SUBJECT:

Alden Nursing Center - Morrow,

Petitioner,

Health Care Financing Administration

This case is before me on remand from an appellate panel of the Departmental Appeals Board (DAB). By order dated July 5, 2000, the appellate panel remanded the case with instructions to provide the parties an item-by-item inventory of the administrative record, and to admit any documents purportedly missing from the record, most particularly, a letter dated February 26, 1999.⁽¹⁾ I am directed to reconsider the request for dismissal by the Health Care Financing Administration (HCFA) in light of any newly admitted material and in light of the appellate decisions in Alden-Princeton Rehabilitation and Health Care Center, Inc., DAB No. 1709 (1999), and Fairview Nursing Plaza, Inc., DAB No. 1715 (2000), and the appellate panel rulings in Four States Care Center, Docket No. A-99-66 (June 7, 1999), and Rehabilitation & Healthcare Center of Tampa, Docket No. A-99-95 (August 16, 1999). Alden Nursing Center - Morrow, DAB No. 1734 (2000).

By letter dated July 17, 2000, the parties were provided an item-by-item inventory of the administrative record.

I have reconsidered this case in accordance with the appellate panel's instructions. I grant HCFA's motion to dismiss, and I deny Petitioner's motion to amend its October 14, 1996 letter requesting a hearing.

I. BACKGROUND⁽²⁾

Petitioner, Alden Nursing Center-Morrow, is a nursing facility certified to participate in the Medicare and Medicaid programs as a provider of services. The Illinois Department of Public Health completed a Medicare certification survey of the facility on April 19, 1996, and revisit surveys on June 14, 1996, and August 15, 1996. Based on its review of the survey findings, HCFA determined that the facility was not in substantial compliance with the Medicare participation requirements, and, in a letter dated October 8, 1996, advised the facility that it was imposing a civil money penalty (CMP) in the amount of $24,200. The letter also advised Petitioner of its right to request a hearing no later than 60 days after the date it received HCFA's notice, and specifically directed Petitioner's attention to 42 C.F.R. § 498.40, the regulation that dictates the requirements for filing a valid hearing request.

In a letter dated October 14, 1996, Petitioner requested a hearing. The body of the letter consisted of the following two paragraphs:

Please be advised that we are the attorneys for Alden Nursing Center - Morrow in the above captioned matter. We are in receipt of a letter concerning the imposition of certain money penalties which you carry under the above Case No. [9705HSQ003, a number assigned by HCFA].

By this letter we herewith request a hearing on the imposition of the civil money penalties, and I herewith enter my appearance on behalf of my client in this matter.

The case was assigned to Administrative Law Judge (ALJ) Leahy for hearing and decision. At Petitioner's request, and in the absence of objection, ALJ Leahy stayed the matter to allow the parties to pursue settlement negotiations. Apparently, settlement efforts were protracted, and eventually broke down. On February 10, 1999, HCFA asked ALJ Leahy to issue an order requiring Petitioner to show cause why its hearing request should not be dismissed as untimely for failure to comply with the content requirements of 42 C.F.R. 498.40 (b).

In response, Petitioner's counsel mailed in a set of documents, received March 1, 1999, containing two separate cover letters, each dated February 26, 1999. However, before these documents were filed in the administrative record, counsel's office called to say that they had been mailed in error, and were rescinded.⁽³⁾ In its place, Petitioner immediately filed a second set of documents, received March 3, 1999. This set contained only one cover letter dated February 26, 1999. Improperly, Petitioner did not advise HCFA counsel that it had withdrawn its first set of documents, and did not send HCFA a copy of the second set, even though, in filing the second set, Petitioner indicated that HCFA counsel had been copied. See Health Care Financing Administration's January 29, 2001 letter.

The documents received on March 3, 1999, which were filed in the administrative record, included: 1) a one sentence cover letter dated February 26, 1999, addressed to ALJ Leahy, (2) a document captioned MOTION TO REACTIVATE AND SET THIS CAUSE FOR HEARING AND FOR LEAVE TO FILE AN AMENDED HEARING REQUEST (Motion for Leave to Amend), and (3) a stack of documents marked as Attachments 1 through 11.

On October 18, 1999, the ALJ issued a decision denying Petitioner's motion to amend its October 14, 1996 letter requesting a hearing, and granting HCFA's motion to dismiss. Alden Nursing Center - Morrow, DAB CR622 (1999). Petitioner appealed, and, on July 5, 2000, an appellate panel remanded the case for further proceedings. Alden Nursing Center - Morrow, DAB No. 1734 (2000).

