SUBJECT:

Fountain Lake Health & Rehab,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION DISMISSING
REQUEST FOR HEARING

I dismiss the hearing requests made by Petitioner, Fountain Lake & Rehabilitation. I do so because the Centers for Medicare & Medicaid Services (CMS) rescinded the remedy it had determined to impose against Petitioner. Petitioner has no right to a hearing in the absence of an extant remedy determination.

I. Background

Petitioner is a skilled nursing facility in Hot Springs, Arkansas. Petitioner participates in the Medicare program. Its participation is governed by sections 1866 and 1819 of the Social Security Act (Act) and by regulations at 42 C.F.R. Parts 483 and 488.

On December 19, 2003 Petitioner was surveyed on behalf of CMS by the Arkansas Department of Human Services (State survey agency). The surveyors determined that Petitioner failed to comply in several respects with Medicare participation requirements. The most serious of these noncompliance determinations involved a finding that Petitioner had, in the past, been deficient in caring for its residents to the extent that residents were in a state of immediate jeopardy. CMS accepted the surveyors' findings and made a determination to impose a civil money penalty against Petitioner in the amount of $7,500.

Petitioner requested a hearing to challenge CMS's determination. The case was assigned to me for a hearing and a decision. On September 17, 2004, after Petitioner filed its hearing request, CMS notified Petitioner that it was rescinding its remedy determination. CMS advised Petitioner that it was reducing the finding of an immediate jeopardy level deficiency to a finding that Petitioner manifested a non-immediate jeopardy level deficiency. ⁽¹⁾ It also told Petitioner that it would impose no remedies against it inasmuch as the now-reduced deficiency related to care that Petitioner had provided in the past and was not an ongoing deficiency.

CMS moved to dismiss Petitioner's hearing request. It argued that Petitioner had no right to a hearing because there was no remedy determination that Petitioner could challenge. Petitioner opposed the motion.

II. Issues, findings of fact and conclusions of law

A. Issue

The issue in this case is whether Petitioner has a right to a hearing now that CMS has rescinded its remedy determination.

B. Findings of fact and conclusions 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 heading. I discuss each Finding in detail.

1. No right to a hearing exists where there is no remedy determination.

Parties' rights to administrative hearings in cases involving CMS are governed generally by the regulations in 42 C.F.R. Part 498. As a general rule, a party has no right to a hearing in a case involving CMS unless CMS has made a determination to impose a remedy against that party. 42 C.F.R. �� 498.3, 498.5.

Hearing rights that are accorded specifically to nursing facilities in cases involving CMS are consistent with the general rule. A facility may "appeal a certification of noncompliance leading to an enforcement remedy." 42 C.F.R. � 488.408(g)(1). This regulation reinforces the sections in Part 498 governing hearings. It means plainly that a nursing facility may not have a hearing where there is no remedy determination for it to challenge.

2. Petitioner has no right to a hearing because CMS rescinded its remedy determination.

The sole remedy determination that CMS made in this case was to impose a civil money penalty of $7,500 against Petitioner for an alleged past episode of immediate jeopardy. On September 17, CMS rescinded its finding of an immediate jeopardy level deficiency and rescinded its remedy determination. That left Petitioner with no remedy to challenge. As a consequence, Petitioner no longer had any right to a hearing.

Numerous decisions at both the administrative law judge and Departmental Appeals Board have issued findings that comport with the one that I make here. Where CMS has not issued a remedy determination, or where it rescinds one, there is nothing that a party may challenge and it has no right to a hearing.. Lakewood Plaza Nursing Center, DAB No. 1767 (2001); Schowalter Villa, DAB No. 1688 (1999); Arcadia Acres, DAB No. 1607 (1997); Rafael Convalescent Hospital; DAB No. 1616 (1997).

3. I dismiss Petitioner's hearing request because Petitioner has no right to a hearing.

Regulations provide, at 42 C.F.R. � 498.70(b), that an administrative law judge may dismiss a hearing request where a party does not have a right to a hearing. I dismiss the hearing request in this case pursuant to that section.

Petitioner offers several arguments to support its opposition to dismissal of its request. Summarized, these arguments include the following:

� The survey agency did not follow the appropriate protocol in conducting its survey of Petitioner's facility.

� The surveyors improperly copied information from Petitioner's Quality Assurance action plan.

� Petitioner in fact complied with participation requirements.

� CMS allegedly followed improper procedures in writing the findings of deficiency by combining findings made under two deficiency headings into one allegation.

� A continued finding of a "J" deficiency at Petitioner's facility would harm its ability to adjust to resident care needs.

None of the arguments advanced by Petitioner address the question of whether there continues to exist a remedy determination that Petitioner may challenge. Whatever procedural defects may or may not have existed in the way in which the survey was conducted is irrelevant to that question. Similarly, the issue of Petitioner's actual compliance with participation requirements becomes irrelevant if CMS is not attempting to impose a remedy against Petitioner. Finally, Petitioner's concerns about the "J" deficiency finding should be allayed by the fact that CMS rescinded its determination.

Steven T. Kessel

Administrative Law Judge

1. I take notice that CMS uses a letter designation to describe the scope and severity of a deficiency determination. CMS originally decided that Petitioner had a "J" immediate jeopardy level deficiency. CMS reduced this scope and severity designation to a "G" non-immediate jeopardy level deficiency.