SUBJECT:

Muir Road Health Center,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

Respondent, the Centers for Medicare & Medicaid Services (CMS), moved to dismiss Petitioner's request for hearing dated December 19, 2001, for untimely filing. For the reasons set forth below I grant CMS's motion.

This is a final, appealable order.

I. Procedural History

On May 1, 2001, the California Department of Health Services (CDHS) completed a survey of Petitioner's facility finding Petitioner not in compliance with participation requirements. Petitioner was advised, by letter dated July 12, 2001, that CMS agreed with the CDHS findings of noncompliance and that CMS was imposing remedies including a denial of payment for new admission (DPNA) effective July 27, 2001, and a civil money penalty (CMP) of $500 per day effective May 1, 2001. The letter specified that both sanctions would continue until the facility was found in compliance or the Petitioner's provider agreement was terminated. Petitioner's request for hearing dated September 11, 2001, was received on October 15, 2001, at the Civil Remedies Division of the Departmental Appeals Board (CRD, DAB) attached to an October 9, 2001 memorandum from the Director of the Long Term Care Branch, CMS. The request for hearing was assigned docket number C-02-040 and assigned to me for hearing and decision on October 22, 2001. CMS's motion to dismiss the request for hearing in C-02-040 was denied by my Order dated May 21, 2002, in which I found the request for hearing timely filed.

A follow-up survey was completed by CDHS on August 16, 2001. CMS advised Petitioner, by letter dated October 9, 2001, that Petitioner was found to be not in substantial compliance by the August 2001 survey. CMS further advised that previously imposed remedies would continue until Petitioner was found in compliance or was terminated effective October 25, 2001.

A second follow-up survey was completed on October 11, 2001. By letter dated October 25, 2001, CMS advised Petitioner that it was found in substantial compliance as of October 11, 2001. CMS further advised that all remedies ceased effective October 11, 2001, and that there was no termination.

On December 19, 2001, the Long Term Care Division of State Operations, CMS, received a request for hearing from counsel for Petitioner dated December 19, 2001. The Long Term Care Division mailed the request for hearing to the CRD as an enclosure to a letter dated December 21, 2001. The letter and request for hearing were not received at the CRD until a copy was provided to CRD by CMS by facsimile transmission on May 28, 2002. The request for hearing was assigned docket number C-02-593 and assigned to me for hearing and decision on June 6, 2002. A standard 60-day docketing order was issued at my direction on June 6, 2002. Petitioner made none of the filings required by paragraph 2 of the docketing order. On August 5, 2002, CMS filed a motion to dismiss or, in the alternative, a report of case readiness and notice for further development. Petitioner has not responded to the motion to dismiss.

II. Findings of fact and conclusions of law

A. Findings of fact: The following findings are based on the request for hearing dated December 19, 2001, and the unopposed motion to dismiss and CMS's brief with the attached declaration of Jeannie Lim.

1. On August 16, 2001, Petitioner's facility was surveyed by the State agency and deficiencies were found.

2. By letter dated October 9, 2001, CMS notified Petitioner that, based on the deficiencies cited by the State agency on the August 2001 survey, CMS would continue the DPNA and CMP imposed after a prior survey and that termination would be effective October 25, 2002. Declaration of J. Lim, Tab A.

3. CMS sent the October 9, 2001 notice to Petitioner on October 9, 2001, by regular mail and facsimile. Declaration of J. Lim, Tabs A and B.

4. Petitioner is presumed to have received the October 9, 2001 notice on October 15, 2001, absent evidence that it was, in fact, received earlier or later.

5. Petitioner submitted a request for hearing dated December 19, 2001, related to the deficiencies and remedy of which it was notified by the CMS notice dated October 9, 2001.

6. Petitioner's request for hearing bears the date December 19, 2001, which is 65 days after Petitioner's presumed receipt of the October 9, 2001 CMS notice of remedies and imposition of a remedy.

B. Conclusions of law:

1. CMS has not rebutted the presumption that its October 9, 2001 notice of deficiencies and imposition of a remedy was delivered to Petitioner by mail five days after the date of that notice.

2. Petitioner's request for hearing dated December 19, 2001, was filed more than 60 days after Petitioner received the October 9, 2001 notice.

3. Petitioner's request for hearing was not timely filed.

4. Petitioner has cited no cause beyond its control as grounds for the late filing of its request for hearing.

5. Petitioner has not shown good cause to justify an extension of the time to file a request for hearing in this case.

6. Dismissal of a late filed request for a hearing is appropriate when the time for filing has not been extended, pursuant to 42 C.F.R. � 498.70(c).

III. Discussion

A. Issue

Whether Petitioner's request for hearing dated December 19, 2001, and docketed as C-02-593 should be dismissed for untimely filing.

