Alden-Princeton Rehabilitation and Health Care Center, Inc. (Alden-Princeton) appealed the April 29, 1999 decision by Administrative Law Judge (ALJ) Joseph K. Riotto dismissing the case under 42 C.F.R. �� 498.40(b) and 498.70(c). Alden-Princeton Rehabilitation & Health Care Center, Inc., CR588 (1999) (ALJ Decision). The ALJ found that a December 3, 1997 letter from Alden-Princeton seeking a hearing to challenge the Health Care Financing Administration's (HCFA's) imposition of Civil Monetary Penalties (CMPs) did not meet the hearing request content requirements of 42 C.F.R. � 498.40(b). The ALJ further found that Alden-Princeton failed to file a timely hearing request within the meaning of 42 C.F.R. � 498.70(c). The ALJ stated that he was "bound by the regulations," citing Birchwood Manor Nursing Center, DAB 1669 (1998), aff'd, Birchwood Manor Nursing Center v. Dep't of Health and Human Servs., No. 98-60695 (5th Cir. June 29, 1999), (reh'g denied September 8, 1999). The ALJ then concluded that since Alden-Princeton's letter did not include the information required by section 498.40(b), it was "subject to dismissal [under section 498.70(c)] regardless of past practice or concessions [of HCFA]." ALJ Decision at 7.

On appeal, Alden-Princeton contended that its December 3, 1997 letter constituted a timely request for hearing that conformed to the content requirements of the applicable regulations.

The standard of appellate review on a disputed issue of law is whether the ALJ decision is erroneous. As discussed below, we conclude, based on the plain language of section 498.40(b), the wording of Alden-Princeton's December 3, 1997 letter, and the context in which Alden-Princeton sought an ALJ hearing, that the ALJ did not err in finding that Alden-Princeton's December 3, 1997 letter did not constitute a legally sufficient request for hearing under section 498.40(b) that could properly be dismissed pursuant to section 498.70(c).

In a recent Departmental Appeals Board (Board) ruling issued after the ALJ Decision, however, the Board observed that the plain language of section 498.70 states that an ALJ "may" dismiss an untimely filed request for hearing. Ruling on Request for Removal of Hearing to Board, Four States Care Center, Appellate Division Docket No. A-99-66, (June 7, 1999); see also Ruling on Request for Removal of Hearing to Board, Rehabilitation & Healthcare Center of Tampa, Appellate Division Docket No. A-99-95 (August 16, 1999). This wording, the Board concluded, gave the ALJ discretion to consider the particular circumstances surrounding a facially defective hearing request, including whether the intent of the filing procedures had been met and whether HCFA had in effect waived objection to the sufficiency of the hearing request, and to conclude that dismissal was not appropriate. Id.

In this matter, the ALJ Decision did not overtly recognize the ALJ's discretionary authority under section 498.70 not to dismiss the case in whole or in part. Further, even if the ALJ did in fact engage in an exercise of discretion under section 498.70, the ALJ Decision did not include an explanation as to why the ALJ determined, after taking into account the particular facts of the case, that dismissal of the entire matter was appropriate. Therefore, we conclude that remand of this case is necessary for the ALJ to exercise his discretion under section 498.70(c), and to explain, based on the particular circumstances presented, why he does or does not dismiss the case in whole or in part.

Applicable Regulations and Board Precedent

Pursuant to sections 1819(a)-(d), 1861(l) and 1919(a)-(d) of the Social Security Act, the Secretary's regulations at 42 C.F.R. Part 483 contain the requirements that an institution must meet in order to qualify to participate as a skilled nursing facility in the Medicare program and as a nursing facility in the Medicaid program. These requirements serve as the basis for survey, certification and enforcement activities, implemented by the regulations at 42 C.F.R. Part 488. The statute and regulations specify remedies that HCFA may impose when a facility is not in compliance with program participation requirements. See Social Security Act, �� 1819, 1919; 42 C.F.R. Part 488, Subpart F. Under the regulations, a facility may appeal the findings of noncompliance leading to the imposition of an enforcement remedy, but not the choice of remedy. 42 C.F.R. �� 488.408(g), 498.3(b)(12), 498.3(d)(11). In addition, the facility may appeal the level of noncompliance found by HCFA only if a successful challenge would affect the range of the civil monetary penalty. 42 C.F.R. �� 498.3(b)(13), 498.3(d)(10)(ii).

