Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division

In the Case of:

Birchwood Manor Nursing Center, Petitioner,

- v. -

The Health Care Financing Administration.

Civil Remedies Docket No. C-97-023
App. Div. Docket No. A-98-66
Decision No. 1669

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DISMISSAL

On appeal, Petitioner contested both grounds for dismissal of its case. In addition, Petitioner contended that the ALJ's order should be reversed because prejudicial errors of procedure were committed.

The standard of review on a disputed issue of law is whether the ALJ decision is erroneous. As discussed below, we conclude that the ALJ did not err in dismissing this case pursuant to section 498.70(c). Specifically, we find that the ALJ's determination was based on the plain language of section 498.40(b), which mandates that a hearing request identify the specific issues and the findings of fact and conclusions of law that the petitioner disputes, as well as specify the basis for its position. Section 498.70(c), which authorizes dismissal for lack of a timely filed hearing request, clearly refers to the request for hearing described in section 498.40(b). Since Petitioner's October 21, 1996 letter failed to meet the requirements of section 498.40(b), the ALJ properly dismissed the case pursuant to section 498.70(c). We also conclude that there were no prejudicial errors of procedure that warrant reversal of the ALJ's order. In view of our conclusion that the case was properly dismissed pursuant to section 498.70(c), we need not determine whether the case was also properly dismissed pursuant to section 498.70(b).

Accordingly, we sustain the ALJ's order of dismissal as to Petitioner.

Applicable Authority

To qualify to participate in the Medicare and Medicaid programs as a skilled nursing facility, a facility must be certified as meeting certain requirements imposed by statute, as well as requirements that the Secretary of Health and Human Services has determined to be necessary for the health and safety of individuals to whom services are furnished. The survey and certification process for skilled nursing facilities, established under section 1819(g) of the Act and implemented by the regulations at 42 C.F.R. Part 488, is the means by which HCFA and its agents assess compliance with the requirements for participation in Medicare and Medicaid. The statute and regulations specify remedies that may be utilized by HCFA when a skilled nursing facility is not in substantial compliance with the participation requirements. See Social Security Act, .. 1819, 1919; 42 C.F.R. Part 488, Subpart F. Under these regulations, the facility may appeal the findings of noncompliance leading to the imposition of an enforcement remedy, but not the choice of remedy. The facility may also appeal the level of noncompliance found by HCFA if a successful challenge would affect the range of the civil money penalty. See section 488.408(g), 498.3(b)(12), 498.3(b)(13).

Section 498.40, captioned "Request for hearing," states as follows:

(a) Manner and timing of request. (1) An affected party entitled to a hearing under . 498.5 may file a request for hearing . . .
(2) The affected party or its legal representative . . . must file the request in writing within 60 days from receipt of the notice of the initial, reconsidered, or revised determination unless that period is extended in accordance with paragraph (c) of this section. . . .

(b) Content of request for hearing. The request for hearing 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.

(c) Extensions of time for filing a request for hearing. If the request was not filed within 60 days--

(1) The affected party or its legal representative . . . may file with the ALJ a written request for extension of time stating the reasons why the request was not filed timely.
(2) For good cause shown, the ALJ may extend the time for filing the request for hearing.

Section 498.70 gives the ALJs authority to dismiss, for cause, a hearing request entirely or as to any stated issue sua sponte or on the motion of a party under the following circumstances:

(a) Res judicata. . . .
(b) No right to hearing. The party requesting a hearing is not a proper party or does not otherwise have a right to a hearing.
(c) Hearing request not timely filed. The affected party did not file a hearing request timely and the time for filing has not been extended.

Other relevant statutory and regulatory provisions are identified later in this decision.

