Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Alden Nursing Center - Morrow, |
DATE: June 25, 2001 |
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Health Care Financing Administration
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Docket No.C-00-646
Decision No. CR784 |
DECISION | |
DECISION ON REMAND This case is before me on remand from an appellate panel
of the Departmental Appeals Board (DAB). By order dated July 5, 2000,
the appellate panel remanded the case with instructions to provide the
parties an item-by-item inventory of the administrative record, and to
admit any documents purportedly missing from the record, most particularly,
a letter dated February 26, 1999.(1) I
am directed to reconsider the request for dismissal by the Health Care
Financing Administration (HCFA) in light of any newly admitted material
and in light of the appellate decisions in Alden-Princeton Rehabilitation
and Health Care Center, Inc., DAB No. 1709 (1999), and Fairview
Nursing Plaza, Inc., DAB No. 1715 (2000), and the appellate panel
rulings in Four States Care Center, Docket No. A-99-66 (June 7,
1999), and Rehabilitation & Healthcare Center of Tampa, Docket
No. A-99-95 (August 16, 1999). Alden Nursing Center - Morrow, DAB
No. 1734 (2000). By letter dated July 17, 2000, the parties were provided
an item-by-item inventory of the administrative record. I have reconsidered this case in accordance with the appellate
panel's instructions. I grant HCFA's motion to dismiss, and I deny Petitioner's
motion to amend its October 14, 1996 letter requesting a hearing. I. BACKGROUND(2) Petitioner, Alden Nursing Center-Morrow, is a nursing facility certified to participate in the Medicare and Medicaid programs as a provider of services. The Illinois Department of Public Health completed a Medicare certification survey of the facility on April 19, 1996, and revisit surveys on June 14, 1996, and August 15, 1996. Based on its review of the survey findings, HCFA determined that the facility was not in substantial compliance with the Medicare participation requirements, and, in a letter dated October 8, 1996, advised the facility that it was imposing a civil money penalty (CMP) in the amount of $24,200. The letter also advised Petitioner of its right to request a hearing no later than 60 days after the date it received HCFA's notice, and specifically directed Petitioner's attention to 42 C.F.R. � 498.40, the regulation that dictates the requirements for filing a valid hearing request. In a letter dated October 14, 1996, Petitioner requested
a hearing. The body of the letter consisted of the following two paragraphs:
The case was assigned to Administrative Law Judge (ALJ)
Leahy for hearing and decision. At Petitioner's request, and in the absence
of objection, ALJ Leahy stayed the matter to allow the parties to pursue
settlement negotiations. Apparently, settlement efforts were protracted,
and eventually broke down. On February 10, 1999, HCFA asked ALJ Leahy
to issue an order requiring Petitioner to show cause why its hearing request
should not be dismissed as untimely for failure to comply with the content
requirements of 42 C.F.R. 498.40 (b). In response, Petitioner's counsel mailed in a set of documents,
received March 1, 1999, containing two separate cover letters, each dated
February 26, 1999. However, before these documents were filed in the administrative
record, counsel's office called to say that they had been mailed in error,
and were rescinded.(3) In its place, Petitioner
immediately filed a second set of documents, received March 3, 1999. This
set contained only one cover letter dated February 26, 1999. Improperly,
Petitioner did not advise HCFA counsel that it had withdrawn its first
set of documents, and did not send HCFA a copy of the second set, even
though, in filing the second set, Petitioner indicated that HCFA counsel
had been copied. See Health Care Financing Administration's January
29, 2001 letter. The documents received on March 3, 1999, which were filed
in the administrative record, included: 1) a one sentence cover letter
dated February 26, 1999, addressed to ALJ Leahy, (2) a document captioned
MOTION TO REACTIVATE AND SET THIS CAUSE FOR HEARING AND FOR LEAVE TO FILE
AN AMENDED HEARING REQUEST (Motion for Leave to Amend), and (3) a stack
of documents marked as Attachments 1 through 11. On October 18, 1999, the ALJ issued a decision denying
Petitioner's motion to amend its October 14, 1996 letter requesting a
hearing, and granting HCFA's motion to dismiss. Alden Nursing Center
- Morrow, DAB CR622 (1999). Petitioner appealed, and, on July 5, 2000,
an appellate panel remanded the case for further proceedings. Alden
Nursing Center - Morrow, DAB No. 1734 (2000). Pursuant to a briefing order issued on remand by ALJ Leahy,
the parties simultaneously filed initial and response briefs. Prior to
the filing of the response briefs, ALJ Leahy left the agency, and the
matter is now before me. HCFA's initial brief was accompanied by two exhibits marked
as HCFA Exs. 1 - 2. HCFA Ex. 2 is accompanied by two attachments marked
as Attachment 1 and Attachment 2. Attachment 1 is a copy of the subsequently
rescinded documents served on HCFA on March 1, 1999. These include the
February 26, 1999 cover letter which, in its July 5, 2000 remand decision,
the appellate panel characterized as missing from the record. The rescinded
submission also includes another February 26, 1999 cover letter, a Motion
for Leave to Amend, and a stack of unmarked attachments. Petitioner's
initial brief was accompanied by four exhibits marked as P. Exs. 1 - 4.
