SUBJECT:

Unidad Dialisis De Aibonito,

Petitioner,

Centers for Medicare & Medicaid Services.

Having considered the parties' arguments and exhibits, I dismiss Petitioner's hearing request as it relates to the Centers for Medicare and Medicaid Services' (CMS's) notice letter of April 8, 2004 (April 8^th letter). Petitioner did not file a timely request for hearing as to that notice as required by 42 C.F.R. � 498.40(a)(2). Petitioner has not established good cause for extending the time within which it may file its hearing request. Furthermore, even if Petitioner had filed a timely request for hearing, the matter would be dismissed as the only issue raised by Petitioner on appeal is not an appealable determination.

I. Background

On March 18, 2004, the Puerto Rico Department of Health (PRDOH) conducted a survey of Petitioner in response to a complaint of repeated instances where medication was not available to renal patients. The survey resulted in a finding that Petitioner was not in compliance with 42 C.F.R. � 405.2136, "Governing Body and Management." CMS Ex. 1. According to CMS, Petitioner was found to be out of substantial compliance with this condition of participation on several prior surveys. By letter dated April 8, 2004, CMS informed Petitioner that based upon the findings of the survey conducted on March 18, 2004, Petitioner with not in substantial compliance with Medicare requirements for End-Stage Renal Disease (ESRD) facilities. CMS Ex. 2.

The April 8^th letter placed Petitioner on notice that CMS intended to terminate the facility from participating in the Medicare program on May 23, 2004, unless Petitioner achieved substantial compliance with participation requirements prior to that date. The letter also placed Petitioner on notice that failure to submit an acceptable plan of correction would result in the termination of Petitioner's ESRD services on May 23, 2004. The April 8^th letter also specifically placed Petitioner on notice of its appeal rights. Id.

On April 13, 2004, a second notice letter (April 13^th letter) was erroneously sent to Petitioner by CMS. The content of the April 13^th letter was identical to that of the April 8^th letter.

On April 16, 2004, Petitioner submitted a plan of correction which was accepted. The plan called for corrections which were due to be completed after the May 23, 2004-termination date. Therefore, the termination date was changed to June 20, 2004 by the PRDOH in a letter dated June 8, 2004. CMS Ex. 5.

A follow-up visit to Petitioner was conducted on June 1, 2004, and Petitioner was found not to have achieved substantial compliance with Medicare participation requirements. Petitioner was placed on notice, in a letter dated June 8, 2004, that it remained out of substantial compliance with 42 C.F.R. � 405.2136, "Governing Body and Management," and 42 C.F.R. � 405.2135, "Conditions of Compliance with State and Local Laws." CMS Ex. 6.

Petitioner subsequently submitted a revised plan of correction on June 14, 2004, which was not accepted by PRDOH. CMS Ex. 7. Petitioner submitted another plan of correction on June 25, 2004, which was also not accepted by PRDOH. CMS Ex. 8.

Petitioner filed a request for hearing on June 21, 2004.

CMS informed Petitioner by letter, dated July 1, 2004, that its failure to achieve substantial compliance had resulted in the termination of Petitioner from Medicare participation. Petitioner was informed in the letter that the termination would be effective July 6, 2004. The July 1, 2004 letter again informed Petitioner of its appeal rights by referring it specifically to the appeal language set out in CMS's April 8, 2004 letter. CMS Ex. 10.

CMS subsequently filed a motion to dismiss Petitioner's hearing request on October 13, 2004. In support of its motion, CMS filed 10 proposed exhibits (Exs.) which have been marked as CMS Exs. 1 through 10. Petitioner's response to CMS's motion was received by the Civil Remedies Division on November 17, 2004, and included 12 proposed exhibits. CMS filed a reply to Petitioner's response on December 7, 2004. No objections were raised by either party relative to the exhibits offered by the respective parties. I shall admit into evidence CMS Exs. 1 through 10 and Petitioner's (P.'s) Exs. 1 through 12.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are:

�Whether Petitioner timely filed a request for hearing as it relates to CMS's notice letter of April 8, 2004.

�Whether Petitioner has shown good cause to extend the time in which to file a request for hearing related to CMS's notice letter of April 8, 2004.

