The parties have requested summary judgment for all issues in this case. Having considered their cross-motions, briefs, and supporting documents,⁽¹⁾ I enter summary judgment for the Health Care Financing Administration (HCFA).

I. BACKGROUND

In controversy is the date on which Petitioner, an ambulatory surgery center (ASC), was given certification by HCFA to participate in the Medicare program. HCFA set the certification date at October 26, 1998. Petitioner contends that HCFA should have given a certification date of May 19, 1998, and thereby allowed Petitioner to obtain Medicare payments for services rendered on and after May 19, 1998.

The dispute on the certification date arises from the following two provisions codified at 42 C.F.R. � 416.26:

(a) Deemed compliance. HCFA may deem an ASC to be in compliance with any or all of the conditions set forth in subpart C of this part if --

(1) The ASC is. . .licensed by a State agency, that HCFA determines provides reasonable assurances that the conditions are met. . . .

(b) Survey of ASCs.

(1) Unless HCFA deems the ASC to be in compliance with the conditions set forth in subpart C of this part, the State survey agency must survey the facility to ascertain compliance with those conditions, and report its findings to HCFA. . . .

Petitioner notes, and HCFA agrees, that Petitioner was given a license to operate by the State of Kansas, after having successfully undergone a survey conducted by the Kansas Department of Health and Environment (KDHE) on May 19, 1998. The record is clear that the KDHE had been given responsibility by the State to conduct surveys for the purpose of determining whether licenses should be issued under state requirements. The record is clear also that the KDHE had also been contracted by HCFA to conduct surveys for the purpose of determining whether Medicare certifications should issue in accordance with federal requirements.

There is no evidence of record establishing that either the State of Kansas or HCFA had directed the KDHE to conduct a single survey to fulfill its dual responsibilities. Nor is there any evidence that either the State of Kansas or HCFA had vested the KDHE with the discretion to conduct a single survey for both purposes.

Petitioner contends that state licensure surveys conducted by the KDHE should be considered by HCFA to be in material accord with those guidelines applicable to Medicare certification surveys and requirements. The State of Kansas issued Petitioner a license to operate on the basis of the licensure survey conducted on May 19, 1998. Therefore, citing 42 C.F.R. � 416.26(a), Petitioner argues that, as a matter of law, the Medicare certification date should be changed to May 19, 1998 as well.

HCFA notes, without dispute from Petitioner, that HCFA has never made a determination, pursuant to 42 C.F.R. � 416.26(a), that the KDHE has provided the required assurances concerning any alleged equivalency between the state licensure surveys conducted for the State and the surveys mandated for determining applications to participate in the Medicare program. The very language of the regulation makes "deeming" impossible unless such a determination has been made by HCFA. As HCFA has pointed out also, the preamble to the regulation stated, "[W]e will publish in the Federal Register the names of the organizations or State programs approved for deemed status purposes." HCFA Brief, at 9, citing 47 Fed. Reg. 34085. Nor does the KDHE appear in any list published in the Federal Register for conferring upon any ambulatory surgery center "deemed status" under the Medicare program. HCFA argues, therefore, that Petitioner does not attain benefit from the "deemed" provision of 42 C.F.R. � 416.26(a).

Apparently aware of the foregoing problems, Petitioner contends, in the alternative, that I should move the certification date to May 19, 1998 for equitable reasons. Petitioner does not disagree that HCFA issued the certification date of October 26, 1998 because, on that day, a survey was conducted by the KDHE, pursuant to 42 C.F.R. � 416.26(b), to help HCFA determine whether Petitioner met the conditions for participating in the Medicare program. Petitioner contends, however, that it was told by an official of the KDHE that it could begin serving Medicare beneficiaries as of May 19, 1998, and therefore, that it has incurred approximately $300,000 in unreimbursed Medicare costs for services rendered between May 19, 1998 and October 26, 1998.

Petitioner's equitable estoppel argument seems to rely, at least in part, upon the fact that the KDHE had acted as HCFA's agent for the purpose of transmitting a Medicare certification application to Petitioner during October 1997. That State agency was also in charge of State licensure applications. The KDHE sent the application packet to Petitioner for State licensure, as well as for seeking Medicare participation by the KDHE. Petitioner indicates that, when questions arose about the status of its Medicare certification application, Petitioner called and obtained information from the KDHE.

HCFA opposes the estoppel argument for several reasons. It argues that, as a matter of law, Petitioner's Medicare certification date cannot be moved forward to May 19, 1998. HCFA also points out various logical inconsistencies in the information provided by Petitioner's employees in support of the equitable estoppel argument. As for the information Petitioner alleges to have received from an official of the KDHE, HCFA has provided the affidavit of that official denying that he had told Petitioner that it would be certified for Medicare participation effective May 19, 1998. Additionally, relying on a copy of the cover letter sent by that agency when it mailed both the state licensure application and the Medicare certification application to Petitioner at the same time, HCFA contends that Petitioner should have known not to ask such questions of the KDHE. See HCFA Ex. 1.

The cover letter to Petitioner contains the following information relevant to HCFA's position:

. . . .Although this form will be distributed by and should be returned to our agency, all questions about this form should be directed to the appropriate Medicare fiscal intermediary/carrier. Please see list below to determine your appropriate contact for information about the HCFA-855 form. . . .

[A]s part of our initial processing of your application, the HCFA-855 will be sent to the appropriate Medicare contractor for review and approval . . . . Our agency cannot conduct the required onsite survey until the Medicare contractor has approved the enrollment application. . . .

