Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Sharwood Health Center,
Petitioner,
- v. -
Health Care Financing Administration.
DATE: February 10, 1997
Docket No. C-96-390
Decision No. CR460
DECISION
Below, I explain my reasons for dismissing this case pursuant to
42 C.F.R. § 498.70 (a), (b), and (c).
The only document in this case purporting to be a hearing request
is a letter from Petitioner dated July 29, 1996. This case was
docketed by the Departmental Appeals Board (DAB) following the
receipt of Petitioner's letter dated July 29, 1996. Petitioner's
letter requested a hearing on matters contained in a June 4, 1996
letter from the Illinois Department of Public Health (IDPH),
which summarized the recommendations made by the IDPH to the
Health Care Financing Administration (HCFA). After receiving
IDPH's recommendations, HCFA issued its own determinations by
notices dated August 9, 1996 and September 9, 1996. HCFA's
August 9, 1996 notice contained HCFA's determination to impose
three enforcement remedies against Petitioner; HCFA's September
9, 1996 notice contained HCFA's determination to rescind two of
the three previously imposed enforcement remedies, and to impose
a civil money penalty (CMP) remedy as well.
On October 18, 1996, I directed the issuance of an order for
Petitioner to show cause why this case should not be dismissed
for the following three reasons set forth in the order:
1. "There is no indication that
Petitioner filed a hearing request
containing the information specified by
regulation within 60 days after its
receipt of HCFA's August 9, 1996 Notice.
42 C.F.R. § 498.40(a) and (b).";
2. "In addition, Petitioner's status
report dated October 4, 1996, indicates
that HCFA has rescinded the remedies
imposed in its August 9, 1996 notice.
Therefore, it would appear that if
Petitioner had any right to a hearing
pursuant to its hearing request dated
July 29, 1996, such right has been
extinguished by HCFA's rescission of the
remedies. See e.g., Arcadia Acres, Inc.,
v. HCFA, DAB CR424 (1996)."; and
3. "According to Petitioner's status
report, HCFA has issued a Notice which
imposed a civil monetary penalty (CMP)
and which informed Petitioner of its
right to request a hearing to contest the
imposition of the CMP. If Petitioner
files a request to contest HCFA's
imposition of a CMP, the Departmental
Appeals Board's practice is to docket the
matter as a separate action."
Petitioner responded to my order to show cause by contending that
"Sharwood's July 29, 1996 correspondence was a valid request for
a hearing pursuant to 42 C.F.R. § 498.40." Sharwood's Response
to the Tribunal's Sua Sponte Motion to Dismiss (P. Response), 2
1/; see, Sharwood's Memorandum of Law in Support of Its Response
to the Tribunal's Sua Sponte Motion to Dismiss (P. Brief).
Petitioner argued also that its letter dated July 29, 1996
includes a challenge to HCFA's imposition of said CMP and,
therefore, I already have jurisdiction over the CMP matter.
E.g., P. Response, 3; P. Brief, 7. In addition, Petitioner took
the position that "[e]ven if HCFA's September 9, 1996 letter had
rescinded all of the remedies it had previously imposed,
Sharwood's right to appeal would remain intact." P. Brief, 5.
2/
HCFA asked that Petitioner's request for hearing dated July 29,
1996 be dismissed by noting that said hearing request was filed
prematurely and in response to the recommendations of HCFA's
agent, the IDPH, for HCFA to impose certain remedies. HCFA
argued, moreover, that no cause of action lies in any event with
respect to those enforcement remedies which were imposed by HCFA
and then withdrawn by HCFA prior to their effectuation dates.
Reply to Petitioner's Memorandum in Response to Judge Leahy's
Notification of Possible Dismissal (HCFA Brief); see, HCFA Exs. 2
- 4. 3/
FINDINGS OF FACT AND CONCLUSIONS OF LAW (FFCLs)
Relevant laws, regulations, and decisions
1. The administrative appeal rights provided by 42 C.F.R. Part
498, including hearings before an administrative law judge, are
not available unless HCFA has issued an initial determination as
defined by the regulations. 42 C.F.R. § 498.3(a); 42 C.F.R. §
498.20 (specifying contents of HCFA's notice of initial
determination).
