I decide that Gaulden Manor Nursing Center (Petitioner) did not file a proper request for hearing as required by 42 C.F.R. � 498.40(b). Consequently I find that Petitioner has no right to a hearing and Petitioner's hearing request is DISMISSED, pursuant to 42 C.F.R. � 498.70(c).

I. Background

On September 22, 1998, Petitioner requested a hearing to contest the noncompliance determination made by the Health Care Financing Administration (HCFA) in its notice letter dated August 27, 1998. HCFA's notice letter referred to the findings of noncompliance made during a survey on August 5, 1998, which resulted in its determination to impose a civil monetary penalty (CMP) of $3,050 per day for one day that immediate jeopardy existed (August 3, 1998) and a civil monetary penalty of $50 per day effective August 4, 1998.

In correspondence dated September 22, 1998, the administrator for Petitioner, Christine Sulick, requested a hearing. The request states in its entirety:

This shall serve as Gaulden Manor's request [for] a hearing concerning the CMP imposed on August 3, 1998 for $3050.00 and the CMP imposed of August 4, 1998 of $50.00 per day.

On October 19, 1998, I issued an order setting forth certain procedures and deadlines for the parties to follow. Rule 2 of the October 19, 1998 order permitted, inter alia, the filing of either a motion to stay proceedings for settlement purposes, a notice of issues for which dismissal would be requested, a notice of issues for summary judgment, or a report of readiness to present evidence for adjudication of the case. Rule 2 also imposed a filing deadline of 60 days from the date of the order.

On December 16, 1998, HCFA timely submitted a Motion to Dismiss. In its Motion, HCFA contended that Petitioner's hearing request was too abbreviated to preserve for challenge any issue regarding the August 3, 1998 immediate jeopardy CMP or the CMP for August 4, 1998 until October 4, 1998 when, as a result of a follow-up survey, it was established that Petitioner was in substantial compliance. Specifically, HCFA contended that Petitioner's hearing request was not sufficient under 42 C.F.R. � 498.40(b) to put at issue whether it was in substantial compliance with program requirements or whether the immediate jeopardy finding for the August 4, 1998 incident was warranted. In its motion, HCFA relied upon the September 4, 1998 decision of the Departmental Appeals Board in Birchwood Manor Nursing Center, DAB No. 1669 (1998), which held that hearing notices which are deficient under 42 C.F.R. � 498.40(b) warrant summary dismissal.

Subsequently, Petitioner timely submitted its Motion Contrary to HCFA's Motion to Dismiss. In its motion, Petitioner asserts that "the document that administrator, Christine Sulick, had to work with in requesting a hearing did not enumerate that it was necessary to identify the specific issues, findings of fact and conclusions of law as it related to her request for hearing. The purpose of requesting a hearing is to allow the Petitioner to present evidence to negate or mitigate what a regulator finds as a deficiency." In its motion, Petitioner also challenges the finding of immediate jeopardy for an incident on August 3, 1998 which related to the miscalibration of a hot water tank, resulting in water hotter than permitted by regulation.

The regulations promulgated by the Secretary of Health and Human Services, at 42 C.F.R. � 498.40, specify that a request for an administrative hearing must be made as follows:

(a) Manner and timing of request.

(1) an affected party entitled to a hearing under section 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 the 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.

I make the following findings of fact and conclusions of law:

(1) Petitioner's request for hearing, dated September 22, 1998, does not meet the specific requirements of 42 C.F.R. � 498.40(b).

(2) Petitioner has failed to file a timely hearing request.

(3) Petitioner has failed to establish good cause within the meaning of 42 C.F.R. � 498.40(c) which would warrant an extension of time for filing a hearing request.

There are three bases under which some or all issues of a case may be dismissed for cause: (1) because the doctrine of res judicata is applicable due to an affected party's failure to timely request a hearing with respect to that determination or decision (42 C.F.R. � 498.70(a)); (2) because the party requesting a hearing does not have a right to a hearing (42 C.F.R. � 498.70(b)); or (3) because the affected party failed to file a request for hearing within the 60-day period and the time for filing has not been extended (42 C.F.R. � 498.70(c)). Thus, an administrative law judge must look at the contents of the document which requested a hearing in order to determine whether the right to a hearing has accrued with respect to all, some, or none of the issues stated in the document. Consequently, the mere filing of a document titled "Request for Hearing" within the 60-day filing period does not mean that the document satisfies the applicable regulatory requirement. See Birchwood Manor Nursing Center, supra; Regency Manor Health Care Center, et.al., DAB No. 1672 (1998).

In the instant case, I find that Petitioner's "Request for Hearing" does not meet the specific requirements of 42 C.F.R. � 498.40(b) on any issue. Petitioner's cursory reference to disagreement with the findings of the surveyors which resulted in finding of immediate jeopardy for an incident on August 3, 1998 and the CMP commencing on August 4, 1998 is not sufficient under the regulations to put at issue whether Petitioner was in substantial compliance with program requirements. The regulation governing hearing requests mandates that a nursing home requesting a hearing be specific about what it intends to place at issue. A petitioner must identify the specific issues and the findings of fact and conclusions of law with which it disagrees and it must specify the basis for contending that the findings and conclusions are incorrect. It has been found that a cursory assertion that "my client challenges both the findings on which the citations was based as well as the legal basis for the imposition of the penalty" does not satisfy the regulatory standard. Orchard Grove Extended Care Center, DAB CR541 (1998).

Petitioner's hearing request is similarly abbreviated and generalized. Petitioner's hearing request has not identified in any informative manner a single finding of fact with which Petitioner disagrees, and Petitioner has failed to specify a basis for disagreement. It is settled law that review of HCFA's imposition of a CMP is limited to two issues, whether there was a basis for imposing the remedy and, if so, whether the amount of the CMP is reasonable under the four factors specified in 42 C.F.R. � 488.438(f). From Petitioner's generalized request, it is evident that Petitioner has failed to raise either of these issues in its request for a hearing.

In its defense, Petitioner contends that HCFA's notice letter was vague. I disagree. HCFA's notice letter specifically referred to the notices that Petitioner had received from the Ohio Department of Health and, in particular, HCFA's notice letter referenced the extended survey conducted by that department on August 5, 1998. Further, HCFA's notice letter also reflects that Petitioner was provided a copy of the August 5, 1998 Statement of Deficiencies, HCFA Form 2567, by the Ohio Department of Health and Petitioner does not dispute this. Moreover, HCFA's notice letter specifically noted that Petitioner in its hearing request must "identify the specific issues and the findings of fact and conclusions of law with which you disagree." HCFA's notice letter at p. 3. The record therefore reflects that Petitioner was provided with adequate documentation to properly challenge the CMP and that it was advised of the requirements for a legally sufficient hearing request. On such facts, I find no basis to extend the time for filing a request for hearing. Additionally on such record, Petitioner cannot reasonably claim that HCFA's notice letter prevented it from filing a hearing request that satisfied the requirements of 42 C.F.R. � 498.40(b).