Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Walker Methodist Health Center, |
DATE: February 5, 2002 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-01-842 Decision No. CR869 |
DECISION | |
DECISION I dismiss the hearing request of Petitioner, Walker Methodist
Health Center. Petitioner has no right to a hearing because there is no
extant determination by the Centers for Medicare & Medicaid Services
(CMS) to impose remedies against Petitioner. I. Background and undisputed facts The participation of providers in the Medicare program,
including long-term care facilities (nursing facilities and skilled nursing
facilities), is governed by applicable federal statutes and regulations.
The law provides for surveys of long-term care facilities to assure their
compliance with participation requirements. These surveys usually are
conducted by State survey agencies acting on behalf of CMS. Remedies may
be imposed against a long-term care facility that is found not to be complying
substantially with federal participation requirements. The facts in this case are undisputed. These facts are
set forth in the exhibits that CMS filed in support of its motion to dismiss
and those that Petitioner filed in opposition to that motion. CMS filed
seven exhibits (CMS Ex. 1 - CMS Ex. 7) and Petitioner filed two exhibits,
along with copies of several administrative law judge decisions that it
argued were applicable to this case. Petitioner's exhibits consist of
the affidavit of David P. Saemrow, which I have identified as P. Ex. 1,
and a copy of a facility survey report and plan of correction, which I
have identified as P. Ex. 2. I am receiving into evidence CMS Ex. 1 -
CMS Ex. 7 and P. Ex. 1 and P. Ex. 2. Petitioner is a Medicare-participating long-term care
facility that is located in Minneapolis, Minnesota. On March 29, 2001,
Petitioner was surveyed on CMS's behalf by representatives of the Minnesota
Department of Health. CMS Ex. 1; CMS Ex. 2. The surveyors found that Petitioner
was not complying substantially with several participation requirements
and they issued a survey report which detailed their findings of noncompliance.
CMS Ex. 1. On April 13, 2001, the Minnesota Department of Health
sent a notice to Petitioner in which it transmitted the findings that
were made at the March 29, 2001 survey. CMS Ex. 2. The notice advised
Petitioner that, as a consequence of the findings that were made at the
survey, the Minnesota Department of Health was imposing against Petitioner
a remedy consisting of State monitoring of Petitioner's performance, effective
April 20, 2001. Id. at 2. The notice also advised Petitioner that
the CMS regional office (then known as the Health Care Financing Administration
or HCFA regional office) had concurred in the Minnesota Department of
Health's findings and that, effective May 3, 2001, CMS would be imposing
against Petitioner the additional remedy of denial of payment for new
Medicare and Medicaid admissions. Id. Additionally, Petitioner
was advised of its right to have a hearing before an administrative law
judge of the Departmental Appeals Board if it disagreed with the determinations
that were contained in the notice. On May 7, 2001, the Minnesota Department of Health sent
an additional notice to Petitioner. CMS Ex. 3. This notice advised Petitioner
that, at a revisit survey conducted on May 2, 2001, the Minnesota Department
of Health's surveyors had found Petitioner to have corrected the deficiencies
that were identified on March 29, 2001. Id. at 1. The notice advised
Petitioner that the Minnesota Department of Health was discontinuing State
monitoring of Petitioner's performance effective May 2, 2001. Id.
And, it told Petitioner that, effective May 2, 2001, CMS was rescinding
its determination to impose the remedy of denial of payment for new Medicare
and Medicaid admissions. Id. at 2. On June 11, 2001, Petitioner filed a request for a hearing.
CMS Ex. 6. The case was assigned to me for a hearing and a decision.
II. Issue, findings of fact and conclusions of law
The issue in this case is whether Petitioner has a right to a hearing before me.
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 separately numbered heading. I discuss each Finding in detail.