An affected party seeking to challenge a HCFA determination to impose CMPs must file a written request for an ALJ hearing within 60 days from its receipt of the notice of initial, reconsidered, or revised determination. 42 C.F.R. � 498.40(a). Section 498.40(b) specifies that the hearing request must--

(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.

Section 498.40(c) provides that the ALJ may extend the time for filing a request for hearing for good cause shown. Under 42 C.F.R. � 498.70(c), the ALJ may dismiss a hearing request entirely or as to any stated issue if the affected party did not timely file a hearing request and the time for filing has not been extended for good cause. Under section 498.71(b), an ALJ dismissal of a hearing request is binding unless it is vacated by the ALJ or the Departmental Appeals Board.

In Birchwood Manor Nursing Center, DAB 1669 (1998), aff'd, Birchwood Manor Nursing Center v. Dep't of Health and Human Servs., No. 98-60695 (5th Cir. June 29, 1999), Regency Manor Healthcare Center, et al., DAB 1672 (1998), and Care Inn of Gladewater, DAB 1680 (1999), the Board sustained ALJ dismissal orders on the ground that the petitioners' letters seeking hearings 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). (In Birchwood and Regency, the Board concluded that letters seeking hearings merely referred generally to certification or compliance issues on which HCFA based its determination.) The Board further sustained the ALJ actions on the ground that the letters did not specify the bases for contending that the findings and conclusions were incorrect, as required by section 498.40(b)(2). Because section 498.40(b) requires this information, the Board reasoned, it follows that a letter lacking this information does not constitute a request for hearing within the meaning of the regulations. Accordingly, the Board concluded that the petitioners did not file timely hearing requests and dismissal was proper under 42 C.F.R. � 498.70(c).

The Board stated in Birchwood that there are "compelling reasons" why parties must strictly adhere to the clear requirements of the regulation. Birchwood at 9. The Board noted that the Secretary's regulations do not require any submission following a hearing request for a petitioner to identify the issues in dispute. Thus, HCFA might be unable to prepare adequately for a hearing if an ALJ accepted as a hearing request a document that does not fully comply with the requirements of section 498.40(b). In addition, strict adherence to the regulation ensures that the ALJ can rule correctly on the relevance of evidence sought to be introduced at the hearing and that a case does not proceed to hearing if only legal issues are disputed. Further, the Board observed that resolution of a case could be delayed substantially if an ALJ were to permit a petitioner to identify issues in dispute after accepting a deficient submission as a hearing request. Birchwood at 11.

As noted above, the Board recently ruled that the use of the word "may" in section 498.70 means that the ALJ has discretion to determine whether to dismiss a particular request for hearing based on the particular circumstances of the case. In Four States Care Center, the ALJ denied HCFA's motion to dismiss on the ground that the intent of the Secretary's filing procedures had been fulfilled. While the ALJ recognized that a request for hearing must be sufficiently complete to provide notice of the issues, he determined that the defect in the initial request for hearing had in fact been remedied and that HCFA had in effect waived its objection to the request. Denying HCFA's request for removal of the hearing in Four States, the Board rejected HCFA's contention that a hearing request may never be supplemented after the initial 60-day submission period as inconsistent with the ALJ's authority to grant extensions of time for good cause shown under section 498.40(c). Further, the Board distinguished the holdings in Birchwood, Regency and Care Inn, noting that the facilities in those cases never supplemented or even sought to supplement their deficient hearing requests. Those cases, the Board observed, did not address whether an ALJ could conclude that dismissal was not appropriate based on the particular circumstances in a case before him or her.