In the interest of creating a complete record, and notwithstanding any
objections by the parties, I am admitting HCFA Ex.1, HCFA Ex. 2 with attachments,
and P. Exs. 1 - 4 into the record. In addition, the appellate panel's remand order specifically
stated that I may consider as part of the record documents filed by the
parties in conjunction with Petitioner's appeal. In the interest of having
a complete record before me, I am considering the entire appellate record
on remand. II. DISCUSSION Much confusion surrounds this case, but when the extraneous issues are swept aside, this is a straightforward matter, presenting the following questions:
No one disputes that Petitioner's initial filing did not
meet the regulatory standard. I therefore conclude that Petitioner failed
to file timely a valid hearing request. I have considered the totality
of the particular circumstances surrounding Petitioner's facially defective
hearing request, and conclude that dismissal under 42 C.F.R. 498.70(c)
is appropriate.
Section 1866(h) of the Social Security Act (Act) authorizes
administrative review of determinations that a provider fails to comply
substantially with the provisions of the regulation "to the same extent
as is provided in section 205(b) [of the Act]." Under section 205(b),
the Secretary must provide reasonable notice and opportunity for a hearing
"upon request by [the affected party] who makes a showing in writing
that his or her rights may be prejudiced" by the Secretary's decision.
Act, section 205(b) (emphasis added).(4)
The request for review "must be filed within sixty days" after
receipt of the notice of HCFA's underlying determination. Act, section
205(b) (emphasis added). By regulation promulgated pursuant to the Act, only documents
that meet specified criteria satisfy the statutory requirement for a written
hearing request. 42 C.F.R. � 498.40(b) requires that the hearing request:
Though a procedural requirement, this regulation carries
the same weight as any substantive requirement, and should be enforced
with comparable vigor. See Schweiker v. Hansen, 450 U.S.
785, 790 (1981) ("A court is no more authorized to overlook the valid
regulation requiring that applications be in writing than it is to overlook
any other valid requirement for the receipt of benefits.") Since the information
specified in 498.40(b) is mandatory, "it necessarily follows that a document
lacking this information is not a request for hearing." Birchwood
at 9. Here, Petitioner's initiating document, an October 14,
1996 letter, enters counsel's appearance and states: By this letter we herewith request a hearing on the imposition
of the civil money penalties. . . . Petitioner did not challenge on appeal ALJ Leahy's determination
regarding the legal sufficiency of its initial filing, and there seems
no serious dispute that this document does not comport with regulatory
requirements, and therefore does not constitute a hearing request within
the meaning of 42 C.F.R. � 498.40(b). See Petitioner's Request
for Review filed on appeal at 13. ("admittedly the initial hearing request
did not detail the disputed issues . . .") The October 14, 1996 initiating
document does not identify the specific issues in the case, nor the findings
of fact and conclusions of law with which Petitioner disagrees. The document
does not specify any basis for contending that HCFA's findings and conclusions
were incorrect. Since 498.40(b) requires specific information, a document
lacking that information does not constitute a request for hearing within
the meaning of the regulations. Because Petitioner did not file a timely
hearing request, dismissal is authorized under 42 C.F.R. � 498.70(c).
