SUBJECT:

Options Center of St. Petersburg,

Petitioner,

Health Care Financing Administration

This case having been reassigned to me, I enter summary disposition sustaining the determination of the Health Care Financing Administration (HCFA) not to certify Petitioner, Options Center of St. Petersburg, to participate in the Medicare program as a community mental health center providing partial hospitalization services. I premise this decision on my conclusions that: (1) Petitioner did not meet the criteria for certification as a community mental health center providing partial hospitalization services; (2) HCFA did not impermissibly apply the regulations retroactively to Petitioner's application for participation in Medicare; and (3) I do not have the authority to decide Petitioner's additional affirmative arguments, that HCFA's interpretation of its regulations violated the Administrative Procedure Act, was arbitrary and capricious and that HCFA should be estopped from denying Petitioner's certification application.

I. Introduction

Petitioner applied to be certified to participate in the Medicare program as a community mental health center which provides partial hospitalization services. On August 28, 1998, HCFA denied Petitioner's application and on December 21, 1998, HCFA denied Petitioner's request for reconsideration. Petitioner timely requested a hearing. On October 20, 1999, HCFA filed its Motion for Summary Disposition and Memorandum of Law in Support thereof. (HCFA Br.).

HCFA submitted seven exhibits (HCFA Exhibits (Exs.) 1-7). Subsequently, with its Reply to Petitioner's Memorandum of Law in Opposition to Respondent's Motion for Summary Disposition (HCFA Reply), HCFA filed two attachments (HCFA Attachments A and B). Petitioner submitted nine exhibits (P. Exs. 1-9) with its response (P. Br.). In order to maintain internal consistency, I am marking HCFA Attachments A and B as HCFA Exs. 8 and 9 respectively. Without objection, I admit into evidence HCFA Exs. 1-9 and Petitioner Exs. 1-9.

II. Governing law and the basis for HCFA's determination

A. Federal law

"Partial hospitalization services" are services which are defined in section 1861(ff) of the Social Security Act (Act) and reimbursed by the Medicare program. "Partial hospitalization services" consist of services that are prescribed by a physician and are provided pursuant to specified statutory criteria, 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 this Department may determine to be reasonable and necessary. Sections 1861(ff)(1); 1861(ff)(2)(A)-(I) of the Act.

The Medicare program will reimburse for partial hospitalization services that are provided by either a certified hospital or by a community mental health center. See section 1861(ff)(3)(A) of the Act. A "community mental health center" is defined by the Act to mean an entity:

(i) providing the 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.

Section 1861(ff)(3)(B)(i), (ii) of the Act. Although the Act refers to section 1916 of the Public Health Service Act, section 1916 was recodified as section 1913(c)(1) of the Public Health Service Act. Under section 1913(c)(1), the services that a community mental health center must provide include the following:

(i) outpatient services, including specialized outpatient services for children, the elderly, the seriously mentally ill, and residents of the . . . [community mental health center's] service area 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.

HCFA has published policy guidelines which describe a community mental health center's obligations under section 1913(c)(1) of the Public Health Service Act. In a document that is entitled "All States Letter 76-95," HCFA stated that a community mental health center must provide all of the services that are listed in the Public Health Service Act, either directly or under arrangements with others. HCFA Ex. 2.

HCFA has elected to defer to 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)(iv) of the Public Health Service Act. HCFA Ex. 3. HCFA defines "screening" to be:

the performance of at least one of the steps 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.

HCFA Ex. 3, at 1.

B. Florida State law

Florida State law defines the entities that are authorized to perform the procedures which are necessary prerequisites to the admission of individuals for treatment at a Florida State mental health facility. Under the Florida Mental Health Act (Florida State Act), Fla. Stat. Ann. § 394.451, et seq., only certain types of entities are authorized to perform the necessary procedures. Specifically, these entities are limited to entities which are authorized to perform "transfer evaluations." Fla. Stat. Ann. § 394.461(2). A "transfer evaluation" is defined under Florida State law as being:

the process, as approved by the appropriate district 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.

Fla. Stat. Ann. § 394.455(29).

