Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Canton Healthcare Center,
Petitioner,
- v. -
Health Care Financing Administration.
DATE: November 13, 1996
Docket No. C-96-266
Decision No. CR443
DECISION
During the initial prehearing conference with the
parties, I raised the issue of whether Petitioner's
hearing request was untimely filed. According to the
jurisdictional documents before me at that time,
Petitioner's hearing request was dated May 6, 1996,
whereas the notice of adverse determinations from the
Health Care Finance Administration (HCFA) was dated
January 23, 1996. 1/ Petitioner represented during the
conference that it had not been aware of the timeliness
issues, and, therefore, it was unable to explain why it
had filed its hearing request outside of the 60-day
period specified by 42 C.F.R. § 498.40(a)(2).
Accordingly, I granted Petitioner the opportunity to
evaluate the matter further in order to file an
appropriate response to my concerns on the timeliness
issue.
Petitioner submitted a letter dated July 12, 1996, along
with documents marked as Petitioner's Exhibits A through
F (Ex. A - F of P.'s July 12, 1996 letter). Petitioner
argued that HCFA had failed to properly and timely notify
Petitioner of its hearing rights. Accordingly,
Petitioner asked that I find its hearing request timely
filed and that I vacate the adverse determinations made
by HCFA against Petitioner.
Thereafter, HCFA filed a motion to dismiss the hearing
request, along with HCFA's supporting memorandum and
three exhibits (HCFA Ex. 1 - 3). Petitioner responded by
sending another letter to me, which was dated September
5, 1996 and accompanied by additional documents also
marked as Petitioner's Exhibits A through I (Ex. A - I of
P.'s September 5, 1996 letter). HCFA then filed a reply
memorandum with four additional exhibits (HCFA Ex. 4 -
7).
In its reply memorandum, HCFA requested leave to
substitute its Exhibit 4 for its Exhibit 1, due to the
inadvertent omission of the last page from Exhibit 1.
2/ In addition, HCFA moved to strike all of Petitioner's
exhibits due to Petitioner's failure to follow the
Procedures required for litigation in this forum. By
letter dated October 3, 1996, Petitioner submitted an
amended response to HCFA's motion to dismiss, with
amended exhibits (Ex. A - I of P.'s October 3, 1996
letter). Despite the remaining problems with
Petitioner's exhibits, 3/ I have decided to allow the
admission of all exhibits as marked and submitted by the
parties. To strike Petitioner's exhibits or to remark
them at this time would render Petitioner's arguments
incomprehensible and may result in additional
proceedings.
For the reasons which follow, I deny Petitioner's motion
to find that the hearing request was timely filed.
Instead, I grant HCFA's motion and dismiss the above-
captioned case pursuant to 42 C.F.R. § 498.70(c).
FINDINGS
1. By letter dated January 23, 1996, HCFA set forth its
determinations adverse to Petitioner. HCFA Ex. 4.
2. Petitioner filed a hearing request dated May 6, 1996.
HCFA Ex. 3.
3. Petitioner's hearing request dated May 6, 1996 is
intended to challenge the determinations set forth by
HCFA in its notice letter dated January 23, 1996. HCFA
Ex. 3; section A of "Analysis" and citations therein.
4. The timeliness of Petitioner's hearing request dated
May 6, 1996 turns on when Petitioner received HCFA's
notice dated January 23, 1996. Id.
5. To timely request a hearing in this case, Petitioner
needed to file its hearing request within 60 days after
it received HCFA's notice dated January 23, 1996. 42
C.F.R. § 498.40(a)(2); section 1866(h) of the Social
Security Act (Act)(incorporating section 205(b) of the
Act).
6. Petitioner is presumed to have received HCFA's
January 23, 1996 notice on January 28, 1996. 42 C.F.R. §
498.40(a)(2)(incorporating 42 C.F.R. § 498.22(b)(3)).
7. HCFA proved that on January 25, 1996, it mailed and
telefaxed its January 23, 1996 notice to Petitioner.
HCFA Ex. 2, 4 - 7; section C of "Analysis" and citations
therein.
