Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Mimiya Hospital, |
DATE: November 6, 2001 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-01-104
Decision No. CR836 |
DECISION | |
DECISION I find that Mimiya Hospital (Petitioner) has filed an
untimely hearing request as to the notice letter dated May 26, 2000 from
the Centers for Medicare & Medicaid Services (CMS) and therefore I
dismiss Petitioner's request for hearing. In addition, I find that Petitioner
does not have a right to a hearing based on CMS's August 30, 2000 notice
because the August 30, 2000 notice was not an initial determination. I. Background Petitioner is a skilled nursing facility in Santurce,
Puerto Rico. It participates in the Medicare program (Medicare) and is
subject to the laws and regulations that govern participation in this
program. On April 6, 2000, the Puerto Rico Department of Health (PRDOH)
conducted a compliance survey at Petitioner's facility to determine whether
Petitioner was complying substantially with federal requirements that
govern the participation of nursing facilities in Medicare. On May 26,
2000, CMS notified Petitioner that it concurred with PRDOH's findings
that Petitioner was not complying substantially with the requirements
for Medicare participation. CMS further notified Petitioner that it had
determined to impose the remedies of denial of payment for new admissions
(DPNA), effective May 28, 2000, denial of nurse aide training for two
years and imposition of CMPs. On August 30, 2000, CMS notified Petitioner
it had achieved substantial compliance as of June 23, 2000. The August
30, 2000 letter also notified Petitioner of the total amount of CMP that
had been imposed. Petitioner filed a request for hearing on October 22,
2000. The case was thereafter assigned to me. CMS moved for summary judgment on the issue of untimeliness.
Petitioner opposed CMS's motion. Both parties submitted briefs. I refer
to the briefs as CMS Br. and P. Br., respectively. CMS submitted a reply
brief that I will refer to as CMS R. Br. CMS offered two exhibits (CMS
Exs. 1 - 2) with its brief. Petitioner offered four exhibits (P. Exs.
1 - 4) with its brief. CMS's exhibits 1 and 2 are the same as Petitioner's
exhibits 3 and 4. Neither party objected to the exhibits of the other
party. I admit into evidence CMS Exs. 1 - 2 and P. Exs. 1 - 2. My decision is based upon the arguments of the parties,
the exhibits, and the applicable law and regulations. II. Issues, findings of facts and conclusions of law
The issues in this case are:
I make findings of fact and conclusions of law (Findings) to support my decision. I set forth each Finding below as a separately numbered heading. I discuss each Finding in detail.
On May 26, 2000, CMS sent its notice to Petitioner. CMS Ex. 1. CMS referred to the April 6, 2000 survey in the May 26, 2000 notice. CMS advised Petitioner that it had found deficiencies because Petitioner was not complying with certain requirements of participation. In the May 26, 2000 notice, CMS informed Petitioner that as a result of the deficiencies, CMS was imposing the following remedies:
Id. at 2. CMS advised Petitioner that it must submit an allegation
of compliance and an acceptable plan of correction (POC) within 10 days
showing how it would correct the deficiencies identified by CMS by promptly
addressing each of the cited deficiencies found during the April 6, 2000
survey. Id. CMS also informed Petitioner that if it did not achieve
substantial compliance with all participation requirements by September
30, 2000, CMS would terminate Petitioner's Medicare provider agreement.
Id. CMS specifically advised Petitioner that it had a right to a hearing to challenge CMS's determination. It notified Petitioner that:
CMS Ex. 1, at 3. The Social Security Act (Act) requires that a request
for review "must be filed within 60 days" after receipt of the notice
of CMS' underlying determination. Act, section 205(b). The regulations
echo the statutory requirement: "The affected party must file the request
in writing within 60 days from receipt of the notice . . . unless the
period is extended." 42 C.F.R. � 498.40(a)(2). Petitioner's request for hearing as a result of the May
26, 2000 notice was due on July 31, 2000. Petitioner's request for hearing
dated October 22, 2000 was filed more than 82 days after the date it was
due. Petitioner does not dispute that it received CMS's May
26, 2000 notice, nor does it dispute that it understood that CMS intended
to immediately impose certain remedies. P. Br. at 2. Petitioner appears
to have weighed the costs of litigation versus paying the CMP as defined
by CMS in its May 26, 2000 notice. P. Br. at 3. It is manifestly clear that Petitioner did not file a
timely request for hearing and I so find. Petitioner argues that the May 26, 2000 notice did not mention the opportunity to take a 35% reduction in the CMP if it waived, in writing, its right to a hearing within 60 days of the notice letter and that Petitioner did not learn of this option until CMS's second notice dated August 30, 2000. As a result of this deficiency, Petitioner requests that I find the May 26, 2000 letter null and void. I cannot do as Petitioner requests because Petitioner was clearly on notice that deficiencies had been found, sanctions were being imposed, and that it had a right to request a hearing within 60 days of the date of the notice to challenge CMS's determination. Petitioner's defective notice argument is a matter that I do not have jurisdiction to decide once I have made the threshold finding that the hearing request is untimely.(1)
The regulations provide that "[t]he affected party must
file the request in writing within 60 days from receipt of the notice
. . . unless the period is extended." 42 C.F.R. �
498.40(a)(2). To extend the period for filing, the affected party "may
file a written request for extension of time stating the reasons why the
request was not filed timely." 42 C.F.R. � 498.40 (c)(1). I may extend
the time for filing the request "for good cause shown." 42 C.F.R. � 498.40(c)(2).
