# Opposition Brief — Patchogue Nursing Center v. Bowen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2526%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1987 - **Citation:** 479 U.S. 1030 ## Text Supreme Court, U.S, FILED NOV 28 1986 tO S Eilat, JR. CLERK Iu the Supreme Conut cf the United States OCTOBER TERM, 1986 PATCHOGUE NURSING CENTER, PETITIONER Vv. OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT MEMORANDUM FOR THE FEDERAL RESPONDENT IN OPPOSITION CHARLES FRIED Solicitor General Department of Justice Washington, D.C. 20530 (202) 633-2217 SF eae Ss : Ra Be? 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V (Due Process Clause)........ 1, 8, eal at Secaeapieekweteeaduniiglh i Rs iin latenk sacsaetindendatbanmmaneee i ono acc ssssomsncnictenionnesalie Fo gik 2M Lg Sa E ) ) Sane aeennnneenennN Cones re I ac seekccecssecceemcnscucvensuce I re I iin ss rasa ececnierttisesenecaccdiscorsiece RiP TR rn PAN ORCE RODE TRIN Rie PR S|: ee eee ERE w Ww Nor PND DY > Miscellaneous: H.R. Rep. 96-1167, 96th Cong., 2d Sess. (1980)... 4,5 Iu the Supreme Court of the United States OCTOBER TERM, 1986 No. 86-482 PATCHOGUE NURSING CENTER, PETITIONER Vv. OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT MEMORANDUM FOR THE FEDERAL RESPONDENT IN OPPOSITION Petitioner contends that the Due Process Clause requires that a Medicare/Medicaid provider be af- forded a full adversarial evidentiary hearing before being temporarily banned from participation in those programs for noncompliance with regulatory stand- ards. 1. a. Petitioner, a nursing home located in New York, has provided services under the Medicare and Medicaid programs since 1977. In January 1985, the New York State Department of Health (DOH) (1) 2 conducted a compliance survey at petitioner’s facili- ties (see 42 U.S.C. 1395aa). Based on the data ob- tained in that survey, DOH concluded that petition- er’s dietetic services were not in compliance with federal regulations (42 C.F.R. 405.1101-405.1137). DOH notified petitioner of the deficiencies, warning that failure to correct the deficiencies would jeop- ardize its status as a provider under Medicare and Medicaid (42 U.S.C. 1395ee(b) and (f)). Petitioner was requested to submit a plan to bring itself into compliance with regulatory standards (Pet. App. 32a). In a second survey in March 1985, DOH found that petitioner was still not in compliance. After petitioner was again informed of the deficien- cies, it submitted a plan of correction that DOH found unacceptable. Pet. App. 38a. In June 1985 DOH apprised the Secretary of Health and Human Services of petitioner’s noncom- pliance and recommended that petitioner be sanc- tioned. Pet. App. 33a. DOH did not recommend that petitioner receive the maximum statutory sanc- tion—termination as a Medicare and Medicaid pro- vider (42 U.S.C. 1895ee(b)). Rather, DOH recom- mended that the Secretary impose the lesser sanc- tion of temporarily banning petitioner from receiv- ing reimbursement for new Medicare and Medicaid admissions, a ban that would stay in effect until petitioner corrected the deficiencies. See 42 U.S.C. 1395cc(f).' The Secretary informed petitioner that 1 Where, as here, a skilled nursing facility’s noncompliance with regulatory requirements does not immediately jeopardize the health and safety of its patients, the Secretary may either terminate the facility’s certification or temporarily preclude reimbursement for new patients to the facility until com- pliance is achieved. 42 U.S.C. 1395cc(f) (1) (B). Where the 3 it could request an informal hearing, before the im- position of a temporary ban, at which petitioner would have the opportunity to present evidence chal- lenging the finding of noncompliance. Pet. App. 33a; see 42 U.S.C. 1895cee(f) (2). An informal hearing was held in July 1985. Peti- tioner asserted that it was adhering to the regula- tions, accused DOH of incompetence and prejudice, and requested that another survey of its facilities be conducted. Pet. App. 38a. Petitioner’s request was granted, and DOH conducted a third survey and found for the third time that petitioner fell short of the regulatory standards. Pet. App. 33a-34a. HHS once again notified petitioner that under the statute it was entitled to an informal hearing before being banned. Another hearing was held at which HHS concluded that petitioner had not complied with fed- eral regulations. As DOH had recommended, the Secretary banned petitioner from receiving reim- bursement for new Medicare and Medicaid admis- sions until it satisfies program requirements. Ibid. b. Petitioner brought this action in the United States District Court for the Eastern District of New York seeking to enjoin the Secretary from ban- ning petitioner from program participation without conducting a full evidentiary hearing. Petitioner argued that a full adversary hearing was required by the statute, or, alternatively, by the Due Process Clause. In denying petitioner’s motion for a pre- lesser sanction is imposed, termination will become mandatory if the facility fails to achieve compliance within eleven months. 