SUBJECT:

Southwest Nursing and Rehabilitation Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I dismiss the hearing request of Petitioner, Southwest Nursing and Rehabilitation Center. By letter dated May 24, 2004, the Centers for Medicare & Medicaid Services (CMS) imposed a per-instance civil money penalty in the amount of $5,000 for past noncompliance with 42 C.F.R. � 483.25(h)(2). On November 16, 2004, CMS notified Petitioner that it had rescinded that remedy; no enforcement action or remedy is in effect toward Petitioner.

I. Background

The essential facts of this case are not in dispute. CMS filed a Motion to Dismiss for Cause on November 16, 2004 together with two exhibits to support its motion, CMS Exhibit (Ex.) 1 and CMS Ex. 2. Petitioner did not respond to that motion although it was specifically directed in my Notice of Hearing and Prehearing Order dated October 13, 2004 that it must file its answer opposing such a motion within 30 days from the date of its receipt. Since Petitioner did not choose to respond, I must infer that it does not contest CMS' motion and exhibits. Therefore, I admit CMS Exs. 1 and 2 into the record.

Petitioner is a long-term care facility that is certified to participate in the Medicare and Medicaid programs. On May 24, 2004, CMS notified Petitioner of its noncompliance with the requirements for participation at 42 C.F.R. � 483.25(h) and that, as a result, CMS was imposing a per-instance civil money penalty in the amount of $5,000. On July 2, 2004, Petitioner filed a request for a hearing.

On November 16, 2004, CMS sent Petitioner a letter in which it informed Petitioner that it had rescinded the recommended civil money penalty. CMS Ex. 2.

The case was assigned to me for a hearing and a decision. CMS moved to dismiss Petitioner's hearing request and Petitioner did not respond to the motion.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Petitioner has a right to a hearing; and, if not, whether;

2. I must dismiss Petitioner's hearing request.

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. Petitioner has no right to a hearing.

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 nursing 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. Lutheran Home - Caledonia, DAB CR674 (2000), aff'd DAB No. 1753 (2000); Schowalter Villa, DAB CR568 (1999), 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 (Secretary) specifically rejected a proposal to grant hearing rights for deficiency findings that were made without the imposition of remedies. 59 Fed. Reg. 56116, 56158 (Nov. 10, 1994).

Petitioner does not have a right to a hearing. The undisputed facts establish that while CMS initially determined that Petitioner was deficient and imposed a per-instance civil money penalty upon Petitioner, CMS later rescinded all enforcement remedies imposed against Petitioner. Therefore, Petitioner no longer suffers any injury for which relief can be granted and has no right to an appeal.

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 or inability of the petitioner to demonstrate that the appealed survey findings and deficiency determinations had resulted in a remedy actually in effect was fatal to its appeal. In each of these case, 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.

Furthermore, in the absence of an imposed enforcement remedy against Petitioner, there is no further remedial action for me to take; clearly there are no issues for me to review or to decide.

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

Since CMS rescinded all remedies against Petitioner, I must dismiss Petitioner's hearing request in this case because it has no right to a hearing. 42 C.F.R. � 498.70(b).

Anne E. Blair

Administrative Law Judge