The opinion of the court was delivered by: WEXLER
This action raises questions concerning the procedures which the Secretary of Health and Human services must employ when the Secretary imposes a ban upon Medicare and Medicaid admissions to a skilled nursing facility pursuant to 42 U.S.C. § 1395cc(f)(1).
Plaintiff Nassau nursing Home has entered into a provider agreement with the defendant Secretary, under which plaintiff may provide skilled nursing services for Medicare beneficiaries and receive reimbursement from the Secretary, and provide services to recipients under New York State's Medicaid program.
On June 14, 1984 the New York State Department of Health ("DOH") conducted an onsite survey of plaintiff.
On July 6, 1984 DOH provided plaintiff with a Statement of Deficiencies. DOH found that plaintiff was not in compliance with a number of federal regulations, most concerning dietetic services.
On July 20, 1984 plaintiff submitted a Plan of Correction to DOH.
On July 31. 1984 DOH conducted a second survey of plaintiff.
On August 8, 1984 DOH informed plaintiff that plaintiff's Plan of Correction was unacceptable in part.
On August 14, 1984 DOH supplied plaintiff with a list of deficiencies which DOH found had been corrected as of July 31. DOH did not supply plaintiff with a list of uncorrected deficiencies.
On August 22, 1984 plaintiff submitted a second Plan of Correction. On September 18, 1984 DOH informed plaintiff that the second Plan of Correction was unacceptable in part. On September 25, 1984 plaintiff submitted a third Plan.
On September 25, 1984 DOH recommended that the Secretary ban Medicare and Medicaid admissions to plaintiff, on the ground that the DOH surveys on June 14 and July 31 indicated that plaintiff was not in compliance with applicable regulations.
On October 4, 1984 DOH informed plaintiff that the third Plan of Correction was unacceptable in part. On October 15, 1984 plaintiff submitted a fourth plan.
On October 16, 1984 the Secretary informed plaintiff that the Secretary intended to impose a ban on ...