SUBJECT:

Washington Heights Nursing and Rehabilitation Center,

Petitioner,

Health Care Financing Administration

DECISION

This case is before me following its reassignment to me from the docket of Administrative Law Judge Joseph K. Riotto. Having reviewed the pleadings and evidence in the case, I am now prepared to address the pending Motion for Summary Affirmance filed by the Health Care Financing Administration (HCFA) on July 30, 1999.

Since the filing of that Motion, an appellate panel of the Departmental Appeals Board (Board) issued an important ruling on a point crucial to the decision I issue here. The Board's ruling has been made a part of the record before me, and my decision today is reached in full awareness of the Board's position on a still-vexing question.

I decide that Washington Heights Nursing and Rehabilitation Center's (Petitioner's) February 5, 1998 hearing request did not comply with the content requirements set forth at 42 C.F.R. § 498.40(b) with respect to any survey conducted prior to December 23, 1997. Consequently, I grant HCFA's motion for summary affirmance of all issues related to the seven surveys between August 20, 1997 and November 20, 1997. Petitioner's February 5, 1998 hearing request preserved for adjudication only those issues related to its alleged noncompliance with Life Safety Code requirements, as revealed by the December 23 and 31, 1997 surveys. Furthermore, the civil money penalty (CMP) imposed by HCFA is sustained for the period beginning on August 20, 1997 and continuing through December 22, 1997.

I. Background

By letter dated December 10, 1997, HCFA notified Petitioner that Petitioner was not in substantial compliance with the federal participation requirements for nursing homes participating in the Medicare and Medicaid programs. HCFA referred to seven prior 1997 surveys of Petitioner in the letter. HCFA stated that on August 20, 1997, an abbreviated standard (complaint) survey was conducted by the Illinois Department of Public Health (IDPH), and it was determined that the facility was not in substantial compliance with federal program participation requirements. On September 11, 1997, the IDPH returned to the facility and conducted another abbreviated standard (complaint) survey and also completed a standard survey. On September 18, 1997, the IDPH conducted a Life Safety Code survey of the facility. HCFA stated that both of these visits resulted in a finding of continued noncompliance with program requirements. On September 29, 1997, another complaint survey was conducted which also revealed noncompliance. The IDPH subsequently accepted the facility's allegations of compliance and on October 17, 1997, a revisit was conducted which revealed continued noncompliance. On November 13, 1997 and November 20, 1997, the IDPH again revisited the facility. HCFA stated that these visits revealed that the facility remained out of compliance. As a result of the facility's noncompliance, HCFA informed Petitioner that it was imposing the following remedies against it: (1) directed inservice training, effective December 26, 1997; (2) denial of payment for new Medicare and Medicaid admissions (DPNA), effective December 26, 1997; and (3) a CMP in the amount of $150/day for each day that Petitioner was not in substantial compliance, effective August 20, 1997. Also, HCFA informed Petitioner that if it did not achieve substantial compliance with participation requirements by February 21, 1998, HCFA would terminate Petitioner's Medicare and Medicaid participation effective with that date.

HCFA additionally advised Petitioner of its right to request a hearing before an administrative law judge (ALJ) and explained that:

[a] request for a hearing should 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.

By letter dated January 30, 1998, HCFA informed Petitioner that the IDPH's revisits on December 23, 1997 and December 31, 1997, revealed that Petitioner remained out of substantial compliance with the Life Safety Code requirements found at 42 C.F.R. § 483.70(a), Life Safety from Fire (K67). As a result, HCFA advised Petitioner that the previously imposed remedies of DPNA and the CMP of $150/day remained in effect and would continue until Petitioner attained compliance or was terminated from the Medicare and Medicaid programs.

Further, HCFA informed Petitioner that because Petitioner remained out of compliance six months from the date of a finding of noncompliance with program requirements, its Medicare/Medicaid agreement would be terminated effective February 21, 1998.

