Elite Ambulatory and Surgery Center, ALJ Ruling 2023-10 (HHS CRD July 25, 2023)

DISMISSAL

Petitioner, Elite Ambulatory Surgery Center, was an ambulatory surgical center (ASC), located in St. Louis, Missouri.  Until recently, it participated in the Medicare program as a supplier of ambulatory surgical services.  Based on a survey completed on March 24, 2023, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner did not comply with Medicare Conditions for Coverage.

Petitioner appealed, and CMS moves to dismiss the appeal.  With its motion, CMS submitted four exhibits (CMS Exs. 1-4).  Petitioner did not respond to CMS’s motion.  See 42 C.F.R. § 498.17 (granting a party 20 days for rebuttal).

I grant CMS’s motion and dismiss pursuant to 42 C.F.R. § 498.70(b).  Since filing this appeal, Petitioner lost its license to operate, and, in a separate action, which Petitioner did not appeal, CMS terminated its Medicare participation.  The matter before me is therefore moot.

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Discussion

Petitioner has no right to a hearing because, in a separate action, which Petitioner did not appeal, CMS terminated its Medicare participation, rendering moot this challenge to a potential termination.¹

Medicare will pay for services furnished in connection with certain surgical procedures performed at a participating ambulatory surgical center.  Social Security Act (Act) § 1832(a)(2)(F).  An ambulatory surgical center is a distinct entity that 1) operates exclusively for the purpose of providing surgical services to patients not requiring hospitalization; 2) has an agreement to participate in the Medicare program; and 3) meets certain other conditions set forth in 42 C.F.R. Part 416, subparts B and C.  42 C.F.R. §§ 416.2, 416.25; see 42 C.F.R. § 498.2 (designating an ASC as a supplier).

A supplier dissatisfied with an initial determination to terminate its provider agreement is entitled to an ALJ hearing.  42 C.F.R. § 416.3(b)(6), (17); 42 C.F.R. § 498.5(e).

Here, in a preliminary determination letter, dated March 30, 2023, CMS advised Petitioner that, based on a survey completed March 24, 2023, the surgical center was not in compliance with all of the Medicare Conditions for Coverage for ACSs, specifically:  42 C.F.R. §§ 416.43 (surgical services), 416.46 (nursing services), and 416.51 (infection control).  The letter explained that the deficiencies substantially limited the surgical center’s capacity to render adequate care and constituted an immediate and serious threat to the health and safety of patients.  CMS Ex. 1 at 1.

The letter advised Petitioner that CMS intended to terminate its provider agreement, effective April 22, 2023.  If, however, the ASC corrected its deficiencies by the termination date, it could avoid termination.  CMS Ex. 1 at 2.

The letter also advised Petitioner of its right to request a hearing before an administrative law judge (ALJ) to challenge the finding of noncompliance; it explained that the procedures governing the appeals process could be found at 42 C.F.R. § 498.40 et seq.  CMS Ex. 1 at 3.  Petitioner timely appealed.

In the meantime, surveyors returned to the ASC on April 18, 2023, to determine whether the surgical center had corrected its deficiencies.  Based on those survey findings, CMS determined that the surgical center’s deficiencies no longer posed immediate jeopardy to

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patients, but that it still did not meet the Conditions for Coverage.²  In fact, CMS determined that the ASC did not meet eight Conditions for Coverage.  In addition to the three cited during the March survey, it did not meet 42 C.F.R. §§ 416.50 (compliance with state law), 416.41 (governing body and management), 416.44 (environment), 416.45 (medical staff), and 416.43 (quality assessment and performance improvement).  CMS Ex. 2 at 1.

In a letter dated April 28, 2023, CMS advised Petitioner of its determinations.  The letter warned that the CMS would terminate the ASC’s Medicare participation if it did not achieve compliance by June 28, 2023.  CMS Ex. 2.

Thereafter, however, the Missouri Department of Health and Senior Services revoked Petitioner’s license to operate as an ASC, effective at the close of business on April 24, 2023.  CMS Ex. 3.  Because the ASC’s license had been revoked, CMS revoked its Medicare enrollment and provider agreement, effective April 24, 2023.  See 42 C.F.R. §§ 416.35(b); 424.535(a)(1) and 424.535(g).  In a letter dated April 28, 2023, CMS advised Petitioner of its determination.  CMS Ex. 4.

The April 28 notice letter also advised Petitioner of its appeal rights.  CMS Ex. 4 at 2-3.  Petitioner did not appeal.  CMS’s determination is therefore administratively final and binding.  42 C.F.R. § 498.20(b).  That the ASC has been terminated renders moot Petitioner’s challenge to the noncompliance findings that CMS made based on the March 24 survey.  Even if I were to rule in Petitioner’s favor as to the March 24 survey findings, I could grant it no relief.  Its Medicare participation would remain terminated because it did not appeal CMS’s April 2023 determination that led to its termination.  See Northlake Nursing and Rehabilitation Center, DAB CR2271 at 5, 6, 8 (2010), aff’d. Northlake Nursing and Rehabilitation Center, DAB No. 2376 (2011).

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Conclusion

CMS has terminated Petitioner’s participation in the Medicare program.  Petitioner did not appeal, so its termination is final and binding.  This renders moot Petitioner’s appeal of the March 24 survey findings.  Petitioner has no right to an ALJ hearing, and this matter must be dismissed.  42 C.F.R. § 498.70(b).  I therefore grant CMS’s motion.

Endnotes

¹ I make this one finding of fact/conclusion of law.

² Because CMS removed the immediate jeopardy determination and gave Petitioner additional time to achieve compliance before it terminated, CMS argues (in the alternative) that CMS rescinded the enforcement remedy, and that Petitioner is not entitled to a hearing since no remedy was imposed.  CMS Br. at 6.  This is simply incorrect; termination is obviously an enforcement remedy, whatever the timeline for imposing it.