2. Absent an extension of time granted by the administrative law
judge for good cause shown, a written request for hearing must be
filed by an affected party within 60 days after it has received
HCFA's notice of its initial determination. 42 C.F.R. § 498.40;
see also, section 205(b) of the Social Security Act (Act), as
incorporated by section 1866(h) of the Act (re termination of
Medicare provider agreements).
3. To be considered a request for hearing within the meaning of
the regulations, the document must identify the specific issues
and the findings of fact and conclusions of law with which the
affected party disagrees, and specify the basis for contending
that the findings and conclusions are incorrect. 42 C.F.R. §
498.40(b).
4. The administrative law judge has the authority to dismiss
hearing requests that are not "timely filed," including those
which were filed prematurely or prior to the receipt of HCFA's
notice of initial determination. 42 C.F.R. § 498.70(c); Canton
Healthcare Center v. HCFA, DAB CR443 at 14 (1996).
5. The administrative law judge has the authority to dismiss
hearing requests where the requesting parties do not have a right
to a hearing. 42 C.F.R. § 498.70(b).
6. The administrative law judge has the authority to dismiss a
hearing request where there has been a previous determination
which became final because the affected party did not timely
request a hearing with respect to that determination. 42 C.F.R.
§ 498.70(a).
7. Even where HCFA has issued a notice of initial determination
by HCFA and an affected party has timely filed a request for
hearing with respect to said notice, HCFA has the right to
rescind the disputed initial determination on its own initiative
within 12 months of the date of the notice. 42 C.F.R. §§ 498.30
and 498.32; Arcadia Acres, Inc., v. HCFA, DAB CR424 at 10 - 11
(1996); Country Club Center, II v. HCFA, DAB CR433 at 7, 8
(1996); Rolling Acres Care Center v. HCFA, DAB CR437 at 8, 10
(1996).
8. Where the request for hearing is based on HCFA's having made
an initial determination to impose an enforcement remedy
specified by regulation (see, 42 C.F.R. § 498.3(b)(12) and its
incorporation of 42 C.F.R. § 488.406), HCFA's rescission of its
previously imposed enforcement remedy cancels any previously
existing hearing rights to challenge said remedy or its bases.
Arcadia Acres, Inc.,; Country Club Center, II; Rolling Acres Care
Center; Fort Tryon Nursing Home v. HCFA, DAB CR425 (1996).
Petitioner's July 29, 1996 letter and IDPH's recommendations to
HCFA
9. On April 5, 1996, IDPH issued a letter to Petitioner,
identifying the findings of noncompliance made by the IDPH
pursuant to a survey completed on April 2, 1996 and the
enforcement remedies recommended by IDPH for imposition by HCFA.
HCFA Ex. 1.
10. On June 4, 1996, IDPH issued a letter to Petitioner,
summarizing IDPH's recommendations to HCFA based on the surveys
conducted by IDPH on April 2 and May 30, 1996. P. Ex. A.
11. The June 4, 1996 letter from IDPH does not purport to be or
constitute an initial determination by HCFA. FFCLs 1, 10; P. Ex.
A.
12. The June 4, 1996 letter from IDPH did not give rise to any
hearing rights under 42 C.F.R. Part 498. FFCLs 1, 10, 11.
13. The only document in this case purporting to be a hearing
request is Petitioner's letter dated July 29, 1996. P. Ex. B.
14. Petitioner's letter dated July 29, 1996 stated that
Petitioner was requesting a hearing before an administrative law
judge of the Departmental Appeals Board pursuant to the IDPH's
letter dated June 4, 1996. P. Ex. B at 1.
15. Petitioner's letter dated July 29, 1996 acknowledged that
IDPH's June 4, 1996 letter was "recommending to the Health Care
Financing Administration . . . that certain enforcement actions
be imposed." P. Ex. B at 1.
16. Petitioner has no right to a hearing on those matters set
forth in its letter dated July 29, 1996. FFCLs 1, 10 - 15.
17. Petitioner's July 29, 1996 request for a hearing must be
dismissed in the absence of any law or regulation permitting
Petitioner to challenge IDPH's recommendations to HCFA. 42
C.F.R. § 498.70(b); FFCLs 1, 16.
Petitioner's July 29, 1996 letter and HCFA's initial
determinations dated August 9 and September 9, 1996
18. At the time Petitioner requested a hearing by letter dated
July 29, 1996, HCFA had not yet issued any initial determination
subject to administrative reviews. FFCLs 9 - 15.