By letter dated March 27, 1998, HCFA informed Petitioner that the IDPH's revisit on February 19, 1998, found that Petitioner was in substantial compliance with the participation requirements effective February 19, 1998. HCFA advised Petitioner that, as a result of the survey findings, the DPNA and CMP would both be discontinued effective February 19, 1998, and the remedy of termination from the Medicare and Medicaid programs would be rescinded. HCFA stated that the CMP of $150/day was imposed for the period beginning on August 20, 1997 and continuing through February 18, 1998, for a total amount of $27,450.

By letter dated February 5, 1998, Petitioner, through counsel, requested a hearing. The letter states in its entirety:

I represent (Petitioner) in the above captioned matter. The facility requests a hearing to dispute the noncompliance which has resulted in the denial of payment for residents admitted after December 26, 1997.

The surveys of December 23 and 31, which found that the facility was not in substantial compliance with regard to Life Safety Code matters are incorrect. The building is just over one year old and was built only after the Illinois Department of Public Health approved the plans. Further, the building only opened after undergoing a Life Safety Code survey by a representative of IDPH. Finally, IDPH's architect mistook an outer unrated wall as part of the shaft enclosure. In fact, there was another two hour shaft wall around the ducts. With regard to the other surveys leading up to December 23 and 31, the facility asserts that numerous surveyor errors led to a finding of lack of substantial compliance.

In May 1998, new counsel filed a notice of appearance on behalf of Petitioner.

In response to Judge Riotto's April 20, 1998 Order, Petitioner requested an unopposed stay of proceedings in June 1998, which Judge Riotto granted. He granted the parties subsequent stays, with the last stay ending on June 21, 1999. On that date, the parties jointly filed a notice of issues and set forth agreed-upon briefing deadlines. HCFA stated that it would file a motion to dismiss Petitioner's hearing request, and/or for summary adjudication.

On June 29, 1999, Judge Riotto issued a letter order advising counsel that he had adopted the parties' briefing schedule as set forth in their joint submission dated June 21, 1999.

Pursuant to the briefing schedule, HCFA timely submitted a brief in support of a motion for summary affirmance, with four exhibits. Petitioner timely submitted a response brief. HCFA filed a reply. Subsequently, Petitioner filed a motion for leave to supplement the record instanter with the Fairview Nursing Plaza decision, DAB No. 1715 (2000). Petitioner attached a copy of the decision to its motion, and labeled it as "Exhibit A." It is that decision to which I have made reference above, in the second paragraph of this decision.

Petitioner did not object to HCFA's exhibits. HCFA did not object to Petitioner's motion to supplement the record with the Fairview decision. Therefore, I receive into evidence HCFA Exhibits (Ex.) 1 - 4. I also grant Petitioner's motion and receive into evidence P. Ex. A.

II. Applicable law

The regulations at 42 C.F.R. § 498.40 promulgated by the Secretary of Health and Human Services specify that a request for a 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.

42 C.F.R. § 498.40(b).

An ALJ must examine 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 fact that an affected party has filed a document containing the words "request a hearing" within the 60-day filing period does not mean that the document satisfies the applicable regulatory requirements. See Birchwood Manor Nursing Center, DAB No. 1669 (1998), aff'd, Birchwood Manor Nursing Center v. Dep't of Health and Human Servs., No. 98-60695 (5^th Cir. June 29, 1999); Regency Manor Healthcare Center, et al., DAB No. 1672 (1998); Care Inn of Gladewater, DAB No. 1680 (1999).

42 C.F.R. § 498.40(c) provides that the ALJ may extend the time for filing a request for hearing for good cause shown. Under 42 C.F.R. § 498.70(c), the ALJ may dismiss a hearing request entirely or as to any stated issue if the affected party did not timely file a hearing request and the time for filing has not been extended for good cause.

III. Findings of fact and conclusions of law

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

1. 42 C.F.R. § 498.40(b) requires that a request for a hearing identify the issues and the findings of fact and conclusions of law with which the petitioner disagrees and specify the basis for the petitioner's position.

2. Petitioner's February 5, 1998 hearing request did not identify the issues and the findings of fact and conclusions of law with which it disagreed, with respect to any issues relating to the seven surveys between August 20, 1997 and November 20, 1997.

