SUBJECT:

Oasis Behavioral Health Center, Inc.,

Petitioner,

Centers for Medicare & Medicaid

This case has been reassigned to me for hearing and decision. I enter summary disposition in this case sustaining the determination of the Centers for Medicare & Medicaid Services (CMS) ⁽¹⁾ not to certify the Oasis Behavioral Center, Inc. (Petitioner) to participate in the Medicare program as a community mental health center (CMHC) providing partial hospitalization services. Summary judgment is appropriate as there are no genuine issues of material fact in dispute and the controlling issues may be resolved as a matter of law. I base this decision on my conclusion that Petitioner failed to meet the criteria for certification as a CMHC providing partial hospitalization services under federal and applicable State law.

I. PROCEDURAL HISTORY AND UNDISPUTED FACTS

Petitioner, a corporation located in Miami, Florida, submitted its application for Medicare participation as a CMHC on November 24, 1997. P. Ex. 2, ¶ 2. By letter dated September 11, 1998, CMS notified Petitioner that it did not meet the requirements for certification to participate in the Medicare program as a CMHC. CMS Ex. 6. That letter stated that, based on a July 16, 1998 on-site visit, Petitioner did not meet the statutory requirements for a CMHC set forth in the Social Security Act (Act) because Petitioner failed to offer the services mandated by section 1913(c)(1) of the Public Health Service Act (PHSA). Id. That letter further advised Petitioner that it could seek reconsideration of that determination. Id. Petitioner accordingly sought reconsideration of this initial determination and offered documentation that it did offer all the services required by the PHSA. CMS Ex. 7. By letter dated December 16, 1998, CMS affirmed its initial determination denying Petitioner's CMHC application. CMS Ex. 8. In that letter, CMS stated that Petitioner did not provide screening for patients being considered to be admitted to State mental health facilities. Id. CMS specifically found that Petitioner was not a "community mental health center or clinic" as defined by Florida State law, and therefore could not perform a transfer evaluation, and that there was no evidence that Petitioner maintained a contract with the Florida Department of Children and Families for the provision of inpatient, outpatient, day treatment, or emergency services. Id.

In a January 15, 1999 letter, Petitioner timely submitted to the Civil Remedies Division of the Departmental Appeals Board a request for a hearing to appeal CMS's final determination. Petitioner contended that it is a CMHC that meets all the statutory requirements. Petitioner specifically maintained it provides screening for patients being considered for admission to State mental health facilities through arrangements with various hospitals, with Petitioner's psychiatrists maintaining overall management responsibility for the services provided under these arrangements.

The case was initially assigned to Administrative Law Judge (ALJ) Mimi Hwang Leahy. In response to a June 11, 1999 order issued by Judge Leahy asking the parties how they wished to proceed in the resolution of the case, CMS responded on August 3, 1999, with a "Notice of Issues for Summary Disposition," while on August 16, 1999, Petitioner submitted a "Notice of Petitioner's Readiness for Adjudication of the Case" (Readiness Report), in which Petitioner asserted 14 legal issues, identified as "A" through "N." On October 12, 1999, Judge Leahy set a briefing schedule.

On December 3, 1999, CMS filed a motion for summary disposition, accompanied by a brief and 15 exhibits. Petitioner did not object to these exhibits and I accept CMS Exs. 1 - 15 into evidence. On January 10, 2000, Petitioner submitted a response to CMS's motion for summary judgment, accompanied by six exhibits. CMS did not object to the introduction of these exhibits into evidence and I accept P. Exs. 1 - 6 into evidence. On January 24, 2000, CMS submitted a reply to Petitioner's response.

The case was then reassigned to ALJ Cynthia Josserand, and subsequently transferred to me on May 1, 2000. The case was then reassigned to ALJ Joseph Riotto on October 16, 2001. Subsequently, I resumed jurisdiction over this case.