Procedural Background

In a letter to Petitioner dated August 23, 1996, HCFA stated that the survey conducted on July 29, 1996 by the Texas Department of Human Services found that Petitioner was not in substantial compliance with the federal requirements for nursing home participation in the Medicare and Medicaid programs. HCFA also stated that "[w]e concur with the survey findings which indicate that the following Medicare/Medicaid Requirements were out of compliance," and listed the following: "42 CFR 483.10(b)(1) Resident Rights," "42 CFR 483.25 Quality of Care," and "42 CFR 483.40(a)(1) and (2) Physician Services." In addition, HCFA stated that the survey findings were listed on the Statement of Deficiencies and Plan of Correction (Form HCFA-2567), which HCFA noted had been forwarded to Petitioner by the State survey agency.

HCFA's August 23, 1996 letter further stated that, based on Petitioner's "current and past noncompliance with Medicare/Medicaid requirements, your facility's Medicare/Medicaid agreement will terminate on January 29, 1997." (Emphasis in original.) The letter continued: "In addition to termination, a civil money penalty (CMP) has been imposed in accordance with the statutory provisions at .1819(h) and .1919(h) and the regulations at 42 CFR 488.430, 488.434, 488.438 in the amount of $1,000.00 per day commencing on July 29, 1996. The CMP will continue to accrue until the deficiencies are corrected and your facility is found to be in substantial compliance, or your provider agreement is terminated." (Emphasis in original.) The letter further stated: "Also, payment will be denied for all new Medicare and Medicaid admissions effective September 7, 1996." (Emphasis in original.)

In addition, in a section captioned "Appeal Rights," the letter stated:

If you disagree with this determination to terminate your facility's Medicare agreement, you or your legal representative may request a hearing before an administrative law judge of the Department of Health and Human Services, Departmental Appeals Board. Procedures governing this process are set out in 42 CFR .498.40, et. seq. You may appeal the finding of noncompliance which led to an enforcement action, but not the enforcement or remedy itself. A written request for hearing must be filed no later than 60 days from the date of receipt of this letter. . . . (Emphasis in original.)

By letter dated September 27, 1996, HCFA notified Petitioner that it had ceased the action to terminate its provider agreement based on a report by the State survey agency that Petitioner was now in substantial compliance with the requirements for Medicare participation.

HCFA further stated that "[b]ecause your facility achieved compliance prior to the date of the proposed denial of payment for new admissions, payment will not be denied for any period of days." (Emphasis in original.) In addition, HCFA stated that, based on Petitioner's previous non-compliance, it had imposed a civil money penalty in the amount of $1,000 per day, totaling $25,000 for the 25-day period of noncompliance from July 29, 1996 through August 22, 1996.

This letter also noted that HCFA's records indicated that no request for hearing had been filed regarding this action, and reminded Petitioner that any request for hearing was due by October 22, 1996.

Petitioner's October 21, 1996 letter, addressed to the Associate Regional Administrator, Division of Health Standards and Quality, Health Care Financing Administration, stated in its entirety:

Regarding the above-referenced facility, we hereby request a hearing to contest the remedies, certification issues and any and all remedies and adverse actions recommended as a result of the survey conducted on July 19, 1996, including any and all follow-up surveys which led to the enforcement of this action.

HCFA forwarded Petitioner's letter to the Civil Remedies Division, Departmental Appeals Board, which docketed the case and assigned it to ALJ Leahy. The ALJ stayed the case on December 5, 1996 pending HCFA's consideration of Petitioner's settlement proposal (with HCFA reserving the right to raise a timeliness issue in the event that the stay was lifted). Despite the stay order, on December 24, 1996, Petitioner filed a motion to strike HCFA's August 23, 1996 and September 27, 1996 letters. The motion alleged that HCFA's "determination letters" were "deficient notice" and as such violated the Administrative Procedure Act. In the motion, Petitioner acknowledged its obligation under section 498.40(b) to identify in its request for hearing the specific issues and findings of fact and conclusions of law with which it disagrees. Petitioner indicated, however, that it was unable to comply fully with these requirements "given the material deficiencies of HCFA's determination notice." At 7.

