SUBJECT:

Alpine Inn Care, Inc., d/b/a Ansley Pavilion,

Petitioner,

Health Care Financing Administration

I GRANT the Health Care Financing Administration's (HCFA) motion to dismiss, for the reasons set forth below. I do not rule on Petitioner's motion for summary disposition, as it is moot in light of the fact that I am dismissing this case.

BACKGROUND

By notice letter dated July 1, 1999, HCFA informed Petitioner that it was imposing the remedy of a civil money penalty (CMP) against Petitioner. HCFA apprised Petitioner that the CMP of $50 per day, effective April 7, 1999, was being imposed because Petitioner had failed to maintain substantial compliance with federal participation requirements which govern long-term care facilities, including skilled nursing facilities that participate in the Medicare program. HCFA stated that the CMP would continue until either Petitioner made the necessary corrections to achieve substantial compliance with program requirements or its provider agreement was terminated. HCFA informed Petitioner that the termination date was set for October 7, 1999, and, additionally, if Petitioner had not achieved compliance by July 16, 1999, the remedy of denial of payments for new admissions would go into effect. According to HCFA's July 1, 1999 notice letter, these remedies were based on findings made during revisit surveys of Petitioner completed on June 1 and June 17, 1999, by the Georgia State Survey Agency.

Petitioner filed a request for hearing dated July 2, 1999, contesting the determination contained in HCFA's July 1, 1999 notice letter. The case was originally assigned to Administrative Law Judge Steven T. Kessel.

Judge Kessel issued an Order to Show Cause to Petitioner on May 3, 2000, for Petitioner's failure to submit a filing in accordance with his Order dated February 8, 2000. In its response to the Order to Show Cause, Petitioner provided an explanation for its failure to file in a timely manner. Judge Kessel accepted Petitioner's explanation and received, as timely filed, Petitioner's Readiness Report, which Petitioner had also submitted. Subsequently, Petitioner filed a motion for summary disposition. HCFA filed a response and also a motion to dismiss Petitioner's hearing request, asserting that because HCFA had rescinded the imposition of the CMP and had not imposed any other remedies, Petitioner no longer had a right to a hearing. Accompanying HCFA's submission were two exhibits, HCFA Ex. 1 and HCFA Ex. 2. Petitioner filed a reply brief, and submitted with it a letter from HCFA dated July 10, 2000.

This case was transferred to the undersigned on August 4, 2000.⁽¹⁾

Neither party has objected to the opposing party's exhibits. Accordingly, I am receiving HCFA Ex. 1 and HCFA Ex. 2 into evidence. I am identifying the July 10, 2000 HCFA letter that was submitted with Petitioner's reply brief as P. Ex. 1 and also receiving it into evidence.

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 the remedy 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 to dismiss. 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, denial of payment for new admissions, and civil money penalties. 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.

In this case, HCFA points to the fact that, on July 10, 2000, it sent Petitioner a letter rescinding the imposition of the $50 per day civil money penalty. HCFA Ex. 1; P. Ex. 1. This letter states explicitly, "Based on the results of the informal dispute resolution, the [sic] HCFA is rescinding the imposition of the civil money penalty." HCFA states further that no other remedies were imposed as a result of the survey findings. HCFA Response, at 1; See HCFA Ex. 2. Consequently, HCFA argues that under 42 C.F.R. § 498.3(b)(12), Petitioner no longer has any appeal rights. I agree.

I note that Petitioner does not dispute that the CMP was rescinded by HCFA. In fact, in its reply, Petitioner states that it had "resolved the matter with the Georgia Department of Human Resources in an informal dispute resolution process." P. Reply, at 1. Moreover, Petitioner refers to HCFA's July 10, 2000 letter, which it had attached to its reply (identified now as P. Ex. 1), and acknowledges the rescission of the CMP remedy. Id.; P. Ex. 1.

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. Case law is clear that when HCFA rescinds all outstanding remedies against a facility, the rescission determination has the effect of eliminating any hearing rights the facility may have had under 42 C.F.R. § 498.3(b)(12). Schowalter Villa, DAB CR568, at 2 (1999), aff'd, DAB No. 1688 (1999).

Accordingly, I grant HCFA's motion to dismiss and order this case dismissed. I do not rule on Petitioner's motion for summary disposition, as it is moot in light of the fact that I am dismissing this case.

Alfonso J. Montano

Administrative Law Judge

1. By letter motion dated August 9, 2000, which referenced several cases, including this case, Petitioner stated that its "legal name is Alpine Inn Care, Inc., dba Ansley Pavilion" and requested that the captions in the cases be styled as such. HCFA did not oppose Petitioner's request. Accordingly, I am granting Petitioner's motion, but only as it relates to this case.