8. The burden was on Petitioner to show that it did not
receive HCFA's January 23, 1996 notice by January 28,
1996. Findings 6 and 7; 42 C.F.R. § 498.22(b)(3).
9. Petitioner has not proven that HCFA's January 23,
1996 notice was received on any date other than January
28, 1996. See, section C of "Analysis" and citations
therein.
10. Petitioner has not introduced credible or persuasive
evidence in support of its allegation that it never
received the January 23, 1996 notice mailed and telefaxed
by HCFA on January 25, 1996. Id.
11. Petitioner has not proven that it did not receive
HCFA's January 23, 1996 notice until some time within the
60 days prior to its filing a hearing request dated June
6, 1996. Id.
12. HCFA's January 23, 1996 letter satisfies all of the
notice requirements specified by regulation and is not
materially defective as alleged by Petitioner. 42 C.F.R.
§ 498.20(a); HCFA Ex. 4; section C of "Analysis" and
citations therein.
13. Based on the evidence of record and the presumed
date of receipt specified by regulation, Petitioner's
hearing request dated May 6, 1996 was not timely filed.
Findings 1 - 12.
14. Even if I were to accept as true Petitioner's
contention that it did not receive HCFA's January 23,
1996 notice until HCFA filed a copy of it as an exhibit
in support of HCFA's motion to dismiss, I would find also
that Petitioner's hearing request was not filed within 60
days after it alleged it received HCFA's January 23, 1996
notice. P.'s July 12, September 5, and October 3, 1996
letters with attached exhibits; Section D, 1, of
"Analysis" and citations therein.
15. Even if I were to accept as true Petitioner's
contention that it did not receive HCFA's January 23,
1996 notice until HCFA filed a copy of it as an exhibit
in support of HCFA's motion to dismiss, I would find also
that no hearing request containing the information
required by regulation was ever filed within 60 days of
Petitioner's having received a copy of HCFA's January 23,
1996 notice in conjunction with HCFA's motion to dismiss.
42 C.F.R. § 498.40(b); Section D, 2, of "Analysis" and
citations therein.
16. Even if I were to accept as true Petitioner's
contention that it did not receive HCFA's January 23,
1996 notice until HCFA filed a copy of it as an exhibit
in support of HCFA's motion to dismiss, I would find also
that Petitioner has failed to timely file any hearing
request within the meaning of 42 C.F.R. § 498.40 in
challenging the contents of HCFA's January 23, 1996
notice. Findings 3, 4, 14, 15.
17. Petitioner has made no request or good cause showing
for me to extend the 60-day filing period pursuant to 42
C.F.R. § 498.40(c). P.'s July 12, September 15, and
October 3, 1996 letters; Findings 14 - 16; section B of
"Analysis" and citations therein.
18. Petitioner's hearing request is dismissed with
prejudice. 42 C.F.R. § 498.70(c); Findings 13 - 17.
ANALYSIS
A. The timeliness issue turns on the relationship
between HCFA's notice dated January 23, 1996 and
Petitioner's hearing request dated May 6, 1996.
In its hearing request, Petitioner did not specify which
determination issued by HCFA is being challenged.
Petitioner stated only:
Regarding the above referenced facility,
we hereby request a hearing to contest
the remedies and certification issues
which led to the enforcement action.
Hearing Request.
In the letter acknowledging the receipt of Petitioner's
hearing request, the DAB docketed this case as pertaining
to "Petitioner's May 6, 1996 request for hearing and the
related January 23, 1996 notice of adverse action by the
Health Care Financing Administration." Acknowledgement
Letter dated May 29, 1996. 4/ Because HCFA's January
23, 1996 letter contains notice of HCFA's decision to
terminate Petitioner's Medicare participation agreement
(HCFA Ex. 4), HCFA's decision was subject to the hearing
rights provided by section 1866(h) of the Act and the
regulations codified at 42 C.F.R. Part 498 which
implement said statutory provision. However, both the
statute as well as the implementing regulations make
Petitioner's right to a hearing contingent on its filing
a request for hearing within 60 days of receiving the
notice of HCFA's decision.
Section 205(b) of the Act, as incorporated by section
1866(h) of the Act, states in relevant part:
Any request [for hearing] with respect to
such a decision must be filed within
sixty days after the notice of such
decision is received by the individual
making such request.
