Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Hearthstone of Mesa, |
DATE: February 7, 2001 |
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Health Care Financing Administration
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Docket No.C-00-087
Decision No. CR734 |
DECISION | |
Petitioner, Hearthstone of Mesa (hereafter "Petitioner"
or "facility"), is a nursing facility certified to participate in the
Medicare and Medicaid programs as a provider of services. The Arizona
Department of Health Services completed a Medicare certification survey
of the facility on May 14, 1999, and a revisit survey on July 11, 1999.
Based on its review of the survey findings, the Health Care Financing
Administration (HCFA) determined that the facility was not in substantial
compliance with the Medicare participation requirements, and, in a letter
dated September 1, 1999, advised the facility that it was imposing the
following remedies: (1) denial of payment for new admissions; and, (2)
a civil money penalty (CMP) in the amount of $250 per day, effective May
14, 1999. The letter also advised Petitioner of its right to request a
hearing before an administrative law judge, and explained that:
By letter dated October 6, 1999, HCFA referred to its
earlier September 1, 1999 letter and further advised the facility that,
based on a second revisit survey which was completed on August 31, 1999,
the facility was found to be in substantial compliance with applicable
federal requirements, effective August 23, 1999. HCFA stated that, as
a result, the remedy of denial of payment for new admissions was not imposed,
and the CMP of $250 per day, which began accruing on May 14, 1999, stopped
accruing on August 23, 1999. In a letter dated October 26, 1999, Petitioner requested
an "appeal of the findings of non-compliance." On February 24, 2000, HCFA submitted its "Motion for Summary
Judgment and Motion for Further Development." Although considerable time
has passed, Petitioner has not responded to HCFA's motion. Under the regulations,
a party has 20 days from the date of mailing or personal service to submit
any rebuttal statement (42 C.F.R. � 498.17), and, in a letter dated January
8, 2001, I advised the parties that I would, within 30 days, rule on HCFA's
motion. I therefore issue this ruling.(1) For the reasons set forth below, I grant HCFA's motion.
I dismiss Petitioner's October 26, 1999 request pursuant to 42 C.F.R.
� 498.70(c).(2) HCFA argues that Petitioner's hearing request should be
dismissed because it fails to satisfy the requirements of 42 C.F.R. �
498.40(b) that the hearing request: (1) identify the specific issues,
and the findings of fact and conclusions of law with which the affected
party disagrees; and, (2) specify the basis for contending that
the findings and conclusions are incorrect. In the alternative, HCFA asks
for further development of the case to satisfy the specificity requirements
of the regulations. As appellate panels of the Department Appeals Board (Board)
have emphasized, this tribunal should not lightly conclude that a petitioner
has, contrary to clear requirements, failed to take advantage of its opportunity
for hearing. See Fairview Nursing Plaza, Inc., DAB No. 1715
(2000) at 5. On the other hand, the Board's decisions mandate "strict
adherence by petitioners to the regulations' requirements when filing
hearing requests." Care Inn of Gladewater, Inc., DAB No. 1680 (1999);
Birchwood Manor Nursing Center, DAB No. 1669 (1998), aff'd
Birchwood Manor Nursing Center v. DHHS, No. 98-60695 (5th
Cir. June 29, 1999). In Alden-Princeton Rehabilitation and Health Care Center,
Inc., DAB No. 1709 (1999) and Fairview, the Board set forth
the process for assessing the sufficiency of a hearing request and the
suitability of dismissal for failure to satisfy regulatory requirements.
First, I must determine whether the language of Petitioner's hearing request,
when read in the context of HCFA's notice, meets
the requirements set forth in the plain language of 42 C.F.R. � 498.40(b).
If it fails to meet one or both of the regulatory requirements, I should
consider whether to exercise my discretion not to dismiss the case. I consider first whether Petitioner's request meets the
requirements of 42 C.F.R. � 498.40(b). HCFA does not dispute the sufficiency
of Petitioner's request in identifying the specific issues and findings
with which it disagrees, as required by 42 C.F.R. � 498.40(b)(1). In this
regard, the request -- which "disputes the factual allegations contained
in the various HCFA forms 2567L," and "disputes the determinations that
the . . . facility was not in substantial compliance," and specifically
lists the contested deficiencies by citation to regulatory requirements
-- is broad and inclusive but probably within the parameters set forth
by the Board in Fairview. HCFA challenges the adequacy of Petitioner's request under
42 C.F.R. � 498.40(b)(2), which requires that a petitioner articulate
a specific basis for contending that HCFA's findings and conclusions are
incorrect. The purported request sets forth the bases for Petitioner's
appeal as follows:
Petitioner's October 26, 1999 letter, at 2. In Fairview, the Board sustained as adequate under
42 C.F.R. � 498.40(b)(2) a hearing request that "unambiguously stated
that [the petitioner] intended to challenge HCFA's action on factual grounds
- by showing that each of the findings of fact in the examples supporting
the deficiencies was inaccurate and that there were additional facts that
would negate the conclusions that deficiencies existed." Fairview,
at 12. The Board did not nullify the regulation, however, nor, as it was
careful to point out, did it depart from its decisions in Birchwood
Manor Nursing Center, Regency Manor Healthcare Center, et al.,
DAB No. 1672 (1998), and Care Inn of Gladewater, Inc. Hearing requests
in those cases, the Board reasoned, were appropriately dismissed because
each "failed to identify the specific issues or the findings of fact and
conclusions of law with which the petitioners disagreed, as required by
42 C.F.R. � 498.40(b)(1), and/or to specify the basis for contending that
the findings and conclusions were incorrect, as required by section 498.40(b)(2)."