3. Petitioner failed to file a timely hearing request that complied with the requirements of 42 C.F.R. § 498.40(b) with respect to any issues relating to the seven surveys between August 20, 1997 and November 20, 1997, and those issues are properly dismissed pursuant to 42 C.F.R. § 498.70(c).

4. Petitioner's February 5, 1998 hearing request is legally sufficient to challenge only its alleged noncompliance with Life Safety Code requirements, as found at the December 23 and 31, 1997 surveys.

5. Petitioner 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.

6. Petitioner has not established a basis for a hearing on new issues pursuant to 42 C.F.R. § 498.56(a).

7. The CMP remedy imposed by HCFA is sustained for the period beginning on August 20, 1997 and continuing through December 22, 1997.

IV. Discussion

For the reasons set forth below, I conclude that Petitioner's February 5, 1998 hearing request was legally defective and failed to preserve for adjudication any issues relating to the seven surveys prior to December 23, 1997. Accordingly, I grant HCFA's motion for summary affirmance of all issues relating to the surveys between August 20, 1997 and November 20, 1997. Further, I sustain the CMP for the period beginning on August 20, 1997 and continuing through December 22, 1997. Petitioner's hearing request was legally sufficient to challenge only its alleged noncompliance with Life Safety Code requirements, as revealed by the December 23 and 31, 1997 surveys.

Based on the premise that a portion of Petitioner's hearing request did not satisfy the requirements of 42 C.F.R. § 498.40(b) and failed to preserve for adjudication any issues relating to the seven surveys prior to December 23, 1997, HCFA moved for summary affirmance of all issues related to those surveys. HCFA contends that Petitioner's February 5, 1998 hearing request "can be construed as challenging only one deficiency relating to" Life Safety Code violations in the December 23 and December 31, 1997 surveys. HCFA Brief (Br.), at 4.

HCFA asserts that the last sentence of Petitioner's hearing request, in which Petitioner refers to "other surveys," is cursory and vague. HCFA argues that, other than its alluding to the "other surveys," Petitioner did not specify any issues or identify a single finding of fact relating to the seven surveys between August 20, 1997 and November 20, 1997 with which it disagreed. HCFA contends further that Petitioner's hearing request is silent as to what might be the "basis" for a challenge to the surveys performed between August 20, 1997 and November 20, 1997.

In response to HCFA's arguments, Petitioner alleges that its hearing request is adequate to satisfy the requirements of 42 C.F.R. § 498.40(b). Petitioner argues that HCFA's interpretation of 42 C.F.R. § 498.40(b) is overly technical and requires Petitioner, "after receiving a cursory Notice of Imposition of Remedies," to submit a hearing request in the form of "an elaborately detailed fact pleading" or a "Bill of Particulars." Petitioner's Brief (P. Br.), at 4, 7. Petitioner points out further that different ALJs have interpreted the requirements of 42 C.F.R. § 498.40(b) differently. Finally, in the event that HCFA's motion is granted in whole or in part, Petitioner requests, in the alternative, either a hearing on new issues that impinge on its rights, in accordance with 42 C.F.R. § 498.56(a), or an extension of time to amend its hearing request based on good cause, in accordance with 42 C.F.R. § 498.40(c).

As appellate panels of the Board have emphasized, this tribunal should not lightly conclude that a petitioner has, contrary to clear requirements, failed to take advantage of its opportunity for hearing. See Fairview Nursing Plaza, Inc., DAB No. 1715 (2000), at 5. On the other hand, the Board's decisions mandate "strict adherence by petitioners to the regulations' requirements when filing hearing requests." Care Inn of Gladewater, Inc., DAB No. 1680, at 11; See Birchwood Manor Nursing Center, DAB No. 1669, at 10.

In Alden-Princeton Rehabilitation and Health Care Center, Inc., DAB No. 1709 (1999) and Fairview, the appellate panel set forth the process for assessing the sufficiency of a hearing request and the suitability of dismissal for failure to satisfy regulatory requirements. First, I must determine whether the language of Petitioner's hearing request, when read in the context of HCFA's notice, meets the requirements set forth in the plain language of 42 C.F.R. § 498.40(b). If it fails to meet one or both of the regulatory requirements, I should consider whether to exercise my discretion not to dismiss the case.