The implementing regulations state also in relevant
parts:
(a) Manner and timing of request. (1) An
affected party entitled to a hearing
under § 498.5 may file a request for a
hearing ....
(2) The affected party or its legal
representative ... must file the request
in writing within 60 days from the
receipt of the notice of initial,
reconsidered, or revised determination
unless that period is extended in
accordance with paragraph (c) of this
section. [Presumed date of receipt is
determined in accordance with §
498.22(b)(3)].
42 C.F.R. § 498.40(a)(2).
As to the issue of when a notice letter from HCFA is
received by an affected party, there exists a rebuttable
presumption that receipt will take place on the fifth
day. The relevant regulation specifies as follows:
The date of receipt will be presumed to
be 5 days after the date on the notice
unless there is a showing that it was
received earlier or later.
42 C.F.R. § 498.22(c)(3), as incorporated by 42 C.F.R. §
498.40(a)(2).
An administrative law judge is authorized to dismiss a
hearing request if the hearing request was "not timely
filed." 42 C.F.R. § 498.70(c)(emphasis in original).
In this case, HCFA's motion to dismiss is based on the
rebuttal presumption specified by 42 C.F.R. §
498.22(b)(3), as well as on HCFA's showing
a. that HCFA's notice dated January 23,
1996 notice set forth the basis of HCFA's
determinations, the effects of HCFA's
determinations, and Petitioner's hearing
rights, as required by 42 C.F.R. §
498.20(a)(HCFA Ex. 4);
b. that HCFA's notice dated January 23,
1996 was sent by HCFA to Petitioner via
U.S. mail on January 25, 1996 in
accordance with the regulation which
requires the mailing of such notices
(HCFA Ex. 5 - 7; 42 C.F.R. § 498.20(a));
c. that HCFA also telefaxed a copy of
its termination notice to Petitioner on
January 25, 1996 (HCFA Ex. 5);
d. that the record generated by the
telefax machine shows that the
transmittal of HCFA's letter dated
January 23, 1996 was completed
successfully on January 25, 1996 (HCFA
Ex. 2); and
e. that Petitioner submitted no request
for hearing other than the one dated May
6, 1996 (HCFA Ex. 3).
As contained in its letters to me and in the exhibits
attached to those letters, Petitioner's position appears
to be that it had never received HCFA's notice letter
dated January 23, 1996 until HCFA served Petitioner with
a motion to dismiss, to which a partial copy of said
notice letter was appended as HCFA's Exhibit 1. 5/
Petitioner asserted that the only letter dated January
23, 1996 it had received prior to that time was from the
Texas Department of Human Services (the State Agency),
which did not advise Petitioner of any hearing rights
with HCFA. P.'s July 12, 1996 letter. 6/ Petitioner
alleged also that HCFA did not inform Petitioner of its
hearing rights in HCFA's notice letters dated April 24,
1996 or May 30, 1996, which Petitioner admits to having
received. Ex. D and E of P.'s July 12, 1996 letter.
However, as I noted above, the DAB stated in its
acknowledgement to the parties that it was docketing what
it believed to be Petitioner's challenge to the
determinations contained in HCFA's January 23, 1996
notice. Since receiving the DAB's acknowledgement letter
dated May 29, 1996, Petitioner has never denied or sought
to correct the reference contained in the May 29
acknowledgement letter that Petitioner's May 6, 1996
hearing request was challenging the determinations
contained in HCFA's January 23, 1996 notice. Yet,
Petitioner alleged for the first time in its July 12,
1996 letter that it had not yet received HCFA's notice
dated January 23, 1996.
Also in its letter dated July 12, 1996, Petitioner raised
for the first time the existence of HCFA's notices dated
April 24 and May 30, 1996. However, having shown the
existence of these additional notice letters, Petitioner
has never alleged that its hearing request dated May 6,
1996 was intended to challenge any matters contained in
HCFA's notices of April 24 or May 30, 1996. 7/ In
specifically responding to HCFA's motion to dismiss,
Petitioner continued to deny receipt of HCFA's notice
dated January 23, 1996. P.'s September 5, 1996 and
October 3 letters.