II. APPLICABLE LAW

A. Federal Law and CMS Policy

"Partial hospitalization services" are services that are reimbursed by the Medicare program pursuant to section 1861(ff) of the Act (as amended) (42 U.S.C. § 1395x). "Partial hospitalization services" consist of services that are prescribed by a physician and provided pursuant to specified statutory criteria, and which include: individual and group therapy with physicians or psychologists; occupational therapy requiring the skills of a qualified occupational therapist; services of social workers, trained psychiatric nurses, and other staff trained to work with psychiatric patients; drugs and biologicals furnished for therapeutic purposes; individualized activity therapies; family counseling; patient training and education; diagnostic services; and such other items and services as the Secretary of Health and Human Services (Secretary) may determine to be reasonable and necessary. Act, sections 1861(ff)(1); 1861(ff)(2)(A) - (I).

The Medicare program will reimburse for partial hospitalization services that are provided by either a certified hospital or by a CMHC. Act, section 1861(ff)(3)(A). At the time Petitioner's application for CMHC certification was rejected, the Act defined a "community mental health center" as an entity --

(i) providing the mental health services described in section 1916(c)(4) of the Public Health Service Act; and

(ii) meeting applicable licensing or certification requirements for community mental health centers in the State in which it is located.

Act, section 1861(ff)(3)(B). ⁽²⁾ Although the Act refers to section 1916 of the PHSA, the section was recodified as section 1913(c)(1) of the PSHA. Under this section, the services that a CMHC must provide include the following:

(i) outpatient services, including specialized outpatient services for children, the elderly, individuals with a serious mental illness, and residents of the . . . [CMHC's] service area who have been discharged from inpatient treatment at a mental health facility;

(ii) 24-hour-a-day emergency care services;

(iii) day treatment or other partial hospitalization services, or psychosocial rehabilitation services; and

(iv) screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission.

Additionally, the Secretary issued regulations which define the term "community mental health center." This definition includes the statutory requirements listed above, and requires that a CMHC also "[m]eets applicable licensing or certification requirements for CMHCs in the State in which it is located." 42 C.F.R. § 410.2 (1998). These regulations also authorize a CMHC to provide partial hospitalization services "under arrangements" with another entity. 42 C.F.R. § 410.110. In the preamble to these regulations, CMS defined an "arrangement" as a situation in which a CMHC makes contractual arrangements with another entity or practitioners to come into the CMHC and furnish partial hospitalization services, and under which payment for such services is made to the CMHC. 59 Fed. Reg. 6570, at 6573 (1994). In section 3007 of its Medicare Intermediary Manual, CMS further explained that a provider furnishing services "under arrangements" must supervise and maintain professional responsibility over the services arranged. CMS Ex. 3.

CMS published policy guidelines on July 24, 1995, that describe a CMHC's obligations under section 1913(c)(1) of the PHSA and expressly allow for contracting for services to meet the requirements of section 1913(c)(1). In this guideline, referred to as the "All States Letter 76-95" (All States Letter), CMS stated that a CMHC must provide all of the services that are listed in the PHSA, either directly or under arrangements with others. CMS Ex. 2. The phrase "under arrangements" is defined in the All States Letter to mean that a CMHC may arrange for those services described at section 1913(c)(1) of the PHSA and partial hospitalization services:

under a written arrangement, agreement or contract with other agencies, organizations, or individuals who are not CMHC employees, and for which the CMHC maintains overall management responsibility. The written agreement includes at least the identification of the services to be provided and the manner in which the contracted services are coordinated, supervised, and evaluated by the CMHC . . .

Id. at 3.

In an August 21, 1998 memorandum to its Regional Administrators, Consortium Administrators, and State Agency Directors, CMS set forth its position, reflecting section 1861(ff)(3)(B)(ii) of the Act, to defer to the laws of the States in order to determine what constitutes adequate screening for patients being considered for admission to State mental health facilities pursuant to section 1913(c)(1)(iv) of the PHSA, defining screening as -

the performance of at least one of the stages in a process by which an individual is clinically evaluated, pursuant to State law, for the appropriateness of admission to a State mental health facility by an entity that has both the appropriate clinical personnel and the authorization under State law to perform all of the steps in the clinical evaluation process except those required to be performed by a 24-hour facility.

CMS Ex. 4, at 1 (emphasis in original).

Congress, in section 1861(ff)(3)(B)(ii) of the Act, incorporates State law requirements for CMHCs by specifying that any CMHC under the federal statute must meet the State's licensing and certification requirements. CMS relies, as expressed in its August 21, 1998 memorandum, upon the appropriate State law in order to determine what constitutes adequate screening for patients being considered for admission to State mental health facilities pursuant to section 1913(c)(1) of the PHSA.

