SUBJECT:

Comprehensive Behavioral Healthcare,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

I enter summary judgment affirming the determination of the Centers for Medicare & Medicaid Services (CMS) ⁽¹⁾ not to certify Petitioner, Comprehensive Behavioral Healthcare, 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. My decision is based on Petitioner's failure to meet the criteria for certification as a CMHC providing partial hospitalization services under federal law and applicable state law.

A. Procedural History.

Petitioner is a corporation located in Greenville, South Carolina which submitted its application for Medicare participation as a CMHC on or about June 4, 1998. Petitioner's Readiness Report (P. Report), at 3. By letter dated May 26, 1999, CMS advised Petitioner of its initial determination denying Petitioner's certification because Petitioner failed to demonstrate that it met the statutory and regulatory definition of a CMHC under the Public Health Service Act (PHSA) and state law. CMS Ex. 4. In particular, CMS determined that Petitioner did not demonstrate that it provided outpatient services, 24-hour emergency care services, and screening services.

Petitioner requested reconsideration of CMS's initial determination by letter dated June 8, 1999. CMS Ex. 5. Petitioner argued in its request for reconsideration that it conducted an initial assessment of one child and then referred the patient to another psychologist for treatment. Petitioner asserts that it had an arrangement regarding patient referrals with the doctor to whom the child was referred. Petitioner also noted that it has provided screening services but that in all cases where it did do screening the patients elected to be admitted to private facilities. Petitioner asserts that under South Carolina law any physician can admit to a State mental health facility and, since their medical director is a medical doctor and board certified psychiatrist, Petitioner has the capability of accomplishing an admission to a state facility.

On September 10, 1999, CMS again denied Petitioner's application by a letter of the same date. HCFA Ex. 8. The reconsidered determination states that Petitioner failed to produce any additional clinical documentation demonstrating that it was actually providing specialized outpatient services for children, either directly through its own employees or "under arrangements," and that its relationship with the private psychologist did not satisfy the applicable federal criteria for the provision of services under arrangements. CMS also found that Petitioner had failed to submit any additional clinical documentation demonstrating that it had performed screening services. Finally, CMS stated that it was denying Petitioner's request because Petitioner had ceased doing business.

On November 9, 1999, Petitioner submitted a request for hearing. The case was initially assigned to Administrative Law Judge (ALJ) Alfonso J. Montano. The case was subsequently transferred to ALJ Joseph K. Riotto. On January 3, 2002, the case was assigned to me for decision. The case is properly before me and I have jurisdiction.

On September 8, 2000, Judge Montano conducted a telephonic prehearing conference in this case during which the parties agreed that this case can be resolved on written submissions and an in-person hearing was waived. The prehearing conference is memorialized in Judge Montano's Order of September 13, 2000. ⁽²⁾ Pursuant to the schedule established by the parties during the prehearing conference, CMS moved for summary judgment on October 16, 2000. CMS also submitted 12 proposed exhibits to which Petitioner did not object. Thus, CMS Exhibits (CMS Exs.) 1-12 are admitted. On November 15, 2000 Petitioner filed its response to the CMS motion. Petitioner's response is nothing more than a copy of its initial report dated June 22, 2000 with enclosures. One enclosure is Petitioner's request for reconsideration of June 8, 1999, which has been admitted as CMS Ex. 5 and need not be duplicated in the record. The second enclosure consisted of copies or summaries of South Carolina Code Annotated (S.C. Code Ann.) §§ 44-17-450 and 460 which are not exhibits that should be admitted, but are extracts of the applicable state law. Therefore, Petitioner has no separately admitted exhibits.

B. Undisputed Facts

Petitioner is a corporation located in Greenville, South Carolina which submitted its application for Medicare participation as a CMHC on or about June 4, 1998. P. Report, at 3; Petitioner's Response P. Resp.), at 3. Petitioner only operated from June 4, 1998 to May 26, 1999, when it was initially denied certification by CMS. Petitioner's Request for Hearing (P. Request) dated December 16, 1999. CMS cites three reasons for denying Petitioner's request for certification in its reconsideration determination of September 10, 1999. CMS Ex. 8. Those reasons were: (1) outpatient services for children remain unmet; (2) screening for admission to state mental facilities remains unmet; and, (3) the facility is no longer operational. During the 12 months it operated, Petitioner provided brief treatment to only one child who was referred to an outside provider due to a potential conflict of interest. P. Request; P. Resp., at 3; CMS Ex. 5. Petitioner has no documented case of screening for admission to a state mental facility as in all ten cases where inpatient referral was required, the patient elected a private hospital. P. Request; P. Resp., at 3. Petitioner suspended operations approximately one year from its application for certification due to unpaid Medicare and Medicaid claims totally approximately $500,000.