Pursuant to a briefing order issued on remand by ALJ Leahy, the parties simultaneously filed initial and response briefs. Prior to the filing of the response briefs, ALJ Leahy left the agency, and the matter is now before me.

HCFA's initial brief was accompanied by two exhibits marked as HCFA Exs. 1 - 2. HCFA Ex. 2 is accompanied by two attachments marked as Attachment 1 and Attachment 2. Attachment 1 is a copy of the subsequently rescinded documents served on HCFA on March 1, 1999. These include the February 26, 1999 cover letter which, in its July 5, 2000 remand decision, the appellate panel characterized as missing from the record. The rescinded submission also includes another February 26, 1999 cover letter, a Motion for Leave to Amend, and a stack of unmarked attachments. Petitioner's initial brief was accompanied by four exhibits marked as P. Exs. 1 - 4. In the interest of creating a complete record, and notwithstanding any objections by the parties, I am admitting HCFA Ex.1, HCFA Ex. 2 with attachments, and P. Exs. 1 - 4 into the record.

In addition, the appellate panel's remand order specifically stated that I may consider as part of the record documents filed by the parties in conjunction with Petitioner's appeal. In the interest of having a complete record before me, I am considering the entire appellate record on remand.

II. DISCUSSION

Much confusion surrounds this case, but when the extraneous issues are swept aside, this is a straightforward matter, presenting the following questions:

1. Did Petitioner timely file a valid hearing request within the meaning of 42 C.F.R. § 498.40?

2. If not, should I exercise my authority under 42 C.F.R. § 498.70(c) to dismiss this case?

No one disputes that Petitioner's initial filing did not meet the regulatory standard. I therefore conclude that Petitioner failed to file timely a valid hearing request. I have considered the totality of the particular circumstances surrounding Petitioner's facially defective hearing request, and conclude that dismissal under 42 C.F.R. 498.70(c) is appropriate.

I begin my analysis with the following propositions:

(1) The regulations have meaning. Neither Fairview, Alden - Princeton, nor any other pronouncement of the DAB has invalidated the explicit requirement that requests for hearing meet the content requirements of 42 C.F.R. § 498.40(b), nor the good cause requirement, set forth in 42 C.F.R. § 498.40(c), for extending the time to file an untimely hearing request. My discretion to dismiss an untimely hearing request under 42 C.F.R. § 498.70(c) must be exercised in a manner consistent with the explicit provisions of 42 C.F.R. § 498.40(c) which require a showing of good cause.

(2) The decisions in Fairview and Alden-Princeton did not reverse or alter earlier decisions in Birchwood Manor Nursing Center, DAB No. 1669 (1998), Regency Manor Healthcare Center, et al., DAB No. 1672 (1998), and Care Inn of Gladewater, DAB No. 1680 (1999). See Fairview at 3.

(3) All of these authorities - the regulations and the appellate decisions - must be read as consistent with each other.

1. Petitioner did not file a timely hearing request because its initial filing does not meet the content requirements of 42 C.F.R. § 498.40(b).

Section 1866(h) of the Social Security Act (Act) authorizes administrative review of determinations that a provider fails to comply substantially with the provisions of the regulation "to the same extent as is provided in section 205(b) [of the Act]." Under section 205(b), the Secretary must provide reasonable notice and opportunity for a hearing "upon request by [the affected party] who makes a showing in writing that his or her rights may be prejudiced" by the Secretary's decision. Act, section 205(b) (emphasis added).⁽⁴⁾ The request for review "must be filed within sixty days" after receipt of the notice of HCFA's underlying determination. Act, section 205(b) (emphasis added).

By regulation promulgated pursuant to the Act, only documents that meet specified criteria satisfy the statutory requirement for a written hearing request. 42 C.F.R. § 498.40(b) requires that the hearing request:

(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.

Though a procedural requirement, this regulation carries the same weight as any substantive requirement, and should be enforced with comparable vigor. See Schweiker v. Hansen, 450 U.S. 785, 790 (1981) ("A court is no more authorized to overlook the valid regulation requiring that applications be in writing than it is to overlook any other valid requirement for the receipt of benefits.") Since the information specified in 498.40(b) is mandatory, "it necessarily follows that a document lacking this information is not a request for hearing." Birchwood at 9.

Here, Petitioner's initiating document, an October 14, 1996 letter, enters counsel's appearance and states:

By this letter we herewith request a hearing on the imposition of the civil money penalties. . . .

