Yorkshire Health Care Center, DAB CR477 (1997)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: Yorkshire Health Care Center, Petitioner,
- v. -
Health Care Financing Administration.

DATE: June 9, 1997

Docket No. C-97-026
Decision No. CR477

DECISION

During the prehearing conference in the above-captioned
case, it came to my attention that Petitioner was seeking
a hearing to challenge the merits of certain survey
findings even though the Health Care Financing
Administration (HCFA) has taken no enforcement actions
against Petitioner based on those survey findings. In
earlier issued decisions, I had concluded on the basis of
42 C.F.R. § 498.3(b)(12) and (d)(1) that HCFA's findings
of deficiencies are not reviewable by an administrative
law judge unless they resulted also in HCFA's decision to
impose at least one of the enforcement remedies specified
in 42 C.F.R. § 488.406. E.g., Arcadia Acres, Inc., DAB
CR424 (1996), aff'd DAB 1607 (1997); Country Club Center,
II, DAB CR433 (1996), aff'd DAB 1614 (1997). I discussed
also in those decisions my conclusion that, because HCFA
has the right to revise and rescind its own
determinations, providers do not retain any right to a
hearing when HCFA has rescinded its previously made
decisions to impose enforcement remedies. Id.

I advised the parties of my earlier decisions and
directed Petitioner to show cause in writing why this
action should not be dismissed.

In accordance with the schedule I had established, the
parties have filed their briefs and their supporting
documents. 1/ The parties' submissions establish the
following facts material to the disposition of this case:

1. By letter dated January 4, 1996, HCFA
notified Petitioner that, based on the results
of surveys conducted in August and October of
1995, HCFA would impose the enforcement remedy
of denying payments for all new Medicare and
Medicaid admissions (DPNA) effective on January
24, 1996, and would terminate Petitioner's
participation in the Medicare and Medicaid
programs on February 17, 1996. P. Ex. 6.

2. By letter dated February 20, 1996, HCFA
notified Petitioner that, because a revisit
survey conducted on January 18, 1996 had found
Petitioner in compliance with federal
participation requirements, the enforcement
remedies of DPNA and termination would not be
imposed against Petitioner. HCFA Ex. 3.

3. By letter dated July 30, 1996, HCFA
reconfirmed for Petitioner that no remedies had
been enforced against Petitioner on the basis
of the surveys conducted in August and October,
1995. P. Ex. 7.

4. Petitioner filed a request for hearing
dated August 28, 1996 in order to challenge the
findings of deficiencies made during the
surveys conducted in August 1995, October 1995,
and on January 18, 1996. P. Ex. 8.

5. There is no evidence showing that any
enforcement remedy listed in 42 C.F.R. §
488.406 has in fact been taken by HCFA against
Petitioner on the basis of those survey
findings Petitioner is seeking to challenge.

Based on the foregoing facts and for the reasons I
discussed in Arcadia and Country Club, I conclude that
Petitioner does not have a right to a hearing under 42
C.F.R. Part 498.

Accordingly, I dismiss Petitioner's hearing request
pursuant to 42 C.F.R. § 498.70(b).


Mimi Hwang Leahy
Administrative Law Judge


* * * Footnotes * * *

1. Petitioner submitted eight exhibits (P.
Ex.) with its brief. HCFA submitted six exhibits (HCFA
Ex.) with its brief. Neither party has objected to my
receiving into evidence the exhibits offered by the other
party. Therefore, I receive into evidence P. Exs. 1 - 8
and HCFA Exs. 1 - 6.