Since August 21, 1996, HCFA has moved to dismiss the
hearing request on the basis that the hearing request was
challenging the determinations contained in HCFA's
January 23, 1996 notice. At no time has Petitioner
alleged that its request for hearing dated May 6, 1996
was intended to challenge anything other than the
contents of HCFA's January 23, 1996 notice, as argued in
HCFA's memorandum in support of its motion to dismiss.
On the basis of what was alleged and not alleged by
Petitioner, I conclude that the timeliness issue must be
resolved on the basis of the relationship between HCFA's
January 23, 1996 notice and Petitioner's hearing request
dated May 6, 1996. I do not find it necessary to discuss
whether the contents of HCFA's April 24, 1996 letter gave
rise to hearing rights as well, since Petitioner has not
alleged that it filed a hearing request dated May 6, 1996
because it received HCFA's April 24, 1996 letter or
wished to challenge any determination contained in HCFA's
April 24, 1996 letter.
B. Petitioner has not requested an extension of the 60-
day filing period.
As in its July 12, 1995 letter, Petitioner again asked in
its September 5, 1996 and October 3, 1996 letters that I
find "Petitioner did timely file an appeal based on the
fact the 60-day period never started to run since
inadequate notice was given." As in its earlier letter,
Petitioner renewed its request that I dismiss the adverse
determinations made by HCFA against Petitioner due to
HCFA's alleged failure to notify Petitioner of its
hearing rights. P.'s September 5, 1996 and October 3,
1996 letters.
Under the regulations, a petitioner is permitted to
request an extension of time period for filing a request
for hearing:
(c) Extension of time for filing a
request for hearing. If the request was
not filed within 60 days --
(2) For good cause shown, the ALJ may
extend the time for filing the request
for hearing.
42 C.F.R. § 498.40(c)(2).
However, by denying having received HCFA's January 23,
1996 notice at the time it filed its hearing request and
by asking for a finding that the 60-day period had never
begun to run, Petitioner has not attempted to show the
requisite good cause for obtaining an extension of the
filing period. Nor has Petitioner requested that I
extend the filing period of 60 days after Petitioner
received the notice in issue. As will be discussed
below, Petitioner filed its hearing request in advance of
having allegedly received the notice in issue for the
first time with HCFA's motion to dismiss. Therefore, I
find immaterial to this controversy the regulatory
authorization for extending the filing period for good
cause shown.
C. Petitioner has not rebutted the presumption created
by regulation and by HCFA's evidence that HCFA's January
23, 1996 notice was received by Petitioner on or about
January 28, 1996.
In its letters responding to the motion to dismiss,
Petitioner argued that HCFA's January 23, 1996 notice did
not indicate on its face the manner in which it was sent
to Petitioner (P.'s September 5, 1996 and October 3, 1996
letters, 1), that an incomplete copy of said notice was
included as HCFA's Exhibit 1 (Id.), that Petitioner finds
it "impossible to rely on the genuineness of HCFA's
exhibits" (id. at 2), and that no proper service of
HCFA's January 23, 1996 notice was ever effectuated
(id.). These and like arguments have been countered by
HCFA in its reply brief and in the exhibits submitted by
HCFA, which included an admission that HCFA's counsel had
inadvertently omitted the last page of the notice letter
in issue while preparing HCFA's Exhibit 1. The record as
a whole does not cause me to doubt the genuineness of
HCFA's exhibits or HCFA's contention that its January 23,
1996 notice was in fact sent on the day and in the manner
stated by HCFA's employees. See, HCFA Ex. 2, 4 - 7. Nor
do I find merit in Petitioner's arguments that HCFA's
January 23, 1996 notice is defective on its face.
I find that HCFA's January 23, 1996 letter contains the
information required by 42 C.F.R. § 498.20. HCFA Ex. 4.
Said letter included a section entitled "Appeals
Rights," which cited 42 C.F.R. § 498.40 and provided
other relevant information concerning the filing of a
hearing request. Id. Therefore, Petitioner's complaint
that no notice of hearing rights was included in the
State Agency's letter of the same date or in HCFA's
subsequently dated notices do not apply to the contents
of HCFA's January 23, 1996 letter. See P.'s July 12,
1996 letter.
Petitioner argued also that HCFA's January 23, 1996
notice is defective in that the copy supplied by HCFA
does not contain the signature of a HCFA official or the
telephone number of any HCFA employee responsible for
answering questions, and it does not conform to the model
letter format contained in the State Operations Manual.