19. On August 9, 1996, HCFA issued a notice of its initial
determinations. P. Ex. C; 42 C.F.R. § 498.20.
20. HCFA's notice letter dated August 9, 1996 stated that a CMP
may be imposed and did not contain any initial determination by
HCFA to impose a CMP against Petitioner. P. Ex. C.
21. HCFA's notice letter dated August 9, 1996 contained HCFA's
initial determination to impose the following three remedies
based on the findings of noncompliance made at the surveys of
Petitioner:
Directed inservice training effective
August 29, 1996, and to be completed by
September 15, 1996;
Denial of Payment for new Medicare and
Medicaid admissions (DPNA) effective
August 29, 1996, and
Termination of Petitioner's provider
agreements absent compliance by October
3, 1996.
P. Ex. C.
22. The contents of HCFA's August 9, 1996 notice gave rise to
Petitioner's right to request a hearing for the review of HCFA's
findings of noncompliance that resulted in HCFA's imposition of
the specified remedies. 42 C.F.R. §§ 498.3(a) and (b)(12),
498.20(a), 498.40.
23. HCFA's notice letter dated August 9, 1996, correctly advised
Petitioner that Petitioner may exercise its hearing rights in
accordance with the procedures specified in 42 C.F.R. § 498.40.
P. Ex. C at 3.
24. By letter dated September 9, 1996, HCFA rescinded the DPNA
and termination remedies imposed by its August 9, 1996 notice,
but not the directed inservice training remedy also imposed by
its August 9, 1996 notice. P. Exs. C and E.
25. By letter dated September 9, 1996, HCFA notified Petitioner
also that HCFA was imposing a CMP totalling $7,350, for 147 days
of alleged noncompliance at the rate of $50 per day. P. Ex. E.
26. HCFA's letter dated September 9, 1996, informed Petitioner
that it had a right to request a hearing to contest HCFA's
imposition of a CMP within 60 days of Petitioner's receiving said
letter. P. Ex. E.
27. Based upon HCFA's August 9, 1996 notice, Petitioner had the
right to timely request a hearing for the review of HCFA's
findings of noncompliance that resulted in HCFA's imposition of
the directed inservice training remedy, which was not rescinded
by HCFA. 42 C.F.R. §§ 498.3(b)(12) and 488.406; 42 C.F.R. §
498.40; FFCLs 21 - 24.
28. Petitioner's letter dated July 29, 1996, even if arguably
intended to challenge an initial determination Petitioner thought
HCFA might issue after that date (but see, FFCLs 14 - 16), was
premature and therefore untimely filed to any extent it might
relate to HCFA's August 9, 1996 or September 9, 1996
determinations. FFCLs 2, 4, 21; 42 C.F.R. §§ 498.40 and
498.70(c).
29. Petitioner's letter dated July 29, 1996, even if arguably
intended to challenge an initial determination Petitioner thought
HCFA might issue after that date (but see, FFCLs 14 - 16), does
not constitute a hearing request within the meaning of the
regulations for the purpose of challenging HCFA's August 9, 1996
or September 9, 1996 determinations. 42 C.F.R. § 498.40(b); P.
Ex. B; FFCL 3.
30. No hearing rights were created by HCFA's written
acknowledgements that it had received and then forwarded to the
DAB Petitioner's letter dated July 29, 1996. See, P. Ex. C at 3
and E at 2; 42 C.F.R. Part 498.
31. No hearing rights were created by the DAB's written
acknowledgement that Petitioner's letter dated July 29, 1996 had
been received and docketed as a case. P. Ex. C at 3; 42 C.F.R. §
498.70.
32. Petitioner's filing of its letter dated July 29, 1996 did
not validly preserve any right of review for the outstanding
initial determinations contained in HCFA's August 9 and September
9, 1996 notices. FFCLs 5-6, 13, 25 - 31; 42 C.F.R. §§ 498.20(b),
498.40, 498.70.
33. Petitioner's letter dated July 29, 1996, which seeks a
hearing, must be dismissed. 42 C.F.R. § 498.70(a), (b) or (c).
FFCLs 13, 17, 18 - 32.
DISCUSSION
A. There is no right to a hearing on recommendations made by the
IDPH to HCFA.