Birchwood at 9 - 10, Alden-Princeton at 13 - 14, Fairview
at 4. Although conceding the deficiencies of its initial filing, Petitioner characterized as a "strained and contrived finding. . . outside the plain meaning of the code provisions" ALJ Leahy's decision that no valid hearing request had been timely filed. Petitioner's Request for Review filed on appeal at 3. But this is the Secretary's position, as definitively articulated by the appellate panel in Birchwood. That ruling has not been disturbed in any subsequent appellate decisions. Indeed, in Alden-Princeton, the appellate panel reaffirmed its reasoning in Birchwood, and rejected an argument identical to the one Petitioner raises here:
Alden-Princeton at 14. Petitioner did not timely file a valid hearing request.
I next consider whether I should nevertheless decline to dismiss.
Alden-Princeton stands for the proposition that
the ALJ has some discretion not to dismiss a case, even where Petitioner
did not file a valid hearing request within 60 days. Noting the "serious
consequences of a dismissal," the appellate panel inferred in the "may"
language of 42 C.F.R. � 498.70 ("the ALJ may dismiss a hearing request.
. .") that this regulation confers on ALJs:
Alden-Princeton at 15. I emphasize what the Alden-Princeton decision does
not say. First, Alden-Princeton does not say that
I am authorized to hear an appeal in the absence of a valid hearing request.
The statute is clear that, without a valid hearing request, I am simply
not authorized to hold a hearing. I am aware of no circumstance in which
an ALJ or an appellate panel has held that a petitioner is entitled to
hearing in the absence of a valid hearing request. Act, sections 1866(h)
and 205(b). If, having filed a document that does not meet the criteria
of 42 C.F.R. � 498.40(b), Petitioner nevertheless wants to pursue its
appeal, it must still file a valid hearing request. If the 60-day filing
deadline has elapsed, Petitioner must ask to extend the time for filing. Second, Alden-Princeton does not invalidate
42 C.F.R. � 498.40(c), which requires good cause for extending the time
to file. Petitioner may correct a facially defective request by filing
an amended hearing request, and, if the time for filing has elapsed, ask
(by written request) that the ALJ extend the time for filing. The regulations
dictate the standard the ALJ must apply in determining whether to extend:
the time for filing may only be extended upon a showing of good cause.
42 C.F.R. � 498.40(c). In Alden-Princeton, the appellate panel
articulated some of the factors that I may look to in making my good cause
determination, but I do not read Alden-Princeton as inferring into
498.70(c) a more lenient standard than the "good cause" standard specifically
articulated in 498.40(c). To do so would have the practical effect of
negating the explicit provisions of 42 C.F.R. � 498.40(c). After all,
if a more lenient standard allows Petitioner to maintain its appeal in
the absence of a valid, timely filed hearing request, no good cause showing
would ever be required. In Alden-Princeton, the appellate panel remanded the case, even though it agreed that the initial hearing request was invalid, because the ALJ there failed to consider the appropriateness of dismissal within the broader context of the case, which is where the good cause finding lies, if it is to be found. Looking at the broader context of this case, I next consider whether good cause exists to extend the time for filing.
Alden-Princeton and the remand order in this case
point to rulings in Four States and Rehab of Tampa as presenting
situations where the ALJ declined to exercise his authority to dismiss.
I note first that the scope of the Four States and Rehab of
Tampa rulings is quite narrow, deciding only whether an appellate
panel should take an interlocutory appeal. In both cases the appellate
panels issued orders declining to remove the case from the ALJ, so neither
was decided on the merits. In Rehab of Tampa, HCFA sought removal of the case
based only on the ALJ's remarks as to actions he might take in future
cases. The appellate panel found this insufficient grounds for removal,
and, citing its ruling in Four States, suggested that the ALJs
have wide latitude in making the good cause determination. The ALJ ruling in Four States, which motivated
HCFA's request for an interlocutory appeal, provides some guidance as
to the type of circumstances in which an ALJ might appropriately decline
to exercise the authority to dismiss a particular request for hearing.
