SUBJECT:

Community Care Center of Seymour,

Petitioner,

Health Care Financing Administration

I. Background

On February 3, 2000, Judge Leahy granted the Health Care Financing Administration's (HCFA) request to have until February 8, 2000, to file a motion to dismiss Petitioner's hearing request as untimely, and established a briefing schedule for the parties' submissions. The schedule provided that HCFA would file its motion to dismiss and supporting brief by February 8, 2000, and Petitioner would respond by March 8, 2000. On February 7, 2000, HCFA requested a 10-day extension of time to file its motion and brief, to which Petitioner had no objection. On February 16, Judge Leahy issued a ruling that granted HCFA's motion requesting an extension of time to file its motion to dismiss for good cause shown, gave HCFA until no later than February 18, 2000, to file its motion, and directed Petitioner to file its response to HFCA's motion no later than March 20, 2000. HCFA filed its motion and supporting brief under cover letter dated February 18, 2000. Subsequently, this case was assigned to me.

Petitioner filed no response to HCFA's motion and did not request an extension of time to file its response on or before the March 20^th deadline. The only submission received concerning this matter was a notice dated May 2, 2000 (received in this office on May 5, 2000), from Petitioner's counsel indicating their withdrawal from the matter and stating that Petitioner's new counsel would enter his appearance as counsel. No notice of appearance was received from any substitute counsel indicating representation of Petitioner. As a result, on May 8, 2000, I issued an Order to Show Cause, directing Petitioner to show good cause why this case should not be dismissed for abandonment pursuant to 42 C.F.R. § 498.69, and giving Petitioner until 10 days from its receipt of the order to respond. Petitioner responded on May 22, 2000.

II. Applicable Regulations

Under "Dismissal for abandonment," the regulations governing the conduct of ALJ hearings provide that--

(a) The ALJ may dismiss a request for hearing if it is abandoned by the party that requested it.

(b) The ALJ may consider a request for hearing to be abandoned if the party or its representative--

(1) Fails to appear at the prehearing conference or hearing without having previously shown good cause for not appearing; and

(2) Fails to respond, within 10 days after the ALJ sends a "show cause" notice, with a showing of good cause.

42 C.F.R. § 498.69.

III. Petitioner's Arguments

In requesting that its case not be dismissed for abandonment, Petitioner asserted that it was not informed of the deadline for Petitioner's response. Petitioner reported that it experienced a change of counsel, and that Petitioner's prior counsel withdrew from representing Petitioner in early April, but had not relinquished the client's files.

IV. Finding of Fact and Conclusion of Law

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

I am dismissing Petitioner's request for a hearing for abandonment. I am authorized to dismiss a hearing request if it is "abandoned" by the party requesting it. 42 C.F.R. § 498.69. I may consider a hearing request to be abandoned where a petitioner fails to appear at a hearing or prehearing conference without having previously shown good cause for not appearing, and then fails to respond, with a showing of good cause, within 10 days after I send a "show cause" notice to the petitioner. 42 C.F.R. § 498.69(b)(2). While the regulation is framed in terms of a party's failure to appear at a prehearing conference or hearing, the Departmental Appeals Board has held that "abandonment" under section 498.69(b)(1) is reasonably construed to include failure to appear in written form by failing to file prehearing documents that have been clearly ordered by an Administrative Law Judge (ALJ). Osceola Nursing and Rehabilitation Center, DAB No. 1708 (1999). Thus, I may dismiss Petitioner's request for a hearing based on its failure to timely respond to HCFA's motion as directed by Judge Leahy.

Although Petitioner timely responded to my Order to Show Cause, Petitioner failed to cite any reason for its failure to respond to HCFA's motion to dismiss that would constitute good cause, as that term has been interpreted by this Department's ALJs and the Board.

The regulations do not define "good cause" for the purpose of excusing a party's failure to timely request a hearing or to make a required written submission. However, good cause has been interpreted as meaning a circumstance beyond a party's ability to control. Nacogdoches Convalescent Center, DAB CR680 (2000); Hospicio San Martin, DAB CR387 (1995), aff'd, DAB No. 1554 (1996). Specifically, the petitioner asserting good cause must show that a circumstance or circumstances beyond its ability to control prevented it from complying with an ALJ order. Nacogdoches; see Sedgwick Health Care Center, DAB CR596, at 3 (1999).

Here, Petitioner's failure to respond to HCFA's motion to dismiss as directed by the ALJ provides a sufficient basis for me to conclude that Petitioner has abandoned its request for hearing.

Petitioner essentially argued that the failure to respond to HCFA's motion to dismiss within the time ordered by Judge Leahy resulted from its failure to be informed that a response was required, and intimated that such failure was a result of its change of counsel.

I find that the facts Petitioner pleaded do not constitute good cause. This Department's ALJs have held that circumstances comparable to those Petitioner described were not good cause sufficient to excuse the failure to timely request a hearing or to make required written submissions. Thus, the avoidable failure of counsel to discharge responsibilities on a petitioner's behalf or the miscommunication between a petitioner and its counsel have been found to constitute avoidable human error, rather than circumstances beyond the petitioner's ability to control. See Sedgwick; Jackson Manor Health Care, Inc., DAB CR545 (1998). Similarly, a clerical error committed by an employee of a petitioner, or an employee's failure to otherwise exercise his or her responsibility, have been held to be problems within a petitioner's control. See Nacogdoches; Mathis Nursing Home, DAB CR461 (1997). Under these holdings, delays or failures of communication caused by Petitioner's former counsel, or resulting from counsel's withdrawal, were entirely within Petitioner's control. It was Petitioner's ultimate responsibility, as the party in interest, to remain apprised of the status of its appeal, and to take whatever steps were necessary to continue its appeal once counsel withdrew. Petitioner cannot assert good cause based on such avoidable failures.

IV. Conclusion

Accordingly, Petitioner's request for hearing is DISMISSED for abandonment.

Joseph K. Riotto

Administrative Law Judge