SUBJECT:

Collins Health Care Center,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

I find that Petitioner, a long-term care facility participating in the Medicare and Medicaid programs, is not entitled to a hearing because the remedy imposed against it by the Centers for Medicare & Medicaid Services (CMS), the loss of its nurse aide training program, has been rescinded.

I. Background

As a result of a survey completed on February 13, 2001, and a revisit survey conducted from February 15 - 20, 2001, the Pennsylvania Department of Health recommended the following remedies against Petitioner: (1) termination of its provider agreement on August 13, 2001; (2) a per instance civil money penalty (CMP) of $10,000; and (3) an immediate denial of payment for new admissions. CMS Ex. 1. ⁽¹⁾ Petitioner contested these remedies in a request for hearing filed on April 13, 2001. The case was docketed as Docket No. C-01-590. CMS rescinded the above remedies and, pursuant to Petitioner's withdrawal of its request for hearing, I dismissed Docket No. C-01-590 on August 16, 2001.

A companion case arose when, on March 8, 2001, the Commonwealth of Pennsylvania, Department of Public Welfare, Office of Medical Assistance Programs, notified Petitioner that approval of its nurse aide training program had been withdrawn pursuant to 42 U.S.C. § 1396r(f)(2)(B), due to a finding of substandard quality of care. CMS Exs. 4, 7. Petitioner contested that action in a request for hearing filed on April 24, 2001. That case was docketed as Docket No. C-01-642, and is the case now before me.

By letter dated November 5, 2001, CMS notified the State that, upon a review of the case, it had determined that while the deficiency was appropriately cited as an immediate jeopardy situation, the survey team did not complete all of the required steps of the survey process in order to sustain a revocation of Petitioner's nurse aide training program. Specifically, the State had failed to conduct, as required by statute, an extended survey within 14 days after the survey that resulted in a finding of substandard quality of care. CMS noted that it is the actual conduct of the extended survey, and not just the original finding, which results in the loss of a nurse aide training program. Because the survey team did not conduct an extended survey within 14 days after completion of the survey that identified the substandard quality of care, Petitioner's nurse aide training program had to be "reinstituted." CMS Ex. 7. In view of that letter, the State advised the facility administrator, by letter dated November 30, 2001, that CMS had directed that their nurse aide training program be restored. CMS Ex. 6.

On January 11, 2002, CMS filed a motion and brief in support of dismissal, contending that Petitioner is no longer entitled to a hearing inasmuch as the sole remedy in this action has been rescinded. Petitioner countered with a response brief on February 22, 2002. Petitioner contends that the 1999 amendments to the Code of Federal Regulations make the loss of a facility's nurse aide training program "an initial determination" subject to an evidentiary hearing before an administrative law judge. CMS submitted a reply brief.

II. Finding of Fact and Conclusion of Law

1. Petitioner has no right to a hearing because the remedy imposed against it, the loss of approval for Petitioner's nurse aide training program, has been rescinded by CMS.

It is well settled that, once CMS rescinds the remedies it has previously imposed, a petitioner no longer has a right to a hearing. Lakewood Plaza Nursing Center, DAB No. 1767 (2001). The remedies imposed may be rescinded by CMS even if many months have transpired since the initial determination and notwithstanding that such action comes on the eve of a hearing.

Petitioner's contention, that it is entitled to an evidentiary hearing because the regulations now make a hearing available to a facility that loses its nurse aide training program when there has been a finding of substandard quality of care, is misplaced. CMS does not dispute that the revised regulation at 42 C.F.R. § 498.3(b) now allows a facility to appeal a finding of substandard quality of care that leads to the loss of approval of its nurse aide training program. CMS Reply Brief at 2. However, the issue is not whether a facility has a right to a hearing to dispute a finding of substandard quality of care that leads to loss of a nurse aide training program. Instead, the issue is whether any matters remain for adjudication once CMS rescinds the sole remedy directed at a facility - which here happens to be the recision of the loss of approval for Petitioner's nurse aide training program. Thus, contrary to what Petitioner argues, those cases cited by CMS that stand for the proposition that, once CMS rescinds a cited remedy no issue remains for adjudication, are applicable here. It does not matter that they predate the regulatory amendment that made the loss of a nurse aide training program an initial determination. See Lakewood Plaza, DAB No. 1767; Schowalter Villa, DAB CR568 (1999). The precedents established by these cases survive the regulatory amendments in question and are the basis on which I conclude that, once the sole remedy present in this case has been rescinded, there is nothing for me to decide. Thus, Petitioner's suggestion that I hold an evidentiary hearing to assess the propriety of the deficiency findings, and that I provide it redress for any harm it suffered as a result of the loss of its nurse aide training program, is outside the purview of my authority under the applicable statutory and regulations provisions.

III. Conclusion

For the reasons stated above, I grant CMS's motion to dismiss. Accordingly, this case, including all issues Petitioner has attempted to raise, is hereby dismissed.

Jose A. Anglada

Administrative Law Judge

1. CMS submitted seven exhibits with its briefs (six exhibits with its initial brief and one exhibit with its reply brief), to which Petitioner did not object. Accordingly, I admit CMS Exs. 1 - 7 into evidence.