The Florida Department of Children and Families has interpreted the aforesaid statute as providing that only a community mental health center or clinic is authorized to perform transfer evaluations under Florida State law. HCFA Ex. 4. Under Florida State law, a "community mental health center or clinic" is a:

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

Fla. Stat. Ann. § 394.455(6).

C. Basis for HCFA's Determination

HCFA stated that it was denying Petitioner's application for certification for participation in Medicare because Petitioner did not provide screening for patients being considered for admission to state mental health facilities:

[I]t has come to our attention that, under Florida law, . . . [Petitioner] is not authorized to provide screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission . . . . Florida . . . [restricts] . . . the type of entity which may perform screening for patients being considered for admission to State mental health facilities. These restrictions preclude . . . [Petitioner] from providing the screening services described in . . . [the Public Health Service and Social Security Acts] . . . .

HCFA Ex. 5, at 1.

HCFA's denial was based on the following findings and conclusions -

(a) Pursuant to FSA § 394.461(2) a patient shall not be admitted to a state treatment facility without previously undergoing a transfer evaluation. A transfer evaluation may only be performed by a community mental health center or clinic. FSA § 394.455(29). FSA § 394.455(6) defines a community mental health center or clinic as a publicly-funded, not-for-profit center which contracts with the Florida Department of Children and Families for provision of inpatient, outpatient, day treatment or emergency services.

(1) The HCFA 1513 (Disclosure of Ownership and Control Interest Statement) and CMHC Crucial Data Extract submitted by . . . [Petitioner] indicate that . . . [Petitioner] is a private for-profit corporation.

(2) HCFA's file which includes evidence submitted to the Florida Agency for Health Care Administration, to fiscal intermediary . . . and to HCFA, does not contain any documentation indicating that . . . [Petitioner] maintains a contract with the Florida Department of Children and Families to provide inpatient, outpatient, day treatment or emergency services.

HCFA Ex. 5, at 3.

In its December 21, 1998 reconsideration determination, HCFA reaffirmed that Petitioner did not provide screening for patients being considered for admission to State mental health facilities. HCFA noted that it defined screening as performance of at least one of the steps in the 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 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. HCFA stated that Petitioner had not demonstrated that it satisfied these requirements. HCFA Ex. 7.

III. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Summary disposition is appropriate in this case;

2. HCFA properly determined not to certify Petitioner to participate in Medicare as a community mental health center providing partial hospitalization services;

3. HCFA impermissibly applied the regulations retroactively to Petitioner's application for participation in Medicare; and

4. I have authority to hear and decide Petitioner's affirmative arguments, including Petitioner's assertions that: HCFA's policies with respect to community mental health centers are ultra vires the Administrative Procedure Act, arbitrary and capricious and that HCFA should be estopped from denying Petitioner's certification application.

 

B. Analysis

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separately numbered heading, and I discuss each Finding in detail.

1. Summary disposition is appropriate in this case.

A threshold question in this case is whether summary disposition is appropriate. Summary disposition is appropriate where: either there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, where the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. I have looked closely at the parties' arguments to decide whether there are disputed issues of material fact. There are no disputed material facts in this case. Essentially, the parties are relying on the same facts and are making legal arguments based on those facts. Therefore, I find that summary disposition is appropriate in this case.

2. Petitioner did not satisfy participation criteria for a community mental health center providing partial hospitalization services because it was not authorized under Florida State law to provide screening services for patients who are candidates for admission to State mental health facilities.

Petitioner does not satisfy participation criteria for a community mental health center providing partial hospitalization services. Consequently, I grant HCFA's motion for summary disposition.

In order to be certified to provide partial hospitalization services - indeed, in order to fall within the statutory definition of a community mental health center contained at section 1913(c)(1) of the Public Health Service Act - an entity must:

(i) provide all of the services that are listed in section 1916(c)(4), (now section 1913(c)(1)) of the Public Health Service Act, and

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

Act, Section 1861(ff)(3)(B).

The record of this case shows that Petitioner did not qualify under applicable State law as a community mental health center.

