Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Hospicio San Martin,
Petitioner,
- v. -
Health Care Financing Administration.
Date: January 17, 1996
Docket No. C-95-149
Decision No. 1554
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION
Hospicio San Martin (HSM) appealed an August 22, 1995
decision by Administrative Law Judge (ALJ) Steven T.
Kessel. See Hospicio San Martin, DAB CR387 (1995) (ALJ
Decision). The only issues before the ALJ were whether
HSM made its request for a hearing pursuant to 42 C.F.R.
section 498.40(a)(2) timely, and whether, assuming HSM
did not make its request timely, good cause existed to
grant HSM a hearing. The ALJ dismissed HSM's request for
a hearing as requested by the Health Care Financing
Administration (HCFA). The ALJ determined that HSM made
the request untimely and had no right to a hearing.
Further, the ALJ determined that HSM had not shown good
cause for making the untimely request.
We have reviewed the law, the record before the ALJ, the
ALJ Decision and parties' briefs on appeal. Based on the
following analysis, we sustain the ALJ Decision.
I. Background
A. Facts
The ALJ Decision contained the following relevant facts.
1/ On March 1, 1995, HCFA notified HSM that it was
terminating HSM's participation in the Medicare program.
In that letter, HCFA advised HSM that HSM could request a
hearing before an ALJ, if it believed that HCFA's
determination was not correct. HCFA advised HSM that the
regulations that governed the hearing process are at 42
C.F.R. section 498.40 et seq. HCFA advised HSM also that
HSM was required to file a written request for a hearing
no later than 60 days from HSM's receipt of the notice
letter. ALJ Decision at 3. Further, the ALJ Decision
noted that "by making its copy of the letter an exhibit,
[HSM] admits having received it." Id.
On March 16, 1995, HSM's director (Dr. Arroyo) visited
HCFA's regional office in New York. Dr. Arroyo was not
told by HCFA's representatives that he could make a
hearing request during his visit.
On May 16, 1995, Dr. Arroyo wrote to HCFA's regional
office. In that letter, Dr. Arroyo noted that, on March
20, 1995, four days after his visit to the New York
regional office, HCFA's representatives had advised him
by telephone that they had reviewed documents supplied to
HCFA by HSM. HCFA's representatives also told him that
the determination to terminate HSM's participation in the
Medicare program remained in effect.
On May 30, 1995, Dr. Arroyo wrote to HCFA requesting an
extension of time within which to request a hearing. In
that letter, Dr. Arroyo asserted two related reasons for
HSM not making a timely request for a hearing. First,
Dr. Arroyo asserted that, since early 1995, HSM had
attempted to convince HCFA that there were errors both in
the survey process and in the findings on which HCFA
based its determination to terminate HSM's participation
in the Medicare program. Dr. Arroyo asserted that HSM
had been unable until recently to find information that
was relevant to its assertions about HCFA's determination
to terminate HSM's participation in Medicare. Second,
Dr. Arroyo asserted that he had been suffering from an
old cardiac condition which had kept him out of his
office. Dr. Arroyo stated that the person whom he left
in charge in his absence left the position in April 1995
without locating the information with which HSM could
demonstrate the alleged errors in the survey process and
HCFA's findings.
On June 21, 1995, HCFA advised HSM that HCFA was unaware
of provisions in the regulations permitting an extension
of time for requesting a hearing. HCFA advised HSM to
request a hearing with an ALJ and to request the ALJ to
grant HSM a hearing, notwithstanding the fact that the
request would be untimely.
On June 27, 1995, Dr. Arroyo wrote to the Board's Civil
Remedies Division requesting an extension of time within
which to make a request for a hearing. In addition to
the two reasons he stated in his May 30, 1995 letter to
HCFA, Dr. Arroyo made two additional arguments. Dr.
Arroyo asserted that, as of the date of his letter, HSM
had located information to show that HCFA had erred in
its determination to terminate HSM's participation in the
Medicare program. Additionally, Dr. Arroyo asserted that
HSM had been delayed in requesting a hearing based on
HCFA's failure to respond quickly to Dr. Arroyo's May 30,
1995 letter. 2/
B. Findings of fact and conclusions of law
As noted above, the ALJ dismissed HSM's request for a
hearing. The ALJ Decision contained six supporting
findings of fact and conclusions of law (FFCLs). HSM did
not contest FFCLs 1 and 2 3/:
1. Petitioner would have had a right to a hearing
in this case had it made its request by May 4, 1995,
within 65 days from the date it received a notice
from HCFA that HCFA was terminating Petitioner's
participation in the Medicare program.
2. Petitioner did not make its request for a
hearing by May 4, 1995.
