Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Country Club Center II,
Petitioner,
- v. -
Health Care Financing Administration.
DATE: March 19, 1997
Civil Remedies CR433
App. Div. Docket No.
A-97-17
Decision No. 1614
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION
Country Club Center II (Petitioner) appealed an August
28, 1996 decision by Administrative Law Judge (ALJ) Mimi
Hwang Leahy to dismiss its request for hearing based on a
determination that she lacked jurisdiction under the
applicable regulations at 42 C.F.R. Part 498. See
Country Club Center II, DAB CR433 (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 the prohibition imposed by the Health Care
Financing Administration (HCFA) against Petitioner's
conducting nurse aide training and competency evaluations
(nurse aide training and testing) for a period of two
years.
Based on an August 14, 1995 survey, Petitioner had been
cited for deficiencies which met the regulatory
definition of "substandard quality of care," and notified
that the survey was classified as an "extended survey."
See 42 C.F.R. § 488.301. The two-year prohibition at
issue was mandated by statute for any facility subject to
an extended survey. Sections 1819(f)(2)(B)(iii)(I)(b)
and 1919(f)(2)(B)(iii)(I)(b) of the Social Security Act.
Before the ALJ, HCFA had requested a dismissal based on
42 C.F.R. § 498.3(d)(11), which specifically listed the
loss of nurse aide training as an administrative action
which is not an appealable "initial determination." 1/
HCFA maintained that it had rescinded the imposition of
any remedies, which, if effectuated, would have given
Petitioner the right to a hearing under Part 498.
Petitioner did not dispute that the ban on nurse aide
training and testing is not the type of determination
appealable under Part 498. Petitioner nevertheless
argued that the ALJ was not obligated to dismiss.
Instead, Petitioner maintained, consistent with its
constitutional rights and the ends of justice, the ALJ
should have granted a hearing. Additionally, Petitioner
asserted that the regulations are arbitrary and
capricious.
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 eight of
the 35 findings of fact and conclusions of law (FFCLs) in
the ALJ Decision. (FFCLs 27, 28, 30, 31, 32, 33, 34, and
35). 2/
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. Technical amendments to Part 498 moved this provision
to § 498.3(d)(10)(iii).
2. In addition, Petitioner argued on appeal that: (1) the
failure to provide a hearing violated constitutional due process
liberty and property interests and that the loss of its program was
punishment; and (2) Petitioner was not given an opportunity to
challenge the survey findings through informal dispute resolution.
HCFA asserted, and Petitioner did not deny, that since Petitioner
did not raise these arguments before the ALJ, Petitioner is
precluded from raising them here. We agree. The Board's
guidelines for this type of appeal provide that we will not
consider issues which could have been presented to the ALJ but were
not. See section 4(c) of Guidelines. In any event, we note that,
given the applicable regulations, Petitioner could not have
prevailed based on these arguments.