Regulations describe the circumstances under which a provider may request a hearing. 42 C.F.R. � 498.5. They also provide specifically that a long-term care facility:
42 C.F.R. � 488.408(g). These regulations enable a provider
to request a hearing to challenge noncompliance findings by CMS where
CMS determines, based on those findings, to deny participation status
to the provider or to impose remedies against that provider. However, the regulations do not grant generalized hearing rights to a provider to challenge a finding of noncompliance with participation requirements where CMS has not determined to impose a remedy. See 42 C.F.R. �� 488.408(g); 498.5. Nor does a provider have hearing rights in the situation where CMS determines to impose a remedy, but then rescinds that determination before implementing it. Lakewood Plaza Nursing Center, DAB CR691 (2000), aff'd DAB No. 1767 (2001); Schowalter Villa, DAB CR568 (1999), aff'd DAB No. 1688 (1999); Rafael Convalescent Hospital, DAB CR444 (1996), aff'd DAB No. 1616 (1997); Arcadia Acres, Inc., DAB CR424 (1996), aff'd DAB No. 1607 (1997); Fort Tryon Nursing Home, DAB CR425 (1996). Moreover, there is no right to a federal hearing where the determination to impose a remedy based on findings of noncompliance is made by a State on its independent authority and not by CMS or by a State under a delegation of authority from CMS.
The undisputed facts of this case are that the determinations
to impose remedies against Petitioner were rescinded. There is no extant
remedy and literally nothing for Petitioner to challenge at a hearing.
Moreover, one of the two remedies that were to be imposed against Petitioner
- State monitoring of Petitioner's performance - was a State remedy and
not a federal remedy which gave Petitioner a right to a hearing. Therefore,
Petitioner has no right to a hearing. It was determined originally to impose two remedies against
Petitioner as a consequence of the findings of noncompliance that were
made at the March 29, 2001 survey. These remedies consisted of: State
monitoring of Petitioner's performance as a provider; and, a denial of
payment for all new Medicare admissions to be effectuated beginning May
3, 2001. CMS Ex. 2. However, the determinations to impose these remedies
were rescinded effective May 2, 2001. CMS Ex. 3. Thus, there were no extant
remedy determinations after that date. The determination to deny payment for new Medicare admissions
was made by the CMS regional office. The Minnesota Department of Health
gave Petitioner notification of this determination and of its subsequent
recission prior to the implementation date. CMS Ex. 2; CMS Ex. 3. Petitioner
would have had the right to challenge this proposed remedy had it been
implemented. But, the proposed remedy was never implemented and, therefore,
Petitioner had no right to challenge the findings of noncompliance that
led to the subsequently rescinded determination to deny payments for new
Medicare admissions. The determination to impose State monitoring was made
by the Minnesota Department of Health. CMS Ex. 2. It was a State
determination and not a determination that was made by CMS. Petitioner
had no federal hearing right to challenge this State remedy determination.
Thus, it would have had no right to a hearing before me even had the remedy
determination not been rescinded. 42 C.F.R. � 498.3(d)(10)(iii). Petitioner asserts two reasons why it should be entitled
to a hearing. First, it claims that it is entitled to a hearing based
on considerations of fairness. Denial of a hearing is denial of due process
according to Petitioner. It contends that its reputation has been damaged
by the publication of the noncompliance findings that were made in the
March 29, 2001 survey report. It also contends that CMS might some day
use Petitioner's compliance history as a basis for imposing remedies against
Petitioner. Thus, according to Petitioner, CMS might
impose remedies for some future noncompliance by Petitioner that are more
stringent than would be the case had the March 29, 2001 findings not been
made. I do not find this argument to be persuasive because my
authority to hear and decide cases is limited only to what has been delegated
to me by applicable regulations. I do not have authority to grant a hearing
to a provider on fairness grounds. Second, Petitioner argues that the findings of noncompliance
that were made on March 29, 2001 were without foundation. According to
Petitioner, CMS ignored applicable legal standards and the language of
governing regulations in reaching conclusions about Petitioner's compliance
at the March 29, 2001 survey. And, according to Petitioner, CMS abused
its discretion and exceeded its authority in interpreting and applying
the regulations to Petitioner's case. In making this argument Petitioner attempts to put the cart before the horse. A party may not challenge findings of noncompliance in the absence of a remedy determination that affects that party. Petitioner has no right to a hearing in this case because there is no remedy determination. Whether or not CMS's compliance findings are supportable is irrelevant to deciding whether Petitioner has a hearing right. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge
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