B. State Law

The Florida Mental Health Act (FMHA), F.S.A. § 394.451, et seq., sets forth the procedures whereby individuals are voluntarily admitted or involuntarily committed to State mental health facilities. FMHA limits the types of entities that are authorized to perform certain procedures necessary to effectuate the admission of individuals to a State treatment facility. Specifically, an individual may not be admitted to a State treatment facility without first undergoing a "transfer evaluation." F.S.A. § 394.461(2). A "transfer evaluation" is defined under FMHA as -

the process, as approved by the appropriate office of the [Florida Department of Children and Families], whereby a person who is being considered for placement in a state treatment facility is first evaluated for appropriateness of admission to the facility by a community-based public receiving facility or by a community mental health center or clinic if the public receiving facility is not a community mental health center or clinic.

F.S.A. § 394.455(29).

The Florida Department of Children and Families has interpreted the above statute as providing that only a community mental health center or clinic is authorized to perform transfer evaluations under Florida State law. CMS Ex. 5. Under Florida State law, a "community mental health center or clinic" is a -

publicly-funded, not-for-profit center which contracts with [Florida Department of Children and Families] for the provision of inpatient, outpatient, day treatment, or emergency services.

F.S.A. § 394.455(6).

III. ISSUES

The issues presented are:

• Whether disposition on the pleadings is appropriate;
• Whether Petitioner qualified as a CMHC under the Act and Florida State law;
• Whether Petitioner's arguments raised in its Readiness Report were timely submitted and thus properly before this forum; and
• Whether I have the authority to address the constitutional and equitable arguments raised by Petitioner in its Readiness Report.

IV. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ANALYSIS

1. Summary judgment is appropriate where, as here, Petitioner has not demonstrated any dispute over genuine issues of material fact.

The entry of summary judgment is appropriate where there exist no disputed issues of material fact and the only questions presented for decision involve the application of law to the undisputed facts, as well as instances where the moving party is entitled to prevail as a matter of law even if all factual disputes are resolved in favor of the nonmoving party. New Millennium CMHC, DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000). A party opposing summary disposition must allege facts which, if true, would refute the facts relied upon by the moving party. See, e.g., Fed. R. Civ. P. 56(c); Garden City Medical Center, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony). The party may not simply state that it disputes the allegations of fact in order to avoid the entry of summary judgment; it must describe the asserted facts credibly in order to establish a dispute.

In cases involving the denial of an applicant's request for Medicare participation as a CMHC, CMS must present evidence to establish a prima facie case that the applicant has failed to supply affirmative evidence which demonstrates compliance with participation requirements. Psychstar of America, DAB CR645 (2000). Petitioner bears the burden of rebutting, by a preponderance of the evidence, any prima facie case of noncompliance established by CMS, as well as the burden of establishing that it satisfies the requirements for Medicare participation as a CMHC. Id.; see also Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. U.S. Dep't of Health and Human Servs.; No. 98-3789 (D.N.J. May 13, 1999).

The material facts are not disputed in this case and the case is readily resolved by applying the law to those undisputed facts. Petitioner has not asserted, nor produced any evidence, that it provided directly the screening services required of a CMHC. Rather, Petitioner has argued that it provided such screening services "under arrangements" with other entities. Whether in fact those agreements (CMS Exs. 9 - 13) meet the requirements for provision of screening services "under arrangements" is a legal issue, for which summary disposition is appropriate.

2. Petitioner did not meet the requirements for a CMHC under the PHSA and Florida State law.

Section 1913(c)(1) of the PHSA requires that a provider, in order to qualify as CMHC, must provide among its services "the screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admissions." In the All States Letter, CMS explained that a CMHC must either perform this screening service directly or "under arrangement" with another entity. CMS further clarified, in its August 1998 memorandum, that it will defer to State law as to what constitutes proper screening under the PHSA.