Background

In a letter dated November 14, 1997, HCFA notified Alden-Princeton that it had decided to impose CMPs based on surveys conducted by the Illinois Department of Public Health (IDPH) on August 26, 1997, September 18, 1997, and October 2, 1997. HCFA wrote that the first survey found an isolated deficiency on July 17, 1997 that "constituted an immediate jeopardy whereby significant corrections were required (Level J)." HCFA noted that the IDPH had previously advised Alden-Princeton of the deficiency leading to the determination, citing 42 C.F.R. � 483.25, Quality of Care, (F328), (Level J). HCFA's notice stated that on further review, HCFA and IDPH "determined that the immediate jeopardy was abated on July 17, 1997, but that noncompliance with the requirement at F328 continued at the non-immediate jeopardy level until September 23, 1997 . . . ." HCFA also wrote that the September 18, 1997 survey revealed that the facility was not in substantial compliance with additional requirements, and that the October 2, 1997 survey revealed noncompliance with another requirement. HCFA Motion to Dismiss, Ex. 1.

HCFA's November 14, 1997 notice stated that it had decided to impose the following penalties based on the noncompliance found by the surveys: 1) a CMP of $3,050 per day for the one day (July 17, 1997) that IDPH found immediate jeopardy existed; and 2) a CMP of $100 per day for the following 98 days of continuing noncompliance. HCFA stated that if Alden-Princeton disagreed with the findings of noncompliance resulting in the CMPs, it could request a hearing before an ALJ by filing a written request within 60 days from its receipt of the HCFA notice. "A request for hearing," HCFA wrote, "should identify the specific issues and the findings of fact and conclusions of law with which you disagree [and] specify the basis for contending that the findings and conclusions are incorrect." Id.

On December 3, 1997, Alden-Princeton's representatives submitted a letter addressed to HCFA which read in pertinent part:

Please be advised that we represent Alden Princeton Rehabilitation & Health Care Center, who has received Notice of Imposition of a Remedy (Civil Money Penalty) under the above captioned number. Please be advised that we are the attorneys for Alden Poplar Creek, [sic] and do by this letter hereby request a hearing on said purported findings.

My clients believe that the violations cited by the surveyors were improperly found, and the level of the findings was excessive, and believe that they were not likely to cause any injury, harm or death to the resident, and believe that if deficiencies did exist, they were nothing other than minimal.

We therefore request a hearing on the above captioned matter.

HCFA Motion to Dismiss, Ex. 2. Following the assignment of the case to the ALJ, the parties requested and received two separate stays of the proceedings to explore settlement.

When the parties did not resolve the case through settlement discussions, they filed reports on readiness for hearing. Citing section 498.40(b) in its August 3, 1998 report, HCFA contended that Alden-Princeton's letter of December 3, 1997 did not identify any factual findings with which Alden-Princeton disagreed. HCFA added, however, that "because the hearing request does refer to causing 'injury, harm or death to the resident,' the inference may be fairly drawn that the facility contests the one deficiency finding that it caused immediate jeopardy to a resident on July 17, 1997. . . ." HCFA's Report on Readiness at 1-2.

On August 20, 1998, Alden-Princeton filed its Report on Readiness for Hearing contending, among other things, that because its letter requesting a hearing was based on HCFA's November 14, 1997 notice, it "encompassed all findings contained in the notice . . . ." Alden-Princeton's Report on Readiness at 2. Alden-Princeton wrote with respect to the immediate jeopardy deficiency that it was in substantial compliance with the tracheal suctioning requirement, as found by one of the IDPH surveyors, "and because of said fact," the CMP imposed for that deficiency was not justified. As to the remaining deficiencies cited in HCFA's notice, Alden-Princeton wrote that "if an issue of non-compliance did not exist at that time [July 17, 1997], the petitioner would not be in a survey cycle that allowed the Civil Money Penalties to continue." Further, Alden-Princeton wrote that it was contesting the other deficiencies because it was in substantial compliance with the regulatory requirements cited.