From the wording of Petitioner's hearing request, it is evident that Petitioner disputes the December 23 and 31 survey findings relating to Life Safety Code issues. In particular, Petitioner states that those surveys "are incorrect." Petitioner then advances three reasons why these findings are incorrect: (1) "[t]he building is just over one year old and was built only after [IDPH] approved the plans;" (2) "the building only opened after undergoing a Life Safety Code survey by a representative of IDPH;" and (3) the IDPH's architect made a mistake in surveying the building relating to the shaft enclosure. Petitioner's hearing request dated February 5, 1998. I conclude that the foregoing statements made by Petitioner in its February 5, 1998 hearing request provide sufficient detail to meet both of the content requirements set forth in the regulation. Petitioner's statements put HCFA on notice that it is contesting the Life Safety Code violations for which it was cited during the December 23 and 31, 1997 surveys and that its bases for disagreement with HCFA's findings relate to the circumstances surrounding the building's construction and opening as well as to architect error.

Moreover, HCFA apparently does not dispute that Petitioner's hearing request adequately challenges its allegations of Life Safety Code violations from the December 23 and 31, 1997 surveys, for it states in its brief that Petitioner's hearing request "can be construed as challenging only one deficiency relating to K67 violations in the December 23 and 31 surveys." HCFA Br., at 4.

I next determine whether Petitioner's February 5, 1998 hearing request has preserved for adjudication any issues relating to the seven surveys which occurred prior to December 23, 1997. In assessing the last sentence of Petitioner's hearing request against the regulatory requirements of 42 C.F.R. § 498.40(b), I conclude that the wording used by Petitioner is legally insufficient to preserve any issues for appeal relating to any surveys conducted prior to December 23, 1997. The last sentence of Petitioner's hearing request states:

[w]ith regard to the other surveys leading up to December 23 and 31, the facility asserts that numerous surveyor errors led to a finding of lack of substantial compliance.

First, I find that the above language, although vague and cursory, does minimally signal Petitioner's intention of contesting HCFA's findings, as required under 42 C.F.R. § 498.40(b)(2). By its assertion that "numerous surveyor errors led to a finding of lack of substantial compliance," Petitioner does set forth some sort of notice that it intends to contest some of HCFA's contentions.

However, other than barely achieving that purpose, the wording of the last sentence of Petitioner's hearing request falls far short of meeting the requirement of 42 C.F.R. § 498.40(b)(1). Petitioner fails to state with any specificity the issues and findings of fact and conclusions of law with which it disagrees.

As noted above, prior to the December 23, 1997 survey, there were seven surveys of Petitioner, which took place between August 20, 1997 and November 20, 1997. These surveys allegedly found Quality of Life, Quality of Care, and Life Safety Code deficiencies. Petitioner's vague, offhanded reference to "the other surveys leading up to December 23 and 31," fails to refer to any of the seven surveys between August 20, 1997 and November 20, 1997 by date.

Further, although there were numerous alleged Quality of Life, Quality of Care, and Life Safety Code deficiencies arising out of the surveys prior to December 23, 1997, Petitioner does not specify which deficiencies it is challenging. Petitioner has failed to articulate in any way what issues or findings from those surveys are in dispute. The last sentence of Petitioner's hearing request, other than referring to "numerous surveyor errors," provides no meaningful information as to what Petitioner is appealing with respect to those surveys which occurred prior to December 23, 1997.

While I intend no hyper-technical reading of Fairview, it is important that I explain precisely why it does not offer support to Petitioner here. When the appellate panel wrote that the use of the terms "all" and "each" fairly raised all findings and conclusions in each of HCFA's assertions of noncompliance, it was able to do so by treating the terms "all" and "each" as absolutes, as blanket assertions of an all-inclusive challenge to HCFA's entire case. The panel's language is unmistakable on this point:

[w]hile Fairview indeed used broad terms, "all" and "each," to convey that it intended to challenge the numerous findings and conclusions that HCFA relied on to impose the CMP, those terms were neither ambiguous nor so generalized as to be meaningless, as the ALJ concluded. To the contrary, Fairview made clear by its use of these terms, together with its reference to the CMP case number, that it wished to appeal each factual finding in every example supporting the deficiencies on which HCFA relied.

