SUBJECT:

Harvest Manor Nursing Home,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

I consider once more whether a long-term care facility has a right to a hearing when the Centers for Medicare & Medicaid Services (CMS) imposes none of the enforcement remedies provided for in 42 C.F.R. � 488.406. I conclude that the facility is not entitled to a hearing and grant CMS's motion to dismiss.

Petitioner, Harvest Manor Nursing Home, is a skilled nursing facility located in Denham Springs, Louisiana, that is certified to participate in the Medicare and Medicaid programs as a provider of services. On May 27, 2005 and July 13, 2005, the Louisiana Department of Health and Hospitals (State agency) completed inspections of Petitioner's facility and found noncompliance. In notices dated June 2, 2005 and July 21, 2005, the State agency notified Petitioner that it would recommend that CMS deny the facility payment for new admissions and, ultimately, terminate its program participation. CMS Exhibits (Exs.) 1, 2. The facility requested a hearing.

In subsequent correspondence dated November 10, 2005, however, CMS advised Petitioner that it would not impose these remedies. CMS Ex. 3. No additional remedies have been proposed. CMS now moves to dismiss this case, arguing that Petitioner has no right to a hearing because no remedies have been imposed. In support of its motion to dismiss, CMS attached the three exhibits, CMS Exs. 1-3. In a letter dated November 28, 2005, Petitioner responded to CMS's motion, stating that it had no objection to the motion, would not be filing any opposition, and understood that the appeal would be dismissed.

In the absence of objection, I admit CMS Exs. 1-3 into the record.

1. Petitioner has no right to a hearing if CMS has not imposed a remedy. ⁽¹⁾

The hearing rights of a long-term care facility are established by federal regulations at 42 C.F.R. Part 498. A provider dissatisfied with CMS's initial determination is entitled to further review, but administrative actions that are not initial determinations are not subject to appeal. 42 C.F.R. � 498.3(d). The regulations specify which actions are "initial determinations" and set forth examples of actions that are not. A finding of noncompliance that results in the imposition of a remedy specified in 42 C.F.R. � 488.406 is an initial determination for which a facility may request an administrative law judge (ALJ) hearing. 42 C.F.R. � 498.3(b)(13). Unless the finding of noncompliance results in the imposition of a specified remedy, however, the finding is not an initial determination. 42 C.F.R. � 498.3(d)(10)(ii). Where, as here, CMS rescinds its remedy determination, Petitioner no longer has a hearing right because the determination that is subject to a hearing no longer exists. Schowalter Villa, DAB No. 1688 (1999).

CMS has imposed no remedy; consequently, Petitioner has no right to an ALJ hearing. An ALJ may dismiss a hearing request where a party has no right to a hearing. 42 C.F.R. � 498.70(b). I therefore grant CMS's motion to dismiss and order this case dismissed.

Carolyn Cozad Hughes

Administrative Law Judge

1. There being no dispute of fact in this case, I make this one conclusion of law.