SUBJECT:

Texarkana Nursing & Healthcare Center,

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, Texarkana Nursing & Healthcare Center, is a skilled nursing facility located in Texarkana, Texas, certified to participate in the Medicare and Medicaid programs as a provider of services. On April 1, 2004, the Texas Department of Human Services completed an inspection of Petitioner's facility and found noncompliance. In a notice dated May 11, 2004, CMS advised Petitioner that, based on those survey findings, it would impose a $1,000 per-instance civil money penalty. Petitioner timely requested a hearing. Subsequently, in a letter dated November 10, 2004, CMS notified Petitioner of its decision to rescind the civil money penalty. 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dismiss this case, arguing that Petitioner has no right to a hearing because the previously-imposed remedies have been rescinded.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 long since passed.

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. Schowater Villa, DAB No. 1688 (1999).

CMS has rescinded its remedy determination and, consequently, Petitioner no longer has a right to an ALJ hearing.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.

Carolyn Cozad Hughes

Administrative Law Judge

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