Below, pursuant to 42 C.F.R. § 498.70(c), I grant the motion to dismiss filed by the Health Care Financing Administration (HCFA).

HCFA's motion is based on the following lines of argument:

1. the document sent by Petitioner to request a hearing in this forum (P.'s Nov. 30, 1998 letter) fails to meet the content requirements of 42 C.F.R. § 498.40(b);

2. no matter when filed, a document which fails to meet the content requirements of 42 C.F.R. § 498.40(b) cannot be considered a request for hearing that is timely filed under 42 C.F.R. § 498.40(a); and

3. administrative cases that have been docketed pursuant to the filing of an untimely request for hearing are subject to dismissals under 42 C.F.R. § 498.70(c).

The last two propositions accurately reflect settled legal principles. Birchwood Manor Nursing Center, DAB No. 1669 (1998); aff'd, Birchwood Manor Nursing Center, No. 98-60698 (5th Cir.)(June 29, 1999); Regency Manor Healthcare Center, et al, DAB No. 1672 (1998); Care Inn of Gladewater, Inc., DAB No. 1680 (1999). The first proposition presents a disputed question of fact.

In opposing HCFA's motion, Petitioner argues that its November 30, 1998 letter is not so lacking that it should be construed as being outside of what the regulation permits. It points out correctly that the adequacy of any hearing request should be decided on a case-by-case basis. P.'s Brief in Opposition, 2. However, as the parties are well aware, this "case-by-case" analysis is comprised of comparing what Petitioner has stated in its hearing request, with those requirements specified in 42 C.F.R. § 498.40(b).

Having undertaken this analysis, I reject HCFA's argument that Petitioner's November 30, 1998 letter is deficient when measured against the first component of 42 C.F.R. § 498.40(b). See HCFA's Mem. in Supp. of Mot., 7 - 10. However, I agree with HCFA that Petitioner's November 30, 1998 letter does not constitute a hearing request in that it fails to satisfy the second requirement of 42 C.F.R. § 498.40(b).

FFCL 1: Petitioner's November 30, 1998 Letter satisfies the first requirement of 42 C.F.R. § 498.40(b).

The first component of the regulation merely requires identification of "the specific issues, and the findings of fact and conclusions of law with which the affected party disagrees. . . ." 42 C.F.R. § 498.40(b)(1)(emphasis added). The requesting party need not articulate a disagreement with every factual finding or legal conclusion made by HCFA. Nor does the regulatory component quoted above expressly limit the asserted disagreements to those which are within the administrative law judge's authority to resolve.

It is true that the regulations specify those issues which may (or may not) be decided on their merits in this forum. See, e.g., 42 C.F.R. § 498.3. It is also true, as noted by HCFA, that in cases such as this one, where a civil money penalty (CMP) has been imposed, a petitioner is entitled to an evidentiary hearing on only two matters: whether HCFA had a basis for imposing the CMP, and whether the CMP amount is reasonable. HCFA's Mem. in Supp. of Mot., 7 (citing Capitol Hill Community Rehabilitation and Specialty Care Center, DAB No. 1629 (1997)). HCFA has placed before me arguments that Petitioner's November 30, 1998 Letter fails to raise either of these two issues of fact. However, I do not interpret the regulation as requiring only the presentation of factual controversies which are within the administrative law judges's authority to decide on their merits.

A petitioner may seek relief in the courts after it has exhausted its administrative remedies. See, e.g., 42 U.S.C. § 1320a-7a(e). It is appropriate practice for an attorney to raise issues or arguments in pleadings solely for the purpose of preserving them for later proceedings in a higher forum. If an otherwise valid hearing request contains matters which are beyond the administrative law judge's authority to resolve, HCFA may file motions in limine or motions for partial summary judgment in response. Therefore, even though the November 30, 1998 Letter filed by Petitioner herein seeks to dispute various matters which have been committed to HCFA's discretion by regulation⁽¹⁾, I cannot conclude that Petitioner has failed to meet the requirement for identifying "the specific issues, and the findings of fact and conclusions of law with which the affected party disagrees. . . ." 42 C.F.R. § 498.40(b)(1).

FFCL 2: Petitioner's November 30, 1998 Letter does not satisfy the second requirement of 42 C.F.R. § 498.40(b).

I find merit in the portion of HCFA's motion which relates to the second requirement of 42 C.F.R. § 498.40(b):

(2) Specify the basis for contending that the findings and conclusions are incorrect.

The word "and" appears between subsections (1) and (2) of 42 C.F.R. § 498.40(b). Therefore, a document cannot be considered a hearing request within the meaning of that regulation if it only specifies disagreements with HCFA's findings or conclusions under 42 C.F.R. § 498.40(b)(1).

In this case, Petitioner has not satisfied the requirement of 42 C.F.R. § 498.40(b)(2). Its November 30, 1998 Letter states only:

[Petitioner's] basis for contending that HCFA's determinations are incorrect may include, but are [sic] not limited to: observations of employees and/or consultants for Beverly, documentation maintained by Beverly, the opinions of expert witnesses, if any, and any other relevant information which may be obtained in the future.

