CASE | DECISION | JUDGE | FOOTNOTES

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


SUBJECT:

Santa Monica Pavilion,

Petitioner,

DATE: January 13, 2003
                                          
             - v -

 

Centers for Medicare & Medicaid Services

 

Docket No.C-02-343
Decision No. CR993
DECISION
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DECISION

This case presents the narrow question as to whether a long-term care facility has a right to hearing when the state survey agency cites deficiencies but the Centers for Medicare & Medicaid Services (CMS) declines to impose any of the enforcement remedies provided for in 42 C.F.R. § 488.406. I conclude that the facility is not entitled to a hearing and grant CMS's motion to dismiss.

Petitioner, Santa Monica Pavilion, is a long-term care facility certified to participate in the Medicare and Medicaid programs as a provider of services. On September 17, 2001, the California Department of Health Services (CDHS) conducted an annual recertification survey to see if Petitioner was in compliance with federal program requirements for nursing homes as specified at 42 C.F.R. Part 483. As a result of the September 17, 2001 survey, CDHS notified Petitioner by letter dated September 27, 2001 that it was not in substantial compliance with the federal participation requirements. Petitioner was found not to be in compliance with 42 C.F.R. § 483.25(c).

CDHS conducted a follow-up survey on November 13, 2001 and determined that Petitioner was now in compliance and that the deficiencies (1) cited during the September 17, 2001 survey had been corrected. Moreover, CMS did not take any action against Petitioner based on the recommendations made by CDHS, pursuant to the survey on September 17, 2001.

Petitioner requested a hearing before an Administrative Law Judge (ALJ). CMS moved to dismiss Petitioner's hearing request. Summary disposition is appropriate in this case because there are no disputed issues of material fact, and the only question presented for decision involves the application of law to the undisputed facts.

1. Petitioner has no right to a hearing if CMS has not imposed a remedy. (2)

The hearing rights of a long-term care facility are established by federal regulations at 42 C.F.R. Part 498. A provider dissatisfied with an initial determination by CMS is entitled to further view, but administrative actions that are not initial determinations are not subject to appeal. 42 C.F.R. § 498.3(d). The regulations specify which actions are "initial determinations" and set forth examples of actions that are not. A finding of noncompliance that results in the imposition of a remedy specified in 42 C.F.R. § 488.406 is an initial determination for which a facility may request a hearing before an ALJ. 42 C.F.R. § 498.3(b)(13). Unless the finding of noncompliance results in the imposition of a specified remedy, the finding is not an initial determination. 42 C.F.R. § 498.3(d)(10)(ii). Thus, under the plain language of the regulations, there exists no hearing right if CMS has not imposed one of the remedies specifically listed in 42 C.F.R. § 488.406. Schowalter Villa, DAB No. 1688 (1999).

Petitioner is therefore not entitled to an ALJ hearing. I grant CMS's motion to dismiss and order this case dismissed.

JUDGE
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Carolyn Cozad Hughes

Administrative Law Judge

FOOTNOTES
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1. State survey agencies recommend remedies, but CMS has the final authority to decide which, if any, remedies will be imposed.

2. There being no dispute of fact in this case, I make this one conclusion of law.

CASE | DECISION | JUDGE | FOOTNOTES