I have decided that Midland Care Center ("Petitioner") did not file a proper request for hearing as required by 42 C.F.R. § 498.40(b). Consequently, I find that Petitioner has no right to a hearing and Petitioner's hearing request is DISMISSED, pursuant to 42 C.F.R. § 498.70(c).

On March 18, 1998, the Health Care Financing Administration (HCFA) notified Petitioner that, based on a February 13, 1998 survey of Petitioner's facilities by the Bureau of Facility Standards, Idaho Department of Health and Welfare (State Survey Agency), it was determined that Petitioner was not in substantial compliance with the federal participation requirements for nursing homes participating in the Medicare and Medicaid programs. Based on its finding that Petitioner was not in substantial compliance, HCFA advised Petitioner that it would impose the remedy of denial of payments for new admissions and that it would impose a civil monetary penalty (CMP) of $500 per day for the period of non-compliance beginning February 13, 1998. HCFA Notice at 1-2 (March 18, 1998). On May 1, 1998, HCFA notified Petitioner that, based on the period of non-compliance from February 13, 1998 until April 12, 1998, the total CMP penalty was $29,500. HCFA Notice at 1-2 (May 1, 1998). In both notices, HCFA notified Petitioner that it had a right to hearing. HCFA specifically notified Petitioner that "A request for a hearing must contain the information specified in 42 C.F.R. § 498.40(b) and must identify the specific issues and the findings of fact and conclusions of law with which you disagree. It should also specify the basis for contending that the findings and conclusions are incorrect."

In its June 25, 1998 request for a hearing, Petitioner stated:

. . .[W]e hereby request a hearing concerning both the enforcement actions and the non-compliance which led to the enforcement action.

Specifically, . . . [Petitioner] disagrees with the following determinations:

1. That the deficiencies cited in the survey concluded February 13, 1998 are valid;

2. That the deficiencies cited in the survey concluded on February 13, 1998 constituted actual harm, substandard quality of care and/or non-achievement of substantial compliance;

3. That the deficiencies cited in the survey concluded on February 13, 1998 constituted non-compliance with Medicare or Medicaid requirements of participation;

4. That the survey concluded on February 13, 1998 properly identified the scope and severity of non-compliance, if any;

5. That the remedies imposed by HCFA are appropriate to the level of non-compliance, if any, and

6. That the . . . [State Survey Agency] and/or HCFA provided sufficient notice of the non-compliance, if any.

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

It is the intent of . . . [Petitioner] by this letter to appeal any and all remedies currently imposed or proposed by HCFA or the State of Idaho as well as the above-referenced determinations by HCFA and/or the [State Survey Agency] . . . .

On July 9, 1998, I issued an Order setting forth certain procedures and deadlines for the parties to follow. Rule 2 of my Order permitted, inter alia, the filing of either a motion to stay proceedings for settlement purposes, a notice of issues for which dismissal would be requested, a notice of issues for summary judgment, or a report for readiness to present evidence for adjudication of the case. Rule 2 also imposed a filing deadline of 60 days from the date of my Order.

On September 8, 1998, HCFA timely submitted a Motion to Dismiss. In its Motion, HCFA contended that Petitioner's hearing request was inadequate to preserve for challenge any issue regarding the CMP or the requirements for participation. Specifically, HCFA contended that Petitioner's hearing request did not satisfy the requirements of 42 C.F.R. § 498.40(b). In its argument, HCFA relied upon the September 4, 1998 decision by an appellate panel of the Departmental Appeals Board (DAB) in Birchwood Manor Nursing Center, DAB No. 1669 (1998), aff'd, No. 98-6095 (5th Cir. June 29, 1999), which held that hearing notices which are deficient under 42 C.F.R. § 498.40(b) warrant summary dismissal.

Subsequently, Petitioner timely submitted its Memorandum in Opposition to HCFA's Motion to Dismiss. Petitioner maintains that 42 C.F.R. § 498.40(b) does not require skilled nursing homes to identify the conclusions of law with which it disagrees. It alleges that HCFA's interpretation is overly technical. It also maintains that its hearing request is sufficiently detailed to satisfy the requirements of 42 C.F.R. § 498.40(b). In this regard, Petitioner claims that it has adequately contested whether HCFA took its financial condition into account in imposing the CMP. Finally, Petitioner asserts that good cause exists under 42 C.F.R. § 498.40(c) to warrant an extension of time to amend its hearing request in order to formally state that HCFA did not properly consider Petitioner's financial condition under 42 C.F.R. § 488.434(f) in the imposition of the CMP.