Petitioner did not challenge on appeal ALJ Leahy's determination regarding the legal sufficiency of its initial filing, and there seems no serious dispute that this document does not comport with regulatory requirements, and therefore does not constitute a hearing request within the meaning of 42 C.F.R. § 498.40(b). See Petitioner's Request for Review filed on appeal at 13. ("admittedly the initial hearing request did not detail the disputed issues . . .") The October 14, 1996 initiating document does not identify the specific issues in the case, nor the findings of fact and conclusions of law with which Petitioner disagrees. The document does not specify any basis for contending that HCFA's findings and conclusions were incorrect.

Since 498.40(b) requires specific information, a document lacking that information does not constitute a request for hearing within the meaning of the regulations. Because Petitioner did not file a timely hearing request, dismissal is authorized under 42 C.F.R. § 498.70(c). Birchwood at 9 - 10, Alden-Princeton at 13 - 14, Fairview at 4.

Although conceding the deficiencies of its initial filing, Petitioner characterized as a "strained and contrived finding. . . outside the plain meaning of the code provisions" ALJ Leahy's decision that no valid hearing request had been timely filed. Petitioner's Request for Review filed on appeal at 3. But this is the Secretary's position, as definitively articulated by the appellate panel in Birchwood. That ruling has not been disturbed in any subsequent appellate decisions. Indeed, in Alden-Princeton, the appellate panel reaffirmed its reasoning in Birchwood, and rejected an argument identical to the one Petitioner raises here:

Alden-Princeton wrote that the ALJ's reasoning that if the content of a request is insufficient, the request is rendered untimely "is a strained and contrived finding and is outside the plain meaning of the code provisions." Request for Review at 3. As the Board wrote in Birchwood, however, "the term 'hearing request' in section 498.70(c) clearly refers to the request for hearing described in section 498.40(b), since it is a basic canon of statutory (and hence regulatory) construction that identical terms within the same statute (or regulation) bear the same meaning. [Citation omitted.] Thus, section 498.70(c) not only authorizes dismissal where an otherwise acceptable hearing request is filed after the 60-day deadline in section 498.40(a)(2) but also where a document filed within the 60 days does not constitute a request for hearing within the meaning of section 498.40(b)

Alden-Princeton at 14.

Petitioner did not timely file a valid hearing request. I next consider whether I should nevertheless decline to dismiss.

2. I exercise my authority to dismiss this case under 42 C.F.R. 498.70(c).

Alden-Princeton stands for the proposition that the ALJ has some discretion not to dismiss a case, even where Petitioner did not file a valid hearing request within 60 days. Noting the "serious consequences of a dismissal," the appellate panel inferred in the "may" language of 42 C.F.R. § 498.70 ("the ALJ may dismiss a hearing request. . .") that this regulation confers on ALJs:

the discretion to consider, when presented with extenuating circumstances in a particular case where the requirements of section 498.40(b) were not met, whether the case should not be dismissed in its entirety or as to any particular issue.

Alden-Princeton at 15.

I emphasize what the Alden-Princeton decision does not say. First, Alden-Princeton does not say that I am authorized to hear an appeal in the absence of a valid hearing request. The statute is clear that, without a valid hearing request, I am simply not authorized to hold a hearing. I am aware of no circumstance in which an ALJ or an appellate panel has held that a petitioner is entitled to hearing in the absence of a valid hearing request. Act, sections 1866(h) and 205(b). If, having filed a document that does not meet the criteria of 42 C.F.R. § 498.40(b), Petitioner nevertheless wants to pursue its appeal, it must still file a valid hearing request. If the 60-day filing deadline has elapsed, Petitioner must ask to extend the time for filing.

Second, Alden-Princeton does not invalidate 42 C.F.R. § 498.40(c), which requires good cause for extending the time to file. Petitioner may correct a facially defective request by filing an amended hearing request, and, if the time for filing has elapsed, ask (by written request) that the ALJ extend the time for filing. The regulations dictate the standard the ALJ must apply in determining whether to extend: the time for filing may only be extended upon a showing of good cause. 42 C.F.R. § 498.40(c). In Alden-Princeton, the appellate panel articulated some of the factors that I may look to in making my good cause determination, but I do not read Alden-Princeton as inferring into 498.70(c) a more lenient standard than the "good cause" standard specifically articulated in 498.40(c). To do so would have the practical effect of negating the explicit provisions of 42 C.F.R. § 498.40(c). After all, if a more lenient standard allows Petitioner to maintain its appeal in the absence of a valid, timely filed hearing request, no good cause showing would ever be required.

