Excel Healthcare and Rehab Topeka d/b/a Brookdale Post Acute and/or Brookfield Post Acute, 2025-11 (HHS-CRD March 18, 2025)Excel Healthcare and Rehab Topeka d/b/a Brookdale Post Acute and/or Brookfield Post Acute

ORDER OF DISMISSAL

On February 21, 2025, Petitioner, a skilled nursing facility, filed a request for hearing, dated February 20, 2025, in response to a “February 20, 2025 notice” from the Centers for Medicare & Medicaid Services (CMS) that terminated its provider agreement after it did not request a hearing to appeal the findings of noncompliance that led to the imposition of enforcement remedies on December 9, 2024. Because the only enforcement remedy imposed by CMS in the February 20, 2025 notice was a termination of Petitioner’s provider agreement, and Petitioner cannot challenge CMS’s imposition of this remedy, I dismiss the request for hearing.

Background

Petitioner is located in Topeka, Kansas.1 Request for Hearing at 1. The state survey agency (state agency) completed an extended recertification survey of Petitioner’s facility

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on November 21, 2024, and determined that it was not in compliance with Medicare participation requirements, to include, but not limited to, an immediate jeopardy condition from November 14 through 21, 2024.2 DAB E-File Docket Entry No. 5a at 1.

In a December 9, 2024 letter, the state agency informed Petitioner that remedies had been imposed based on the cited noncompliance. DAB E-File Docket Entry No. 5a at 1. In addition to directing Petitioner to submit a plan of correction, the state agency, on behalf of CMS, imposed a discretionary denial of payment for new admissions (DPNA) effective December 24, 2024. DAB E-File Docket Entry No. 5a at 1-2. The state agency explained that “[b]ased on the deficiencies cited on this survey, your facility will not be given an opportunity to correct deficiencies before remedies are imposed.” DAB E-File Docket Entry No. 5a at 1. The state agency explained that substandard quality of care had been cited based on Petitioner’s immediate jeopardy noncompliance, and a “NATCEP will be prohibited since an extended or partial extended survey was conducted at [the] facility.” DAB E-File Docket Entry No. 5a at 3. The state agency also informed Petitioner that it had recommended termination of its provider agreement. DAB E-File Docket Entry No. 5a at 1. The notice explained that Petitioner or its legal representative “may request a hearing before an administrative law judge” within 60 days of receipt of the notice. DAB E-File Docket Entry No. 5a at 1-2. Petitioner did not request a hearing to challenge the imposition of remedies or the findings of noncompliance underlying the remedies.

On February 20, 2025, CMS issued, via email, a noticed captioned, “Involuntary Termination of Medicare Provider Agreement Effective March 7, 2025.” DAB E-File Docket Entry No. 1a. CMS reported that in addition to the previously imposed DPNA and NATCEP disapproval that had been imposed in December 2024, Petitioner’s participation agreement would be involuntarily terminated effective March 7, 2025. DAB E-File Docket Entry No. 1 at 1-2. CMS’s February 20, 2025 notice referenced the December 9, 2024 initial determination.

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On February 21, 2025, Petitioner, through its counsel, filed the instant request for hearing “in response to CMS’s February 20, 2025 notice.” Petitioner’s request for hearing did not reference the December 9, 2024 initial determination, nor did Petitioner submit a copy of the December 9, 2024 initial determination as the originating case decision or a supporting exhibit. Rather, Petitioner filed a copy of CMS’s February 20, 2025 letter as the “originating case decision” that was the basis for the request for hearing. Citing the impending termination of its provider agreement effective March 7, 2025, Petitioner requested an expedited hearing.

In its request for hearing, Petitioner contested “all remedies imposed as a result of the survey cycle, including, but not limited to” the following: the requirement to submit a plan of correction; the DPNA, effective December 24, 2024; the refusal to conduct a revisit survey; termination of the provider agreement, effective March 7, 2025; loss of approval for nurse aide training and competency evaluation programs (NATCEPs); and all other remedies imposed and recommended as a result of the survey cycle. Request for Hearing at 1-2.

In an order dated February 24, 2025, I ordered the parties to file expedited responses addressing the timeliness of the request for hearing and whether Petitioner is entitled to the relief it is seeking. I stated that “it appears that Petitioner may not have timely appealed the substantial noncompliance that led to the imposition of at least one enforcement remedy,” and that Petitioner did not cite a legal basis to challenge all the “remedies” it identified in its request for hearing. I further explained that “it is unclear whether Petitioner may properly challenge each of those ‘remedies.’” I instructed Petitioner to specifically address the following: “[W]hether it has timely appealed the ‘remedies’ identified in its request for hearing and/or whether it has a right to hearing with respect to each of those ‘remedies.’”

Despite my clearly stated concerns regarding Petitioner’s request for hearing, and my explicit order that it address the timeliness of its appeal and/or whether it has a right to a hearing, Petitioner, through its counsel, filed the following, in totality, in response to my order:

In accordance with this Tribunal’s February 24, 2025 Acknowledgement of Receipt of Request for Hearing and Directing Parties to File Responses, Petitioner. . . states as follows:

1. Petitioner’s only hearing and appeal request for the November 21, 2024 survey cycle was submitted on February 21, 2025 in response to the Termination Notice issued February 20, 2025.

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2. The December 9, 2024 Correspondence enclosing the November 21 survey findings has been submitted to the Tribal [sic] per [the] order and is attached herewith.