As I discuss above, at Parts II.A. and B. of this decision, HCFA has elected to defer to the States for the determination of what constitutes an appropriate screening for the admission of patients to State mental health facilities. See HCFA Ex. 3. Florida State law discusses screening as "transfer evaluations." Fla. Stat. Ann. § 394.455(29). Under Florida State law, a transfer evaluation for the purpose of determining whether a patient may be transferred to a State mental health facility may only be performed by a "publicly-funded, not-for-profit center which contracts with the department [of Children and Families] for the provision of inpatient, outpatient, day treatment, or emergency services." Fla. Stat. Ann. § 394.455(6) (emphasis added).

Petitioner plainly concedes that it is a privately funded, for-profit corporation which did not contract with the Florida Department of Children and Families for the provision of inpatient, outpatient, day treatment, or emergency services. P. Br. at 2, 6, and 9; P. Ex. 2; see also HCFA Ex. 5. Consequently, Petitioner does not qualify to perform transfer evaluations under Florida State law.

3. HCFA did not impermissibly apply the regulations retroactively to Petitioner's application for participation in Medicare

I find that HCFA did not apply the regulations or administrative rule in an impermissibly retroactive manner.

Petitioner argues that HCFA changed the law subsequent to its application for certification. P. Br. at 14-15. The controversy centers on HCFA's definition of the screening requirement set forth in an internal HCFA memorandum which contains instructions for writing letters rejecting applications for certification. Petitioner argues that this memo constituted a change in the criteria for certification which was unfairly applied to their application retroactively. I find that HCFA has not impermissibly applied the regulations retroactively for two reasons. First, HCFA's memorandum does not evidence a change in the regulation or criteria for certification (as explained more fully below, the memo may indicate that HCFA was policing an existing regulation more rigorously, however, the criteria was not changed subsequent to Petitioner accruing a right to participate Medicare). Second, in order to be an impermissible retroactive application of law, a party must have a right or vested interest that is disturbed - Petitioner had no such right or interest because its application was pending at all times relevant to this case. I address these points in turn below. Additionally, I explain that Petitioner's argument concerning retroactivity is reducible to an assertion that HCFA's treatment of Petitioner's application was unfair because it detrimentally relied on HCFA's past practice. I also explain that I do not have the authority to decide this additional affirmative argument.

My analysis of the retroactivity question turns on the relevant facts, including the dates in question and the participation criteria in place on the date of the application, during its pendency, and at the time of its rejection. These facts must then be measured against the applicable law regarding retroactivity.

The documents and dates we are mainly concerned with are the date of the application by Petitioner for participation in Medicare, the internal HCFA Memorandum describing the basis on which to issue denial letters, and the letter from HCFA denying Petitioner's application for certification. The undisputed facts are as follows:

(1) On or about July 25, 1996, Petitioner filed an attestation that it qualified as a community mental health center under Section 1913(c)(1) of the Public Health Service Act and requested Medicare Part B certification from HCFA (Application) P. Br. at 2;

(2) HCFA issued an internal memorandum dated August 21, 1998 titled Model Denial Letters for Community Mental Health Center Medicare (CMHC) Applicants (Memo) HCFA Ex. 3; and

(3) In a letter dated August 28, 1998, HCFA informed Petitioner that HCFA's determination was that Petitioner was not qualified to participate in Medicare as a CMHC (Determination). HCFA Ex. 5.

The August 21, 1998 Memo says, in pertinent part

The purpose of this memorandum is to provide you with copies of two model denial letters that should be used for pending CMHC applicants for Medicare participation and those entities that apply after receipt of this letter.

HCFA Ex. 3, at 1 (emphasis added). This bolsters the interpretation that HCFA was applying its understanding of the regulations prospectively. Petitioner takes issue with the Memo's description of how HCFA views "screening" in the context of providing screening for admission to State mental health facilities - a requirement for participation Medicare. The language in the memo on this issue is as follows:

Providing screening for admission to State mental health facilities is one of the requirements incorporated under Section 1861 (ff)(3)(B)(i) of the Act. The Health Care Financing Administration defines screening as follows: Screening constitutes the performance of at least one of the steps 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 authorization under State law, to perform all of the steps in the clinical evaluation process except those required to be provided by a 24 hour facility.