Four States Care Center, Docket No. C-98-344 (May 4, 1999). Those
circumstances are light years from the circumstances presented here. In
Four States, the petitioner filed its deficient hearing request
pro se. The petitioner subsequently obtained counsel, who, obviously recognizing
the deficiencies, filed a detailed "supplement" to the hearing request.
The supplement was late, but it satisfied the requirements of 498.40(b).
HCFA did not move to dismiss until long after the adequate request had
been filed. Based on those circumstances, the ALJ could reasonably find
good cause to extend the time for filing. Certainly, in determining good
cause, it is not uncommon to give special consideration to the circumstance
of an unrepresented party. The Four States ALJ essentially thought
that HCFA had behaved in an unreasonable manner that unfairly disadvantaged
the petitioner. Such findings could constitute good cause, but I make
no such findings here. Here, in contrast, Petitioner has been represented by
experienced counsel throughout these proceedings, and had no legitimate
reason to believe that its request satisfied the regulations. First, Petitioner
is charged with knowledge of the regulations, including 498.40(b), which,
on its face requires that a request for hearing contain certain information.
Second, the appellate panel issued its decision in Birchwood while
this matter was stayed. Even if, pre-Birchwood, Petitioner might
legitimately have thought that its request was adequate, the appellate
panel's decision in that case - which explicitly held that hearing requests
must meet the requirements of 498.40(b) - should have disabused it of
that notion. Yet, even after Birchwood, Petitioner waited almost
a full 6 months before it arguably attempted to correct the defects in
its hearing request. Petitioner filed its initial, defective hearing request
on October 14, 1996, and, thereafter, initiated a series of stays, for
purposes of entering into settlement negotiations. Only after HCFA
filed its motion to dismiss did Petitioner attempt to amend and, as discussed
below, its amendment efforts fall short of an adequate hearing request.
Moreover, in contrast to the situation in Four States, Petitioner's
effort to amend came years, not months, after the initial request
was due. Petitioner argues that HCFA's failure to object earlier
should be considered good cause. I reject this particularly in the context
of this case. I see no evidence that HCFA ever waived its right to object
to the adequacy of the hearing request. Nor am I persuaded that HCFA was
required to file its Motion to Dismiss while the matter was stayed. ALJ
Leahy rightfully pointed out that HCFA has no duty to alert an adverse
party to a problem that is patently clear from a plain reading of the
relevant regulation. Alden Nursing Center - Morrow, DAB CR622 at
11. On the contrary, it was proper for HCFA's counsel to advance her client's
interests by attempting to negotiate a settlement when she considered
it beneficial to her client, and by filing a motion to dismiss when she
determined that no settlement could be reached. When it appeared that
the case would not resolve, HCFA moved with reasonable expedience to dismiss.
See Alden Nursing Center - Morrow, DAB CR622 at 10 - 12. I note also that in Birchwood, HCFA did not even
file a motion to dismiss. The ALJ, on her own, found that the documents
purporting to be a hearing request did not appear to satisfy the requirements
of 498.40(c), and ordered the petitioner to show cause why the actions
should not be dismissed. Petitioner argues that during settlement negotiations
it supplied HCFA with detailed documentation in refutation of HCFA's determination.
First, I reject Petitioner's suggestion that HCFA's willingness to engage
in settlement negotiations constituted waiver of its right to seek dismissal.
