Health Solutions at Home, Inc., ALJ Ruling 2019-4 (HHS CRD Mar. 20, 2019)

RULING DISMISSING CASE

For the reasons set forth below, I dismiss as untimely the hearing request filed by Petitioner, Health Solutions at Home, Inc.

Background

The following facts are not in dispute:

Petitioner is a home health agency located in Frankfort, Illinois, that participated in the Medicare program. The Illinois state survey agency surveyed Petitioner on March 16, 2018. Based on findings from this survey, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner was not complying with Medicare conditions of participation. CMS Exhibit (Ex.) 1 at 1. In a notice letter dated July 5, 2018, CMS advised Petitioner that it was not complying with multiple conditions of participation and that CMS was terminating Petitioner's Medicare provider agreement effective July 25, 2018. Id.

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The notice letter advises Petitioner of its right to request a hearing before an administrative law judge (ALJ): "If you believe that this determination is not correct, you may request a final [ALJ] review." CMS Ex. 1 at 2. The letter warns that Petitioner "must file [its] appeal within 60 calendar days after the date of receipt of this decision." Id. The letter instructs Petitioner to file its hearing request electronically, explains how to do so, and states that it must, "[a]t minimum, . . . file a signed request for hearing and the underlying notice letter from CMS that sets forth the action taken and the party's appeal rights." Id.

CMS sent the notice letter by USPS, and Petitioner received it on July 9, 2018. CMS Ex. 2 at 1.

On August 19, 2018, Petitioner electronically filed two copies of the notice letter from CMS with the Departmental Appeals Board's Civil Remedies Division (CRD). CMS Exs. 3, 4; Petitioner's (P.) Ex. A at 2. On August 22, 2018, CRD returned those documents to Petitioner, noting that, in its filings, Petitioner "d[id] not request an [ALJ] hearing." CMS Ex. 3; P. Ex. A at 2. CRD instructed Petitioner that, if it had intended to request an ALJ hearing, it should "resubmit [the] request [electronically] as soon as possible . . . ." CMS Ex. 3; P. Ex. A at 2. CRD also directed Petitioner's attention to the instructions for filing a request for hearing found on page 2 of the CMS notice letter. CMS Ex. 3; P. Ex. A at 2.

On December 5, 2018, 149 days after Petitioner received CMS's notice letter and 105 days after CRD returned its initial filings, Petitioner requested a hearing. P. Ex. B. CMS now moves to dismiss the request as untimely, which Petitioner opposes. With its motion, CMS filed five exhibits (CMS Exs. 1-5), while Petitioner filed two exhibits (P. Exs. A-B) with its response (P. Br.).

Discussion

Petitioner is not entitled to a hearing because it did not file a timely hearing request, and no good cause justifies extending the time for filing.1

Section 1866(h) of the Social Security Act authorizes administrative review of determinations that a provider fails to comply substantially with Medicare program requirements "to the same extent as is provided in section 205(b) [of the Act]." 42 U.S.C. § 1395cc(h)(1). Under section 205(b), the Secretary of Health and Human Services must provide reasonable notice and opportunity for a hearing "[u]pon request by [the affected party] who makes a showing in writing that his or her rights may be prejudiced" by the Secretary's decision. 42 U.S.C. § 405(b)(1). The hearing request

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"must be filed within sixty days" after the affected party receives the notice of the Secretary's determination. Id. (emphasis added). The 60-day time limit is thus a statutory requirement. See Cary Health & Rehab. Ctr., DAB No. 1771 (2001).

Similarly, the regulations mandate that the affected party "file the request in writing within 60 days from receipt of the notice . . . unless that period is extended . . . ." 42 C.F.R. § 498.40(a)(2). The ALJ may grant such an extension for good cause shown. 42 C.F.R. § 498.40(c)(2). On motion of a party, or on his or her own motion, the ALJ may dismiss a hearing request where that request was not filed timely and the time for filing was not extended. 42 C.F.R. § 498.70(c).

Timeliness. Petitioner does not dispute that it received the notice letter from CMS on July 9, 2018. Therefore, Petitioner's deadline to file a timely request for hearing was September 7, 2018. 42 U.S.C. §§ 1395cc(h)(1), 405(b)(1); 42 C.F.R. § 498.40(a)(2).

