I decide that Alden-Princeton Rehabilitation & Health Care Center, Inc., (Petitioner) did not file a request for hearing complying with the requirements of 42 C.F.R. § 498.40(b) and that Petitioner has no right to a hearing pursuant to 42 C.F.R. § 498.70(c). Consequently, this case is dismissed.

On December 3, 1997, Petitioner requested a hearing to contest the remedies imposed by the Health Care Financing Administration (HCFA) in its notice letter dated November 14, 1997. HCFA's notice letter referred to findings of noncompliance made by the Illinois Department of Public Health (Illinois State survey agency) during three surveys (August 26, 1997, September 18, 1997, and October 2, 1997) which resulted in its determination to impose a civil money penalty (CMP) of $3,050 per day for one day that immediate jeopardy existed (July 17, 1997) and a CMP of $100 per day for 98 days of continuing non-compliance, from July 18, 1997 until October 24, 1997 (when a revisit survey by the Illinois State survey agency found Petitioner to be in substantial compliance).

By letter dated December 3, 1997, Petitioner requested a hearing. The request states, in pertinent part:

My clients believe that the violations cited by the surveyors were improperly found, and the level of the findings was excessive, and believe that they were not likely to cause any injury, harm or death to the resident, and believe that if deficiencies did exist, they were nothing other than minimal.

On January 14, 1998, I issued an order setting forth certain procedures and deadlines for the parties to follow. Paragraph 2 of my January 14, 1998 order required, inter alia, the filing of either a motion to stay proceedings, a notice of issues for which dismissal would be requested, a notice of issues for summary judgment, or a report of the parties' readiness to present evidence for adjudication of the case. Paragraph 2 also imposed a filing deadline of 60 days from the date of the order.

On March 23, 1998, I granted the parties' joint request for a stay of the proceedings to pursue settlement negotiations. When such negotiations proved unsuccessful, both parties filed reports concerning their readiness for hearing. In HCFA's report, HCFA stated that:

HCFA contends that Petitioner's hearing request did not specify any factual findings with which it disagrees, but that because the hearing request does refer to causing "injury, harm, or death to the resident," the inference may be fairly drawn that the facility contests the one deficiency finding that it caused immediate jeopardy to a resident on July 17, 1997, and that the facility takes the position with respect to this finding that if it was deficient, then it posed no more than minimal harm to this resident. (Citation and footnote omitted.) Petitioner disagrees that its hearing request only put this one deficiency finding at issue. HCFA proposes to file a Motion to Limit the Scope of the Proceedings no later than August 24, 1998 and respectfully requests a prompt prehearing conference on this issue.

HCFA Readiness Report, at 1 - 2.

On September 8, 1998, HCFA timely submitted two motions, a "Motion To Dismiss in Part" (Motion to Dismiss) and a "Motion for Summary Affirmance of the CMP for July 17, 1997" (Summary Affirmance Motion). In its Motion to Dismiss, HCFA contended that Petitioner's hearing request was too abbreviated to preserve for challenge any issue other than, at most, an issue relating to whether the CMP relating to the July 17, 1997 incident should be in the upper range of CMPs, due to HCFA's contention that immediate jeopardy existed. Specifically, HCFA contended that Petitioner's hearing request was not sufficient under 42 C.F.R. § 498.40(b) to put at issue whether it was in substantial compliance with program requirements as, "[w]ith the exception of its oblique allusions to the immediate jeopardy finding, [Petitioner] has not identified a single finding of fact with which it disagrees, much less has it specified a basis for disagreement." Motion to Dismiss, at 6. On September 10, 1998, HCFA sought to supplement its motion by citation to the September 4, 1998 decision of an appellate panel of the Departmental Appeals Board (DAB) in Birchwood Manor Nursing Center, DAB No. 1669 (1998), which held that if a party's request for hearing does not constitute a hearing request as specified pursuant to 42 C.F.R. § 498.40(b), an administrative law judge (ALJ) might dismiss the case pursuant to 42 C.F.R. § 498.70(c). Further, in its brief in support of the Summary Affirmance Motion, HCFA maintained that no facts were in dispute to show that the facility was able to provide appropriate medical care on July 17, 1997 and that the CMP based on the immediate jeopardy citation was justified.

On November 13, 1998, Petitioner timely submitted its "Reply Brief in Opposition to HCFA's Motion to Dismiss in Part" (Petitioner's Reply Brief to Motion to Dismiss) and its "Response to HCFA's Motion for Summary Affirmance of the CMP for July 17, 1997" (Petitioner's Response Brief to Summary Affirmance Motion). In Petitioner's Reply Brief to Motion to Dismiss, Petitioner asserts that its hearing request contained all necessary elements as required by 42 C.F.R. § 498.40(b). In particular, by use of the term "minimal" in that request, Petitioner argues that it referenced the HCFA State Operations Manual Grid which is used in weighing the severity of the violation. It also contends that HCFA, by its Motion for Summary Affirmance regarding the July 17, 1997 incident, acknowledged that the hearing request was adequate to challenge the CMP relating to the July 17, 1997 incident, and that the request is sufficient to encompass the remaining deficiency citations as well. Finally, Petitioner asserts that HCFA's notice letter was "not definitive and less than specific in describing the findings of the survey," (Petitioner's Reply Brief to Motion to Dismiss, at 4) thus implying that because HCFA's notice letter was deficient Petitioner was unable to determine the issues or prepare an adequate hearing request.

