1 / 13

No Meaningful Review Under the Due Process Clause: The Aftermath of Shalala v. Illinois Council on Long Term Care, Inc.

Introduction. Procedural Due Process, is a necessity to check and balance the power of the administrative agency, the headless fourth branch" of the government. Without a right to a hearing there is no political accountability or constitutional legitimacy.Kenneth C. Davis and Richard Pierce, Adm

traci
Download Presentation

No Meaningful Review Under the Due Process Clause: The Aftermath of Shalala v. Illinois Council on Long Term Care, Inc.

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


    1. No Meaningful Review Under the Due Process Clause: The Aftermath of Shalala v. Illinois Council on Long Term Care, Inc. Ruqaiijah Yearby, J.D., M.P.H. Assistant Professor, Institute for Health Law Loyola University Chicago School of Law 25 East Pearson Chicago, IL 60611 312.915.6446 ryearby@luc.edu

    2. Introduction Procedural Due Process, is a necessity to check and balance the power of the administrative agency, the “headless fourth branch” of the government. Without a right to a hearing there is no political accountability or constitutional legitimacy. Kenneth C. Davis and Richard Pierce, Administrative Law Treatise (3rd ed 1994) Procedural Due Process in Medicare Compliance hearings for nursing homes is essential to maintain the industry that in 2000 provided care to 1.6 million elderly and disabled persons and by 2050, 6.6 million people are projected to receive care in nursing homes. The U.S. Department of Health and Human Services’ (“HHS”) has unduly restricted nursing homes’ rights by denying them access to Medicare Compliance hearings when they deprive the nursing home of property. When the nursing home is granted a right to a hearing, it is limited to a meaningless process. I argue that the denial of nursing homes’ procedural Due Process rights by HHS is a Constitutional and statutory violation that the Supreme Court erroneously affirmed by its decision in Shalala v. Illinois Council on Long Term Care, Inc. [hereinafter Ill. Council]. Procedural Due Process in Medicare Compliance hearings for nursing homes is essential to maintain the industry that in 2000 provided care to 1.6 million elderly and disabled persons and by 2050, 6.6 million people are projected to receive care in nursing homes. The U.S. Department of Health and Human Services’ (“HHS”) has unduly restricted nursing homes’ rights by denying them access to Medicare Compliance hearings when they deprive the nursing home of property. When the nursing home is granted a right to a hearing, it is limited to a meaningless process. I argue that the denial of nursing homes’ procedural Due Process rights by HHS is a Constitutional and statutory violation that the Supreme Court erroneously affirmed by its decision in Shalala v. Illinois Council on Long Term Care, Inc. [hereinafter Ill. Council].

    3. Road Map Medicare Compliance Hearings The Problem Legal Framework Ill. Council Reality of Current Hearing Process Solutions This presentation will show that the U.S. Department of Health and Human Services’ (“HHS”) has unduly restricted nursing homes’ procedural Due Process rights by denying them access to Medicare compliance hearings. I argue that the Constitution, the Administrative Procedure Act (“APA”), and the Medicare Act and regulations mandate that nursing homes be afforded procedural Due Process rights before the loss of the property, namely Medicare payments. Thus, the denial of nursing homes’ rights by HHS is a Constitutional and statutory violation that the Supreme Court erroneously affirmed by its decision in Shalala v. Illinois Council on Long Term Care, Inc. [hereinafter Ill. Council]. This presentation will show that the U.S. Department of Health and Human Services’ (“HHS”) has unduly restricted nursing homes’ procedural Due Process rights by denying them access to Medicare compliance hearings. I argue that the Constitution, the Administrative Procedure Act (“APA”), and the Medicare Act and regulations mandate that nursing homes be afforded procedural Due Process rights before the loss of the property, namely Medicare payments. Thus, the denial of nursing homes’ rights by HHS is a Constitutional and statutory violation that the Supreme Court erroneously affirmed by its decision in Shalala v. Illinois Council on Long Term Care, Inc. [hereinafter Ill. Council].

    4. Medicare Compliance Hearing Process Survey and Certification Appeal of Noncompliance Appeal of Administrative Law Judge decision Federal Review

    5. Problem: No property and No procedural Due Process No right to a hearing when no remedy imposed Limited hearing process including written direct testimony and in-person cross examination

    6. Legal Framework Constitution Administrative Procedure Act Medicare Act and regulations Constitution=> rt to a meaningful review when government deprives individual of property Goldberg=> rt to a meaningful review when deprived of property Matthews => three part test determines type of hearing granted to prevent erroneous deprivation of property Administrative Procedure Act => 554 => rt to a full-evidentiary hearing 556 =>rt to in-person witness testimony These rights to a hearing remain subordinate to each agency’s governing statute, which often limit the structure of the hearing process and the right to federal review Medicare Act and regulations 42 USC 405(b), (g) right to a hearing when dissatisfied with findings 498.60-66 rt to a full-evidentiary hearingConstitution=> rt to a meaningful review when government deprives individual of property Goldberg=> rt to a meaningful review when deprived of property Matthews => three part test determines type of hearing granted to prevent erroneous deprivation of property Administrative Procedure Act => 554 => rt to a full-evidentiary hearing 556 =>rt to in-person witness testimony These rights to a hearing remain subordinate to each agency’s governing statute, which often limit the structure of the hearing process and the right to federal review Medicare Act and regulations 42 USC 405(b), (g) right to a hearing when dissatisfied with findings 498.60-66 rt to a full-evidentiary hearing