The regulations at 42 C.F.R. § 498.40 promulgated by the Secretary of the Department of Health and Human Services 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 the 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) Extensions 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.

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

(1) Petitioner's request for hearing dated June 25, 1998, does not meet the specific requirements of 42 C.F.R. § 498.40(b).

(2) Petitioner has failed to file a timely hearing request.

(3) Petitioner has failed to establish good cause within the meaning of 42 C.F.R. § 498.40(c) which would warrant an extension of time for filing a hearing request.

There are three bases under which some or all issues of a case may be dismissed for cause: because the doctrine of res judicata is applicable due to an affected party's failure to timely request a hearing with respect to that determination or decision (42 C.F.R. § 489.70(a)); because the party requesting a hearing does not have a right to a hearing (42 C.F.R. § 498.70(b)); or 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 administrative law judge (ALJ) must look at the contents of the document which requested a hearing 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 requirements. See Birchwood Manor Nursing Center, supra; Regency Manor Health Care Center, et al., DAB No. 1672 (1998).

In the instant case, I find that Petitioner's "Request for Hearing" does not meet the specific requirements of 42 C.F.R. § 498.40(b) on any issue. An analysis of Petitioner's request establishes that it is deficient for purposes of the regulation. Petitioner states in its hearing request that it disagrees with HCFA's determination "that the deficiencies cited in the survey conducted February 13, 1998 are valid." (Item Number 1, letter of June 25, 1998). This is insufficient as a matter of law to comply with 42 C.F.R. § 498.40(b) which requires a petitioner to "identify the specific issues, and the findings of fact and conclusions of law" with which it disagrees. Petitioners's statement is overly broad and completely uninformative. It clearly does not satisfy the requirement of the regulation.

In its hearing request, Petitioner also disagrees with HCFA's conclusion that "the deficiencies cited in the survey concluded on February 13, 1998 constituted non-compliance with Medicare and Medicaid requirements of participation." (Item Number 3, letter of June 25, 1998). By such unspecific challenge, Petitioner seems to contend that none of the cited deficiencies violate the skilled nursing facility requirements in 42 C.F.R. Part 483. However, Petitioner, by its own admission, contradicts this contention. On October 29, 1998, Petitioner stipulated that it "is not challenging the determination by the Health Care Financing Administration of non-compliance with Medicare requirements for skilled nursing facilities at 42 C.F.R. Part 483 on February 13, 1998." Before this concession, Petitioner had presented an unspecific challenge to the entire statement of deficiencies based on a vague allegation that the deficiencies were not valid and did not constitute noncompliance with the Medicare requirements of participation.

Other aspects of Petitioner's hearing request are also deficient under the regulations as vague and because some matters for which it seeks review are not appealable. In its hearing request, Petitioner states that it disagrees with HCFA's determination "that the deficiencies cited in the survey concluded on February 13, 1998 constituted actual harm, substandard quality of care and/or non-achievement of substantial compliance." (Item Number 2, letter of June 25, 1998). Petitioner also states that it disagrees "that the survey concluded on February 25, 1998 properly identified the scope and severity of non-compliance, if any." (Item Number 4, letter of June 25, 1998). Again, such overly broad challenges are unspecific and uninformative as to the specific factual and legal matters which Petitioner seeks to contest. Additionally, by such language, Petitioner is apparently seeking to dispute the level of its non-compliance, a matter which is specifically made non-appealable by 42 C.F.R. § 498.3(b)(13). Petitioner can contend that it was in substantial compliance on February 13, 1998, but that is the only scope and severity issue that it could appeal as the CMP was already in the lower level of CMPs. See 42 C.F.R. § 488.438(a). In order to prove that there was no basis for assessing a CMP, Petitioner would need to prove that it was in substantial compliance with all of the requirements cited as deficiencies resulting from the February 13, 1998 survey. In fact, in its Stipulation Petitioner concedes that it was not challenging the non-compliance finding.