Petitioner alleges that its July 29, 1996 letter constitutes "a
valid request for a hearing pursuant to 42 C.F.R. § 498.40." P.
Response at 2. I conclude that Petitioner's contention is
without factual or legal support.
By letter dated April 5, 1996, IDPH notified Petitioner of its
findings from the April 2, 1996 survey and informed Petitioner
that IDPH was recommending that two remedies be imposed: directed
inservice training and a CMP effective April 2, 1996. HCFA Ex.
1. Nothing purporting to be a hearing request references the
IDPH's April 5, 1996 letter or its contents.
By letter to Petitioner dated June 4, 1996, the IDPH stated that
it was recommending to HCFA that four remedies (directed
inservice training, DPNA, CMP, and termination) be imposed by
HCFA based on the results of surveys conducted by IDPH on April
2, 1996 and May 30, 1996. P. Ex. A.
On July 29, 1996, Petitioner, by counsel, sent a letter to HCFA
stating in relevant part:
In correspondence dated June 4, 1996
(copy enclosed), our client . . . was
notified that the Illinois Department of
Public Health ("IDPH") was recommending
to the Health Care Financing
Administration . . . that certain
enforcement actions be imposed. Pursuant
to the June 4, 1996 notice, Sharwood
requests a hearing before an
Administrative Law Judge of the
Department of Health and Human Services,
Departmental Appeals Board, because it
considers such determinations to be in
error including, but not limited to, the
findings that the facility was not in
substantial compliance with Medicare and
Medicaid program requirements, denial of
payments for new admissions, imposition
of a civil money penalty, directed
inservice, and termination from
participating in the Medicare and
Medicaid programs.
P. Ex. B.
There is no statutory or regulatory authority for providing
hearings in this forum to adjudicate recommendations made by
HCFA's agent to HCFA. The regulation codified at 42 C.F.R. §
498.40, as well as other regulations such as 42 C.F.R. § 498.3,
which also govern the administrative hearing process, require at
the very minimum an initial determination made by HCFA. When
Petitioner submitted its letter dated July 29, 1996 to request a
hearing, HCFA had not yet made any initial determination in this
case. See, P. Exs. B and C.
The language I have quoted above from Petitioner's July 29, 1996
letter leaves no doubt that Petitioner was well aware that the
IDPH letter dated June 4, 1996 constituted recommendations to
HCFA and that Petitioner was seeking a hearing on those
recommendations made by IDPH. Re-emphasizing the same awareness
in its brief to me, Petitioner stated again that "Sharwood
further considered the recommendation that the remedies of denial
of payments for new admissions, imposition of a civil money
penalty, directed inservice training, and termination from
participating in the Medicare/Medicaid programs to be in error."
P. Brief, 1 (emphasis added). I find it significant also that
Petitioner did not file a request for hearing with respect to the
IDPH's April 5, 1996 letter, which also contained only the IDPH's
recommendations or proposals to HCFA. In fact, there is no law
or regulation which permits Petitioner to request a hearing to
challenge recommendations made to HCFA. FFCL 17.
B. Petitioner's filing of its letter dated July 29, 1996 did not
entitle it to a hearing on those initial determinations which
HCFA issued on August 9 and September 9, 1996.
1. Petitioner's arguments on the legal
effect of its July 29, 1996 request for
hearing
After Petitioner filed its request for hearing dated July 29,
1996 to challenge the IDPH's recommendations, HCFA issued its
initial determinations. The issuance of these initial
determinations by HCFA was accompanied by notices to Petitioner
of its right to request a hearing, including the time period for
filing such a request. As discussed below, I reject Petitioner's
arguments that the filing of its July 29, 1996 request for
hearing entitles Petitioner to an adjudication of those initial
determinations made by HCFA on August 9 or September 9, 1996.
In a letter dated August 9, 1996, HCFA notified Petitioner that,
based on the IDPH's recommendations contained in the dated June
4, 1996 letter (which referenced the results of the April 2
survey), as well as the results of a revisit survey completed on
May 30, 1996, HCFA has decided to impose the following remedies
against Petitioner:
-- Directed inservice training effective
August 29, 1996, and to be completed by
September 15, 1996;
-- DPNA effective August 29, 1996; and
-- termination of Petitioner's Medicare
and Medicaid provider agreements unless
compliance is attained by October 3,
1996.
