SUBJECT:

Home Health Agency,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

  Petitioner, Home Health Agency ⁽¹⁾

(Petitioner), asks that I vacate my November 1, 2005 dismissals and reinstate these cases. For the reasons set forth below, Petitioner's motions are denied.

Petitioner, a nursing facility certified to participate in the Medicare and Medicaid programs as a provider of services, filed separate requests for hearing in these matters challenging determinations made by the Centers for Medicare and Medicaid Services (CMS) that it was not in substantial compliance with program participation requirements. I issued separate orders setting forth deadlines for the parties to submit exhibits and briefs. By letters dated October 27, 2005, while these matters were pending, Petitioner submitted written motions asking that I dismiss its hearing requests pursuant to 42 C.F.R. � 498.68(a). That provision authorizes dismissal when a hearing request has been withdrawn, or the affected party asks that the request be dismissed.

In orders dated November 1, 2005, I ordered that the cases be dismissed, noting that, under 42 C.F.R. � 498.72, the parties could request that a dismissal order be vacated. On November 2, 2005, Petitioner filed motions to withdraw its motions to dismiss, saying that it had "reconsidered" and decided to go ahead with the hearings, and was entitled to withdraw its dismissal request. Unfortunately for Petitioner, the matters had been dismissed, so it was not withdrawing its motions, but instead was asking that the dismissals be vacated.

On November 18, 2005, CMS objected to my vacating these dismissals, arguing that Petitioner has not shown "good cause" as required by the regulations.

An Administrative Law Judge (ALJ) may vacate any dismissal of a request for hearing if a party files its request to vacate within 60 days from receipt of the notice of dismissal, and shows good cause for vacating the dismissal. 42 C.F.R. � 498.72. Here, Petitioner has not given any reason to justify vacating the dismissal except that it has decided to go forward with the hearing.

I recognize that little time elapsed between Petitioner's withdrawing its hearing requests and its efforts to reinstate these matters. However, the matters were dismissed, and Petitioner has offered no justification for my vacating those dismissals, even after CMS pointed out the good cause requirement. I am simply not free to ignore the regulation and vacate the dismissal based solely on Petitioner's having changed its mind so shortly after the dismissal was issued.

Petitioner's motions are therefore denied.

Carolyn Cozad Hughes

Administrative Law Judge

1. Petitioner calls itself Pure & Dependable, Inc. d/b/a/ Home Health Agency.