Opinion
No. CV 04-97-GF-SEH.
September 18, 2006
ORDER
United States Magistrate Judge Carolyn S. Ostby entered Findings and Recommendation and Order in this matter on June 30, 2006. Plaintiff filed objections on July 14, 2006. Defendants filed objections on July 17, 2006. The Court reviews de novo the findings and recommendation to which objections are made. 28 U.S.C. § 636(b)(1).
Docket No. 39
Docket No. 40
Docket No. 41
Judge Ostby found:
[T]he ALJ's finding that CMS was authorized to impose the DPNA remedy because NMCC was not in substantial compliance with at least three of its participation requirements was not "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law" 5 U.S.C. § 706(2)(A).
(Findings and Recommendations and Order at 12 (June 30, 2006) (Findings).)
[T]he ALJ's decision granting CMS' motion to strike discussion of the F-221 deficiency was not arbitrary and capricious, nor was it an abuse of discretion, or otherwise not in accordance with the law.
(Findings at 16.)
[B]ecause Defendants had a factual and regulatory basis for their imposition of the DPNA remedy, this Court cannot conclude the Defendants' decision regarding the choice of penalty was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.
(Findings at 17.)
[T]he Plaintiffs had offered no argument to show that they were entitled to the continued participation in Medicare/Medicaid programs and therefore had no property interest. Without a recognized property interest in the continued participation in Medicare/Medicaid programs, NMCC cannot claim that the ALJ's decision not to rule on all of its deficiencies was a violation of due process.
(Findings at 19.)
[T]his Court finds the NMCC's argument on this claim [concerning the survey materials] to be without merit.
(Findings at 21.)
Defendants' regulation allowing for the use of trainees as actual surveyors is contrary to the statute [ 42 U.S.C. § 1395i-3(g)(2)(E)(iii)].
(Findings at 26.)
(7) NMCC does not have a due process right to have all remaining nine unresolved deficiency citations adjudicated. Given these rulings, this Court must conclude that awarding NMCC the relief it requests would have no effect.
(Findings at 26.)
Judge Ostby recommended: (1) Defendants' Motion for Summary Judgment be granted; and (2) Plaintiff's Motion for Summary Judgment be denied.
Docket No. 25
Docket No. 20.
After de novo review of the record and after considering the Plaintiff's and Defendants' objections, I adopt in full the Findings and Recommendations of Judge Ostby. The findings are detailed and specific. Analysis of the issues was careful and meticulous. The positions of the parties were fully addressed. I find no error in the Findings and Recommendations.
ORDERED:
1. Defendants' Motion for Summary Judgment is GRANTED.
2. Plaintiff's Motion for Summary Judgment is DENIED.