SUBJECT:

Alexandria Place,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I dismiss the hearing request of Petitioner, Alexandria Place, as Petitioner is not entitled to a hearing.

I. Background

Petitioner, Alexandria Place, is a skilled nursing facility located in Gastonia, North Carolina, certified to participate in the Medicare and Medicaid programs as a provider of services. On January 28, 2005, CMS completed a federal comparative survey of Petitioner's facility and found noncompliance. In a notice letter dated February 17, 2005, CMS advised Petitioner that, based on those survey findings, it would impose the following remedies: termination of Petitioner's provider agreement, denial of payment for new admissions (DPNA), and a civil monetary penalty (CMP) of $100 per day, effective January 28, 2005. CMS Exhibit (Ex.) 6. In a letter to Petitioner dated April 5, 2005, the North Carolina Department of Health and Human Services (the State agency) informed Petitioner that a revisit survey confirmed that Petitioner had achieved and maintained substantial compliance with Medicare participation requirements. CMS Ex. 1. In a letter to Petitioner dated April 20, 2005, CMS informed Petitioner that the termination and DPNA were canceled. CMS Ex. 2. The April 20 letter stated that CMS would inform Petitioner of the total amount of the CMP at a later date. Id. In a subsequent letter, dated May 16, 2005, CMS again stated that the termination and DPNA had been canceled. CMS Ex. 3. The May 16 letter made no mention of the CMP. Id. Petitioner requested a hearing by letter dated May 27, 2005. CMS Ex. 4.

CMS now moves to dismiss this case, arguing that Petitioner has no right to a hearing because the previously-imposed remedies have been rescinded. In support of its motion to dismiss, CMS attached six exhibits, CMS Exs. 1-6. Petitioner did not respond to the motion, and the time for response has since passed. In the absence of objection, I have admitted CMS Exs. 1-6 into the record.

II. Applicable Law and Regulations

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).

III. Issues

This case presents the narrow question as to whether a long-term care facility has a right to a hearing when the Centers for Medicare & Medicaid Services (CMS) withdraws the enforcement remedies provided for in 42 C.F.R. � 488.406. A second issue is whether the request for hearing was timely filed.

IV. Findings of Fact and Conclusion of Law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate numbered heading. I discuss each Finding in detail.

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

A facility does not have a right to a hearing to challenge every action by CMS with which it disagrees. Only certain actions create hearing rights. In general, a participating facility will have a right to a hearing if CMS makes an initial determination to impose a remedy against that facility. 42 C.F.R. � 498.3(b)(13). The possible remedies that CMS might impose against a facility are specified at 42 C.F.R. � 488.406(a). No right to a hearing exists pursuant to 42 C.F.R. � 498.3(b)(13), unless CMS determines to impose - and actually imposes - one of the specified remedies. The Lutheran Home - Caledonia, DAB CR674, aff'd, DAB No. 1753 (2000); Schowalter Villa, DAB CR568, aff'd, DAB No. 1688 (1999); Arcadia Acres, Inc., DAB CR424 (1996), aff'd, DAB No. 1607 (1997). Indeed, the Secretary of Health and Human Services specifically rejected a proposal to grant hearing rights for deficiency findings that were made without the imposition of remedies. 59 Fed. Reg. 56,116, 56,158 (1994).

It is the remedy, and not the citation of a deficiency, that generates the right to a hearing. Eaglecare, Inc., d/b/a Beech Grove Meadows, DAB CR923 (2002); Schowalter Villa, DAB No. 1688 (1999); Arcadia Acres, Inc., DAB No. 1607 (1997). See also The Lutheran Home-Caledonia, DAB No. 1753 (2000); Walker Methodist Health Center, DAB CR869 (2002); Charlesgate Nursing Center, DAB CR868 (2002); D.C. Association for Retarded Citizens, DAB CR776 (2001); Alpine Inn Care, Inc., DAB CR728 (2000); Woodland Care Center, DAB CR659 (2000); and Fort Tryon Nursing Home, DAB CR425 (1996).

In each of these cases, the failure of the petitioner to demonstrate that the appealed survey findings and deficiency determinations had resulted in a remedy actually being imposed was fatal to its appeal. In each of these cases, the appeal was dismissed. The appellate panels of the Departmental Appeals Board and the administrative law judges who decided these cases have uniformly adhered to the doctrine that a citation of deficiency which does not result in the imposition of a remedy, or which results in the imposition of a remedy later rescinded or reduced to zero, does not create the right to appeal. Where 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).

The correspondence from CMS to Petitioner makes clear that the termination and DPNA remedies were rescinded and, thus, can no longer provide a basis for Petitioner's right to a hearing. CMS Exs. 2, 3. The correspondence is far less clear as to the status of the CMP, however. The April 20 letter explicitly states that the CMP will be imposed at a later date. CMS Ex. 2. The May 16 letter does not demand payment of the CMP, but neither does it state explicitly that the CMP is rescinded. CMS Ex. 3. The May 16 letter is simply silent regarding the CMP. Were I in Petitioner's position, I would not have concluded from the May 16 letter that the CMP had been rescinded. Nevertheless, in CMS's Memorandum in Support of Motion to Dismiss (CMS Mem.), counsel for CMS represents that no CMP was, in fact, imposed. CMS Mem. at 2. Petitioner did not respond to the Motion to Dismiss. I therefore find the representations in CMS's Memorandum to be unrebutted. On that basis, I conclude that all remedies described in the notice letter of February 17, 2005 have been rescinded.

CMS has rescinded its remedy determinations and, consequently, Petitioner no longer has a 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).

2. Petitioner has no right to a hearing because its hearing request was not timely filed.

Even if CMS had not rescinded the remedies giving rise to Petitioner's right to a hearing, I would conclude that Petitioner's hearing request is subject to dismissal because it was not timely filed. Pursuant to 42 C.F.R. � 498.40(a)(2), a request for hearing must be filed within 60 days "from receipt of the notice of initial, reconsidered, or revised determination." In the present case, CMS notified Petitioner of the imposition of remedies in a letter dated February 17, 2005. Assuming five days for mailing, Petitioner would have received the notice letter not later than February 22, 2005. Based on that assumption, a timely hearing request was required to be filed not later than April 22, 2005. Petitioner's hearing request was dated May 27, 2005, more than a month after the 60-day deadline. Petitioner did not request an extension of time, nor did it show good cause for late filing. A hearing request that is not timely filed is subject to dismissal pursuant to 42 C.F.R. � 498.70(c).

V. Conclusion

Petitioner's request for a hearing is subject to dismissal pursuant to the alternative grounds stated above. Accordingly, I order that this case be dismissed.

Alfonso J. Montano

Administrative Law Judge

1. There are no disputed issues of fact in this case. My conclusions of law are set forth in the two point headings in this decision.