In Alden-Princeton, the appellate panel remanded the case, even though it agreed that the initial hearing request was invalid, because the ALJ there failed to consider the appropriateness of dismissal within the broader context of the case, which is where the good cause finding lies, if it is to be found. Looking at the broader context of this case, I next consider whether good cause exists to extend the time for filing.

a. Petitioner has not shown good cause for extending the time for filing its hearing request under the discretion granted me by 42 C.F.R. § 498.40(c).

Alden-Princeton and the remand order in this case point to rulings in Four States and Rehab of Tampa as presenting situations where the ALJ declined to exercise his authority to dismiss. I note first that the scope of the Four States and Rehab of Tampa rulings is quite narrow, deciding only whether an appellate panel should take an interlocutory appeal. In both cases the appellate panels issued orders declining to remove the case from the ALJ, so neither was decided on the merits.

In Rehab of Tampa, HCFA sought removal of the case based only on the ALJ's remarks as to actions he might take in future cases. The appellate panel found this insufficient grounds for removal, and, citing its ruling in Four States, suggested that the ALJs have wide latitude in making the good cause determination.

The ALJ ruling in Four States, which motivated HCFA's request for an interlocutory appeal, provides some guidance as to the type of circumstances in which an ALJ might appropriately decline to exercise the authority to dismiss a particular request for hearing. Four States Care Center, Docket No. C-98-344 (May 4, 1999). Those circumstances are light years from the circumstances presented here. In Four States, the petitioner filed its deficient hearing request pro se. The petitioner subsequently obtained counsel, who, obviously recognizing the deficiencies, filed a detailed "supplement" to the hearing request. The supplement was late, but it satisfied the requirements of 498.40(b). HCFA did not move to dismiss until long after the adequate request had been filed. Based on those circumstances, the ALJ could reasonably find good cause to extend the time for filing. Certainly, in determining good cause, it is not uncommon to give special consideration to the circumstance of an unrepresented party. The Four States ALJ essentially thought that HCFA had behaved in an unreasonable manner that unfairly disadvantaged the petitioner. Such findings could constitute good cause, but I make no such findings here.

Here, in contrast, Petitioner has been represented by experienced counsel throughout these proceedings, and had no legitimate reason to believe that its request satisfied the regulations. First, Petitioner is charged with knowledge of the regulations, including 498.40(b), which, on its face requires that a request for hearing contain certain information. Second, the appellate panel issued its decision in Birchwood while this matter was stayed. Even if, pre-Birchwood, Petitioner might legitimately have thought that its request was adequate, the appellate panel's decision in that case - which explicitly held that hearing requests must meet the requirements of 498.40(b) - should have disabused it of that notion. Yet, even after Birchwood, Petitioner waited almost a full 6 months before it arguably attempted to correct the defects in its hearing request.

Petitioner filed its initial, defective hearing request on October 14, 1996, and, thereafter, initiated a series of stays, for purposes of entering into settlement negotiations. Only after HCFA filed its motion to dismiss did Petitioner attempt to amend and, as discussed below, its amendment efforts fall short of an adequate hearing request. Moreover, in contrast to the situation in Four States, Petitioner's effort to amend came years, not months, after the initial request was due.

Petitioner argues that HCFA's failure to object earlier should be considered good cause. I reject this particularly in the context of this case. I see no evidence that HCFA ever waived its right to object to the adequacy of the hearing request. Nor am I persuaded that HCFA was required to file its Motion to Dismiss while the matter was stayed. ALJ Leahy rightfully pointed out that HCFA has no duty to alert an adverse party to a problem that is patently clear from a plain reading of the relevant regulation. Alden Nursing Center - Morrow, DAB CR622 at 11. On the contrary, it was proper for HCFA's counsel to advance her client's interests by attempting to negotiate a settlement when she considered it beneficial to her client, and by filing a motion to dismiss when she determined that no settlement could be reached. When it appeared that the case would not resolve, HCFA moved with reasonable expedience to dismiss. See Alden Nursing Center - Morrow, DAB CR622 at 10 - 12.

I note also that in Birchwood, HCFA did not even file a motion to dismiss. The ALJ, on her own, found that the documents purporting to be a hearing request did not appear to satisfy the requirements of 498.40(c), and ordered the petitioner to show cause why the actions should not be dismissed.