In its hearing request Petitioner states that it contests "that the remedies imposed by HCFA are appropriate to the level of non-compliance" (Item Number 5, letter of June 25, 1998) and that it is appealing "any and all remedies currently imposed or proposed by HCFA or the State of Idaho . . . ." Again, Petitioner has not alleged specific factual disagreements on this issue and has not set forth a legal basis for its challenge. There are other inadequacies in these challenges. Concerning Item Number 5, such issue is expressly made non-appealable by 42 C.F.R. § 498.3(d)(10)(ii). In its Stipulation, Petitioner concedes that it is not contesting the choice of remedies but does want to challenge the amount of the CMP. The request for a hearing however does not even mention this issue and does not contain any basis for contending that the amount is incorrect, as required by 42 C.F.R. § 498.40(b)(2). To the extent that Petitioner by such statements seeks to challenge the denial of payments for new admissions, a remedy imposed on March 18, 1998, the time to appeal on this issue had expired by the date of Petitioner's June 25, 1998 hearing request. Moreover, Petitioner concedes that it is not contesting this remedy. To the extent Petitioner seeks to challenge remedies imposed by the State of Idaho, this is not the proper forum.

Finally, in its hearing request Petitioner disagrees that the State of Idaho or HCFA "provided sufficient notice of non-compliance." Petitioner does not dispute that it received the voluminous report of the February 13, 1998 survey. It is not evident from Petitioner's abbreviated statement to what notice it refers. Such statement is unenlightening concerning the basis for its appeal.

From this review of the language of Petitioner's hearing request, it is evident that such request contains overly broad statements that are unenlightening concerning the basis for the appeal. In analyzing the hearing request, I find that it fails to state with any specificity the exact reason for the appeal on either a factual or legal basis. Petitioner contends that a finding that its hearing request is deficient is a "hyper-technical" reading of the regulations. The language of the regulations requires a petitioner to state with specificity the factual and legal basis for the appeal. The generalized statements contained in Petitioner's request do not satisfy this requirement as they are overly broad and require speculation concerning the exact nature of the challenge to HCFA's determinations. Petitioner also contends that the Federal Rules of Civil Procedure, specifically Rule 8(a) regarding Complaints should be used as the standard for gauging compliance. Such rules are not applicable to proceedings before this tribunal however. See 42 C.F.R. § 498.61.

In its defense, Petitioner contends that 42 C.F.R. § 498.40(b) does not apply to skilled nursing facilities. However, such regulation applies by its terms to "affected parties" and the term "affected party" is defined in 42 C.F.R. § 498.2 as a provider, which in turn is defined as including skilled nursing facility. Petitioner also maintains that the regulation authorizing the review of new issues, 42 C.F.R. § 498.48(c), is rendered useless by a strict interpretation of 42 C.F.R. § 498.40(b). The new-issues regulation cannot be used to circumvent the requirements of 42 C.F.R. § 498.40(b). The new-issues regulation arises when HCFA denies a request for an initial certification as a provider. When a new applicant is turned down, based on failure to meet the provider requirements, the applicant is entitled to a hearing. If another survey is conducted while the matter is before the DAB, the ALJ can consider the results of the new survey to determine if the provider is in compliance at that later date. This situation is not relevant in the present case.

Finally Petitioner has requested an extension of time under 42 C.F.R. § 498.40(c) in order to amend its hearing request and it alleges that there is good cause for an extension. It asserts that it reasonably believed that its initial hearing request complied with the requirements of the regulations. It asserts that the decision in Birchwood Manor Nursing Center, was decided after it submitted its hearing request and it should not therefore be held to its standards. I find no good cause for an extension. The decision in Birchwood Manor Nursing Center merely upheld the published regulatory requirements. In addition, the DAB's Appellate Division had already decided Hillman Rehabilitation Center, DAB No. 1161 (1997) which had similarly interpreted 42 C.F.R. § 498.40(b). By its overly broad challenge Petitioner has failed to adequately specify the legal and factual basis for its appeal. Contrary to Petitioner's assertions, such hearing request was insufficient to put HCFA or this tribunal on notice as to the specific matters it sought to appeal.

Based on the foregoing analysis, I have decided that Petitioner did not file a proper request for hearing as required by 42 C.F.R. § 498.40(b). Consequently, I find that Petitioner has no right to a hearing and Petitioner's hearing request is DISMISSED, pursuant to 42 C.F.R. § 498.70(c).