SUBJECT:

Beverly Healthcare Williamsburg,

Petitioner,

Health Care Financing Administration

BACKGROUND AND UNDISPUTED MATERIAL FACTS

The undisputed material facts establish that Petitioner is a skilled nursing facility that participates in the Medicare program and is located in Little Rock, Arkansas. By notice letter dated July 5, 2000, the Health Care Financing Administration (HCFA) informed Petitioner that, based on findings made during a survey completed on June 16, 2000 by the Arkansas Department of Health and Human Services, Petitioner failed to maintain substantial compliance with federal participation requirements which govern long-term care facilities, including skilled nursing facilities that participate in the Medicare program.

HCFA informed Petitioner that it was imposing the remedies of termination, on September 16, 2000; denial of payment for new admissions, effective July 20, 2000; and a civil money penalty (CMP) of $5000 per day for two days of immediate jeopardy (June 14 and 15, 2000) and a CMP of $250 per day (commencing on June 16, 2000 and lasting until Petitioner achieved substantial compliance with program requirements or its provider agreement was terminated). Petitioner filed a request for hearing dated August 31, 2000, contesting the determinations contained in HCFA's July 5, 2000 notice letter. The case was assigned to me for hearing.

In response to my September 13, 2000 Order, Petitioner submitted an Unopposed Motion to Stay Proceedings, dated November 8, 2000. Before the end of the stay, Petitioner requested, by letter dated December 20, 2000, a dismissal of its pending appeal based on HCFA's notification to Petitioner that all remedies have been rescinded. However, Petitioner requested a dismissal without prejudice to request a hearing if future remedies are imposed based on the June 16, 2000 survey.

ISSUE

The issue in this case is whether Petitioner continues to have a right to a hearing in light of HCFA's decision to rescind the remedy that it imposed against Petitioner.

FINDING OF FACT AND CONCLUSION OF LAW

Based on the evidence before me and my review of the applicable law, I make the following finding of fact and conclusion of law:

(1) Petitioner has no right to a hearing in the absence of a determination by HCFA to impose a remedy against Petitioner.

Accordingly, I grant Petitioner's request to dismiss its pending appeal. I discuss this finding below.

DISCUSSION

The hearing rights of a long-term care facility in any case involving HCFA are established by federal regulations. The regulations applicable to this case provide that a facility has a right to a hearing to contest any "initial determination" by HCFA that is described at 42 C.F.R. § 498.3(b).

An appealable initial determination includes:

a finding of noncompliance [with participation requirements] that results in the imposition of a remedy specified in [42 C.F.R. ] § 488.406. . . .

42 C.F.R. § 498.3(b)(12). Remedies specified at 42 C.F.R. § 488.406 include termination of the provider agreement, denial of payment for new admissions, and CMPs. There is no provision in 42 C.F.R. § 498.3(b) or elsewhere in the regulations to provide a petitioner with a right to "a hearing if future remedies are imposed."

The facts in this case are undisputed. Petitioner's request for dismissal is based on HCFA's November 7, 2000 letter, which rescinded the imposition of all remedies. Based on my review of the plain language of the relevant regulations, I find that HCFA's determination to rescind all remedies in this case extinguished Petitioner's right to a hearing in this matter. Once HCFA chose to rescind each and every remedy, Petitioner no longer had a right to a hearing. The Lutheran Home - Caledonia, DAB No. 1753 (2000).

If HCFA imposes any appealable remedy in the future, pursuant to 42 C.F.R. § 498.20, HCFA is required to notify Petitioner of its right to a hearing. Petitioner will have 60 days from receipt of such notice to file a new hearing request that complies with the requirements of 42 C.F.R. § 498.40.

Accordingly, I grant Petitioner's request to dismiss its pending appeal and order this case dismissed.

Mimi Hwang Leahy

Administrative Law Judge