P. Ex. C. 4/ HCFA's August 9, 1996 letter notified Petitioner
also that, with respect to Petitioner's hearing rights concerning
HCFA's imposition of the above cited three remedies:
you or your legal representative may
request a hearing before an
administrative law judge of the . . .
Departmental Appeals Board. Procedures
governing this process are set out in
Federal regulations at 42 C.F.R. [§]
498.40, et seq.
P. Ex. C, 3.
The notification of hearing rights provided by HCFA in its August
9, 1996 letter is proper because the three remedies HCFA had
decided to impose (i.e., inservice training, DPNA, and
termination of provider agreement) are among those listed in 42
C.F.R. § 488.406 and, additionally, HCFA had made findings of
noncompliance which led to the imposition of those three
remedies. See, 42 C.F.R. § 498.3(b)(12). Therefore, HCFA's
August 9, 1996 notice contained HCFA's initial determinations.
HCFA's issuance of these initial determinations entitled
Petitioner to request a hearing within the time period and in the
manner specified by regulation. 42 C.F.R. §§ 498.3(a) and
498.40.
However, HCFA's subsequent actions limited the issues for which
Petitioner was entitled to seek a hearing. By letter dated
September 9, 1996, HCFA informed Petitioner that HCFA had decided
not to impose the remedies of DPNA and termination. P. Ex. E.
HCFA's rescission actions had the effect of extinguishing
Petitioner's right to challenge HCFA's prior decision to impose
those two remedies. FFCL 8. 5/
Because HCFA did not rescind its imposition of the directed
inservice training remedy, Petitioner continued to have the right
(up to 60 days after its receipt of HCFA's August 9, 1996 notice)
to request a hearing on HCFA's findings of noncompliance that
resulted in its imposition of the inservice training remedy. 6/
In addition, HCFA's issuance of its September 9, 1996 notice
letter entitled Petitioner to request a hearing to challenge the
CMP determination made by HCFA. 42 C.F.R. § 498.3(b)(12) and
(13). In the letter dated September 9, 1996, HCFA notified
Petitioner that HCFA had decided to impose a CMP in the total
amount of $7,350 for the period from April 2 through August 27,
1996. HCFA's September 9, 1996 letter stated also:
As you are aware, we previously
acknowledged your July 29, 1996 request
for a hearing in our August 9, 1996
notice. However, since we are now
imposing the CMP, you may request a
hearing before an ALJ within 60 days of
your receipt of this notice.
P. Ex. E.
The show cause order I issued on October 18, 1996 also reminded
Petitioner of its opportunity to request a hearing on HCFA's
imposition of a CMP by stating as follows:
According to Petitioner's status report,
HCFA has issued a Notice which imposed a
civil monetary penalty (CMP) and which
informed Petitioner of its right to
request a hearing to contest the
imposition of the CMP. If Petitioner
files a request to contest HCFA's
imposition of a CMP, the Departmental
Appeals Board's practice is to docket the
matter as a separate action.
Despite the notices of hearing rights provided in HCFA's letters
dated August 9 and September 9, 1996, the reminder of
Petitioner's hearing rights contained in my show cause order, and
the contents of the relevant regulations codified at 42 C.F.R.
Part 498, Petitioner has chosen to rely on its July 29, 1996
request concerning the IDPH's June 4, 1996 letter.
Petitioner's response to my show cause order indicates that it
wants an adjudication of HCFA's initial determinations, but only
pursuant to its July 29, 1996 request. Petitioner argues, for
example, that "[w]hile Sharwood may be entitled to file an
additional request for a hearing under HCFA's September 9, 1996
correspondence [which imposed the CMP], this Tribunal currently
has jurisdiction over the claim . . . ." P. Response, 3.
Petitioner argued also that I should not be "[r]equiring the
Petitioner to refile a request for an appeal . . . . ." after
HCFA issued its CMP determination on September 9, 1996. P.
Brief, 7.
There is no legal or factual support for Petitioner's arguments.
The regulations make very clear that HCFA's initial
determinations become final and binding if no hearing request is
filed to challenge those determinations. 42 C.F.R. §§ 498.20(b),
498.70(a). Under the regulations, in order to challenge the
findings of noncompliance which led to HCFA's imposition of the
directed inservice training remedy, Petitioner needed to file,
within 60 days after its receipt of HCFA's August 9, 1996 notice,
a request for hearing by identifying the specific issues,
findings, or conclusions in dispute and by specifying the basis
for contending that the findings or conclusions are incorrect.