Here Petitioner has furnished no evidence that it itself provided such screening services. Rather, Petitioner asserts that it provided such services under arrangements with other facilities, a process approved by CMS in its All States Letter. Petitioner claims that the All States Letter is "the most important and telling piece of evidentiary documentation in this case and the correct analysis of it is vital to the fair resolution of this matter." P. Reply Br. at 2. Petitioner in particular points to the following language from CMS's answer to Question 4 in the All States Letter:

In order to participate in the Medicare program for the purpose of providing partial hospitalization services, a CMHC must provide screening to patients being considered for admission to State mental health facilities to determine the appropriateness of such admission. We agree that this screening process should result in admission or nonadmission to the State mental health facility. However, the CMHC may provide this screening and other services listed in section 1916(c)(4) of the PHSA either directly or under arrangements made by the CMHC. If the services are provided under arrangements, the CMHC must assume overall management responsibility for the services.

P. Ex. 1, at 3.

Asserting that it relied upon the All States Letter in organizing the structure and services of its CMHC, Petitioner argues that it entered into agreement with numerous other entities to cover certain of the core services that would be provided under arrangements pursuant to the All States Letter. Petitioner particularly points to the agreement it executed with South Shores Hospital as providing the basis for its intention that that hospital entity provide the required screening services. P. Ex. 3. Petitioner contends that under this arrangement with South Shores Hospital it maintained overall management authority over the services. Petitioner concedes that the agreement with South Shores Hospital "was not artfully drafted," but it clearly indicated and recognized the existence of certain rules that were to be followed for the provision of screening services. P. Reply Br. at 8.

Petitioner cites in particular to the following provisions of its agreement with South Shores Hospital:

WHEREAS, Oasis Behavioral Health Center, Inc., desires to arrange for and set forth a formal process to ensure the efficient and expeditious provision of psychiatric services, including but not necessarily limited to child and adolescent services, crisis stabilization, treatment of chemical dependency, and in-patient services to be available to all patients in the geographic region served by Provider (Oasis) on a twenty four (24) hour per day seven (7) days per week basis and to set forth transfer procedures.

WHEREAS, Hospital is an acute care, Medicare certified facility willing and capable of providing a full range of psychiatric and medical services including specialized services for children, the elderly, individuals who are chronically mentally ill, patients who have been discharged from inpatient services but not necessarily limited to child and adolescent programs, crisis stabilization, chemical dependency program, and inpatient psychiatric services on a twenty four (24) hour per day seven (7) days per week basis.

P. Ex. 3, at 1 (emphasis added by Petitioner in P. Reply Br. at 3).

Petitioner admits that the South Shores agreement did not specifically state that South Shores Hospital would provide "screening services," but that "it was the specific understanding between the parties that these services and specifically the screening services, were to be provided under the South Shores Agreement as described in the language [of the provisions] set forth above." P. Reply Br. at 3.

It is well established that a provider must provide all of the services listed in section 1913(c)(1) of the PHSA, including screening services for patients being considered for referral to State mental health facilities, in order to qualify as a CMHC. 42 C.F.R. § 410.2; Comprehensive Behavioral Healthcare, DAB CR890 (2002). The entity must provide services either directly by its employees or under arrangements with other entities. If a provider elects to provide services "under arrangements" with other entities, the arrangement must be pursuant to a written agreement which vests overall management responsibility in the CMHC. Furthermore, the agreement must specify the services to be performed and the manner in which the contracted services are coordinated, supervised, and evaluated by the CMHC.

Here Petitioner has admitted that screening services were not specifically addressed in its arrangement with South Shores Hospital, but asserts that it was the "understanding" of the parties that screening services were to be provided by South Shores Hospital. Despite Petitioner's arguments, I do not conclude that Petitioner can bootstrap an unwritten "understanding" into the actual provision of screening services mandated for a CMHC under the PHSA. While Petitioner may offer the excuse that its agreement with South Shores Hospital "was not artfully drafted" because, presumably, that agreement failed to even mention screening services, that argument is simply unpersuasive in light of the fact that the PSHA explicitly requires that a CMHC must provide such services, either directly or indirectly under arrangement with another facility.

