SUBJECT:

Marion Citrus Mental Health Center,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

The Centers for Medicare & Medicaid Services (CMS)⁽¹⁾ properly determined December 23, 1998 to be the effective date for Marion Citrus Mental Health Center (Petitioner) to participate in the Medicare partial hospitalization program as a community mental health center (CMHC).

Petitioner is a provider of mental health services in Florida. On February 25, 1998, Petitioner filed its initial application for Medicare certification as a CMHC with the Florida Agency for Health Care Administration. On December 23, 1998, CMS notified Petitioner that it was certified as a CMHC, effective December 23, 1998. Petitioner requested reconsideration on January 6, 1999 and CMS responded on February 5, 1999, by affirming its prior determination. Petitioner requested a hearing by letter dated April 5, 1999. Petitioner's Request for Hearing, pp. 1-2.

This case was initially assigned to Judge Mimi Hwang Leahy on June 11, 1999. The case was subsequently reassigned to Judge Joseph K. Riotto on March 13, 2000 and thereafter to Judge Alfonso J. Montano on August 29, 2001. The case was reassigned to me on October 18, 2001.

There are no disputed facts in this case. Both parties agree that this case is before me for a ruling on Petitioner's claim that the effective date of its provider agreement should have been February 16, 1998 rather than December 23, 1998. Petitioner asserts that the correct effective date is the date it began providing mental health services, February 16, 1998.

GOVERNING LAW

"Partial hospitalization services" are services which are described at section 1861(ff) of the Social Security Act (Act) and which are reimbursed by the Medicare program. "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 and 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 services as the Secretary of this Department 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 a CMHC. See Act, section 1861(ff)(3)(A).

In order to be certified to participate in the Medicare program, a CMHC must apply to participate in Medicare. The CMHC must be inspected by or on behalf of CMS and CMS must certify that the CMHC satisfies applicable participation requirements. See, generally, 42 C.F.R. Part 489. The regulation governing the effective date of participation of a CMHC is codified at 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 [CMS] accepts a signed agreement which assures that the CMHC . . . meets all Federal requirements."

ISSUES, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ANALYSIS

Whether CMS properly determined that December 23, 1998 is the correct effective date for Petitioner's participation in the Medicare partial hospitalization program as a CMHC.

1. Summary judgment is appropriate in this case.

Summary judgment 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, 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. A party opposing summary judgment 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).

Petitioner's request for hearing disputes the validity of 42 C.F.R. § 489.13(a)(2)(i) and State Operations Manual (CMS-Pub. 7), Transmittal No. 3, Sep. 1, 1998 (SOM).⁽²⁾ Petitioner asserts that the regulation was not properly promulgated under the Administrative Procedure Act (APA). Petitioner cites no holding of any court of competent jurisdiction to the effect that the Secretary's regulation is invalid and Petitioner does not argue that the regulation as promulgated was improperly applied in this case. Petitioner cites no facts in dispute. Petitioner's Request for Hearing, April 5, 1999.

CMS has moved to dismiss or in the alternative for summary judgment. CMS raises no factual dispute but argues that I do not have jurisdiction to find the disputed regulation invalid on the grounds urged by Petitioner. CMS does acknowledge, however, that its determination of the effective date of a provider agreement is an appealable issue under 42 C.F.R. § 498.3(b)(14). CMS Motion To Dismiss, p. 5. Petitioner argues, in its responsive pleading, that dismissal is not appropriate as it would deprive Petitioner of further judicial review. Petitioner's Request To Stay Proceedings, Response to Motion to Dismiss, p. 2. Petitioner further advocates that I permit development of a record regarding the Secretary's rule making related to the disputed regulation. Petitioner's Response, pp. 3-4. Again, Petitioner cites no facts related to the determination of the effective date in this case which are disputed. CMS identifies no material facts in dispute in its reply brief. CMS Reply to Petitioner's Response.

The facts related to the CMS acceptance of Petitioner as a CMHC are not disputed. The fact that CMS accepted Petitioner's provider agreement on December 23, 1998 is also not in dispute. The only dispute in this case relates to the application of the law to the undisputed facts. Therefore, summary judgment is clearly appropriate.