42 C.F.R. § 498.40(a), (b). In order to challenge the findings
of noncompliance which led to HCFA's imposition of the CMP
remedy, Petitioner needed to file, within 60 days after its
receipt of HCFA's September 9, 1996 notice, a request for hearing
by identifying the specific issues, findings or conclusions in
dispute, and by specifying the basis for contending that the
findings or conclusions are incorrect. Id. Petitioner has
failed to do either of these things.
Instead, Petitioner asserts hearing rights on the basis of a
document which does not refer to any initial determination made
by HCFA and which predated the issuance of any initial
determination by HCFA. I have never read the regulations as
entitling any affected entity to a hearing merely because it had
filed a document containing the words "request" and "hearing."
See, Canton Healthcare Center v. HCFA, DAB CR443 at 13 - 16. I
conclude in this case that Petitioner's filing of its July 29,
1996 letter did not entitle Petitioner to a hearing on the merits
of the determinations made by HCFA on August 9 and September 9,
1996.
2. Petitioner's arguments on judicial
economy and efficiency
Petitioner argues that, if it had filed a hearing request after
receipt of HCFA's August 9 or September 9, 1996 notices, a case
arising from such a hearing request would likely be assigned to
me as well. P. Brief, 7. Petitioner contends that, given the
foregoing possibility, my requiring it to file another hearing
request would contravene the goals of judicial efficiency and
economy. P. Brief, 7 - 8. I find that Petitioner's arguments
are immaterial and without merit. These arguments are based on
Petitioner's erroneous supposition that, in the present case, I
have jurisdiction to adjudicate the matters raised in
Petitioner's July 29, 1996 request for hearing, as well as those
determinations made by HCFA on August 9 and September 9, 1996.
As discussed elsewhere in this decision, I do not have the
authority to hear and decide the merits of those recommendations
challenged by Petitioner in its July 29, 1996 request for
hearing. Nor did Petitioner's filing of its July 29, 1996 letter
entitle it to a hearing on the merits of HCFA's initial
determinations dated August 9 or September 9, 1996. These
jurisdictional flaws created by Petitioner require dismissal of
the above-captioned action in its entirety.
3. Petitioner's references to letters
which acknowledged receipt of the July
29, 1996 request for hearing
Petitioner referenced also the fact that it has received written
acknowledgements of its July 29, 1996 request from HCFA as well
as the DAB. P. Response, 2. Reading of the documents cited by
Petitioner shows that acknowledgements of Petitioner's July 29,
1996 request were made thusly by HCFA and the Departmental
Appeals Board:
We [i.e., HCFA] are in receipt of your
legal counsel's request for a hearing
dated July 29, 1996. We have forwarded
his request for hearing to the
Departmental Appeals Board of the
Department of Health and Human Services.
That Department will contact you
concerning your request for hearing.
P. Ex. C at 3 (HCFA's August 9, 1996 notice);
As you are aware, we previously
acknowledged your July 29, 1996 request
for a hearing in our August 9, 1996
notice.
P. Ex. E at 2 (HCFA's September 9, 1996 notice); and
This is to acknowledge receipt by the
Civil Remedies Division of Petitioner's
July 29, 1996 request for hearing and the
related August 9, 1996 notice of adverse
action by the Health Care Financing
Administration (HCFA).[ 7/] Petitioner
based its request on a June 4, 1996
letter from the Illinois Department of
Public Health (included with the hearing
request) which recommended the actions
ultimately taken by HCFA.
Departmental Appeals Board acknowledgement letter dated August
13, 1996 (P. Ex. D, 1).
I do not find these acknowledgements to have any bearing on the
legal validity of Petitioner's request dated July 29, 1996. In
these documents, there were acknowledgements that Petitioner's
request had been received and processed. There was no
acknowledgment that Petitioner's request for hearing was legally
valid. No one employed by HCFA or the DAB had expressed any
legal opinions in these acknowledgement letters concerning
Petitioner's request. More importantly, it is the administrative
law judge's responsibility to consider and decide whether a
request for hearing should be dismissed. 42 C.F.R. § 498.70.
