SUBJECT:

Parkview Care Center,

Petitioner,

Health Care Financing Administration

DECISION

I dismiss the hearing request filed by Petitioner, Parkview Care Center. I do so because Petitioner did not file a timely hearing request and has not shown good cause for its failure to file a timely hearing request.

I. Undisputed material facts and procedural history of this case

A. Undisputed material facts

On March 13, 2000, Petitioner was surveyed by the Texas Department of Human Services (TDHS), a State survey agency. The purpose of this survey was to determine whether Petitioner was complying with federal requirements governing participation of nursing homes in Medicare and Medicaid. In a letter to Petitioner dated August 17, 2000, the Health Care Financing Administration (HCFA) found Petitioner was not complying substantially with several participation requirements as a result of the March 13, 2000 survey. HCFA Ex. 1. HCFA's August 17, 2000 letter stated that HCFA was imposing a per-day civil money penalty.

B. Procedural history

HCFA filed a motion to dismiss Petitioner's hearing request on the ground that Petitioner had not filed its hearing request timely. HCFA attached two exhibits to its motion (HCFA Exs. 1 - 2). Petitioner did not object to HCFA's exhibits and I admit HCFA Exs. 1 - 2 into evidence. Petitioner was scheduled to respond to HCFA's motion on June 5, 2001. Petitioner did not submit a response. Instead, Petitioner's counsel submitted a motion to remand this case to HCFA, or, alternatively, to withdraw as counsel. Petitioner's motion was based on a recent change of condition involving the ownership and operation of Parkview Care Center. I decline to grant the request to remand this case to HCFA because the hearing request in this case is on its face untimely filed. This dismissal will be sent to both Petitioner's counsel and the facility itself.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are:

1. Whether Petitioner is entitled to a hearing; and

2. Whether good cause exists to extend the time during which Petitioner may request a hearing.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each finding below as a separately numbered heading. I discuss each Finding in detail.

1. Petitioner is not entitled to a hearing because it did not file a timely hearing request.

In cases involving HCFA, a party is entitled to a hearing only if that party files its request within the time limits established by 42 C.F.R. � 498.40(a)(2). In order to be entitled to a hearing, a party must file its request within 60 days from receipt of a notice of a determination by HCFA to impose a remedy. Id.

HCFA's August 17, 2000 letter included a section on "Appeal Rights" which stated in part:

If you disagree with this determination of noncompliance, 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 C.F.R. � 498.40, et. seq. You may appeal the finding of noncompliance that led to an enforcement action, but not the enforcement action or remedy itself. A written request for hearing must be filed no later than October 16, 2000 (60 days from the date of receipt of this letter via fax.)

HCFA Ex. 1.

HCFA's letter states that the hearing request must be filed no later than October 16, 2000, 60 days from receipt of HCFA's letter by fax. However, Petitioner did not request a hearing until October 31, 2000. That is 75 days from HCFA's August 17, 2001 letter. This is more than the 60 days allowed within which to file a hearing request.

2. Petitioner has not established good cause to extend the deadline for it to file a hearing request.

Governing regulations provide at 42 C.F.R. � 498.40(a)(2), that a party requesting a hearing must file its request timely unless the period for filing the request is extended. The affected party or its legal representative must file with the administrative law judge (ALJ) a written request for an extension of time stating the reasons why the request was not filed timely. 42 C.F.R. � 498.40(c)(1). An ALJ may extend the time within which a hearing request may be filed based on a showing of good cause to justify an extension of time. 42 C.F.R. � 498.40(c)(2).

The term "good cause" is not defined in the regulations. However, that term has been applied in other cases. Generally, good cause is defined to mean a circumstance beyond a party's ability to control but for which that party would have been able to file its hearing request timely. Hospicio San Martin, DAB CR387 at 2 (1995).

Petitioner did not request an extension of time to file its hearing request. Petitioner did not file a written request stating why its hearing request was untimely. Petitioner made no showing, let alone a showing of good cause, to justify an extension of time. Petitioner was on notice that timeliness would be at issue because HCFA submitted a Notice of Issues for which Dismissal Will be Requested on January 16, 2001. A schedule to brief this issue was established by letter dated March 28, 2001 from my office. HCFA submitted its brief on time. Petitioner failed to respond on the issue of timeliness. Petitioner does not offer any explanation why Petitioner did not request a hearing within 60 days from HCFA's August 17, 2000 notice.

3. A basis exists to dismiss Petitioner's hearing request.

I conclude that Petitioner neither has a right to a hearing nor has shown good cause to be given an extension of time for filing its hearing request. An ALJ may dismiss a hearing request where the request is not filed timely and the time for filing the request has not been extended. 42 C.F.R. � 498.70(c). Therefore, I dismiss Petitioner's hearing request.

Carolyn Cozad Hughes

Administrative Law Judge