Woodlands Place Rehabilitation Suites, ALJ Ruling 2020-7 (HHS CRD Mar. 19, 2020)

DISMISSAL

For the reasons set forth below, I conclude that Petitioner, Woodlands Place Rehabilitation Suites, is not entitled to Administrative Law Judge (ALJ) review.  I therefore dismiss its hearing request pursuant to 42 C.F.R. § 498.70(b).

Discussion

Petitioner has no right to a hearing because the Centers for Medicare & Medicaid Services (CMS) did not impose a remedy.1

Petitioner is a skilled nursing facility located in Denison, Texas, that participates in the Medicare program.  Following a survey, completed on November 8, 2018, the Texas Health and Human Services Commission (state agency) determined that the facility was not in substantial compliance with Medicare program requirements.  By letter dated November 26, 2018, the state agency advised Petitioner that it was not in substantial

Page 2

compliance and directed Petitioner to submit a plan of correction.  The letter warned that the Centers for Medicare & Medicaid Services (CMS) would impose penalties, including denial of payment for new admissions and termination of its provider agreement, if the facility did not return to substantial compliance by February 8, 2019, and May 8, 2019, respectively.  Attachment to Request for Hearing, DAB E-file item #1a.

On January 25, 2019, Petitioner requested a hearing.  Request for Hearing, DAB E-file item #1.

On March 12, 2019, CMS moved to dismiss.  Although it provided no supporting documents, CMS maintains that, responding to the state agency’s notice letter, Petitioner submitted a plan of correction, which the state agency accepted, and no remedies were imposed.  Petitioner did not respond to CMS’s motion, so I accept as true CMS’s assertion that no remedies were imposed.

The hearing rights of a skilled nursing facility are established by federal regulations at 42 C.F.R. Part 498.  A facility dissatisfied with an initial determination is entitled to further review, but administrative actions that are not initial determinations are not subject to appeal.  42 C.F.R. § 498.3(a) and (d).  The regulations specify which actions are “initial determinations” and set forth examples of actions that are not.  With an exception not applicable here, a finding of noncompliance that results in CMS imposing a remedy specified in 42 C.F.R. § 488.406 is an initial determination for which a facility may request an ALJ hearing.  42 C.F.R. § 498.3(b)(13).  But a facility has no right to a hearing unless CMS imposes one of the specified remedies.  San Fernando Post Acute Hosp., DAB No. 2492 at 7-8 (2012); Columbus Park Nursing & Rehab. Ctr., DAB No. 2316 at 7 (2010); Lutheran Home – Caledonia, DAB No. 1753 (2000); Schowalter Villa, DAB No. 1688 (1999).  The remedy, not the citation of a deficiency, triggers the right to a hearing.  Schowalter Villa, DAB No. 1688 at 3.  Where CMS withdraws the remedies or otherwise declines to impose one, Petitioner has no right to a hearing.  See, e.g., Fountain Lake Health & Rehab., Inc., DAB No. 1985 at 5-6 (2005).

Because CMS has imposed no remedies, Petitioner has no right to an ALJ hearing, and this matter must be dismissed.  42 C.F.R. § 498.70(b).  I therefore grant CMS’s motion.

The parties may request that I vacate this order within 60 days for good cause shown.  42 C.F.R. § 498.72.

• 1. I make this one finding of fact/conclusion of law.