Second, I find deeply troublesome Petitioner's reliance on the content
of settlement negotiations to further its case. If the contents of settlement
negotiations were to be the dispositive factor, then rightfully I should
examine what went on in those negotiations. But I cannot do that. Settlement
negotiations are confidential, and the parties expect that their positions
will not be compromised by their entering into those negotiations. I do
not have the authority and am not willing to look at what happened in
those proceedings. In its Motion for Leave to Amend, Petitioner also appears
to argue that the dismissal of a related case created confusion and contributed
to its failure to submit a valid hearing request. Petitioner may have
abandoned this argument on remand. In any event, I find this line of argument
unpersuasive, and I agree with ALJ Leahy's conclusion that there is no
merit in Petitioner's arguments that the dismissal of another case on
December 3, 1996 somehow affected the content of Petitioner's October
14, 1996 request letter and caused Petitioner's subsequent failure to
move to amend its hearing request until February 26, 1999. Alden Nursing
Center - Morrow, DAB CR622 at 7. Finally, no ALJ can afford a hearing to a party who has not filed a valid hearing request. I consider next the adequacy of the supplementary documents now contained in the record. These consist of the two distinct February 26, 1999 cover letters, the set of marked attachments, and the set of unmarked attachments.
In the February 26, 1999 cover letter, received on March 3, 1999 and filed in the administrative record before ALJ Leahy, Petitioner states:
Attached to this letter were a series of documents marked
Attachments 1 through 11. Each document is multiple pages. Attachments
1 through 8 and Attachment 11 are each titled Request for Informal
Dispute Resolution (IDR). But attached to many of the Request for
IDR documents are additional documents, including plans of correction,
that do not necessarily relate to the deficiency tag number referred to
on the cover sheet. Attachments 9 and 10 are not labeled "Request for
IDR," and appear to be pages taken from a plan of correction. In the other February 26, 1999 cover letter - which Petitioner served on HCFA and which was received by the Civil Remedies Division on March 1, 1999, but subsequently rescinded - Petitioner states:
In each of these responses the bases for my client's
contentions are specified, and state the facts and their conclusions.
My clients contest the civil money penalties imposed as a result of the
surveys. HCFA Ex. 2, Attachment 1. Attached to this letter are documents similar to those
attached to the letter received on March 3, 1999, but they are not marked
and are in a different order, with the documents that appear to be part
of a plan of correction coming first. HCFA Ex. 2, Attachment 1. Again,
the documents titled Request for IDR often have multiple pages
attached which include plans of correction that may not necessarily relate
to the tag number listed on the cover sheet. And the basis for challenge
on the first page of the document is not necessarily consistent with the
contents of the attached plan of correction. For example, for Tag # 318
on the June survey, the IDR sheet seems to suggest a factual dispute ("deficiency
did not exist at the time of the survey since the residents identified
had either not required ROM services and treatment or had been appropriately
assessed.") But the attached plan of correction indicates that required
assessments had not been done at the time of the survey, but were to be
completed shortly thereafter, or could not be completed because the resident
subsequently had been discharged. This suggests agreement with the factual
findings of the Form 2567, but a challenge to the significance of those
findings. I am still not altogether clear which of these two sets
of attachments Petitioner meant to submit as its amended hearing request.
In either case, some of the documents appear to be documents it submitted
to the Illinois Department of Public Health when it requested IDR. Petitioner
suggests that I take them "and other documents [apparently plans of correction
or parts thereof] as contested issues which we ask for hearing on by this
document, which incorporates the IDR's." HCFA Ex. 2, Attachment 1. Neither
set of attachments, when read together with both February 26, 1999 cover
letters, satisfies the regulatory requirements. In Fairview, the appellate panel approved a hearing
request that challenged "the findings of fact for each example cited,"
"the conclusions reached that those findings were a violation of each
tag number" cited, and "the scope and severity of the alleged violation,"
and based its challenge on disputes of fact. Fairview at 11 - 12.
The appellate panel agreed that the hearing request was very broad, but
found that it was also specific, and provided HCFA and the ALJ "meaningful
information about the subject of Fairview's appeal." Fairview at
13. Here, I simply cannot tell which of the many statements
in the numerous attached documents constitute the findings and conclusions
with which Petitioner disagrees and which of the conflicting statements
constitute the bases for its disagreements. Nor am I willing to parse
through these submissions and attempt to cobble together what might be
considered a valid hearing request. In its most recent brief, Petitioner, attempting to fall
within the ambit of Fairview, claims that the February 26, 1999
cover letter contained in the rescinded submission which was served on
HCFA "specifies that the Petitioner was 'contesting each of the specific
tags found in the surveys.'" Petitioner's reply brief at 4. But that is
not what the letter says. Petitioner has omitted half of a sentence.
