Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
|IN THE CASE OF|
||DATE: August 18, 2004|
- v -
Centers for Medicare & Medicaid
| Docket No. A-04-66
Civil Remedies CR1118
Decision No. 1938
FINAL DECISION ON REVIEW OF
The Community Hospital of Long Beach (CHLB) appealed a December 5, 2003 decision by Administrative Law Judge Anne E. Blair. Community Hospital of Long Beach, DAB No. CR1118 (2003) (ALJ Decision). That decision upheld the Centers for Medicare & Medicaid Services' (CMS) determination that the effective date of CHLB's Medicare hospital provider agreement was July 23, 2001.
For the reasons discussed below, we uphold the ALJ Decision in its entirety.
This summary of the undisputed facts is intended to provide a general framework for understanding the decision and is not intended to be a substitute for the ALJ's findings. The California Department of Health Services (State survey agency) surveyed and licensed CHLB to operate as a California general acute care hospital on June 27, 2001. CHLB Ex. A. On July 13, the same State survey agency, acting pursuant to an agreement with CMS, completed an initial Medicare certification survey of CHLB in which it reviewed CHLB's compliance with federal requirements for Medicare hospitals, including those found at 42 C.F.R. Part 482. CHLB Ex. C. On July 23, the State survey agency issued a statement of deficiencies (SOD) for the July 13 survey describing deficiencies as to twelve standard-level requirements of 42 C.F.R. Part 482. Id. The same day, July 23, a plan of correction (POC) for the SOD was completed by CHLB and received and accepted by the State survey agency. CHLB Ex. C; CHLB Ex. E. By letter dated August 27, 2001, CMS notified CHLB that, effective July 23, 2001, it accepted CHLB's agreement to participate as a hospital in the Medicare. CHLB Ex. E.
CHLB appealed CMS's determination of the effective date of its provider agreement. In its Request for Hearing, CHLB asserted the effective date should be June 27, 2001, the date of the State survey agency's initial survey which licensed the facility as a hospital in California. Request for Hearing dated February 12, 2002, at 4. In its Notice of Issues, CHLB again asserted that the effective date of its Medicare provider agreement should be June 27, 2001 and, alternatively, that, even absent an agreement, it should be reimbursed for services provided to Medicare beneficiaries between June 27 and July 23, 2001. Notice of Issues dated May 28, 2003, at 4.
CMS moved for summary judgment. CHLB opposed the motion. The ALJ determined that there were no disputed issues of material fact and that CMS was entitled to prevail as a matter of law.
In its Request for Hearing before an ALJ, CHLB represented that it was attaching Exhibits A-O to the Request. CHLB sent its request directly to CMS, and CMS forwarded it to the Civil Remedies Division. CMS letter dated March 6, 2002. When the record below was transmitted to the Board, CHLB Exhibits A-O were not in the record. Upon request by the Board, CHLB submitted a set of these exhibits to the Board and CMS. Since CHLB could have reasonably believed these exhibits were included in the record below as part of its proffered evidence, we consider them in evaluating whether summary judgment was appropriate.
On appeal, CHLB submitted additional exhibits which it identified as Exhibits A-H. The Board may admit evidence into the record in addition to the evidence introduced at the ALJ hearing if it considers the additional evidence relevant and material to an issue presented by the case. 42 C.F.R. § 498.86(a). We have reviewed these exhibits and find they are not relevant and material and, therefore, do not admit them into the record for decision.
In order to participate in Medicare, a provider, such as a hospital, must enter into a provider agreement with CMS. Section 1866 of the Act. (1) Before CMS will accept an agreement from a provider, the provider must meet the conditions of participation relevant to that provider. 42 C.F.R. § 489.10(a); 42 C.F.R. § 488.3(a)(2).
The requirements for hospitals participating in Medicare are set forth in 42 C.F.R. Part 482. These requirements include both conditions and standards of participation. Conditions of participation state broad general requirements. Standards of participation set forth specific requirements related to a condition.
CMS and its agents (such as state survey agencies) determine whether a provider is complying with applicable federal requirements pursuant to the survey and certification process set out in 42 C.F.R. Part 488. 42 C.F.R. §§ 488.11(a) and (d); 488.12; 488.26(c)(1).
