Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Comprehensive Behavioral Healthcare, |
DATE: April 17, 2002 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-00-182
Decision No. CR890 |
DECISION | |
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. I. PROCEDURAL HISTORY AND 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. 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.
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
"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). 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). A "community mental health center" is defined by the Act to be an entity that:
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:
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:
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:
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.
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:
IV. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ANALYSIS
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.
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.
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.
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. |
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JUDGE | |
Keith W. Sickendick Administrative Law Judge
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FOOTNOTES | |
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. |
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