HCFA Ex. 3, at 1. As explained above in section II. B., Florida State law requires, among other criteria, that a facility be not-for-profit. It is undisputed that Petitioner is a for-profit entity.

Before discussing the law concerning retroactivity and the regulations regarding the date on which an application is deemed certified and their application to the facts in this case, I briefly review one other point of contention between the parties. This concerns the categorization of the HCFA memo as an interpretive rule and what the consequences of that categorization are to this case according to the parties.

HCFA characterizes the content of the Memo as an "interpretive rule." HCFA Br. at 31. HCFA posits that the memo is clarification written after the belated discovery of the difficulties created by the interaction between state commitment laws and the screening requirement. HCFA Reply at 13. HCFA argues that an interpretive rule is different from a more substantive change in a regulation or law which might cause retroactivity concerns. HCFA cites case law to support this view of the Memo and the law regarding interpretive rules. Petitioner argues that HCFA's screening definition has a retroactive effect and is therefore precluded from being categorized as an interpretive rule. P. Br. at 16 - 17.

Neither HCFA's nor Petitioner's arguments are relevant on the issue of impermissible retroactive application in this case. Whether HCFA's definition is categorized as an interpretive rule or something else is not the issue. Because I find that HCFA did not apply new law or new criteria to Petitioner's application, I do not need to decide that issue here.

I now turn to the to the law regarding retroactivity and then the regulations regarding the date of certification. The test for retroactive effect sets forth, in relevant parts, that: (1) a party must generally have a vested right to sustain a claim that one has been wronged by retroactive implementation of the law; and (2) a law may not generally impose new duties for transactions already completed. Accordingly, I find that the Memo and treatment of Petitioner's application were not impermissibly retroactive because (1) Petitioner had no vested right to participate in Medicare, and (2) no new duties were imposed with respect to transactions already completed.

It is true that law applied with retroactive effect, especially without explicit retroactive intent expressed in the text, is generally disfavored.⁽¹⁾ Accordingly, the test for determining retroactive effect has developed. Chadmoore Communications, Inc. v. Federal Communications Commission, 113 F.3d 235 (D.C. Cir. 1997), set forth that test. The test is whether the rule impaired rights that the applicant possessed when it acted, or increased the applicant's liability for past conduct, or imposed new duties with respect to transactions already completed. Id. at 240-41. In Accredited Cosmetology Schools v. Alexander, 979 F.2d 859 (D.C. Cir. 1992), the court used similar language in defining retroactivity in an administrative context. That court said that "a law is retroactive if it impairs vested rights acquired under existing law or creates a new obligation in respect to transactions already past." Id. at 864 (quoting Neild v. District of Columbia, 110 F.2d 246, 254 (D.C. Cir. 1940) (quoting Society for Propagating the Gospel v. Wheeler, 22 F.Cas. 756, 767 (C.C.D.N.H. 1814) (Story, J.)). Moreover, it has been held that the mere filing of an application with an agency does not entitle the applicant to the operation of the substantive regulations then in force at the time of the filing date. Pine Tree Medical Associates v. Secretary of Health and Human Services, 127 F.3d 118 (1st Cir. 1997). In that case it was found significant that HHS was applying new guidelines prospectively.

A review of the facts shows that Petitioner had nether a vested right to participate in Medicare nor did the Memo impose a new duty with respect to a transaction already completed. There is no dispute regarding the relevant dates in this matter and the regulations are clear concerning when a CMHC receives what might be considered a vested right in terms of participation in Medicare. In order to be certified to participate in Medicare, a CMHC must apply to participate in Medicare. The CMHC must be inspected by or on behalf of HCFA and HCFA must certify that the CMHC satisfies applicable participation requirements. Prior to September 17, 1997, the regulation that governed the effective date of participation of a CMHC was 42 C.F.R. § 489.13(c)(2) (1995). That regulation provided that, for requests for Medicare participation received after June 30, 1992:

the agreement is effective on the date the CMHC meets all federal requirements, but not before the date HCFA receives the application [to participate in Medicare] 42 C.F.R. § 489.13(c)(2) (1995).

