Date: March 4, 1999
In the Case of:
Community Outreach Branch for the Recreation and Education of Seniors,
Petitioner,
- v. -
Health Care Financing Administration.
Docket No. C-99-067
Decision No. CR580
In this decision, I grant the motion of the Health Care Financing Administration (HCFA) to dismiss the hearing request of Petitioner, Community Outreach Branch for the Recreation and Education of Seniors, from a determination by HCFA to terminate Petitioner's Medicare participation as a community mental health center providing partial hospitalization services. I do so because the hearing request is untimely and because Petitioner has not shown good cause for its failure to make a timely hearing request.
Background
By letter dated October 20, 1998, Petitioner requested a hearing of HCFA's January 15, 1998 determination to terminate Petitioner's participation in the Medicare program.
On January 14, 1999, HCFA moved to dismiss Petitioner's request for a hearing on the basis that the request was not timely filed, submitting a memorandum of law and 4 exhibits (HCFA Ex. 1-4) to support its motion. In submitting its motion, HCFA stated that the motion was filed in accordance with Section 2B of my Order of November 17, 1998, but that HCFA had not conferred with counsel for Petitioner with respect to the filing of the motion. HCFA also stated that it would expect that Petitioner would be provided an opportunity to respond in writing to HCFA's motion.
On January 22, 1999, Petitioner filed a response to HCFA's motion. At the same time, Petitioner filed a motion to strike HCFA's motion to dismiss on the basis that HCFA's motion to dismiss did not comply with my November 17, 1998 Order.(1) HCFA filed a response to Petitioner's motion to strike and Petitioner filed a reply to HCFA's response. Although Petitioner moved to strike HCFA's motion to dismiss, it did not object to HCFA's exhibits and I receive HCFA Ex. 1-4 as evidence in support of HCFA's motion to dismiss.
I deny Petitioner's motion to strike HCFA's motion to dismiss. While HCFA did not confer with Petitioner prior to the filing of its motion to dismiss as requested in my Order, there was no prejudice to the Petitioner here. If Petitioner had not filed a response to the motion, I would have given leave to do so before I considered HCFA's motion. The directives of my Order were intended to promote expeditious resolution of matters before me. If I were to strike HCFA's motion to dismiss for the reasons Petitioner asks, it would only serve to delay this matter and require the exercise of unnecessary time and expense on everyone's part. I see no reason to do this. Moreover, there is little need to elevate form over substance here where Petitioner, in any event, has responded to the merits of HCFA's motion to dismiss.
After full consideration of the parties' submissions, I make findings of fact and conclusions of law (Findings) in support of my decision to dismiss Petitioner's hearing request. I state each Finding below, as a separate heading, and I discuss each Finding in detail.
1. Petitioner received notice of HCFA's determination on July 10, 1998 when Petitioner's counsel requested and received a copy of HCFA's January 15, 1998 notice of determination. In order to be entitled to a hearing, Petitioner was obligated to request one in writing within 60 days of its attorney's receipt of the notice.
The applicable regulations require that a party or its legal representative file a hearing request within 60 days from the receipt of HCFA's notice of initial determination. 42 C.F.R. § 498.40(a)(2). The date of receipt of the notice is presumed to be 5 days after the date on HCFA's notice unless there is a showing that it was, in fact, received earlier or later. 42 C.F.R. § 498.22(b)(3). The regulations also provide at 42 C.F.R. § 498.11 (a) and (b) that a party's representative may give and accept any notice or request pertinent to these proceedings and that a notice or request sent to the party's representative has the same force and effect as if it had been sent to the party.