On December 11, 1998, HCFA submitted its "Reply Brief in Support of HCFA's Motion to Dismiss in Part" (HCFA's Reply Brief regarding Motion to Dismiss), and on January 11, 1999, it submitted its "Reply Brief in Support of HCFA's Motion for Summary Affirmance of the CMP for July 17, 1997" (HCFA's Reply Brief regarding Summary Affirmance Motion). In HCFA's Reply Brief regarding Motion to Dismiss, HCFA re-iterates that Petitioner's hearing request was deficient in its language. It also asserts that HCFA's notice letter, by referencing the Illinois State survey agency surveys, put Petitioner on notice concerning the deficiencies at issue. Finally, it contends that it viewed Petitioner's hearing request as potentially raising a challenge concerning the July 17, 1997 incident only "[a]fter several conversations with Petitioner in which Petitioner raised its concerns about the immediate jeopardy finding in this case." HCFA's Reply Brief regarding Motion to Dismiss, at 4. HCFA also maintains that even if it did view Petitioner's hearing request as adequate on this one issue, such concession is not binding on the ALJ. Petitioner filed a short sur-reply to HCFA's Reply Brief regarding Motion to Dismiss on January 6, 1999.

The regulations promulgated by the Secretary of Health and Human Services at 42 C.F.R. § 498.40 specify that a request for an administrative hearing must be made as follows:

(a) Manner and Timing of Request.

(1) an affected party entitled to a hearing under § 498.5 may file a request for hearing . . .

(2) The affected party or its legal representative
. . . must file the request in writing within 60 days from receipt of the notice of the initial, reconsidered, or revised determination unless that period is extended in accordance with paragraph (c) of this section . . .

(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.

(c) Extension of time for filing a request for hearing. If the request was not filed within 60 days --

(1) The affected party or its legal representative
. . . may file with the ALJ a written request for extension of time stating the reasons why the request was not filed timely.

(2) For good cause shown, the ALJ may extend the time for filing the request for hearing.

Further, an ALJ may dismiss a hearing request under 42 C.F.R. § 498.70(c) if "the affected party did not file a hearing request timely and the time for filing has not been extended."

I make the following findings of fact and conclusions of law:

(1) Petitioner's request for hearing dated December 3, 1997, does not meet the specific requirements of 42 C.F.R. § 498.40(b).

(2) Petitioner has failed to file a timely hearing request. See 42 C.F.R. §§ 498.40(b) and 498.70(c).

There are three bases under which some or all issues of a case may be dismissed for cause: 1) because the doctrine of res judicata is applicable, due to the fact that a previous determination or decision with respect to the rights of the affected party on the same facts and law pertinent to the same issue or issues has become final, either by judicial affirmance or, without judicial consideration, because of the affected party's failure to timely request a hearing with respect to that determination or decision (42 C.F.R. § 489.70(a)); 2) because the party requesting a hearing is not a proper party to or does not have a right to a hearing (42 C.F.R. § 498.70(b)); or 3) because the affected party failed to file a request for hearing within the 60-day period and the time for filing has not been extended (42 C.F.R. § 498.70(c)). Thus, an ALJ must look at the contents of a document purporting to be a hearing request in order to determine whether the right to a hearing has accrued with respect to all, some, or none of the issues stated in the document. Consequently, the mere filing of a document titled "Request for Hearing" within the 60-day filing period does not mean that the document satisfies the applicable regulatory requirement. See Birchwood, DAB No. 1669; Regency Manor Healthcare Center, et. al., DAB No. 1672 (1998); Care Inn of Gladewater, DAB No. 1680 (1999).

In the instant case, I find that Petitioner's letter dated December 3, 1997 does not meet the specific requirements of 42 C.F.R. § 498.40(b) on any issue. Petitioner's cursory reference to disagreement with the findings of the surveyors is not sufficient under the regulations to put at issue whether it was in substantial compliance with program requirements. The regulation governing hearing requests mandates that a nursing home requesting a hearing be specific about what it intends to place at issue. A petitioner must identify the specific issues and the findings of fact and conclusions of law with which it disagrees and it must specify the basis for contending that the findings and conclusions are incorrect. In the decision in Orchard Grove Extended Care Center, DAB CR541 (1998), the ALJ concluded that the following language did not constitute a request for a hearing under the regulation: "[m]y client challenges both the factual findings on which the citations were based, as well as the legal basis for imposition of the penalty." Orchard Grove, DAB CR541, at 16. Petitioner's hearing request is similarly abbreviated and generalized. It has not identified in any informative manner a single finding of fact with which it disagrees, and it has failed to specify a basis for disagreement. Petitioner's request does not identify which of the dozens of factual assertions in the three statements of deficiencies, prepared by the Illinois State survey agency surveyors after the August 26, September 18, and October 2, 1997 surveys, it disagrees with, nor does it specify any legal issues.