Petitioner argues that during settlement negotiations it supplied HCFA with detailed documentation in refutation of HCFA's determination. First, I reject Petitioner's suggestion that HCFA's willingness to engage in settlement negotiations constituted waiver of its right to seek dismissal. Second, I find deeply troublesome Petitioner's reliance on the content of settlement negotiations to further its case. If the contents of settlement negotiations were to be the dispositive factor, then rightfully I should examine what went on in those negotiations. But I cannot do that. Settlement negotiations are confidential, and the parties expect that their positions will not be compromised by their entering into those negotiations. I do not have the authority and am not willing to look at what happened in those proceedings.

In its Motion for Leave to Amend, Petitioner also appears to argue that the dismissal of a related case created confusion and contributed to its failure to submit a valid hearing request. Petitioner may have abandoned this argument on remand. In any event, I find this line of argument unpersuasive, and I agree with ALJ Leahy's conclusion that there is no merit in Petitioner's arguments that the dismissal of another case on December 3, 1996 somehow affected the content of Petitioner's October 14, 1996 request letter and caused Petitioner's subsequent failure to move to amend its hearing request until February 26, 1999. Alden Nursing Center - Morrow, DAB CR622 at 7.

Finally, no ALJ can afford a hearing to a party who has not filed a valid hearing request. I consider next the adequacy of the supplementary documents now contained in the record. These consist of the two distinct February 26, 1999 cover letters, the set of marked attachments, and the set of unmarked attachments.

b. Petitioner's subsequent submissions are not adequate under 42 C.F.R. § 498.40(b), and do not constitute a valid hearing request.

In the February 26, 1999 cover letter, received on March 3, 1999 and filed in the administrative record before ALJ Leahy, Petitioner states:

Enclosed herein please find our Motion to Reactivate and Set This Cause for Hearing and for Leave to File an Amended Hearing Request, together with supporting documentation regarding the above captioned matter.

Attached to this letter were a series of documents marked Attachments 1 through 11. Each document is multiple pages. Attachments 1 through 8 and Attachment 11 are each titled Request for Informal Dispute Resolution (IDR). But attached to many of the Request for IDR documents are additional documents, including plans of correction, that do not necessarily relate to the deficiency tag number referred to on the cover sheet. Attachments 9 and 10 are not labeled "Request for IDR," and appear to be pages taken from a plan of correction.

In the other February 26, 1999 cover letter - which Petitioner served on HCFA and which was received by the Civil Remedies Division on March 1, 1999, but subsequently rescinded - Petitioner states:

Please take this correspondence as our Amended Request for Hearing on behalf of our client, Alden Morrow Rehabilitation & Health Care Center, for surveys of 4/16-19/96 and 6/11-14/96.

In our request for hearing we did not specify that we were contesting each of the specific tags found in these surveys. You will enclosed please find Request for Informal Dispute Resolution forms and other documentation, which specify and detail the tags, issues and findings of fact with which my clients disagree. Please take these IDR's and other documents as contested issues which we ask for hearing on by this document, which incorporates the IDR's.

In each of these responses the bases for my client's contentions are specified, and state the facts and their conclusions. My clients contest the civil money penalties imposed as a result of the surveys.

HCFA Ex. 2, Attachment 1.

Attached to this letter are documents similar to those attached to the letter received on March 3, 1999, but they are not marked and are in a different order, with the documents that appear to be part of a plan of correction coming first. HCFA Ex. 2, Attachment 1. Again, the documents titled Request for IDR often have multiple pages attached which include plans of correction that may not necessarily relate to the tag number listed on the cover sheet. And the basis for challenge on the first page of the document is not necessarily consistent with the contents of the attached plan of correction. For example, for Tag # 318 on the June survey, the IDR sheet seems to suggest a factual dispute ("deficiency did not exist at the time of the survey since the residents identified had either not required ROM services and treatment or had been appropriately assessed.") But the attached plan of correction indicates that required assessments had not been done at the time of the survey, but were to be completed shortly thereafter, or could not be completed because the resident subsequently had been discharged. This suggests agreement with the factual findings of the Form 2567, but a challenge to the significance of those findings.

I am still not altogether clear which of these two sets of attachments Petitioner meant to submit as its amended hearing request. In either case, some of the documents appear to be documents it submitted to the Illinois Department of Public Health when it requested IDR. Petitioner suggests that I take them "and other documents [apparently plans of correction or parts thereof] as contested issues which we ask for hearing on by this document, which incorporates the IDR's." HCFA Ex. 2, Attachment 1. Neither set of attachments, when read together with both February 26, 1999 cover letters, satisfies the regulatory requirements.

