Stockdale Residence and Rehabilitation Center, ALJ Ruling 2021-4 (HHS CRD May 19, 2021)

DISMISSAL

For the reasons set forth below, I conclude that Petitioner, Stockdale Residence and Rehabilitation Center, is not entitled to Administrative Law Judge (ALJ) review in these matters.  I therefore dismiss the Petitioner's hearing requests pursuant to 42 C.F.R. § 498.70(b).

Discussion

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

Petitioner is a long term care facility located in Stockdale, Texas, that participates in the Medicare program.  Based on surveys completed on March 15, 22, and 29, 2021 (C-21-604); April 5, 2021 (C-21-644), and April 12, 2021 (C-21-666), CMS determined that it

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did not comply with COVID-19 reporting requirements, 42 C.F.R. § 483.80(g), and imposed civil money penalties.

Petitioner appealed.

Upon further review, CMS rescinded the penalties and deleted the deficiency findings.  CMS now moves to dismiss all three appeals.  Petitioner does not oppose the motions.

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 and 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 these matters must be dismissed.  42 C.F.R. § 498.70(b).  I therefore grant CMS's motion.

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FURTHER APPEAL RIGHTS

Pursuant to 42 C.F.R. §§ 498.80 and 498.82(a), either party may request Departmental Appeals Board (Board) review of this dismissal within 60 days of receiving this Order.  Detailed appeal procedures are set out in the guidelines for appellate review of decisions of administrative law judges supported by the Civil Remedies Division, available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/index.html.  By regulation, a request for review must specify the issues, the findings of fact or conclusions of law with which Petitioner disagrees, and the basis for contending that the findings and conclusions are incorrect. 42 C.F.R. § 498.82(b).

An appeal may be filed electronically by logging into https://dab.efile.hhs.gov and following the e-filing instructions for "Appeals to Appellate Division/Board."  If you cannot file your request for review electronically, you may file it by sending the required documents to the Board by postal or commercial delivery service to:

Director, Appellate Division, MS 6127
Department of Health & Human Services
Departmental Appeals Board
330 Independence Ave., S.W. Cohen Building, Room G-644
Washington, DC  20201

If you have any questions, please contact the Appellate Division Director at (202) 565-0208.

Service by DAB E-File

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