On September 8, 1998, HCFA filed a motion for summary affirmance of the CMP relating to the one-day (July 17, 1997) immediate jeopardy deficiency and a detailed memorandum with accompanying exhibits in support of its motion. In its brief, HCFA identified applicable legal principles and included a statement of alleged undisputed material facts relating to the deficiency. HCFA further made arguments that Alden-Princeton was not in substantial compliance with 42 C.F.R. � 483.25(k) on July 17, 1997, that HCFA appropriately imposed an upper range penalty, and that the amount of the penalty was reasonable.

HCFA also filed a motion to dismiss the remainder of the case on September 8, 1998. Citing section 498.40(b) of the regulations, HCFA submitted that Alden-Princeton had "preserved only one determination for hearing: whether HCFA correctly imposed a CMP in the upper range because the facility was not in substantial compliance with 42 C.F.R. � 483.25(k) on July 17, 1997." Brief in Support of HCFA's Motion to Dismiss in Part at 1. Arguing for dismissal of the remainder of the case, HCFA wrote that the hearing request failed to preserve any genuine issue of material fact regarding either the basis for, or the amount of, the CMP after July 17, 1997. HCFA subsequently sent to the ALJ a copy of the Board's decision in Birchwood Manor Nursing Center, DAB 1669 (Sept. 4, 1998), in support of its pending dismissal motion.

On November 13, 1998, Alden-Princeton filed a detailed response to HCFA's motion for summary affirmance of the immediate jeopardy citation, arguing that summary affirmance would be inappropriate because material facts involving the citation were in dispute. Further, Alden-Princeton contended that the facility was in substantial compliance with 42 C.F.R. � 483.25(k), that HCFA inappropriately imposed an upper range penalty and that no CMP would be appropriate under the facts alleged.

Alden-Princeton also filed a reply to HCFA's dismissal motion on November 13, 1998, contending that its letter requesting a hearing met the requirements of 42 C.F.R. � 498.40(b) with regard to the findings after July 17, 1997, as well as to the amount of the CMP.

On December 11, 1998, HCFA submitted a reply brief supporting its motion to dismiss arguing, among other things, that only after several conversations with Alden-Princeton in which Alden-Princeton raised particular concerns about the immediate jeopardy citation did HCFA concede that the hearing request might be construed as challenging the July 17, 1997 citation. HCFA Reply Brief in Support of Motion to Dismiss in Part at 4. Alden-Princeton filed a sur-reply on January 6, 1999. ALJ Riotto issued the decision dismissing the case on April 29, 1999, and this appeal followed.

1. The ALJ did not err in concluding that Alden-Princeton's July 3, 1997 letter did not meet the specific requirements of 42 C.F.R. � 498.40(b)

We conclude, based on the plain language of the Secretary's regulations governing the content of hearing requests, the rationale presented in the Board decisions discussed above, and the wording of Alden-Princeton's December 3, 1997 letter, that the ALJ did not err in finding that Alden-Princeton's letter did not constitute a legally sufficient request for hearing under section 498.40(b). First, we conclude that Alden-Princeton's December 3, 1997 letter failed to meet the first requirement of the regulation governing the content of hearing requests at section 498.40(b)(1). That is, Alden-Princeton's letter neither identified specific issues, nor specified findings of fact or conclusions of law with which Alden-Princeton disagreed. In the first paragraph of its letter, Alden-Princeton referred to HCFA's November 14, 1997 notice, and made only the summary statement that it was requesting an ALJ hearing "on said purported findings." As noted above, HCFA's action was based on multiple surveys, numerous findings and a series of conclusions. Accordingly, Alden-Princeton's cursory reference to "said purported findings" plainly failed to delineate which of the many issues, findings and conclusions it intended to challenge.

