Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Nacogdoches Convalescent Center, |
DATE: June 27, 2000 |
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Health Care Financing Administration
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Docket No.C-99-515 Decision No. CR680 |
DECISION | |
Petitioner's motion to vacate my Order
dismissing this case is DENIED, because Petitioner has not shown good
cause for me to do so. I. Background By "Motion To Vacate Order Dismissing Case" dated February
1, 2000, Petitioner requested that I reconsider my Order dated January
21, 2000, dismissing this case for abandonment. On April 28, 1999, Petitioner requested a hearing to contest
the Health Care Financing Administration's (HCFA) imposition of a $6,100
civil money penalty (CMP) against it. This request was forwarded to my
office by HCFA and was acknowledged by my office on June 15, 1999. On
August 17, 1999, I stayed this case, at Petitioner's request, to allow
the parties to pursue settlement negotiations. In my Order granting the
stay, I informed Petitioner that on or before November 17, 1999, it was
to confer with HCFA and file at least one of the documents specified in
paragraph 2 of my Order of June 15, 1999. I further informed Petitioner
that I was placing on it the burden to file a document in response to
the Order. Petitioner did not comply with my Order. On December 2, 1999,
to determine whether Petitioner had abandoned its request for a hearing,
I issued an Order directing Petitioner to show cause why the case should
not be dismissed for abandonment. I gave Petitioner 30 days from December
2, 1999 to respond. Petitioner did not do so, and I dismissed the case
on January 21, 2000. II. Arguments of the Parties Petitioner does not dispute that it received my Order
To Show Cause dated December 2, 1999. Instead, Petitioner states that
due to an "unfortunate clerical error" the Order was "mis-filed prior
to placing the deadline on calendar," and the response deadline lapsed
without Petitioner's counsel's knowledge. Petitioner asserts that, but
for the clerical error, it intended to file a response as ordered. Petitioner asserts also that it should be reinstated because
I did not give it notice in my Order Dismissing the Case of January 21,
2000 (as required by 42 C.F.R. � 498.71), that it had a right to request
that my Order Dismissing the Case be vacated. HCFA is opposing Petitioner's motion, arguing that although
an administrative law judge (ALJ) may vacate a dismissal of a request
for hearing if a petitioner files a request to that effect within 60 days
from receipt of the dismissal notice and if the petitioner shows "good
cause" for vacating the dismissal (42 C.F.R. � 498.72), Petitioner has
not shown good cause in this case. Specifically, HCFA asserts that "good
cause" has been interpreted by ALJs as a circumstance or circumstances
beyond a petitioner's control. Sedgewick Health Care Center, DAB
CR596 (1999). HCFA argues that avoidable human error does not constitute
good cause. Id. HCFA asserts that a petitioner's failure to respond
to an order to show cause due to an employee's clerical error is not a
circumstance beyond a petitioner's control and thus does not constitute
good cause. HCFA refers to the case of Mathis Nursing Home, DAB
CR461 (1997), where the ALJ noted that the petitioner admitted the circumstances
in question revolved around the failure by an employee to carry out the
employee's assigned duties. The ALJ concluded that good cause did not
exist because avoidable human error is not an event beyond the ability
of the individual or a corporation to control. HCFA argued that the situation
here is similar, in that Petitioner is asserting that an unidentified
employee misfiled the Order to Show Cause before putting the deadline
for filing a response on a calendar. HCFA argues that this was entirely
within Petitioner's control and that Petitioner has not met the accepted
standard for good cause which would be sufficient to re-instate the case. HCFA asserts that, to date, Petitioner has made no attempt
to contact HCFA regarding settlement, the ostensible basis for the August
17, 1999 stay (and states also that the only time that Petitioner did
contact Petitioner was to find out if HCFA would oppose the initial request
for a stay of the case). HCFA argues that this is further evidence that
the case was abandoned, and another example of the inaction and lack of
attention Petitioner paid to this case. HCFA also asserts that any failure on my part to include
the language regarding Petitioner's right to request reinstatement is
merely harmless error, since Petitioner was not prejudiced or harmed because
it was able to requestd reinstatement timely. 42 C.F.R. � 498.72. III. Findings of Fact and Conclusions of Law
I am denying Petitioner's request to vacate my dismissal
of its hearing request and reinstate this case. I am authorized to dismiss
a hearing request as "abandoned" if a petitioner fails to respond, within
10 days after I issue a "show cause" order, with a showing of good cause.
42 C.F.R. � 498.69(b)(2). Petitioner did not make such a showing in this
case and I dismissed its request for hearing. Petitioner now wants me
to vacate the dismissal and asserts that it has shown me good cause to
do so. However, I agree with HCFA that "good cause" must be reserved for
those cases where circumstances causing a petitioner to fail to comply
with an ALJ order to show cause are beyond a petitioner's ability to control.
It is a petitioner's responsibility to show that such good cause exists
where a case has been dismissed for abandonment. Specifically, the petitioner
must show that a circumstance or circumstances beyond its ability to control
prevented it from complying with an ALJ order to show cause. See
Sedgewick, at 3. In this case, Petitioner states that a clerical
error caused it to miss the filing deadline contained in my Order to Show
Cause dated December 2, 1999. I do not find that Petitioner's (or its
counsel's) clerical error constitutes good cause. Petitioner's clerical
or employee problems are entirely within its (or its counsel's) control,
and I do not see any reason to reinstate Petitioner's hearing request
on such grounds, especially given Petitioner's lack of attention to the
case prior to the receipt of my Order to Show Cause (which Order was prompted
by Petitioner's failure to comply with my August 17, 1999 Order staying
the case). Petitioner cannot assert good cause based on such avoidable
failures. Id. at 3.
I also find that the failure to include language regarding
Petitioner's right to request reinstatement here constitutes harmless
error, and that Petitioner has not been prejudiced or harmed by lack of
this citation. Petitioner timely submitted a request for reinstatement
under the regulations, fulfilling the purpose of the regulatory requirement.
The appropriate remedy for such failure would have been, had Petitioner's
request not been submitted timely, for me to consider the request. IV. Conclusion Accordingly, Petitioner's motion requesting reconsideration of my Order Dismissing the Case for Abandonment dated January 21, 1999, is DENIED. |
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JUDGE | |
Joseph K. Riotto Administrative Law Judge |
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