What Petitioner provided in its letter is a list of the general types of evidence (documentary and testimonial) and types of witnesses (fact witnesses, experts, and consultants) any party may offer at any evidentiary hearing. Petitioner's list is generic in nature. Its words convey no information of substance that is unique to this case. There is not even any effort to correlate any particular dispute with the type of evidence or witness Petitioner might introduce. Petitioner's intent to remain non-specific is further evidenced by its insertion of terms such as "may include, but are not limited to," "if any" and "any other relevant information which may be obtained in the future." November 30, 1998 Letter at 3 (emphasis added). These words do not even indicate that, as of November 30, 1998, the drafter of the request letter had knowledge of any specific information in support of its asserted disagreements with HCFA's findings or conclusions.

There are important policy considerations which underlie 42 C.F.R. § 498.40(b) and the need to enforce its requirements as written. Birchwood Manor, DAB No. 1669 at 10 - 11. An entity wishing to commence litigation in this forum should be seeking resolution to only those issues which are meritorious, and it should proceed in good faith, and in an efficient and economical manner. Id. The two requirements of 42 C.F.R. § 498.40(b), written in the conjunctive, do not permit the entity requesting a hearing to omit mention of those facts or legal authorities which would show the genuineness of any disagreement asserted. Thus, I cannot interpret the regulatory requirement for "specify[ing] the basis for contending that the findings and conclusions are incorrect" as meaning that Petitioner may state, as it had in its November 30, 1998 Letter, that its disagreements with HCFA's findings or conclusions may be (or may not be) linked to unspecified testimonial or documentary evidence from unidentified persons, or to information which Petitioner did not know as of yet.

FFCL 3: No extension of time for filing a valid hearing request has been attained by or granted to Petitioner.

Petitioner cannot set aside, sua sponte, the time limit imposed by 42 C.F.R. § 498.40 with the use of words intimating that the information required by 42 C.F.R. 498.40(b)(2) might be obtained or provided in the future. Petitioner had undergone the survey process, had likely communicated with the surveyors throughout the survey, and had received a detailed report of the survey findings. Within the 60 days provided by 42 C.F.R. § 498.40(a), Petitioner should have been in a position to set forth in a hearing request the facts or legal authorities necessary to show that the asserted disagreements are genuine. However, if the 60-day period had been insufficient for Petitioner's needs, Petitioner could have moved for an extension of the filing period with a showing of good cause pursuant to 42 C.F.R. § 498.40(c). See, e.g., Birchwood Manor, DAB No. 1669 at 20 - 21. It did not do so then, and it has not done so to date. More than seven months have elapsed since Petitioner filed its defective request for hearing.

Petitioner has not yet filed an appropriate motion for leave to add more information to its November 30, 1998 Letter.⁽²⁾ Nothing in the regulation permits the administrative law judge to extend the deadline for filing a valid hearing request on his or her own initiative. 42 C.F.R. § 498.40. Nor does the administrative law judge have the discretion to search for good cause or order any extension in the absence of "a written request for extension of time [filed by a petitioner] stating the reasons why the request was not filed timely." 42 C.F.R. § 498.40(c).

FFCL 4: No timely hearing request has been filed by Petitioner.

Applying the settled legal interpretations set forth in cases such as Birchwood Manor and Regency Manor Healthcare Center, et al, supra, to the facts before me, I conclude that Petitioner has failed to timely file any request for hearing.

This action is hereby dismissed pursuant to 42 C.F.R. § 498.70(c) for the reasons set forth under FFCLs 1 through 4.

1. See portion of text quoted by HCFA at page 6 of its brief in support of its motion to dismiss. In that quoted portion of Petitioner's November 30, 1998 Letter, Petitioner disagrees with, inter alia, the appropriateness or reasonableness of the "remedies imposed or proposed," the scope and severity level of the noncompliance determined by the surveys, and whether "the remedies imposed or proposed are appropriate to the level of noncompliance. . . ."

The regulations do not authorize reviews of "proposed remedies." Nor do the regulations authorize review of HCFA's exercise of its discretion in the selection of remedies. 42 C.F.R. § 488.408(g)(2). The regulations also prohibit review of the level of noncompliance determined by HCFA, except where a successful challenge on the issue would affect the range of the CMP collectable by HCFA. 42 C.F.R. § 498.3(b)(13). In this case, the level of noncompliance would not be reviewable by me because the CMP imposed by HCFA was drawn from the lower of the two possible ranges.

2. In the conclusion of its brief, Petitioner stated as follows, "[S]hould this ALJ determine that Beverly's letter does not satisfy the requirements of 42 C.F.R. § 498.40, the petitioner respectfully requests that an extension of time be granted to allow Beverly an opportunity to amend its request for hearing in order to fulfill the requirements for such request as interpreted by this forum." P.'s Brief in Opposition, 7 - 8. However, nowhere has Petitioner made the good cause showing required by 42 C.F.R. § 498.40(c). Good cause is not shown by Petitioner's failure to take timely action or by the defects in its November 30, 1998 letter. The risk of dismissal of Petitioner's November 30, 1998 letter as an invalid hearing request does not constitute good cause for extending the filing period.