SUBJECT:

Lakewood Plaza Nursing Center,

Petitioner,

Health Care Financing Administration.

I dismiss the request for hearing filed in this case by Petitioner, Lakewood Plaza Nursing Center; I do so pursuant to 42 C.F.R. § 498.70(b) because Petitioner has no right to a hearing. Additionally, I deny Petitioner's motion to amend its hearing request.

I. Background

The material facts in this case are not disputed. Petitioner is a long-term care facility that is located in Little Rock, Arkansas. On May 25, 1999, the Health Care Financing Administration (HCFA) sent a notice to Petitioner advising Petitioner of HCFA's intent to impose remedies. These remedies included civil money penalties totaling approximately $130,000 and denial of payment for new admissions for the period which ran from May 27, 1999 until July 4, 1999.

On July 1, 1999, Petitioner requested a hearing before an administrative law judge in order to contest HCFA's determinations. The case was assigned to me for a hearing and a decision. I scheduled an in-person hearing to be held beginning on April 4, 2000. However, on March 28, 2000, HCFA sent a notice to Petitioner in which it advised Petitioner that it was rescinding its determination to impose civil money penalties against Petitioner, as well as its determination to deny Petitioner payment for new admissions for the May 27 - June 4, 1999 period.

As a consequence of that notice, I postponed without date the in-person hearing. I directed HCFA to file a motion to dismiss Petitioner's hearing request. HCFA duly filed its motion and Petitioner opposed the motion.

HCFA submitted two exhibits (HCFA Ex. 1 and HCFA Ex. 2) in connection with its motion to dismiss. These exhibits consist of a letter which the Arkansas Department of Human Services delivered to Petitioner on May 21, 1999 (HCFA Ex. 1) and HCFA's March 28, 2000 notice to Petitioner (HCFA Ex. 2). HCFA also submitted an exhibit with its reply brief which consists of a letter dated June 11, 1999 from Petitioner to HCFA. HCFA designated this exhibit as HCFA Ex. 1. In order to avoid confusion, I am redesignating the exhibit as HCFA Ex. 3. Petitioner has not objected to my receiving HCFA's proposed exhibits into evidence. Therefore, I receive into evidence HCFA Ex. 1, HCFA Ex. 2, and HCFA Ex. 3. I do not receive into evidence any of the exhibits that the parties submitted as part of their prehearing exchange in preparation for the in-person hearing that I had scheduled to be held beginning on April 4, 2000.

II. Issue, findings of fact and conclusions of law

A. Issue

The issue in this case is whether Petitioner has a right to a hearing.

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 separately numbered heading. I discuss each finding in detail.

1. HCFA rescinded all of the initial determinations that it made against Petitioner.

HCFA's March 28, 2000 notice to Petitioner plainly rescinds all of the initial determinations that HCFA made in this case. The initial determinations in this case consisted of HCFA's determination to impose civil money penalties against Petitioner and its determination to deny Petitioner Medicare payments for new admissions for the period running from May 27, 1999 until July 4, 1999.

Petitioner argues that HCFA did not, in fact, rescind its determination to deny payments for new admissions. It contends that it was precluded from admitting new residents during the May 27 - July 4, 1999 period. Petitioner argues that HCFA cannot now undo the denial of payments or its consequences.

Petitioner mischaracterizes HCFA's determination to deny payments to Petitioner. Petitioner was not barred from admitting new residents at any time. It is true that, until March 28, 2000, HCFA had denied payment for new admissions of residents that Petitioner made between May 27 and July 4, 1999. But, with the rescission of the determination, Petitioner became eligible to claim payment for any admissions that it may have made during this period.

Moreover, there is no relief that I would be able to afford Petitioner to compensate it for its not admitting residents during the May 27 - July 4, 1999 period. I have no authority to order HCFA to compensate Petitioner for residents whom it did not admit even if I were to find that HCFA was without authority to impose the remedy of denial of payment for new admissions.

Petitioner argues additionally, that, as a consequence of HCFA's determination to impose remedies against it, it lost its authority to conduct nurse aide training for a period of two years. Petitioner argues that this loss of authority is a determination to impose a remedy which HCFA did not rescind.

However, the denial of nurse aide training was not an initial determination which HCFA could rescind. The regulations which were in effect at the time that HCFA made its determinations in this case state unambiguously that loss of approval for nurse aide training is not an initial determination. 42 C.F.R. § 498.3(d)(10)(iii) (1998).

It is true that, effective July 23, 1999, the regulations were revised to provide that loss of nurse aide training was an initial determination as to which a facility could request a hearing. However, HCFA intended the revision to apply only to determinations that were made after the revision's effective date. In publishing the interim version of the final regulation, HCFA stated:

[w]e intend that these changes to the regulations be effective upon publication [i.e. July 23, 1999]. Thus, we will apply the new rules to determinations made after the effective date of this interim final rule . . . .

64 Fed. Reg. 39934, 39936 (1999) (emphasis added). The initial determination that is at issue in this case was made on May 25, 1999. That is based on a State notice that is dated May 21, 1999. These actions, and HCFA's determination to impose remedies, occurred prior to the effective date of the revised regulation.

2. Petitioner has no right to a hearing where HCFA has rescinded its initial determinations to impose remedies.

The basis for any hearing request in a case involving HCFA is an initial determination by HCFA to impose a remedy against the affected party. See 42 C.F.R. §§ 488.408(g); 498.3; 498.5. There is no right to a hearing where there is no determination to impose a remedy.

In this case, HCFA's rescission of its determinations to impose remedies against Petitioner extinguished those determinations. The consequence of HCFA's action was to eliminate completely the remedy determinations which were the basis for Petitioner's hearing request. No remedy determinations exist now and there is nothing extant which would give Petitioner a right to a hearing. Schowalter Villa, DAB No. 1688 (1999).

As I discuss above, prior to July 23, 1999, Petitioner's loss of nurse aide training was not an initial determination. And, in the absence of any initial determination concerning loss of nurse aide training Petitioner has no right to a hearing to challenge its loss of nurse aide training. Schowalter, DAB No. 1688. Thus, there now exist no determinations from which Petitioner has a right to a hearing and Petitioner never had right to request a hearing to challenge its loss of nurse aide training.

3. There is no basis for me to grant Petitioner's motion to extend the time within which it may file its hearing request.

Petitioner would have me extend the time within which it could file its hearing request so that Petitioner may refile the request it filed previously in this case. Petitioner's goal is to be able to date its hearing request after July 23, 1999 so that it may challenge its loss of nurse aide training pursuant to the revised regulation which permits such a challenge if it is made after July 23, 1999.

Petitioner has not established good cause for its motion and I deny it. Petitioner's motion is essentially a tactical maneuver on Petitioner's part. Granting the motion would frustrate the Secretary's decision to distinguish between hearing requests that were made prior to and after July 23, 1999. In effect, by granting the motion, I would sanction a de facto retroactive application of a regulation that the Secretary announced would be applied only prospectively.

The fact that Petitioner's interests may be harmed by my not granting Petitioner's motion is no basis for me to grant it. Here, the Secretary made a decision to distinguish between hearing requests that were filed before July 23, 1999 and those requests that were filed after that date. I do not consider it appropriate for me to undermine that authority as is urged by Petitioner.

4. Dismissal of Petitioner's hearing request is appropriate.

Dismissal of a hearing request is appropriate where a party has no right to a hearing. 42 C.F.R. § 498.70(b). Here, dismissal is appropriate inasmuch as Petitioner has no right to a hearing. Therefore, I dismiss Petitioner's hearing request.

Steven T. Kessel

Administrative Law Judge