Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Parkview Care Center, |
DATE: June 25, 2001 |
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Health Care Financing Administration
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Docket No.C-01-097 Decision No. CR785 |
DECISION | |
DECISION I dismiss the hearing request filed by Petitioner, Parkview
Care Center. I do so because Petitioner did not file a timely hearing
request and has not shown good cause for its failure to file a timely
hearing request. I. Undisputed material facts and procedural history of this case
On March 13, 2000, Petitioner was surveyed by the Texas Department of Human Services (TDHS), a State survey agency. The purpose of this survey was to determine whether Petitioner was complying with federal requirements governing participation of nursing homes in Medicare and Medicaid. In a letter to Petitioner dated August 17, 2000, the Health Care Financing Administration (HCFA) found Petitioner was not complying substantially with several participation requirements as a result of the March 13, 2000 survey. HCFA Ex. 1. HCFA's August 17, 2000 letter stated that HCFA was imposing a per-day civil money penalty. By letter dated October 31, 2000, Petitioner filed a request for hearing in response to HCFA's August 17, 2000 notification. HCFA Ex. 2. The hearing request challenged HCFA's determination to impose civil money penalties and all other remedies. Id. at 3. Petitioner filed its hearing request 75 days after HCFA's August 17, 2000 notice to Petitioner.
HCFA filed a motion to dismiss Petitioner's hearing request
on the ground that Petitioner had not filed its hearing request timely.
HCFA attached two exhibits to its motion (HCFA Exs. 1 - 2). Petitioner
did not object to HCFA's exhibits and I admit HCFA Exs. 1 - 2 into evidence.
Petitioner was scheduled to respond to HCFA's motion on June 5, 2001.
Petitioner did not submit a response. Instead, Petitioner's counsel submitted
a motion to remand this case to HCFA, or, alternatively, to withdraw as
counsel. Petitioner's motion was based on a recent change of condition
involving the ownership and operation of Parkview Care Center. I decline
to grant the request to remand this case to HCFA because the hearing request
in this case is on its face untimely filed. This dismissal will be sent
to both Petitioner's counsel and the facility itself. II. Issues, findings of fact and conclusions of law
The issues in this case are:
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 separately numbered heading. I discuss each Finding in detail.
In cases involving HCFA, a party is entitled to a hearing
only if that party files its request within the time limits established
by 42 C.F.R. � 498.40(a)(2). In order to be entitled to a hearing, a party
must file its request within 60 days from receipt of a notice of a determination
by HCFA to impose a remedy. Id. HCFA's August 17, 2000 letter included a section on "Appeal Rights" which stated in part:
HCFA Ex. 1. HCFA's letter states that the hearing request must be filed no later than October 16, 2000, 60 days from receipt of HCFA's letter by fax. However, Petitioner did not request a hearing until October 31, 2000. That is 75 days from HCFA's August 17, 2001 letter. This is more than the 60 days allowed within which to file a hearing request.
Governing regulations provide at 42 C.F.R. � 498.40(a)(2),
that a party requesting a hearing must file its request timely unless
the period for filing the request is extended. The affected party or its
legal representative must file with the administrative law judge (ALJ)
a written request for an extension of time stating the reasons why the
request was not filed timely. 42 C.F.R. � 498.40(c)(1). An ALJ may extend
the time within which a hearing request may be filed based on a showing
of good cause to justify an extension of time. 42 C.F.R. � 498.40(c)(2). The term "good cause" is not defined in the regulations.
However, that term has been applied in other cases. Generally, good cause
is defined to mean a circumstance beyond a party's ability to control
but for which that party would have been able to file its hearing request
timely. Hospicio San Martin, DAB CR387 at 2 (1995). Petitioner did not request an extension of time to file
its hearing request. Petitioner did not file a written request stating
why its hearing request was untimely. Petitioner made no showing, let
alone a showing of good cause, to justify an extension of time. Petitioner
was on notice that timeliness would be at issue because HCFA submitted
a Notice of Issues for which Dismissal Will be Requested on January 16,
2001. A schedule to brief this issue was established
by letter dated March 28, 2001 from my office. HCFA submitted its brief
on time. Petitioner failed to respond on the issue of timeliness. Petitioner
does not offer any explanation why Petitioner did not request a hearing
within 60 days from HCFA's August 17, 2000 notice.
I conclude that Petitioner neither has a right to a hearing nor has shown good cause to be given an extension of time for filing its hearing request. An ALJ may dismiss a hearing request where the request is not filed timely and the time for filing the request has not been extended. 42 C.F.R. � 498.70(c). Therefore, I dismiss Petitioner's hearing request. |
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JUDGE | |
Carolyn Cozad Hughes Administrative Law Judge |
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