On February 24, 1997, ALJs Leahy and Clifton denied the motion to strike in this and 15 other cases in which similar motions had been filed. The ruling stated that petitioners had "shown no basis on which the relief requested can be granted by an administrative law judge." At 2. The same document also observed that, in nine of the cases, including this case, "the documents purporting to be hearing requests do not appear to satisfy the requirements specified in 42 C.F.R. . 498.40" and ordered petitioners "to show cause why the actions should not be dismissed for failure to comply with 42 C.F.R. . 498.40(b)." Id. (Prior to the issuance of this order, HCFA had moved to dismiss several of the cases, not including this case, for failure to comply with section 498.40(b).) The order stated that "[t]he presiding administrative law judge in each of these cases will review the filings submitted by the parties and issue her rulings, based on the unique circumstances of each cases [sic]. Hearing request adequacy will be determined following a case-by-case analysis." At 2-3.

The February 24, 1997 order further stated that the petitioners' motions to strike and briefs in support thereof appeared to be relevant to the issue of the adequacy of the documents requesting hearings and would be considered as responding to the order. The order nevertheless gave petitioners an opportunity to file a supplemental brief containing any new and material arguments. The order also provided for a response brief by HCFA. Following receipt of the parties' briefs, ALJ Leahy issued an order dismissing the cases assigned to her. This appeal followed.

Analysis

I. The ALJ did not err in dismissing the case pursuant to section 498.70(c) based on Petitioner's failure to comply with the requirements of section 498.40(b) with respect to the contents of a hearing request.

The ALJ read section 498.40--

as meaning that, in order for there to be a timely filed request for hearing, there must exist a document meeting the regulatory definition of a "request for hearing" which was filed within 60 days of the affected party's receip t of an appealable administrative determination ( or which was filed within the extension of time per mi tted by the administrative law judge for good cause shown). In other words, 42 C .F .R. . 498.40(a) provided the 60-day filing period specifically for the filing of a document meeting the requirements of a "request for hearing" as defined by 42 C.F.R. . 498.40(b). . . . Therefore, I interpret also my authority to dismiss a case "either entirely or as to any stated issue" when "[t]he affected party did not file a hearing request timely and the time for filing has not been extended" (42 C.F.R. . 498.70(c)) as meaning that I may dismiss a case when the document filed within 60 days was not in fact a request for hearing when evaluated against the requirements of 42 C.F.R. . 498.40(b). At 17.

The ALJ then found (and Petitioner did not dispute) that Petitioner's October 21, 1996 letter fell "far short" of meeting the requirements of section 498.40(b) since it did not even show that Petitioner "intended to dispute any particular matter stated in a particular notice letter issued by HCFA within the previous 60 days." Order at 18. Accordingly, the ALJ concluded that no hearing request within the meaning of the regulation had ever been filed by Petitioner, nor had any hearing request within the meaning of the regulation been filed timely by Petitioner.

The ALJ also incorporated by reference in the March 25, 1998 order appealed here the legal analysis and conclusions set forth in her December 12, 1997 ruling in another case presenting the same issue, Canton Healthcare Center, Docket No. C-96-266. That ruling stated in part:

The fact that 42 C.F.R. . 498.40(a) sets forth a 60- day filing deadline cannot be logically construed as meaning that an affected party has a right to maintain an action against HCFA because it has filed a piece of paper containing words "request a hearing." The entirety of the regulation codified at 42 C.F.R. . 498.40 specifies the filing of a particular document of the requisite content, either within 60 days after the petitioner had received the determinations disputed in said document or within a period of extension granted by the administrative law judge for good cause shown. The exercise of my authority to dismiss for untimeliness under 42 C.F.R. . 498.70(c) entailed making a determination as to whether the entire document requesting a hearing, or only certain issues stated in said document, should be dismissed. Therefore, I have interpreted my authority under 42 C.F.R. . 498.70(c) as encompassing the application of the regulation codified at 42 C.F.R. . 498.40 in its entirety -- not just the one subpart specifying a 60-day filing period. At 30.