Section 489.13(b) of 42 C.F.R. establishes the general rule for determining the effective date of a provider agreement for a provider subject to survey and certification. It provides:
* * *
42 C.F.R. § 489.13.
With limited exceptions, a provider may not receive Medicare and Medicaid reimbursement for services provided to patients prior to the effective date of its provider agreement. See sections 1814(a) and 1902(a)(27) of the Social Security Act.
Standard of Review
Our standard of review on a disputed conclusion of law is whether the ALJ Decision is erroneous. Our standard of review on a disputed finding of fact is whether the ALJ Decision is supported by substantial evidence on the record as a whole. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs (at http://www.hhs.gov/ dab/guidelines/ prov.html); Big Bend Hospital Corp., DAB No. 1814 (2002); see also Hillman Rehabilitation Center, DAB No. 1611 at 6 (1997), aff'd, Hillman Rehabilitation Center v. U.S. Dept. of Health and Human Services, No. 98-3789 at 21-38 (D.N.J. May 13, 1999). Whether summary judgment is appropriate is a legal issue that we address de novo, viewing the proffered evidence in the light most favorable to the non-moving party. See Crestview Parke Care Center, DAB No. 1836 (2002), rev'd on other grounds Crestview Parke Care Center v. Thompson, 373 F.3d 743 (6th Cir. 2004).
The ALJ Decision was thorough and well-reasoned. Pursuant to 42 C.F.R. § 489.13, the ALJ found that the effective date of CHLB's provider agreement was July 23, 2001. ALJ Decision at 3. She reasoned that CHLB did not meet all applicable Federal requirements on the date of the survey but did meet condition level requirements, and CHLB submitted an acceptable POC which was received by the State survey agency on July 23, 2001. Id. The ALJ also concluded that she did not have authority to award CHLB reimbursement for services provided to Medicare beneficiaries prior to the effective date of the provider agreement. Id. at 5, 7, and 8.
As discussed below, CHLB presented six exceptions to the ALJ's findings of fact and conclusions of law (FFCLs). (2)
A. The ALJ did not err by granting CMS's motion for summary judgment. (FFCL 1)
The ALJ concluded that summary judgment was appropriate because there were no disputed issues of material fact. ALJ Decision at 2. Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986).
As the ALJ explained, the standards set forth in 42 C.F.R. § 489.13(b) and (c) determine the effective date of the provider agreement in this case. Facts material to a determination pursuant to section 489.13 relate to (1) whether the provider in compliance with "all federal requirements" on the date of the survey (42 C.F.R. § 489.13(b)), and, if not, (2) when the provider did meet "all requirements" (section 489.13(c)(2)(i)) or (3) when CMS or the State survey agency received an acceptable POC or waiver request as to lower level deficiencies from the provider after a determination that it met all conditions of participation (section 489.13(c)(2)(ii)).
Before the ALJ, CHLB never addressed the requirements of section 489.13(b) and (c) but erroneously relied on section 489.13(d) (see discussion of section 489.13(d) set forth in the review of FFCL 2.c below). Specifically, as to section 489.13(b), CHLB (1) did not dispute the facts described in the SOD as the bases for the July 13 standard-level deficiency findings; (2) did not dispute CMS's determination that these facts resulted in standard-level deficiencies; or (3) did not argue that the term "all federal requirements" in section 489.13(b) does not encompass standard-level requirements. See Request for ALJ Hearing at 3; Notice of Issues at 2; Response to CMS's Motion for Summary Judgment at 2; CHLB Ex. F at 2. Nor did CHLB address before the ALJ the remaining two issues presented by section 489.13(c): (1) when, after July 13, 2001, did CHLB meet "all requirements" (section 489.13(c)(2)(i)) or (2) when did CMS or the State survey agency receive an acceptable POC or waiver request as to lower level deficiencies from CHLB after a determination that it met all conditions of participation (section 489.13(c)(2)(ii)). As to the first question, CHLB offered no evidence which would tend to show that it was in compliance with all standard-level requirements prior to July 23. (3) As to the second question, CHLB admitted that it first submitted, and the State survey accepted, a POC on July 23, 2001.
Therefore, before the ALJ, CHLB did not raise any genuine issue as to any material fact in response to CMS's prima facie case that CHLB failed to meet "all federal requirements" on July 13 and that the State survey agency first received an acceptable POC on July 23, 2001.