B. Applicable law

A provider notified of an initial, reconsidered, or reopened and revised decision that results in an enforcement remedy is accorded the right to request a hearing by administrative law judge in accordance with the procedures set forth at 42 C.F.R. Part 498. 42 C.F.R. �� 488.408(g), 498.5(b), and 498.3(b)(13). The regulations regarding the requirements for timely filing a request for hearing provide:

The affected party or its legal representative or other authorized official must file the request in writing within 60 days from receipt of the notice of initial, reconsidered, or revised determination unless that period is extended . . . .

42 C.F.R. � 498.40(a)(2).

The 60-day period runs from the date of receipt by the affected party, which is presumed to be five days after the date of the notice unless it is shown that the notice was received earlier or later. 42 C.F.R. �� 498.40(a)(2) and 498.22(b)(3). I have the discretion to extend the period for filing a request for hearing if the petitioner files a "written request for extension of time stating the reasons why the request was not filed timely," and I find good cause for the late filing is shown. 42 C.F.R. � 498.40(c). Although the legislative history for 42 C.F.R. � 498.40 is not helpful in understanding the application of these regulatory provisions in this case, ⁽¹⁾ the requirement for timely filing a written request for hearing is commonly viewed as the means by which administrative finality can be achieved, i.e., if there is no deadline for filing and an affected party may file at anytime, the record on an action may never be closed.

Pursuant to 42 C.F.R. � 498.17(b), a party has 20 days from the date of mailing or personal service to submit a rebuttal statement and/or evidence in opposition to the opposing party's motion.

I am authorized to dismiss a request for hearing if it was not timely filed and I have not granted an extension of the period to file. 42 C.F.R. � 498.70(c).

C. Analysis

CMS moved to dismiss the request for hearing for untimely filing on August 5, 2002. Pursuant to 42 C.F.R. � 498.17(b), Petitioner had 20 days from the date of the motion to respond. I take administrative notice of a 2002 calendar and note that the 20^th day after August 5, 2002 is August 25, a Sunday, so Petitioner's response must have been filed not later than the next business day or August 26, 2002. More than 50 days have passed since the date for Petitioner to file its rebuttal to the motion to dismiss and no rebuttal has been received by the CRD. Accordingly, it is necessary to resolve the motion based solely upon CMS's submissions and the request for hearing.

It has never been disputed that the request for hearing bears the date December 19, 2001, and the signature of Orrin Leigh Grover, Attorney for Petitioner. It is also not disputed that CMS sent Petitioner a notice letter dated October 9, 2001, in which Petitioner was advised, inter alia., that Petitioner's facility was found not in substantial compliance on the survey completed August 16, 2001; that remedies imposed on a prior survey would continue due to the continuing noncompliance; that termination would occur October 25, 2001, if substantial compliance was not achieved; and that Petitioner had the right to appeal within 60 days of receipt of the notice. There is no dispute that pursuant to 42 C.F.R. �� 498.40(a)(2) and 498.22(b)(3) the 60-day period runs from the date of receipt of the October 9 notice by Petitioner, which is presumed to be five days after the date of the notice unless it is shown that the notice was received earlier or later. I take administrative notice of a 2001 calendar and calculate that the 60^th day after the presumed receipt of the October 9, 2001 notice was December 14, 2001. ⁽²⁾ I conclude that the request for hearing dated December 19, 2001 is, therefore, five days late. ⁽³⁾

Because the request for hearing is five days late, it is necessary to determine whether the time for filing the request for hearing should be extended. The regulation provides that if a request is not filed within 60 days, the "affected party or its legal representative or other authorized official may file with the ALJ a written request for extension of time stating the reasons why the request was not filed timely." 42 C.F.R. � 498.40(c)(1). I may extend the time for filing for good cause. 42 C.F.R. � 498.40(c)(2). The regulations do not define the term "good cause" but an appellate panel of the Departmental Appeals Board (DAB) has held that "good cause" means circumstances beyond the provider's control. Hospicio San Martin, DAB No. 1554 (1996).

The only writing submitted by Petitioner is the request for hearing dated December 19, 2001. Petitioner's counsel indicates in the request for hearing that the Petitioner appealed the determinations of CMS as reflected in the letters of October 9, 2001, and October 25, 2001. He goes on to state that:

The Provider (Petitioner) was not aware that a separate appeal was required from the October 9, 2001 letter because, at the time it was received, another survey was underway. The provider successfully passed that survey on October 11, 2001.

Also, even though it was aware that the provider was represented by counsel, DHHS (sic) ⁽⁴⁾ failed to provide a copy of the October 9, 2001 or the October 25, 2001 letters to counsel.