�Whether Petitioner's request for hearing complies with the requirements for content of appeal requests, as set forth at 42 C.F.R. � 498.40(b).

B. Findings of fact and conclusions of law

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

1. CMS's April 8, 2004 notice to Petitioner unambiguously informed Petitioner of its right to request a hearing to challenge CMS's determination to terminate Petitioner from participation in the Medicare program.

In CMS's notice letter of April 8, 2004, CMS clearly informed Petitioner that Medicare coverage of ESRD services would be terminated effective May 23, 2004, based on the finding of a complaint allegation survey that was completed on March 18, 2004. The survey had determined that Petitioner did not meet the requirements of coverage as a supplier of services under the Medicare program. The April 8^th letter informed Petitioner that termination would be effective May 23, 2004 if Petitioner did not achieve substantial compliance with Medicare participation requirement for ESRD facilities. The notice unambiguously informed Petitioner that:

If Unidad Dialisis De Aibonito believes this determination is not correct, they may request a hearing before an administrative law judge of the Department of Health and Human Services, Department Appeals Board. Procedures governing this process are set out in regulations at 42 C.F.R. 498.40 et seq. . . .

A written request for hearing must be filed no later than 60 days from the date of receipt of this letter . . . A request for a hearing should identify the specific issues, and the findings of fact and conclusions of law with which Unidad Dialisis De Aibonito disagrees.

CMS Ex. 2 (emphasis added).

CMS argues that a subsequent letter, dated April 13, 2004, does not in any way constitute a reconsidered or revised determination that tolled the sixty-day period for appeal. CMS Brief at 10. According to CMS, aside from the date, the April 13^th letter does not revise CMS's determination. Id.

As noted, Petitioner does not dispute that the April 8^th and April 13^th letters are identical. Nor does Petitioner, for that matter, argue that the April 13^th letter commenced a new 60-day period for appeal. Even if Petitioner were to make such an argument, it would fail as it is without merit. Petitioner's appeal was not filed within 60 days of the April 13^th letter either.

The CMS letter of April 8, 2004 placed Petitioner on notice of CMS's determination to terminate Petitioner from the Medicare program and unambiguously informed Petitioner of its appeal rights and the specific time period in which it had to file its appeal.

2. Petitioner failed to file its hearing request within 60 days of the April 8, 2004 notice letter from CMS as required by applicable statute and regulation.

Petitioner failed to file its hearing request within 60 days of its receipt of CMS's notice as required by statute and regulation. Section 1866(h) of the Social Security Act (Act) authorizes administrative review of determinations that a provider fails to comply substantially with a provider agreement entered with the Secretary of Health and Human Services (Secretary). The regulations mandate that the affected party "file its request in writing within 60 days from receipt of the notice . . . unless that period is extended." 42 C.F.R. � 498.40(a). On the motion of a party, or on his or her own motion, the administrative law judge (ALJ) may dismiss a hearing request where that request was not timely filed and the time for filing was not extended. 42 C.F.R. � 498.70(c). Under sections 498.40(a)(2) and 498.22(b)(3), receipt is "presumed to be 5 days after the date on the notice unless there is a showing that it was, in fact, received earlier or later."

Here, Petitioner does not dispute its receipt of the April 8^th letter, which specifically informed the Petitioner of its appeal rights and clearly advised that the appeal must be filed no later than 60 days after receipt of the notification. Nor does Petitioner dispute that it received CMS's identical letter dated April 13, 2004.

Pursuant to the regulation, the April 8^th letter is presumed to have been received five days after the date of the notice letter. Petitioner was required, under the regulations, to file a request for hearing on or before June 14, 2004. Petitioner filed a request for hearing on June 21, 2004. CMS Ex. 9. Petitioner's request for hearing was filed seven days beyond the requisite 60-day period to appeal. Even if the April 13^th letter from CMS is considered the official notice letter, a defense Petitioner does not allege or argue, Petitioner's June 21^st request for hearing is four days beyond the 60-day period to appeal.