On appeal to the Board, CHLB argued that summary judgment was not appropriate because there was a genuine issue as to a material fact, i.e., whether the standard-level deficiencies identified in the July 13 survey posed a potential for harm to CHLB's patients. Throughout its request for review, CHLB focused on the potential for harm (or lack thereof) created by its noncompliance. CHLB RR at 2, 3, 4, 6, 7. CHLB argued that its standard-level deficiencies posed no potential for harm and, therefore, "there was no need for a delay in certification" and "no reason to be concerned that the date of the Medicare Certificate could not be issued on June 27, 2001 as requested." Id. at 4-5.
CHLB's argument that potential for harm raises an genuine issue as to a material fact is unavailing because CHLB did not raise this argument or proffer evidence in support of it when opposing summary judgment before the ALJ. A party opposing an adequately supported motion for summary judgment must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (quoting FRCP 56(e)). To defeat an adequately supported summary judgment motion, the nonmoving party must furnish evidence of a dispute concerning a material fact -- a fact that, if proven, would affect the outcome of the case under governing law. Id. at 586-587; Celotex, 477 U.S. at 322. If CHLB believed potential harm was a material fact, it was CHLB's burden to come forward with an argument and proof related to potential harm before the ALJ, and it did not do so.
Additionally, even on appeal, CHLB failed to establish why the question of potential for harm raised a genuine issue as to any material fact. Specifically, CHLB did not explain how its allegations of lack of harm related to the requirements of 42 C.F.R. § 489.13 or any other regulations governing provider reimbursement. CHLB's reliance on National Hospital for Kids in Crisis, DAB No. 1600 (1996) for the proposition that potential for harm is a material fact in this case is misplaced. In National Hospital, a psychiatric hospital appealed an effective date determination. At issue was whether National Hospital had condition-level deficiencies at the time of the survey. A condition-level deficiency requires a determination that the deficiencies "are of such character as to substantially limit the provider's . . . ability to furnish adequate care or . . . adversely affect the health and safety of patients." 42 C.F.R. § 488.24(b). Because National Hospital was contesting the existence of condition-level deficiencies, the ALJ and the Board addressed the potential for harm as required by 42 C.F.R. § 488.24((b). (4) Since CMS never asserted CHLB had condition-level deficiencies, section 488.24(b) is not relevant. CHLB did not identify any comparable regulation concerning harm posed by standard-level deficiencies. Further, section 488.28(b) provides that participation in Medicare under an accepted POC is appropriate only if the "existing deficiencies either individually or in combination neither jeopardize the health and safety of patients nor are of such character as to seriously limit the provider's capacity to render adequate care." In other words, assuming that CHLB could show that its deficiencies did not create a potential for harm, at most this would establish that the deficiencies were standard-level deficiencies for which CMS had the authority to accept a POC - a matter that is not disputed by CMS.
Therefore, summary judgment was appropriate because CHLB identified no genuine issue as to any material fact and, as discussed below, CMS was entitled to judgment as a matter of law. We affirm FFCL 1, which provides:
B. The ALJ did not err in concluding that the effective date of the Medicare agreement should be July 23, 2001. (FFCL 2.a)
In FFCL 2, the ALJ concluded that CMS accurately determined the effective date of CHLB's hospital provider agreement to be July 23, 2001. In FFCL 2.a, the ALJ concluded that CHLB became eligible to participate in Medicare on July 23, 2001, "when CMS received an acceptable plan of correction which established that [CHLB] met all federal participation requirements." ALJ Decision at 3.
CHLB argued the ALJ erred in concluding that the effective date of the agreement was July 23 rather than June 27, 2001, the date of the state inspection. CHLB RR at 5. CHLB stated, "We agree that the face of the Regulations indicate that all Federal requirements must be met on the date of the survey. We assert that, in fact, these requirements were met." CHLB RR at 5. The basis for this representation seems to rest on inferences drawn from the surveyors' conduct, which, CHLB asserted "demonstrate that there was no true concern for potential for patient harm." Id. Thus, CHLB reasoned, "the survey team, in good faith, must have left the Closing Conference convinced that the deficiencies indicated would be acceptably addressed by the Hospital in their Plan of Correction" and, therefore, the effective date should be June 27, 2001. Id. at 5-6.
