Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Community Care Center of Seymour, |
DATE: March 30, 2001 |
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Health Care Financing Administration
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Docket No.C-99-835 Decision No. CR758 |
DECISION | |
I dismiss the hearing request filed by Petitioner,
Community Care Center of Seymour. I do so because Petitioner has not shown
good cause why this case should not be dismissed for abandonment in light
of its failure to respond to HCFA's Motion to Dismiss. Since I determine
that Petitioner abandoned its hearing request and dismiss this matter on
that basis, I make no determination on the merits of HCFA's motion to dismiss
Petitioner's hearing request as untimely filed. I. Background On February 3, 2000, Judge Leahy granted the Health Care
Financing Administration's (HCFA) request to have until February 8, 2000,
to file a motion to dismiss Petitioner's hearing request as untimely,
and established a briefing schedule for the parties' submissions. The
schedule provided that HCFA would file its motion to dismiss and supporting
brief by February 8, 2000, and Petitioner would respond by March 8, 2000.
On February 7, 2000, HCFA requested a 10-day extension of time to file
its motion and brief, to which Petitioner had no objection. On February
16, Judge Leahy issued a ruling that granted HCFA's motion requesting
an extension of time to file its motion to dismiss for good cause shown,
gave HCFA until no later than February 18, 2000, to file its motion, and
directed Petitioner to file its response to HFCA's motion no later than
March 20, 2000. HCFA filed its motion and supporting brief under cover
letter dated February 18, 2000. Subsequently, this case was assigned to
me. Petitioner filed no response to HCFA's motion and did
not request an extension of time to file its response on or before the
March 20th deadline. The only submission received concerning
this matter was a notice dated May 2, 2000 (received in this office on
May 5, 2000), from Petitioner's counsel indicating their withdrawal from
the matter and stating that Petitioner's new counsel would enter his appearance
as counsel. No notice of appearance was received from any substitute counsel
indicating representation of Petitioner. As a result, on May 8, 2000,
I issued an Order to Show Cause, directing Petitioner to show good cause
why this case should not be dismissed for abandonment pursuant to 42 C.F.R.
� 498.69, and giving Petitioner until 10 days from its receipt of the
order to respond. Petitioner responded on May 22, 2000. II. Applicable Regulations Under "Dismissal for abandonment," the regulations governing the conduct of ALJ hearings provide that--
42 C.F.R. � 498.69. III. Petitioner's Arguments In requesting that its case not be dismissed for abandonment,
Petitioner asserted that it was not informed of the deadline for Petitioner's
response. Petitioner reported that it experienced a change of counsel,
and that Petitioner's prior counsel withdrew from representing Petitioner
in early April, but had not relinquished the client's files.
IV. Finding of Fact and Conclusion of Law
I am dismissing Petitioner's request for a hearing for
abandonment. I am authorized to dismiss a hearing request if it is "abandoned"
by the party requesting it. 42 C.F.R. � 498.69. I may consider a hearing
request to be abandoned where a petitioner fails to appear at a hearing
or prehearing conference without having previously shown good cause for
not appearing, and then fails to respond, with a showing of good cause,
within 10 days after I send a "show cause" notice to the petitioner. 42
C.F.R. � 498.69(b)(2). While the regulation is framed in terms of a party's
failure to appear at a prehearing conference or hearing, the Departmental
Appeals Board has held that "abandonment" under section 498.69(b)(1) is
reasonably construed to include failure to appear in written form by failing
to file prehearing documents that have been clearly ordered by an Administrative
Law Judge (ALJ). Osceola Nursing and Rehabilitation Center, DAB
No. 1708 (1999). Thus, I may dismiss Petitioner's request for a hearing
based on its failure to timely respond to HCFA's motion as directed by
Judge Leahy. Although Petitioner timely responded to my Order to Show
Cause, Petitioner failed to cite any reason for its failure to respond
to HCFA's motion to dismiss that would constitute good cause, as that
term has been interpreted by this Department's ALJs and the Board. The regulations do not define "good cause" for the purpose
of excusing a party's failure to timely request a hearing or to make a
required written submission. However, good cause has been interpreted
as meaning a circumstance beyond a party's ability to control. Nacogdoches
Convalescent Center, DAB CR680 (2000); Hospicio San Martin,
DAB CR387 (1995), aff'd, DAB No. 1554 (1996). Specifically, the
petitioner asserting good cause must show that a circumstance or circumstances
beyond its ability to control prevented it from complying with an ALJ
order. Nacogdoches; see Sedgwick Health Care Center,
DAB CR596, at 3 (1999). Here, Petitioner's failure to respond to HCFA's motion
to dismiss as directed by the ALJ provides a sufficient basis for me to
conclude that Petitioner has abandoned its request for hearing.
Petitioner essentially argued that the failure to respond
to HCFA's motion to dismiss within the time ordered by Judge Leahy resulted
from its failure to be informed that a response was required, and intimated
that such failure was a result of its change of counsel. I find that the facts Petitioner pleaded do not constitute
good cause. This Department's ALJs have held that circumstances comparable
to those Petitioner described were not good cause sufficient to excuse
the failure to timely request a hearing or to make required written submissions.
Thus, the avoidable failure of counsel to discharge responsibilities on
a petitioner's behalf or the miscommunication between a petitioner and
its counsel have been found to constitute avoidable human error, rather
than circumstances beyond the petitioner's ability to control. See
Sedgwick; Jackson Manor Health Care, Inc., DAB CR545 (1998).
Similarly, a clerical error committed by an employee of a petitioner,
or an employee's failure to otherwise exercise his or her responsibility,
have been held to be problems within a petitioner's control. See
Nacogdoches; Mathis Nursing Home, DAB CR461 (1997). Under
these holdings, delays or failures of communication caused by Petitioner's
former counsel, or resulting from counsel's withdrawal, were entirely
within Petitioner's control. It was Petitioner's ultimate responsibility,
as the party in interest, to remain apprised of the status of its appeal,
and to take whatever steps were necessary to continue its appeal once
counsel withdrew. Petitioner cannot assert good cause based on such avoidable
failures. IV. Conclusion Accordingly, Petitioner's request for hearing is DISMISSED for abandonment. |
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JUDGE | |
Joseph K. Riotto Administrative Law Judge |
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