Appeal of Certification of Noncompliance

7303 - Appeal of Certification of Noncompliance (Rev. 213; Issued: 02-10-23; Effective: 02-10-23; Implementation: 02-10-23) With the exception of the State monitoring remedy, facilities may appeal the finding of noncompliance that led to an enforcement remedy. Enforcement includes termination, alternative remedies provided in §7400, and any alternative or additional State remedies approved by CMS. Rather than sending an appeal to the CMS Location, facilities may appeal directly to the Departmental Appeals Board in the Office of the Secretary for Health and Human Services, with a copy to the State and CMS Location. However, in the case of an enforcement action taken by the State against a Medicaid-only facility, the appeal should be sent to the State. The appeal procedures for facilities are found at: • 42 CFR Part 498 for State-operated skilled nursing facilities, nursing facilities or skilled nursing facilities/nursing facilities; • 42 CFR Part 498 for non-State operated skilled nursing facilities or skilled nursing facilities/nursing facilities, and non-State nursing facilities for which the CMS Location disagrees with the State’s finding of compliance; and • 42 CFR Part 431 for non-State operated nursing facilities in which the determination was made by the State Medicaid Agency or was subject to a validation review by the CMS Location and the CMS Location agrees with the State’s finding. (See §7300.4 and §7311.2 for more information about CMS’ validation authority.) With the exception of civil money penalties, enforcement actions may be imposed while the facility is appealing the noncompliance that led to the enforcement action. For example, a facility could have its provider agreement terminated effective May 1, while the hearing of the facility’s appeal may not occur until after that date. Except in the case of civil money penalties, a request for a hearing will not defer the effective date of the enforcement action. Further, in accordance with 42 CFR 431 153(e)(2), a nursing facility’s request for a hearing on denial or termination does not delay the enforcement action and need not be completed before the effective date of the action. In the case of civil money penalties, the hearing, if requested, must be completed before the civil money penalty can be collected. However, the daily civil money penalty amount continues to accrue from the effective date until the facility is either terminated or has achieved substantial compliance. In accordance with 42 CFR 498.40(b), the content of the request for a hearing must identify the specific issues, the findings of fact and conclusions of law with which the facility disagrees, and specify the basis for contending that the findings and conclusions are incorrect. See §7809 for appeals of substandard quality of care that resulted in disapproval of a Nurse Aide Training and Competency Evaluation Program.