CHLB's argument is baseless. Section 489.13 of 42 C.F.R. establishes "uniform criteria for determining the effective dates of Medicare and Medicaid provider agreements . . . when the provider . . . is subject to survey and certification as a basis for determining participation in those programs." 62 Fed. Reg. 43,931 (August 18, 1997). Section 489.13 is very clear that a provider agreement is effective the day of the survey if "the provider . . . meets all applicable Federal requirements as set forth in this chapter [42 C.F.R. Chapter IV]." Even if CHLB had been in compliance with "all federal requirements" on June 27 (and there is nothing in the record to show that it was), the earliest date its provider agreement could be effective under section 489.13(b) was July 13, the date of the survey to determine compliance with federal requirements. (5) Since even full compliance before July 13 would not have supported an effective date prior to July 13, the mere absence of potential for harm as of July 13 (even if proven) also cannot support an earlier date.
Second, CHLB's arguments demonstrate no error in the ALJ's conclusion that the effective date of the agreement was July 23 rather than June 27, 2001. The SOD resulting from the July 13 survey cited CHLB for 12 standard-level deficiencies. CHLB Ex. D. CHLB admitted repeatedly that it had standard-level deficiencies on the date of the federal survey and did not contest the deficiencies before the ALJ. (6) While CHLB asserted in this argument that "all Federal requirements" were "met on the date of the survey," in the face of its repeated admissions and the absence of any proffers of proof relevant to deficiencies, we assume that CHLB means all federal condition-level requirements were met. CHLB did not offer any analysis of the regulations, before the ALJ or the Board, which would establish that a facility with standard-level deficiencies somehow meets "all applicable Federal requirements as set forth in this chapter [Chapter IV of 42 C.F.R.]" as required by section 489.13(b). Thus, since CHLB did not meet applicable Federal requirements as of the survey date, its provider agreement could not be effective until (1) CMS made a determination that it "[met] all requirements" (section 489.13(c)(1)(i)) or (2)"CMS or the State survey agency receive[d] an acceptable plan of correction for the lower level deficiencies, or an approvable waiver request, or both" (section 489.13(c)(1)(ii)). CHLB pointed to no evidence in the record, before the ALJ or the Board, which would tend to show that it remedied all the standard-level deficiencies prior to the State survey agency's receipt of its acceptable POC on July 23, 2001. Therefore, the ALJ properly concluded that the effective date of CHLB's provider agreement was July 23, 2001.
We affirm FFCL 2.a which provides:
C. The ALJ did not err in concluding that the State survey agency's survey for state licensing is not determinative of, or equal to, a survey to certify an provider for Medicare participation. (FFCL 2.b)
Before the ALJ, CHLB argued that the ALJ erred by not finding that it met all federal requirements on the basis of the June 27 survey conducted by the State survey agency pursuant to which it was licensed to operate as a hospital in California. CHLB Response before ALJ at 4.
The ALJ rejected this argument. She concluded that CMS lacked authority to give a hospital an effective date earlier than the survey to determine whether it met applicable federal requirements. ALJ Decision at 5, citing Arbor Hospital of Greater Indianapolis, DAB No. 1591 (1996) and 42 C.F.R. § 489.13(b).
On appeal, Petitioner did not offer any arguments as to why the ALJ's conclusion was erroneous. Instead, it focused on the behavior of the surveyors in the July 13 survey, again arguing that "CHLB was in substantial compliance with the Federal requirements and the agents for CMS expressed no concern for patient harms that was not immediately addressed by a Plan of Correction." CHLB RR at 6-7.
CHLB's argument appears to assume that California's hospital licensing standards are identical to Medicare hospital certification standards. There is no basis in the record for such an assumption. Therefore, the fact that the State surveyors determined, on June 27, that CHLB met California hospital standards for licensure does not show that they also determined CHLB met federal hospital standards on June 27. The first survey of federal standards occurred July 13 pursuant to CHLB's July 9, 2001 request for a federal survey (CHLB Ex. B), and, as the ALJ explained, under section 489.13(b), July 13 was the earliest date the agreement could be effective.
