SUBJECT:

Hammond Nursing Home,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

DISMISSING REQUEST FOR HEARING

This matter comes before me on review of Petitioner Hammond Nursing Home's January 17, 2005 Request for Hearing, and in the context of the Centers for Medicare & Medicaid Services' (CMS's) Request for Dismissal and Response to Order to Show Cause, filed by CMS on or about May 18, 2005. I make a single finding and conclusion in deciding this case, which is that Petitioner has not pleaded a case over which I may exercise jurisdiction pursuant to 42 C.F.R. �� 498.3 or 498.5. My reasons for reaching this conclusion will appear more fully below. Based on my conclusion that I lack jurisdiction over Petitioner's Request for Hearing, I GRANT CMS's Request for Dismissal.

The caption of CMS's May 18, 2005 pleading adumbrates the most noticeable characteristic of this litigation: CMS was not simply raising a jurisdictional issue, but was responding to my Order to Show Cause of May 5, 2005, which required the parties to explain why they had not filed timely reports of readiness as they had been directed by my Order of February 1, 2005. The parties' responses to the Order to Show Cause reflect that confusion, at first engendered and then compounded by a certain amount of simple error, has dogged this case since well before it was docketed in the Civil Remedies Division. It may therefore be useful to review how this case came to be before me, and why it must be dismissed.

Hammond Nursing Home was a Medicaid-only skilled nursing facility, subject to regulation only by the State of Louisiana's Department of Health and Hospitals (LDHH), in September and October of 2004. As of mid-September, the facility had expressed to LDHH and to CMS its desire to pursue Medicare certification. LDHH surveyors conducted a survey of the facility on or about October 22, 2004, and found several instances of substantial noncompliance with federal participation requirements. These instances of noncompliance were sufficient to bar Hammond's certification for Medicare participation, and to continue barring it as long as those instances of substantial noncompliance remained unaddressed.

The first error, and the source of most of the confusion in this case, occurred when LDHH announced the results of the October survey to Petitioner in its letter of November 6, 2004: in addition to citing the deficiencies discovered in its survey, the LDHH letter inexplicably advised Petitioner that it might appeal the citations of deficiencies to this forum. That advice was simply incorrect: the facility was then subject to no federal health program's participation requirements, no federal authority lay behind the survey, and no federal authority sought to impose remedies of any sort whatsoever. The correct forum for Hammond to petition in seeking appellate relief from the LDHH survey and citation of deficiencies was, and is, LDHH's Bureau of Appeals, located in Baton Rouge. The error in LDHH's letter of November 6, 2005 was corrected in its subsequent letter of May 13, 2005, but by that time events had begun to assume a condition approaching Gordian entanglement.

Petitioner filed its Request for Hearing in the Civil Remedies Division by letter of January 17, 2005. The letter's text is two sentences long: "Please be advised that on behalf of Hammond Nursing Home we do hereby appeal Tags F157, F272, F279 and F309. Please schedule a hearing at your earliest convenience." Neither the timeliness of this letter, as assessed in terms of 42 C.F.R. � 498.40(a)(2), nor its compliance with the much-litigated "content" requirements of 42 C.F.R. � 498.40(b), has attracted any obvious attention from CMS. But the letter is plain: Hammond came to this forum seeking relief from the LDHH citations of deficiencies identified by the four "F-Tags" it names.

Petitioner's filing led to the entry of my standard "60-Day Order" on February 1, 2005, which required the parties to report their readiness to proceed, or to take other measures reflective of their active engagement with the case, by early April, 2005. An entry of appearance for CMS was filed in early February, but nothing else appeared from either party until May 5, 2005. On that date, having noted that the "60-Day Order" had apparently fallen on indifferent ears, I entered my Order to Show Cause in the hope of descrying whether Petitioner had abandoned its appeal, and of determining whether CMS intended to oppose it.

The parties' responses revealed the second series of errors: Petitioner responded on May 9, 2005 by stating that it had prepared a report of readiness in compliance with the "60-Day Order," but had mistakenly mailed it to LDHH instead of to this Division. A copy of Petitioner's report was filed with its response. CMS responded on May 18, 2005, with the pleading that brings this matter before me now: its Request for Dismissal and Response to Order to Show Cause. CMS's effort to win the dismissal of this case will be addressed next; for now, it need only be noted that CMS's pleading concedes that "Through inadvertence and confusion of the circumstances, CMS failed to file its Report of Readiness."

These pleadings, though reflective of several months' confusion, also offered some illumination of the parties' positions. Petitioner remained adamant that it sought in this forum appellate review of the factual and legal bases for the four state citations of deficiency. CMS had discovered the error in LDHH's November 6, 2004 letter, and so attached to its pleading a series of letters from LDHH informing Petitioner that LDHH proposed no imposition of remedies for the deficiencies it had cited, and correcting the erroneous advice it had proffered concerning Petitioner's appellate remedies. This latter point was made in the LDHH letter of May 13, 2005 to which I have reference above; LDHH went on to allow Petitioner an additional 30 days to perfect any State appeal it might wish and provided the correct address to which any such appeal should be directed. Petitioner has betrayed no obvious interest in doing so.

