Mozaic Senior Life, DAB CR6537 (2024)

DECISION

Petitioner, Mozaic Senior Life, is not entitled to a hearing, because its request for hearing (RFH) does not challenge the imposition of an enforcement remedy.  Therefore, CMS’s motion to dismiss is granted, and this case is dismissed pursuant to 42 C.F.R. § 498.70(b).  Petitioner may file a request for hearing with respect to the subsequent enforcement remedies imposed pursuant to 42 CFR §§ 498.5 and 498.40, et seq.

I.  Factual and Procedural History

Mozaic Senior Life is a skilled nursing facility, located in Bridgeport, Connecticut, that participates in the Medicare program.

On October 19, 2023, the Connecticut Department of Public Health (State Agency) conducted a recertification survey at Petitioner’s facility on behalf of CMS and determined that the facility was not in substantial compliance with certain federal requirements.  CMS Exhibit (Ex.) 1 at 1. 

The State Agency alleged that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(b)(1), Tag F686.  By letter dated January 3, 2024, CMS informed

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Petitioner that it was imposing enforcement remedies, including:  a per instance civil money penalty (CMP) of $18,350.00 for the noncompliance cited at Tag F686;  termination of Petitioner’s provider agreement on April 19, 2024 if substantial compliance was not achieved by that time; a mandatory denial of payment for new admissions (DPNA); and a prohibition against the provision of a Nurse Aide Training and Competency Evaluation Program (NATCEP).  CMS Ex. 1 at 2-4.

On March 1, 2024, Petitioner requested a hearing to contest the findings in the January 3, 2024 enforcement notice.¹  Petitioner stated that it requested a hearing regarding the October 19, 2023 recertification survey and that it contested the noncompliance cited under Tag F686, the $18,350.00 CMP, and the NATCEP prohibition.  RFH at 1, 5.

CMS notified Petitioner by letter dated August 1, 2024, that it revised the enforcement remedies imposed in the January 3, 2024 notice.  CMS Ex. 2.  With respect to the October 19, 2023 survey, CMS notified Petitioner that it was now issuing a per instance CMP of $15,475.00 based on a violation of 42 C.F.R. § 483.35(a)(3)-(4) for noncompliance cited under Tag F726 – a separate violation from the one addressed in the January 3, 2024 notice.  CMS Ex. 2 at 1.

On August 2, 2024, CMS filed a Motion to Dismiss (CMS Br.), because CMS issued a revised enforcement notice which superseded the January 3, 2024 notice and rendered Petitioner’s request for hearing moot.  Petitioner did not respond to CMS’s motion.  See 42 C.F.R. § 498.17(b)(1); Standing Order § 8.

II. Discussion

1. Issue

Whether dismissal is appropriate under 42 C.F.R. § 498.70(b).

2. Applicable Law

CMS may impose enforcement remedies on a facility that is found to be out of substantial compliance with one or more participation requirements.  42 C.F.R. §§ 488.400, 488.406.  A facility may appeal a certification of noncompliance leading to an enforcement remedy.  42 C.F.R. § 488.408(g)(1).  42 C.F.R. part 498 establishes procedures to appeal initial determinations by requesting an ALJ hearing.  42 C.F.R. §§ 488.330(e)(3), 498.3(b)(13).  The regulations specify which actions are “initial determinations”.  42 C.F.R. § 498.3(b), (d).  A finding of noncompliance that results in the imposition of an enforcement remedy is an initial determination for which a

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facility may request an ALJ hearing.  42 C.F.R. § 498.3(b)(13).  However, a facility has no right to a hearing unless CMS imposes one of the specified remedies.  The Lutheran Home - Caledonia, DAB No. 1753 (2000); Schowalter Villa, DAB No. 1688 (1999); Arcadia Acres, Inc., DAB No. 1607 (1997); see San Fernando Post Acute Hosp., DAB No. 2492 at 7-8 (2012).  The remedy, not the citation of a deficiency, triggers the right to a hearing.  Schowalter Villa, DAB No. 1688; Arcadia Acres, Inc., DAB No. 1607.

