SUBJECT:

Charlesgate Nursing Center,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION DISMISSING

I grant the motion of the Centers for Medicare & Medicaid Services (CMS, formerly known as Health Care Financing Administration or HCFA) to dismiss the request for hearing filed by Petitioner, Charlesgate Nursing Center. I do so because Petitioner no longer has a right to a hearing in this case.

I. Background and undisputed material facts

Petitioner is a skilled nursing facility that participates in the Medicare program and which is located in Providence, Rhode Island. During an annual recertification survey completed on May 26, 2000, surveyors from the Rhode Island Department of Health (RIDOH), a State survey agency, identified twelve deficiencies, three of which were at a level G of noncompliance. Based on the RIDOH's report, CMS determined to impose a civil money penalty (CMP) on Petitioner of $1,000 per day from the period of May 26, 2000 through July 26, 2000. Petitioner requested a hearing to challenge CMS's determination to impose a CMP and the deficiencies identified during the May 26, 2000 survey.⁽¹⁾ After Petitioner's request for hearing, CMS reopened its initial determination to impose a CMP on or about January 10, 2001. Thereafter, CMS rescinded the CMP. CMS has imposed no other enforcement remedy.

CMS moved to dismiss Petitioner's hearing request. Petitioner opposes the motion to dismiss.

II. Issue, findings of fact and conclusions of law

A. Issue

The issue in this case is whether Petitioner continues to have a right to a hearing in light of CMS's determination to rescind the CMP that it previously had determined to impose against Petitioner.

B. Findings of fact and conclusions of law

I make the following findings of fact and conclusions of law (Findings) to support my decision that Petitioner no longer has a right to a hearing. I discuss my Findings in detail, below.

1. CMS lawfully exercised its non-reviewable discretion to reopen and revise its determination.

Within 12 months of the date of an initial determination, CMS has the authority to reopen and revise that determination. 42 C.F.R. §§ 498.30 and 498.32. In this case, CMS's notice of its initial determination is dated October 4, 2000, and CMS determined to reopen and rescind the initial determination on or about January 10, 2001. CMS acted within its discretion to reopen and revise its initial determination well within the 12 month reopening period required under 42 C.F.R. §§ 498.30 and 498.32 . Consent was not needed from Petitioner. Lutheran Home-Calendonia, DAB CR674 (2000).

2. Petitioner has no right to a hearing in the absence of a determination by CMS to impose a remedy against Petitioner.

A skilled nursing facility's hearing rights in any case involving CMS are established by federal regulations. A facility has a right to a hearing to contest any "initial determination" by CMS 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)(13). The remedies that are specified at 42 C.F.R. § 488.406 include civil money penalties. 42 C.F.R. § 488.406(a)(3). There is no provision in 42 C.F.R. § 498.3(b) or elsewhere in the regulations for a hearing in the case where CMS does not determine to impose a remedy against a skilled nursing facility.

The undisputed fact of this case is that CMS determined to impose civil money penalties against Petitioner. That determination created a hearing right which Petitioner exercised. However, subsequently, CMS determined to rescind its civil money penalty determinations. That subsequent determination by CMS extinguished any hearing right that Petitioner had. Once CMS determined to rescind all remedies, Petitioner no longer had any right to a hearing.

It is CMS's decision to impose the specified remedies, and not the finding of noncompliance, which triggers an adversely affected facility's right to obtain an administrative hearing. The information provided by the Secretary of Health and Human Services in promulgating the regulations concerning what is an initial determination explicitly rejected the proposal to make every finding of noncompliance appealable:

Comment: Several commentators wanted a right to appeal all deficiencies even if no remedy was imposed.

Response: We are not accepting this suggestion because if no remedy is imposed, the provider has suffered no injury calling for an appeal . . .

59 Fed. Reg. 56158 (1994) (emphasis added).

Therefore, if CMS has made findings of noncompliance against a facility but has issued none of the designated enforcement remedies which trigger appeal rights under 42 C.F.R. § 498.3(b)(13), then the facility cannot seek or obtain relief from this forum. The facility may obtain administrative review of the noncompliance determinations only if they have resulted in CMS's imposing one of the enumerated remedies which are considered by the Secretary to have caused an "injury calling for an appeal." Id.; 42 C.F.R. § 498.3(b)(13). Petitioner argues that even in the absence of any enforcement remedy imposed by CMS, the existence of those citations cause other injuries which are in need of redress in that the alleged deficiencies have not been removed from the facility's record and that current or prospective residents or their families have access to the data concerning deficiencies from a Form 2567 when nursing homes are compared on-line. However, in the absence of any enforcement remedy, the merits of the underlying noncompliance citations themselves cannot be reviewed in this forum, even if those citations are in the public domain, and even if the facilities think that they will be harmed by the existence of those citations. Arcadia Acres, Inc., DAB CR424 (1996), aff'd, DAB No. 1607 (1997); Schowalter Villa, DAB CR568, aff'd, DAB No. 1688 (1999); Lutheran Home-Caledonia, supra.

The regulations and prior decisions are clear-there is no right to a hearing where deficiencies are identified, but where CMS has thereafter rescinded the initial determination to impose a CMP, and no other enforcement remedy has been imposed. Woodland Care Center, DAB CR659 (2000); Fort Tryon Nursing Home, DAB CR425 (1996); See also 59 Fed. Reg. 56116, 56158 (1994).

Petitioner also argues that a denial of the right to a hearing on the merits of the deficiencies is an unconstitutional violation of its due process rights and a violation of the Administrative Procedure Act. I do not have the authority to hear and decide these arguments. My authority in cases involving CMS is limited to hearing and deciding those issues which the Secretary of this Department has delegated authority for me to hear and decide. That authority is specified at 42 C.F.R. §§ 498.3; 498.5. The regulations authorize me only to hear and decide cases involving specified initial determinations by CMS. I do not have the authority to decide constitutional issues. I also lack the authority to decide whether CMS or the Secretary published an interpretation of law in violation of the Administrative Procedure Act.

In addition, Petitioner claims that under the Supreme Court's decision in Shala v. Illinois Council on Long Tem Care, Inc., 120 S.Ct. 1084 (2000), granting a Motion to Dismiss would mean no review at all. However, even Petitioner agrees that Illinois Council does not apply to an Administrative Law Judge conducting an administrative hearing and asks that I extend it. I decline to do so in the face of the plain language of the regulations.

III. Conclusion

I grant CMS's motion to dismiss Petitioner's hearing request.

Richard J. Smith

Administrative Law Judge

1. Petitioner's request for hearing also asks that I review the deficiency identified during the April 13, 2000 complaint survey. This deficiency did not result in the imposition of an enforcement remedy and is therefore not subject to appeal. See 42 C.F.R. § 498.3 (b)(13).