Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
IN THE CASE OF | |
|
DATE: June 14, 2002 |
- v - |
|
Centers for Medicare & Medicaid
Services.
|
Docket No.C-01-572
Decision No. CR918 |
DECISION | |
DECISION On
October 30, 2001, the Center for Medicare and Medicaid Services (CMS)
(1) filed a motion
brief seeking partial dismissal of Petitioner's April 2001 hearing request.
CMS's brief was accompanied by six proposed exhibits. On October 26, 2001,
Petitioner filed a brief in opposition (P. Br.), accompanied by one proposed
exhibit. I am admitting CMS's exhibits into evidence without objection,
as CMS Exhibits (CMS Ex.) 1-6. I also admit Petitioner's only exhibit
as Petitioner's Exhibit (P. Ex.) 1. After consideration of the written
arguments and documentary evidence submitted by the parties, I grant CMS's
motion for partial dismissal. In doing so, I find that the hearing request
was untimely filed and that the time for filing a request for hearing
should not be extended, inasmuch as Petitioner has not shown good cause
for its failure to do so. I.
Undisputed Facts Petitioner is a skilled nursing facility located in Glen Rose, Texas, which participates in the Medicare and Medicaid programs. By notice dated January 19, 2001, CMS informed Petitioner that an inspection of its facility by the Texas Department of Human Services (TDHS) concluded on January 12, 2001, revealed that it was not in substantial compliance with federal requirements for nursing homes participating in the Medicare and Medicaid programs. CMS Ex. 1. Consistent with those findings, CMS notified Petitioner that the following remedies were being imposed:
CMS Ex. 1, at 1. Petitioner acknowledged receipt
of the January 19, 2001 notice of initial determination on that same date.
CMS Ex. 1, at 3. The notice advised Petitioner that if it disagreed with
the determination of noncompliance, a written request for hearing had
to be filed no later than March 20, 2001. On February 9, 2001, CMS informed Petitioner that a resurvey of its facility, concluded on February 1, 2001 by TDHS, found that although the conditions that represented "immediate jeopardy" had been removed, the facility continued not to be in substantial compliance. Thus, the enforcement action reported in the letter of January 19, 2001 continued as before, except for the following changes:
Based on the most recent survey of February 1, 2001, CMS established a new period of CMP in the amount of $1,500 per day commencing January 19, 2001. CMS informed Petitioner that if it disagreed with this determination of noncompliance, a written request for hearing had to be filed no later than April 10, 2001. In view of the finding by TDHS that its facility was not in substantial compliance as a result of the survey concluded on February 1, 2001, Petitioner filed a request for hearing on April 9, 2001. CMS Ex. 4. II. Issues The issues in this case are:
III.
Applicable Law and Regulations In cases involving CMS, a party
is entitled to a hearing only if that party files its request for hearing
within the time limits established by 42 C.F.R. � 498.40(a)(2), unless
the time period for filing is extended. In order to be entitled to a hearing,
a party must file its request within 60 days from its receipt of a notice
of determination by CMS imposing a remedy. 42 C.F.R. � 498.40(2). The
date of receipt of a notice is presumed to be five days after the date
on the notice unless there is a showing of actual receipt on an earlier
or later date. 42 C.F.R.
� 498.22(b)(3). (2)
An administrative law judge (ALJ) may extend the time within which a hearing
request may be filed based on a showing of good cause justifying an extension
of time. 42 C.F.R. � 498.40(c)(2). An ALJ may dismiss a request for a
hearing which is not timely filed. 42 C.F.R. � 498.70(c). IV.
Findings I make findings of fact and conclusions of law (Findings) to support my decision to partially dismiss Petitioner's hearing request. Each finding is noted below in bold face and italics, followed by a discussion of the findings.
CMS sent Petitioner the notice
of initial determination by facsimile on January 19, 2001, as well as
by mail. CMS Ex. 1. The regulatory presumption is that Petitioner received
the notice not later than January 24, 2001. 42 C.F.R. � 498.22(b)(3).
Petitioner does not dispute
receipt of CMS's notice dated January 19, 2001. In fact, Petitioner acknowledged
receipt of CMS's notice on
January 19, 2001. CMS Ex. 1, at 3. Nonetheless, it was not until April
9, 2001, approximately 80 days after receipt of CMS's notice of initial
determination, that Petitioner filed a request for hearing before an ALJ.
(3) 42 C.F.R. � 498.40(a)(2) expressly provides that:
The filing of Petitioner's request was clearly beyond the 60 days stipulated in the regulations.