That regulation was changed effective September 17, 1997. On that date, the relevant regulation governing the effective date of participation of a CMHC was codified as 42 C.F.R. § 489.13(a)(2)(i). This regulation specifies that the effective date of a participation agreement with a CMHC:

is the date on which HCFA accepts a signed agreement which assures that the CMHC . . . meets all federal requirements.

42 C.F.R. § 489.13(a)(2)(i).

Applying the regulation to the facts in this case, it is clear that, under either version of the regulation, there is no effective date with regard to Petitioner's application. This is because Petitioner was never in compliance with federal requirements. The regulations contemplate full compliance before certification.

As explained above, on July 25, 1996. Petitioner filed an attestation that it qualified as a community health center as described by Section 1913(c)(1) of the Public Health Service Act and requested Medicare Part B certification for the program by HCFA. Petitioner points to the fact that during the application process, information concerning the status of the application was communicated back and forth between the parties including: "By letter dated November 7, 1997 HCFA notified Dr. Leyva that while Options Center met other criteria for a community mental health center, its application was being denied because the facility did not provide specialized outpatient services for children." P Br. at 7. Petitioner represents that verbal assurances were made by HCFA that sufficient information had later been submitted to show that Petitioner met this requirement and that a provider number would be forthcoming. P. Br. at 7-8. Nonetheless, as Petitioner relates in its brief:

By letter dated August 28, 1998, Options Center was notified that HCFA had determined that the facility had indeed provided specialized outpatient services to children, but had subsequently determined that Options Center could not meet the screening requirement in accordance with Florida law because it was not a 'publicly funded, not for profit entity which contracts with the Florida Department of Children and Families for provision of inpatient, outpatient, day treatment, or emergency services.'

P. Br. at 8-9.

In its letter requesting HCFA reconsider the denial dated November 4, 1998, Petitioner argued that several factors indicated that an application of HCFA's interpretation of the regulation to their situation was "improper and unjust." HCFA Ex. 6, at 2.

As discussed above in Part II. C., Petitioner's for-profit status renders it ineligible to participate in Medicare. Significantly, this requirement and Petitioner's status were in place throughout the time period in question: from the time of the application - July 25, 1996; at the time of HCFA's Memo - August 21, 1998; at the time of HCFA's letter denying certification - August 28, 1998; and at the time of HCFA's letter denying Petitioner's request for reconsideration - December 21, 1998. Petitioner has never asserted that it meets the federal requirements because it admittedly is a for-profit entity. Therefore, there has been no showing of compliance at any date.

Accordingly, I find, in keeping with the general test identified in Chadmoore and Accredited Cosmetology, and on the facts of this case, that Petitioner possessed no right, nor incurred any new duty as a result of the memo issued by HCFA clarifying the criteria for participation in Medicare. I also find that the memo clarifying the definition of screening does not create a new law or new criteria, nor, despite HCFA's use of the term "interpretive rule," does it constitute a new definition or interpretation. In this case HCFA has not interpreted the criteria established in the regulations differently - it has upgraded its lax enforcement of the existing regulations to a more robust enforcement. While it may be unfortunate that some entities accustomed to lax enforcement had expectations which were disappointed, that is a grievance which cannot be remedied by this tribunal.

A close look at the facts regarding Petitioner's retroactive application argument reveals that the essence of the argument is actually one about an expectation, detrimental reliance and dilatory processing. Petitioner makes some of those arguments specifically, and I have addressed them elsewhere in this decision. The facts girding Petitioner's claim relating to the retroactive application argument are that:

HCFA has for several years issued Medicare provider numbers to community mental health centers in Florida that operate as private, for-profit corporations and do not contract with the Florida Department of Children and Families or its predecessor the Department of Health and Rehabilitative Services.

