Decision No. CR627 Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
SUBJECT: Jacinto City Healthcare Center, |
DATE: November 12, 1999 |
Petitioner,
- v - |
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The Health Care Financing
Administration. |
Docket No. C-98-420
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DECISION DISMISSING REQUEST FOR HEARING | |
I grant the motion of the Health Care Financing Administration (HCFA) to dismiss the request for hearing filed by Petitioner, Jacinto City Healthcare Center. I do so because Petitioner no longer has a right to a hearing in this case. Background and undisputed material facts I take notice that Petitioner is a skilled nursing facility that participates
in the Medicare program and which is located in Houston, Texas. On July
7, 1998, HCFA sent a notice to Petitioner's administrator in which HCFA
announced its intent to impose remedies against Petitioner. HCFA told
Petitioner that the remedies were being imposed because Petitioner had
failed to remain in substantial compliance with federal participation
requirements which govern long-term care facilities, including skilled
nursing facilities that participate in the Medicare program. These remedies
included a civil money penalty of $4,000 for Petitioner's alleged noncompliance
with participation requirements on March 25, 1998 and civil money penalties
of $2,500 per day for Petitioner's alleged noncompliance with participation
requirements from March 26, 1998 through April 30, 1998. The total amount
of the civil money penalties that HCFA determined to impose was $94,000. |
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ISSUE, FINDINGS OF FACT AND CONCLUSIONS OF LAW | |
Issue: The issue in this case is whether Petitioner continues to have a right to a hearing in light of HCFA's determination to rescind all of the remedies that it previously had determined to impose against Petitioner. Finding of fact and conclusion of law: |
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I make the following
finding of fact and conclusion of law (Finding) to support my decision
that Petitioner no longer has a right to a hearing. I discuss my Finding
in detail, below.
1. Petitioner
has no right to a hearing in the absence of a determination by HCFA to
impose a remedy against Petitioner.
A long-term care facility's
hearing rights in any case involving HCFA are established by federal regulations.
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:
a
finding of noncompliance [with participation requirements] that results
in 42 C.F.R. � 498.3(b)(12). The remedies that are specified at 42 C.F.R. � 488.406 include civil money penalties. 42 C.F.R. � 488.406(a)(3). There is no provision in 42 C.F.R. � 498.3(b) or elsewhere
in the regulations for a hearing in the case where HCFA does not determine
to impose a remedy against a long-term care facility.
The undisputed fact
of this case is that HCFA determined to impose civil money penalties against
Petitioner. That determination created a hearing right which Petitioner
exercised. However, subsequently, and prior to the scheduled hearing date,
HCFA determined to rescind its civil money penalty determinations. That
subsequent determination by HCFA extinguished any hearing right that Petitioner
had. Once HCFA determined to rescind all remedies, Petitioner no longer
had any right to a hearing.
Petitioner argues
that it has a right to a hearing as a matter of law even in the absence
of a remedy determination by HCFA. As support for this argument, Petitioner
relies on 42 C.F.R. � 488.408(g)(1), which states that:
[a]
facility may appeal a certification of noncompliance (emphasis added).
Petitioner's logic is that this language means that a long-term care facility
has a right to a hearing where HCFA makes a finding of noncompliance that
may result in the imposition of an enforcement remedy. Under
this analysis, a right to a hearing does not depend on actual imposition
of a remedy, but emanates instead from any finding that could result in
imposition of a remedy.
I addressed a very
similar argument in Fort Tryon Nursing Home, DAB CR425 (1996).
I held there that the regulations created a right to a hearing only where
a remedy actually was imposed. In Fort Tryon, I noted that any
possible ambiguity that resulted from the phrase "leading to" in the regulations
was addressed in comments to the regulations which made it clear that
no hearing right existed in the absence of a determination to impose a
remedy. DAB CR425 at 6; 59 Fed. Reg. 56,116, 56,158 (1994).
At the time that I issued my Fort Tryon decision, both 42 C.F.R. �� 488.408(g)(1) and 498.3(b)(12) contained the "leading to" language. Subsequently, 42 C.F.R. � 498.3(b)(12) was revised to substitute the phrase "results in" for the phrase "leading to." If anything, the regulations are more clear in their intent now than they were when I issued the Fort Tryon decision. They preclude any hearing rights in the absence of a remedy. Petitioner also argues
that a conclusion by HCFA that a facility is deficient at an immediate
jeopardy level is in and of itself a determination that creates a right
to a hearing. According to Petitioner, it has a right to a hearing as
to HCFA's finding that it was deficient at the immediate jeopardy level
whether or not HCFA imposed a remedy based on that finding. I disagree
with this analysis. The regulations do not permit hearings as to findings
of deficiency except where those findings result in the imposition of
a remedy or remedies against a facility.
Petitioner also asserts
equitable considerations to support its contention that it continues to
have a right to a hearing. It argues that it has been harmed by the stigma
associated with HCFA's determinations that Petitioner was not complying
substantially with participation requirements. Petitioner contends that
it must be given a hearing in order to protect its reputation as a provider
that complies with participation requirements. It argues that this case
is distinguishable from other cases in which determinations were rescinded
in that a long time period has transpired between the dates when findings
of noncompliance were made and the date when HCFA finally determined to
rescind all remedies. Petitioner contends that it has suffered damages
by virtue of this lapse of time in that the persistence of HCFA's determinations
of noncompliance by Petitioner with participation requirements may have
created a public perception that Petitioner was not a facility that complied
substantially with participation requirements.
The problem with this
argument is that the right to a hearing in a case involving HCFA is confined
only to that which is provided for by regulations. A party does not have
an equitable right to a hearing if there is nothing in the regulations
which grants that party a right to a hearing. As I have discussed above,
there is no authority in the regulations which gives Petitioner a right
to a hearing where HCFA no longer intends to impose a remedy against Petitioner.
Therefore, Petitioner's argument that it has an equitable right to a hearing
fails. Alternatively, Petitioner
asserts that it is entitled to a finding that HCFA's recission of its
remedy determination also constitutes a recission of the underlying findings
of deficiency. As a matter of logic, Petitioner's assertion that HCFA's
recission of remedies means that HCFA has also rescinded any findings
of deficiencies may or may not be correct. However, I have no authority
to direct HCFA to issue a statement which rescinds findings of deficiencies.
Indeed, I have no authority to address the merits of HCFA's findings inasmuch
as Petitioner has no right to a hearing in this case. | |
JUDGE | |
Steven T. Kessel; |
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