The second paragraph of Alden-Princeton's letter, consisting of ambiguous allusions and generalized allegations, similarly failed to identify the particular issues Alden-Princeton intended to raise. In the second paragraph, Alden-Princeton wrote that "the violations cited by the surveyors were improperly found," yet did not explain which of the violations cited in several surveys it intended to contest by, for example, identifying the surveys by dates and violations by reference to tag number.⁽¹⁾ Likewise, Alden-Princeton wrote that "the level of the findings was excessive," yet simply failed to specify which deficiency findings it intended to challenge as excessive. Further, while Alden-Princeton added that "they" likely would not "cause any injury, harm or death to the resident," the letter again did not delineate which of many findings Alden-Princeton disputed, let alone which "resident" it meant to allude to. In sum, while Alden-Princeton implied through the use of plural terms ("findings," "violations," "surveyors" and "deficiencies") that it planned to raise more than a single issue, and challenge more than a single finding of fact or conclusion of law, the request failed to delineate which of the many issues, facts, or conclusions underlying HCFA's decision it disputed, as required by the plain language of section 498.40(b)(1).

Alden-Princeton argued, however, that the language in its letter in effect identified all of the findings in the HCFA notice and all of the violations cited in the multiple surveys underlying HCFA's action. "Specific itemization," Alden-Princeton wrote in its request for Board review, "would add nothing further." Request for Review at 4.

We disagree. HCFA's decision to impose CMPs specifically incorporated multiple surveys, dozens of findings and a series of citations. While Alden-Princeton used plural terms in its December 3, 1997 letter, plainly conveying that it intended to raise more than a single issue before the ALJ, the imprecise language of the letter failed to make clear whether Alden-Princeton intended to challenge each and every factual finding and legal conclusion potentially at issue. Part of the purpose of requiring more specificity is to ensure that the appellant has reviewed the particular facts and law and determined whether it has any bases for raising any legitimate disputes.

Moreover, even if one construed Alden-Princeton's December 3, 1997 request as satisfying the requirements of section 498.40(b)(1), the letter was legally insufficient as a hearing request because it failed to specify the basis for contending that the findings and conclusions on which HCFA based its decision were incorrect, as required by section 498.40(b)(2). As noted above, Alden-Princeton's December 3, 1997 letter stated only that the cited "violations" "were improperly found," that "the level of the findings was excessive," that it "believe[d] that they were not likely to cause any injury, harm or death to the resident," and that it "believe[d] that if deficiencies did exist, they were nothing other than minimal." Thus, while making generalized allegations, Alden-Princeton did not provide any specific grounds for contesting HCFA's findings and conclusions, as required by the regulations. Alden-Princeton did not state, for example, whether particular violations cited in the surveys were "improperly found" because they were factually erroneous or because HCFA had erroneously interpreted program requirements in reaching its conclusions.

Alden-Princeton nevertheless argued before us that its December 3, 1997 letter specified the basis for contending that HCFA's findings and conclusions were incorrect, as required by section 498.40(b)(2). First, Alden-Princeton wrote that the statements in the letter that the violations "were not likely to cause any injury, harm or death to the resident" and that "if deficiencies did exist, they were nothing other than minimal," referred to the Remedy Category Grid at section 7400 of HCFA's State Operations Manual. The Grid organizes the seriousness of deficiencies by levels of scope and severity (1. Immediate jeopardy to resident's health or safety; 2. Actual harm that is not immediate jeopardy; 3. No actual harm with potential for more than minimal harm that is not immediate jeopardy; and 4. No actual harm with potential for minimal harm); and identifies the remedies that may or must be imposed. Second, Alden-Princeton contended that the statement in the letter that "the violations cited by the surveyors were improperly found," referenced a discrepancy in findings made by two particular IDPH surveyors which, Alden-Princeton wrote, "immediately calls into question a factual dispute, and puts into focus the Petitioner's request for hearing." Request for Review at 5. Thus, Alden-Princeton contended, the language of its letter "brings to issue not only the violation[s] as alleged, but the level of the findings assigned to the purported violation[s] . . . ." Id.