The letter says, "In our request for hearing we did not specify
that we were contesting each of the specific tags found in these surveys."
HCFA Ex. 2, Attachment 1 (emphasis added). It does not follow that Petitioner
is now contesting "each of the specific tags." Moreover, even had
Petitioner specifically said that it was "contesting each of the specific
tags," that is not the same as saying it is "challenging the findings
of fact for each [tag] cited." Fairview at 11. I am still at a
loss to figure out the bases for challenging "each of the specific tags." I recognize that the regulation leaves to Petitioner the
"choice of the format and language it may use to satisfy the requirement."
Fairview at 13. But, suggesting that I (and HCFA) must sort through
the IDRs and partial plans of correction to pick out where the facility
has articulated a challenge and to ascertain which among conflicting statements
contained in the documents Petitioner intends to rely on does not provide
me the "meaningful information" required to satisfy the regulations. Id. I do not hold here that the IDR format could never adequately comprise a hearing request, but the contents should be consistent and Petitioner's intent should be clear. Here, Petitioner seems to have thrown together its IDR submissions and it plans of correction and suggests that I sort them out. Such a submission does not satisfy the requirements of 498.40(b). Thus, to this date, Petitioner has not filed a valid hearing request. Even if Petitioner had shown good cause for the late filing, it has yet to file a valid hearing request, and I am not authorized to hear an appeal in the absence of a valid hearing request.
I do not lightly conclude that Petitioner has, contrary
to clear requirements, failed to take advantage of its opportunity for
hearing. See Fairview at 5. On the other hand, the appellate
decision in Birchwood mandates "adherence to the clear requirements
of the regulations." Birchwood at 10. Here, we are already five years removed from the surveys
in question, much of the delay occurring at Petitioner's request. Yet,
we are no closer to resolution of this matter. Petitioner has had many
opportunities and much time to file properly a valid hearing request.
Back in 1996, Petitioner should have known what the regulations required.
The appellate panel's 1998 decision in Birchwood should have prompted
a speedy and carefully drafted amended request. HCFA's motion to dismiss
should have prompted an adequate request. Yet, knowing full well its precarious
position, Petitioner simply threw together documents generated through
the pendency of the matter and characterized them as a hearing request.
After five years, the confusing language of its alleged amended appeal,
the inconsistencies within the multi-page attachments, and the implication
that someone else should figure out from this what might be in the Petitioner's
mind are hardly circumstances designed to persuade me that I should exercise
my discretion not to dismiss. For all of these reasons, I exercise my authority under
42 C.F.R. � 498.70(c) and dismiss this case. III. CONCLUSION I issue these formal findings of fact and conclusions of law as summaries of my analysis:
Accordingly, this action is dismissed. ADDENDUM PROCEDURAL HISTORY On October 8, 1996, HCFA sent Petitioner a written notice
of its determination to impose a CMP against Petitioner in the amount
of $24,200. HCFA's notice stated that it imposed the CMP because Petitioner
was not in substantial compliance with applicable federal requirements
for nursing homes participating in the Medicare and Medicaid programs.
The notice informed Petitioner of its right to request a hearing no later
than 60 days after the date it received HCFA's notice, and cited 42 C.F.R.
