I deny Petitioner's motion for summary judgment and dismiss its request for hearing. Petitioner has not raised any issue that is within the scope of my authority to decide. There are no facts in dispute in this case, Petitioner has not disputed CMS's substantive findings, and there are no other issues to decide. Accordingly, Petitioner's request for a hearing must be dismissed because it has no right to an appeal as provided by 42 C.F.R. § 498.5. Only issues that are initial determinations as specified in 42 C.F.R. § 498.3 are appealable. Because Petitioner has not sought a hearing to dispute an initial determination, I must dismiss this case. Therefore, this case is dismissed pursuant to 42 C.F.R. § 498.70(b). An affected party may request that an order dismissing a case be vacated pursuant to 42 C.F.R. § 498.72.

I. Background

This case came before me pursuant to a request for hearing filed by Petitioner, Hamilton House Nursing Center, (also "Facility") on June 24, 2002. On April 10, 2002, the Georgia Department of Human Resources (DHR) informed Petitioner that it was accepting its plan of correction concerning the deficiencies found during a complaint survey conducted on March 25, 2002. Petitioner's Exhibit ( P. Ex.) 1. The effective date of the plan of correction was May 1, 2002. On April 25, 2002, five days prior to the completion date of the plan of correction, DHR conducted a standard survey. P. Ex. 2.

On May 2, 2002, DHR notified the Facility that it was recommending that a civil money penalty (CMP) of $300 per day be imposed because it was not in compliance with Medicare and Medicaid requirements. CMS concurred with the recommendation, and so notified the Facility on May 7, 2002. P. Ex. 3.

On June 6, 2002, DHR conducted a revisit survey and determined that the Facility was in substantial compliance with Medicare requirements for skilled nursing facilities effective June 1, 2002. P. Ex. 4.

On March 10, 2003, the parties filed a Joint Briefing Schedule based on Petitioner's announcement that it intended to seek summary judgment. I issued an Order adopting the parties' proposed briefing schedule on March 26, 2002. Petitioner filed a memorandum of law in support of its motion for summary judgment on April 14, 2003. (P Br.), accompanied by 5 proposed exhibits. CMS filed a memorandum of law in response to Petitioner's motion for summary judgment on May 8, 2003 (CMS. Br.), without exhibits. In the absence of objection, I admit Petitioner's proposed exhibits as P. Exs. 1-5. Petitioner submitted a reply brief on May 29, 2003.

Petitioner contends that the only issue in this case is whether DHR improperly scheduled a survey. P. Br. at 1. Petitioner did not dispute the substantive findings of DHR's surveyors in its request for hearing nor in its motion for summary judgement. Consequently, the only issue Petitioner has raised is whether CMS erred, as a matter of law, in conducting a standard survey prior to the "plan of correction's latest date of correction." See Petitioner's Request for Hearing at 2. Petitioner argues that CMS or its agent "improperly scheduled a complaint revisit survey in conjunction with an annual survey". The parties agree that the only issue Petitioner raises concerns the timing and nature of the surveys, and they agree that there are no facts in controversy. It is apparent, therefore, that Petitioner has not raised any issue that is within the scope of my authority to decide. Accordingly, Petitioner's request for a hearing must be dismissed because it has no right to a hearing on an issue that is not an initial determination as specified in 42 C.F.R. § 498.3.

II. Applicable Law and Regulations

Petitioner is a long-term care facility under the Social Security Act (Act) and regulations promulgated by the Secretary of Health and Human Services. The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act, and at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act invest the Secretary of HHS with authority to impose remedies of CMPs and denial of payment for new admissions against a long-term care facility for failure to comply substantially with participation requirements. Pursuant to the Act, the Secretary of HHS has delegated to CMS and the States the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. The applicable regulations at 42 C.F.R. Part 488 provide that facilities which participate in Medicare may be surveyed on behalf of CMS by State survey agencies in order to ascertain whether the facilities are complying with participation requirements. 42 C.F.R §§ 488.10-488.28. The regulations contain special survey conditions for long-term care facilities. 42 C.F.R.§§ 488.300-488.335. Under Part 488, a State or CMS may impose a CMP against along-term care facility where a State Survey Agency ascertains that the facility is not complying substantially with participation requirements. 42 C.F.R. §§ 488.406, 488.408, and 488.430. The penalty may start accruing as early as the date that the facility was first out of compliance until the date substantial compliance is achieved or the provider agreement is terminated.

The Act and regulations make a hearing available before an administrative law judge to a long-term facility against whom CMS has determined to impose a CMP. But, the scope of such hearings is limited to whether an initial determination made by CMS is correct. Act, section 1128A(c)(2); 42 C.F.R. §§ 488.408(g), 498.3(b)(12) and (13). The hearing before an administrative law judge is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd 941 F2d. 678 (8^th Cir. 1991).

III. Issue and Discussion

The issue presented by Petitioner-whether DHR erred in conducting an annual standard survey on April 25, 2002, five days before the completion date of the plan of correction submitted for the March 25, 2002 complaint survey-is not properly before me. As a threshold matter, affected parties only have a right to a hearing to appeal an initial determination. So I need look no further than the threshold issue of whether Petitioner has appealed an initial determination.

Petitioner argues that DHR erred in conducting a standard survey prior to the date of correction for its recently filed Plan of Correction. Petitioner further asserts that the standard survey conducted on April 25, 2002, performed the function of a revisit for the March 25, 2002, complaint survey. Petitioner relies on the CMS State Operations Manual (SOM), Chapter 7, section 7317 in support of its argument that the standard survey should not have been conducted prior to the latest date of correction, if such survey was also performing the function of a revisit survey. The SOM language relied upon by Petitioner is the following:

While the facts of the case are undisputed, they are beside the point, and Petitioner's argument is therefore unavailing. Whether CMS followed the SOM or not is not an initial determination that can be properly brought before me. In fact, the SOM, is a manual of guidelines, it does not provide regulations, and it is not binding on CMS, affected parties, or me. Furthermore, the regulations at Part 498 are clear that hearings before the Departmental Appeals Board are limited in scope to initial determinations. If, for example, Petitioner disputed the deficiencies for which CMS imposed the CMP in this case, that would be an issue that could properly be appealed and brought before me for a decision. But CMS's decision to schedule and conduct surveys, whether the surveys are standard surveys or revisit surveys, is not an initial determination under Part 498-guidelines in the SOM notwithstanding. Moreover, in its reply brief, Petitioner asserts that I should grant it relief on equitable grounds. But, pursuant to Part 498, claims based on equitable or fairness considerations are beyond the scope of my authority to hear and decide also. It follows that I cannot consider the merits of Petitioner's contentions.

IV. Conclusion

I conclude that inasmuch as Petitioner did not dispute the substantive findings underlying the CMP, and since no other issues were raised for a decision, this case must be dismissed. Accordingly, I hereby dismiss Petitioner's request for hearing pursuant to 42 C.F.R. § 498.70(b). An affected party may request that an order dismissing a case be vacated pursuant to 42 C.F.R. § 498.72.