We reject Alden-Princeton's contentions. Mere use of the words "injury, harm or death" and "minimal" did not, as Alden-Princeton argued, clearly convey an intention to rely on HCFA's Remedy Category Grid, let alone convey the reason why Alden-Princeton was contesting HCFA's assignment of levels to the violations found.

Furthermore, we agree with the ALJ's conclusion that one cannot deduce from the summary language in the letter ("the violations cited by the surveyors were improperly found") that Alden-Princeton intended to allude to an alleged factual disagreement between two particular IDPH surveyors. As the ALJ noted, HCFA's action was based on multiple surveys; the language in Alden-Princeton's letter simply fails to identify which of the surveys it intended to contest, let alone that it intended to refer to one factual disagreement between surveyors. Indeed, Alden-Princeton's reference to this disagreement undercuts its statement that it intended to contest all of the findings.

In addition, while Alden-Princeton's letter included the phrase "were not likely to cause any injury, harm or death to the resident," appearing to allude to the immediate jeopardy standard at 42 C.F.R. � 488.301⁽²⁾ and, by extension, the immediate jeopardy citation in HCFA's determination, this allusion itself does not provide a basis for us to conclude that the ALJ erred in finding the letter legally insufficient under section 498.40(b). The regulation requires that the provider specify the particular findings of fact and conclusions of law with which it disagrees. A vague reference to one of many deficiencies cannot be equated with a clear articulation of the specific findings and conclusions with which a party disagrees and the basis for contending that the findings and conclusions were incorrect. Had Alden-Princeton intended, for example, to challenge particular factual findings underlying the immediate jeopardy citation, it should have specified which findings were erroneous; if Alden-Princeton intended to charge that IDPH misapplied HCFA standards to conclude that an immediate jeopardy situation existed, Alden-Princeton should have stated how IDPH misapplied these standards.

We also conclude that Alden-Princeton's reliance in its request for review on the ALJ decision in Canton Healthcare Center, Docket No. C-96-266, was misplaced. In Canton, Alden-Princeton wrote, the ALJ reasoned that compliance with the hearing request content requirements "inures to the benefit of those parties who are litigating in good faith . . . ." Request for Review at 6; Canton at 35. Thus, Alden-Princeton implied that the ALJ's dismissal should be reversed because Alden-Princeton sought to challenge HCFA's CMP determination in good faith. As the Board has recognized in earlier decisions discussed above, compliance with the specific requirements of section 498.40(b) indeed serves to ensure that parties seeking ALJ hearings are litigating in good faith. It does not follow, however, that merely because a party has litigated in good faith, the document that it submits as a hearing request must be considered legally sufficient under section 498.40(b) of the regulations.

We further reject Alden-Princeton's contentions that the test of the sufficiency of a hearing request under section 498.40(b) is whether HCFA knows what is being contested in order to prepare its defense, that the December 3, 1997 letter should be liberally construed under accepted principles of administrative law,⁽³⁾ and that if the ALJ deemed the request to be lacking in specificity, Alden-Princeton should have been provided additional opportunity to amend its hearing request. As we discuss below, section 498.70 confers on an ALJ the discretion not to dismiss a particular case in whole or in part based on particular circumstances in that case. Those circumstances may 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. The test of the sufficiency of a hearing request under section 498.40, however, is prescribed by the plain language of the Secretary's regulation. The test of the sufficiency of a hearing request is not, as Alden-Princeton argued, whether the respondent is able to know what deficiencies are being contested. Moreover, HCFA asserted that it only became aware of Alden-Princeton's particular concern about the immediate jeopardy citation from discussions with Alden-Princeton following the submission of its hearing request. This concession does not overcome the insufficiency of the December 3, 1997 request under section 498.40(b), especially since Alden-Princeton argued that its letter preserved more than the immediate jeopardy deficiency. For the reasons detailed above, we conclude that the ALJ did not err in determining that Alden-Princeton's December 3, 1997 letter failed to satisfy the requirements at section 498.40(b).

