SUBJECT:

Covington Court Health and Rehabilitation 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 hearing when the state survey agency cites deficiencies, but the Centers for Medicare & Medicaid Services (CMS) decline to impose any of 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, Covington Court Health and Rehabilitation Center, is a long-term care facility certified to participate in the Medicare and Medicaid programs as a provider of services. Following a complaint investigation survey, completed on October 24, 2001, the Arkansas Department of Human Services (State Agency) cited three deficiencies. ⁽¹⁾ Petitioner requested and received from the state an informal dispute resolution hearing, which was held on January 10, 2002. By letter dated January 25, 2002, the State Agency notified Petitioner that the deficiencies would remain as cited. CMS ultimately decided not to impose any remedies against Petitioner.

Petitioner requested a hearing before an administrative law judge (ALJ), and CMS moved to dismiss Petitioner's hearing request. Summary disposition is appropriate in this case because there are no disputed issues of material fact, and the only question presented for decision involves the application of law to the undisputed facts.

1. Petitioner has no right to a hearing if CMS has not imposed a remedy. ⁽²⁾

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 an initial determination by CMS 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 ALJ hearing. 42 C.F.R. � 498.3(b)(13). Unless the finding of noncompliance results in the imposition of a specified remedy, the finding is not an initial determination. 42 C.F.R. � 498.3(d)(10)(ii). Thus, under the plain language of the regulations, there exists no hearing right if CMS has not imposed one of the remedies specifically listed in 42 C.F.R. � 488.406. Schowalter Villa, DAB No. 1688 (1999).

Petitioner is therefore not entitled to an ALJ hearing. I grant CMS's motion to dismiss and order this case dismissed.

Carolyn Cozad Hughes

Administrative Law Judge

1. State survey agencies recommend remedies, but CMS has the final authority to decide which, if any, remedies will be imposed.

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