SUBJECT:

Baywind Village Convalescent Center,

Petitioner,

Centers for Medicare & Medicaid Services.

I dismiss the hearing request of Petitioner, Baywind Village Convalescent Center, as Petitioner is not entitled to a hearing.

I. Background.

Petitioner, is a long-term care facility located in League City, Texas, certified to participate in the Medicare and Medicaid programs as a provider of services. On July 14, 2004, the Texas Department of Human Services (TDHS) completed an inspection of Petitioner's facility and found noncompliance. In a notice letter dated August 5, 2004, CMS advised Petitioner that, based on those survey findings, it would impose a $1,000 per-instance civil money penalty for 42 C.F.R. � 483.25(h)(1). Petitioner timely requested a hearing on September 27, 2004. In follow-up visits on July 14, 2004 and July 28, 2004, the TDHS found Petitioner to be in substantial compliance with the applicable regulations. Subsequently, in a letter dated December 14, 2004, CMS notified Petitioner of its decision to rescind the only remedy at issue - a per-instance civil money penalty in the amount of $1,000. By motion dated January 25, 2005, CMS moved to dismiss this case, arguing that Petitioner has no right to a hearing because the previously-imposed remedy has been rescinded.

Petitioner did not respond to the motion. By Order dated July 18, 2005, I directed Petitioner to show cause, by August 1, 2005, why I should not grant CMS's motion and dismiss this case. Petitioner has not responded to my Order and the time for response has long since passed.

II. Applicable Law and Regulations.

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).

III. Issues.

This case presents the narrow question as to whether a long-term care facility has a right to a hearing when CMS withdraws the enforcement remedies provided for in 42 C.F.R. � 488.406.

IV. 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 numbered heading. I discuss each Finding in detail.

A. 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 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. The 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 specifically rejected a proposal to grant hearing rights for deficiency findings that were made without the imposition of remedies. 59 Fed. Reg. 56,116, 56,158 (1994).

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 of the petitioner to demonstrate that the appealed survey findings and deficiency determinations had resulted in a remedy actually being imposed was fatal to its appeal. In each of these cases, 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.

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).

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

Petitioner does not have a right to a hearing. The undisputed facts establish that while CMS initially determined that Petitioner was not complying substantially with participation requirements at 42 C.F.R. � 483.25(h)(1) and imposed a 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.

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. I have no authority to make a declarative statement on the proper interpretation of a regulatory provision; i.e., 42 C.F.R. � 483.25(h)(1), outside the context of determining the appropriateness of an imposed remedy.

V. Conclusion.

An ALJ may dismiss a hearing request where a party has no right to a hearing. 42 C.F.R. � 498.70(b). Since CMS rescinded its remedy determination, Petitioner no longer has a right to a hearing. I therefore grant CMS's motion to dismiss.

Alfonso J. Montano

Administrative Law Judge