SUBJECT:

Occupational Health Clinic, Inc.,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

For the following reasons I dismiss the hearing request of Petitioner, Occupational Health Clinic, Inc.:

� Petitioner filed its hearing request untimely. It has not shown good cause why I should extend the deadline for it to file its hearing request; and

� I have no authority to order the Centers for Medicare & Medicaid Services (CMS) to certify Petitioner for Medicare participation on a date that is earlier than the date when Petitioner was certified by CMS to participate. CMS certified Petitioner to participate as of the date of completion of a compliance survey of Petitioner's facility. As a matter of law CMS could not have certified Petitioner to participate at an earlier date.

I. Background and undisputed material facts

The facts that I recite in this section are not in dispute.

Petitioner is a rural health clinic that is located in Cape Girardeau, Missouri. Petitioner applied to participate in the Medicare program. On May 24, 1999, Petitioner was surveyed by the Missouri Department of Health, acting on CMS's behalf, in order to determine whether Petitioner was complying with Medicare participation requirements. The Missouri Department of Health made survey findings that Petitioner was complying with all participation requirements. CMS Ex. 2.⁽¹⁾ CMS certified Petitioner to participate in Medicare effective May 24, 1999 based on the Missouri Department of Health's findings.

Petitioner was dissatisfied with this determination. It contended that it should have been certified to participate as early as July 1998. Petitioner attributed its failure to be certified earlier than May 24, 1999 to the Missouri Department of Health's failure to conduct a compliance survey more expeditiously.

Petitioner requested that CMS reconsider its certification determination. On August 11, 1999, CMS (then known as the Health Care Financing Administration or HCFA) notified Petitioner that it would not change the effective date of Petitioner's certification to participate in Medicare. P. Ex. 16. CMS expressed sympathy for the delays that had occurred in the certification process and for the financial impact that these delays may have had on Petitioner. However, CMS informed Petitioner that it made its certification determination pursuant to the federal rules which governed such certifications. The notice advised Petitioner that, if it disagreed with CMS's determination, it could request a hearing before an administrative law judge of the United States Department of Health and Human Services Departmental Appeals Board. It advised Petitioner that procedures governing a hearing request are set out at 42 C.F.R. � 498.40. The notice informed Petitioner that a hearing request must be filed no later than 60 days from the date of Petitioner's receipt of the notice letter.

Petitioner did not request a hearing until December 27, 1999. On that date it filed with the CMS Kansas City Regional Office a large package of documents consisting of a cover letter and the Attachments that I have referred to previously. The cover letter was signed by Debby Erlanger Steger, who was the Petitioner's President and CEO. The letter recited communications between Petitioner and a Member of Congress and noted that Petitioner was grateful for her help "even though it exhausted the sixty day window for appeal." The letter requested CMS to waive the sixty day deadline for requesting a hearing. CMS's regional office treated the letter and the attachments as a hearing request and referred it to the Civil Remedies Division of the Departmental Appeals Board. The Civil Remedies Division then assigned the case to me.

CMS filed a brief (CMS Br.) seeking to dismiss Petitioner's hearing request. CMS also moved that summary disposition be entered in its favor. Petitioner filed a brief (P. Br.) opposing the motion.

II. Issues, findings of fact and conclusions of law

A. Issue

The issues in this case are:

1. Whether Petitioner established good cause for failing to file its hearing request timely; and

2. Whether I have any authority to order CMS to certify Petitioner to participate at an earlier date than the date of certification determined by CMS.

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 separate heading. I discuss each Finding in detail.

1. Petitioner has no right to a hearing because it did not file its hearing request timely.

The regulations which govern hearings in cases involving CMS provide that, in order to be entitled to a hearing, a party must file its request within 60 days from the date that it receives notice of CMS's determination or reconsidered determination. 42 C.F.R. � 498.40(a)(2). The date of receipt of a notice of reconsideration is presumed to be five days from the mailing date of the notice absent a showing that the notice was, in fact, received earlier or later. 42 C.F.R. � 498.22(b)(3).

The notice of reconsideration in this case was mailed to Petitioner by CMS on August 11, 2000. It is presumed that Petitioner received the notice on August 16, 2000. Petitioner would have had to request a hearing by no later than October 15, 2000 in order to be entitled to one.

However, it was not until December 27, 1999 that Petitioner requested a hearing. It filed its request more than two months past the 60-day deadline for requesting a hearing. Therefore, Petitioner did not file its hearing request timely and is not entitled to a hearing.

2. Petitioner has not shown good cause for not filing its hearing request timely.

An administrative law judge may dismiss a hearing request where the request has not been filed timely. 42 C.F.R. � 498.70(c). However, the administrative law judge may extend the time within which a party may file its hearing request where that party makes a showing of good cause for not filing the request timely. 42 C.F.R. � 498.40(c). What is "good cause" is not defined by the regulations. However, in cases involving untimely hearing requests it has been held to be circumstances that are beyond a party's ability to control which prevented that party from filing a timely request. Hospicio San Martin, DAB CR387 (1995), aff'd, DAB No. 1554 (1996).