We affirm FFCL 2.b which provides:
D. The ALJ did not err in concluding CHLB did not qualify for the "special rule" exception under 42 C.F.R. § 489.13(d)(2) and (d)(1)(ii). (FFCL 2.c)
Before the ALJ, CHLB relied on 42 C.F.R. § 489.13(d) which addresses determination of the effective date of agreements of providers who are "accredited by a national accrediting organization." (7) This section does authorize retroactive effective dates under certain circumstances for such accredited facilities.
The ALJ determined CHLB did not qualify for a retroactive effective date under section 489.13(d)(2) because it failed to show that it met the regulatory requirements of section 489.13(d)(1), as required by (d)(2). For example, CHLB did not show that the State survey agency was a "national accrediting organization" as required by 42 C.F.R. § 489.13(d)(1). ALJ Decision at 6.
On appeal, CHLB offered no arguments related to the requirements of section 489.13(d). It again focused on the potential for harm posed by the standard-level deficiencies found on July 13. Potential for harm is irrelevant to the question of whether a provider agreement may be given retroactive effect pursuant to section 489.13(d). As the ALJ found, section 489.13(d) concerns providers accredited by national accrediting organizations. There is nothing in the record to support a finding that CHLB was accredited by a national accrediting organization. Therefore, we affirm FFCL 2.c which provides:
E. The ALJ did not err in concluding she had no authority under equitable principles to require CMS to reimburse CHLB for all or a portion of services it furnished to Medicare beneficiaries prior to July 23, 2001. (FFCL 2.d)
CHLB challenged FFCL 2.d in which the ALJ concluded she had no authority under equitable principles to require CMS to reimburse CHLB for services provided to Medicare beneficiaries prior to July 23, 2001. CHLB listed the facts which it asserted entitled it to equitable relief and reimbursement under the theories of equitable estoppel (CHLB RR at 8-9) and quantum meruit (Id. at 9-10). CHLB concluded as follows: "We believe the Board has the authority, where the deficiencies are of a level that can be addressed in a Plan of Correction, to allow for Medicare Certification on the requested date of June 27, 2001, or at least the survey date." CHLB RR at 9. It cited no authority for this belief.
The ALJ correctly concluded that, under 42 C.F.R. §§ 498.3(b)(15) and 498.5, she had the authority to review CMS's determination as to the effective date of CHLB's provider agreement but that the scope of this review did not include ordering CMS to reimburse CHLB pursuant to equitable principles. ALJ Decision at 7-8. As we have previously stated about a determination as to whether a provider met relevant federal requirements:
National Behavioral Center, Inc., DAB No. 1760, at 3-4 (2001); cf. Big Bend Hospital Corp., DAB No. 1814, at 24-25.
We are bound by the effective date provisions of 42 C.F.R. § 489.13 and other regulations governing Medicare reimbursement. Consideration of equitable theories of relief is beyond the scope of our review. (8)
We affirm FFCL 2.d, which provides -
Based on the affirmance of FFCLs 2.a, b, and c, we affirm FFCL 2 which provides:
F. CHLB did not except to FFCL 3.
Before the ALJ, CHLB argued that it was entitled to reimbursement "as a nonparticipating provider to Medicare Beneficiaries in compliance with EMTALA and other federal laws . . . ." CHLB Notice of Issues at 4. EMTALA is the acronym for the Emergency Medical Treatment and Labor Act, codified at section 1867 of the Social Security Act. It requires hospitals with emergency departments to provide certain services. Section 482.2 of 42 C.F.R. provides that, under certain circumstances, an institution without a Medicare provider agreement may be reimbursed by Medicare for providing emergency services. In FFCL 3, the ALJ found she had authority to adjudicate the issue of a nonparticipating hospital's entitlement to Medicare reimbursement for such emergency services. However, she declined to add this issue to this proceeding because CHLB failed to proffer any evidence that would tend to show that it met the qualifications for such reimbursement. Specifically, CHLB failed to offer evidence that it had elected to claim reimbursement under section 484.2, as required by 42 C.F.R. § 424.104. ALJ Decision at 8-9.