In Fairview, the appellate panel approved a hearing request that challenged "the findings of fact for each example cited," "the conclusions reached that those findings were a violation of each tag number" cited, and "the scope and severity of the alleged violation," and based its challenge on disputes of fact. Fairview at 11 - 12. The appellate panel agreed that the hearing request was very broad, but found that it was also specific, and provided HCFA and the ALJ "meaningful information about the subject of Fairview's appeal." Fairview at 13.

Here, I simply cannot tell which of the many statements in the numerous attached documents constitute the findings and conclusions with which Petitioner disagrees and which of the conflicting statements constitute the bases for its disagreements. Nor am I willing to parse through these submissions and attempt to cobble together what might be considered a valid hearing request.

In its most recent brief, Petitioner, attempting to fall within the ambit of Fairview, claims that the February 26, 1999 cover letter contained in the rescinded submission which was served on HCFA "specifies that the Petitioner was 'contesting each of the specific tags found in the surveys.'" Petitioner's reply brief at 4. But that is not what the letter says. Petitioner has omitted half of a sentence. The letter says, "In our request for hearing we did not specify that we were contesting each of the specific tags found in these surveys." HCFA Ex. 2, Attachment 1 (emphasis added). It does not follow that Petitioner is now contesting "each of the specific tags." Moreover, even had Petitioner specifically said that it was "contesting each of the specific tags," that is not the same as saying it is "challenging the findings of fact for each [tag] cited." Fairview at 11. I am still at a loss to figure out the bases for challenging "each of the specific tags."

I recognize that the regulation leaves to Petitioner the "choice of the format and language it may use to satisfy the requirement." Fairview at 13. But, suggesting that I (and HCFA) must sort through the IDRs and partial plans of correction to pick out where the facility has articulated a challenge and to ascertain which among conflicting statements contained in the documents Petitioner intends to rely on does not provide me the "meaningful information" required to satisfy the regulations. Id.

I do not hold here that the IDR format could never adequately comprise a hearing request, but the contents should be consistent and Petitioner's intent should be clear. Here, Petitioner seems to have thrown together its IDR submissions and it plans of correction and suggests that I sort them out. Such a submission does not satisfy the requirements of 498.40(b). Thus, to this date, Petitioner has not filed a valid hearing request. Even if Petitioner had shown good cause for the late filing, it has yet to file a valid hearing request, and I am not authorized to hear an appeal in the absence of a valid hearing request.

c. Other factors support dismissal under 42 C.F.R. § 498.70(c).

I do not lightly conclude that Petitioner has, contrary to clear requirements, failed to take advantage of its opportunity for hearing. See Fairview at 5. On the other hand, the appellate decision in Birchwood mandates "adherence to the clear requirements of the regulations." Birchwood at 10.

Here, we are already five years removed from the surveys in question, much of the delay occurring at Petitioner's request. Yet, we are no closer to resolution of this matter. Petitioner has had many opportunities and much time to file properly a valid hearing request. Back in 1996, Petitioner should have known what the regulations required. The appellate panel's 1998 decision in Birchwood should have prompted a speedy and carefully drafted amended request. HCFA's motion to dismiss should have prompted an adequate request. Yet, knowing full well its precarious position, Petitioner simply threw together documents generated through the pendency of the matter and characterized them as a hearing request. After five years, the confusing language of its alleged amended appeal, the inconsistencies within the multi-page attachments, and the implication that someone else should figure out from this what might be in the Petitioner's mind are hardly circumstances designed to persuade me that I should exercise my discretion not to dismiss.

For all of these reasons, I exercise my authority under 42 C.F.R. § 498.70(c) and dismiss this case.

III. CONCLUSION

I issue these formal findings of fact and conclusions of law as summaries of my analysis:

1. Petitioner did not file a valid hearing request pursuant to 42 C.F.R. § 498.40(b) within the 60-day time limit required by 42 C.F.R. § 498.40(a).

2. Based on the totality of the particular circumstance of this case, dismissal of this case is appropriate under 42 C.F.R. § 498.70(c).

Accordingly, this action is dismissed.

