SUBJECT:

Essex Meadows Health Center,

Petitioner,

Centers for Medicare & Medicaid

DECISION

DISMISSING REQUEST FOR HEARING

I dismiss the hearing request of Petitioner, Essex Meadows Health Center. The Centers for Medicare & Medicaid Services (CMS) imposed no remedy against Petitioner, and consequently, Petitioner has no right to a hearing.

I. Background

The essential facts of this case are not in dispute. CMS offered three exhibits to support its motion to dismiss, CMS Exhibit (Ex.) 1, CMS Ex. 2, and CMS Ex. 3, and Petitioner has not objected to my receiving these exhibits. Therefore, I receive them into the record.

Petitioner is a skilled nursing facility that is located in Essex, Connecticut. Petitioner participates in the Medicare program and its participation is governed by sections 1819 and 1866 of the Social Security Act as well as by federal regulations at 42 C.F.R. Parts 483, 488, and 498. On January 17, 2003, Petitioner was surveyed for compliance with Medicare participation requirements. The surveyors concluded that Petitioner failed to comply substantially with the participation requirement that is stated at 42 C.F.R. � 483.70(a) (incorporating the 1985 edition of the Life Safety Code of the National Fire Protection Association). CMS Ex. 1. On January 28, 2003, CMS sent Petitioner a notice in which it advised Petitioner of the noncompliance finding and told Petitioner that remedies would be imposed, including denial of payment for new Medicare admissions, and termination of participation in Medicare, if Petitioner did not achieve substantial compliance with participation requirements. CMS Ex. 2. ⁽¹⁾

Petitioner then submitted documentary proof, including a plan of correction, to show that it had corrected the deficiency identified in the report of the January 17, 2003 survey. CMS accepted this proof. On June 30, 2003, CMS sent Petitioner a letter in which it informed Petitioner that it had attained substantial compliance with participation requirements. CMS Ex. 3. The letter stated explicitly that:

As a result of achieving substantial compliance, no enforcement remedies will be imposed.

Id.

Petitioner then requested a hearing. The case was assigned to me for a hearing and a decision. CMS moved to dismiss Petitioner's hearing request and Petitioner opposed the motion.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Petitioner has a right to a hearing; and

2. I must dismiss Petitioner's hearing request.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. Petitioner has no right to a hearing.

A facility does not have a right to a hearing to challenge any action by CMS with which it disagrees. Only certain actions create hearing rights. In general, a Medicare participating skilled nursing facility will have a right to a hearing if CMS makes an initial determination to impose a remedy against that facility. 42 C.F.R. � 498.3(b)(13).

The possible remedies that CMS might impose against a facility are specified at 42 C.F.R. � 488.406(a). No right to a hearing exists pursuant to 42 C.F.R. � 498.3(b)(13), unless CMS determines to impose - and actually imposes - one of the specified remedies. Lutheran Home - Caledonia, DAB CR674 (2000), aff'd DAB No. 1753 (2000); Schowalter Villa, DAB CR568 (1999), aff'd DAB No. 1688 (1999); Arcadia Acres, Inc., DAB CR424 (1996), aff'd DAB No. 1607 (1997). Indeed, the Secretary of Health and Human Services (Secretary) specifically rejected a proposal to grant hearing rights for deficiency findings that were made without the imposition of remedies. 59 Fed. Reg. 56116, 56158 (Nov. 10, 1994).

Petitioner does not have a right to a hearing because CMS did not impose any of the remedies that are specified at 42 C.F.R. � 488.406(a). The undisputed facts establish that CMS determined that Petitioner was deficient and warned Petitioner that it would impose remedies against Petitioner unless Petitioner corrected its deficiency. CMS Ex. 2. Petitioner corrected its deficiency and CMS did not impose a remedy. CMS Ex. 3.

Petitioner argues that it was compelled by CMS to develop and implement a plan of correction addressing a deficiency which, in Petitioner's opinion, was not present. It asserts that it had to expend time and funds in order to develop and implement the plan and was thus injured by what it characterizes as CMS's incorrect deficiency finding. In Petitioner's view, the requirement that it develop and implement a plan of correction to address the alleged deficiency is a remedy about which it has a right to a hearing.

Petitioner is correct in asserting that it was required to develop and to implement a plan of correction as a consequence of CMS's deficiency finding. But, that requirement did not give Petitioner a right to a hearing. That is because the regulations do not list the requirement that a deficient facility develop and implement a plan of correction as a "remedy" imposed by CMS or pursuant to CMS's direction.

The regulations provide, with an exception that is not relevant to this case, that each facility that has a substantial deficiency or deficiencies must submit a plan of correction for approval by CMS or by a State survey agency. 42 C.F.R. � 488.402(d)(1). ⁽²⁾ Petitioner was required to develop and submit its plan of correction in order to comply with this regulatory requirement. However, the general requirement that a noncompliant facility develop and submit a plan of correction is not one of the remedy determinations that is described as creating hearing rights pursuant to 42 C.F.R. �� 498.3(b)(13) and 488.406(a).

There are circumstances where imposition of a plan of correction does constitute a remedy and where a facility has a right to a hearing to challenge the underlying deficiency findings. But, those circumstances do not apply here. Under 42 C.F.R. �� 498.3(b)(13) and 488.406(a), a facility has a right to a hearing if CMS determines that the facility must comply with a directed plan of correction. 42 C.F.R. � 488.406(a)(7). However, a "directed plan of correction" is not the same as a "plan of correction" of the type that Petitioner submitted and implemented. A directed plan of correction is specifically developed by CMS or by a State survey agency or by a facility's temporary manager (with CMS or State approval) and the facility is directed to comply with it. 42 C.F.R. � 488.424. Under a directed plan of correction there are specific corrective actions that are imposed on a facility by CMS or the State. That is different from the plan of correction that Petitioner was required to develop on its own and comply with pursuant to 42 C.F.R. � 488.402(d)(1).

Petitioner argues also that it had received a waiver from the State of Connecticut for the installation that was the basis for the Life Safety Code deficiency finding that was made at the January 17, 2003 survey of Petitioner. Petitioner contends that, in effect, it was caught between the conflicting findings of two agencies that have jurisdiction over it and that it should not be penalized further by being denied the right to a hearing.

I make no findings here as to what waivers Petitioner may have received from the State of Connecticut. Petitioner has no right to a hearing before me regardless of the bureaucratic cross currents that may have buffeted Petitioner because CMS has not imposed any remedy against Petitioner which gives rise to a hearing right.

2. I must dismiss Petitioner's hearing request because Petitioner has no right to a hearing.

I must dismiss Petitioner's hearing request in this case because it has no right to a hearing. 42 C.F.R. � 498.70(b).

Steven T. Kessel

Administrative Law Judge

1. The notice inaccurately stated that Petitioner's deadline for compliance was January 17, 2003, when, in fact, the actual deadline was April 17, 2003. Neither party contends that Petitioner was affected adversely by the typographical error in the notice.

2. A facility is not required to submit a plan of correction when it has only isolated deficiencies which have a potential for causing minimal harm but which have not caused actual harm. 42 C.F.R. � 488.402(d)(2).