Date: January 21, 1999
In the Case of:
Southwood Convalescent Center,
Petitioner,
- v. -
Health Care Financing Administration.
Docket No. C-96-384
Decision No. CR566
In this decision, I dismiss the above-captioned case. Based on my review of the record, I make the following formal findings of fact and conclusion of law:
1. Petitioner's July 17, 1996 letter does not constitute a hearing request within the meaning of 42 C.F.R. § 498.40(b).
2. Dismissal is appropriate pursuant to 42 C.F.R. § 498.70(c).
This case was docketed on August 9, 1996 under number C-96-384, upon the receipt of a letter from Petitioner dated July 17, 1996.
Recently, in response to my order dated October 13, 1998 and a letter to counsel dated September 28, 1998, the parties submitted information to me concerning how they wished to proceed in this case. As noted in the September 28, 1998 letter to counsel, this case had undergone a lengthy inactive period during which the parties could have reached a settlement if they had been so inclined. Therefore, under paragraph 2 of my October 13, 1998 order, the parties were limited to submitting notices of motions for dismissal, remand, or summary judgment, or to filing a report of their readiness to present evidence for adjudication. I made the parties aware that I would no longer consider another motion for a stay of proceedings under subpart (A) of paragraph 2.
By correspondence dated December 12, 1998, Petitioner, through its counsel, submitted a report of its readiness to present evidence for adjudication. However, counsel noted in its report of readiness that he has had difficulty obtaining documents for this administrative proceeding. He explained that the nursing facility had been sold to new owners, and the operations and management of the facility has been transferred to new entities as well.
In response to Petitioner's filing, the Health Care Financing Administration (HCFA) contacted my office by electronic mail on December 22, 1998. HCFA, by its counsel, stated that it was "surprised" by Petitioner's filing, since in various communications Petitioner's counsel had confirmed that he did not have the necessary documents to determine whether the case should move forward. HCFA questioned whether an additional period of stay may be requested jointly by the parties.
Having been apprised by both parties that Petitioner's counsel lack the relevant documents for this case, I have reviewed all of the documents of record in this case in order to determine an appropriate course of proceeding. Based on my review, I have determined that this case must be dismissed for the reasons which follow.
This action was docketed upon the receipt of a letter dated July 17, 1996 from Petitioner's President.(1) Petitioner's July 17, 1996 letter in this case referred to and attached the "Order Dismissing Case" I had issued on February 27, 1996 in another case earlier filed by Petitioner against HCFA (Docket No. C-96-087). In the Order Dismissing Case, I noted that a prehearing conference had been held in Docket No. C-96-087 on February 26, 1996, and:
During the conference, Petitioner requested to withdraw its hearing request. The Health Care Financing Administration did not object.
Accordingly, I ORDER that this case be dismissed.
Southwood Convalescent Center, Docket No. C-96-087, Order Dismissing Case (Feb. 27, 1996).
After the time had expired for appealing or moving to vacate my February 27, 1996 Order Dismissing Case in Docket No. C-96-087 (see, 42 C.F.R. §§ 498.82(a)(2), 498.72), Petitioner then submitted its letter dated July 17, 1996, which was used to docket the present case before me.
Petitioner's July 17, 1996 letter states as follows:
Reference is made to [HCFA's] letter dated May 23, 1996, indicating the imposing of civil money penalties against Southwood Convalescent Center, Inc.
In the event this case is not dismissed as ordered by Judge Mimi Hwang Leahy (Copy of order dismissing case [dated February 27, 1996 in Docket No. C-96-087] enclosed herein), then we request a hearing in this matter.
There is nothing else contained in the body of Petitioner's July 17, 1996 letter. Very clearly, this letter is not a request for hearing within the meaning of 42 C.F.R. § 498.40. Birchwood Manor Nursing Center, DAB 1669 (1998); Regency Manor Healthcare Center, Nederland Healthcare Center, Coronado Healthcare Center, and Paris Healthcare Center, DAB 1672 (1998).
The regulations specify that a request for hearing must be filed within 60 days of receiving HCFA's notice letter and must "[i]dentify the specific issues, and the findings of fact and conclusions of law with which the affected party disagrees; and . . . . [s]pecify the basis for contending that the findings and conclusions are incorrect." 42 C.F.R. § 498.40(a) and (b). There are obvious disparities between what the regulations require and what Petitioner, by its President, had filed within 60 days of having received HCFA's May 23, 1996 letter. Moreover, it appears from the content of the July 17, 1996 letter that Petitioner was improperly attempting to negate the effects of its voluntary withdrawal of another case after the allowable time for doing so had expired. See, 42 C.F.R. §§ 498.82(a)(2), 498.72.
The record contains no motion to amend the July 17, 1996 letter or to withdraw the putative hearing request. Even though the July 17, 1996 letter was written by Petitioner's President, Petitioner subsequently obtained counsel in December 1996.
The threshold jurisdictional problem created by Petitioner's July 17, 1996 letter should have been noted by the parties and their counsel long before now. A motion for dismissal or for summary judgment could have been filed at any time during the past several years. Even my letter of September 28, 1998 and my order of October 13, 1998 permitted the filing of these motions. Nevertheless, Petitioner has declared itself ready to present evidence at an on-merit hearing even though its counsel has had difficulty obtaining the necessary documents from the facility's new owner. HCFA's counsel is willing to help secure an additional period of stay, to enable Petitioner's counsel to obtain the documents necessary for deciding the correct course of action for Petitioner. However, I see no need for the parties to spend more of their time or resources on this case.
It is clear that no request for hearing was filed or filed timely by Petitioner. Additionally, by referencing the February 27, 1996 dismissal order, the July 17, 1996 letter submitted by Petitioner does not indicate that Petitioner had a right to seek a hearing as an entity adversely affected by an outstanding, appealable, initial determination from HCFA. Accordingly, I dismiss Petitioner's putative request for hearing dated July 17, 1996 and this case pursuant to subpart (c) of 42 C.F.R. § 498.70.
Mimi Hwang Leahy
Administrative Law Judge
1. When letters referencing an entity's desire for hearing are received, the Civil Remedies Division of the Departmental Appeals Board routinely use them as the basis for docketing new cases so that an administrative law judge may be assigned to resolve any jurisdictional or other issues.