SUBJECT:

Manorcare Halth Services Sandia,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Petitioner's September 2, 2004 request for hearing is dismissed.

I. PROCEDURAL HISTORY

On May 20, 2004, the New Mexico Department of Health (State agency), completed a complaint survey of Petitioner, a long-term care facility located in Albuquerque, New Mexico. By letter dated July 6, 2004, the Centers for Medicare & Medicaid Services (CMS) notified Petitioner that the State agency alleged, based on survey findings, that Petitioner had violated 42 C.F.R. � 483.25(h)(2) which relates to Quality of Care. CMS further notified Petitioner that, based on the State agency's allegations, CMS was: 1) terminating Petitioner's provider agreement effective October 20, 2004; 2) imposing a civil money penalty of $ 250 per day commencing on May 20, 2004; and 3) imposing a denial of payment for new admissions effective July 21, 2004. All three remedies were to remain in effect until Petitioner again achieved substantial compliance or its provider agreement was terminated.

Petitioner requested a hearing before an administrative law judge, by letter dated September 2, 2004, to challenge the State agency findings of deficiency. The case was assigned to me for hearing and decision on September 21, 2004. On October 21, 2004, CMS moved that I dismiss the request for hearing on grounds that all enforcement remedies had been rescinded and Petitioner no longer has a right to a hearing. Pursuant to 42 C.F.R. � 498.17(b), Petitioner had 20 days or until November 10, 2004 to file a responsive pleading, but no such pleading has been filed. Accordingly, I conclude that Petitioner does not oppose the motion to dismiss and/or has waived any response.

II. ANALYSIS

A. APPLICABLE LAW

It is well-settled that a Petitioner, under the circumstances of this case, has a right to a hearing before an administrative law judge only when CMS imposes an enforcement remedy. See 42C.F.R. �� 488.330(e)(3), 488.408(g) and 498.3(b)(13); see also Lakewood Plaza Nursing Center, DAB 1767 (2001). Absent an enforcement remedy, a petitioner has no right to appeal and dismissal is appropriate pursuant to 42 C.F.R. � 498.70(b).

B. DISCUSSION

Petitioner in this case, timely requested a hearing to challenge the imposition of remedies based upon the survey ended May 20, 2004. CMS represents in its motion to dismiss that, on September 2, 2004, the State agency did a revisit survey of Petitioner and found that substantial compliance had been achieved by Petitioner as of July 2, 2004. CMS submitted CMS Exhibit 1 with its motion. CMS Exhibit 1 is a letter, dated September 29, 2004, which represents that it was sent to Petitioner by facsimile, and indicates that all remedies previously proposed were rescinded based upon the September 2, 2004 revisit survey.

Petitioner has not made a timely response to the CMS motion to dismiss. Therefore, the facts alleged by CMS are not disputed. Because the enforcement remedies imposed were rescinded, and Petitioner has cited no other basis for my jurisdiction and review, dismissal is appropriate pursuant to 42 C.F.R. � 498.70(b).

III. CONCLUSION

For the foregoing reasons, Petitioner's September 2, 2004 request for a hearing is dismissed. Pursuant to 42 C.F.R. � 498.72, I may vacate an order of dismissal based upon a showing of good cause filed no more than 60 days after receipt of the order of dismissal and receipt is presumed to be five days after the date on the order.

Keith W. Sickendick

Administrative Law Judge