My review of HCFA's imposition of a CMP is limited to two issues: 1) whether there was a basis for imposing the remedy; and, if so, 2) whether the amount of the CMP is reasonable under the factors specified in 42 C.F.R. § 488.438(f). From Petitioner's generalized request, it is evident that it failed to raise either of these issues in its December 3, 1997 letter. Not only is a general challenge to "factual findings" insufficient to challenge the basis for imposing a CMP, but the regulations expressly preclude review by this tribunal of the level of HCFA's deficiency findings, unless a successful challenge would affect HCFA's decision to impose a CMP in the upper range for immediate jeopardy deficiencies. 42 C.F.R. § 498.3(b)(13).

In its defense, Petitioner contends that its hearing request identified the specific issues, findings of fact, and conclusions of law with which it disagrees because Petitioner referred to HCFA's notice letter. Petitioner contends that this reference was sufficient to preserve all of the factual findings listed therein. However, incorporating HCFA's notice letter does not serve to specify factual findings, because not every fact in the notice letter is subject to review in this forum. Instead, the regulation imposes an affirmative obligation on the facility to identify factual findings so that the tribunal can appropriately rule on whether further proceedings are necessary, and also so that HCFA can prepare to present its prima facie case at hearing.

Indeed, Petitioner's arguments as to scope and severity are an example of why a facility cannot meet the first requirement of 42 C.F.R. § 498.40(b) simply by referring to the notice letter. Petitioner contends that the statement it made in its hearing request that "the level of the findings was excessive" was meant to raise the issue of scope and severity, and Petitioner maintains that this abbreviated comment effectively incorporated the scope and severity grid from the State Operations Manual. (Petitioner's Reply Brief to Motion to Dismiss, at 3). However, this issue may be outside the scope of my review. If an ALJ determines that a facility was not in substantial compliance with a participation requirement, the ALJ may not review HCFA's scope and severity determination unless that determination has an effect on the amount of the CMP that HCFA may impose. 42 C.F.R. §§ 498.3(d)(10)(ii) and 498.3(b)(13).

Petitioner also contends that it met the second requirement, that it must specify the basis for its disagreement, when it asserted in its hearing request that "the violations cited by the surveyors were improperly found." Petitioner maintains that this statement was a reference to the purported disagreement between two Illinois State survey agency surveyors who investigated the complaints that the Illinois State survey agency received after the July 17, 1997 incident. It cannot be deduced, however, from such generalized language, that Petitioner intended to raise this issue by the cited phrase. The record reflects that there were multiple surveys, in August, September, and October 1997, and it is impossible to tell from Petitioner's abbreviated language which surveys it was challenging, much less the specific findings of any of the surveys it sought to contest.

Petitioner also argues that 42 C.F.R. § 498.40(b) should be interpreted so that the test is whether its hearing request was sufficient to allow HCFA to prepare a defense or filing in response. On this basis, Petitioner's request clearly falls short. HCFA, in fact, moved to dismiss and also raised concerns about the adequacy of the hearing request as it may have related to the July 17, 1997 incident. As the Board recognized in Birchwood, the Part 498 regulations do not contemplate any further submission by a petitioner to identify disputed issues in a case prior to hearing. Petitioner's hearing request does not satisfy the test it espouses.

Petitioner also contends that HCFA, in the course of its submissions before me, conceded that Petitioner's hearing request might be construed as raising the July 17, 1997 immediate jeopardy citation and also asserts that, by extension, its request was sufficient to preserve other challenges. First, I note that HCFA expressed concern regarding this issue and evidently agreed to litigate it only after discussions with Petitioner. HCFA's Reply Brief regarding Summary Affirmance Motion, at 4. In my review, I have found that Petitioner's abbreviated request is insufficient to raise any challenge, as such request is not in compliance with the requirements of the regulations. I am not bound by any concession made by HCFA, but I am bound by the regulations. Section 498.40(b) of 42 C.F.R., on its face, requires that a hearing request contain certain information and, if it does not, such request is subject to dismissal regardless of past practice or concessions. See Birchwood, DAB No. 1669, at 12.

Finally, Petitioner maintains that HCFA's notice letter was vague. I disagree. That notice letter specifically referred to the notice letters that Petitioner had received from the Illinois State survey agency. The Illinois State survey agency notices included the statements of deficiencies for the surveys, which identified the residents involved and the factual circumstances of the deficiencies. Therefore, Petitioner cannot reasonably claim that HCFA's notice prevented it from filing a hearing request that satisfied the requirements of 42 C.F.R. § 498.40(b).

As I have found that Petitioner did not file a request for hearing complying with the requirements of 42 C.F.R. § 498.40(b), and that Petitioner has no right to a hearing pursuant to 42 C.F.R. § 498.70(c), this case is DISMISSED.