SUBJECT:

Lamun-Lusk-Sanchez Texas State Veteran Home,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

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. I conclude that the facility is not entitled to a hearing and grant CMS's motion to dismiss.

Petitioner, Lamun-Lusk-Sanchez Texas State Veterans Home, is a skilled nursing facility located in Big Spring, Texas, certified to participate in the Medicare and Medicaid programs as a provider of services. On July 15, 2005, the Texas Department of Human Services completed a survey of Petitioner's facility and found noncompliance. In a notice letter dated September 12, 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 $250 per day, effective July 15, 2005. Memorandum in Support of Respondent's Motion to Dismiss (CMS Mem.), Attachment (Attach.) A. Petitioner requested a hearing by letter dated November 10, 2006. In a letter to Petitioner dated December 12, 2005, CMS informed Petitioner that a revisit survey confirmed that Petitioner had achieved and maintained substantial compliance with Medicare participation requirements. CMS Mem., Attach. B. The December 12 letter further informed Petitioner that the termination and DPNA remedies were rescinded and that CMS had decided to impose a per instance CMP of $3000 in lieu of the $250 per day CMP previously imposed. Id. In a letter to Petitioner dated March 20, 2006, CMS informed Petitioner that the per instance CMP of $3000 had been rescinded. CMS Mem., Attach. C.

CMS now moves to dismiss this case, arguing that Petitioner has no right to a hearing because the previously-imposed remedies have been rescinded. Petitioner did not respond to the motion, and the time for response has since passed.

1. Petitioner has no right to a hearing because 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 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 December 12, 2005 letter 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 Mem., Attach. B. The March 20, 2006 letter rescinds the CMP. CMS Mem., Attach. C. Based on the correspondence, I conclude that all remedies described in the notice letter of September 12, 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).

Accordingly, I order that this case be dismissed.

Carolyn Cozad Hughes

Administrative Law Judge

1. There are no disputed issues of fact in this case. My conclusion of law is set forth in the point heading in this decision.