2. The ALJ did not err in concluding that Alden-Princeton did not file a timely hearing request within the meaning of 42 C.F.R. � 498.70(c).

We further conclude, based on the rationale presented in Birchwood, Regency Manor, and Care Inn, that the ALJ did not err in concluding that Alden-Princeton failed to file a timely hearing request under section 498.70(c). Alden-Princeton argued that because its December 3, 1997 letter was sent within 60 days of HCFA's notice of November 14, 1997, it plainly met the provision regarding timeliness of a hearing request at section 498.40(a). Alden-Princeton wrote that the ALJ's reasoning that if the content of a request is insufficient, the request is rendered untimely "is a strained and contrived finding and is outside the plain meaning of the code provisions." Request for Review at 3. As the Board wrote in Birchwood, however:

. . . the term "hearing request" in section 498.70(c) clearly refers to the request for hearing described in section 498.40(b), since it is a basic canon of statutory (and hence regulatory) construction that identical terms within the same statute (or regulation) bear the same meaning. [Citation omitted.] Thus, section 498.70(c) not only authorizes dismissal where an otherwise acceptable hearing request is filed after the 60-day deadline in section 498.40(a)(2) but also where a document filed within the 60 days does not constitute a request for hearing within the meaning of section 498.40(b).

Birchwood at 9-10. We thus reject Alden-Princeton's contentions that the ALJ's interpretation of the regulations was strained and that the finding that Alden-Princeton had not filed a timely hearing request under section 498.70(c) was erroneous because Alden-Princeton sent its request within 60 days of receipt of HCFA's notice.

3. Remand is necessary so that the ALJ may, in exercising the discretion authorized under 42 C.F.R. � 498.70, consider whether dismissal of the case in whole or part would not be appropriate based on the particular circumstances presented.

When the Board reviews an ALJ dismissal order, it does not lightly reach the conclusion that a petitioner has no right to a hearing. Birchwood at 10. A dismissal of a civil money penalty proceeding effectively is a conclusion that the provider was given an opportunity for a hearing and through its own actions, contrary to clear requirements, failed to take advantage of the opportunity. As discussed above, there are compelling reasons for requiring adherence to the clear requirements of section 498.40(b), governing the content of hearing requests. At the same time, however, the recent Board ruling in Four States Care Center recognizes that section 498.70 of the Secretary's regulations takes into account the serious consequences of dismissal by conferring 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.

In light of the severe consequences of a dismissal of a hearing request and recent Board precedent involving requests that fail to meet the requirements of section 498.40(b) of the regulations, we must review not only whether the ALJ erred in concluding that Alden-Princeton's December 3, 1997 letter did not constitute a timely, legally sufficient hearing request under the regulations, but also whether the ALJ abused his discretion under section 498.70 in dismissing the case.

In this case, Alden-Princeton argued that, because HCFA admitted that the December 3, 1997 letter was sufficient to bring to issue the immediate jeopardy citation, the letter was sufficient to preserve the other deficiencies for hearing. Responding to the same argument below, the ALJ observed that HCFA had questioned the sufficiency of Alden-Princeton's request and "evidently agreed to litigate [the immediate jeopardy deficiency] only after discussions with Petitioner." ALJ Decision at 7, citing Reply Brief in Support of Motion for Summary Affirmance at 4. Further, the ALJ wrote:

In my review, I have found that Petitioner's abbreviated request is insufficient to raise any challenge, as such request is not in compliance with the requirements of the regulations. I am not bound by any concession made by HCFA, but I am bound by the regulations. Section 498.40(b) . . ., on its face, requires that a hearing request contain certain information and, if it does not, such request is subject to dismissal regardless of past practice or concessions. See Birchwood, DAB No. 1669 at 12.