2. My jurisdiction is limited.

Black's Law Dictionary (7^th Ed.) provides many definitions for the term "jurisdiction," but all may be summarized as the authority by which a court or judge takes cognizance of and decides a case. The jurisdiction of an administrative law judge (ALJ) appointed pursuant to 5 U.S.C. § 3105 to conduct proceedings in accordance with 5 U.S.C. §§ 556 and 557, is circumscribed by the appointing agency's enabling statutes and its regulations. 5 U.S.C. § 556(c). In other words, I have no more jurisdiction or authority to hear and decide a case than the Secretary has under his enabling statutes and my jurisdiction is further subject to limits imposed by the Secretary's regulations and the delegations of authority specified therein. See, e.g., 42 C.F.R. § 498.3, 498.5. The Secretary's regulations only authorize me to hear and decide cases involving specified initial determinations by CMS. While I may decide whether CMS's interpretation of a regulation is correct or incorrect, I lack the authority to find a regulation invalid because the Secretary did not comply with the APA. Vermillion Behavioral Health Center, DAB CR751, at 4 (2001); citing Lauderhill Community Mental Health Center, DAB CR652 (2000). Furthermore, I do not have the authority to hear and decide claims of estoppel against CMS or the Secretary. GranCare Home Health Service & Hospice, DAB CR464 (1997); The Rivers Health Care Resources, Inc., DAB CR446 (1996); SRA, Inc. D/B/A St. Mary Parish Dialysis Center, DAB CR341 (1994); T.L.C. Mental Health Center, DAB CR636 (1999); Therapeutic Rehabilitation Centers, Inc., DAB CR531 (1998).⁽³⁾

The parties have not hesitated to note that my jurisdiction is as limited as I know it is. Both specifically recognize that I cannot make a judgment regarding the validity of a regulation based upon an examination of whether the regulation was promulgated in accordance with the APA. Request for Hearing, p. 2; CMS Motion to Dismiss, p. 2; Petitioner's Response, p. 2. Absent a conflict between the Secretary's enabling statutes and the Secretary's regulation or an opinion of a court of competent jurisdiction finding a regulation invalid, I am bound to follow the Secretary's regulations, just as the Secretary and CMS are bound by those regulations.

Despite the apparent agreement of the parties on the substantive law related to my jurisdiction, Petitioner advocates -- indeed cautions me -- that I should fulfill my duties as an ALJ by establishing a record regarding the promulgation of 42 C.F.R. § 489.13 for Petitioner's use on further appeal. Being fully cognizant of my duties as an ALJ, I decline Petitioner's request to investigate for the following reasons: (1) absent jurisdiction to decide the ultimate issue, my inquiry would be a waste of government resources and inconsistent with notions of judicial economy; (2) a significant record of rule making already exists for the promulgation of 42 C.F.R. § 489.13 in the Federal Register (see 62 Fed.Reg. 43931 (1997)); and, (3) if Petitioner takes the issue to the Federal District Court, I am confident that those judges have the authority and ability to develop the record as necessary, including the authority to send the matter back to me to conduct an investigation if they desire my assistance.⁽⁴⁾

I conclude that I have no jurisdiction to inquire, as Petitioner advocates, into the validity of the promulgation of 42 C.F.R. § 489.13. The parties have not identified a conflict between 42 C.F.R. § 489.13 (1998) and section 1866 of the Act (42 U.S.C. § 1395cc) which might cause me to follow an interpretation of the statute rather than the regulations. The parties have not identified and I have not found any precedential decision of a court of competent jurisdiction invalidating 42 C.F.R. § 489.13. According, the regulation will be applied in this case as written and the only issue is whether CMS did apply it as written.

3. CMS properly applied 42 C.F.R. § 489.13 to determine the effective date in this case.

The facts related to CMS's acceptance of Petitioner as a CMHC are not disputed. The fact that CMS accepted Petitioner's provider agreement on December 23, 1998 is also not in dispute. The only dispute in this case relates to the application of the law to the undisputed facts.

