Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Alpine Inn Care, Inc., d/b/a Ansley Pavilion, |
DATE: January 8, 2001 |
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Health Care Financing Administration
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Docket No.C-00-246
Decision No. CR728 |
DECISION | |
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:
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:
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. |
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JUDGE | |
Alfonso J. Montano Administrative Law Judge
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FOOTNOTES | |
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. | |