* Pursua nt to 5 T H C IR . R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit FILED January 30, 2004 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 03-50201 BIG BEND HOSPITAL CORP., doing business as Big Bend Regional Hospital Medical Center, Plaintiff-Appellant, versus TOMMY G. THOMPSON, SECRETARY, DEPARTMENT OF HEALTH & HUMAN SERVICES, Defendant-Appellee. Appeal from the United States District Court for the Western District of Texas USDC No. P-02-CV-30 Before JOLLY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM: * Big Bend Hospi tal Corporation (“Big Bend”) appeals the district c ourt’s grant of summary judgment in favor of the Secretary of the Department of Health and Human Servic es (the “Secretary” of “HHS”). Big Bend contends that the HHS Departmental Appeals Board (“DAB”) incorrectly determined February 3, 2000, to be the effective date of participation in the Medicare program, and that the Administrat ive Law Judge (“ALJ”) improperly denied Big Bend an in-person administrative hearing to contest the accuracy of this date. We hold that the effective date determination was supported by substantial evidence and that the DAB applied the appropriate legal standard under the relevant statutes and regulations. We further hold that an evidentiary hearing would have been futile. We therefore AFFIRM the summary judgment.

I In 1999, Big Bend applied to participate in the Medicare program, which is administered by the Centers for Medicare and Medicaid Services (§ 488.10 (2004). 1 CMS has such an agreement with the Texas Department of Health (“TDH”).

TDH completed an initial certification survey on October 7, 1999 (“October 7 Survey”), and, after concluding that Big Bend failed to meet multiple conditions, recommended that CMS deny Big Bend’s application. Three weeks later, TDH conducted a second certification survey (“October 27 Survey”), found Big Bend in compliance, and recommended approval of Big Bend’s application.

CMS, apparently skeptical that the deficiencies noted in the October 7 Survey could have been rectified so quickly, made an unannounced visit to Big Bend to conduct another survey (“December 7 Survey”). The federal surveyors found serious deficiencies, similar to the deficiencies noted in the October 7 Survey, but before the survey was completed Big Bend officials asked CMS to end the survey. Chief Executive Officer David Conejo then submitted a “formal request to withdraw” from the survey process (“December 7 Letter”). CMS confirmed Big Bend’s withdrawal in writing (“December 20 Letter”), and informed Big Bend that it could reapply for certificati on at any time. Neither Conejo nor any other Big Bend official objected to CMS’ characterization of the December 7 Letter as a withdrawal from the certification process.

In early January 2000, Conejo notified CMS that Big Bend would be prepared for a survey by January 12, and requested a new survey at that time. On February 3, Big Bend was re-surveyed by a team of officials from TDH and CMS (“February 3 Surv ey”), who concluded that Big Bend complied with Medicare requirements and recommended certification. CMS accepted the recommendation and certified Big Bend for Medicare participation effective February 3, 2000.

Big Bend, wishing to claim Medicare reimbursements for services rend ered before February 3, disagreed with the certification date. It contended that the proper date was October 27, 1 999, when TDH surveyors originally had recommended certification. CMS denied Big BendÂ’s request for reconsideration.

After denying an in-person hearing, the ALJ ruled that, by both withdrawing from the December 7 Survey (which, if successful, would have had the effect of validating the October 27 Survey) and asking for a new “certification” survey, Big Bend had abandoned its claim to an effective date of October 27. The DAB affirmed the ALJ’s decision, concluding that, whatever Big Bend’s intent may have been, the December 7 Letter legally constituted a withdrawal from the certification process.

Invoking the judicial review provision of the Medicare Act, 42 U.S.C. § 1395cc(h)(1) (2004), Big Bend appealed the DABÂ’s decision to the district court, which granted summary ju dgment to the Secretary. Big Bend filed a timely notice of appeal.

II We revi ew grants of summary judgment d e novo , applying the same standards as the district court. H all v. Gillman, Inc. , 81 F.3d 35, 36-37 (5th Cir. 1996). Notwithstanding the various subsidiary arguments made by Big Bend, our review is limited to a determination as to whether DAB§ 405(g) (2004); Estate of Morris v. Shalala , 207 F.3d 744, 745 (5th Cir. 2000).

The ALJ§ 1395 et seq. (2004), and its accompanying regulations, 42 C.F.R. § 488 et seq. (20 04). 3 As such, we uphold the DABÂ’s determination of the effective date of Big BendÂ’s participation in the Medicare program.

Further, the evidence that Big Bend would submit at an evidentiary hearing (the essence of which is that Big Bend was in compliance as of October 27 and that, in any event, Conejo did not intend to withdraw Big Bend from the certification process on December 7) is irrelevant if the December 7 Letter constitutes a withdrawal from the October 1999 certification process. We have upheld the DABÂ’s conclusion as to the legal effect of the December 7 Letter, and thus it follows that an evidentiary hearing clearly would have been an empty formalism and a waste of administrative resources. We hold, therefore, that the DAB correctly interpreted its regulations as not requiring such a hearing. C f . Weinberger v. Hynson, Westcott & Dunning, Inc. , 412 U.S. 609, 6 17 (1973) (reaching the same conclusion wi th respect to FDA regulations); Panhandle Producers & Royal ty Owners AssÂ’n v. Econ.

Regulatory Admin. , 847 F.2d 1168, 1178 (5th Cir. 1988) (Department of Energy regulations). 4 III Accordingly, the judgment of the district court is AFFIRMED.

1 The current versions of the relevant statutes and regulations are the same as those in effect at the time of the operative facts of this case

2 We have defined “substantial evid ence” as “such relevant evidence as a reasonable mind might accept to support a conclusion. It is more than a mere scintilla and less than a preponderance.” Harris v. Apfel , 209 F.3d 413, 417 (5th Cir. 2000) (citations and internal quotation marks omitted). 3 Federal courts generally defer to the Secretary’s interpretation of Medicare legislation and its implementing regulations, unless the interpretation is “plainly er roneous or inconsistent” with that statutory authority . H arris Cty. Hosp. Dist. v. Shalala , 64 F.3d 220, 221 (5th Cir. 1995)

4 Our sister circuits have also held that an agencyÂ’s appellate process may either deny a hearing request or grant summary judgment to the agency when the appellant cannot demonstra te, by relevant evidence, the existence of a genuine issue of material fact to be resolved during the hearing. S ee , e.g. , J.D. v. Pawlet Sch. Dist. , 224 F.3d 60, 68-69 (2d Cir. 2000); P.R. Aqueduct & Sewer Auth. v. EPA , 35 F.3d 600, 606 (1st Cir. 1994); Travers v. Shalala , 20 F.3d 993, 998 (9th Cir. 1994); V eg-Mix, Inc. v. U.S. Dept. of A gric. , 832 F.2d 601, 607 (D.C. Cir. 1987)