Kim Lehnert, Psychology, PhD, PLLC, DAB CR5186 (2018)

DECISION

The request for hearing of Petitioner, Kim Lehnert, Psychology, PhD, PLLC, is dismissed pursuant to 42 C.F.R. § 498.70(c).1  Petitioner’s request for hearing was not timely filed and Petitioner has not shown good cause to extend the time for filing the request for hearing.

I.  Background and Facts

The Centers for Medicare & Medicaid Services (CMS) notified Petitioner by letter dated February 28, 2018, that CMS determined on reconsideration not to change the effective date of her opt-out period.  CMS advised Petitioner that if she was unsatisfied with the reconsidered determination she could request a hearing before an administrative law judge (ALJ).  CMS advised Petitioner that she must file a request for hearing within 60 days of receipt of the CMS notice of the reconsidered determination.  CMS Exhibit (Ex.) 1 at 1-4.

Petitioner requested a hearing before an ALJ by letter dated June 26, 2018, postmarked July 2, 2018, which is the date of filing.

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Petitioner’s request for hearing was docketed and assigned to me on July 18, 2018.  I issued an Acknowledgement and Prehearing Order on July 18, 2018 (Prehearing Order).  On August 7, 2018, CMS filed a motion to dismiss (CMS Motion) Petitioner’s request for hearing on grounds that it was not timely filed.  Pursuant to 42 C.F.R. § 498.17(b), Petitioner had 20 days or until August 27, 2018, to respond to the CMS motion to dismiss.  Petitioner filed no response and, thereby, waived the right to do so.

II.  Issues, Conclusions

A.  Issues

Whether good cause exists to extend the time for filing the request for hearing in this case; and

Whether the request for hearing should be dismissed because it was untimely filed.

B.  Applicable Law

If CMS notifies a physician or practitioner of a determination that the physician or practitioner has failed to timely renew his or her opt‑out, the physician or practitioner has a right to request a reconsidered determination and review by an ALJ in accordance with 42 C.F.R. pt. 498.  42 C.F.R. §§ 405.450(a), 498.3(b)(19), 498.5.  The regulations are clear regarding the requirements for timely filing a request for hearing:

The affected party or its legal representative or other authorized official must file the request in writing within 60 days from receipt of the notice of initial, reconsidered, or revised determination unless that period is extended . . . .

42 C.F.R. § 498.40(a)(2).  The 60-day period runs from the date of receipt by the affected party, which is presumed to be five days after the date of the notice, unless it is shown that the notice was received earlier or later.  42 C.F.R. §§ 498.40(a)(2), 498.22(b)(3).

I have the discretion to extend the period for filing a request for hearing if the petitioner files a “written request for extension of time stating the reasons why the request was not filed timely,” and I find good cause for the late filing is shown.  42 C.F.R. § 498.40(c).  Although the legislative history for 42 C.F.R. § 498.40 is not helpful in understanding the application of these regulatory provisions in this case, the requirement for timely filing a written request for hearing is commonly viewed as the means by which administrative finality can be achieved, i.e., if there is no deadline for filing and an affected party may file at any time, the record on an action may never be closed.

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I may dismiss an untimely request for hearing, if I do not grant an extension of the time to file.  42 C.F.R. § 498.70(c).

C.  Conclusions of Law and Analysis

My conclusions of law are set forth in bold followed by my findings of fact and discussion.

1.  Petitioner failed to file her request for hearing within the 60-day period provided by the regulation.  42 C.F.R. § 498.40(a)(2).

2.  Petitioner has not shown good cause to extend the period for filing her request for hearing by 54 days.  42 C.F.R. § 498.40(c).

3.  Dismissal of Petitioner’s request for hearing pursuant to 42 C.F.R. § 498.70(c) is appropriate.

The CMS notice of the reconsidered determination in this case is dated February 28, 2018.  CMS Ex. 1 at 1.  CMS concedes that the notice was not mailed until March 5, 2018.  CMS Motion at 1, 4; CMS Ex. 2.  Pursuant to 42 C.F.R. §§ 498.40(a)(2) and 498.22(b)(3), it is presumed that Petitioner received the CMS notice on March 10, 2018, five days after it was actually mailed.  The evidence does not show that Petitioner received the notice either earlier or later than March 10, 2018.

Petitioner had 60 days from receipt of the CMS notice to file her request for hearing.  Therefore, Petitioner had until Wednesday, May 9, 2018, to file her request for hearing.  Petitioner did not file her request for hearing until it was postmarked by the United States Postal Service on July 2, 2018.  Petitioner missed the deadline for filing her request for hearing by 54 days.  Therefore, Petitioner’s request for hearing was filed late.

I am granted discretion by 42 C.F.R. § 498.70(c) to dismiss a request for hearing that is not timely filed and for which the time for filing has not been extended.  Therefore, dismissal is permitted in this case if I determine not to extend the period for filing the request for hearing by 54 days.

Pursuant to 42 C.F.R. § 498.40(c)(2), I may only extend the period for filing a request for hearing for good cause.  Petitioner has not responded to the CMS motion to dismiss and does not assert good cause exists.  Petitioner did not acknowledge in her request for hearing that it was untimely or request an extension of time to file.  Nevertheless, I have examined the record to determine whether there is good cause to extend the time for filing the request for hearing.  I conclude good cause for an extension has not been shown under any reasonable definition of the term.

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The regulations do not define the term “good cause.”  Furthermore, the Departmental Appeals Board (Board) has never provided a precise or complete definition of “good cause.”  West Side House LTC Facility, DAB No. 2791 at 5‑6 (2017) (citing Rutland Nursing Home, DAB No. 2582 at 5 (2014)).  Relevant Board decisions turn on evaluation of the facts and determination on a case-by-case basis whether the facts fit within any reasonable definition of good cause.  See e.g., West Side, DAB No. 2791; Rutland, DAB No. 2582; Nursing Inn of Menlo Park, DAB No. 1812 (2002); Cary Health & Rehab. Ctr., DAB No. 1771 at 27 (2001).

I have examined Petitioner’s request for hearing and the various supporting documents she submitted as well as the exhibits offered by CMS.  Petitioner explained the unfortunate family circumstances that contributed to her failure to timely attend to her opt‑out status.  But, the circumstances that she presented do not address why she failed to timely file her request for hearing.  I conclude that good cause does not exist to extend the period for filing the request for hearing by 54 days.  Accordingly, the request for hearing is dismissed.

III.  Conclusion

For the foregoing reasons, Petitioner’s request for hearing is dismissed.

• 1. References are to the 2017 revision of the Code of Federal Regulations (C.F.R.), unless otherwise indicated.