Therefore, we adopt and affirm these FFCLs without
further comment. The remaining FFCLs will be discussed
in the Analysis section below.
II. Analysis
HSM's arguments, in large part, repeat those presented to
the ALJ. HSM does, however, make new constitutional due
process and public interest arguments. Our analysis
addresses HSM's arguments on an issue-by-issue basis.
Relevant FFCLs, if any, are quoted after the statement of
each issue.
A. Did HSM establish good cause for its untimely hearing
request?
The ALJ found that:
3. Petitioner does not have a right to a hearing.
5. Petitioner did not prove that it was prevented
from making a timely request for a hearing by
circumstances beyond its ability or control.
6. Petitioner did not establish good cause for
making its request for a hearing out of time.
Although HSM contested FFCL 3, HSM's arguments in this
area focused on the reasons why the surrounding
circumstances established good cause for its untimely
hearing request. Essentially, HSM argued that its time
to request a hearing should be extended because: (1) Dr.
Arroyo is a layman with respect to legal and
administrative matters, and he maintained constant
communication with the Puerto Rico Department of Health
(the agency designated by HCFA to survey HSM's hospice)
in an attempt to comply with all regulations; (2) HSM's
employees started to resign upon receipt of HCFA's notice
of termination, and it was difficult for Dr. Arroyo to
gather the necessary information to contest the
allegations made by HCFA; and (3) during the last days
that Dr. Arroyo could have made a timely hearing request,
HCFA's termination caused a reoccurrence of his cardiac
problem, and therefore he was unable to make a timely
hearing request.
HSM's arguments are without merit. Section 498.40 of 42
C.F.R. provides, in relevant part:
(a)(2) The affected party or its legal
representative or other authorized official must
file the request in writing within 60 days from
receipt of the notice of initial, reconsidered, or
revised determination unless that period is extended
in accordance with paragraph (c) of this
section. . . .
* * *
(c)(2) For good cause shown, the ALJ may extend the
time for filing the request for hearing.
As the ALJ stated, HSM would have been entitled to a
hearing had it made its request by May 4, 1995, which is
65 days (including five days for mailing time pursuant to
42 C.F.R. section 498.22(b)(3)), from the date of HCFA's
notice of termination. ALJ Decision at 6. HSM did not
dispute FFCL 1 or argue that it made its request by May
4, 1995. Thus, we adopt and affirm FFCL 3.
Further, HSM's arguments do not show that HSM is entitled
to a section 498.40 extension of time for good cause. As
the ALJ stated, while the regulations do not define the
term "good cause," the term has been held to mean
circumstances beyond the ability of the provider to
control. ALJ Decision at 3 and case cited therein. HSM
did not challenge this definition of good cause in its
appeal.
We agree that the circumstances described by HSM were not
outside HSM's control for several reasons. First, as a
participant in the Medicare program, HSM agreed to adhere
to all federal requirements of the program. HSM cannot
now evade these requirements by arguing that its director
"is a layman with respect to legal and administrative
matters." Nor can the Board waive any such requirements
because HSM tried, but failed, to meet them. Second,
assuming arguendo that HSM's employees were resigning
based on HCFA's notice, this fact in no way affected
HSM's obligation to make a timely request for a hearing.
Granted, HSM's task might have been easier had its
employees not started to resign; however, HCFA's March 1,
1995 notification specifically informed HSM that HSM had
60 days to request a hearing. Further, HSM did not
allege that it would not have been able to set out the
basic elements of its case in a hearing request filed
within the required period. Moreover, since a pre-
hearing conference and possibly other procedures would
have been required prior to a hearing, HSM would have had
additional time to prepare evidence for a hearing. This
reasoning also applies, in part, to HSM's argument that
during the latter days of the time period to request a
hearing Dr. Arroyo was unable to do so because of illness
precipitated by HCFA.
With respect to that argument, the ALJ found that HSM had
not proved that Dr. Arroyo's illness prevented HSM from
making a timely request for a hearing. ALJ Decision at
8. In fact, the ALJ noted that, after HCFA's notice, Dr.
Arroyo personally visited HCFA's regional office in March
1995. The ALJ concluded that Dr. Arroyo's activities
shortly after receiving the termination notice from HCFA
suggest that he was capable at that time of assisting HSM
in making a request for a hearing. Id. HSM has not
produced any evidence to the contrary in this appeal.
Instead, HSM simply asserted that the reoccurrence of Dr.
Arroyo's illness was caused by HCFA, which is irrelevant
given the ALJ's conclusion that the illness did not
prevent a timely hearing request. 4/ Consequently, HSM
has not established that good cause existed for an
extension of time in which to request a hearing. Thus,
we adopt and affirm FFCLs 5 and 6.
