Birchwood Manor Nurs v. HHS ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-60695
Summary Calendar
_____________________
BIRCHWOOD MANOR NURSING CENTER,
Petitioner,
versus
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.
_________________________________________________________________
Petition for Review of the
Departmental Appeals Board
(C-97-023, App. Div. A-98-66, DAB Decision No. 1669)
_________________________________________________________________
June 29, 1999
Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Birchwood contests an administrative law judge’s refusal,
following Birchwood’s deficient hearing request, to conduct a
hearing on a Civil Monetary Penalty (CMP) imposed by the Department
of Health and Human Services (HHS) on Birchwood. We DENY its
petition.
No hearing was held because Birchwood’s hearing request failed
to specify, as per 42 C.F.R. 498.40(b), the contested issues a
hearing would resolve. The Departmental Appeals Board (DAB)
affirmed.
We must first address our jurisdiction. Pursuant to 42 U.S.C.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
§ 1320a-7a(e), our court has jurisdiction over petitions by
“person[s] adversely affected by a determination of the Secretary
[of HHS] under this section”. HHS contends that any
“determination” must follow an actual hearing, which was denied
here. It cites 42 U.S.C. § 1320a-7a(c)(2):
[T]he Secretary shall not make a determination
adverse to any person under subsection (a) or
(b) of this section until the person has been
given written notice and an opportunity for
the determination to be made on the record
after a hearing at which the person is
entitled to be represented by counsel, to
present witnesses, and to cross-examine
witnesses against the person.
HHS takes this language to restrict “determinations” (the only
judicially-reviewable HHS actions as per § 1320a-7a(e)) to include
only decisions that follow a hearing. We draw exactly the opposite
inference. In requiring that no “determination” be made without
giving affected persons the opportunity for a hearing, § 1320a-
7a(c)(2) plainly contemplates “determinations” without hearings.
In short, the decision not to afford Birchwood a hearing is a
“determination” subject to review.
HHS also relies on Brandyburg v. Sullivan, 959 F.2d 555 (5th
Cir. 1992), which construed 42 U.S.C. § 405(g) (granting district
courts jurisdiction to review “final decisions of the Secretary
made after a hearing”) to exclude review of dismissals for a
party’s failure to attend a hearing. While 42 U.S.C. § 1320a-
7(f)(3) of the Medicare Act incorporates 42 U.S.C. § 405(h) of the
Social Security Act, it does not incorporate § 405(g). The §
405(g) and § 1320a-7a(e) judicial review provisions are distinct;
2
§ 405(g) provides for review in a different court and specifies a
hearing requirement § 1320a-7a(e) lacks.
On the merits, we affirm DAB factfinding when backed by
substantial evidence; statutory interpretation, when not
unreasonable. Burditt v. U.S. Dept. of Health and Human Services,
934 F.2d 1362, 1367-68 (5th Cir. 1991). Birchwood claims that the
ALJ lacked authority to consider the request’s content beyond its
mere timeliness; challenges the rationality and Administrative
Procedures Act provenance of 42 C.F.R. § 498.40(b); and questions
HHS’s August 1996 notice. We find no reversible error, for
essentially the reasons stated by the DAB. See Birchwood Manor
Nursing Center v. Health Care Financing Administration, Civ. Rem.
No. C-97-023, App. Div. No. A-98-66, Decision No. 1669 (Sept. 4,
1998).
PETITION DENIED
3