� 498.40, which governs the time for filing hearing requests, requests
for extensions of time to file, and specifies what constitutes a valid
hearing request. In a letter dated October 14, 1996, Petitioner requested
a hearing. The case was assigned to ALJ Leahy for hearing and decision. The ALJ convened a prehearing conference by telephone
on November 26, 1996. During the conference, counsel for Petitioner stated
that he believed the case could be resolved without a hearing. Counsel
for HCFA did not object to staying the proceedings in order to allow the
parties the opportunity to explore settlement options. In view of this,
the ALJ stayed the proceedings until further notice. December 2, 1996
letter to the parties. The ALJ convened a telephone status call on March 19,
1997. At the parties' request, the case was stayed for an indefinite period
so that they could continue to pursue settlement negotiations. The parties
were informed that either could file a motion to reactivate the case at
any time. March 25, 1997 letter to the parties. The case remained inactive until February 10, 1999 when
HCFA, citing the DAB decisions in Birchwood and Regency Manor,
filed a motion asking the ALJ to issue an order requiring Petitioner to
show cause why its hearing request should not be dismissed as untimely
for its failure to comply with the content requirements of 42 C.F.R. �
498.40(b). I consider this the substantive equivalent of a motion to dismiss
the case. In response, Petitioner sent a set of documents, received
and filed in the administrative record on March 3, 1999, that consisted
of: (1) a cover letter dated February 26, 1999 addressed to ALJ Leahy,
(2) a Motion for Leave to Amend, and (3) a stack of documents marked as
Attachments 1 through 11. The body of the February 26, 1999 cover letter
addressed to ALJ Leahy consisted of one sentence. A notation on the cover
letter indicated that these materials had been copied
to HCFA counsel. On March 18, 1999, HCFA filed a response opposing Petitioner's
motion. Petitioner filed a reply on May 25, 1999. On October 18, 1999, the ALJ issued a decision denying Petitioner's motion to amend its October 14, 1996 letter requesting a hearing, and granting HCFA's motion to dismiss. Alden Nursing Center - Morrow, DAB CR622 (1999). The ALJ found that Petitioner's October 14, 1996 letter does not constitute a request for hearing within the meaning of 42 C.F.R. � 498.40(b) because:
DAB CR622 at 2. Relying on Birchwood, the ALJ concluded
that Petitioner had not filed a valid hearing request within the 60-day
time limit allowed by 42 C.F.R. � 498.40(a). The ALJ pointed out that the regulations permit an ALJ
to extend the filing deadline if the entity seeking a hearing requests
an extension in writing and the request is supported by a showing of good
cause. 42 C.F.R. � 498.40(c). The ALJ stated that the parties' cross-motions
presented the overarching question of whether, for reasons asserted by
Petitioner, Petitioner's time for filing a valid hearing request has been
equitably tolled until at least February 26, 1999, when Petitioner sought
leave to file an amended request for hearing. The ALJ considered the totality
of the particular circumstances of this case, and concluded that "good
cause has not been shown by Petitioner for tolling the filing period until
at least February 26, 1999." DAB CR622 at 2. The ALJ additionally found
that the documents received on March 3, 1999 did not constitute an amended
hearing request. Based on this, the ALJ dismissed the case. Petitioner filed an appeal before an appellate panel of
the DAB. On July 5, 2000, the appellate panel remanded the case for further
proceedings. Alden Nursing Center - Morrow, DAB No. 1734 (2000).