P.'s October 3, 1996 letter. As I found above, the
contents of HCFA's January 23, 1996 letter meet the
requirements of 42 C.F.R. § 498.20. There is no
regulatory or statutory requirement for HCFA's notices to
conform to any particular model letter format. Nor is
there any regulatory or statutory requirement for any
HCFA official to sign the notice letter or provide a
telephone number for inquiries. HCFA's January 23, 1996
letter does not leave room for doubting that its contents
constitute the official determinations of the agency. If
Petitioner wanted to ask questions by telephone, it
needed to look no further than the stationery on which
the letter in issue was sent, which has HCFA's telephone
number printed on it. HCFA Ex. 4.
Even though Petitioner correctly noted that HCFA must
mail its January 23, 1996 letter as required by 42 C.F.R.
§ 498.20(a) (P.'s September 5, 1996 letter, 2), this
mailing requirement does not mean that HCFA must state on
the face of said letter that HCFA was mailing it. Nor
does the mailing requirement mean that HCFA is precluded
from sending an additional copy to Petitioner via other
means, such as by telefax, to ensure that Petitioner
receives actual notice of the letter's contents.
In cases such as this where HCFA has mailed the notice as
required by regulation, but Petitioner claims not to have
received the mailed notice, Petitioner has no basis for
objecting to HCFA's having sent a copy of the same notice
by other means to Petitioner. If the mailed notice is
not received, a substitute copy of the notice, however
sent, would begin the period for requesting a hearing
upon Petitioner's receiving it. Therefore, whether and
when Petitioner received a copy of HCFA's January 23,
1996 notice via telefax is relevant to Petitioner's time
period for filing its hearing request.
The affidavits submitted by HCFA adequately establish
that HCFA's January 23, 1996 notice was sent by mail in
accordance with 42 C.F.R. § 498.20(a), as well as by
telefax transmittal to Petitioner. HCFA Ex. 5 - 7. The
record generated by the telefax machine during the course
of the transmittal shows also that all three pages of
HCFA's notice, along with a cover page, was successfully
completed on January 25, 1996. HCFA Ex. 2. Accordingly,
unless Petitioner proves a later receipt date, Petitioner
is deemed to have received HCFA's notice dated January
23, 1996 by no later than January 28, 1996 (five days
after the date of the notice). 42 C.F.R. § 498.22
(b)(3)(as incorporated by 42 C.F.R. § 498.40(a)(2)).
Petitioner has not proven a later receipt date.
Even though Petitioner submitted the affidavits of
employees who explained the office procedures for
processing mail and who stated that they have found no
copy of HCFA's January 23, 1996 notice among Petitioner's
office records, these affidavits do not establish that
the specified mail processing procedures were in effect
when HCFA sent its January 23, 1996 letter. Nor do the
affiants claim to have had personal knowledge of any
relevant event occurring in late January or early
February of 1996. Ex. G - I of P.'s September 5, 1996
letter. These affiants do not even state for how long
they have been employed by Petitioner.
Even more significantly, none of the affiants stated that
Petitioner had not received HCFA's January 23, 1996
notice subsequent to the time HCFA had sent it. Instead,
what each affiant stated was: "Our facility never
received any correspondence, documents, etc. from HCFA
... or any other addressor or entity dated January 25,
1996." Ex. G - I of P.'s September 5, 1996 letter
(emphasis added). There exists no notice from HCFA dated
January 25, 1996 relevant to this proceeding, and
Petitioner's non-receipt of a document dated January 25,
1996 is immaterial.
In addition, I do not find credible Petitioner's
contention that not only did HCFA's January 23, 1996
notice fail to reach Petitioner by mail after HCFA had
sent it on January 25, 1996, but a copy of the same
document telefaxed by HCFA on January 25, 1996 had failed
to reach Petitioner as well. Nothing of record can
explain why both the letter as well as the telefax
transmission sent on the same day would fail to reach
Petitioner. Nothing of record casts sufficient doubt on
the accuracy of the record generated by the telefax
machine used by HCFA, which shows that the transmission
to Petitioner was successfully completed on January 25,
1996.