Fairview, DAB No. 1715, at 13.

The force of this analysis can be readily demonstrated by altering arguendo the exact language approved in Fairview, and by then testing the structural integrity of the appellate panel's argument in the context of that altered language. For example, if instead of using the absolute expression "all," the challenged hearing request had complained of "some" or "several" of HCFA's charges, it is difficult to imagine the panel believing that Fairview had "made clear by the use of these terms" that it intended to place in issue "each factual finding in every example . . . ." In the same way, had the Fairview hearing request stopped short of challenging "each example" and "each tag number cited," and contested "most" or "virtually all" of them, it is not easy to suppose that the appellate panel would have been comfortable in the analysis it set out immediately preceding the language I have quoted above. In short, the Fairview hearing request may have been neither careful nor precise pleading, but it was absolutely inclusive pleading, and I understand its absoluteness and its inclusiveness to have been at the heart of the appellate panel's rationale.

I find that Petitioner's challenge to "other surveys" is insufficient to place at issue any other findings in the other surveys between August 20, 1997 and November 20, 1997. The surveys between August 20, 1997 and November 20, 1997 revealed Quality of Life, Quality of Care, and Life Safety Code deficiencies. Petitioner's statement that it challenges the "other surveys" by asserting that "numerous surveyor errors led to a finding of lack of substantial compliance" fails to specify any factual issues or conclusions of law with which it disagrees. Unlike the hearing request in Fairview, the language used by Petitioner, which is cited in the preceding sentence, indicates only a vague, generalized challenge to "a finding of lack of substantial compliance" which resulted from "numerous surveyor errors." Petitioner's language, when tested against the appellate panel's Fairview analysis, did not in any way make clear, through use of the word "all" or otherwise, that it was putting at issue all of the findings of the surveys in question.

I therefore find that the wording of the last sentence of Petitioner's February 5, 1998 hearing request is legally insufficient within the meaning of 42 C.F.R. § 498.40(b)(1) to contest the seven surveys prior to December 23, 1997. Petitioner has failed to preserve for adjudication any issues relating to the surveys between August 20, 1997 and November 20, 1997.

I next consider whether I should exercise my discretion not to dismiss the portion of Petitioner's hearing request which refers to "the other surveys." 42 C.F.R. § 498.70 confers on ALJs the discretion to consider, when presented with extenuating circumstances in a particular case where the requirements of 42 C.F.R. § 498.40(b) were not met, whether the case should not be dismissed in its entirety or as to any particular issue. Alden-Princeton, DAB No. 1709, at 15. I may examine such factors as whether defects in the initial request for hearing were, in effect, subsequently remedied by the submission of additional documents; whether HCFA in effect waived its objection to the request in whole or in part; whether Petitioner may have reasonably concluded that its hearing request was sufficient in whole or part based on the course of the proceedings; and whether, and the extent to which, the intent of the Secretary's hearing request filing procedures were fulfilled. Id. at 17.

In the present case, Petitioner did not submit additional documents to supplement or amend its February 5, 1998 hearing request. Moreover, the record does not establish that HCFA has ever waived its objections to the adequacy of Petitioner's hearing request. There is nothing in this record that could have led Petitioner to believe that its hearing request was sufficient.

Petitioner contends that a finding that its hearing request is inadequate under 42 C.F.R. § 498.40 is not supported by the Board's caselaw. Petitioner by this claim ignores the Board's decisions in Birchwood Manor Nursing Center, Regency Manor Healthcare Center, and Care Inn of Gladewater, Inc.