Here, however, I need not reach the issue of good cause because Petitioner
has not satisfied the threshold requirement of filing a written request
for extension. As stated in Homestead of Hugo, DAB CR819 (2001),
an Administrative Law Judge is no more free to ignore the regulations'
procedural requirements than the judge could ignore the substantive rules.
Alden Nursing Center - Morrow, DAB CR784, at 5 (2001). See
Schweiker v. Hansen, 450 U.S. 785, 790 (1981) ("A court is no more
authorized to overlook the valid regulation requiring that applications
be in writing than it is to overlook any other valid requirement for the
receipt of benefits.")
If a Petitioner wishes to contest an initial determination,
it must follow the regulations at 42 C.F.R. � 498.40. Unless a determination
is an initial determination as specified under 42 C.F.R. � 498.3(d) then
there is no jurisdiction for an appeal. The August 30, 2000 notice did
not contain any additional initial determinations as specified in 42.
C.F.R. � 498.3(d). The August 30, 2000 letter simply notified Petitioner
that it had been found to be in substantial compliance following the second
revisit survey. It also indicated the total amount of the CMP. There were
no new findings of deficiencies nor any new sanctions imposed to which
hearing rights would attach. However, the August 30, 2000 letter did mistakenly
repeat the standard appeal language. This, by itself, does not afford
Petitioner a right to a hearing. Therefore, I find that Petitioner did
not have a right to a hearing based on the August 30, 2000 notice because
this notice was not an initial determination. III. Conclusion I find that Petitioner's request for hearing as it relates
to the May 26, 2000 notice was not filed in a timely manner. Accordingly,
Petitioner's request for hearing as it relates to the May 26, 2000 notice
is dismissed. In addition, I find that the August 30, 2000 notice did
not contain an initial determination for which a hearing may be requested.
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JUDGE | |
Jose A. Anglada Administrative Law Judge
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FOOTNOTES | |
1. 42 C.F.R. � 488.434(a)(2)(viii) provides, in pertinent part, that when CMS sends a written notice of a penalty to a facility, the notice that CMS sends includes, "[i]nstructions for responding to the notice, including a statement of the facility's right to a hearing, and the implication of waiving a hearing, as provided in [42 C.F.R.] � 488.436." Section 488.436, referred to above, provides in pertinent part: (a) Waiver of hearing. The facility may waive the right to a hearing, in writing, within 60 days from the date of the notice imposing the civil money penalty. (b) Reduction of penalty amount. (1) If the
facility waives its right to a hearing in accordance with the procedures
specified in paragraph (a) of this section, CMS or the State reduces the
civil money penalty amount by 35 percent. 42 C.F.R. � 488.436(a) and (b). The May 26, 2000 notice did not inform Petitioner that should it waive its right to a hearing, in writing, within 60 days from the date of the notice, then CMS would reduce the CMP amount by 35%. The May 26, 2000 notice refers Petitioner to 42 C.F.R. 498.40 et. seq. as the procedures governing the appeal process. CMS Ex. 1, at 3. Nothing in that section points Petitioner to the direction of efficiently settling and disposing of the matter by opting for a 35% reduction of the CMPs in lieu of requesting a hearing. Although I do not have authority to decide this deficient notice issue because the hearing request was untimely filed, it is evident to me that, with respect to 42 C.F.R. �� 488.434(a)(2)(viii) and 488.436, CMS clearly failed to include the 35% language and failed to inform Petitioner of this option in the May 26, 2000 notice letter. In the interest of fairness, CMS should consider whether it should now allow Petitioner to pay the total CMP amount reduced by 35%. | |