We determine that the ALJ did not err in reaching these conclusions. HCFA's initial determination gave Petitioner notice that section 498.40 et seq. set out the "procedures governing this process." Section 498.40(b) clearly states that a request for hearing "must" contain certain information. Since this information is mandatory, it necessarily follows that a document lacking this information is not a request for hearing. Moreover, 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. See, e.g., Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992). 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). There is no dispute that Petitioner's October 21, 1996 letter did not identify the specific issues in the case or the findings of fact and conclusions of law with which Petitioner disagreed, nor did it specify the basis for contending that the findings and conclusions were incorrect. Accordingly, the ALJ did not err in dismissing the case in question here pursuant to section 498.70(c) on the ground that there was no timely hearing request.

We do not conclude lightly that Petitioner has no right to a hearing on HCFA's imposition of a civil money penalty. However, there are compelling reasons for adherence to the clear requirements of the regulations. Part 498 does not require any further submission by a petitioner to identify the disputed issues in a case following the filing of a hearing request. Thus, if the ALJ were to accept as a hearing request a document that did not comply with section 498.40(b), this might deprive HCFA of the opportunity to prepare adequately for a hearing. In addition, without notice of what issues are before him or her, the ALJ might not be able to rule correctly on the relevance of evidence sought to be introduced at the hearing. Furthermore, the case might proceed to hearing only to find that no hearing is required because only legal issues are disputed. Moreover, if the ALJ were to permit the petitioner to identify the issues in dispute after accepting a deficient submission as a hearing request, this would substantially delay the resolution of the case. As the ALJ observed in her ruling in Canton:

. . . compliance with the requirements of 42 C.F.R. . 498.40 i n its entirety inur es to the benefit of those parties who are litigating in good faith and who wish to resolve meritorious disputes as expeditiously as possible, without incurring or causing others to incur the unnecessary expenditure of time, litigation expenses, or other resources. The regulation is grounded on the reasonable expectation that litigation will be initiated and maintained only for legitimate reasons, as demonstrated by, for example, the petitioner's willingness and ability to identify the facts and legal interpretations in controversy.

At 35. In view of the important practical purpose served by section 498.40(b), the ALJ's decision to dismiss the case for failure to comply with section 498.40(b) was within her authority and clearly not arbitrary.

Petitioner asserted, however, that the dismissal of this case was contrary to HCFA's past practice of not challenging, and the ALJs' past practice of accepting, as requests for hearings documents that did not contain the information required by section 498.40(b). According to Petitioner, "any hearing requests, no matter how cursory, that were timely filed" were accepted. Petitioner's brief at 18. Petitioner argued in effect that this past practice was evidence of a different interpretation of this requirement.

We disagree. Petitioner did not provide any support for its allegation regarding HCFA's and the ALJs' past practice. In addition, the past practice of HCFA and the ALJs is irrelevant to the legal question presented here. As indicated above, section 498.40(b) on its face requires that a request for hearing contain certain information. Even if the ALJs did not previously enforce this requirement or HCFA did not previously move to dismiss based on this requirement, that would not change its meaning. Moreover, assuming for the sake of argument that Petitioner had established that this was HCFA's and the ALJs' past practice, Petitioner did not even allege that its failure to comply with section 498.40(b) was due to its reliance on this past practice. In any event, it would not have been reasonable for Petitioner to rely on a failure to enforce a regulatory requirement that is clear on its face. Cf. New Jersey Dept. of Human Services, DAB No. 1549, at 22 (1995).

Inasmuch as we find that there was no change in the meaning of section 498.40(b), we also reject Petitioner's argument that there was a new reading which was invalid under the Administrative Procedure Act since it changed Petitioner's rights without notice and comment rulemaking.

Petitioner also argued that its failure to comply with the requirements of section 498.40(b) was excused by deficiencies in HCFA's notice of its initial determination. Petitioner asserted that HCFA's August 23, 1996 and September 27, 1996 letters were deficient in that they provided "no clue" as to what the deficiencies were on which HCFA based its finding that Petitioner was not in substantial compliance with the participation requirements. Petitioner's brief at 20. The ALJ rejected this argument in her order, finding that there was "nothing incomprehensible or misleading in HCFA's notice letters which could have reasonably caused the five Petitioners herein to file their above-quoted letters in lieu of complying with the requirements of 42 C.F.R. . 498.40(b) within the 60 days allotted by 42 C.F.R. . 498.40(a)." At 26. The ALJ properly rejected Petitioner's argument, which is spurious in the face of the detailed notice given by HCFA here.