Petitioner argues further that HCFA's interpretation of 42 C.F.R. § 498.40(b) is "at the extreme end" and that similarly worded hearing requests have been accepted unchallenged. As support for its position, Petitioner cites to the ALJ decisions in Life Care Center of Hendersonville, DAB CR542 (1998) and CarePlex of Silver Spring, DAB No. 1627 (1997), as having "more practical and realistic" interpretations of the requirements of 42 C.F.R. § 498.40.

However, in the Board's decision in Care Inn of Gladewater, Inc., an appellate panel of the Board distinguished Life Care Center of Hendersonville, stating as follows:

Care Inn argued that the ALJ in Life Care Center of Hendersonville, . . ., held that section 498.40(b)(2) does not require a "bill of particulars" in requesting a hearing. However, in that case there was no allegation that the petitioner's hearing request was fatally defective for failure to comply with the content requirements of section 498.40; rather, the question was whether failure to articulate precisely a legal defense in a hearing request would forever bar the petitioner from asserting that defense. Here, by contrast, Care Inn's request did not specify any basis for its disagreement with the noncompliance findings, and thus failed to meet the threshold standards for the content of hearing requests.

Care Inn, DAB No. 1680, at 9, 10.

In this case, as in Care Inn of Gladewater, Inc., and unlike Life Care Center of Hendersonville, HCFA has alleged that Petitioner's February 5, 1998 hearing request fails to comply with the content requirements of 42 C.F.R. § 498.40. Thus, the rationale in Life Care Center of Hendersonville is inapplicable to this case.

Similarly, the rationale of the decision in CarePlex does not support Petitioner's claim that its hearing request is adequate. In the CarePlex case, there was never any controversy that a valid hearing request challenging HCFA's noncompliance determination, as well as its CMP amount determination, had been filed timely by CarePlex. In that case, an appellate panel of the Board disapproved of the ALJ's construction of certain statements made by petitioner's counsel during a prehearing conference. The ALJ had found an intent to waive the issue of the reasonableness of the CMP amount, notwithstanding counsel's subsequent representation that there was no such intent. The appellate panel, after examining the substance of CarePlex's written submissions, including the content of its hearing request, determined that CarePlex had not intended to waive the issue of the reasonableness of the amount of the CMP. Contrary to what Petitioner claims, the CarePlex decision did not set any standard for evaluating what a hearing request must contain under 42 C.F.R. § 498.40(b).

In Regency Manor Healthcare Center, an appellate panel found that the ALJ properly dismissed the petitioners' hearing requests pursuant to 42 C.F.R. § 498.70(c). The panel stated:

[s]pecifically, we find that the ALJ's determination was based on the plain language of section 498.40(b), which mandates that a hearing request identify the specific issues and the findings of fact and conclusions of law that the petitioner disputes, as well as specify the basis for its position. Section 498.70(c), which authorizes dismissal for lack of a timely filed hearing request, clearly refers to the request for hearing described in section 498.40(b). Since Petitioners' letters failed to meet the requirements of section 498.40(b), the ALJ properly dismissed their cases pursuant to section 498.70(c).

Regency Manor, DAB No. 1672, at 2. The Board further stated that "the plain language of section 498.40(b) mandates that a hearing request not only identify 'the specific issues and the findings of fact and conclusions of law that the petitioner disputes,' but also that it 'specify the basis for its position.'" Regency Manor, at 9; See also Birchwood Manor Nursing Center, DAB No. 1669, at 2.

Furthermore, with respect to Petitioner's allegation that similar hearing requests have been accepted in the past, an appellate panel of the Board previously rejected this argument in Birchwood Manor:

past practice of HCFA and the ALJs is irrelevant to the legal question presented here. As indicated above, section 498.40(b) on its face requires that a request for hearing contain certain information. Even if the ALJs did not previously enforce this requirement or HCFA did not previously move to dismiss based on this requirement, that would not change its meaning.

Birchwood Manor, DAB No. 1669, at 12.

For the reasons discussed above, I conclude that no discretionary basis exists which warrants my accepting Petitioner's appeal concerning the seven surveys prior to December 1997.