Petitioner states as a "fact" that its initial August 19, 2018 filing with CRD was "a timely request for administrative hearing." P. Br. at 2. However, Petitioner concedes that the purported request was "deficient" because "its filing did not specifically request a hearing." Id. at 2. Petitioner labels thi\s failure to request a hearing a "technicality" and asserts that its "intent was clear" and that the "filing was sufficient to put [CMS] on notice of Petitioner's appeal . . . ." Id. at 4, 5. Thus, in Petitioner's view, CMS "suffered no prejudice" from the deficiency in its initial filing. Id. at 5.

Requesting a hearing is not a mere "technicality." Under the Act and regulations, for an affected party to request a hearing timely, it must not only file timely but must, in fact, ask for a hearing. 42 U.S.C. §§ 1395cc(h)(1), 405(b)(1); 42 C.F.R. § 498.40(a)(2). Intending to request a hearing, no matter how "clear" the supposed intent, is not enough; an actual request must be made in writing. Filing documents with CRD that do not include an actual request for hearing does not satisfy the statutory and regulatory requirements. Petitioner's August 19 submissions did not constitute a timely request for hearing.

Petitioner admits that its later December 5, 2018 request for hearing was untimely. P. Br. at 1-2, 5. Consequently, absent a showing of good cause for my extending the time in which to file, that request should be dismissed pursuant to 42 C.F.R. § 498.70(c).

Good cause. In its December 5, 2018 hearing request, Petitioner requested leave to file the request untimely. P. Ex. B at 1, 2. Petitioner argues that, by docketing Petitioner's hearing request, I granted Petitioner's request for leave. P. Br. at 4. Based on this, Petitioner reasons that CMS, in moving to dismiss this case, "essentially seeks a remedy that [I] previously determined was inappropriate." Id. From this, according to Petitioner, it follows that I should deny CMS's motion.

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This argument lacks merit for several reasons. First, that CRD dockets a case means that it has been filed. It does not confer jurisdiction. And I did not grant Petitioner's request for leave, either explicitly or implicitly, at any point. Granting such a request before CMS had an opportunity to respond would violate the regulations governing this case. See 42 C.F.R. § 498.17(b) (providing that, when a party files a brief or related document, [t]he other party will have 20 days . . . to submit any rebuttal statement or additional evidence"). Further, I explicitly left open an opportunity for the parties to file any motion to dismiss—including, by implication, a motion to dismiss an untimely hearing request pursuant to 42 C.F.R. § 498.70(c)—as part of their pre-hearing exchanges. Pre-hearing Order § 3.c.i.2

Petitioner also argues that it had good cause for filing its hearing request late because "it was not represented by counsel" when it filed its initial, deficient attempt to request a hearing. P. Br. at 4. Petitioner attributes the untimeliness of its actual hearing request to "the timing of the return of [its] initial request and the return of that request . . . ." P. Br. at 1. Petitioner asserts that "[t]he fact that [it] submitted a timely, albeit deficient, filing, [sic] cannot be ignored." Id. According to Petitioner, after it learned that its initial filing was deficient, it "engaged legal counsel and, with the assistance of counsel, filed a hearing request . . . ." Id. at 4-5.

The regulations do not define good cause, leaving that determination to the discretion of the ALJ. Many ALJs who handle appeals under 42 C.F.R. Part 498, such as this one, have used the definition of good cause found in the Social Security Administration's (SSA's) regulations: circumstances beyond a party's ability to control. Tasmina Sheikh, M.D., P.A., DAB ALJ Ruling No. 2013-17 at 2-3 (2013) (and cases cited therein); see 20 C.F.R. §§ 404.911, 404.933(c). In a related context—hearings in benefit appeals under Medicare Parts A and B—CMS has published regulations that, while not explicitly defining "good cause," apply a somewhat stricter standard "reflecting the view that providers . . . should understand program requirements." Sheikh, DAB ALJ Ruling No. 2013-17 at 3-4; see 42 C.F.R. §§ 405.1014(e)(3), 405.942(b)(2), (3). The Departmental Appeals Board "has never attempted to provide an authoritative or complete definition of the term 'good cause' in section 49[8].40(c)(2)." Day Op of North Nassau, Inc., DAB No. 2818 at 6 (2017) (quoting Hillcrest Healthcare, LLC, DAB No. 1879 at 4 (2003)) (internal quotation marks omitted). Rather, the Board typically affirms a dismissal after concluding that the party appealing the dismissal did not show good cause "under any reasonable definition of that term." Id. (and cases cited therein).