The plain meaning of 42 C.F.R. § 489.13(a)(2)(i) is that the effective date of the certification of a CMHC is the date that CMS accepts the CMHC's signed agreement. This regulation does not specifically identify the signed agreement referred to as the provider agreement between CMS and the provider. However, 42 C.F.R. § 489.13(a)(2)(i) is a regulation under Part 489 which is titled "Provider Agreements and Supplier Approval" concerning matters related to provider agreements. In the context of Part 489, it is clear that the signed agreement referred to in 42 C.F.R. § 489.13(a)(2)(i) is a provider agreement, particularly as no other agreement is specified. Additionally, it is clear that it is CMS that must do the "accepting" under 42 C.F.R. § 489.13(a)(2)(i). The filing of a completed application does not amount to an acceptance of an agreement by CMS. Similarly, the date a survey is completed (even if a provider is found to meet all federal requirements), or the date a recommendation is made to CMS by a State agency are not the triggering acts specified by the regulation. The regulatory scheme is that after a survey is completed and a recommendation is made to CMS, CMS makes an independent determination to either grant or deny the application. If an application is to be accepted, then CMS sends a provider agreement to the provider for signature/acceptance. If the agreement is signed, it is returned to CMS for review and acceptance as indicated by the signature of the appropriate agency official. CMS may reject a proffered provider agreement for several different reasons specified in the regulations. See 42 C.F.R. §§ 489.11-12.1. The regulation vests discretion in CMS to decide the date on which a CMHC qualifies to participate as indicated by its acceptance of the proffered provider agreement. My analysis does not depart from that of the other ALJs who have looked at this issue. See Harriett Cohn Center, DAB CR797 (2001); Vermillion Behavioral Health Center, DAB CR751 (2001); Midtown Community Mental Health Clinic, DAB CR689 (2000). My review of section 1866 of the Act (42 U.S.C. § 1395cc) does not lead to a different result as the statute does not specifically address the effective date of provider agreements.

Accordingly, I conclude that the plain language of 42 C.F.R. § 489.13(a)(2)(i) requires a finding that the effective date of Petitioner's provider agreement and participation in the partial hospitalization program, was the date on which CMS accepted the provider agreement submitted by Petitioner - December 23, 1998. I need not reach Petitioner's arguments regarding SOM § 2004 to decide this case because the regulations are the governing law in this case, not the SOM. The plain meaning of 42 C.F.R. § 489.13(a)(2)(i) is that the effective date of the certification of a CMHC is the date that CMS accepts an entity's signed agreement. In this case, 42 C.F.R. § 489.13(a)(2)(i) was in effect before Petitioner began its application process and the regulation is controlling. The SOM has no impact upon my determination in this case.

Finally, I note Petitioner's arguments that the rule making for 42 C.F.R. § 489.13(a) actually shows that the Secretary never intended to change prior written policies on the effective date of a CMHC's participation. Petitioner's Response, pp. 7-8. Petitioner provides no authority or persuasive argument for why I should depart from the general rule that the plain meaning of the language of the regulation controls. See Florence Peters, DAB No. 1706 (1999); St. Anthony Hospital, DAB No. 1728 (2000).

CONCLUSION

For the foregoing reasons, summary judgment is granted affirming the CMS determination that the effective date for Petitioner's participation in the Medicare partial hospitalization program as a CMHC was December 23, 1998.

Administrative Law Judge

1. Effective July 5, 2001, the Health Care Finance Administration was renamed the Centers for Medicare and Medicaid Services. 66 Fed. Reg. 35437.

2. The SOM is a statement of operating policy without the effect of statute or regulation. Therefore, no discussion is merited as to whether or not the SOM is correct.

3. I cannot render a judgment; but, I may nevertheless refer the parties to the decisions of the United States Supreme Court in Office of Personnel Management v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) and Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 104 S.Ct. 2218, 81 L.Ed.2d 42, 5 Soc.Sec.Rep.Ser. 29 (1984). While the Supreme Court has not ruled that estoppel will never lie against the government, the decisions in OPM v. Richmond and Heckler v. Community Health Services, make clear that estoppel will not lie against the government in cases involving benefits to be paid from the Treasury, particularly in the complicated area of Medicare.

4. Petitioner expresses the concern that CMS might argue in District Court that Petitioner failed to exhaust administrative remedies if I simply dismiss the request for hearing. Dismissal is not appropriate in this case as a right of appeal is clearly provided by regulation. Petitioner's concern should be assuaged by my issuance of a decision on the merits of this case. I have no authority, and Petitioner cites none, for the proposition that I might direct the Secretary to waive the exhaustion requirement in this case so that Petitioner may proceed directly to the District Court. Petitioner also proposes that I remand this case back to the Secretary or the appropriate component for consideration of Petitioner's APA argument. The regulations do provide for the remedy of remand, but only where both CMS and Petitioner agree that remand is appropriate - CMS has not consented in this case. 42 C.F.R. § 498.78.