3. Conclusions of Law and Analysis

My conclusions of law are set forth in bold followed by my findings of fact and discussion.

1. Petitioner has no right to a hearing with respect to the January 3, 2024 enforcement notice, because CMS did not ultimately impose any enforcement remedy from that notice.
2. Dismissal of Petitioner’s request for hearing pursuant to 42 C.F.R. § 498.70(b) is appropriate.

Petitioner requested a hearing to appeal the January 3, 2024 enforcement notice which imposed a CMP and NATCEP prohibition based on noncompliance cited under Tag F686 during the October 19, 2023 recertification survey.  CMS issued a revised enforcement notice on August 1, 2024 which superseded the January 3, 2024 enforcement notice and imposed enforcement remedies based on noncompliance cited under a different federal requirement – Tag F726.

Petitioner’s March 1, 2024 request for hearing stated that Petitioner sought to request a hearing concerning “the recertification survey completed on October 19, 2023” and specifically sought to challenge the January 3, 2024 enforcement notice which notified Petitioner of noncompliance cited under Tag F686, a $18,350.00 CMP based on the cited noncompliance, and a NATCEP prohibition.  RFH at 1, 5.

On August 1, 2024, CMS provided Petitioner with a second enforcement notice which advised Petitioner that “NOTICE SUPERSEDES CMS ENFORCEMENT REMEDIES NOTICE DATED JANUARY 3, 2024[.]”  CMS Ex. 2 at 1 (emphasis in original).  The notice informed Petitioner that, based on revisits and review, CMS determined Petitioner achieved substantial compliance effective December 20, 2023.  The notice further informed Petitioner that its provider agreement would not be terminated and a DPNA would not be imposed, but that, effective October 19, 2023, CMS would impose a CMP of $15,475.00 based on noncompliance cited at Tag 726 under 42 C.F.R. § 483.35(a)(3)-(4), (c) (competent nursing staff).

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CMS moves for dismissal on grounds that the August 1, 2024 enforcement notice supersedes the January 3, 2024 notice upon which Petitioner’s RFH was based, and that Petitioner’s request for hearing is therefore moot.  Petitioner has not filed an opposition to CMS’s motion.

The January 3, 2024 enforcement notice did not lead to the imposition of an enforcement remedy.  The January 3rd notice cited noncompliance under Tag F686 and proposed a CMP of $18,350.00 CMP.  The January notice was superseded by the August 1st enforcement notice which informed Petitioner that a CMP of $15,475.00 would now be assessed based on a violation of 42 C.F.R. § 483.35(a)(3)-(4) for noncompliance cited under Tag F726.  CMS Ex. 2 at 1.  Therefore, Petitioner is not entitled to a hearing based on its appeal of the January 3rd enforcement notice because the January 3rd notice did not result in the imposition of an enforcement remedy, and thus, there is no initial determination for which Petitioner may seek ALJ review under 42 C.F.R. § 498.3(b)(13).  See Columbus Park Nursing & Rehab. Ctr., DAB No. 2316 at 7 (2010) (A SNF “has no right to an ALJ hearing to contest survey deficiency findings where CMS has not imposed any of the remedies specified at section 488.406 based on those findings, or where CMS imposed, but subsequently rescinded, any such remedies.”).  Accordingly, Petitioner’s RFH is dismissed.

III.   Conclusion

For the foregoing reasons, Petitioner’s RFH is dismissed pursuant to 42 C.F.R. § 498.70(b).  CMS’ motion to dismiss is hereby granted.  The parties may request that a dismissal of a request for hearing be vacated pursuant to 42 C.F.R. § 498.72.  Petitioner may also file a RFH with respect to the August 1, 2024 enforcement notice pursuant to 42 CFR §§ 498.5 and 498.40, et seq.

Endnote

¹  The request for hearing was dated February 29, 2024, but was received by the Civil Remedies Division on March 1, 2024.  RFH.