Petitioner does not allege that its June 21, 2004 hearing request was filed within the regulatory 60-day time period. Thus, I find that Petitioner failed to file its request for hearing within 60 days of CMS's April 8^th letter. Further, even giving Petitioner the benefit of the doubt, it also failed to file its request for hearing within 60 days of CMS's April 13^th letter.

3. Petitioner has not established good cause for its failure to file a timely hearing request.

An affected party may request an extension of time to file a request for hearing upon a showing of good cause. 42 C.F.R. � 498.40(c)(1). An ALJ may dismiss an untimely hearing request where a party fails to demonstrate good cause for not filing the hearing request timely. 42 C.F.R. � 498.70(c). "Good cause" has been interpreted in case law to mean "circumstances beyond a provider's control, which intervened to prevent the provider from making a timely hearing request." See Hospicio San Martin, DAB CR387, at 2 (1995), aff'd, DAB No. 1554 (1996).

Petitioner argues that its request for hearing should not be denied pursuant to 42 C.F.R. � 478.22. Unfortunately, the regulation cited by Petitioner as support for the argument that its appeal should not be dismissed is not applicable to this case. The section cited by Petitioner applies to the review of Quality Improvement organizations. It does not apply to the termination of ESRD facilities.

Petitioner also argues that it is not an expert in these matters and was under the erroneous impression that after CMS's notification letter there was going to be a final determination by CMS related to the acceptance or nonacceptance of Petitioner's plan of correction. P.'s Brief at 1. The lack of expertise on the part of Petitioner does not provide a basis for me to find that Petitioner was laboring under circumstances beyond its control which prevented it from filing a timely hearing request.

Petitioner contends that it believed CMS was, at some point, going to provide a "final determination" relative to the acceptance or rejection of Petitioner's plan of correction. According to Petitioner, that "final determination" did not occur until it received the July 1, 2004 letter. P.'s Response at 7. Arguments similar to that which Petitioner advances in the instant case have previously been raised and rejected by the Departmental Appeals Board (DAB). See Beverly Health and Rehabilitation - Spring Hill, DAB No. 1696 (1999). I agree with CMS in that the fact that Petitioner was in the process of preparing an acceptable plan of correction does not render null and void CMS's notice of remedy and notice of the specific time for seeking appeal. Further, the fact that Petitioner may have been working with the state survey agency on a plan of correction does not absolve Petitioner from its duty to exercise its appeal rights within the period of time clearly specified in the CMS notice letters. See Nursing Inn of Menlo Park, DAB No. 1812 (2002).

Additionally, Petitioner notes in its brief that it was involved in a legal proceeding before an ALJ of the Puerto Rico Department of Health. However, Petitioner does not specify how the proceeding before the PRDOH ALJ relates to the late filing of the request for hearing in the case before me. In any event, the proceeding before an ALJ for the Department of Health in Puerto Rico does not toll the time period in which Petitioner is required to file its request for hearing. Any action before the PRDOH ALJ is separate and distinct from the findings and citations of the survey of Petitioner presently before me. The DAB has addressed similar contentions in nursing home cases and rejected the argument that state court or informal dispute resolution processes toll the period for filing a request for hearing. See Prospect Heights Care Center, DAB CR802 (2001); Cary Health and Rehabilitation Center, DAB No. 1771 (2001).

Petitioner also argues that it was confused about the timing of the appeal process based on the fact that there were, what Petitioner terms as, multiple notifications, which mislead Petitioner as to the tolling of the appeal clock. Petitioner appears to argue that, with multiple investigations, an administrative process with the state, and a change in termination date by CMS, Petitioner was unclear as to the applicable appeal period. Petitioner argues that it was not clear as to the appropriate appeal period until it received the July 1, 2004 letter from CMS. Petitioner makes this argument in conjunction with its contention that CMS could have imposed alternative lesser sanctions. P.'s Response at 9.