Petitioner was given an opportunity to respond to CMS's jurisdictional challenge by letter of June 6, 2005, and did so in its letter of June 23, 2005. For reasons not made clear in the letter, Petitioner characterized CMS's efforts to win dismissal as "untimely." Petitioner then asserted: "First and foremost, there has been no evidence presented that CMS has not taken any adverse action against . . . Hammond Nursing Home." These two points were and remain irrelevant to the question of jurisdiction and unresponsive to my letter of June 6, 2005. But Petitioner went on to assert that it ". . . intends to submit testimony that CMS withheld consideration of its pending Medicare application in reliance upon the deficiencies found by the State surveyors . . . ."

Until it raised that third point, Petitioner had appeared here challenging the facts and legal theories supporting the citations of deficiency at a facility which did not participate in Medicare, in which no federal programs or authorities were involved, and upon which no federal remedies were proposed or imposed. Petitioner had by its own language limited itself to challenging the facts and legal theories supporting the citations. The complete absence of federal sanctions from LDHH's letters to Petitioner remained a serious obstacle in Petitioner's path, since CMS never imposed its own federal remedies, penalties, or sanctions of any other kind authorized by 42 C.F.R. � 488.406, based on the LDHH survey and citations. There simply has been no "determination" by CMS from which Petitioner may appeal to the jurisdiction of this forum. Lakewood Plaza Nursing Center, DAB No. 1767 (2001); The Lutheran Home-Caledonia, DAB No. 1753 (2000); Schowalter Villa, DAB No. 1688 (1999); Charlesgate Nursing Center, DAB CR868 (2002).

The emergence of this third point relating to its Medicare application in Petitioner's June 23, 2005 letter represented an alteration in the nature and theory of its appeal. But while apparently attempting to broaden the scope of its appeal to include the question of when it became eligible for Medicare certification, Petitioner stopped well short of sharpening its argument by explaining why that question vested jurisdiction in this forum.

Accordingly, I directed a letter captioned "OPPORTUNITY TO CLARIFY POSITIONS" to the parties on June 29, 2005. That letter warned Petitioner that it had not yet pointed out the "statutory or regulatory basis upon which it claims a right to a hearing pursuant to 42 C.F.R. � 498.3 or 498.5" and that its Request for Hearing might be subject to dismissal on jurisdictional grounds. The letter offered both sides the opportunity to expand or clarify their arguments by July 11, 2005. CMS responded via e-mail that it relied on the arguments set forth in its previously filed Request for Dismissal. Petitioner submitted no further pleading, argument, or authorities, but instead provided only copies of three additional pieces of correspondence.

The first piece of correspondence was a copy of a July 6, 2005 letter from Hammond's Administrator to Petitioner's counsel. The Administrator's letter asserted that, on September 16, 2004, Hammond had notified LDHH and CMS of its intention to seek Medicare and Medicaid certification effective December 1, 2004; that the October LDHH survey showed Hammond's noncompliance with Medicare requirements; and that various delays in LDHH's follow-up survey delayed CMS's award of Medicare certification until Februay 1, 2005. The second piece of correspondence was the Administrator's January 24, 2005 letter to LDHH revising the date on which the facility sought its Medicare certification to be effective from December 1, 2004, to February 1, 2005. The third item of correspondence was CMS's letter to Petitioner of February 23, 2005, in which CMS announced that the effective date of Petitioner's Medicare certification was to be February 1, 2005.

Even if their factual assertions are accepted as true, there is nothing in the three letters that can be read as a successful invocation of my jurisdiction to entertain this case. Even read in the context of all of Petitioner's previous filings, and even accorded the greatest possible latitude of interpretation, the letters do not articulate a right to a hearing pursuant to 42 C.F.R. � 498.3 or 498.5. No action taken or remedy proposed by LDHH prior to Petitioner's Medicare certification on February 1, 2005 is cognizable here. Further, the alleged delay in that certification date does not entitle Petitioner to appeal CMS's determination not to certify Petitioner before that date. This is so because, for all the correspondence reveals, Petitioner achieved Medicare certification as of February 1, 2005, the date Petitioner itself requested. Under these circumstances, it is difficult to imagine what dispute Petitioner could articulate regarding its certification date. Furthermore, CMS's February 23, 2005 letter informed Petitioner that, if it disagreed with the certification determination in any respect, it could request that the determination be reconsidered. The letter explained the procedure for requesting reconsideration. Petitioner has not asserted that it ever requested reconsideration by CMS. Presenting a request for reconsideration to CMS-and the issuance of a reconsidered determination by CMS-is a prerequisite to a prospective provider's seeking ALJ review of a dispute as to the certification date. See 42 C.F.R. �� 498.5, 498.20, 498.22.

Thus, to the extent that Petitioner's intention in these proceedings is to contest the citations of deficiencies represented by the four "F-Tags"described in its Request for Hearing and in its Report of Readiness, it has chosen the wrong forum in which to do so. Its remedy lies-or lay-with LDHH and its Bureau of Appeals. To the extent that Petitioner complains here of delay in the effective date of its Medicare certification, it has similarly failed to follow the procedures set out for the review of such determinations. I therefore find and conclude that Petitioner has failed to establish its right to a hearing pursuant to 42 C.F.R. � 498.3 or 498.5, and its Request for Hearing is subject to dismissal on that basis, pursuant to the terms of 42 C.F.R. � 498.70(b).

For the reasons set forth above, CMS's Request for Dismissal is GRANTED. Petitioner Hammond Nursing Home's Request for Hearing should be, and it is, DISMISSED.

Richard J. Smith

Administrative Law Judge