Manhattan Nursing and Rehabilitation Center, LLC, DAB CR5187 (2018)

DECISION

The request for hearing of Petitioner, Manhattan Nursing and Rehabilitation Center, LLC, is dismissed pursuant to 42 C.F.R. § 498.70(c).1  Petitioner’s request for hearing was not timely filed and Petitioner has not shown good cause to extend the time for filing the request for hearing.

I.  Background and Facts

The Centers for Medicare & Medicaid Services (CMS) notified Petitioner by letter dated September 13, 2017, that a survey of Petitioner’s facility completed on August 11, 2017, found Petitioner was not in substantial compliance with program participation requirements.  CMS advised Petitioner regarding mandatory termination if Petitioner did not return to substantial compliance within six months of the end of the survey.  CMS also advised Petitioner that it was imposing a discretionary denial of payments for new admissions effective September 28, 2017, and a per instance civil money penalty of

Page 2

$12,005.  CMS advised Petitioner that it had the right to request informal dispute resolution (IDR) or independent IDR (IIDR).  CMS Exhibit (Ex.) 8 at 1-2.  The CMS notice stated:

Please note, furthermore, that an incomplete IDR or Independent IDR process will not delay any deadline listed below under “Appeal Rights” for requesting a hearing, or for requesting a waiver of hearing rights.

CMS Ex. 8 at 3 (emphasis in original).  The CMS notice advised Petitioner that, if it disagreed with the enforcement remedies imposed, Petitioner could request a hearing before an administrative law judge (ALJ).  CMS advised that a request for hearing must be filed no later than 60 days from receipt of the CMS notice.  CMS Ex. 8 at 3.

Petitioner filed its request for hearing (RFH) by delivering it to the United Parcel Service (UPS) on April 23, 2018.  Petitioner requested that the time for filing the request for hearing be extended.  RFH at 2-3.

Petitioner’s request for hearing was docketed and assigned to me on May 4, 2018.  I issued an Acknowledgement and Prehearing Order on May 4, 2018 (Prehearing Order).  Paragraph II.D.1 of the Prehearing Order required that any motion to dismiss for untimely filing of the request for hearing be filed not later than June 4, 2018.  On August 2, 2018, CMS filed a motion to dismiss Petitioner’s request for hearing on grounds it was not timely filed (CMS Motion).2  Petitioner filed a response in opposition to the motion to dismiss on August 21, 2018 (P. Response).3

Page 3

II. Issues, Conclusions of Law, and Discussion

A.  Issues

Whether good cause exists to extend the time for filing the request for hearing in this case; and

Whether the request for hearing should be dismissed because it was untimely filed.

B.  Applicable Law

A provider or supplier notified of an initial, reconsidered, or reopened and revised decision that results in an enforcement remedy has the right to request a hearing by ALJ in accordance with the procedures set forth at 42 C.F.R. pt. 498.  42 C.F.R. §§ 488.408(g), 498.3(b)(13), and 498.5(b).  The regulations are clear regarding the requirements for timely filing a request for hearing:

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, 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 any time, the record on an action may never be closed.

I may dismiss an untimely request for hearing, if I do not grant an extension of the time to file.  42 C.F.R. § 498.70(c).

C.  Conclusions of Law and Analysis

My conclusions of law are set forth in bold followed by my findings of fact and discussion.

Page 4

1.  Petitioner failed to file its request for hearing within the 60-day period provided by the regulation.  42 C.F.R. § 498.40(a)(2).

2.  Petitioner has not shown good cause to extend the period for filing its request for hearing by 157 days.  42 C.F.R. § 498.40(c).

3.  Dismissal of Petitioner’s request for hearing pursuant to 42 C.F.R. § 498.70(c) is appropriate.

The CMS notice of initial determination in this case is dated September 13, 2017.  CMS Ex. 8.  Pursuant to 42 C.F.R. §§ 498.40(a)(2) and 498.22(b)(3), it is presumed that Petitioner received the CMS notice on September 18, 2017.

Petitioner had 60 days from receipt of the CMS notice to file its request for hearing.  Therefore, Petitioner had until Friday, November 17, 2017, to file its request for hearing.  Petitioner did not file its request for hearing until it was delivered to UPS on April 23, 2018.  Petitioner missed the deadline for filing its request for hearing by 157 days and there is no dispute that Petitioner’s request for hearing was filed late.

I am granted discretion by 42 C.F.R. § 498.70(c) to dismiss a request for hearing that is not timely filed and for which the time for filing has not been extended.  Therefore, dismissal is permitted in this case if I determine not to extend the period for filing the request for hearing by 157 days.