Petitioner relies on the All States Letter for its position, but the All States Letter requires the CMHC to "assume overall management responsibility" for the screening services. It is a leap of faith to assume that Petitioner retained overall management responsibility over screening services at South Shores Hospital when its agreement with South Shores Hospital failed to even require that South Shores Hospital provide such services to patients referred by Petitioner. Additionally, there is simply no reference whatsoever in the agreement to consideration of possible admission to a State mental health facility, the predicate of Question 4 in the All States Letter on which Petitioner rests its case. Moreover, the screening requirement is not fulfilled even though South Shores Hospital may have employees who, under Florida State law, are eligible to screen patients for admission to State mental health facilities. In order to qualify as an "under arrangement" agreement, the agreement must explicitly provide for screening services and not rest on the unstated presumption that since the facility is eligible to perform such screening it will automatically provide such services.

Similarly, the agreements Petitioner executed with other facilities are also flawed. The All States Letter requires, as stated above, that, in order for another facility to provide the required services described in section 1913(c) of the PHSA "under arrangement" with a CMHC, the CMHC must maintain overall management responsibility over those services. Specifically, the written agreement with the facility must include at least the identification of the services to be provided and the manner in which the contracted services are coordinated, supervised, and evaluated by the CMHC. None of the agreements entered into by Petitioner in the record before me include provisions describing the manner in which Petitioner will supervise and evaluate services provided by the other facilities. Petitioner's agreements with Columbia Behavioral, Cedars Medical Center, and Miami Counseling Center do not provide for any continuing involvement by Petitioner in patient care or treatment once a patient is "referred" or "transferred" from Petitioner to the other contracting facility. CMS Exs. 10, 12, and 13. The agreement with Jackson Memorial similarly does not discuss any continuing involvement by Petitioner in patient care and contains an additional provision that, if Jackson Memorial Hospital is unable to accept a referral or transfer for inpatient admission, that facility, rather than Petitioner, will be responsible for referring the patient to an appropriate facility which meets the patient's needs. CMS Ex. 9, ¶ 5(a). In fact, the agreements with these facilities contain provisions which expressly disclaim any intention by Petitioner to exercise supervision or control over the manner in which services are provided by the facilities. For example, Petitioner's agreement with Jackson Memorial Hospital states that the parties "shall have exclusive control of the policies, management, assets and affairs of their respective facilities." CMS Ex. 9, ¶ 10. Likewise, Petitioner's agreement with Miami Counseling Center states that Petitioner "shall neither have nor exercise any control or direction over [Miami Counseling Center's] Day Treatment Program . . . ." CMS Ex. 13, ¶ 3. I find that none of the agreements in the record before me executed by Petitioner with another facility qualifies as an "under arrangement" within the terms of the All States Letter, in that Petitioner failed to exercise or to have the right to exercise the necessary "adequate management control" required by the All States Letter.

Moreover, I find that Petitioner does not qualify as a CMHC under Florida State law. As discussed above, a CMHC is required to meet the applicable licensing or certification requirements of the State in which it is located. Act, section 1861(ff)(3)(B). Further, Congress directed CMS to defer to State law in determining what constitutes screening for patients considered for admission to State mental health facilities. Act, section 1861(ff)(3)(B)(ii). Florida State law requires that, before an individual is admitted to a State treatment facility, that individual must undergo a transfer evaluation by a community-based public receiving facility or a CMHC. F.S.A. § 394.461(2). Florida State law further defines a CMHC as a "publicly-funded, not-for-profit center which contracts with [Florida Department of Children and Families] for the provision of inpatient, outpatient, day treatment, or emergency services." F.S.A. § 394.455(6).

Petitioner has provided no evidence that it meets these criteria for a CMHC under Florida State law. CMS's investigation of Petitioner determined that Petitioner was a private, for-profit corporation. CMS Ex. 6, at 3. Although it claimed that, after receiving CMS's determination to deny it CMHC certification, it filed to change its status to that of a not-for-profit corporation, Petitioner has not supplied any documentation to support this claim. CMS Ex. 7, at 2. Nor has Petitioner submitted any contracts it has with the Florida Department of Children and Families regarding the provision of services.