Petitioner's arguments are not persuasive. First, while Petitioner argues that it did not understand until the July 1, 2004 letter that CMS's determination was final, it had in fact already filed its appeal on June 21, 2004. Thus, Petitioner's argument that it was confused as to the appeal period until receipt of the July 1, 2004-letter is illogical. Further, Petitioner's argument that the change of termination date added to its confusion as to the appeal date is also unavailing. The change in the termination date, according to CMS, was an accommodation to Petitioner and CMS did not, in any way, inform or give Petitioner conflicting information that would lead Petitioner to conclude that the change in termination date would affect the appeal period. Nowhere does Petitioner contend that it was misled by CMS's employees by word or deed as to the period in which to exercise its appeal rights. Petitioner was specifically informed of its rights, and the period of time in which it had to appeal in the April 8^th letter. The change in termination date did not affect the applicable appeal period to challenge CMS's determination upon which its termination was based.

As to Petitioner's argument that CMS should have considered imposing alternative sanctions, CMS counters by asserting that based on the survey findings, termination was mandated by the regulations at 42 C.F.R. � 405.2180(a). Thus, CMS had no authority to apply alternative remedies in this case. Moreover, I do not have the authority to review CMS's choice of which remedies it chooses to impose. Petitioner's argument relative to the choice of remedies imposed does not provide a basis to nullify its untimely appeal.

Petitioner's last argument focuses upon the adequacy of the notice from CMS. Petitioner argues that the April 8^th, April 13^th, and July 1^st letters "[d]id not specify in any way the issues, finding of facts and conclusions of law with which CMS based its decision for termination." P.'s Response at 8 - 9. As CMS points out, there is no requirement that the notice letter set forth in detail the nature of the deficiencies upon which the sanction is based. Birchwood Manor Nursing Center, DAB No. 1669 (1998), aff'd, Birchwood Manor Nursing Center v. Dept. of Health and Human Services, 189 F.3d 467 (5^th Cir. 1999). The basis for the termination action is set forth in the survey reports that had been provided to Petitioner prior to CMS's April 8^th letter. Beverly Health and Rehabilitation, DAB No. 1696, at 11. Petitioner's argument is better suited to be made after filing its request for hearing rather than as an excuse for its failure to file a timely appeal. Petitioner's argument in this regard is without merit.

4. Petitioner fails to comply with the requirements for content of appeals.

Finally, it must be noted that even if I were to find that Petitioner had shown good cause for failing to file an appeal within the applicable time period, I would find that Petitioner's request for hearing raises an issue that is not an appealable determination. In addition, Petitioner's appeal request was inadequate and failed to comply with the requirements for content of an appeal request as set forth at 42 C.F.R. � 498.40(b). Petitioner's "request for hearing," filed on June 21, 2004, states in its entirety as follows:

With this letter we request a hearing related to out dialysis center, Renal Medical Management Corp., regarding the determination and nonacceptance of our corrective plan.

Should you need more information please do no hesitate to call me at 787-999-2747.

CMS Ex. 9.

Read literally, the request by Petitioner seeks to appeal the state survey agency's determination not to accept its plan of correction. This is not an appealable determination over which I have jurisdiction. Furthermore, Petitioner's "request for hearing" does not identify the specific issues, and the findings of fact and conclusions of law with which it disagrees nor does it specify the basis for contending that the findings and conclusions are incorrect. Petitioner's letter cannot be interpreted, on its face, as challenging all of the findings of CMS relative to its surveys or remedies imposed as the request for hearing only addresses the "determination and nonacceptance of Petitioner's corrective plan." This hearing request does not meet the standards in cases where the DAB has upheld hearing requests as meeting the requirements of 42 C.F.R. � 498.40(b). Fairview Nursing Plaza, Inc., DAB No. 1715 (2000); The Carlton at the Lake, DAB No. 1829 (2002). Even if Petitioner's reference to "determination" is interpreted to refer to CMS's determination to terminate its participation, Petitioner still does not address the specific findings of fact and conclusions of law it is contesting.

III. Conclusion

Based on all of the evidence and arguments presented by the parties, I find Petitioner failed to file a request for hearing within the applicable statutory time period. I further find that, even if Petitioner had filed a request for hearing within the appropriate time period, Petitioner's hearing request does not raise an issue over which I have jurisdiction nor does it meet the requirements set forth in 42 C.F.R. � 498.40(b). Accordingly, I dismiss Petitioner's request for hearing in this matter.

Alfonso J. Montano

Administrative Law Judge