In a letter dated January 15, 1998, HCFA informed Petitioner of its intent to terminate Petitioner's participation in the Medicare program, effective February 14, 1998, and advised Petitioner, that if it felt HCFA's determination was incorrect that it may request a hearing before an administrative law judge of the Board. The notice further advised Petitioner that the written request for a hearing must be filed within 60 days of the date it receives HCFA's notice. No one disputes that the January 15, 1998 notice was sent to an incorrect address and thus, was not received by Petitioner within 5 days of the date of the notice (the presumptive receipt date). However, on July 10, 1998, Mr. Wilson, by letter and telefax, informed HCFA that his firm had been retained to represent Petitioner and requested a copy of the notice of termination "purportedly issued to the provider in February, 1998." HCFA Ex. 2. The letter instructed HCFA to send the copy by telefax to expedite matters. HCFA Ex. 2. It is undisputed that HCFA sent a copy of that notice by telefax to Petitioner's counsel on July 10, 1998 and it was received that same date by Petitioner's attorney. Petitioner's Memorandum at 3; HCFA Ex. 3 at 1. In sending the notice on July 10, 1998 to Petitioner's attorney, as requested, HCFA complied with the notice requirements of 42 C.F.R. Part 498 and triggered a corresponding duty on Petitioner or its representative to file a written hearing request within 60 days of its attorney's receipt of the notice or, by September 8, 1998. 42 C.F.R. § 498.40(a)(2).
2. Petitioner is not entitled to a hearing inasmuch as it did not request a hearing within 60 days of its attorney's receipt of HCFA's notice.
On July 10, 1998, HCFA provided Petitioner's legal representative with notice of the determination which is at issue here. HCFA Ex. 3. That notice specifically informed Petitioner that a request for a hearing must be filed no later than 60 days from the date of receipt of the HCFA notice. Petitioner's legal representative did not request a hearing from this determination until October 20, 1998, well beyond 60 days from the date Petitioner's legal representative received the notice. Consequently, Petitioner is not entitled to a hearing on HCFA's determination because the request for hearing was not filed within 60 days of the July 10, 1998 receipt by Petitioner's attorney of HCFA's determination notice.
3. Petitioner has not established good cause for its failure to timely request a hearing and, absent such a showing, the hearing request must be dismissed.
If a party or its legal representative does not make a timely hearing request, that party is not entitled to a hearing. See 42 C.F.R. § 498.40(a)(2). An administrative law judge is authorized to dismiss a request for a hearing if the party requesting the hearing has not filed its request timely and has not established good cause for failing to file its request timely. 42 C.F.R. § 498.70(c).
A party requesting a hearing may receive an extension of time for filing a hearing request from an administrative law judge if that party establishes good cause for its failure. 42 C.F.R. § 498.40(c)(2) and 42 C.F.R. § 498.70(c). The regulation does not define "good cause," but "good cause" has been held to mean a circumstance or circumstances beyond a party's ability to control which prevented the party from making a timely hearing request. Hospicio San Martin, DAB CR387 (1995), at 2. While Petitioner's October 20, 1998 request for a hearing indicates that it was not filed within the 60 days of the date of the HCFA notice because it was sent to an incorrect address, the hearing request fails to explain or state any reason why this hearing request was not filed within 60 days of counsel's receipt of the notice on July 10, 1998. Petitioner's only argument is that the HCFA notice was legally defective and the 60-day filing deadline does not apply because HCFA sent the notice initially to an incorrect address. This argument, however, overlooks the fact that Petitioner's legal representative later received a copy of the notice. Petitioner has failed to show any intervening event or circumstance beyond its ability to control which prevented Petitioner or its legal representative from filing a hearing request within 60 days of counsel's receipt of the HCFA notice on July 10, 1998. Therefore, Petitioner has not established good cause for its failure to timely request a hearing.
Accordingly, I dismiss the hearing request pursuant to 42 C.F.R. § 498.70(c).
Steven T. Kessel
Administrative Law Judge
1. In my November 17, 1998 Order, I asked that, within 60 days of the Order, the parties confer and file at least one of four types of submissions: a joint motion to stay proceedings; a notice of issues under 42 C.F.R. § 498.70, 42 C.F.R. § 498.69, 42 C.F.R. § 498.78, together with a summary of the issues for summary judgment and a proposed schedule for the filing of motions, briefs, and supporting documents; a notice of issues for which summary judgment will be requested, together with a proposed schedule for filing motions, briefs and supporting documents; or a report of readiness to present evidence for adjudication of the case.