No matter which precise standard of good cause applies in this case, Petitioner has not shown any cause, much less good cause, for its failure to file its hearing request timely.

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As of July 9, 2018, Petitioner was on notice that it needed to "file a signed request for hearing" within 60 days, by September 7, 2018, to appeal CMS's termination of its provider agreement. CMS Ex. 1 at 2. As of August 22, 2018, Petitioner knew that its initial August 19, 2018 submission was not a valid hearing request. CMS Ex. 3; P. Ex. A at 2. At that point, Petitioner still had more than two weeks in which to request a hearing timely. Yet Petitioner's only explanation for waiting 105 days after that date, and 89 days after the original September 7, 2018 deadline, to file a valid hearing request is that "it was not represented by counsel." P. Br. at 4. The instructions Petitioner received from CMS and CRD, viewed together, are unambiguous about the need to file a signed hearing request and the inadequacy of filing only copies of the notice letter from CMS. CMS Ex. 1 at 2; CMS Ex. 3; P. Ex. A at 2. Given these instructions, it is not apparent why Petitioner would need to engage legal counsel before it filed a timely, valid hearing request. Even after receiving CRD's instructions, Petitioner had plenty of time to follow those instructions and timely file a valid hearing request. If Petitioner had needed more time to seek legal counsel, it could have filed its hearing request first and then sought additional time to continue its search.

In any event, a lack of legal representation does not explain why it took so long for Petitioner to engage legal counsel to help it file a valid request for hearing. By August 22, 2018, Petitioner had already had more than a month (44 days, to be precise) to seek out such assistance, and, even after that date, Petitioner did not actually obtain such assistance for an additional 105 days. Petitioner offers no explanation for this nearly five-month delay. As such, Petitioner simply has not articulated any cause, much less good cause, for failing to file a valid hearing request until 105 days after it learned that its initial submission was deficient and 89 days after the original September 7, 2018 deadline.

Petitioner makes one final argument against dismissal. Petitioner posits that dismissal is a "harsh remedy" that should be used "only in extreme circumstances" as a "remedy of last resort." Id. (quoting Osceola Nursing & Rehab. Ctr., DAB No. 1708 (1999)). From this, Petitioner argues that its "minor filing mistake," made without the benefit of legal counsel, does not justify the "drastic remedy" of dismissing this case and thereby "depriv[ing Petitioner] of a right as important as its ability to contest a termination of its provider agreement . . . ." P. Br. at 5.

This argument also lacks merit. The discussion in Osceola Nursing about dismissal being a "harsh remedy" came in the context of a case that was dismissed for abandonment, pursuant to 42 C.F.R. § 498.69(a), and as a sanction, pursuant to section 1128A(c)(4) of the Act. This case involves dismissal for failure to file a hearing request timely pursuant to an entirely separate provision, 42 C.F.R. § 498.70(c). Thus, the Board's reasoning in Osceola Nursing does not apply to this case. The question in Osceola Nursing was whether the ALJ properly exercised her discretion to dismiss; the question here is whether I have jurisdiction to hear the case.

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Moreover, even applying the logic of Osceola Nursing here would support dismissal. Petitioner's filing mistake was not "minor." It did not request a hearing until nearly three months (89 days) after its deadline to request a hearing expired and three and a half months (105 days) after it learned that its initial filing was deficient. This extreme delay is entirely unexplained and occurred even though Petitioner received clear instructions on how to file a valid, timely request for hearing. Dismissal is well justified under these circumstances.

Conclusion

Because Petitioner did not request a hearing within 60 days of receiving the July 5, 2018 notice letter, and no good cause justifies my extending the time for filing, I dismiss its request pursuant to 42 C.F.R. § 498.70(c).

• 1. I make this one finding of fact/conclusion of law.
• 2. At the parties' joint request, I permitted them to brief the motion to dismiss separately from their pre-hearing exchanges and stayed their exchange deadlines to promote administrative economy in this case.