CASE | DECISION | JUDGE

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


SUBJECT:

Heritage Manor of Franklinton

Petitioner,

DATE: May 2, 2000
                                          
             - v -

 

Health Care Financing Administration


 

Docket No.C-99-812
Decision No. CR666
DECISION
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I grant the motion of the Health Care Financing Administration (HCFA) to dismiss the request for hearing filed by Petitioner, Heritage Manor of Franklinton. I do so because Petitioner no longer has a right to a hearing in this case. In reaching this decision, I have considered HCFA's motion to dismiss and the four exhibits provided by HCFA. Petitioner has not filed a response to HCFA's motion to dismiss.

Background and Undisputed Material Facts

The undisputed material facts establish that Petitioner is a skilled nursing facility that participates in the Medicare program and is located in Franklinton, Louisiana. On July 21, 1999, HCFA informed Petitioner by letter that it intended to impose certain remedies against Petitioner. HCFA apprised Petitioner that the remedies were being imposed because Petitioner had failed to remain in substantial compliance with federal participation requirements which govern long-term care facilities, including skilled nursing facilities that participate in the Medicare program. The specific remedies proposed were the denial of payment for new admissions and termination from the Medicare program. These remedies were proposed based on deficiencies found during a survey of Petitioner completed on July 2, 1999 by the Louisiana Department of Health and Hospitals(LDHH).

On August 5, 1999, LDHH conducted a revisit of Petitioner and found that Petitioner was in substantial compliance with the requirements for participation in the Medicare program. HCFA informed Petitioner, via facsimile, on August 17, 1999, that based on the LDHH revisit findings, the proposed denial of payment for new admission and the proposed termination had been rescinded. On August 17, 1999, Petitioner acknowledged receipt of HCFA's notification of rescission of all of HCFA's proposed remedies. However, on September 16, 1999, Petitioner requested a hearing to contest the findings of the survey completed on July 2, 1999.

HCFA maintains that it contacted Petitioner's administrator, Mr. Harold Smith, informing him that all remedies had been rescinded, and further asking that Petitioner withdraw its hearing request. Petitioner did not withdraw its request, and HCFA subsequently filed a motion to dismiss. HCFA argues that because HCFA had rescinded all remedies proposed in the case, Petitioner has no right to a hearing. Petitioner was afforded over two months to respond to HCFA's motion. As of the date of this decision, Petitioner has not filed a response to the motion.

Issue

The issue in this case is whether Petitioner continues to have a right to a hearing in light of HCFA's decision to rescind all of the remedies that it imposed against Petitioner.

Finding of Fact and Conclusion of Law

Based on the evidence before me and my review of the applicable law, I make the following finding of fact and conclusion of law:

(1) Petitioner has no right to a hearing in the absence of a determination by HCFA to impose a remedy against Petitioner.

Accordingly, I grant HCFA's motion and order that this case be dismissed. I discuss this finding below.

Discussion

The hearing rights of a long-term care facility in any case involving HCFA are established by federal regulations. The regulations applicable to this case provide that a facility has a right to a hearing to contest any "initial determination" by HCFA that is described at 42 C.F.R. § 498.3(b). An appealable initial determination includes:

a finding of noncompliance [with participation requirements] that results in the imposition of a remedy specified in [42 C.F.R.] § 488.406 ....

42 C.F.R. § 498.3(b)(12). Remedies specified at 42 C.F.R. § 488.406 include termination of the provider agreement and denial of payment for new admissions. There is no provision in 42 C.F.R. § 498.3(b) or elsewhere in the regulations for a hearing in a case where HCFA does not determine to impose a remedy against a long-term care facility.

HCFA cites the aforementioned regulations in its motion and argues that while HCFA initially decided to impose remedies against Petitioner, HCFA subsequently rescinded its remedies. According to HCFA, its decision to rescind all of the remedies extinguished any hearing right that Petitioner may have had. HCFA's argument is compelling.

The facts in this case are undisputed. Based on my review of the plain language of the relevant regulations and the arguments advanced by HCFA, I find that HCFA's determination to rescind all remedies in this case extinguished Petitioner's right to a hearing in this matter. Once HCFA chose to rescind each and every remedy, Petitioner no longer had a right to a hearing. I agree with the analysis of Judge Kessel as cited by HCFA in the case of Jacinto City Healthcare Center, DAB CR627 (1999).

Accordingly, I grant HCFA's motion to dismiss and order this case dismissed.

 
JUDGE
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Alfonso J. Montano

Administrative Law Judge

 

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