Petitioner's attempts to circumvent these straightforward requirements for a CMHC under Florida State law are unavailing. Petitioner argues that under another provision of Florida State law, F.S.A. § 394.455(26), a community-based receiving facility is also authorized to perform a transfer evaluation. Petitioner asserts that its employees have the authority to commit an individual to a receiving facility, thereby satisfying CMS's criterion for the provision of screening services. I find this reasoning strained at best. What Petitioner maintains, in effect, is that it is capable in some round-about fashion of providing a screening service that complies with Florida State law. Such an argument, based on the capability of a facility to conduct a required clinical assessment, has been rejected as insufficient to support a finding that the facility complies with the screening requirement. See Comprehensive Behavioral Healthcare, DAB CR980 (2002).

3. The arguments raised by Petitioner in its Readiness Report are properly before me.

Petitioner submitted its Readiness Report seven months after it filed its request for a hearing. In the Readiness Report, Petitioner raised 14 arguments, listed as "A"through "N," which, CMS asserts, were not presented in its request for a hearing. CMS argues that I should not consider the arguments raised by Petitioner in its Readiness Report as the regulations at 42 C.F.R. § 498.40(b) require that a petitioner's request for a hearing must "[i]dentify the specific issues, and the findings of fact and conclusions of law with which [petitioner] disagrees" and "[s]pecify the basis for contending that the findings and conclusions are incorrect."

There is no question here that Petitioner filed a timely request for hearing and in that request raised specific arguments challenging CMS's determination not to award it CMHC certification. Thus, there is no issue here whether Petitioner ignored the dictates of 42 C.F.R. § 498.40(b) and filed a mere "notice" pleading that would justify a dismissal of its hearing request. See Birchwood Manor Nursing Center, DAB No. 1669, at 11 (1998), aff'd sub nom., Birchwood Manor Nursing Center v. Dep't of Health and Human Servs., No. 98-60695 (5^th Cir. June 29, 1999); Care Inn of Gladewater, DAB No. 1680 (1999); Regency Manor Healthcare Center, et al., DAB No. 1672 (1998). These decisions emphasized that, in order to resolve real disputes, administrative efficiency and the conservation of resources demanded that a petitioner be able to establish that material issues of facts actually exist and that a dispute be framed with some clarity. The Carlton at the Lake, DAB No. 1829, at 7 (2002).

Rather, the question is whether Petitioner may supplement what is an already adequate hearing request with additional arguments. In a series of cases the Board rejected efforts to use the requirements set forth at 42 C.F.R. § 498.40(b) to frustrate the good faith efforts of petitioners to perfect appeals and exercise hearing rights created by the Act. Fairview Nursing Plaza, Inc., DAB No. 1715 (2000); Alden-Princeton Rehabilitation and Health Care Center, Inc., DAB No. 1709 (1999). The Board stated that, if a hearing request gave timely notice of a challenge to the factual allegations in the statement of deficiencies and of the basis for challenging them, more detail could be developed by amendment or other record development short of dismissal. The Board emphasized that an ALJ has discretion not to dismiss and should not lightly conclude that a petitioner has failed in its effort to take advantage of its opportunity for a hearing. The Carlton at the Lake at 8. More recently in Alden Nursing Center - Morrow, DAB No. 1825 (2002), the Board examined the discretion afforded an administrative law judge to determine whether a hearing request complied with the regulatory content requirements. The Board held that the discretion of an administrative law judge to permit amendment of a hearing request to rectify the inadequate content of a timely-filed hearing request should not be narrowly construed. Alden Nursing Center - Morrow at 9.

While those cases involved nursing homes challenging the imposition of various remedies by CMS and the appropriateness of a dismissal of their requests for a hearing, I find the same reasoning applicable here to Petitioner's challenge of CMS's failure to certify it as a CMHC and the supplementation of its original hearing request. I find a number of factors support allowing Petitioner to present the issues advanced in its Readiness Report. Petitioner asserts that when it filed its request for hearing it was acting pro se and that it was not until counsel was retained in August 1999 that it became aware of "the myriad of issues and defenses to the [CMS] position in this matter." P. Reply Br. at 10. Judge Leahy's Order of June 11, 1999, had specifically given the parties the option to submit a readiness report which was to include the "identification of legal issues" with no limitation placed restricting those issues to those initially raised in the hearing request. Section D.3. Furthermore, four of the arguments advanced in the Readiness Report can be reasonably viewed as refinements or restatements of arguments made in the hearing request. ⁽³⁾ Finally, CMS has not been prejudiced by the inclusion of the issues advanced by Petitioner in its Readiness Report, as CMS had the opportunity to fully respond to those issues in its Motion for Summary Disposition. Therefore, exercising the discretion afforded to me by the regulations and recognized by various decisions of the Departmental Appeals Board, and in light of the circumstances of this case, I find that the arguments advanced by Petitioner in its Readiness Report were properly submitted for consideration.