    7. Illinois Council Supreme Court reviewed the case to determine whether the Medicare compliance hearing process provided meaningful review. If so, then nursing homes were foreclosed from immediate federal review even for Constitutional issues. An association of nursing Homes challenged the constitutionality of the Medicare regulations based in part on the lack of procedural Due Process protections Case filed in federal court, bypassed HHS Under Medicare Act, all claims arising under Medicare Act must be presented to agency first and the receive a final action If these steps were not meet then the federal court had no jurisdiction over the case Thus before reviewing the nursing homes claims, the Court had to determine if it had jurisdiction An association of nursing Homes challenged the constitutionality of the Medicare regulations based in part on the lack of procedural Due Process protections Case filed in federal court, bypassed HHS Under Medicare Act, all claims arising under Medicare Act must be presented to agency first and the receive a final action If these steps were not meet then the federal court had no jurisdiction over the case Thus before reviewing the nursing homes claims, the Court had to determine if it had jurisdiction

    8. Illinois Council (cont.) Nursing Homes arguments: No right to challenge noncompliance findings at a hearing No opportunity to challenge constitutionality of regulations without exhausting administrative process

    9. Illinois Council (cont.) HHS responses: All nursing homes have a right to challenge noncompliance findings at a hearing Nursing homes have a right to full evidentiary hearings, so exhaustion requirement is warranted The Supreme Court upheld this provision in Ill. Council because the Secretary of HHS (“Secretary”) asserted that nursing homes were afforded the right to procedural Due Process protections, which included “the right of any dissatisfied nursing home to a full evidentiary hearing to challenge any findings of noncompliance.” Notwithstanding the assertions made in Ill. Council, HHS has not provided any of the procedural Due Process rights that the Court relied upon in its ruling in Ill. Council. When no remedy is imposed, the case is summarily dismissed without a final ruling. Hence, as a practical matter it is impossible for nursing homes to gain access to federal review to challenge this Constitutional issue because they never fulfill the finality requirement of the Social Security Act. Because nursing homes never obtain a final ruling when no remedy is imposed, the Supreme Court’s decision requiring a final decision before federal review has effectively denied nursing homes procedural Due Process to challenge any issue, including Constitutional issues.The Supreme Court upheld this provision in Ill. Council because the Secretary of HHS (“Secretary”) asserted that nursing homes were afforded the right to procedural Due Process protections, which included “the right of any dissatisfied nursing home to a full evidentiary hearing to challenge any findings of noncompliance.” Notwithstanding the assertions made in Ill. Council, HHS has not provided any of the procedural Due Process rights that the Court relied upon in its ruling in Ill. Council. When no remedy is imposed, the case is summarily dismissed without a final ruling. Hence, as a practical matter it is impossible for nursing homes to gain access to federal review to challenge this Constitutional issue because they never fulfill the finality requirement of the Social Security Act. Because nursing homes never obtain a final ruling when no remedy is imposed, the Supreme Court’s decision requiring a final decision before federal review has effectively denied nursing homes procedural Due Process to challenge any issue, including Constitutional issues.