Section 498.20(a) provides that HCFA will mail notice of an initial determination "setting forth the basis or reasons for the determination, the effect of the determination, and the party's right to reconsideration, if applicable, or to a hearing." In its August 23, 1996 letter, HCFA stated that it concurred with the survey findings listed on the statement of deficiencies. The letter noted that the survey report (Form HCFA-2567) had been forwarded to Petitioner. (The Form HCFA-2567, annotated with Petitioner's plan of correction, was submitted as HCFA's Exhibit 1 of its response to Petitioner's appeal.) The survey report describes the surveyors' specific findings with respect to individual residents on which the overall finding of non-compliance was based. Based on this information, Petitioner could easily have identified any findings it was contesting as well as given reasons for contesting these findings. Petitioner did not point to any finding in the Statement of Deficiencies as unclear. Thus, HCFA's notice of its initial determination clearly satisfied the requirements of section 498.20(a). Moreover, the fact that this regulation requires HCFA to fully set forth in its notice the basis for its determination supports the conclusion that a petitioner has a corresponding obligation to identify its basis for challenging HCFA's determination in requesting a hearing.

Petitioner also took the position that HCFA could not impose the civil money penalty at issue here by summary disposition since HCFA did not present a prima facie case. The principal authority cited by Petitioner does not support its position, however. In Hess & Clark v. FDA, 495 F.2d 975 (D.C.Cir. 1974), the court held that FDA improperly withdrew its approval of an animal drug without holding a hearing based on FDA's finding that the affected manufacturers had not raised any issues that required a hearing. The court reasoned that FDA's use of its summary judgment procedures was not justified because FDA had not given the manufacturers adequate notice of the basis for the proposed withdrawal. This case is not analogous to Hess because HCFA's initial determination gave Petitioner notice of findings sufficient to establish that HCFA had a legal basis for its action.

Petitioner also argued that the requirement in section 498.40(b) that a petitioner identify "the findings of fact and conclusions of law" with which it disagrees made no sense in the context of this case since HCFA's notice contained no findings of fact or conclusions of law. Petitioner pointed out that an earlier regulation -- 20 C.F.R. .405.1502 (1968) -- requiring the Secretary to make "findings setting forth the pertinent facts and conclusions and an initial determination" had been superseded by section 498.20(a). The ALJ addressed a similar argument in her ruling in Canton, stating:

I conclude that Petitioner's argument assumes incorrectly that affected entities acting reasonably and in good faith will not be able to discern appealable issues, HCFA's findings of fact, or HCFA's legal conclusions when they read an initial determination notice, in which HCFA must set forth, inter alia, "the basis or reasons for the determination" and "the effect of the determination."

At 37. We agree with this conclusion. Although the initial determination notice does not contain formal findings of fact and conclusions of law, it incorporates by reference the statement of deficiencies, which in turn contains citations to the regulations with which Petitioner has been found to be out of compliance and describes the factual findings which evidence the non-compliance. Accordingly, Petitioner's argument does not provide a basis for excusing Petitioner's failure to comply with section 498.40(b).

Petitioner argued further that the ALJ erred in dismissing its case based on its failure to comply with section 498.40(b) because it was entitled to a hearing pursuant to 42 U.S.C. . 1320A-7a (section 1128A of the Social Security Act). We disagree. This provision states that "[t]he Secretary shall not make a determination adverse to any person . . . until the person has been given written notice and an opportunity for the determination to be made on the record after a hearing. . . ." The statute does not confer an absolute entitlement to a hearing, however, but rather provides for an opportunity for a hearing. HCFA clearly provided that opportunity here when it advised Petitioner in its August 23, 1996 letter of the applicable procedures for requesting a hearing. By not complying with these procedures, Petitioner forfeited its right to a hearing.

