SUBJECT:

Independence House,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION DISMISSING

REQUEST FOR HEARING

In this case, the Centers for Medicare & Medicaid Services (CMS) filed a motion to dismiss the hearing request of Petitioner Independence House on the grounds that no remedy was imposed by CMS, and thus, Petitioner has no right to a hearing. I conclude that Petitioner is not entitled to a hearing in the absence of an extant remedy determination and grant CMS's motion to dismiss.

I. Background

Petitioner is a skilled nursing facility in Fostoria, Ohio. Petitioner participates in the Medicare and Medicaid programs as a provider of services. On January 3, 2006, the Ohio Department of Health (ODH) completed a survey of Petitioner's facility and found Petitioner to be out of compliance with a Life Safety Code regulation. Petitioner requested and received a temporary waiver for this deficiency. ODH completed a Life Safety Code revisit survey on April 6, 2006, which revealed that Petitioner was still out of compliance. By letter dated April 11, 2006, ODH advised Petitioner that, as a result of Petitioner's continued noncompliance, CMS was imposing a denial of payment for new admissions (DPNA) effective April 30, 2006.

Petitioner requested a hearing by letter dated April 18, 2006, and the case was assigned to me for hearing and decision.

After Petitioner submitted its request for hearing, ODH completed a second Life Safety Code revisit survey on April 28, 2006, and found that Petitioner was in substantial compliance effective April 17, 2006. By letter dated May 2, 2006, ODH advised Petitioner that it would recommend to CMS that CMS not impose a DPNA. CMS agreed with ODH and did not impose a DPNA.

CMS filed a motion to dismiss Petitioner's hearing request, accompanied by two exhibits (CMS Exs. 1 and 2). It argued that Petitioner had no right to a hearing because CMS had rescinded the only remedy imposed, and thus, there was no remedy determination that Petitioner could challenge. Petitioner has not opposed CMS's motion. I have admitted CMS Exs. 1 and 2 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. Fountain Lake Health & Rehabilitation, Inc., DAB No. 1985 (2005) and cases cited therein.

CMS has rescinded its remedy determination 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). I therefore grant CMS's motion to dismiss and order this case dismissed.

José A. Anglada

Administrative Law Judge

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