4. I do not have the authority to address the majority of the arguments advanced by Petitioner in its Readiness Report.

Although I have concluded that Petitioner's arguments put forth in its Readiness Report were properly offered for consideration, I nevertheless find that I do not have the authority to address the majority of these arguments. Apart from four arguments concerning Petitioner's qualifications to be certified as a CMHC, which I have addressed above, the remainder of Petitioner's arguments are assertions of either estoppel, violations of the Administrative Procedure Act (APA) by CMS, or other equitable claims asserting the unfairness of CMS's decision to deny CMHC certification to Petitioner.

I do not have the authority to hear and decide equitable arguments such as estoppel. New Millennium CMHC, Inc., DAB CR672 (2000). My authority in cases involving CMS is limited to hearing and deciding those issues which the Secretary of this Department has delegated authority to me to hear and decide, as set forth in 42 C.F.R. §§ 498.3 and 498.5. The regulations authorize me only to hear and decide cases involving specified initial determinations by CMS. I have no authority to fashion extraordinary relief. Oberry Community Mental Health Center, DAB CR986 (2002).

Moreover, I may only decide whether CMS applied the facts of a case correctly to applicable regulations or official interpretations of law. Petitioner argues that CMS's reliance on its August 1998 memorandum, setting forth its position to defer to State law in determining what constitutes patient screening, is unfounded as support for denying Petitioner CMHC certification, as CMS failed to promulgate that interpretation of the regulations as required by the APA. While I may decide whether CMS's interpretation of a regulation is correct, I lack the authority to decide whether CMS or the Secretary failed to publish a rule in violation of the APA. Mariner Health Home Care of South West, DAB CR980 (2002), citing Lauderhill Community Mental Health Center, DAB CR652 (2000); see also Sentinel Medical Laboratories, Inc., DAB No. 1762, at 9 (2001). Nor can I consider whether CMS treated Petitioner's qualifications to be a CMHC differently from other CMHCs in Florida. Allegations of disparate treatment, even if true, do not prohibit an agency of this Department from exercising its responsibilities to enforce statutory requirements. National Behavioral Center, Inc., DAB No. 1760, at 4 - 5 (2001).

V. CONCLUSION

Based on the foregoing analysis, I enter summary disposition in this case sustaining CMS's determination not to certify Petitioner to participate in the Medicare program as a CMHC.

Marion T. Silva

Administrative Law Judge

1. Effective July 5, 2001, the Health Care Financing Administration (HCFA) was renamed the Centers for Medicare & Medicaid Services. 66 Fed. Reg. 35,437 (2001). For the sake of clarity and consistency, even though CMS's briefs and exhibits were submitted prior to its name change and therefore identified as "HCFA" submissions and exhibits, I will refer to said documents as "CMS" submissions and exhibits throughout this decision. "CMS" exhibits are referred to as CMS Exs., while Petitioner's exhibits are referred to as P. Exs.

2. Section 1861(ff)(3)(B) has since been amended. A more detailed definition of a "community mental health center" was added by the Medicare, Medicaid, and State Children's Health Insurance Program Benefits Improvement and Protection Act of 2000, Pub. L. No. 106-554, but is only applicable to services furnished on or after March 1, 2001.

3. A. Did Petitioner fully comply with the requirements necessary to be granted a Medicare Provider Number as per the long stated interpretations of the applicable regulations as defined by [CMS]?

F. Does the State of Florida provide or require either licensing or certification requirements for community mental health centers?

G. Does the definition of the term "community mental health center" as provided in the Florida Statutes constitute licensure [sic] or certification requirements?

H. Has the Petitioner fulfilled the screening requirement at issue if it employs or contracts with an entity eligible under Florida law to screen patients for admission to state mental facilities or other 24-hour emergency facilities?

P. Readiness Report at 2.