SUBJECT:

Prospect Heights Care Center,

Petitioner,

Centers for Mediare & Medicaid Services

I dismiss the request for hearing filed by Petitioner, Prospect Heights Care Center. I do so pursuant to 42 C.F.R. § 498.70(c) because Petitioner did not file its hearing request timely and because Petitioner did not establish good cause for its failure to file its hearing request timely.

I. Background

Petitioner is a long-term care facility that is located in Hackensack, New Jersey. It participates in the Medicare program and is subject to the laws and regulations that govern participation in the program. On February 8, 2001, Petitioner filed a request for a hearing to contest a determination by the Centers for Medicare & Medicaid Services (CMS, formerly known as the Health Care Financing Administration, or HCFA) to impose remedies against it. That determination was based on findings made by the New Jersey Department of Health and Senior Services (NJDHSS) at a compliance survey of Petitioner which it conducted on behalf of CMS. CMS moved to dismiss Petitioner's hearing request on the ground that it was not filed timely. Petitioner opposed the motion.

CMS filed two exhibits in support of its motion to dismiss which it designated as CMS Ex. A and CMS Ex. B. Petitioner filed 14 exhibits in its opposition to the motion. P. Ex. 1 - P. Ex. 14. I am receiving into evidence CMS Ex. A - CMS Ex. B, and P. Ex. 1 - P. Ex. 14.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether Petitioner:

1. Is entitled to a hearing;

2. Established good cause for not filing its hearing request timely.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below, as a separate heading, and discuss it in detail.

1. Petitioner is not entitled to a hearing because it failed to file a hearing request timely.

Petitioner did not request a hearing within 60 days from the date that it received notice from CMS of its remedy determination and Petitioner is not entitled to a hearing. Regulations which govern hearings in cases involving CMS provide that, in order to be entitled to a hearing, a party must file its request within 60 days from its receipt of a remedy determination by CMS. 42 C.F.R. § 498.40(a). Petitioner received more than one notice from CMS of its determination to impose remedies. Notices were sent from CMS to Petitioner on October 6, 2000, October 17, 2000, and October 18, 2000. P. Ex. 4; P. Ex. 7; P. Ex. 8. Each of these notices informed Petitioner of its right to request a hearing. Assuming that Petitioner's right to request a hearing extended through the 60^th day from its receipt of the October 18, 2000 notice, that date was weeks prior to the date (February 8, 2001) when Petitioner requested a hearing.

2. Petitioner did not establish good cause for failing to file its hearing request timely.

Regulations provide that an administrative law judge may extend the deadline for filing a hearing request where a party establishes good cause for not having filed its request timely. 42 C.F.R. § 498.40(c). Petitioner argues that good cause exists in this case because it was misled by a notice that it received from NJDHSS into believing that it did not have to file a hearing request in the case until after the completion of an informal dispute resolution (IDR) process.

I do not find this argument to be persuasive. I do not find that Petitioner was misled by the text of any notice that it received from NJDHSS into believing that it should defer filing its hearing request in this case until after completion of IDR.

Regulations which govern the rights of long-term care facilities in cases involving CMS provide for IDR as an informal process in which a facility may seek to convince a State agency (or CMS in the case of a survey that is conducted by CMS) that adverse findings made at a compliance survey are incorrect. 42 C.F.R. § 488.331. The regulations make it clear, however, that IDR is not a part of the hearing process by which a facility challenges CMS's remedy determination. Nor is exercise of a right to a hearing affected by what happens or does not happen in IDR. Failure by a State agency or by CMS to offer IDR to a provider cannot delay the implementation of a remedy. 42 C.F.R. § 488.331(b)(1). A facility may not seek delay of implementation of a remedy on the ground that IDR has not been completed. 42 C.F.R. § 488.331(b)(2). The process by which a facility seeks a hearing from a CMS remedy determination is separate from, and independent of, IDR. 42 C.F.R. § 498.40. The 60-day period within which a facility must seek a hearing from a remedy determination is not stayed by an ongoing IDR process. See id.

Petitioner contends that it received a misleading notice from NJDHSS that is dated October 6, 2000. Petitioner's brief at 10 - 11; see P. Ex. 3. Petitioner argues that this notice contained advice that Petitioner understood reasonably to mean that it should defer filing its hearing request until after completion of IDR. According to Petitioner, IDR was not completed until January 23, 2001. Petitioner asserts that it filed its hearing request shortly after completion of IDR, acting on the good faith if mistaken understanding that the hearing request should not be filed until after IDR was completed.

Petitioner asserts that the allegedly misleading advice in the October 6, 2000 notice is contained in the following statement:

If you wish to dispute the existence of any of the disputed deficiencies, you should do so through the Informal Dispute Resolution process which is described more fully below.

P. Ex. 3 at 1. Petitioner contends that the statement telling Petitioner that, if it wanted to dispute deficiency findings it should do so via IDR, suggested that Petitioner should complete the IDR process first and then request a hearing only if it was dissatisfied with the outcome of IDR.

The notice might be misleading when it is read in a vacuum and without reference to regulations governing IDR and hearings in cases involving HCFA. The text cited by Petitioner suggests - when read in isolation - that IDR is the exclusive process that Petitioner could resort to as a mechanism for disputing deficiency findings and that it was necessary for Petitioner to request IDR if it wanted to challenge the deficiency findings that had been made by NJDHSS. However, a reasonable person would not read this notice in a vacuum. Petitioner received several additional notices from NJDHSS and CMS. P. Ex. 1; P. Ex. 4; P. Ex. 6; P. Ex. 7; P. Ex. 8; P. Ex. 9. These additional notices clearly and unequivocally inform Petitioner of its hearing rights that existed in addition to and independent from its right to engage in IDR. In doing so these notices refer to both the regulations which govern IDR and those which govern hearings. They make it evident to any reasonable person that IDR and the hearing process are not interconnected and that these avenues must be pursued separately. And, they make it plain that a long term care facility wanting a hearing should not delay making its request until after completion of IDR.

Most notably, CMS sent a notice to Petitioner on October 6, 2000 - the same mailing date as that of the allegedly misleading NJDHSS notice - which clearly explains IDR and the hearing process as separate and not linked avenues that Petitioner could pursue. This notice clarified any arguably misleading statement that was contained in the October 6, 2000 NJDHSS notice. Nothing in the notice suggests - or would mislead a reasonable person into believing - that it should defer requesting a hearing until completion of IDR. With respect to IDR the October 6, 2000 CMS notice states:

In accordance with [42 C.F.R. §] 488.431, you have one opportunity to question cited deficiencies through an informal dispute resolution process. To be given such an opportunity, you are required to send your written request, along with the specific deficiencies being disputed, and an explanation of why you are disputing those deficiencies, to the NJDHSS. This request must be sent during the 10 days you have for submitting a . . . [plan of correction] for the cited deficiencies. An incomplete informal dispute resolution process will not delay the effective date of any enforcement action.

P. Ex. 4 at 2. On the next page of this notice is an explanation of how Petitioner should request a hearing if it desired one:

If you disagree with these determinations, you or your legal representative may request a hearing before an administrative law judge of the Department of Health and Human Services Departmental Appeals Board. Procedures governing this process are set out in [42 C.F.R. §] 498.40, et seq.

A written request for a hearing must be filed no later than 60 days from the date of receipt of this letter . . . .

Id. at 3.

The notice thus sets out IDR and the hearing process as separate and unconnected dispute resolution processes. it states clearly the separate and independent deadlines for requesting IDR and a hearing. And, it cites specifically to regulations which explain how these two separate dispute resolution processes operate.

Steven T. Kessel

Administrative Law Judge