I find reason to dismiss Petitioner's hearing request pursuant to 42 C.F.R. � 498.70(c), because Petitioner has not established good cause for failing to file its hearing request timely. There were no circumstances that were beyond Petitioner's ability to control that prevented Petitioner from filing a hearing request within the 60-day filing period.

Petitioner asserts that, during the period when it was entitled to request a hearing, it was attempting to settle its dispute with CMS. P. Br. at 2. Settlement discussions included the intervention of Petitioner's representative in Congress. According to Petitioner:

it was reasonable for . . . [it] to rely upon the ongoing efforts of its congressional representative to negotiate a settlement. [Petitioner] . . . was unable to file a meaningful request for a hearing until after the settlement efforts of . . . [its representative in Congress] had been completed or abandoned (a process beyond . . . [Petitioner's] control) for that is when the contents of its request for a hearing (the remaining issues not settled by negotiation or compromise) would be known, as is required by 42 C.F.R. [�] 498.40(b).

Id. Thus, Petitioner argues that it could not request a hearing until settlement discussions had ended, because Petitioner did not know what issues it would be appealing until then.

There is nothing in this case to show that forces beyond Petitioner's control prevented it from filing a hearing request within the 60-day period. Petitioner was put on notice by CMS's August 11, 1999 letter that it had only 60 days within which to request a hearing. Nothing in that letter suggested that the 60-day period could be extended by ongoing settlement discussions with CMS. Petitioner has produced no evidence that CMS either told Petitioner or implied to it that it should not file its request pending the outcome of settlement discussions. Furthermore, there is nothing in the regulations governing hearings that suggests that the time limits for requesting a hearing are or should be tolled by ongoing settlement discussions.

Indeed, Ms. Steger's December 27, 1999 letter in which she requests a hearing makes it plain that Petitioner was aware that it had failed to comply with the 60-day deadline. That is made evident by Ms. Steger's request that the deadline be waived.

I do not find to be persuasive Petitioner's argument that it did not know what issues to raise until settlement negotiations had ended. Petitioner knew - from the moment it received CMS's August 11, 1999 letter - that it wished to challenge the date when CMS certified it to participate in Medicare. Petitioner could have raised its contention that it ought to have been certified at an earlier date and all arguments that it wished to make in support of that contention in a hearing request without awaiting the outcome of settlement discussions.

3. I have no authority to order CMS to certify Petitioner to participate in Medicare at a date that is earlier than the date when CMS certified Petitioner to participate. Therefore, there is no basis for me to afford Petitioner a hearing as to its contentions, even if Petitioner filed its hearing request timely or shown good cause for failing to file its hearing request timely.

The process by which a provider becomes certified to participate in Medicare is established by regulations that are published at 42 C.F.R. Part 489. The basic requirements for certification include a requirement that a State survey agency must ascertain whether a provider applying for participation satisfies the conditions for participation and must certify its findings to CMS. 42 C.F.R. � 489.10(d). The provider applying for participation generally must undergo a compliance survey by the State survey agency in order for that agency to find that the provider satisfies all conditions of participation. 42 C.F.R. � 489.13(a)(1)(i). The earliest date that a provider may be certified by CMS to participate in Medicare is the date of the compliance survey. 42 C.F.R. � 489.13(b). A provider will be certified to participate as of the date of the compliance survey if that provider is found by the State survey agency to be complying with all federal participation requirements as of the date of the survey.

As a matter of law, May 24, 1999 was the earliest date in which CMS had the authority to certify Petitioner to participate. 42 C.F.R. � 489.13(b). The undisputed facts of this case are that Petitioner was surveyed on May 24, 1999 for compliance with participation requirements by the Missouri Department of Health. The Missouri Department of Health advised CMS that Petitioner satisfied all federal participation requirements as of May 24, 1999, the date of the survey. CMS then certified Petitioner to participate as of that date.

I do not have the authority to order CMS to certify Petitioner to participate in Medicare at a date that is earlier than the date in which CMS first had the authority to certify Petitioner. CMS was required by law to certify Petitioner no earlier than that May 24, 1999 because no compliance survey had been completed earlier than that date.

Petitioner asserts that it was damaged by the Missouri Department of Health's failure to expeditiously survey Petitioner for compliance. According to Petitioner, its certification was delayed unreasonably for several months and it suffered damages as a consequence of this delay. I accept Petitioner's assertions as true for purposes of this decision. But true or not, these assertions are irrelevant. The regulations do not give me authority to override CMS's certification determination where CMS certified Petitioner to participate as of the earliest date on which the law allows certification to become effective. Neither do I have equitable authority to override the explicit requirements of governing regulations. GranCare Home Health Services and Hospice, DAB CR464 (1997).

Steven T. Kessel

Administrative Law Judge

1. I admit into evidence CMS Exhibits (CMS Exs.) 1-2 which were attached to CMS's motion for summary disposition. I admit into evidence Petitioner documents 1-16, which I have renamed Petitioner's Exhibits (P. Exs.) 1-16. These documents are from Petitioner's president Debby Erlbacher Steger which were forwarded to the Departmental Appeals Board from CMS in a letter dated January 13, 2000.