I note also that, given the other notices received by
Petitioner, the facts alleged by Petitioner are not
consistent with its position that it failed to receive a
copy of HCFA's January 23, 1996 notice until some time
after I raised the timeliness issue during the prehearing
conference in July of 1996. For example, Petitioner
admitted to having received the State Agency's notice
dated January 23, 1996, which advised of the State
Agency's recommendations that certain enforcement
remedies be imposed by HCFA. Ex. B of P.'s July 12, 1996
letter. Said letter from the State Agency especially
placed Petitioner on notice that HCFA would be sending a
letter to Petitioner concerning which remedies would be
imposed by HCFA and their effective dates. Id.
Additionally, HCFA's notice dated April 24, 1996, which
Petitioner also admitted to having received, referred to
HCFA's January 23, 1996 notice 8/ and HCFA's denial of
payments for Medicare and Medicaid admissions, which had
been in effect since February 7, 1996. Ex. D of P.'s
July 12, 1996 letter. As I had noted above, the DAB also
sent Petitioner an acknowledgement of hearing request
letter dated May 29, 1996 which also referred to HCFA's
notice dated January 23, 1996.
If it were true that Petitioner had never received either
the mailed or telefaxed copy of HCFA's January 23, 1996
notice, then Petitioner would likely have made inquiries
with HCFA concerning the whereabouts of said notice after
reading the contents of the State Agency's January 23,
1996 letter, HCFA's April 24, 1996 letter, or DAB's May
29, 1996 acknowledgement letter. (Without having
received HCFA's January 23, 1996 notice, Petitioner would
not have had advance notice that HCFA was denying
payments for Medicare and Medicaid admissions effective
February 7, 1996. HCFA Ex. 4 at 2.)
However, there is no indication in this record that, upon
receiving HCFA's April 24, 1996 letter or the DAB's May
26, 1996 letter, Petitioner was surprised by their
references to HCFA's January 23, 1996 letter or to the
fact that at least one remedy had already been
effectuated by HCFA. Instead of having made inquiries
concerning the whereabouts of HCFA's January 23, 1996
letter after having been placed on notice that such a
letter exists, Petitioner, in a prehearing conference
with me in July 1996, asserted that it was unaware of any
timeliness issue. P.'s July 12, 1996 letter, 1.
Petitioner's apparent inaction after having received the
State Agency's notice of January 23, 1996, HCFA's notice
of April 24, 1996, as well as the DAB's letter of May 29,
1996 does not credibly support its allegation that HCFA's
January 23, 1993 notice had never been received either by
mail or by telefax.
I do not believe Petitioner's version of the facts also
because Petitioner has never offered any explanation as
to how, if no copy of HCFA's January 23, 1996 notice had
been received until HCFA appended it to the motion to
dismiss, Petitioner knew to submit a hearing request on
May 6, 1996. None of the notices Petitioner admitted to
having received prior to May 6, 1996 (including HCFA's
April 24, 1996 notice) contained any explanations or
instructions on filing a hearing request. Yet, on May 6,
1996, Petitioner sent a hearing request addressed exactly
as instructed in HCFA's January 23, 1996 notice. HCFA
Ex. 3, 4.
In sum, Petitioner's evidence is insufficient to rebut
the presumed receipt date which is specified by
regulation and further supported by HCFA's evidence.
Petitioner has not proven that the notice in issue was
first received some time after January 28, 1996 and
within 60 days prior to the filing of its hearing request
dated May 6, 1996.
D. Even if I were to accept as true Petitioner's
contention that it did not receive HCFA's January 23,
1996 notice until HCFA filed a copy of it as an exhibit
in support of HCFA's motion to dismiss, I would conclude
that no hearing request conforming to the requirements of
42 C.F.R. § 498.40(b) was timely filed by Petitioner.
1. Under Petitioner's version of the facts,
Petitioner's hearing request was not filed within
60 days after it alleged it received HCFA's
January 23, 1996 notice, as required by the Act
and the regulations.
Even if I were to disregard the evidence presented by
HCFA and the presumed receipt date specified by
regulation, the facts alleged by Petitioner would still
lead me to the conclusion that Petitioner has failed to
file a hearing request within the time period specified
by the statute and regulations.