Contrary to Petitioner's understanding, moreover, the Board's decision in Carmel Convalescent Hospital, DAB No. 1548 (1996), does not support Petitioner's position. Petitioner relied on the following language in that decision:

Petitioner has a right to a hearing under 42 C.F.R. Part 498 because it is a provider dissatisfied with an initial determination to terminate its provider agreement. See 42 C.F.R. . 498.2, . 498.3 and . 498.5(b). Petitioner cannot lose its hearing rights based on these factors merely because of the wording of the reasons it gives for its appeal in its hearing request.

Petitioner's brief at 3, quoting DAB No. 1548, at 26. However, unlike the case now before us, DAB No. 1548 did not involve an ALJ dismissal pursuant to section 498.70(c) on the ground that the petitioner never filed a hearing request conforming to the requirements of section 498.40(b). Instead, the ALJ dismissed the petitioner's hearing request under section 498.70(b) (petitioner "is not a proper party or does not otherwise have a right to a hearing") because the request failed to dispute that the petitioner was out of compliance with the participation requirements. The Board found that the ALJ erred in dismissing the case pursuant to section 498.70(b), but that the ALJ correctly decided (in the alternative) that HCFA was entitled to summary disposition of the appeal in its favor. Thus, DAB No. 1548 does not stand for the proposition that a petitioner is entitled to a hearing although its purported hearing request does not identify any findings or conclusions with which the petitioner disagrees or state any reasons for its disagreement.

Petitioner also asserted in support of its position that "notice pleading" was acceptable in administrative proceedings. Petitioner noted that, under the Federal Rules of Civil Procedure (FRCP), the relief for failure to comply with the minimum requirements for a complaint is not dismissal but instead either a motion for a more definite statement or a general denial. Petitioner also noted that the Federal Rules of Appellate Procedure (FRAP) require that a notice of appeal specify only the party appealing and the order being appealed from. Petitioner contended that administrative agencies are governed by the same requirements of fairness and notice as the courts. Moreover, Petitioner cited 1 K. Davis, Administrative Law 523 (1958), stating that "[t]he most important characteristic about pleadings in the administrative process is their unimportance." Finally, Petitioner argued that established administrative law requires liberal construction of and amendment of pleadings.

Petitioner's arguments are not persuasive. As Petitioner acknowledged, the FRCP and FRAP are not directly applicable here. Instead, these proceedings are specifically governed by the Secretary's duly promulgated regulations at 42 C.F.R. Part 498. Merely because the FRCP and FRAP require minimal information in a complaint or appeal is not a basis for disregarding the more comprehensive requirements in section 498.40(b). Similarly, the general statement in Davis' treatise does not overcome the specific requirements applicable here. Furthermore, the ALJ addressed an identical argument concerning liberal construction and amendment of pleadings in her ruling in Canton. The ALJ there noted that the petitioner had made "no effort to provide any reasonable construction, liberal or otherwise," which would have placed the words in its purported hearing request within the ambit of section 498.40(b), nor had petitioner filed any motion requesting leave to amend that request. At 31. The same situation exists here. Even after being notified that its pleading was deficient under the regulations, Petitioner has insisted that its pleading must be accepted as a timely filed hearing request rather than seeking leave to remedy the defects.

Basic requirements of fairness are of course applicable to administrative as well as court proceedings. Indeed, the ALJ recognized in her order that fairness required that a case not be dismissed for failure to comply with section 498.40(b) within the required 60 days where there was good cause for such failure. Thus, the ALJ stated that--
. . . a petitioner may avoid dismissal of its case even though it has failed to file a "request for hearing" which complies with the requirements of 42 C.F.R. . 498.40(b). . . . a petitioner may file amendments of right within the initial 60-day period guaran teed by 42 C.F.R. . 498.40(a). Otherwise, a petitioner may file a motion for extending the 60-day filing period for good cause shown under 42 C.F.R. . 498.40(c), in order to submit amendments during any extension granted by the administrative law judge. At 26-27.