In the event that I agree with HCFA's position, Petitioner, in the alternative, asserts that there exists good cause for me to grant an extension for it to file an amended request for hearing, in accordance with 42 C.F.R. § 498.40(c)(2). Petitioner states that it used its "best efforts" to comply with the requirements of the regulations. Petitioner notes that its hearing request was filed several months before the appellate panel's Birchwood Manor decision (DAB No. 1669) was issued. Therefore, Petitioner contends, it was "not aware of a possible requirement for much more expansive requests for hearing." Petitioner notes also that its current counsel did not file the hearing request at issue, but had filed "similar requests for hearing in the past, and has been given hearings in accordance with those requests." P. Br., at 9.

The term "good cause" for not filing a hearing request timely is not defined in the regulations. It has been held to mean a circumstance or circumstances that prevent a party from requesting a hearing timely and that are beyond the party's ability to control. Hospicio San Martin, DAB No. 1554 (1996). Petitioner's "good cause" argument has no merit. Petitioner has not described any circumstance beyond its ability to control which would have prevented it from filing a hearing request timely and in accordance with the requirements of 42 C.F.R. § 498.40. The Birchwood decision did not in any way change the content requirements, but merely upheld them. Moreover, as discussed above, the appellate panel in the Birchwood decision stated that the past practice of HCFA and the ALJs is irrelevant to the determination of whether Petitioner has filed an adequate hearing request within the meaning of the regulations. The plain language of 42 C.F.R. § 498.40(b) requires that a document contain certain information to constitute a hearing request. Despite Petitioner's attempts to suggest otherwise, the meaning of 42 C.F.R. § 498.40(b) has not changed.

I further note that Petitioner's current counsel began representing Petitioner in May 1998,⁽¹⁾ and although there has been ample time since then, Petitioner's counsel never filed a motion requesting leave to amend the February 5, 1998 hearing request. Only as part of its response brief is Petitioner's counsel now seeking leave to amend its hearing request. Petitioner submitted nothing prior to its response brief which indicated any desire to amend its hearing request. No good cause for extending the time for filing a hearing request has been demonstrated by Petitioner. I thus deny Petitioner's request to amend its February 5, 1998 hearing request.

As another alternative in the event I grant HCFA's motion for summary affirmance, Petitioner has requested a hearing on new issues that impinge on its rights, pursuant to 42 C.F.R. § 498.56(a). I deny this request. Petitioner has neither articulated any reason why I should exercise my discretion to provide a hearing on new issues, nor has it identified what "new issues" it wishes me to consider. Moreover, HCFA contends, and I agree, that Petitioner is not seeking to raise "new issues," but is attempting to litigate issues that it failed to preserve for appeal.

As discussed above, I have determined that Petitioner's hearing request was legally insufficient to contest the issues related to the seven surveys prior to December 23, 1997.

Petitioner cannot now use 42 C.F.R. § 498.56(a) as a mechanism to somehow "save" those issues and circumvent its own failure to comply with the requirements of 42 C.F.R. § 498.40(b). Petitioner has preserved for adjudication only the December 23 and 31, 1997 survey findings relating to Life Safety Code issues.

V. Conclusion

Petitioner's February 5, 1998 hearing request did not satisfy the requirements of 42 C.F.R. § 498.40(b) with respect to the seven surveys prior to the December 23, 1997 survey. I thus exercise my discretion under 42 C.F.R. § 498.70(b) and (c), and dismiss any issues relating to those surveys. Accordingly, HCFA's motion for summary affirmance of all issues relating to the seven surveys between August 20, 1997 and November 20, 1997, is granted. Petitioner's hearing request was legally sufficient to challenge only its alleged noncompliance with Life Safety Code requirements, as revealed by the December 23 and 31, 1997 surveys. In order to observe Fairview's underlying concern for the rights of petitioners, I will retain jurisdiction over the issue of the DPNA remedy insofar as it relates to any period for which I can reasonably construe to be at issue, consistent with this decision. The CMP imposed by HCFA is sustained for the period beginning on August 20, 1997 and continuing through December 22, 1997.

Richard J. Smith

Administrative Law Judge

1. Petitioner's current counsel filed a notice of appearance on May 21, 1998.