In reviewing the parties' submissions, the appellate panel noted that
both parties quoted from a letter, dated February 26, 1999, that was not
in the administrative record, and suggested that this particular letter
was relevant to the ALJ's determination that Petitioner had not filed
an amended hearing request. In view of this, the appellate panel remanded the case,
and instructed the ALJ to provide to the parties an item-by-item inventory
of the administrative record, so that they could identify and provide
to the ALJ any documents, including the February 26, 1999 letter, missing
from the record. The appellate panel instructed the ALJ to admit such
documents and gave the ALJ discretion to consider as part of the record
the documents filed by the parties in conjunction with Petitioner's appeal,
including an affidavit submitted by Petitioner on appeal. The appellate
panel directed the ALJ to reconsider HCFA's request for dismissal in light
of this new material and the decisions in Alden-Princeton, Fairview,
and the rulings in Four States and Rehab of Tampa, and issue
a new ruling. On remand, the parties were provided an item-by-item inventory
of the administrative record and were invited to inspect the full administrative
record. July 17, 2000 letter to the parties. The staff attorney assigned to this case subsequently
sent a letter dated November 14, 2000 to the parties addressing the confusion
about the existence of more than one February 26, 1999 letter authored
by Petitioner. As the staff attorney explained, Petitioner's counsel mailed
a packet containing three sets of documents,(5)
which were date-stamped received on March 1, 1999. Each set of documents
consisted of: (1) a cover letter dated February 26, 1999 to ALJ Leahy,
(2) a second and distinct cover letter to Civil Remedies Division Chief
Jacqueline T. Williams, (3) a Motion for Leave to Amend, and (4) a stack
of unmarked documents. Before these documents were filed in the administrative
record or distributed to appropriate staff, Petitioner's counsel's office
called to say that the submission was in error, asked that it be rescinded,
and, promised to submit shortly a corrected packet of documents. Two days later, on March 3, 1999, this office received
the second packet of materials, and, as Petitioner had requested, the
documents contained in the packet received on March 3, 1999 were filed
in the administrative record instead of the documents contained in the
packet received on March 1, 1999. The staff attorney marked the rescinded
packet "wrong submission" and set it aside. November 14, 2000 letter to
the parties. With the November 14, 2000 letter to the parties, the staff
attorney enclosed copies of the two cover letters, each dated February
26, 1999, received in the first rescinded submission on March 1, 1999. Neither party has objected to or otherwise questioned
any of the particulars of the staff attorney letter. At the parties' request, the briefing schedule was extended
twice. Thereafter, in a letter dated January 29, 2001, HCFA explained
that, until receiving the staff attorney's explanation, it had not been
informed that Petitioner had rescinded its March 1, 1999 submission. Nor
had Petitioner sent HCFA a copy of its second submission, notwithstanding
that the second submission indicates that Petitioner had copied it to
HCFA counsel. As a result, HCFA thought that two February 26, 1999 cover
letters, 11 unmarked exhibits, and the Motion for Leave to Amend
had been filed in the administrative record. See HCFA Ex. 2, Attachment
1. In fact, the administrative record contained only one February 26,
1999 cover letter, 11 marked exhibits, and the Motion for Leave
to Amend. For the first time, following receipt of the staff attorney's
letter, HCFA counsel realized that it had never seen copies of the 11
marked exhibits actually filed in the administrative record.(6)
HCFA therefore asked that copies of these documents be sent to it, and
for additional time to review those documents. The requests were granted. The parties subsequently filed simultaneous initial briefs and response briefs. Prior to the filing of the response briefs, this case was reassigned to me due to ALJ Leahy's resignation. |
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JUDGE | |
Carolyn Cozad Hughes Administrative Law Judge
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FOOTNOTES | |
1. In fact, the absent document was missing from the record because Petitioner had not filed it. See Background. 2. This case has a complicated procedural history which has generated considerable confusion. To ensure accuracy and to prevent any further confusion as to the events leading us to this point, I detail that history in the Addendum, infra. Although this section appears after my signature, I incorporate it into my decision. 3. See Addendum, infra, for discussion of the rescinded submission, received on March 1, 1999, which has generated so much confusion. 4. HCFA has the delegated authority to make these initial and reconsidered decisions on the Secretary's behalf. 42 C.F.R. Part 498, Subpart B. 5. In accordance with Civil Remedies Procedures, parties are required to file three sets of all documents with this office. One set is filed in the administrative record, one set is given to the ALJ, and one set is given to the staff attorney. 6. I note that Petitioner also appears confused as to what documents it generated and filed. In its brief on the issue of reassignment to a different ALJ, Petitioner accuses HCFA of fabricating the second February 26, 1999 cover letter, obviously an unjustified accusation. Petitioner's Response to HCFA's Opposition to Reassignment at 2. Petitioner later seems to suggest that, in addition to the rescinded packet of materials received on March 1, 1999 and the packet of materials received and filed on March 3, 1999, there might exist another unrescinded packet of materials sent under separate cover to Civil Remedies Division Chief Jacqueline T. Williams. Footnote 1 of Petitioner's initial brief filed on remand. No evidence supports such a suggestion, and I am confident that I have before me a complete record. | |