II. APPLICABLE LAW

A. Federal Law

"Partial hospitalization services" are services that are reimbursed by the Medicare program pursuant to section 1861(ff) of the Social Security Act (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).

(i)(I) provides the mental health services described in section 1913(c)(1) of the Public Health Service Act; or

(II) in the case of an entity operating in a State that by law precludes the entity from providing itself the service described in subparagraph (E) of such section, provides for such service by contract with an approved organization or entity (as determined by the Secretary) ⁽³⁾;

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

(iii) meets such additional conditions as the Secretary shall specify to ensure (I) the health and safety of individuals being furnished such services, (II) the effective and efficient furnishing of such services, and (III) the compliance of such entity with the criteria described in section 1931(c)(1) of the Public Health Service Act.

Act, section 1861(ff)(3)(B) (footnote omitted). Pursuant to section 1913(c)(1) of the PHSA (currently codified at 42 U.S.C. § 300x-2(c)(1)), the services that a CMHC must provide include the following:

(A) services principally to individuals residing in a defined geographic area (hereafter in this subsection referred to as a "service area");

(B) 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;

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

(D) day treatment or other partial hospitalization services, or psycho social rehabilitation services; and

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

Additionally, the Secretary has issued a regulation which defines the term "community mental health center." A CMHC is defined by the regulation to be an entity that:

(1) Provides outpatient services, including specialized outpatient services for children, the elderly, individuals who are chronically mentally ill, and residents of its mental health service area who have been discharged from inpatient treatment at a mental health facility;

(2) Provides 24-hour-a-day emergency care services;

(3) Provides day treatment or other partial hospitalization services, or psycho social rehabilitation services;

(4) Provides screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission;

(5) Provides consultation and education services; and

(6) Meets applicable licensing or certification requirements for CMHCs in the State in which it is located.

42 C.F.R. § 410.2 (1998).

CMS published policy guidelines on July 24, 1995 that describe a CMHC's obligations under section 1913(c)(1) of the PHSA and expressly allowed for contracting for services to meet the requirements of section 1913(c)(1), with a provision similar to that now codified at section 1861(ff)(3)(B)(i)(II) of the Act. In the "All States Letter 76-95," CMS stated that a CMHC must provide all of the services that are listed in the Public Health Service Act, either directly or under arrangements with others. CMS Ex. 1. ⁽⁴⁾ 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 [community mental health center] 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 . . . .

CMS Ex. 1, at 3.

CMS also issued policy guidance in All States Letter 80-98, which provides that a CMHC must actually provide the core services required by the Act and not merely have the capacity to provide the services. All States Letter 80-98 further provides that a CMHC's provider certificate may be terminated, if after certification, it does not provide all the core services. CMS Ex. 2.

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 licensing and certification requirements of the State. CMS logically relies 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)(E) of the PHSA.

B. State Law

Under South Carolina law, an individual may be admitted to a public or private hospital, mental health clinic, or mental health facility under emergency circumstances based upon the sworn affidavit of any person stating a belief that the individual is mentally ill and, due to his condition, is likely to cause serious harm to himself or others if not immediately hospitalized. The affidavit must be accompanied by the certificate of a licensed physician stating that the physician has examined the individual and is of the opinion that he is mentally ill and either likely to cause harm to himself through neglect, inability to perform self-care, personal injury, or otherwise, or likely to cause harm to others. S.C. Code Ann. § 44-17-410(2). S.C. Code Ann. § 44-17-460 also imposes an additional requirement in cases involving the emergency admission of an individual to a State psychiatric facility. That statutory provision requires the licensed physician executing the certificate to consult with (and to complete a written statement that he has consulted with) the local mental health center in the county where the person resides or the examination takes place regarding the physical and mental treatment needs of the patient, the commitment/admission process, and the available treatment alternatives in lieu of hospitalization at a State psychiatric facility. Execution of the physician's certificate authorizes law enforcement personnel to take the individual into custody and to transport him to the facility identified in the certificate. S.C. Code Ann. § 44-17-440.