Pursuant to 42 C.F.R. § 498.40(c)(2), I may only extend the period for filing a request for hearing for good cause.  Petitioner urges me to find good cause in this case but I conclude good cause for an extension has not been shown under any reasonable definition of the term.

The regulations do not define the term “good cause.”  Furthermore, the Departmental Appeals Board (Board) has never provided a precise or complete definition of “good cause.”  West Side House LTC Facility, DAB No. 2791 at 6 (2017) (citing Rutland Nursing Home, DAB No. 2582 at 5 (2014)).  Relevant Board decisions turn on evaluation of the facts and determination on a case-by-case basis whether the facts fit within any reasonable definition of good cause.  See, e.g., West Side; Rutland; Nursing Inn of Menlo Park, DAB No. 1812 (2002); Cary Health & Rehab. Ctr., DAB No. 1771 at 27 (2001).  Various appellate panels of the Board have commented that the IDR or IIDR process established by 42 C.F.R. § 488.331 does not toll the federal administrative appeal process because it is a separate procedure in addition to the appeal rights provided to facilities under federal regulations.  The Board noted in Cary, “[i]f approaching the deadline for termination to go into effect and/or choosing to participate in an IDR process were sufficient to excuse the failure to file a timely request for a federal hearing, the time frame for such appeals would become almost meaningless.”  Cary at 29.

Page 5

Petitioner argues good cause exists because:

• Petitioner timely requested IIDR;
• The IIDR decision was not issued until December 20, 2017 (more than a month after the 60-day period for requesting a hearing had expired);
• The IIDR decision was partially favorable to Petitioner;
• CMS did not respond to the IIDR recommendation until February 27, 2018; and
• The CMS response to the IIDR was partially favorable to Petitioner but CMS failed to issue a revised notice of initial determination to reflect the impact of the IIDR.

RFH at 2-3; P. Response at 2-3.  Petitioner admits that a pending IIDR is not good cause for extending the period for requesting a hearing.  The regulation is clear that failure of the state or CMS to complete IDR or IIDR timely cannot delay the effective date of enforcement actions and Petitioner may not seek to delay enforcement action on grounds that IDR or IIDR was not completed before the effective date of the enforcement action.  42 C.F.R. § 488.331(b).  Petitioner asserts, however, that it was CMS’ failure to timely respond to the IIDR recommendation and issue a reopened and revised initial determination that constitutes good cause.  Petitioner argues, without citation to any authority, that CMS must issue a reopened and revised determination if CMS accepts a recommendation of IDR or IIDR, even if the enforcement remedy is unchanged.  I find no authority that imposes such a due process requirement on CMS and conclude Petitioner’s argument is meritless.  Furthermore, Petitioner’s argument must fail because the 60-day period for requesting a hearing actually expired more than 30 days before issuance of the IIDR recommendation.  Therefore, when the time to request a hearing expired, Petitioner had no idea that the IIDR recommendation would be favorable, and Petitioner had no reason to think CMS might take favorable action.

I conclude that Petitioner’s election to invoke the IIDR process does not constitute good cause for extending the time for Petitioner to file its request for hearing.  Petitioner provides no acceptable explanation for why it did not simultaneously file both its request for IIDR and a request for hearing.  Accordingly, Petitioner’s request for extension is denied.  Petitioner’s request for hearing was filed 157 days late and no extension has been granted.  I conclude that exercising my discretion to permit this case to proceed is not appropriate.  Accordingly, the request for hearing is dismissed.

Page 6

III.  Conclusion

For the foregoing reasons, Petitioner’s request for hearing is dismissed.

• 1. References are to the 2016 revision of the Code of Federal Regulations (C.F.R.), unless otherwise indicated.
• 2. The CMS Motion was not filed timely pursuant to my Prehearing Order. The purpose for requiring the parties to file motions to dismiss shortly after the issuance of the Prehearing Order is to permit resolution of the motion quickly and potentially avoid the parties incurring unnecessary litigation expenses associated with making prehearing exchanges. CMS failed to comply with the Prehearing Order and both parties incurred unnecessary litigation expenses in this case. Counsel for CMS is cautioned that they must comply with ALJ orders or face potential sanctions. However, in this case, resources have been wasted and further sanctioning CMS will not remedy that waste.
• 3. CMS filed CMS Exs. 1 through 28 and Petitioner filed Petitioner Exs. 1 through 3 in preparation for hearing on the merits. Only CMS Ex. 8, to which Petitioner has made no objection, is admitted and considered for purposes of this decision.