While CHLB styled this section of its Request for Review as a challenge to FFCL 3, CHLB admitted that it never elected to claim reimbursement under section 482.2, and CHLB did not contend that the ALJ erred in refusing to add a claim under section 482.2 as an issue in this proceeding. CHLB RR at 9. Rather, CHLB asserted that it is entitled to reimbursement under the equitable theory of quantum meruit and proffered evidence of services provided to Medicare beneficiaries. Id. Therefore, CHLB is excepting again to FFCL 2.d rather than to FFCL 3. As explained in the preceding section addressing FFCL 2.d, the scope of the ALJ's and the Board's review does not include ordering reimbursement pursuant to equitable theories.
For the reasons discussed above, we adopt and affirm the ALJ's findings of fact and conclusions of law. We therefore sustain the ALJ's holding that the effective date of CHLB's provider agreement is July 23, 2001.
Donald F. Garrett
Cecilia Sparks Ford
Judith A. Ballard
1. Section 489.3 of 42 C.F.R. defines provider agreement as "an agreement between CMS and [a provider] to provide services to Medicare beneficiaries and to comply with the requirements of section 1866 of the Act."
2. CHLB also excepted to the ALJ's background discussion of the facts on the grounds that she did not state that the State survey agency was "an agent of [CMS] and did survey and grant a license to operate a hospital facility to CHLB effective June 27, 2001." CHLB Request for Review (RR) at 1-2. We reject this exception. The ALJ stated elsewhere that the State survey agency had also performed the June 27 survey for state licensing (ALJ Decision at 5) and that the State survey agency was acting on behalf of CMS in conducting the July 13 Medicare certification survey (ALJ Decision at 3 n.1). CHLB implied that the State survey agency was acting as CMS's agent when it conducted the June 27 state licensing survey but pointed to nothing in the record or regulations to support this theory.
3. Before the ALJ, CHLB asserted "At the exit conference for the survey, CHLB understood that the team's documentation would be returned on July 16, 2001. All minor deficiencies were corrected as of that date." CHLB Request for Hearing at 3. We construe this language to mean that CHLB was representing that it corrected all deficiencies as of July 16, 2001. The ALJ's construction of this assertion as meaning that CHLB was representing that it corrected all deficiencies as of July 13, 2001 (see ALJ Decision at 4) is a misreading of what CHLB asserted and is contrary to CHLB's representations in the POC (which apparently was not available to the ALJ). In the POC, CHLB represented to the State survey agency that it corrected some, but not all, of the deficiencies as of July 13. See CHLB Ex. D at 3, 5-13, and 15 setting forth correction completion dates which postdate July 13.
4. The level of the deficiencies was material to whether National Hospital should have been allowed to submit a plan of correction or been required to reapply for certification. Because CMS found condition-level deficiencies, it had required the hospital to reapply.
5. Prior to 1980, the effective date of a Medicare agreement could predate the survey determining compliance. Medicare "permitted retroactivity, if requirements were met, to the date a facility first opened or the date on which it first requested participation." 45 Fed. Reg. 22,933 (April 4, 1980). In 1980, CMS adopted 42 C.F.R. § 489.13, which, for providers subject to survey and certification by CMS or state survey agency, provides for an effective date no earlier than the date of the survey.
6. Nor did CHLB contend that it corrected all of these deficiencies on the date of the survey. Its own POC establishes that the deficiencies were to be corrected beginning July 13 and ending August 15, 2001. CHLB Ex. D.
7. Before the ALJ, CHLB's principal defense was based on section 489.13(d). CHLB Response in Opposition to CMS' Motion for Summary Judgment at 2-4. Its misunderstanding of this provision appears to be the original source for its assertion that the effective date of its agreement should be June 27, 2001.
8. CHLB suggested in this section of its Request for Review that, if the Board cannot grant an effective date of June 27, it could make the effective date July 13. CHLB RR at 8. We do not reach this issue because CHLB did not make this argument before the ALJ. Our Guidelines provide that "the Board will not consider issues not raised in the request for review, nor issues which could have been presented to the ALJ but were not." Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs (at http://www.hhs.gov/dab/guidelines/prov.html). This guideline reflects the fact that our review of an ALJ decision is limited primarily to whether the ALJ decision was erroneous as a matter of law or unsupported by substantial evidence on the record as a whole. However, we do note that CHLB's POC indicates that the earliest date by which it was to be in compliance with all federal requirements was August 15, 2001. CHLB Ex. D, at unnumbered 6.