Thus, it appears that the ALJ concluded that once he determined that the December 3, 1997 letter was not a legally sufficient hearing request under section 498.40(b), dismissal of the hearing request under section 498.70 necessarily followed. Further, the ALJ indicated that he construed both the regulations and Board precedent as preventing him from exercising discretion to take into account HCFA's actions in the case before him and from potentially concluding, based on those circumstances, that dismissal of the case in whole or part might not be appropriate.

We conclude that the ALJ appears to have erred in construing section 498.70 and the Board's decision in Birchwood as circumscribing his discretionary authority. As noted above, in Four States Care Center, the Board observed that the use of the word "may" in section 498.70 means that the ALJ has discretion to determine whether dismissal would not be appropriate based on the particular circumstances of the case. Further, contrary to the ALJ's reading, the Board in Birchwood did not reject consideration of actions and concessions that took place during the Birchwood proceedings themselves. Rather, the Board rejected the contention that the dismissal should have been reversed because in other cases HCFA had not challenged the legal sufficiency of cursory hearing requests and ALJs had accepted these types of documents. In addition, we note that the facility in Birchwood never submitted additional substantive documents, such as Alden-Princeton's response to HCFA's motion for summary affirmance in this case, that might have been construed as effectively supplementing its hearing request.

Further, we note that even if the ALJ in this case did in fact recognize and engage in an exercise of his discretionary authority under the dismissal regulation, the ALJ Decision does not include an explanation as to why the ALJ might have determined, after taking into account the particular facts of the case, that dismissal of the entire matter was appropriate. Insofar as the ALJ decision is silent, we are unable to review it to determine whether the ALJ abused his discretion under section 498.70.

Accordingly, we conclude that remand of this case is necessary for the ALJ to consider and explain, in exercising his discretion under section 498.70(c), whether dismissal of this case in whole or part would not be appropriate based on the particular circumstances presented. The ALJ may address, for example, whether defects in the initial request for hearing were, in effect, subsequently remedied by the submission of additional documents, whether HCFA in effect waived its objection to the request in whole or in part, and whether Alden-Princeton may have reasonably concluded that its hearing request was sufficient in whole or part based on the course of the proceedings. In evaluating the actions in the proceedings below, the ALJ further may consider whether, and the extent to which, the intent of the Secretary's hearing request filing procedures were fulfilled.

Based on the foregoing analysis, we uphold the ALJ's determination that Alden-Princeton's request for hearing dated December 3, 1997, did not meet the specific requirements of 42 C.F.R. � 498.40(b). We additionally uphold the ALJ's determination that Alden Princeton failed to file a timely hearing request within the meaning of 42 C.F.R. �� 498.40(b) and 498.70(c).

We remand this case to the ALJ so that he may consider and explain, in exercising his discretion under section 498.70(c), whether dismissal of the entire matter or any particular issue may not be appropriate based on the particular circumstances presented in this case.

1. Deficiencies are listed in survey reports under headings designated as "tags," each of which corresponds to a requirement of participation in the regulations.

2. The regulation defines an "immediate jeopardy" situation as one in which the provider's program participation violation "has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident."

3. Alden-Princeton wrote that "[s]ection 100.6(f) of the Public Health Rule of Practice and Procedure in Administrative Hearings provides that all written documents provided for under this section shall be liberally construed with a view toward doing substantial justice between the parties." Request for Review at 6. We are unable to locate or further identify this rule.

Further, the decision cited by Alden-Princeton to support its argument, Yaffe Iron and Metal Company, Inc. v. U.S. E.P.A., 774 F.2d 1008 (10^th Cir. 1985), is inapposite; the language Alden-Princeton quoted from Yaffe Iron relates to an administrative complaint and procedural rules specifically permitting amendment on motion.