22
Opinion of the Court
and because the agency makes deficiency findings public on the Internet, § 488.325.
The short, conclusive answer to these contentions is that the Secretary denies any such practice. She states in her brief that a nursing home with deficiencies can test the lawfulness of her regulations simply by refusing to submit a plan and incurring a minor penalty. Minor penalties, she says, are the norm, for "terminations from the program are rare and generally reserved for the most egregious recidivist institutions." Reply Brief for Petitioners 18; ibid. (HHS reports that only 25 out of more than 13,000 nursing homes were terminated in 1995-1996). She adds that the "remedy imposed on a facility that fails to submit a plan of correction or to correct a deficiency—and appeals the deficiency—is no different than the remedy the Secretary ordinarily would impose in the first instance." Ibid. Nor do the regulations "cause providers to suffer more severe penalties in later enforcement actions based on findings that are unreviewable." Ibid. The Secretary concedes that a home's deficiencies are posted on the Internet, but she notes that a home can post a reply. See id., at 20, n. 20.
The Council gives us no convincing reason to doubt the Secretary's description of the agency's general practice. We therefore need not decide whether a general agency practice that forced nursing homes to abandon legitimate challenges to agency regulations could amount to the "practical equivalent of a total denial of judicial review," Haitian Refugee Center, 498 U. S., at 497. Contrary to what Justice Thomas says, post, at 42-43, 51-52, we do not hold that an individual party could circumvent § 1395ii's channeling requirement simply because that party shows that postponement would mean added inconvenience or cost in an isolated, particular case. Rather, the question is whether, as applied generally to those covered by a particular statutory provision, hardship likely found in many cases turns what ap-
Page: Index Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 NextLast modified: October 4, 2007