. . . . Please be reminded that State licensure and Medicare certification cannot be effective prior to completion of an onsite survey by both our office and the State Fire Marshall's office. . . .Surveys will be scheduled as soon as feasible. KDHE regrets any inconvenience that this survey delay may cause. . . .

[I]f you have further questions or comments, please feel free to contact me.

HCFA Ex. 1 (emphasis in the original). At the close of the letter, Blue Cross and Blue Shield of Kansas was identified as the Medicare carrier Petitioner should contact for information regarding the HCFA-855 form. Id.

Ruling 1: I cannot change Petitioner's Medicare certification date to May 19, 1998 pursuant to 42 C.F.R. � 416.26(a).

First, I find and conclude that I am without the authority to review HCFA's discretion to determine which surveys conducted by which state agencies may be used for deeming that an ASC is in compliance with Medicare certification requirements. I am without authority to provide any relief on the basis of Petitioner's arguments that HCFA should have made the determination permitted by 42 C.F.R. � 416.26(a) concerning the state licensure survey, when HCFA has not done so.

An ASC applying for Medicare participation is considered a "prospective supplier." 42 C.F.R. � 498.2. Underlying the certification date controversy before me is Petitioner's status as a "prospective supplier." A prospective supplier has a right to a hearing before an ALJ on the issue of whether it "meets the conditions for coverage of its services as those conditions are set forth elsewhere in this chapter." 42 C.F.R. � 498.3(b)(4). The "conditions for coverage of its services" are not contained in the "deeming" language of 42 C.F.R. � 416.26(a), but are set forth in subpart C of 42 C.F.R. Part 416. That subpart is specifically incorporated in 42 C.F.R. � 416.26(b), which addresses the surveys that must be conducted on HCFA's behalf when HCFA does not issue Medicare certification to the ASC on the basis of another entity's conclusions.

Under 42 C.F.R. � 498.3(b)(4), I might have the authority to consider changing the Medicare certification date under the deeming provision of 42 C.F.R. � 416.26(a), if HCFA had made a determination that a survey conducted by the KDHE for another purpose and another entity would be used to decide an application for Medicare participation. Here, HCFA states that it has made no such determination, and no contrary conclusion is suggested by Petitioner's arguments or any information published in the Federal Register. When an ASC like Petitioner invokes my authority to review, pursuant to 42 C.F.R. � 498.3(b)(4), the question of whether it "meets the conditions of coverage for [Medicare] services", its request for hearing does not create any right to have me direct a determination by HCFA that a State agency has previously conducted another survey which was the virtual equivalent of what it would have or had conducted for determining Medicare participation. Nothing in the regulations provides that HCFA's failure or refusal to make such a determination is a reviewable determination subject to adjudication by me. 42 C.F.R. � 498.3.⁽²⁾

For these reasons, I deny Petitioner's motion to change its Medicare certification date to May 19, 1998 pursuant to the "deeming" provision of 42 C.F.R. � 416.26(a).

Ruling 2: I cannot change Petitioner's Medicare certification date to May 19, 1998 on the basis of its equitable estoppel arguments.

Petitioner contends that, in reliance upon information received from the KDHE, it has delivered approximately $300,000 in unreimbursed services to Medicare beneficiaries between May 19, 1998 and October 26, 1998. Petitioner argues that I should change the Medicare certification date to May 19, 1998 so that HCFA would authorize payment of the $300,000 from the Medicare Trust Fund. Even though the facts alleged by Petitioner in support of its equitable estoppel arguments have been disputed by HCFA, I do not find it necessary to resolve the conflicts or schedule additional proceedings.

As a matter of law, I cannot grant the relief requested by Petitioner even if the facts alleged by Petitioner were true. It is well settled that erroneous information from government employees does not give rise to estoppel against the government or entitle the recipient of the incorrect information to monetary payments not otherwise permitted by law. Schweiker v. Hansen, 450 U.S. 785 (1981); Office of Personnel Management v. Richmond, 496 U.S. 414 (1990). Here, even if a KDHE official had given Petitioner the impression that he had the authority to answer questions about Medicare payments and provide information on HCFA's behalf, that information differs from what appears in the cover letter sent to Petitioner. HCFA Ex. 1. Petitioner's decision to rely on the incorrect information a KDHE official is alleged to have provided does not entitle Petitioner to receive Medicare payments for any period prior to its having been surveyed and certified for Medicare participation. Even if Petitioner's reliance upon the incorrect information had been reasonable, the laws and regulations applicable to "prospective suppliers" like Petitioner cannot be disregarded in order to make Petitioner whole through the use of Medicare funds that are otherwise unpayable to Petitioner prior to October 26, 1998.

For these reasons, I deny Petitioner's request to change the Medicare certification date to May 19, 1998 on the basis of its equitable estoppel arguments.

Having determined that, as a matter of law, Petitioner is without a right to the relief it seeks, I enter summary judgment for HCFA and against Petitioner on the dispositive issue of the October 26, 1998 Medicare certification date assigned by HCFA to Petitioner.

1. I authorized each party to file a main supporting brief of right. See August 4, 1999 Letter issued by direction of the Administrative Law Judge (ALJ). Each party filed such a brief with attachments. Thereafter, Petitioner asked for leave to file its attached reply brief. That motion has been granted, and Petitioner's reply brief is of record.

2. This regulation states that an entity has hearing rights as to "the matters specified in paragraph (b) of this

section. . . ." 42 C.F.R. � 498.3(a). HCFA's failure to compare surveys and reach the determination thought appropriate by Petitioner is not a matter specified in paragraph (b) of 42 C.F.R. � 498.3.