SUBJECT:

St. Paul Home,

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 a hearing when the Centers for Medicare & Medicaid Services (CMS) withdraws 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, St. Paul Home, is a skilled nursing facility located in Kaukauna, Wisconsin, certified to participate in the Medicare and Medicaid programs as a provider of services. On March 10, 2005, the Wisconsin Department of Health and Family Services completed an inspection of Petitioner's facility and found noncompliance. In a notice letter dated April 12, 2005, CMS advised Petitioner that, based on those survey findings, it would impose a $200 per day civil money penalty (CMP) beginning March 10, 2005; a denial of payment for new Medicare and Medicaid admissions (DPNA) effective June 10, 2005; prohibition of approval for nurse aide training and competency evaluation programs (NATCEP) if Petitioner did not achieve substantial compliance by June 10, 2005; and termination of Petitioner's provider agreement if Petitioner did not achieve substantial compliance by September 10, 2005. Petitioner requested a hearing by letter dated June 3, 2005, and the case was assigned to me for hearing and decision. By my "Acknowledgment and Initial Pre-Hearing Order" (Order) dated June 16, 2005, I set dates for pre-hearing submissions by the parties.

In the interim between Petitioner's request for a hearing and the issuance of my Order, CMS, by notice letter dated June 13, 2005, informed Petitioner that the Wisconsin Department of Health and Family Services had conducted a revisit survey at the facility on May 25, 2005, and had found the facility in substantial compliance as of March 11, 2005. As a result, CMS informed Petitioner that it was rescinding the DPNA, the NATCEP prohibition, and the termination of Petitioner's provider agreement. However, a $200 CMP for the one day of noncompliance on March 10, 2005, remained in effect. By notice letter dated September 21, 2005, CMS rescinded the $200 CMP. Thus, no remedies remain in effect.

On September 22, 2005, CMS submitted a motion to dismiss and a joint motion to stay. CMS's motion to dismiss asserts that Petitioner has no right to a hearing and states that, since no remedy remains in effect, there is no initial determination for Petitioner to appeal. In the joint motion, the parties request that I stay their pre-hearing exchanges pending my decision on CMS's motion to dismiss. On September 28, 2005, I granted the joint motion and reminded Petitioner that it had 20 days to submit a response to CMS's motion to dismiss. See 42 C.F.R. § 498.17(b). On October 11, 2005, Petitioner informed me that "we do not plan to reply to the motion."

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

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). 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. Fountain Lake Health & Rehabilitation, Inc., DAB No. 1985 (2005) and cases cited therein.

CMS has rescinded its remedy determination and, consequently, Petitioner no longer has a right to an ALJ hearing. An ALJ may dismiss a hearing request where a party has no right to a hearing. 42 C.F.R. § 498.70(b). I therefore grant CMS's motion to dismiss and order this case dismissed.

Carolyn Cozad Hughes

Administrative Law Judge

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