SUBJECT:

Preston Health Care,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION DISMISSING REQUEST FOR HEARING

I dismiss the hearing request filed by Petitioner, Preston Health Care. I do so pursuant to 42 C.F.R. � 498.70(c) because Petitioner filed the request untimely and because Petitioner did not establish good cause for its failure to file a timely request.

I. Background

Petitioner is a skilled nursing facility that is located in Hilton Head, South Carolina. On March 25 - 27, 2002 a Medicare compliance survey was conducted of Petitioner's facility. The surveyors found that Petitioner was not complying substantially with Medicare participation requirements. On April 1, 2002, the South Carolina State survey agency notified Petitioner that it was recommending that the Centers for Medicare & Medicaid Services (CMS) impose remedies against Petitioner, including a $10,000 per instance civil money penalty.

On April 1 or 2, 2002 CMS faxed to Petitioner a notice in which it advised Petitioner that it had accepted the South Carolina State survey agency's remedy recommendation. The notice advised Petitioner that it had a right to request a hearing before an administrative law judge to challenge CMS's determination to impose a remedy. It told Petitioner that it must request a hearing within 60 days from Petitioner's receipt of the notice. Petitioner filed a hearing request on June 7, 2002, more than 60 days after the date when CMS faxed its remedy notice to Petitioner.

CMS filed a motion to dismiss Petitioner's hearing request. Petitioner opposed the motion. With its motion CMS filed three exhibits (CMS Ex. 1 - CMS Ex. 3). Petitioner did not oppose my receiving these exhibits. I am making CMS Ex. 1 - CMS Ex. 3 part of the record of this case and I refer to them below.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Petitioner filed its hearing request untimely thereby forfeiting its right to a hearing; and

2. Good cause exists to grant Petitioner an extension of time within which it may file its 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 separately numbered heading. I discuss each Finding in detail.

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

Regulations governing hearings in cases involving CMS state that, in order to be entitled to a hearing, an affected party must file a hearing request within 60 days of its receipt from CMS of a notice advising it of a determination to impose a remedy or remedies. 42 C.F.R. � 498.40(a)(2). The date of receipt is presumed to be five days from the mailing date of a notice. Id.; 42 C.F.R. � 498.22(b)(3). Where a notice is mailed to a party that party will be deemed to be entitled to a hearing if it files its request within 65 days from the mailing date of the notice unless the party received the notice less than five days from its mailing date. If that is the case, then the deadline for filing the hearing request is 60 days from the actual date of receipt of the notice.

The regulations do not require that CMS send a notice to a party by any specified delivery vehicle. A faxed notice is effective notification of CMS's determination if the affected party receives the fax. The time for filing a hearing request begins to run with receipt of the notice, whether the notice is transmitted by fax, by regular mail, or by some other mechanism. What is critical to determining the deadline is the date of receipt and not the transmission methodology.

In this case, CMS opted to fax its remedy determination notice to Petitioner on either April 1 or April 2, 2002 (the fax transmittal sheet is dated April 1, 2002, but the notice itself is dated April 2, 2002). CMS Ex. 2. Petitioner received CMS's notice of remedy determination no later than April 2, 2002. Petitioner's administrator signed a fax transmittal receipt on that date. Id. Petitioner does not deny that it received the fax on that date.

Petitioner would have been entitled to a hearing had it filed its hearing request within 60 days from April 2, 2002. Its actual deadline for filing a hearing request was June 3, 2002 because the 60^th day from the date when Petitioner acknowledged receipt of the notice was Saturday, June 1, 2002.

Petitioner did not file its hearing request until June 7, 2002. That was more than 60 days from the date when Petitioner received CMS's notice. Consequently, Petitioner was not entitled to a hearing.

2. Petitioner did not establish good cause for failing to file its hearing request timely.

The regulations provide that an administrative law judge may extend a party's deadline for filing a hearing request where that party establishes good cause for an extension. 42 C.F.R. � 498.40(c)(2). The term "good cause" is not defined. Generally, it has been held to be a circumstance that is beyond a party's ability to control which prevents that party from filing its request timely. Hospicio San Martin, DAB No. 1554 (1996). "Good cause" might be a situation in which a party is misled into believing that it has more time than the prescribed 60-day period within which to file a hearing request.

Petitioner has not established good cause for filing its hearing request untimely in this case. It has not shown that anything that was beyond its ability to control caused it to file its hearing request late. In particular, it has not established that it was misled into believing that the 60-day deadline for filing a hearing request did not apply to it or that it was misled into believing that it did not have to file its request within 60 days.

The remedy determination notice that Petitioner received from CMS on April 1 or 2, 2002 explicitly told Petitioner that it had 60 days within which to file a hearing request. Under the emphasized heading "Appeal Rights," the notice told Petitioner:

A written request for a hearing must be filed no later than sixty (60) calendar days from the date of this notice letter.

CMS Ex. 2, at 4.

But, notwithstanding this explicit language, Petitioner argues that it was misled into believing that it was not required to file its request within 60 days. Petitioner asserts that it participated in an independent dispute resolution proceeding (IDR) on April 22, 2002 in order to contest the noncompliance findings that were made at the March 25 - 27, 2002 survey. Petitioner's memorandum in opposition to CMS' motion at 1. It contends that it did not receive these results until May 31, 2002. Petitioner argues that it did not file its hearing request until June 7, 2002 because it was under the impression that it did not have to file the request until after it received the IDR results.

Petitioner has not pointed to anything that might have misled a reasonable person to believe that the 60-day deadline for filing the hearing request was waived or extended. ⁽¹⁾ Petitioner asserts that:

When asked what the next step would be if we were not satisfied with the results [of IDR], . . . [the Director of the South Carolina State survey agency] stated that if we were not pleased with the outcome of the IDR, we could take it to the Federal appeal level.

Petitioner's memorandum in opposition to CMS's motion at 1. Assuming this statement to be attributed accurately, there is nothing in it that would suggest that Petitioner's deadline for filing a hearing request would be extended. Even if Petitioner believed that it need not file its request until after it received the IDR results, it received those results four days prior to the deadline for filing the hearing request. Petitioner, thus, had time to file its request timely even if it believed in good faith that it need not file the request until after it had the results of IDR.

Furthermore, it is evident from Petitioner's own statements that it knew that the 60-day deadline had not been waived or extended by virtue of its participation in IDR. Petitioner avers that:

On June 7, 2002, the Administrator [of Petitioner] called Rita Brock-Perini, of . . . CMS . . ., to inquire as to possibilities for a hearing even though the facility's request was past due.

Petitioner's memorandum in opposition to CMS's motion at 2 (emphasis added).

Petitioner argues also that the surveyors who conducted the March 25 - 27, 2002 survey were biased against it and that the survey findings are unfair. However, possible surveyor bias is not good cause for failing to miss a deadline for requesting a hearing.

Steven T. Kessel

Administrative Law Judge

1. This case is distinguishable from Riverview Village, DAB No. 1840 (2002). In Riverview, the fax sent to the Petitioner was one of two copies of the notice that were sent to the Petitioner on different dates. In that case Petitioner showed that it was misled into believing that it had 6o days from its receipt of the second notice in which to file its hearing request. Here, Petitioner has not contended that it received any notice other than the faxed notice or that it was misled by the notice itself into believing that it had more than 60 days within which to file its request.