No one ever looks forward to entering a nursing home because it means leaving the things most dear to them: family, home, and independence. Nevertheless, without the current nursing home system, many elderly and disabled persons, who require comprehensive treatment, would not have access to necessary care. In 2000, nursing homes provided care to 1.6 million elderly and disabled persons, and *724 by 2050, nursing homes are projected to provide care to 6.6 million elderly and disabled persons. Thus, we can ill afford to cripple the nursing home industry. But, this is exactly what has occurred. 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. This article will show that the U.S. Department of Health and Human Services (HHS) has unduly restricted the rights of nursing homes by denying them access to Medicare *725 compliance hearings. I argue that the denial of a nursing home's 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. (Ill. Council). Specifically, this denial of procedural due process rights occurs when HHS determines that a nursing home is in violation of the Medicare regulations. If HHS fails to impose or rescinds the “remedies” imposed for a nursing home's alleged noncompliance, nursing homes do not have a right to a hearing. HHS claims no hearing is required because it is not depriving the nursing home of property, namely Medicare payments, and there is no harm.
Even without the imposition of a remedy, however, HHS, arguably, is still depriving the nursing home of Medicare payments and harming nursing homes in a variety of ways. HHS uses these unreviewable findings of noncompliance as the basis for increasing the severity of remedies imposed for future incidents of noncompliance. The findings are also used as the basis for Medicare fraud and abuse cases that lead to stiff fines, resulting in financial harm. Additionally, once a nursing home is granted a hearing, the hearing is often limited to in-person cross-examination even though there are issues of material fact in dispute. This practice of denying a full evidentiary hearing to nursing homes challenging the deprivation of property violates*726 the Constitution, the APA, and the Medicare Act, but nursing homes are barred from seeking federal review.
Yearby, Ruqaiijah A., "A Right to no Meaningful Review Under the Due Process Clause: The Aftermath of Judicial Deference to the Federal Administrative Agencies" (2006). All Faculty Scholarship. 75.