B. Did HCFA prevent HSM from making a timely hearing
request?
The ALJ found that:
4. Petitioner did not prove that it was misled by
HCFA into making its request for a hearing out of
time.
HSM argued that because HCFA representatives did not tell
Dr. Arroyo, on his March 16, 1995 visit to the HCFA
regional office, that he could request a hearing or
submit a written request for a hearing in the same
building proves that Dr. Arroyo was misled by HCFA, and
that the Board should conclude from HCFA's failure to
provide such information that HSM was in fact misled.
Further, HSM asserted that Dr. Arroyo was told by HCFA
representatives that HSM had a priority position for a
resurvey, and that this information induced HSM not to
act.
As the ALJ determined, there is nothing misleading about
HCFA's March 1, 1995 notice. ALJ Decision at 6. HSM has
not provided any evidence that would show that HCFA
representatives were required to provide Dr. Arroyo with
any further information about the hearing request
deadline or alternative ways of requesting such a hearing
during his March 16, 1995 visit to HCFA's regional
office. Indeed, HSM has not provided any evidence to
show that Dr. Arroyo's visit was not simply to gain
information on correcting deficiencies found at the
hospice or to request a new survey. Finally, while the
record and the ALJ Decision do indicate that Dr. Arroyo
might have mistakenly believed that HSM's hospice would
be resurveyed, HSM has not presented any evidence to show
that this belief meant that HSM should not make a request
for a hearing. Specifically, HSM has not provided any
evidence to show that it reasonably believed that any
such resurvey would have occurred before the date that
the hospice was to be terminated from the Medicare
program. Nor has HSM specifically asserted that any HCFA
representative told HSM not to request a hearing. Thus,
we adopt and affirm FFCL 4.
C. Did the ALJ Decision deny HSM due process or violate
the public interest?
In addition to the arguments raised by HSM related to the
FFCLs in the ALJ Decision, HSM raised two new arguments
on appeal. First, HSM argued that the essence of this
case is about the right of HSM to an administrative
procedure and an opportunity to be heard as it is
established by the Due Process Clause of the U.S.
Constitution. Second, HSM argued that the decision by
HCFA has negatively affected the participants of the
hospice program throughout the eastern and southern parts
of Puerto Rico and violates the basic principle of
providing medical assistance to low-income persons who
are 65 or over. Thus, HSM concluded that the public
interest is being adversely affected by the ALJ Decision
not to grant HSM a hearing.
We determine that HSM was provided with the required due
process, and that the ALJ Decision does not violate the
public interest. While it is uncontested that HSM is
entitled to due process, the process which was due was
completely explained in HCFA's March 1, 1995 notice.
That notice informed HSM of HCFA's decision to terminate
HSM's hospice from the Medicare program. Additionally,
the notice explained HSM's hearing rights, including the
time for filing a hearing request. HSM cannot fail to
follow the procedures created and simultaneously assert
that HSM has not received due process.
Further, HSM's argument that the ALJ Decision violates
the public interest is without merit. The ALJ Decision
upholds HSM's termination from the Medicare program based
on a survey which found that HSM was in violation of five
conditions of participation. Thus, the ALJ Decision
protects the public interest from a provider who did not
meet program performance standards. Moreover, we note
that although HSM argued that it served the eastern and
southern parts of Puerto Rico, HSM did not show that its
hospice was the only facility in those areas providing
such services.
Conclusion
The ALJ's factual findings in this case are supported by
substantial evidence in the record. Further, HSM has not
shown that the ALJ's legal conclusions are erroneous.
Therefore, we sustain the ALJ Decision dismissing HSM's
request for a hearing.
Cecilia Sparks Ford
Donald F. Garrett
M. Terry Johnson
Presiding Board Member
1. For facts in dispute, the ALJ stated that, for
purposes of deciding the case, he accepted as true HSM's
representations concerning the conversations that HSM's
director had with HCFA's representatives. See ALJ
Decision at 4.
2. The ALJ did not reach the merits of these
arguments. We note, however, that HSM would, in any
event, be required to file a timely hearing request
before being permitted to produce evidence to show that
HCFA erred in its determination, since the production of
such evidence would have been done in the context of a
hearing. Further, Dr. Arroyo's May 30, 1995 letter to
HCFA was almost a month after the filing deadline.
Therefore, the question of HCFA's response time is
irrelevant to the issue here.
3. Citations to the pages in the ALJ Decision that
discussed the FFCLs have been omitted.
4. While not determinative of the issue here, we note
that HSM's allegation that HCFA's actions somehow caused
Dr. Arroyo's illness is completely unsubstantiated.