HCFA Ex. 6, at 2. Petitioner adds that Options operated in good faith for approximately 2 years and Options incurred over $250,000 in expenses under HCFA's former interpretation. Thus, "[a] retrospective application of this interpretation is improper and unjust." HCFA Ex. 6, at 2. Petitioner concludes:

To the extent that HCFA desires to revise its interpretation of Florida law regarding screening requirements, the new interpretation should be noticed and applicable to future applicants who have not detrimentally relied upon HCFA's prior position in this matter.

HCFA Ex. 6, at 2 - 3.

I note that HCFA is not bound by past practice. The premise which underlies HCFA's August 21, 1998, memorandum is that, prior to that date, HCFA had misunderstood the implications of Florida State law and had been certifying incorrectly as CMHCs entities that did not comply with the requirements of Florida State law. I am aware of nothing in the Act or in regulations which commands HCFA to continue to certify applicants to participate on the ground that it has certified similarly situated applicants in the past. There is nothing that I am aware of in either the Act or regulations which forces HCFA to adhere rigidly to an incomplete understanding of a State law if, in fact, HCFA's understanding of how the law operates evolves over time. HCFA has the responsibility to apply the law in a manner that is consistent with its understanding of the meaning of a State law. HCFA is under no obligation to continue to apply a policy that it had applied previously if it determines that the requirements of a State's laws direct it to do otherwise.

Detrimental reliance is an argument of the type beyond my authority to decide and akin to the additional affirmative arguments put forward by Petitioner as discussed in Part III. B. 4. below.

4. I do not have the authority to hear and decide Petitioner's additional affirmative arguments.

Petitioner has made additional affirmative arguments. Petitioner asserts that HCFA's interpretation of the screening requirement is arbitrary and capricious and is ultra vires the Act because it was not published through notice and comment rulemaking consistent with the Administrative Procedure Act. Petitioner also asserts that HCFA should be estopped from denying Petitioner's certification application because Petitioner was led to believe that its certification application would be approved based on: (1) HCFA's past general practice; (2) costs incurred by Petitioner awaiting final action on its application; and (3) HCFA's prior approval of certification of another, older, facility owned by Petitioner's President.

I do not have authority to hear and decide these arguments. My authority in cases involving HCFA is limited to hearing and deciding those issues which the Secretary of the Department has delegated authority for me to hear and decide. That authority is specified 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 HCFA.

The regulations give me the authority to hear and decide whether HCFA's determination that an entity fails to qualify as a provider was made correctly. 42 C.F.R. §§ 498.3(b)(1); 498.5(a)(2). In such a case, I may decide whether HCFA correctly applied regulations and interpretations of the law to the facts of a case. I may also decide whether HCFA's interpretation of a regulation is correct or incorrect. However, I lack the authority to decide whether HCFA or the Secretary published an interpretation of law in violation of the Administrative Procedure Act, or acted arbitrarily and capriciously.

Nor do I have authority to hear claims of estoppel against HCFA or the Secretary. It is well-established that, as an administrative law judge, I lack the authority to hear and decide estoppel arguments involving alleged dilatory processing of applications for provider or supplier certification. GranCare Home Health Service & Hospice, DAB CR464 (1997); The Rivers HealthCare Resources, Inc., DAB CR446 (1996); SRA, Inc. D/B/A St. Mary Parish Dialysis Center, DAB CR341 (1994). I infer from these cases that I also do not have the authority to hear estoppel arguments. Petitioner has offered no argument here which would give me reason to revisit the holdings in these decisions.

Based on the foregoing, I enter summary disposition sustaining the determination by HCFA not to certify Petitioner to participate in the Medicare program as a community mental health care provider providing partial hospitalization services.

Alfonso J. Montano

Administrative Law Judge

1. Retroactive application may be disfavored, in a general sense, in the law. See e.g., Georgetown University Hospital v. Bowen, 821 F2.d 750 (D.C. Cir. 1988) (holding that legislative rules must be prospective in application and agencies are not free to make rules retroactive to cure a "mere procedural defect"). However, other cases indicate that there is no prohibition on retroactive application. See Motion Picture Association of America v. Oman, 969 F2.d 1154 (D.C. Cir. 1992) (Congress must expressly confer retroactive rulemaking power).