ADDENDUM

PROCEDURAL HISTORY

On October 8, 1996, HCFA sent Petitioner a written notice of its determination to impose a CMP against Petitioner in the amount of $24,200. HCFA's notice stated that it imposed the CMP because Petitioner was not in substantial compliance with applicable federal requirements for nursing homes participating in the Medicare and Medicaid programs. The notice informed Petitioner of its right to request a hearing no later than 60 days after the date it received HCFA's notice, and cited 42 C.F.R. § 498.40, which governs the time for filing hearing requests, requests for extensions of time to file, and specifies what constitutes a valid hearing request.

In a letter dated October 14, 1996, Petitioner requested a hearing. The case was assigned to ALJ Leahy for hearing and decision.

The ALJ convened a prehearing conference by telephone on November 26, 1996. During the conference, counsel for Petitioner stated that he believed the case could be resolved without a hearing. Counsel for HCFA did not object to staying the proceedings in order to allow the parties the opportunity to explore settlement options. In view of this, the ALJ stayed the proceedings until further notice. December 2, 1996 letter to the parties.

The ALJ convened a telephone status call on March 19, 1997. At the parties' request, the case was stayed for an indefinite period so that they could continue to pursue settlement negotiations. The parties were informed that either could file a motion to reactivate the case at any time. March 25, 1997 letter to the parties.

The case remained inactive until February 10, 1999 when HCFA, citing the DAB decisions in Birchwood and Regency Manor, filed a motion asking the ALJ to issue an order requiring Petitioner to show cause why its hearing request should not be dismissed as untimely for its failure to comply with the content requirements of 42 C.F.R. § 498.40(b). I consider this the substantive equivalent of a motion to dismiss the case.

In response, Petitioner sent a set of documents, received and filed in the administrative record on March 3, 1999, that consisted of: (1) a cover letter dated February 26, 1999 addressed to ALJ Leahy, (2) a Motion for Leave to Amend, and (3) a stack of documents marked as Attachments 1 through 11. The body of the February 26, 1999 cover letter addressed to ALJ Leahy consisted of one sentence. A notation on the cover letter indicated that these materials had been copied to HCFA counsel. On March 18, 1999, HCFA filed a response opposing Petitioner's motion. Petitioner filed a reply on May 25, 1999.

On October 18, 1999, the ALJ issued a decision denying Petitioner's motion to amend its October 14, 1996 letter requesting a hearing, and granting HCFA's motion to dismiss. Alden Nursing Center - Morrow, DAB CR622 (1999). The ALJ found that Petitioner's October 14, 1996 letter does not constitute a request for hearing within the meaning of 42 C.F.R. § 498.40(b) because:

It does not "[i]dentify 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). Nor does it meet the additional requirement for "[s]pecify[ing] the basis for contending that the findings and conclusions are incorrect. 42 C.F.R. § 498.40(b)(2).

DAB CR622 at 2. Relying on Birchwood, the ALJ concluded that Petitioner had not filed a valid hearing request within the 60-day time limit allowed by 42 C.F.R. § 498.40(a).

The ALJ pointed out that the regulations permit an ALJ to extend the filing deadline if the entity seeking a hearing requests an extension in writing and the request is supported by a showing of good cause. 42 C.F.R. § 498.40(c). The ALJ stated that the parties' cross-motions presented the overarching question of whether, for reasons asserted by Petitioner, Petitioner's time for filing a valid hearing request has been equitably tolled until at least February 26, 1999, when Petitioner sought leave to file an amended request for hearing. The ALJ considered the totality of the particular circumstances of this case, and concluded that "good cause has not been shown by Petitioner for tolling the filing period until at least February 26, 1999." DAB CR622 at 2. The ALJ additionally found that the documents received on March 3, 1999 did not constitute an amended hearing request. Based on this, the ALJ dismissed the case.

Petitioner filed an appeal before an appellate panel of the DAB. On July 5, 2000, the appellate panel remanded the case for further proceedings. Alden Nursing Center - Morrow, DAB No. 1734 (2000). In reviewing the parties' submissions, the appellate panel noted that both parties quoted from a letter, dated February 26, 1999, that was not in the administrative record, and suggested that this particular letter was relevant to the ALJ's determination that Petitioner had not filed an amended hearing request.

In view of this, the appellate panel remanded the case, and instructed the ALJ to provide to the parties an item-by-item inventory of the administrative record, so that they could identify and provide to the ALJ any documents, including the February 26, 1999 letter, missing from the record. The appellate panel instructed the ALJ to admit such documents and gave the ALJ discretion to consider as part of the record the documents filed by the parties in conjunction with Petitioner's appeal, including an affidavit submitted by Petitioner on appeal. The appellate panel directed the ALJ to reconsider HCFA's request for dismissal in light of this new material and the decisions in Alden-Princeton, Fairview, and the rulings in Four States and Rehab of Tampa, and issue a new ruling.