42 U.S.C. 1395cc (f) (3). The statute provides for a full evi- dentiary hearing after termination. 42 U.S.C. 1395ff(c). 4 liminary injunction, the district court reasoned that petitioner had not shown a sufficient likelihood of success on the merits (Pet. App. 25a-28a). The court of appeals unanimously affirmed (id. at 29a-47a), holding that 42 U.S.C. 1895ece(f) (2) requires only an informal pre-sanction hearing and that such a hearing satisfies the Due Process Clause. 2. The court of appeals’ decision affirming the denial of a preliminary injunction is correct. Peti- tioner does not allege, nor is there, a conflict among the circuits or with any decision of this Court. Fur- ther review is unwarranted. The petition presents only the constitutional issue decided below: whether the Due Process Clause re- quires a full evidentiary pre-sanction hearing. As the court of appeals noted (Pet. App. 45a), petition- er’s position on this issue is inconsistent with this Court’s recent statement that, “[i]n general, ‘some- thing less’ than a full evidentiary hearing is suffi- cient prior to adverse administrative action.” Cleve- land Board of Education vy. Loudermill, 470 U.S. 582, 545 (1985), quoting Mathews v. Eldridge, 424. U.S. 319, 343 (1976). Petitioner’s contention also disre- gards the function of the particular sanction in the statutory scheme. Congress empowered the Secretary to implement a temporary ban on reimbursement to noncompliant providers as an alternate remedy short of complete termination. See H.R. Rep. 96-1167, 96th Cong., 2d Sess. 55-58 (1980). An administra- tive ban is an intermediate sanction that lasts only until the provider cures its deficiencies. 42 U.S.C. 1395cee(f) (3). If the provider fails to measure up to program standards within eleven months after the ban is imposed, the provider is then terminated 5 (ibid.). The statutory scheme thus evidences Con- gress’s intent that the power to ban be used to en- courage noncomplying providers to make corrections promptly and thereby avoid termination. See H.R. Rep. 96-1167, supra, at 56-57. This goal of encour- aging prompt compliance would be thwarted if the formal procedures petitioner urges were required be- fore the Secretary could seek to remedy noncompli- ance by banning a provider. In any event, as the court of appeals stated (Pet. App. 45a), petitioner has no basis for challenging the process that it in fact received. Petitioner had the benefit of two informal hearings at which it pre- sented oral and written arguments challenging the DOH surveys. Throughout the administrative stages there was considerable informal communication be- tween petitioner and DOH. And, of course, should petitioner fail to cure its deficiencies and eventually be terminated from the programs, it will then be en- titled under 42 U.S.C. 1895ff(c) to a full evidentiary hearing.” The court of appeals was correct in con- cluding (Pet. App. 44a-45a) that the procedures pro- vided under the statute and afforded petitioner in * Other courts of appeals have stated that, in light of the post-sanction evidentiary hearing mandated by 42 U.S.C. 1395ff (c), due process does not require a full evidentiary hear- ing before a provider is terminated. Northlake Community Hospital v. United States, 654 F.2d 1234, 1241-1244 (7th Cir. 1981) ; Town Court Nursing Center, Inc. v. Beal, 586 F.2d. 266, 273-278 (3d Cir. 1978) (en banc) ; Case v. Weinberger, 523 F.2d 602, 606-609 (2d Cir. 1975). Since the Constitution does not require a full hearing before the Secretary imposes the more severe sanction of termination, there is no basis for petitioner’s contention that a formal evidentiary hearing must precede the intermediate curative step of banning a noncom- plying provider until its deficiencies are remedied. 6 this case satisfy the due process standards set forth by this Court in Mathews v. Eldridge, 424 U.S. 319 (1976). It is therefore respectfully submitted that the peti- tion for a writ of certiorari should be denied. CHARLES FRIED Solicitor General NOVEMBER 1986 ae 5 ga oer ” , _— _ . Sigg, ROE Er SF ene we SES Co ee I 9 eee at Or", tog PUI Oe oC. a, En 42S ag ry % ; x * ue; rrr * +> * SZ oO. S. GOVERNMENT PRINTING OFFICE; 1986 181483 40113 a Ker ; Eas % - * Pie Rise ay ve --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2526%3A3. Public record. Not legal advice.