Under the relevant sections of the Act and regulations, a
hearing request may be filed only after receipt of the
determination under challenge. Section 205(b) of the
Act; 42 C.F.R. §§ 498.5, 498.40. There is no regulatory
or statutory authority for filing a hearing request in
advance of receiving notice of that determination. An
entity may not file a non-specific hearing request before
receiving an adverse determination in the hope that, if
it ever receives an adverse determination made against it
in later days, the anticipatory hearing request will
entitle it to a hearing. Id. In addition, the
regulation's requirements concerning the contents of the
hearing request (42 C.F.R. § 498.40(b)) also preclude the
filing of a non-specific hearing request in advance of
the entity's having received and read HCFA's
determination. 9/
Yet, under the facts alleged by Petitioner, Petitioner
took those anticipatory actions precluded by 42 C.F.R. §
498.40 and section 205(b) of the Act. Petitioner alleges
that it filed a hearing request on May 6, 1996 without
having received HCFA's notice of adverse determination
dated January 23, 1996. Petitioner allowed the
Departmental Appeals Board (DAB) to docket its hearing
request as a challenge to HCFA's January 23, 1996 notice.
The acknowledgement letter dated May 29, 1996 from the
DAB to Petitioner specifically references the January 23,
1996 notice letter from HCFA. However, Petitioner now
says it had not received the January 23, 1996 notice even
at the time the case was docketed. Yet, Petitioner did
not object to nor even mention that it believed that the
May 29, 1996 acknowledgement letter was inaccurate in
mentioning the January 23, 1996 notice letter.
Petitioner now wants the hearing to proceed on the merits
of HCFA's January 23, 1996 notice, based on a non-
specific request for hearing filed several months prior
to its having alleged it received or read any copy of
HCFA's January 23, 1996 notice.
My authority to dismiss a hearing request is not limited
to those requests filed too late. I am authorized to
dismiss all hearing requests that are not "timely" filed.
42 C.F.R. § 498.70(c). Since a "timely" filing means
only a filing made within 60 days after receipt of the
disputed determinations, the filing of a hearing request
several months prior to the receipt of the disputed
determinations is "untimely" as a matter of law. Section
205(b) of the Act; 42 C.F.R. § 498.40(a).
2. In addition, no hearing request
containing the information required by 42
C.F.R. § 498.40(b) was ever filed within
60 days of Petitioner's having received a
copy of HCFA's January 23, 1996 notice in
conjunction with HCFA's motion to
dismiss.
A timely filed hearing request is not merely a document
of any content filed by an affected entity within 60 days
of receiving any adverse determination. A timely filed
hearing request means a document which is filed by an
affected entity within the specified period of time after
receipt and which contains the information specified by
regulations:
(b) Content of request for hearing. The
request for hearing must --
(1) Identify the specific issues, and the
findings of fact and conclusions of law
with which the affected party disagrees;
and
(2) Specify the basis for contending that
the findings and conclusions are
incorrect.
42 C.F.R. § 498.40(b). Petitioner's May 6, 1996 hearing
request (dated May 6, 1996) fails to satisfy the
foregoing regulatory requirements. Therefore, the
request submitted by Petitioner on May 6, 1996 is not a
hearing request within the definition of the regulation,
regardless of how many days separate its filing from the
date Petitioner received any adverse determination from
HCFA.
No matter when Petitioner received HCFA's January 23,
1996 notice letter, the vague content of the May 6, 1996
hearing request precludes it from being considered a
timely filed hearing request under 42 C.F.R. § 498.40 for
challenging HCFA's January 23, 1996 determinations.
10/ Even if I were to accept as true Petitioner's
assertions that it did not receive a copy of HCFA's
January 23, 1996 notice until HCFA filed it with HCFA's
motion to dismiss, more than 60 days have passed since
that date. As part of its motion to dismiss dated August
21, 1996, HCFA sent an incomplete copy of the January 23,
1996 notice letter to Petitioner as HCFA Ex. 1. (HCFA
later substituted a complete copy as HCFA Ex. 4.)
However, even the incomplete copy HCFA submitted as its
HCFA Ex. 1 contained relevant information concerning
Petitioner's appeal rights, including a citation to 42
C.F.R. § 498.40. HCFA Ex. 1 at 2. Even though HCFA's
Exhibit 1 does not state what information the hearing
request must contain, the document's citation to 42
C.F.R. § 498.40 placed Petitioner on notice as to what
the hearing request must contain.