On remand, the parties were provided an item-by-item inventory of the administrative record and were invited to inspect the full administrative record. July 17, 2000 letter to the parties.

The staff attorney assigned to this case subsequently sent a letter dated November 14, 2000 to the parties addressing the confusion about the existence of more than one February 26, 1999 letter authored by Petitioner. As the staff attorney explained, Petitioner's counsel mailed a packet containing three sets of documents,⁽⁵⁾ which were date-stamped received on March 1, 1999. Each set of documents consisted of: (1) a cover letter dated February 26, 1999 to ALJ Leahy, (2) a second and distinct cover letter to Civil Remedies Division Chief Jacqueline T. Williams, (3) a Motion for Leave to Amend, and (4) a stack of unmarked documents. Before these documents were filed in the administrative record or distributed to appropriate staff, Petitioner's counsel's office called to say that the submission was in error, asked that it be rescinded, and, promised to submit shortly a corrected packet of documents.

Two days later, on March 3, 1999, this office received the second packet of materials, and, as Petitioner had requested, the documents contained in the packet received on March 3, 1999 were filed in the administrative record instead of the documents contained in the packet received on March 1, 1999. The staff attorney marked the rescinded packet "wrong submission" and set it aside. November 14, 2000 letter to the parties. With the November 14, 2000 letter to the parties, the staff attorney enclosed copies of the two cover letters, each dated February 26, 1999, received in the first rescinded submission on March 1, 1999.

Neither party has objected to or otherwise questioned any of the particulars of the staff attorney letter.

At the parties' request, the briefing schedule was extended twice.

Thereafter, in a letter dated January 29, 2001, HCFA explained that, until receiving the staff attorney's explanation, it had not been informed that Petitioner had rescinded its March 1, 1999 submission. Nor had Petitioner sent HCFA a copy of its second submission, notwithstanding that the second submission indicates that Petitioner had copied it to HCFA counsel. As a result, HCFA thought that two February 26, 1999 cover letters, 11 unmarked exhibits, and the Motion for Leave to Amend had been filed in the administrative record. See HCFA Ex. 2, Attachment 1. In fact, the administrative record contained only one February 26, 1999 cover letter, 11 marked exhibits, and the Motion for Leave to Amend. For the first time, following receipt of the staff attorney's letter, HCFA counsel realized that it had never seen copies of the 11 marked exhibits actually filed in the administrative record.⁽⁶⁾ HCFA therefore asked that copies of these documents be sent to it, and for additional time to review those documents. The requests were granted.

The parties subsequently filed simultaneous initial briefs and response briefs. Prior to the filing of the response briefs, this case was reassigned to me due to ALJ Leahy's resignation.

Carolyn Cozad Hughes

Administrative Law Judge

1. In fact, the absent document was missing from the record because Petitioner had not filed it. See Background.

2. This case has a complicated procedural history which has generated considerable confusion. To ensure accuracy and to prevent any further confusion as to the events leading us to this point, I detail that history in the Addendum, infra. Although this section appears after my signature, I incorporate it into my decision.

3. See Addendum, infra, for discussion of the rescinded submission, received on March 1, 1999, which has generated so much confusion.

4. HCFA has the delegated authority to make these initial and reconsidered decisions on the Secretary's behalf. 42 C.F.R. Part 498, Subpart B.

5. In accordance with Civil Remedies Procedures, parties are required to file three sets of all documents with this office. One set is filed in the administrative record, one set is given to the ALJ, and one set is given to the staff attorney.

6. I note that Petitioner also appears confused as to what documents it generated and filed. In its brief on the issue of reassignment to a different ALJ, Petitioner accuses HCFA of fabricating the second February 26, 1999 cover letter, obviously an unjustified accusation. Petitioner's Response to HCFA's Opposition to Reassignment at 2. Petitioner later seems to suggest that, in addition to the rescinded packet of materials received on March 1, 1999 and the packet of materials received and filed on March 3, 1999, there might exist another unrescinded packet of materials sent under separate cover to Civil Remedies Division Chief Jacqueline T. Williams. Footnote 1 of Petitioner's initial brief filed on remand. No evidence supports such a suggestion, and I am confident that I have before me a complete record.