The admitting facility must forward the affidavit and certificate to the probate court, which, if it finds that probable cause warrants continued detention of the patient, issues an order to that effect and appoints two examiners to evaluate the patient and to issue a report. S.C. Code Ann. § 44-17-410(3). If the examiners indicate the individual is mentally ill, a hearing is held. If the court finds the individual is mentally ill, it may order either inpatient or outpatient treatment at a public or private mental health facility. S.C. Ann. § 44-17-580.

III. ISSUES

The issues presented are:

•Whether disposition on the pleadings is appropriate

•Whether Petitioner met the requirement of providing outpatient services including specialized outpatient services for children;

•Whether Petitioner met the requirement of providing screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission; and

•Whether Petitioner is qualified to participate in the Medicare program as a CMHC even though it ceased providing services on May 26,1999.

IV. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ANALYSIS

A. Disposition on the Pleadings is Appropriate.

The parties have waived a hearing in this case and have requested judgment on the written pleadings. However, summary judgment would be appropriate in this case even if there were no waiver of a hearing. The entry of summary judgment is appropriate in instances 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 in 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).

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 those 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 affirmatively 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. Dept. of Health and Human Services, 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 does not dispute that it has not actually provided services specified by the Act. Rather, Petitioner argues it has provided similar services demonstrating an ability to deliver required services, or it is prepared to deliver required services even though it has not done so yet. Petitioner argues that its

provision of similar services and its standing prepared to deliver services is sufficient to meet the requirements of the Act - this, of course, is the legal issue that controls the disposition of this case.

B. Petitioner did not meet the statutory and regulatory requirements to provide services to children by providing only brief treatment to a child prior to referring that child due to a conflict of interest.

Petitioner admits that, during the year-long period in which it was open for business, it provided services to only one child. Petitioner also admits that the Act requires the provision of outpatient services to children. P. Resp., at 3. Petitioner contends however that CMS erred in concluding that the documentation it submitted, concerning the services ⁽⁵⁾ provided to the single child patient, was insufficient to demonstrate that Petitioner was providing outpatient services for children either directly or "under arrangements" with the practitioner to whom it referred the patient. Even if I accept as true Petitioner's assertion that the referral of the child was to a provider with whom Petitioner had an agreement for the provision of services, there is no indication that Petitioner maintained management or control of the case as contemplated by All States Letter 76-95. To the contrary, Petitioner was anxious to transfer the case quickly and completely, due to a professional conflict of interest - retaining management or control of the case would not have avoided the conflict. If I assume that Petitioner actually maintained control of the child's case, the provision of services to one child is not the provision of services to "children" as contemplated by the Act nor does it indicate that the Petitioner was prepared to provide services to children on a regular basis.

It is well established that a provider must provide all of the services listed in section 1913(c)(11) of the PHSA, including specialized care for children and 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; CMS Exs. 1, 2; New Life Plus Center, supra. The entity must provide services either directly by its employees or under arrangements with other. CMS Ex. 1. If a provider elects to provide services "under arrangements" with others, 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 provided and the manner in which the contracted services are coordinated, supervised, and evaluated by the CMHC. See CMS Ex. 1.

The record in this case establishes that Petitioner did not provide outpatient services including specialized outpatient services for children either directly or "under arrangements" with others. Petitioner concedes it only provided services to a single child during the 12-month period in which it was open for business. It argues, however, that its actions with respect to this child enable it to meet the statutory and regulatory definition of a CMHC because it initially undertook the treatment of the child until learning that there was a conflict of interest in which required referral to an outside clinician.

