentiary hearing before an ALJ for the purpose of
challenging the determination by the Health Care
Financing Administration (HCFA) that the effective date
of Petitioner's Medicare certification was September 18,
1995, and not June 23, 1995, as claimed by Petitioner.
The record here consists of the record before the ALJ,
the ALJ Decision, and the parties' briefs on appeal. For
the reasons stated below, we conclude that the ALJ
Decision should be affirmed. Therefore, we adopt as
final the ALJ Decision, which we attach as an Appendix to
our decision.
The ALJ Decision contains a full discussion of the
factual findings, which we summarize here. On June 23,
1995, Petitioner opened a newly built physical plant
providing skilled nursing facility (SNF) services.
Between June 23 and June 26, 1995, all the residents of
another SNF, Colby Manor, which was closing, were
transferred to Petitioner. One month earlier Petitioner
had received erroneous information from an employee of
the State survey agency that Petitioner was a replacement
facility for Colby Manor and that the current Medicare
and Medicaid certification for Colby Manor would transfer
with the patients and begin on June 23, 1995, the date
the patient transfer would begin.
In August 1995, HCFA determined that Petitioner was not a
relocation of Colby Manor, or a change of ownership of
Colby Manor, but rather a new facility requiring an
initial survey. An on-site survey to determine whether
Petitioner was in compliance with Medicare participation
requirements occurred on September 5-8 and September 11,
1995. On September 18, 1995, Petitioner submitted a plan
of correction acceptable to HCFA for the deficiencies
found during the on-site survey.
The parties filed cross motions for summary judgment,
Petitioner arguing that under the doctrine of equitable
estoppel HCFA should be prevented from denying Petitioner
was Medicare certified effective June 23, 1995, and HCFA
arguing that Petitioner was not eligible for Medicare
certification until it submitted an acceptable plan of
correction on September 18, 1995. The ALJ found that
under the Medicare regulations the effective date of
Petitioner's Medicare provider agreement could be no
earlier than September 18, 1995, and that equitable
estoppel could not apply to the facts of this case.
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 of
review on a disputed issue of law is whether the decision
is erroneous. On appeal, Petitioner assigned error to
the ALJ's disposition of its appeal through summary
judgment. Petitioner challenged 12 of the findings of
fact and conclusions of law (FFCLs) in the ALJ Decision
(FFCLs 3, 8, 10, 18, 21, 26, 35, 36, 37, 39, 40, and 41),
alleging that there were many disputed issues of material
fact, and that the ALJ's analysis of applicable law was
erroneous.
The Medicare regulations are explicit in providing that
the effective date of a Medicare provider agreement is
the date the on-site survey is completed and the facility
is found in substantial compliance with Medicare
requirements, or, in the case where deficiencies are
found during the survey, when an acceptable plan of
correction is submitted. 42 C.F.R. § 489.13. The
regulations also require that surveyors directly observe
the care provided to residents to determine whether a
facility is in compliance with Medicare requirements. 42
C.F.R. § 488.26(c)(2).
A requirement affording the opportunity for an
evidentiary hearing is not contravened by a summary
disposition if there are no genuine issues of material
fact. See, e.g., Travers v. Shalala, 20 F.3d 993, 998
(9th Cir. 1994). Although Petitioner alleged that
there were disputed issues of fact which should have
barred the ALJ from issuing a summary judgment, we have
identified no alleged disputed facts material to the
result reached by the ALJ; consequently, we reject
Petitioner's contention that the ALJ erred in granting
summary judgment to HCFA.
Moreover, we have examined Petitioner's exceptions to the
ALJ's findings of fact and found them to be totally
without merit. Petitioner's assignments of factual error
are based on its continued insistence, despite statutory
and regulatory authority to the contrary, that the ALJ
should have found, based on the record before her, that
the state acted as HCFA's agent here and that HCFA must
be bound by the state's determination that Petitioner was
not a new provider. For example, although it did not
challenge any of the four facts listed by the ALJ in
support of her finding in FFCL 3 that Petitioner was a
new facility, Petitioner contended that the FFCL was
incorrect because the ALJ should have instead adopted the
state's determination. Petitioner's Appeal Brief at 14.
The record below contains no exhibits or offers of proof
which, even when viewed in favor of Petitioner, call into
question the factual correctness of the ALJ's FFCLs.
Petitioner offered no new evidence in support of its
exceptions; rather, Petitioner relied on the exhibits
presented before the ALJ.
In addition, we reject Petitioner's contentions that the
ALJ's analysis of the applicable law was erroneous. The
ALJ's analysis was based on the applicable regulations,
applied to undisputed facts which showed that Petitioner
was a new facility. Those regulations require that a new
facility must be surveyed and certified before it can
enter into a Medicare provider agreement. The ALJ also
correctly determined that she did not have the authority
to waive those regulations based on a theory of estoppel.
Conclusion
For the reasons stated above, we adopt as a final
decision of the Departmental Appeals Board the ALJ
decision attached as an Appendix to this decision.
________________________
Judith A. Ballard
________________________
M. Terry Johnson
________________________
Cecilia Sparks Ford
Presiding Board Member