CASE | DECISION | JUDGE

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Nacogdoches Convalescent Center,

Petitioner,

DATE: June 27, 2000
                                          
             - v -

 

Health Care Financing Administration

 

Docket No.C-99-515
Decision No. CR680
DECISION
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Petitioner's motion to vacate my Order dismissing this case is DENIED, because Petitioner has not shown good cause for me to do so.

I. Background

By "Motion To Vacate Order Dismissing Case" dated February 1, 2000, Petitioner requested that I reconsider my Order dated January 21, 2000, dismissing this case for abandonment.

On April 28, 1999, Petitioner requested a hearing to contest the Health Care Financing Administration's (HCFA) imposition of a $6,100 civil money penalty (CMP) against it. This request was forwarded to my office by HCFA and was acknowledged by my office on June 15, 1999. On August 17, 1999, I stayed this case, at Petitioner's request, to allow the parties to pursue settlement negotiations. In my Order granting the stay, I informed Petitioner that on or before November 17, 1999, it was to confer with HCFA and file at least one of the documents specified in paragraph 2 of my Order of June 15, 1999. I further informed Petitioner that I was placing on it the burden to file a document in response to the Order. Petitioner did not comply with my Order. On December 2, 1999, to determine whether Petitioner had abandoned its request for a hearing, I issued an Order directing Petitioner to show cause why the case should not be dismissed for abandonment. I gave Petitioner 30 days from December 2, 1999 to respond. Petitioner did not do so, and I dismissed the case on January 21, 2000.

II. Arguments of the Parties

Petitioner does not dispute that it received my Order To Show Cause dated December 2, 1999. Instead, Petitioner states that due to an "unfortunate clerical error" the Order was "mis-filed prior to placing the deadline on calendar," and the response deadline lapsed without Petitioner's counsel's knowledge. Petitioner asserts that, but for the clerical error, it intended to file a response as ordered.

Petitioner asserts also that it should be reinstated because I did not give it notice in my Order Dismissing the Case of January 21, 2000 (as required by 42 C.F.R. § 498.71), that it had a right to request that my Order Dismissing the Case be vacated.

HCFA is opposing Petitioner's motion, arguing that although an administrative law judge (ALJ) may vacate a dismissal of a request for hearing if a petitioner files a request to that effect within 60 days from receipt of the dismissal notice and if the petitioner shows "good cause" for vacating the dismissal (42 C.F.R. § 498.72), Petitioner has not shown good cause in this case. Specifically, HCFA asserts that "good cause" has been interpreted by ALJs as a circumstance or circumstances beyond a petitioner's control. Sedgewick Health Care Center, DAB CR596 (1999). HCFA argues that avoidable human error does not constitute good cause. Id. HCFA asserts that a petitioner's failure to respond to an order to show cause due to an employee's clerical error is not a circumstance beyond a petitioner's control and thus does not constitute good cause. HCFA refers to the case of Mathis Nursing Home, DAB CR461 (1997), where the ALJ noted that the petitioner admitted the circumstances in question revolved around the failure by an employee to carry out the employee's assigned duties. The ALJ concluded that good cause did not exist because avoidable human error is not an event beyond the ability of the individual or a corporation to control. HCFA argued that the situation here is similar, in that Petitioner is asserting that an unidentified employee misfiled the Order to Show Cause before putting the deadline for filing a response on a calendar. HCFA argues that this was entirely within Petitioner's control and that Petitioner has not met the accepted standard for good cause which would be sufficient to re-instate the case.

HCFA asserts that, to date, Petitioner has made no attempt to contact HCFA regarding settlement, the ostensible basis for the August 17, 1999 stay (and states also that the only time that Petitioner did contact Petitioner was to find out if HCFA would oppose the initial request for a stay of the case). HCFA argues that this is further evidence that the case was abandoned, and another example of the inaction and lack of attention Petitioner paid to this case.

HCFA also asserts that any failure on my part to include the language regarding Petitioner's right to request reinstatement is merely harmless error, since Petitioner was not prejudiced or harmed because it was able to requestd reinstatement timely. 42 C.F.R. § 498.72.

III. Findings of Fact and Conclusions of Law

1. Petitioner has not shown good cause for me to vacate my dismissal of its hearing request.

I am denying Petitioner's request to vacate my dismissal of its hearing request and reinstate this case. I am authorized to dismiss a hearing request as "abandoned" if a petitioner fails to respond, within 10 days after I issue a "show cause" order, with a showing of good cause. 42 C.F.R. § 498.69(b)(2). Petitioner did not make such a showing in this case and I dismissed its request for hearing. Petitioner now wants me to vacate the dismissal and asserts that it has shown me good cause to do so. However, I agree with HCFA that "good cause" must be reserved for those cases where circumstances causing a petitioner to fail to comply with an ALJ order to show cause are beyond a petitioner's ability to control. It is a petitioner's responsibility to show that such good cause exists where a case has been dismissed for abandonment. Specifically, the petitioner must show that a circumstance or circumstances beyond its ability to control prevented it from complying with an ALJ order to show cause. See Sedgewick, at 3. In this case, Petitioner states that a clerical error caused it to miss the filing deadline contained in my Order to Show Cause dated December 2, 1999. I do not find that Petitioner's (or its counsel's) clerical error constitutes good cause. Petitioner's clerical or employee problems are entirely within its (or its counsel's) control, and I do not see any reason to reinstate Petitioner's hearing request on such grounds, especially given Petitioner's lack of attention to the case prior to the receipt of my Order to Show Cause (which Order was prompted by Petitioner's failure to comply with my August 17, 1999 Order staying the case). Petitioner cannot assert good cause based on such avoidable failures. Id. at 3.

2. The failure to include a reference to 42 C.F.R. § 498.71 in my Order Dismissing Case dated January 21, 2000, constitutes harmless error.

I also find that the failure to include language regarding Petitioner's right to request reinstatement here constitutes harmless error, and that Petitioner has not been prejudiced or harmed by lack of this citation. Petitioner timely submitted a request for reinstatement under the regulations, fulfilling the purpose of the regulatory requirement. The appropriate remedy for such failure would have been, had Petitioner's request not been submitted timely, for me to consider the request.

IV. Conclusion

Accordingly, Petitioner's motion requesting reconsideration of my Order Dismissing the Case for Abandonment dated January 21, 1999, is DENIED.

JUDGE
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Joseph K. Riotto

Administrative Law Judge

CASE | DECISION | JUDGE