Petitioner also contends that it should be viewed as meeting Medicare participation requirements for the provision of outpatient services for children "under arrangements" because it employs a qualified clinician who would be responsible for supervising, evaluating and coordinating services provided. However, Petitioner's proffered clinical record and related evidence are insufficient to demonstrate that it actually provided outpatient services for children directly through its employees. The statutory and regulatory provision governing this situation require an applicant to demonstrate that it is actually providing (i.e. actively engaged in furnishing) specialized outpatient services for children and expressly define a CMHC as an entity which is providing a continuum of mental health services to a diverse patient population. 42 U.S.C. § 1395x(ff)(3)(B); New Life Plus, supra.

Petitioner's documentation establishes at most that it had one encounter almost nine months prior to the date of the on-site visit and nearly one year prior to the date on which CMS initially denied its request for Medicare participation and that it referred the child in question to another mental health professional for treatment. A facility's provision of a brief assessment to single child many months prior to the date of its on-site visit does not enable it to establish that it is providing the active, consistent, and ongoing patient services which are a prerequisite for Medicare certification as a CMHC. See Counseling and Therapeutic Center, DAB CR696 (2000) (clinical record pertaining to services rendered approximately one year prior to onsite visit did not establish actual provision of outpatient services to the elderly because the fact that a CMHC may have provided a service at some point does not establish that the CMHC is providing such services now); New Life Plus Center, supra; New Millennium CMHC, supra; Psychstar of America, supra.

In fact, the documentation upon which Petitioner relies, in asserting that it provides outpatient services directly, is a brief diagnostic evaluation of a patient with a contemporaneous referral to another practitioner for treatment. CMS Ex. 7, at 1-3. While Petitioner asserts that it initially undertook treatment of the child, it does not appear that Petitioner ever admitted the patient to its program or that Petitioner's employees were ever involved in the direct delivery of mental health treatment subsequent to the referral.

The documentation in this case also does not support Petitioner's claim that it provided outpatient services to children "under arrangements." Numerous decisions in cases involving prospective CMHCs have recognized that, to be found to be providing one or more of the required services "under arrangements," an applicant must maintain a written agreement for the provision of such services which meets applicable federal criteria. National Behavioral Center, DAB CR695 (2001); T.L.C. Mental Health Center, DAB CR636 (1999); New Life Plus Center, supra; Counseling and Therapeutics Center, supra.

The criteria for such an agreement are found in the All States Letter 76-95, which defines the term "under arrangements" to mean "that a CMHC may arrange for the services required by Section [1913(c)(1)] of the PHS . . . to be provided 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." CMS Ex. 1, at 3. Petitioner has not demonstrated that it maintains a written agreement for the provision of specialized outpatient services for children "under arrangements" which satisfies the federal criteria.

The sole piece of documentation presented by Petitioner in this regard is the August 3, 1999 letter from Dr. Bodtorf, the psychologist who treated the child, to Doctor Hansen, Petitioner's employee. As CMS properly noted in its reconsidered determination, the letter is insufficient to meet the federal criteria because it contains no explanation of the manner in which Petitioner is responsible for supervising, coordinating, and/or evaluating any services provided by Dr. Bodtorf. Nor does the fact that Petitioner's clinical record documents two telephone conversations between Dr. Bodtorf and Dr. Hansen establish that Petitioner exercised professional and managerial responsibility over the provision of services by Dr. Bodtorf. At most, the notes of the telephone conversations in question indicate that Dr. Bodtorf informed Dr. Hansen of the manner in which the patient's treatment was progressing subsequent to the referral. CMS Ex. 7, at 4-5. The record does not show that Petitioner admitted the patient to its facility for treatment and Petitioner also has not submitted documentation to establish the nature of the services provided by Dr. Bodtorf or the manner in which Petitioner supervised and/or evaluated the effectiveness of those services.

C. Petitioner did not meet the statutory or regulatory requirements for providing screening services for admissions to State mental facilities.

Petitioner does not dispute that the only screening it conducted pertained to patient admissions to private mental health facilities during the year before it suspended operations. Petitioner claims, however, that it met Medicare participation requirements because the procedures it followed were similar to the procedures used in evaluating the appropriateness of a patient's admission to a State psychiatric facility and because it was capable of conducting an assessment for admission to a State facility through a qualified clinician.