However, the ALJ further stated that--

no request for extension of time for amending the request letters was ever filed on behalf of any of the five Petitioner s, even though there had been ample time to do so prior to the issuance of our February 24 Ruling and Order. Nothing submitted by any of these Petitioners before or after February 24, 1997, suggests a willingness or desire to amend the request letters of record. No good cause has been set forth by any of these Petitioners. At 27.

On appeal, Petitioner contended that the ALJ erred in determining that no good cause existed for Petitioner's failure to timely file a request for hearing that met the requirements of section 498.40(b). In support of its position, Petitioner argued that it had no notice of any need to amend its hearing request in view of the alleged past practice of accepting, as hearing requests, documents not containing the information required by section 498.40(b). As discussed above, however, this argument has no merit since Petitioner neither established that this was the past practice nor took the position that it relied on the alleged past practice, and no reason appears why any such reliance would have been reasonable. Accordingly, we agree with the ALJ that there was no good cause to allow the case to remain pending.

Petitioner argued in the alternative that the ALJ's order should be reversed because of prejudicial procedural errors. (The Guidelines for Appellate Review of ALJ Decisions Affecting a Provider's Participation in the Medicare and Medicaid Programs state that the bases for modifying, reversing or remanding an ALJ decision include that "a prejudicial error of procedure (including an abuse of discretion under the law or applicable regulations) was committed." At 3.) Petitioner objected to the issuance of a "composite order" in several cases without any order formally joining the cases (for which Petitioner argued in any event that there was no authority). Petitioner's brief at 11. Petitioner also excepted specifically to sections of the order that deal solely with other facilities. Other alleged prejudicial errors identified by Petitioner were the ALJ's failure to include findings of fact and conclusions of law in her order; the ALJ's incorporation by reference of her prior ruling in Canton and reliance on that ruling as well as on a prior decision in the same case--DAB CR 443 (1996)--as precedent ; the ALJ's directive in her February 24, 1997 order for all parties to file a joint brief and the "implication in footnote 7, p. 10 of the Order that the ALJ's dismissal of Birchwood's request for hearing was a sanction for filing its own response brief." Petitioner's brief at 11.

We are not persuaded that there was any prejudice to Petitioner from these alleged errors, or that there was even any error in the first instance. It was within the ALJ's discretion, as a measure of judicial economy, to issue one order in several cases in which petitioners were represented by the same attorney and which involved similar fact patterns as well as some common legal issues, regardless of whether the cases were formally joined. Where there were factual differences between the cases, the order pointed them out and separately addressed any additional issues raised in a particular case. Petitioner is correct that the ALJ incorrectly stated that all of the requests for hearing were filed a few days after HCFA's initial determination notice when in fact Petitioner's letter requesting a hearing in this case was filed one day before the filing deadline. However, this error is not necessarily attributable to the fact that the ALJ issued a joint order. In any event, as noted earlier in this decision, this error is not prejudicial. Petitioner did not specify any other respect in which it was prejudiced by the issuance of a joint order.

In addition, Petitioner was not prejudiced by the lack of formal findings of fact and conclusions of law in the ALJ's order since the ALJ's findings and conclusions are amply clear even though not specifically identified as such. Further, Petitioner was not prejudiced by the ALJ's incorporation by reference of and reliance on her ruling in Canton. Incorporation by reference was simply a device used by the ALJ to avoid having to repeat in her order the legal analysis in Canton, which she determined was equally applicable to the cases that were the subject of the order. Moreover, our analysis in this case is not affected by whether the ALJ viewed Canton as having precedential value. Finally, Petitioner was not prejudiced by the ALJ's directive that all petitioners submit a joint brief in response to the February 24, 1997 order since Petitioner nevertheless submitted a separate brief. We see nothing in the ALJ's order indicating that the dismissal of Petitioner's case was in any way a sanction for Petitioner's decision to file a separate brief.

Conclusion

For the foregoing reasons, we uphold the ALJ's order dismissing the case as to Petitioner.

_______________________
Cecilia Sparks Ford

_______________________
Donald F. Garrett

________________________
M. Terry Johnson
Presiding Board Member