CMS filed a response on March 5, 2025, in which it argued that the request for hearing should be dismissed. CMS also filed two supporting exhibits, CMS Ex. 1 (March 17, 2023 letter informing Petitioner that it had been selected for the Special Focus Facility (SFF) program) and CMS Ex. 2 (February 28, 2025 email message from CMS providing additional details regarding the termination, to include that payment would continue for Medicare residents residing in the facility prior to December 24, 2024, until April 6, 2025, “to ensure residents are successfully relocated”).

Petitioner has no basis to challenge CMS’s determination to terminate its provider agreement, and it did not otherwise request a hearing to challenge the remedies imposed on December 9, 2024.

Pursuant to sections 1819(h)(2)(B)(ii)(I), 1128A(c)(2), and 1866(h)(1) of the Social Security Act, and 42 C.F.R. Part 498, skilled nursing facilities can appeal certain initial determinations that result from state agency surveys. A facility can appeal an initial determination finding noncompliance that leads to the imposition of certain enforcement actions (i.e., remedies). 42 C.F.R. §§ 488.408(g)(1), 498.3(b)(13). An affected party, such as Petitioner, “must file a request for hearing in writing within 60 days from receipt of the notice of initial, reconsidered, or revised determination unless that period is extended.” 42 C.F.R. § 498.40(a)(2). Pursuant to 42 U.S.C. § 1395cc(b)(2)(A) and 42 C.F.R. § 488.456(b)(1)(i), CMS may terminate a provider agreement if a skilled nursing facility fails to comply with a Medicare participation requirement. As stated in 42 C.F.R. § 488.456(b)(1)(i), substantial noncompliance is a basis to terminate a provider agreement.

The limited evidentiary record indicates that CMS terminated Petitioner’s provider agreement after several surveys yielded findings of noncompliance with Medicare participation requirements. On March 17, 2023, CMS notified Petitioner that it had been selected for the SFF program “based on a persistent pattern of poor compliance history for the past three standard health survey cycles.” CMS Ex. 1 at 1. At that time, CMS cautioned Petitioner that its inclusion in the SFF program could lead to involuntary termination, explaining the following:

SFFs with deficiencies cited at S/S of Immediate Jeopardy (IJ) on any two surveys (standard health, complaint, LSC, or EP) while in the SFF program, will be considered for discretionary termination. Additionally, CMS may terminate the facility’s provider agreement if the facility is not in

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substantial compliance, in accordance with 42 CFR § 488.456(b) and § 489.53.

CMS Ex. 1 at 2. Thereafter, in November 2024, the state agency conducted the extended recertification survey that revealed numerous deficiencies, to include immediate jeopardy noncompliance. DAB E-File Docket Entry No. 5a at 1 (December 9, 2024 letter imposing enforcement remedies and 186-page long statement of deficiencies). Although the December 9, 2024 letter informed Petitioner that a DPNA had been imposed, effective December 24, 2024, and that a NATCEP was prohibited because an extended or partial extended survey had been conducted at the facility, and that termination of Petitioner’s provider agreement had been recommended, Petitioner did not appeal this determination. See Petitioner’s February 24, 2025 Response (acknowledging that the February 21, 2025 request for hearing it filed to challenge CMS’s February 20, 2025 determination is the only request for hearing it has filed during the instant survey cycle); 42 C.F.R. § 498.40(a)(2) (addressing 60-day time limit to file a request for hearing). And even when I ordered Petitioner to “address whether it has timely appealed the ‘remedies’ identified in its request for hearing and/or whether it has a right to hearing with respect to each of those ‘remedies,’” Petitioner did not address these matters in its terse response. Simply stated, Petitioner did not appeal the December 9, 2024 initial determination. Nor has Petitioner claimed that it timely appealed the December 9, 2024 initial determination, to include contesting the remedies imposed or the cited deficiencies underlying those remedies.

The sole new enforcement remedy imposed by CMS in its February 20, 2025, letter captioned, “Involuntary Termination of Medicare Provider Agreement Effective March 7, 2025,” was the termination of Petitioner’s provider agreement.3 Although a skilled nursing facility can appeal a finding of noncompliance resulting in the imposition of an enforcement remedy, it cannot appeal the choice of remedy that CMS imposes. 42 C.F.R. §§ 498.3(b)(13); 488.408(g); see, e.g., Consulate Healthcare at Jacksonville, DAB No. 3119 at 36 (2023) (“The scope of [Departmental Appeals Board] review is limited. We may not review CMS’s choice of remedies . . . .”). CMS may exercise its discretion to proceed with the termination of a facility’s provider agreement when it is not in substantial compliance with participation requirements. See 42 C.F.R. § 488.402(c); see, e.g., Rehab. Ctr. at Hollywood Hills, DAB No. 3052 at 2 (2021). When a facility does not have a right to a hearing, the ALJ may dismiss the request for hearing. 42 C.F.R. § 498.70(b). Inasmuch as Petitioner did not challenge the deficiencies cited during the November 2024 survey, it has no basis to dispute CMS’s imposition of the remedy of termination based on the unappealed findings of

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noncompliance. See Rosewood Living Ctr., DAB No. 2019 at 3 (2006) (stating that a “single deficiency is sufficient to warrant termination if the deficiency causes the facility to be out of substantial compliance”).

I dismiss Petitioner’s request for hearing because it does not have a right to a hearing to challenge its termination after it did not exercise its right to challenge the imposition of enforcement remedies, to include the findings of noncompliance underlying those remedies. See Northlake Nsg. and Rehab. Ctr., DAB No. 2376 at 7 (2011) (“The ALJ did not err in concluding that, in the absence of any challenge to the . . . survey noncompliance findings . . . no relief from the termination could be granted . . . .”).