Petitioner's counsel never acknowledges in the request for hearing that it was late and never specifically argues either of the forgoing statements as cause for late filing. I address the statements in the interest of thoroughness. Counsel's assertion that Petitioner was unaware that it needed to file a "separate appeal" based on the October 9, 2001 CMS notice because another survey was underway is simply not credible. The regulation is clear that an affected party who has a right to a hearing must file a request for hearing in writing within 60 days from the receipt of an initial, revised or reconsidered decision. 42 C.F.R. � 498.40(a). There can be no question, and Petitioner makes no argument to the contrary, that the October 9, 2001 CMS notice advised Petitioner of an initial, revised or reconsidered decision that resulted in the imposition of enforcement remedies, including termination of Petitioner's provider agreement. Pursuant to 42 C.F.R. � 498.5(b) and � 498.3(b) Petitioner clearly had a right to appeal. Therefore, the October 9, 2001 notice triggered the running of the 60-day appeal period.

Even if Petitioner's management and their counsel could plead total ignorance of the law, the October 9, 2001 notice letter clearly advised of the right to file an appeal. Furthermore, as I note in the procedural history, Petitioner has previously filed an appeal from an adverse CMS action, with the same counsel, demonstrating that both Petitioner and its attorney are aware of Petitioner's right to a hearing and how to exercise the right. Petitioner does not explain how a survey in progress on October 11, 2001 impacted Petitioner's decision regarding filing an appeal based on the October 9 notice. Furthermore, Petitioner cannot argue in good faith that it was unaware of pending adverse action after it received the October 25, 2001 CMS notice. I also reject any suggestion that the October 25, 2001 CMS notice restarted the running of the 60-day appeal period, particularly as that notice did not advise of an appealable decision and it specifically warned Petitioner that the appeal period was triggered by receipt of the October 9, 2001 CMS notice. ⁽⁵⁾

Petitioner's counsel also notes that CMS failed to provide copies of the October 9, 2001, and October 25, 2001 notices to Petitioner's counsel. I note that 42 C.F.R. � 488.402(f), requires that CMS give notice to the provider. There is no requirement that CMS give notice to counsel who is representing a provider in an appeal from a different survey. Further, Petitioner's counsel does not assert that there was any impact upon Petitioner due to the fact that counsel was not provided a courtesy copy of the October 9 and 25 notices.

I conclude that Petitioner has failed to show good cause to extend the period in which to file the request for hearing.

IV. Conclusion

For the foregoing reasons, I conclude that Petitioner's request for hearing dated December 19, 2001, was not timely filed and Petitioner has failed to show any cause for extending the period of appeal. Accordingly the request for hearing is dismissed.

Keith W. Sickendick

Administrative Law Judge

1. 52 Fed. Reg. 22,446 (June 12, 1987).

2. Five days from October 9, 2001 was Sunday, October 14, 2001. I have given Petitioner the benefit of concluding that the notice could not have been received until October 15, 2001. The 60 ^th day after October 15, 2001 is Friday, December 14, 2001.

3. CMS argues that the notice was actually delivered by facsimile transmission on October 9, 2001 and that the request for hearing was due December 10, 2001, making it nine days late. CMS offers a journal from its facsimile machine as evidence of successful transmission. I do not accept the CMS evidence of a successful transmission as sufficient evidence of receipt by Petitioner to rebut the presumption established by 42 C.F.R. �� 498.40(a)(2) and 498.22(b)(3) that the notice was received five days after the date of mailing. See Cary Health and Rehabilitation Center, DAB No. 1771 (2001); Riverview Village, DAB No. 1840 (2002).

CMS also argues that Petitioner acknowledges in its December 19, 2001 request for hearing that the October 9, 2001 notice was received during the survey which ended on October 11, 2001. Using October 11, 2001 as the date of receipt, the request for hearing was due not later than December 13, 2001, in which case the request for hearing was six days late. CMS is correct that Petitioner appears to acknowledge receipt on or about October 11, 2001, but out of an abundance of caution, I have chosen to rely upon the regulatory presumption -- either way the request for hearing is late.

4. Both letters were actually from the Department of Health and Human Services, Health Care Finance Administration (HCFA), Region IX, Division of State Operations. Effective July 5, 2001, the Health Care Financing Administration was renamed the Centers for Medicare & Medicaid Services. 66 Fed. Reg. 35,437 (2001).

5. In fact, CMS asserted that any request for hearing had to be filed not later than December 10, 2001, based on its erroneous conclusion that it could show actual receipt on October 9, 2001. This error caused no prejudice to Petitioner, and if Petitioner had filed by December 10, 2001, there would be no question that the request for hearing was timely.