SUBJECT:

Devonshire Oaks Nursing Home,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION DISMISSING REQUEST FOR HEARING

I dismiss the hearing request filed by Petitioner, Devonshire Oaks Nursing Center. Petitioner failed to file its request timely and has not established good cause for its failure to do so.

I. Background

Petitioner is a skilled nursing facility that is located in Redwood City, California. It participates in the Medicare program and its participation is governed by sections 1819 and 1866 of the Social Security Act as well as by federal regulations. On June 20, 2005, the Centers for Medicare & Medicaid Services (CMS) sent a notice advising Petitioner that it concurred with findings made by the California Department of Health Services that Petitioner was not in substantial compliance with Medicare participation requirements. CMS advised Petitioner additionally that CMS had determined to impose remedies against Petitioner which included a civil money penalty in the amount of $10,000.

The notice stated that Petitioner had a right to request a hearing to challenge CMS's noncompliance findings. The notice told Petitioner that, in order to be entitled to a hearing, Petitioner must file its request no later than 60 days from the notice date of June 20, 2005 (the notice having been sent to Petitioner by fax).

Petitioner requested a hearing in a letter dated November 8, 2005 ⁽¹⁾ and the case was assigned to me. I issued a pre-hearing order on November 23, 2005 establishing pre-hearing exchange deadlines for the parties. However, on November 30, 2005, counsel for CMS called my office and advised me, through the staff attorney who is assigned to this case, that he intended to move to dismiss Petitioner's hearing request. I then issued a letter to the parties on November 30, 2005, in which I suspended the pre-hearing exchange deadlines and established a schedule for CMS to move to dismiss and Petitioner to respond to the motion. I gave CMS until December 16, 2005 to file its motion and I gave Petitioner until January 5, 2006 to respond.

On December 16, 2005, CMS moved to dismiss the hearing request. In its motion CMS asserted that Petitioner had not filed its hearing request timely. CMS argued also that Petitioner had not demonstrated good cause for its failure to file a hearing request timely.

Petitioner failed to reply to the motion. On January 24, 2006, I issued an order to show cause to Petitioner in which I directed it to explain, by February 17, 2006, why I should not dismiss its hearing request. On February 10, 2006, I received a letter from Petitioner's administrator which I decided did not respond adequately to the motion to dismiss or to my order to show cause. I gave Petitioner until February 21, 2006 to file a more complete response. Petitioner submitted a response on February 13, 2006, in the form of a letter signed by its current administrator.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues are whether:

1. Petitioner is entitled to a hearing;

2. Petitioner has shown good cause to extend the deadline for filing its hearing request;

3. I must dismiss Petitioner's hearing request.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. Petitioner is not entitled to a hearing because it did not file its request timely.

Petitioner filed its hearing request untimely and it is not entitled to a hearing. Regulations governing hearings involving CMS provide that a facility is entitled to a hearing to challenge a determination by CMS only if it files its hearing request timely. 42 C.F.R. � 498.40(a)(2). In order to be timely a hearing request must be filed within 60 days of the date when the affected party receives written notice of CMS's determination. Id.

In this case Petitioner received written notice of CMS's determination on June 20, 2005, the date when CMS faxed its notice of determination to Petitioner. Petitioner does not deny receiving the notice on that date. Petitioner was entitled to a hearing if it filed its request no later than 60 days from June 20, 2005.

However, Petitioner did not file a hearing request until November 8, 2005, more than four months from the date that it received CMS's notice letter and more than two months after expiration of the 60-day period during which Petitioner was entitled to request a hearing.

2. Petitioner has not established good cause for failing to file its request timely.

Regulations provide that an administrative law judge may extend a party's deadline for filing a hearing request only if that party establishes good cause for not filing its request timely. 42 C.F.R. � 498.40(c). The regulations do not define the term "good cause." As a general matter, however, good cause exists only if a party can show that it has been prevented from filing a timely hearing request by an event that is beyond that party's ability to control.

In its hearing request Petitioner acknowledged that its then-administrator never submitted a hearing request to CMS. It referred to that failure as a "miscommunication between the previous . . . [administrator] and . . . [Petitioner]" but offered no explanation for the alleged mis-communication. In its February 13, 2006 submission, Petitioner offered no additional explanation except to aver that its former administrator "failed to follow-up with the right to appeal process and did not endorsed [sic] the same to . . . [Petitioner] before she resigned on September 15, 2005."

What Petitioner asserts is that it failed to file its hearing request timely, either as a consequence of error by its former administrator or as a consequence of her indifference. Neither explanation constitutes a showing of an event that was beyond Petitioner's ability to control that prevented Petitioner from filing a timely hearing request. Petitioner's then-administrator was Petitioner's agent and employee during the period when Petitioner would have been entitled to have a hearing if it requested one timely. Her failure, through error or indifference, to file a request timely was an event which she, as Petitioner's agent, controlled on Petitioner's behalf.

Petitioner seems to be making an equitable argument that it should not be penalized for the omission or malfeasance of its former employee. However, although Petitioner's current management may be blameless for its predecessor's actions, that is not good cause. Petitioner was on notice of its rights and had the opportunity to file a hearing request. Its failure to do so was an act that was within the control of its then management.

3. I must dismiss Petitioner's hearing request inasmuch as Petitioner has not established good cause for filing its request untimely.

A hearing request that is not filed timely must be dismissed if good cause is not established to extend the deadline for filing the request. 42 C.F.R. � 498.70(c). I dismiss Petitioner's request because it did not establish good cause for its untimely filing.

Steven T. Kessel

Administrative Law Judge

1. Petitioner filed a hearing request with CMS by letter dated November 8, 2005 and with my office by letter dated November 9, 2005. I accept that Petitioner filed its hearing request as of November 8, 2005, the earlier date.