I find that Petitioner has failed to demonstrate that it actually provided screening services for admission to State facilities, either directly or "under arrangements." Petitioner premises its argument that it meets the screening requirement largely upon allegations that it is fully capable of providing screening services through a qualified clinician. In addressing the question of whether it has ever provided screening for patients being considered for admission to State mental health facilities, Petitioner acknowledges that in its year of operation, it had less than ten cases where inpatient mental health care was necessary and that in each instance, although the patients were given the option of local private or state facilities, all patients elected to be treated in private facilities. In fact the only clinical documentation submitted by Petitioner on this issue consists of a "Certification for Involuntary Hospitalization for Mental Illness" executed by a registered nurse in Petitioner's employ and a "Certificate of Licensed Physician Examination for Emergency Admission" executed by Dr. Jon Kazaglis, a licensed physician specializing in psychiatry. CMS Ex. 12, at 1-4. This documentation clearly reflects however that the assessment pertained to the patient's admission to Springbrook Behavioral Health System, a private mental health facility.

Under South Carolina law, a licensed physician examining a patient for involuntary emergency admission to a State psychiatric facility must execute a written statement that he has consulted with the local mental health center regarding the admission process and the available treatment options. S.C. Code Ann. § 44-17-460. In accordance with this State statutory provision, the physician's certificate contains a section wherein the physician certifies that he has consulted with an identified mental health center or explains his clinical reasons for failing to do so. CMS Ex. 12, at 3. The physician's certificate submitted by Petitioner states that Dr. Kazaglis determined that this section was "not applicable" and Petitioner concedes that Springbrook Behavioral System is not a State psychiatric facility.

Petitioner's assertion that it is capable of conducting clinical assessments to determine the appropriateness of admission to State mental health facilities and its assertion that it has in fact performed assessments for individuals admitted to private mental health facilities is insufficient to support a finding that Petitioner complies with the screening requirement. 42 U.S.C. § 1395x(ff)(3)(B)(i) requires Petitioner to demonstrate that it is providing all of the services described in section 1913(c)(1) of the PHSA, including "screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission." 42 U.S.C. § 300x-2(c)(1)(E).

CMS has also consistently interpreted the relevant statutory and regulatory provisions to require that a prospective CMHC demonstrate that it is providing screening for patients being considered for admission to State as opposed to private mental health facilities. In All State Letter 76-95, CMS responded to a request from the Chicago Regional Office for confirmation of its view that the statutory screening requirement "mean[s] that the CMHC, by its screening, effectuates admission or nonadmission to State mental health facilities. Screening that does not result in admission or nonadmission is not meaningful screening and renders the requirement meaningless, CMS Ex. 1, at 3.

CMS responded by reiterating the description of screening services contained in section 1913(c)(1) of the PHSA and agreeing that "this screening should result in admission or nonadmission to the State mental health facility." Id. In a more recent issuance, All States Letter 80-98, CMS specifically stated that "[w]e want to emphasize that the screening [described in section 1923(c)(1) of the PHSA] must be for patients being considered for admission to State mental health facilities and not just any other mental health facility located in the State." CMS Ex.2, at 2. This interpretation also indicates that Petitioner's instances of screening do not satisfy the requirements of the statute.

Finally, DAB decisions have held that the use of procedures similar to the procedures for determining the appropriateness of a patient's admission to a State mental health facility are insufficient to satisfy the screening requirement if the procedures used will not result in admission or nonadmission to a State facility. For example, The Recovery Place, DAB CR649 (2000), involved a Florida applicant which was not authorized under State law to perform certain procedures necessary to effectuate a patient's admission to a State mental health facility, but the applicant argued that it met the screening requirement because it had actually performed psycho-social evaluations and that such evaluations were the same procedures used in determining the appropriateness of patients who are being considered for admission to State mental health facilities. The ALJ found that this argument was insufficient as a matter of law stating that "the fact that Petitioner may have performed screening which involved the same tools or methodology used by State-certified CMHCs does not establish that [petitioner] met federal criteria by providing screening services directly." Id., at 10.

D. Petitioner's suspension of services as of May 26, 1999, prevents finding that it met statutory and regulatory criteria to be certified as a CMHC because after that date it was no longer providing mental health services.

