SUBJECT:

Kermit Healthcare Center,

Petitioner,

Centers for Medicare & Medicaid Services

TO VACATE DISMISSAL OF CASE

By motion dated August 20, 2001, Petitioner asked that I reconsider and vacate my Order dated August 16, 2001, dismissing this case for abandonment. Petitioner also moved to consolidate the dismissed case (in the event it is reinstated) with Docket Nos. C-01-038 and C-01-342.⁽¹⁾ Petitioner asserts that good cause exists for vacating the dismissal. According to Petitioner, it did not abandon the appeal, but failed to comply with my orders because it lacked authorization to proceed until its corporate representative, who was out of the office, returned.

The Centers for Medicare & Medicaid Services (CMS) opposes Petitioner's request for reconsideration and motion to consolidate the dismissed case with Docket Nos. C-01-038 and C-01-342. CMS argues that Petitioner failed to establish good cause for vacating the dismissal pursuant to 42 C.F.R. � 498.72. CMS also contends that Petitioner's motion to consolidate should be denied.

Having reviewed the parties' arguments, I deny Petitioner's motion to vacate my August 16, 2001 Order dismissing this case. Because I have not reinstated the case, it is not necessary for me to consider Petitioner's motion to consolidate.

I. Issue, findings of fact and conclusions of law

A. Issue

The issue in this case is whether Petitioner has shown good cause for vacating the dismissal of its hearing request.

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. An administrative law judge (ALJ) may vacate any dismissal of a hearing request if a party (a) files a request to that effect within 60 days from receipt of the notice of dismissal, and (b) establishes good cause for vacating the dismissal.

An ALJ may vacate a dismissal of a request for hearing if a party files a request to that effect within 60 days from receipt of the dismissal notice, and shows "good cause" for vacating the dismissal. 42 C.F.R. � 498.72. The term "good cause" is not defined by the regulation.

In past decisions issued by ALJs of the Civil Remedies Division, "good cause" has been interpreted as a circumstance or circumstances beyond a party's ability to control. See Sedgwick Health Care Center, DAB CR596 (1999); Hospicio San Martin, DAB CR387 (1995), aff'd, DAB No. 1554 (1996). In a case where an entity files a request to vacate the dismissal of a hearing request, the burden is on the entity to show that it was prevented, by a circumstance or circumstances beyond its ability to control, from complying with an ALJ's orders. Avoidable human error will not constitute "good cause" for reinstating a hearing request dismissed due to abandonment. Cf. Mathis Nursing Home, DAB CR461 (1997), at 9.

2. Petitioner timely filed a request to vacate the dismissal of its hearing request.

I issued an Order Dismissing Case on August 16, 2001. Petitioner, through counsel, filed its request to vacate dismissal of its hearing request by motion dated August 20, 2001. Therefore, Petitioner timely filed its request, and complied with the filing requirement of 42 C.F.R. � 498.72.

3. Petitioner has not established "good cause" for vacating the dismissal of its hearing request.

Here, Petitioner asserts that its inability to communicate with its corporate representative to obtain authorization to proceed in this matter should constitute "good cause." Petitioner states that the representative was out of the office for a lengthy period of time, and Petitioner was only recently able to obtain authorization to proceed. These circumstances, as presented by Petitioner, are not outside of Petitioner's ability to control. That Petitioner's corporate representative took an extended absence from the office does not excuse Petitioner's failure to comply timely with my orders and deadlines. Petitioner had the responsibility to take whatever steps were necessary to ensure that matters related to this litigation would be handled in the corporate representative's absence. For example, Petitioner could have designated an alternate individual for its counsel to contact regarding this matter.

My June 25, 2001 Order stayed the proceedings until July 30, 2001, but, if the matter was not resolved by that date, directed the parties to submit one of the documents described in my initial order dated February 27, 2001, with the exception that the parties would no longer be able to request a further stay. The parties were directed to file these submissions by July 30, 2001. By that order I specifically advised Petitioner that its failure to file any document required by the Order, could be deemed evidence of abandonment.

CMS timely filed a readiness report in this case. However, Petitioner neither complied with my June 25, 2001 Order, nor sought an extension of time in which to comply. Petitioner's failure to respond to my Order - particularly in the face of my explicit warning that its failure could be considered abandonment - constituted sufficient reason for me to conclude that Petitioner had abandoned its request for hearing.

I find that Petitioner has not established the existence of good cause for me to vacate my dismissal of the case. The lack of communication between Petitioner and its corporate representative during the latter's absence constituted avoidable human error, rather than circumstances beyond Petitioner's ability to control.

Carolyn Cozad Hughes

Administrative Law Judge

1. Petitioner states in its motion that "Docket Nos. C-01-038 and C-01-342 have previously been consolidated . . . ." This is incorrect. To date, an Order of Consolidation has not been issued in these cases.