    10. Reality of Current Hearing Process No right to a hearing unless remedy imposed No full evidentiary hearings

    11. Problems with the Reality No right to a hearing unless remedy imposed Noncompliance used in future surveys to determine severity of remedies Noncompliance posted on internet Survey findings used to determine Medicare fraud and abuse and insurance rates These findings serve as the basis for the imposition of remedies for future incidents of noncompliance. HHS regularly uses these findings of noncompliance that are not adjudicated for future actions as mandated by the federal regulations. The Medicare regulations HHS is mandated to consider the nursing home’s history of noncompliance in determining which remedies to impose. HHS also uses the findings to determine Medicare fraud and abuse claims, which result in the loss of Medicare payments and substantial fines. There is no opportunity to challenge the facts underlying these unreviewable claims at a hearing. In Goldberg, the Supreme Court ruled that the deprivation of property by an administrative agency required due process of law. According to the Court, Due Process of law meant that individuals be granted a right to a hearing when deprived of a Constitutionally protected right, namely a right to property. Nursing homes found out of compliance with the Medicare Act and regulations not provided with a hearing are deprived of property even though no remedy is imposed. Therefore, HHS’ practices are depriving nursing homes of the property of Medicare payments without any form of a hearing violates the Fifth Amendment, which requires a right to a hearing when individuals are deprived of property, namely Medicare payments. Not only does this violate the Due Process of Clause of the Fifth Amendment, but it also contravenes the rights granted under the Medicare Act because it causes the nursing home injury. HHS stated no right to a hearing because it does not cause the nursing home injury, however, it does cause nursing homes injury, reputation and financial harm. Although no remedy is imposed, the allegations of noncompliance remain posted on the internet. The findings are also reported to the nursing home ombudsman, the physicians and skilled nursing facility administration licensing board, and the State Medicaid fraud and abuse control units. As part of the public record, these findings harm the reputation of the facility. It also causes financial harm. The findings are used to impose hasher remedies if there are future violations of the Medicare compliance regulations. Insurance companies also use the information to determining yearly insurance premiums for nursing homes. Hence, nursing homes are harmed by the denial of a right to challenge noncompliance findings when no remedy is imposed. These findings serve as the basis for the imposition of remedies for future incidents of noncompliance. HHS regularly uses these findings of noncompliance that are not adjudicated for future actions as mandated by the federal regulations. The Medicare regulations HHS is mandated to consider the nursing home’s history of noncompliance in determining which remedies to impose. HHS also uses the findings to determine Medicare fraud and abuse claims, which result in the loss of Medicare payments and substantial fines. There is no opportunity to challenge the facts underlying these unreviewable claims at a hearing. In Goldberg, the Supreme Court ruled that the deprivation of property by an administrative agency required due process of law. According to the Court, Due Process of law meant that individuals be granted a right to a hearing when deprived of a Constitutionally protected right, namely a right to property. Nursing homes found out of compliance with the Medicare Act and regulations not provided with a hearing are deprived of property even though no remedy is imposed. Therefore, HHS’ practices are depriving nursing homes of the property of Medicare payments without any form of a hearing violates the Fifth Amendment, which requires a right to a hearing when individuals are deprived of property, namely Medicare payments. Not only does this violate the Due Process of Clause of the Fifth Amendment, but it also contravenes the rights granted under the Medicare Act because it causes the nursing home injury. HHS stated no right to a hearing because it does not cause the nursing home injury, however, it does cause nursing homes injury, reputation and financial harm. Although no remedy is imposed, the allegations of noncompliance remain posted on the internet. The findings are also reported to the nursing home ombudsman, the physicians and skilled nursing facility administration licensing board, and the State Medicaid fraud and abuse control units. As part of the public record, these findings harm the reputation of the facility. It also causes financial harm. The findings are used to impose hasher remedies if there are future violations of the Medicare compliance regulations. Insurance companies also use the information to determining yearly insurance premiums for nursing homes. Hence, nursing homes are harmed by the denial of a right to challenge noncompliance findings when no remedy is imposed.

    12. Problems with the Reality No right to a hearing unless remedy imposed Noncompliance used in future surveys to determine severity of remedies Noncompliance posted on internet Survey findings used to determine Medicare fraud and abuse and insurance rates HHS stated no right to a hearing because it does not cause the nursing home injury, however, it does cause nursing homes injury, reputation and financial harm. Although no remedy is imposed, the allegations of noncompliance remain posted on the internet. The findings are also reported to the nursing home ombudsman, the physicians and skilled nursing facility administration licensing board, and the State Medicaid fraud and abuse control units. As part of the public record, these findings harm the reputation of the facility. It also causes financial harm. The findings are used to impose hasher remedies if there are future violations of the Medicare compliance regulations. Insurance companies also use the information to determining yearly insurance premiums for nursing homes. Hence, nursing homes are harmed by the denial of a right to challenge noncompliance findings when no remedy is imposed. HHS stated no right to a hearing because it does not cause the nursing home injury, however, it does cause nursing homes injury, reputation and financial harm. Although no remedy is imposed, the allegations of noncompliance remain posted on the internet. The findings are also reported to the nursing home ombudsman, the physicians and skilled nursing facility administration licensing board, and the State Medicaid fraud and abuse control units. As part of the public record, these findings harm the reputation of the facility. It also causes financial harm. The findings are used to impose hasher remedies if there are future violations of the Medicare compliance regulations. Insurance companies also use the information to determining yearly insurance premiums for nursing homes. Hence, nursing homes are harmed by the denial of a right to challenge noncompliance findings when no remedy is imposed.

    13. Problems with the Reality (cont.) No full evidentiary hearings No opportunity to clarify genuine issues of material fact No opportunity for ALJ to determine the veracity or credibility of the witness No process to make evidentiary objections

    14. Solutions Hearing for all noncompliance findings regardless of remedy Full Evidentiary Hearings Constitutional challenges receive expedited review Hearing for all major charges of noncompliance regardless of remedy During hearing process warnings are posted on internet concerning quality of care Full Evidentiary Hearings with in person direct testimony Allow Constitutional challenges to be concluded in two weeks then file in federal court Hearing for all major charges of noncompliance regardless of remedy During hearing process warnings are posted on internet concerning quality of care Full Evidentiary Hearings with in person direct testimony Allow Constitutional challenges to be concluded in two weeks then file in federal court

More Related