Petitioner has requested an extension of time to file its request for hearing. Such request is permissible pursuant to 42 C.F.R. � 498.40(c)(1). However, I have discretion to grant Petitioner's application for leave to file untimely only upon a showing of good cause. 42 C.F.R. � 498.40(c)(2). For the reasons set forth below, I find that Petitioner has failed to establish good cause for late filing. 42 C.F.R. � 498.40(c)(2). Petitioner's Contentions Petitioner contends that the revised
notice of determination dated February 9, 2001, based on the February
2001 resurvey, gave Petitioner a revised date for the filing of an appeal
from the determination of noncompliance. Petitioner further argues that
the revised notice did not specify whether the appeal rights attached
to the determination of noncompliance that led to the DPNA, the $6,000
CMP, the $1,500 CMP, or the termination action. Consequently, Petitioner
concludes that the only fair construction of 42 C.F.R. � 498.40(a) is
that when CMS issues a revised determination and provides a new appeal
deadline but does not specify to which remedy the appeal deadline applied,
it applies to all remedies referred to in the revised notice letter. Finally,
Petitioner asserts that it is clear from its hearing request that it intended
to appeal the January 2001 survey, as well as the February 2001 survey. Petitioner prays in the alternative
that if I were to find that its hearing request was not timely filed,
an extension be granted to file such request pursuant to 42 C.F.R. �
498.40(c). Petitioner contends that any failure to file a timely request
for hearing was due to excusable neglect, and not the result of intentional
purpose, or conscious indifference. Petitioner also asserts that although
it may have received the notice of remedies on January 19, 2001, its attorney
did not get it until after April 10. In support of its argument that good
cause exists, Petitioner places reliance on Rule 60(b) of the Federal
Rules of Civil Procedure (Fed. R. Civ. P.). Rule 60(b) provides that the
Court may relieve a party or legal representative from a final judgement
upon a showing of mistake, inadvertence, surprise, or excusable neglect.
Petitioner suggests that based on federal case law, late filings can be
accepted where there is inadvertence, mistake, or carelessness, as well
as intervening causes beyond a party's control. Pioneer Investment
Serv. v. Brunswick Assocs. Ltd., 507 U.S. 380 (1993).
The standard to establish good cause proposed by CMS, argues Petitioner,
is too narrow. Additionally, Petitioner relies on Departmental Appeals Board (DAB) decisions in support of its argument regarding the narrow construction of the good cause standard it attributes to CMS. In Birchwood Manor Nursing Center, DAB No. 1669 (1998), Petitioner asserts that a motion to dismiss was sustained because the ALJ gave the party ample opportunity to file a hearing request. In West Side Care Center, Docket No. C-2000-0004, the ALJ determined that good cause was available to a party that received a total of 11 notices in a short time, resulting in confusion.
CMS's Contentions CMS contends that Petitioner did
not file a timely request for hearing and that no good cause exists for
an extension of time. CMS states that Petitioner was informed on January
19, 2001 that a CMP of $6,000 per day, beginning January 12, 2001, was
being imposed; termination would take effect February 4, 2001; and the
DPNA would be effective as of January 21, 2001. These were initial determinations,
argues CMS, which Petitioner had the opportunity to appeal by March 20,
2001. Petitioner passed up this opportunity, and did not request a hearing
until 80 days after issuance of the initial determination. CMS argues
that Petitioner erroneously contends that because CMS's February 9, 2001
notice letter did not specify that the revised determination and new appeal
deadline applied only to some of the remedies contained in the letter
but not to others, it presumes the appeal deadline was extended. This
presumption is incorrect, says CMS, because the February 9, 2001 letter
clearly distinguished which remedies were being imposed as a result of
Petitioner's removal of the "immediate jeopardy" findings and which remedies
remained unchanged because it was still not in substantial compliance
with Medicare requirements. As concerns Petitioner's request
to extend the time to file a request for hearing, CMS proposes that the
standard for good cause set forth in the regulations (42 C.F.R. �
498.40(c)) has been defined by an appellate panel of the DAB in Hospicio
San Martin, DAB CR387 (1995), aff'd, DAB No. 1554 (1996),
and related cases to mean circumstances beyond the ability of the provider
to control. Consequently, Petitioner's motion for relief from untimely
filing should be denied for failure to advance reasons that establish
the existence of circumstances beyond its ability to control. V. Discussion The threshold issue in this case is whether Petitioner filed a timely hearing request. The short answer to that is "no." The record is clear that Petitioner received an initial determination on January 19, 2001, and took no action regarding that notice within the 60 days provided. Nothing was forthcoming from Petitioner until April 9, 2001. Moreover, the request for hearing that was eventually filed was in conjunction with the February 9, 2001 notice. This is evident from Petitioner's admission that, inexplicably, it did not provide its legal representative with a copy of the initial determination dated January 19, 2001 until after April 10, 2001. P. Br. at 3, 4. Thus, when Petitioner filed its hearing request on April 9, 2001, its counsel had not seen the initial determination. It is not surprising, then, that Petitioner did not directly address the deficiencies noted in the January 2001 survey, in its hearing
request. As CMS correctly points out, there is no ambiguity in the February
9, 2001 notice that should have led Petitioner to reason that a revised
deadline, superseding the March 20, 2001 deadline for appealing the January
19, 2001 notice of remedies, was established. Petitioner had no reason
to believe that CMS's January 19, 2001 notice could be ignored, or that
the time within which to request a hearing was tolled by the February
9, 2001 notice. The remaining issue to be decided
is whether Petitioner has shown good cause to extend the time period in
which it should be allowed to file a request for hearing beyond the 60
days provided in the regulations. 42 C.F.R. �� 498.40(c)(1), (2). The
regulation does not define what constitutes good cause. This term has
been defined, however, by the DAB to mean circumstances beyond an entity's
ability to control. Hospicio San Martin, DAB No. 1554 (1996). Petitioner, on the other hand,
suggests that we should look to Fed. R. Civ. P. 60(b) for the appropriate
standard for determining whether good cause exists. The standard set forth
in that rule is one of mistake, inadvertence, surprise, or neglect. Petitioner
places reliance on federal case law in support of the standard it proposes.