Therefore, there is no basis for concluding that, after
Petitioner received service of HCFA Ex. 1 as part of
HCFA's motion to dismiss dated August 21, 1996,
Petitioner remained without notice that it had 60 days
after receipt of the notice letter in issue to file a
hearing request containing the information specified by
42 C.F.R. § 498.40(b). Within 60 days of the receipt
date indicated by Petitioner's arguments, Petitioner has
submitted no hearing request containing the information
specified by 42 C.F.R. § 498.40(b) to challenge the
contents of HCFA's January 23, 1996 notice.
CONCLUSION
For the reasons stated above, I dismiss Petitioner's
hearing request dated May 6, 1996 and the above-captioned
case pursuant to 42 C.F.R. § 498.70(c).
Mimi Hwang Leahy
Administrative Law Judge
* * * Footnotes * * *
1. Petitioner's hearing request was sent to
HCFA and then forwarded by HCFA to the Departmental
Appeals Board (DAB). In addition, HCFA forwarded to the
DAB a copy of HCFA's January 23, 1996 notice letter along
with Petitioner's hearing request.
2. For good cause shown, I am granting HCFA's
request for substitution.
3. In submitting documents as exhibits,
Petitioner has failed to satisfy the identification
requirements contained in the Procedures adopted by the
Civil Remedies Divisions of the Department Appeals Board.
In addition, Petitioner has also used the same identifier
for different documents. As examples, I note that
Petitioner attached Exhibits A through F to its letter
dated July 12, 1996 and then used some of the same
exhibit designations on different documents submitted
with its October 3, 1996 letter. Petitioner's Exhibit G,
submitted with its October 3, 1996 letter, also contains
its own Exhibits A and B, which are distinct from those
other documents also designated as Exhibits A and B by
Petitioner.
Many of Petitioner's exhibits are also duplicates of
documents Petitioner and HCFA have already submitted.
For example, Petitioner has remarked and resubmitted
HCFA's Exhibits 1 and 2 as Petitioner's Exhibits A and D,
respectively; most of the documents included in
Petitioner's Exhibit G duplicate those exhibits earlier
submitted by Petitioner with its letter dated July 12,
1996, as well as those documents Petitioner has submitted
as its Exhibit E and F to its October 5, 1996 letter.
4. See footnote 1.
5. HCFA's Exhibit 1 contains the first two
pages of the notice letter. With its reply memorandum,
HCFA submitted Exhibit 4, which contains all three pages
of the letter, as a substitute.
6. Because there exists a January 23, 1996
letter from HCFA which set forth Petitioner's hearing
rights (HCFA Ex. 4) and this case was not docketed based
on the existence of any letter from the State Agency, I
reject Petitioner's arguments concerning the alleged
inadequacies of the State Agency's January 23, 1996
letter.
7. The April 24, 1996 notice contains
different findings of noncompliance than the January 23,
1996 notice. Ex. D of P. letter of July 12, 1996; HCFA
Ex. 4. The May 30, 1990 notice (Ex. E of P. letter of
July 12, 1996) does not impose any enforcement remedies
and therefore doe not give rise to any hearing rights.
University Towers Medical Pavilion, DAB CR436 (1996).
8. HCFA's April 24, 1996 letter stated, inter
alia:
please note that this corrects the amount
listed in our letter of January 23,
1996.... Your have 60 days from the date
of our initial notice letter, dated
January 23, 1996 to file an appeal . . .
.
Ex. D of P.'s July 12, 1996 letter (emphasis added).
9. I will discuss in greater detail below the
content requirements of the regulations and the contents
of Petitioner's hearing request.
10. This conclusion is applicable also to
any hearing Petitioner may have been entitled to request
on any determination contained in HCFA's April 24, 1996
notice. Even if, despite Petitioner's failure to allege
it, Petitioner's May 6, 1996 letter might be considered
as possibly relating to the merits of HCFA's April 24,
1996 notice, the letter must also be considered an
untimely filed hearing request under the requirements of
42 C.F.R. § 498.40(b).