Fairview, at 4. The request in Birchwood, for example, mentioned
generally that it contested "remedies," "certification issues," and "adverse
actions," without specifying any in particular, nor exactly the basis
for its contest. In Alden-Princeton, the Board found inadequate
a letter whose "imprecise language . . . failed to make clear whether
Alden-Princeton intended to challenge each and every factual finding and
legal conclusion potentially at issue." Alden-Princeton, at 10.
Specifically with respect to the requirements of 42 C.F.R. � 498.40(b)(2),
the Board held that the purported request's generalized allegations did
not provide any specific grounds for contesting HCFA's findings and conclusions,
as required by the regulations:
Alden-Princeton, at 10 - 11. The Board noted that
requiring specificity ensures that the appellant "has reviewed the particular
facts and law and determined whether it has any bases for raising any
legitimate disputes." Id. at 10. In Birchwood, the Board also pointed to the "compelling
reasons" for adherence to the "clear requirements of the regulations."
These include assuring HCFA the opportunity to prepare adequately, allowing
an administrative law judge (ALJ) to rule correctly on relevance of evidence
sought to be introduced at the hearing, and to determine whether a hearing
is required. Perhaps most significant, these requirements help prevent
substantial delay in the resolution of the case:
Birchwood, at 11, quoting December 12, 1997 ruling in Canton Healthcare Center, Docket No. C-96-266, at 35. Here, unlike the request in Fairview, Petitioner's request can hardly be considered "unambiguous." At best, the language suggests possible bases for its appeal, but does not definitively state that Petitioner intends to rely on any one or all of them; indeed, the request leaves open the possibility that Petitioner's basis for appeal rests on an entirely different - and not yet articulated - theory altogether. Petitioner does not specify the bases, but instead deliberately obscures the bases by setting forth possibilities, but refusing to commit to any of them. Unlike Fairview, where the request was broad but definitive, Petitioner's request is broad and equivocal. It provides the adjudicator no clearer picture of the issues in dispute than a hearing request that is wholly silent as to the basis for its contentions. It provides no meaningful guidance to the opposing side nor to the adjudicator as to the relevance of potential evidence.Moreover, even if the most blatantly equivocal language ("bases . . . may include, but are not limited to . . ." (emphasis added)) were removed from Petitioner's request, I am not convinced that the document would constitute a legitimate hearing request under 42 C.F.R. � 498.40(b). Petitioner has simply concocted a generic list of the types of evidence that might be used in a Medicare nursing home hearing, but has provided no information unique to this case. Such an approach hardly suggests that Petitioner has "reviewed the particular facts and law and determined whether it has any bases for raising any legitimate disputes." Alden-Princeton, at 10. For these reasons, I conclude that Petitioner's October
26, 1999 letter does not satisfy the requirements of 42 C.F.R. � 498.40(b)
because it does not specify the basis for Petitioner's contending that
HCFA's findings and conclusions are incorrect. I next consider whether I should exercise my discretion
not to dismiss this case. 42 C.F.R. � 498.70 confers
on ALJs the discretion to consider, when presented with extenuating circumstances
in a particular case where the requirements of section 498.40(b) were
not met, whether the case should not be dismissed in its entirety or as
to any particular issue. Alden-Princeton, at 13. A case should
not be dismissed for failure to comply with section 498.40(b) within the
required 60-day time period for filing where good cause exists for such
failure. A petitioner may file amendments of right within the initial
60-day period, or may move for an extension of the filing period in order
to submit amendments. Birchwood, at 20 - 21. Here, as in Birchwood,
no request for an extension of time for amending the request was ever
filed, even though Petitioner has had ample time to do so. As in Birchwood,
"Nothing submitted by any of these Petitioners . . . suggests a willingness
or desire to amend the request." Birchwood, at 21. Indeed, Petitioner
has not responded in any manner to HCFA's motion, although, again, it
has had ample opportunity to do so, including fair warning of my intention
to rule. Circumstances justifying an exercise of discretion not
to dismiss may also include HCFA's actual knowledge of what issues a petitioner
sought to preserve for hearing, and whether events that took place before
or during the proceedings may have led a petitioner to conclude that its
hearing request was sufficient in whole or in part. Alden-Princeton,
at 13. Given the paucity of Petitioner's submissions
here, nothing in this record suggests that HCFA could have any knowledge
of the issues Petitioner sought to preserve, nor could any evidence in
this record have led Petitioner to believe that its hearing request was
sufficient. I therefore grant HCFA's motion and dismiss Petitioner's October 26, 1999 request under my authority granted by 42 C.F.R. � 498.70(c). See Birchwood (42 C.F.R. � 498.70(c) authorizes dismissal where a document filed within the 60-day period provided in 42 C.F.R. � 498.40(a) does not constitute a request for hearing within the meaning of 42 C.F.R. � 498.40(b)). See also, Social Security Act, section 1128A(c)(4). |
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JUDGE | |
Carolyn Cozad Hughes Administrative Law Judge
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FOOTNOTES | |
1. On January 19, 2000, the Mariner group of nursing facilities, Petitioner being one of them, filed a "Notice of Bankruptcy Stay." In this Notice, the facilities stated that Mariner and its subsidiaries had filed for bankruptcy, and, for this reason, all matters against the facilities should be stayed pursuant to 11 U.S.C. � 362. On May 1, 2000, a "Ruling Denying Petitioner's Motion for Automatic Stay" was issued, which denied Petitioner's motion for automatic stay of these proceedings. Petitioner was advised that this case would move forward. 2. Because I am dismissing Petitioner's October 26, 1999 request pursuant to 42 C.F.R. � 498.70(c), I do not consider HCFA's Motion for Further Development. | |