It contends that in Marshall v. Monroe & Sons, 615
F.2d 1156 (6th Cir. 1980), and United States v. Clark,
51 F.3d 42 (5th Cir. 1995), the standard embodied in Fed. R.
Civ. P. 60(b) has been applied to administrative appeals. In Marshall, the Secretary
of Labor issued citations against Monroe & Sons on December 12, 1973.
Monroe responded on January 14, 1974. Monroe was also required to file
an answer within 15 days of service of the complaint, but failed to do
so. The Secretary of Labor obtained a dismissal based on that failure.
When proceedings were commenced to collect a penalty of $1,380, Monroe
retained counsel for the first time. Monroe's counsel wrote a letter to
the Occupational Safety & Health Review Commission (OSHRC) explaining
that his client had thought the letter to OSHRC continuing his notice
of contest had taken care of the complaint. OSHRC granted reinstatement
pursuant to Fed. R. Civ. P. 60(b). The court specifically stated that:
Marshall, 615 F.2d at
1158. Consequently, inasmuch as Congress
specified in the Occupational Safety and Health Act that the Federal Rules
of Civil Procedure could be applied by OSHRC, that administrative adjudicatory
body could legitimately apply those rules. The situation in Marshall
is in contrast to the case at hand where no such congressional mandate
has been enacted with respect to the DAB. On the contrary, it has been
established that the Federal Rules of Civil Procedure are inapplicable
here. These proceedings are specifically governed by the Secretary's duly
promulgated regulations at 42 C.F.R. Part 498. Birchwood Manor,
DAB No. 1669 (1998). The Clark case cited by Petitioner merits no discussion, since it is a criminal matter, totally unrelated to administrative proceedings. I note however that, in Clark, the 5th Circuit held that there was no "dramatic ambiguity" present that would mandate the extraordinary determination that a finding of excusable neglect was appropriate. Clark, 51 F.3d 42, 44
(5th Cir. 1995). The term "dramatic ambiguity" is
borrowed from the Pioneer case. There, the United States Supreme
Court reasoned that "dramatic ambiguity" in the Bankruptcy Court's Notice
made a case for a finding of "excusable neglect," pursuant to Fed. R.Civ.
P. 60(b). See 507 U.S. at 387, 398-399. Such is not the case
here, where CMS informed Petitioner unequivocally that it was bound to
perfect an appeal no later than March 20, 2001. Moreover, as stated earlier,
Fed. R. Civ. P. 60(b) is not applicable to these proceedings. In the case
before me, there is no evidence of confusion in either CMS's notice letter
of initial determination dated January 19, 2001, or the notice dated February
9, 2001. The situation here is also in stark contrast to the one in West
Side Care Center, cited by Petitioner. In that case, the ALJ found
that the multitude of notices (a total of 11) created a circumstance beyond
the party's control. In view of the foregoing, I find
that the standard for a finding of good cause for untimely filing in these
proceedings is the standard established by the DAB in Hospicio San
Martin. That standard requires that the party who files untimely
show that it was prevented from filing timely due to circumstances beyond
its ability to control. I am without authority to disregard the DAB's
holding in that regard. Petitioner contends that if it
is found to have filed an untimely request for hearing, such untimeliness
was due to mistake, inadvertence, or excusable neglect, and that it acted
in good faith. Inasmuch as I have concluded that the standard advanced
by Petitioner is inappropriate here, I must also find that it has not
established the existence of circumstances beyond its ability to control
which prevented it from making a timely request for hearing. The only
remaining issue in this case is Petitioner's challenge to the non-immediate
jeopardy finding of noncompliance which was the basis for a $1,500 a day
CMP. (4) VI. Conclusion Based on the applicable law and undisputed facts, I conclude that Petitioner's hearing request was untimely filed and that good cause does not exist to extend the time period for filing. CMS's motion for partial dismissal is therefore granted. |
|
JUDGE | |
José A. Anglada Administrative Law Judge
|
|
FOOTNOTES | |
1. When these proceedings began, CMS was previously named the Health Care Financing Administration. See 66 Fed. Reg. 35,437 (July 5, 2001). 2. In the case at hand, there is evidence of receipt of the notice on the issuance date of January 19, 2001. CMS Ex. 1, at 3. 3. Petitioner not only filed an untimely hearing request, but also failed to dispute any of the deficiency tags listed on the statement of deficiencies from the survey concluded on January 12, 2001. 4. By letter dated May 7, 2001, CMS notified Petitioner that the termination action had ceased. CMS Ex. 3. | |