CASE | DECISION | JUDGE

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Southwood Care Center

Petitioner,

DATE: April 16, 2003
                                          
             - v -

 

Centers for Medicare & Medicaid

 

Docket No.C-03-165
Decision No. CR1029
DECISION
...TO TOP

DECISION

Petitioner's request for hearing is dismissed pursuant to 42 C.F.R. § 498.70(b), because Petitioner has no right to a hearing on the facts of this case.

I. Procedural History

Petitioner's facility was surveyed by the Texas Department of Human Services (the State agency) on August 8, 2002 and September 23, 2002. The State agency determined that Petitioner was not in compliance with the requirements for participation in the Medicare and Medicaid programs. The State agency notified Petitioner by letter dated October 8, 2002, that it recommended that the Centers for Medicare & Medicaid Services (Respondent) impose a Denial of Payment for New Admissions (DPNA) effective November 8, 2002 and continuing until such time as Petitioner achieved substantial compliance. The State agency conducted a revisit of Petitioner's facility on November 20, 2002, and determined that Petitioner achieved substantial compliance effective October 24, 2002 - before the effective date of the DPNA. Respondent represents and there is no dispute that no other remedies were imposed. Respondent never took action to effectuate the DPNA.

Petitioner requested a hearing by letter dated December 4, 2002, arguing generally that limitations on its appeal rights are an unconstitutional denial of due process, that the allegations of deficiencies are unfounded, and that the DPNA was unreasonable. The case was assigned to me for hearing and decision on January 7, 2003 and a Notice of Case Assignment and Prehearing Case Development Order was issued at my direction on that date. On February 18, 2003, Respondent moved to dismiss the request for hearing on grounds that no enforcement remedy was imposed, thus Petitioner had no right to a hearing. Petitioner has filed no response to the motion to dismiss and Respondent's assertions are unchallenged.

II. Discussion

A. ISSUE

Whether Petitioner has a right to hearing when no enforcement remedy is imposed.

B. APPLICABLE LAW

It is well settled that a Petitioner, under the circumstances of this case, has a right to a hearing before an administrative law judge only when Respondent imposes an enforcement remedy. See 42 C.F.R. §§ 488.330(e)(3), 488.408(g) and 498.3(b)(13); see also Lakewood Plaza Nursing Center, DAB No. 1767 (2001). Absent an enforcement remedy, a petitioner has no right to appeal and dismissal is appropriate pursuant to 42 C.F.R. § 498.70(b).

C. ANALYSIS

Petitioner has filed no response to Respondent's motion to dismiss and the facts alleged by Respondent are uncontested.

In this case, the State agency found Petitioner not in substantial compliance on an initial and follow-up survey and recommend imposition of a DPNA. Petitioner was so advised by letter from the State agency and that notice included advice of Petitioner's right to request a hearing. However, prior to the imposition of the DPNA, the State agency found on revisit that Petitioner had achieved substantial compliance and the DPNA was not effectuated. Hence, there exists no enforcement remedy in this case to trigger the right to request a hearing or my exercise of jurisdiction.

Respondent filed its motion to dismiss on February 18, 2003. Pursuant to 42 C.F.R. § 498.17(b), Petitioner had 20 days to respond or until March 11, 2003. More than 30 days has elapsed and Petitioner has filed no response. Petitioner, having filed no response to the motion to dismiss, has asserted no other grounds for a right to hearing. Further, I perceive no other basis for jurisdiction from Petitioner's request for a hearing.

III. Conclusion

For the foregoing reasons, Petitioner's request for hearing is dismissed. However, pursuant to 42 C.F.R. § 498.72, the parties may request that the dismissal be vacated.

JUDGE
...TO TOP

Keith W. Sickendick

Administrative Law Judge

CASE | DECISION | JUDGE