CMS also predicated its decision to deny Petitioner's Medicare participation request upon a finding that Petitioner had ceased providing services. CMS Ex. 8, at 1. The reconsidered determination advised Petitioner that a CMS staff member had visited Petitioner's facility on August 31, 1999, but found no sign of active operation. The notice further advised that a facility which is not actually operating is not qualified to participate in the Medicare program as a CMHC. Petitioner concedes that it was only operational for a year beginning in June 1998 and that unpaid Medicare and Medicaid claims caused it to "suspend" operations pending this appeal. In my review, I find that this situation is an additional basis for denial of Petitioner's Medicare participation request. Pursuant to 42 U.S.C. § 1395cc(a)(1), a "provider of services" is eligible to receive Medicare reimbursement for covered services provided to program beneficiaries once it files a provider agreement with CMS. 42 U.S.C. § 1395cc(e)(2) identifies a CMHC as a "provider of services" but only for purposes of providing partial hospitalization services. To qualify for Medicare participation as a CMHC, an entity must meet the statutory definition at 42 U.S.C. § 1395x(ff)(3)(B). 42 U.S.C. § 1395cc(b)(2)(B).

42 U.S.C. § 1395x(ff)(3)(B) defines a CMHC as an entity which is providing all of the services described in section 1913(c)(1) of the PHSA. An entity which has ceased operations is clearly not providing all of the statutorily-required services and therefore fails to meet the definition of a CMHC. See Kings View Hospital, DAB CR442 (1996) (a psychiatric hospital which loses its license under state law fails to satisfy the statutory definition and thereby terminates its participation in Medicare at that time). In this case, Petitioner alleges that it was forced to close its doors because of the Medicare denial but, the reasons underlying its cessation of operations are not relevant in my consideration. See, e.g., Hospicion en el Hogar Mayaguez, Inc., DAB CR370 (1995) (provider claimed it would not have ceased operations but for CMS's impending voluntary termination action but the ALJ found that the provider had voluntarily terminated Medicare participation and that a provider's motives for ceasing doing business are not relevant). ⁽⁶⁾

VI. CONCLUSION

For the foregoing reasons, I enter summary judgment affirming the determination of the CMS not to certify Petitioner, Comprehensive Behavioral Healthcare, to participate in the Medicare program as a community mental health center providing partial hospitalization services.

Keith W. Sickendick

Administrative Law Judge

1. Effective July 5, 2001, the Health Care Financing Administration (HCFA) was renamed the Centers for Medicare & Medicaid Services (CMS). 66 Fed. Reg. 35,437 (2001). For the sake of clarity and consistency, even though CMS's exhibits were submitted prior to its name change and therefore identified as "HCFA" exhibits, I will refer to said documents as "CMS" exhibits and not "HCFA" exhibits throughout this decision.

2. Petitioner advised Judge Montano during the prehearing conference that it was proceeding pro se due to the recent withdrawal of its counsel.

3. Section 1861(ff)(3)(B)(i)(II) was added by the Medicare, Medicaid, and State Children's Health Insurance Program Benefits Improvement and Protection Act of 2000 (BIPA), Pub. L. No. 106-554 (2001) .

4. The All States Letter refers to section 1916(c) of the PHSA which was recodified as section 1913(c) of the PHSA after the All States Letter was issued.

5. The record Petitioner submitted consisted of a clinical record documenting an evaluation by a clinical psychologist and immediate referral to an outside practitioner on account of a conflict of interest with the child's parent who was a business associate. CMS Ex. 7.

6. Petitioner has indicated that it suspended operation due to $500,000 in unpaid Medicare or Medicaid claims. P. Resp., at 3. Petitioner does not make clear its intent with this proffered information. I note however, that it is not legally possible for the Petitioner to have unreimbursed Medicare or Medicaid claims until it is authorized to participate in the program. Petitioner may intend to imply that it incurred expenses or provided services on credit anticipating reimbursement by Medicare or Medicaid and that the Federal government is now estopped from denying Petitioner's application. My jurisdiction in cases involving CMS is limited to hearing and deciding those issues which the Secretary has delegated authority for me to hear and decide, as set forth at 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 award damages or fashion extraordinary relief. Nor do I have the authority to hear and decide claims of estoppel against the Secretary. However, I refer the parties to the decisions of the United States Supreme Court in Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) and Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51 (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.