Skip Navigation

CASE | DECISION | JUDGE

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
IN THE CASE OF  


SUBJECT:

Alden Nursing Center--Morrow,

Petitioner,

DATE: July 5, 2000
                                          
             - v -

 

Health Care Financing Administration

Civil Remedies CR622
App. Div. Docket No. A-2000-36
Decision No. 1734
DECISION
...TO TOP

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

Alden-Nursing Center-Morrow (Petitioner), appealed an October 18, 1999 decision by Administrative Law Judge Mimi Hwang Leahy (ALJ) dismissing Petitioner's request for hearing dated October 16, 1996. Alden Nursing Center-Morrow, DAB CR622 (2000) (ALJ Decision). Petitioner's request for hearing sought review of an October 8, 1996 determination issued by the Health Care Financing Administration (HCFA) imposing a civil monetary penalty (CMP) against Petitioner for the period April 19, 1996 through August 14, 1996, based on HCFA's finding that, during that period, Petitioner was out of compliance with conditions of participation for nursing facilities in the Medicare and Medicaid programs. In her decision, the ALJ granted HCFA's motion to dismiss Petitioner's request for hearing because it did not satisfy the requirements of 42 C.F.R. � 498.40(b), and she denied Petitioner's motion to amend the request for hearing.

Before the Board, HCFA filed a submission opposing Petitioner's appeal, and Petitioner filed a reply to HCFA's response. As is routine in these cases, the Board requested and received the administrative record upon which the ALJ based her decision. In reviewing the parties' submissions, the Board discovered quotations from a February 26, 1999 letter filed by Petitioner in the proceedings below that was not in the administrative record. See Request for Review at 3-4; HCFA Response at 6-7. The Board inquired of the Civil Remedies Division whether the ALJ or staff attorney assigned to the case had any documents that had been inadvertently omitted from the administrative record, and was advised that the record provided the Board contained all documents received by the Civil Remedies Division regarding Petitioner's request for hearing. In their submissions to the Board, both parties contended that this particular letter was relevant to the ALJ's determination that no amended request for hearing had been filed by the Petitioner.

The Board has determined that it should remand this matter for further proceedings. 42 C.F.R. � 498.88. The ALJ is directed to provide to the parties an item-by-item inventory of the administrative record, so that they may identify and provide to the ALJ any documents, including the February 26, 1999 letter, that are found to be missing from the record. The ALJ should admit such documents and may also consider as part of the record the documents filed by the parties in conjunction with Petitioner's appeal, including Petitioner's affidavit addressing a statement in the ALJ decision about the origin of the documents proffered in support of Petitioner's putative amended hearing request. The ALJ shall reconsider HCFA's request for dismissal in light of this new material and the Board's decisions in Alden-Princeton Rehabilitation and Health Care Center, Inc., DAB 1709 (1999), and Fairview Nursing Plaza, Inc., DAB 1715 (2000), and the rulings in Four States Care Center, Docket No. A-99-66 (June 7, 1999) and Rehabilitation Health Care Center of Tampa, Docket No. A-99-95 (August 16, 1999), and issue a new ruling.

Given the age of this case, which was stayed for a lengthy period by agreement of the parties, we request that this matter be handled as expeditiously as possible.

 

JUDGE
...TO TOP

Cecilia Sparks Ford

Marc R. Hillson

M. Terry Johnson
Presiding Board Member

 

CASE | DECISION | JUDGE