Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Prospect Heights Care Center, |
DATE: July 26, 2001 |
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Centers for Mediare & Medicaid
Services
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Docket No.C-01-420 Decision No. CR802 |
DECISION | |
I dismiss the request for hearing filed by Petitioner,
Prospect Heights Care Center. I do so pursuant to 42 C.F.R. � 498.70(c)
because Petitioner did not file its hearing request timely and because
Petitioner did not establish good cause for its failure to file its hearing
request timely. I. Background Petitioner is a long-term care facility that is located
in Hackensack, New Jersey. It participates in the Medicare program and
is subject to the laws and regulations that govern participation in the
program. On February 8, 2001, Petitioner filed a request for a hearing
to contest a determination by the Centers for Medicare & Medicaid
Services (CMS, formerly known as the Health Care Financing Administration,
or HCFA) to impose remedies against it. That determination was based on
findings made by the New Jersey Department of Health and Senior Services
(NJDHSS) at a compliance survey of Petitioner which it conducted on behalf
of CMS. CMS moved to dismiss Petitioner's hearing request on the ground
that it was not filed timely. Petitioner opposed the motion.
CMS filed two exhibits in support of its motion to dismiss
which it designated as CMS Ex. A and CMS Ex. B. Petitioner filed 14 exhibits
in its opposition to the motion. P. Ex. 1 - P. Ex. 14. I am receiving
into evidence CMS Ex. A - CMS Ex. B, and P. Ex. 1 - P. Ex. 14. II. Issues, findings of fact and conclusions of
law
The issues in this case are whether Petitioner:
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 separate heading, and discuss it in detail.
Petitioner did not request a hearing within 60 days from the date that it received notice from CMS of its remedy determination and Petitioner is not entitled to a hearing. Regulations which govern hearings in cases involving CMS provide that, in order to be entitled to a hearing, a party must file its request within 60 days from its receipt of a remedy determination by CMS. 42 C.F.R. � 498.40(a). Petitioner received more than one notice from CMS of its determination to impose remedies. Notices were sent from CMS to Petitioner on October 6, 2000, October 17, 2000, and October 18, 2000. P. Ex. 4; P. Ex. 7; P. Ex. 8. Each of these notices informed Petitioner of its right to request a hearing. Assuming that Petitioner's right to request a hearing extended through the 60th day from its receipt of the October 18, 2000 notice, that date was weeks prior to the date (February 8, 2001) when Petitioner requested a hearing.
Regulations provide that an administrative law judge may
extend the deadline for filing a hearing request where a party establishes
good cause for not having filed its request timely. 42 C.F.R. � 498.40(c).
Petitioner argues that good cause exists in this case because it was misled
by a notice that it received from NJDHSS into believing that it did not
have to file a hearing request in the case until after the completion
of an informal dispute resolution (IDR) process. I do not find this argument to be persuasive. I do not
find that Petitioner was misled by the text of any notice that it received
from NJDHSS into believing that it should defer filing its hearing request
in this case until after completion of IDR. Regulations which govern the rights of long-term care
facilities in cases involving CMS provide for IDR as an informal process
in which a facility may seek to convince a State agency (or CMS in the
case of a survey that is conducted by CMS) that adverse findings made
at a compliance survey are incorrect. 42 C.F.R. � 488.331. The regulations
make it clear, however, that IDR is not a part of the hearing process
by which a facility challenges CMS's remedy determination. Nor is exercise
of a right to a hearing affected by what happens or does not happen in
IDR. Failure by a State agency or by CMS to offer IDR to a provider cannot
delay the implementation of a remedy. 42 C.F.R. � 488.331(b)(1). A facility
may not seek delay of implementation of a remedy on the ground that IDR
has not been completed. 42 C.F.R. � 488.331(b)(2). The process by which
a facility seeks a hearing from a CMS remedy determination is separate
from, and independent of, IDR. 42 C.F.R. � 498.40. The 60-day period within
which a facility must seek a hearing from a remedy determination is not
stayed by an ongoing IDR process. See id. Petitioner asserts that the allegedly misleading advice in the October 6, 2000 notice is contained in the following statement:
P. Ex. 3 at 1. Petitioner contends that the statement
telling Petitioner that, if it wanted to dispute deficiency findings it
should do so via IDR, suggested that Petitioner should complete the IDR
process first and then request a hearing only if it was dissatisfied with
the outcome of IDR. The notice might be misleading when it is read in a vacuum
and without reference to regulations governing IDR and hearings in cases
involving HCFA. The text cited by Petitioner suggests - when read in isolation
- that IDR is the exclusive process that Petitioner could resort to as
a mechanism for disputing deficiency findings and that it was necessary
for Petitioner to request IDR if it wanted to challenge the deficiency
findings that had been made by NJDHSS. However, a reasonable person would
not read this notice in a vacuum. Petitioner received several additional
notices from NJDHSS and CMS. P. Ex. 1; P. Ex. 4; P. Ex. 6; P. Ex. 7; P.
Ex. 8; P. Ex. 9. These additional notices clearly and unequivocally inform
Petitioner of its hearing rights that existed in addition to and independent
from its right to engage in IDR. In doing so these notices refer to both
the regulations which govern IDR and those which govern hearings. They
make it evident to any reasonable person that IDR and the hearing process
are not interconnected and that these avenues must be pursued separately.
And, they make it plain that a long term care facility wanting a hearing
should not delay making its request until after completion of IDR. Most notably, CMS sent a notice to Petitioner on October 6, 2000 - the same mailing date as that of the allegedly misleading NJDHSS notice - which clearly explains IDR and the hearing process as separate and not linked avenues that Petitioner could pursue. This notice clarified any arguably misleading statement that was contained in the October 6, 2000 NJDHSS notice. Nothing in the notice suggests - or would mislead a reasonable person into believing - that it should defer requesting a hearing until completion of IDR. With respect to IDR the October 6, 2000 CMS notice states:
P. Ex. 4 at 2. On the next page of this notice is an explanation of how Petitioner should request a hearing if it desired one:
Id. at 3. The notice thus sets out IDR and the hearing process as separate and unconnected dispute resolution processes. it states clearly the separate and independent deadlines for requesting IDR and a hearing. And, it cites specifically to regulations which explain how these two separate dispute resolution processes operate. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge |
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