A Right to No Meaningful Review Under the Due Process Clause: The Aftermath of Judicial Deference to the Federal Administrative Agencies

The Due Process Clause of the Fifth Amendment has been perverted in the federal administrative system. For example, federal agencies, such as the U.S. Department of Health and Human Services (HHS), regularly deprive individuals of liberty and property with little to no review. In its regulation of the health care industry through the Medicare program, HHS often turns a blind eye to procedural Due Process protections, such as providing individuals an opportunity to challenge the deprivation of property at a hearing, even though the Constitution, the Administrative Procedure Act, and the Medicare Act grant these protections. The Medicare compliance hearing process of nursing homes presents an excellent opportunity to study the procedural Due Process rights granted individuals challenging the actions of Federal Administrative Agencies. In Medicare compliance hearings, nursing homes are not afforded an opportunity to be heard in most instances; for the nursing homes are denied a hearing or when granted a hearing, the process is so limited as to be meaningless. These issues are particularly compelling now because the federal government and insurance industry are using the findings of nursing home compliance hearings as the basis for fraud and abuse actions and for determining if a nursing home will receive liability insurance. Consequently, the amount of process provided during compliance hearings is even more essential to protect Due Process. Furthermore, although the Supreme Court seemingly granted nursing homes procedural Due Process rights in Shalala v. Illinois Council on Long Term Care, Inc., the reality is that nursing homes have negligible procedural Due Process rights. Moreover, what the Supreme Court deemed as sufficient process in 2000 is no longer what HHS provides under the Medicare regulations, thus calling into question whether the process given nursing homes is Constitutional