The actions described in these acknowledgement letters (i.e.,
HCFA's receiving and forwarding Petitioner's request to the DAB,
and the DAB's docketing it and assigning it to me) enabled me to
raise the issue of whether the hearing request should be
dismissed. The regulation specifies that I may raise on my own
initiative the issue of whether a hearing request should be
dismissed for cause. 42 C.F.R. § 498.70. In this case,
Petitioner may have attached undue significance to the letters
acknowledging the receipt and processing of its request for
hearing.
CONCLUSION
For the foregoing reasons, I conclude that dismissal of the
entire case is appropriate and necessary. Accordingly, I now
dismiss the hearing request and the case pursuant to the
alternative grounds specified in 42 C.F.R. § 498.70(a), (b), and
(c).
________________________
Mimi Hwang Leahy
Administrative Law
Judge
* * * Footnotes * * *
1. Petitioner has requested the opportunity to
present oral argument on whether the case should be dismissed.
P. Response, 3. I find no need for granting Petitioner's request
for oral argument. There has been no allegation or showing that
Petitioner has some argument which it cannot set down on paper.
2. Petitioner supports this argument in part by
attributing to me a view I did not express in Arcadia Acres, Inc.
and with which Petitioner disagrees. (According to Petitioner,
my decision in Arcadia Acres, Inc. "indicates" that a remedy
imposed by HCFA must actually be implemented in order for a
provider to acquire or retain hearing rights. P. Brief, 5.) My
decisions in Arcadia Acres, Inc. and like cases do not contain
such a view.
3. With their briefs, the parties have filed various
documents. Petitioner has filed those documents it has marked as
Petitioner's Exhibits (P. Ex.) A through F. I note that
Petitioner did not comply with the directions set forth in the
Civil Remedies Division Procedures concerning the marking of
exhibits. However, I have chosen not to require Petitioner to
re-mark the exhibits in order to avoid increasing the costs in
this litigation. HCFA has filed those documents it has marked
as HCFA Exhibits (HCFA Ex.) 1 through 4.
4. In addition, HCFA's August 9, 1996 letter notified
Petitioner as follows of the possibility that HCFA may in the
future impose a CMP, and that Petitioner will have appeal rights
if a CMP is imposed:
the IDPH has also recommended imposition of
a civil money penalty (CMP) in the amount
of $50 per day effective April 2, 1996.
We concur with the State's recommendation
and may impose the CMP. . . . . You will
receive a separate letter relating to
this CMP at a later date, including your
appeal rights, if the CMP is actually
imposed.
P. Ex. C (emphasis added).
5. In urging against dismissal of its case,
Petitioner argues in its brief that there are various differences
between the facts in Arcadia Acres and this case. (I dismissed
Arcadia Acres' hearing request because HCFA had rescinded all
remedies it had imposed against Arcadia Acres.) The differences
with this case pointed out by Petitioner, such as HCFA's actual
imposition of a CMP against Petitioner, are without any legal
consequence to my conclusion that Petitioner's July 29, 1996
request for a hearing on the IDPH's recommendations does not
entitle Petitioner to a hearing on those recommendations, or on
HCFA's August 9 or September 9, 1996 determinations to impose a
directed inservice training remedy and a CMP, respectively.
6. As noted earlier, one of my reasons for directing
Petitioner to show cause why the case should not be dismissed was
my impression that HCFA had rescinded all previously imposed
remedies by its letter dated September 9, 1996. I had stated
this impression in the show cause order in order to allow the
parties to comment on it. One of the documents submitted by
Petitioner in response to my order, P. Ex. E, establishes that my
impression was in error, as HCFA did not rescind the inservice
training remedy.
In its brief to me, Petitioner does not state whether it
wants to challenge HCFA's August 9, 1996 determination to impose
the directed inservice training remedy. I discuss the inservice
training remedy in this decision only because Petitioner's July
29, 1996 letter had objected to the IDPH's recommendation to
impose this remedy.
7. HCFA had transmitted a copy of its August 9, 1996
notice in forwarding Petitioner's July 29, 1996 request to the
Departmental Appeals Board. Petitioner's July 29, 1996 request
predated the existence of HCFA's August 9, 1996 notice, and
Petitioner's July 29, 1996 request states only that a copy of the
IDPH's June 4, 1996 letter was enclosed. P. Ex. B, 1.