CASE | DECISION | JUDGE | FOOTNOTES

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


SUBJECT:

Glenwood Care Center,

Petitioner,

DATE: August 22, 2001
                                          
             - v -

 

Centers for Medicare & Medicaid Services

 

Docket No.C-00-886
Decision No. CR810
DECISION
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DECISION DISMISSING REQUEST FOR HEARING

I find Petitioner Glenwood Care Center's (Petitioner) request for hearing to be untimely filed.

This matter is before me on CMS's (formerly known as the Health Care Financing Administration or HCFA) Motion to Dismiss, dated January 22, 2001. This case was reassigned to me from the docket of Administrative Law Judge Joseph K. Riotto on April 23, 2001. I have reviewed the pleadings and other documents, and have examined the regulations that apply to the case. Having done so, I conclude that the Motion to Dismiss should be granted.

The limited issue before me is the timeliness of Petitioner's request for hearing under 42 C.F.R. § 498.70(b) and (c). On this issue I need not, and therefore explicitly do not, address the question of what might constitute an insufficient, but timely-filed, request for hearing. Because that question is not before me here, I need not discuss the exercise of my discretionary authority to permit the amendment of a timely-filed but inadequate hearing request. As this case presents itself, I need only decide whether Petitioner met the filing deadline established by 42 C.F.R. § 498.70(c) by filing any document of any sort purporting to seek a hearing of CMS's action.

On August 7, 1998, the Illinois Department of Public Health (IDPH) completed a survey of Petitioner's facility and noted failures in its compliance with Medicare requirements. CMS Exhibit (CMS Ex.) 1. IDPH notified Petitioner of its findings on August 17, 1998. Id. IDPH conducted a revisit survey on October 8, 1998, and, because it observed continued noncompliance, IDPH notified Petitioner on October 20, 1998 that it would recommend CMS impose sanctions including civil money penalties (CMPs). Id. A third survey on November 10, 1998, found that Petitioner had achieved substantial compliance with the Medicare requirements at issue. CMS Ex. 2. On April 7, 1999, CMS officially notified Petitioner that it would in fact impose a CMP of $100 per day from August 7 through November 9, 1998, the period of Petitioner's alleged noncompliance. Id.

It is CMS's April 7, 1999 notification to Petitioner that begins the period within which Petitioner's hearing request must have been filed in order to be timely. The period is 60 days, allowing an extra five days for service. 42 C.F.R. § 498.40(a)(2); § 498.22(b)(3). Thus, if Petitioner intended to file a timely hearing request, it was obliged to do so not later than June 11, 1999, or to seek an extension of that filing deadline. Regulations also provide that Petitioner might receive a 35% reduction in the total CMP by waiving, in writing, its right to a hearing within the same period. 42 C.F.R. § 488.436(a)-(b)(1).

The record before me establishes without serious debate that Petitioner filed nothing until September 7, 2000, after nearly 15 months had passed following expiration of the filing period. When Petitioner did file, its request for hearing explicitly limited the relief sought to "a hearing to be permitted to receive a 35% reduction in the CMP,"(1) and asserted for the first time that it had never received CMS's April 7, 1999 notification.

The record of events between April 7, 1999 and September 7, 2000 is revealing, and it shows Petitioner's position to be disingenuous, at best. For example, it is quite clear that when CMS began efforts to collect the CMP on April 14, 2000, Petitioner made no response. HCFA Exs. 3, 5; Petitioner's Brief (P. Br.); P. Ex. 1. On July 24, 2000, CMS sent Petitioner another notice, this time informing Petitioner that CMS would collect the CMP and interest by withholding the sums from other Medicare payments due the facility. CMS Ex. 4. Again, Petitioner offered no response, which prompted CMS to telephone the facility on August 15, 2000, and to fax copies of all three previous written communications to Petitioner on that date. CMS Ex. 5; P. Br.; P. Ex. 1. CMS telephoned Petitioner again on August 18, 2000, and again faxed copies of its April 7, 1999, April 14, 2000, and July 24, 2000 letters. CMS has conclusively established Petitioner's receipt of all its telephone messages and all its faxes. Id.

On September 7, 2000, Petitioner filed its request for hearing, asserting that "it was never timely notified" of CMS's imposition of a CMP.

An assertion of that sort is simply not sufficient to excuse untimeliness: the authorities are clear that the regularity and efficacy of notice are presumed in the absence of a showing to the contrary, and, in this case, Petitioner is presumed to have received CMS's April 7, 1999 notification unless it can produce credible evidence to the contrary. Sunchase Nursing Center, DAB CR717 (2000); Community Outreach Branch for the Recreation and Education of Seniors, DAB CR580 (1999); Rosewood Manor, Inc., DAB CR544 (1998); 42 C.F.R. § 498.22(b)(3). Petitioner shirks even the attempt in its Response to CMS's Motion to Dismiss ("Petitioner cannot prove a negative . . . It cannot prove that it did not receive the April, 1999, notice." P. Br. at 1), and makes no credible effort to explain its steadfast silence in the face of CMS's repeated contacts with it in April and July, 2000, contacts which provided Petitioner an unmistakable and potentially-colorable opportunity to assert non-receipt of the original notification. And, whatever else may be said of Petitioner's September 7, 2000 request for hearing, this much is certain: it does not, and cannot by any reasonable reading, be understood to seek an extension of the filing deadline pursuant to 42 C.F.R. § 498.40(c)(1).

The pleadings and exhibits before me establish that CMS's notification reached Petitioner on or soon after April 7, 1999; that CMS sent written communications to Petitioner on or soon after April 14, 2000 and July 24, 2000, communications which would plainly have alerted Petitioner to CMS's April 7, 1999 action if Petitioner were, in fact, unaware of it; that Petitioner made no response whatsoever to CMS's April and July 2000 communications; that Petitioner has failed to rebut the presumption that it timely received CMS's April 7, 1999 notification, and has failed to explain its silence in response to CMS's April and July 2000 letters; and, that Petitioner has not demonstrated good cause for its failure to file its request for hearing in a timely manner.

Accordingly, CMS's Motion to Dismiss is GRANTED, pursuant to 42 C.F.R. § 498.70(c). Petitioner's hearing request should be, and it is, DISMISSED.

JUDGE
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Richard J. Smith

Administrative Law Judge

FOOTNOTES
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1. I do not have the authority to review whether or not a petitioner is entitled to a 35% reduction, because it is not an initial determination subject to my review. See 42 C.F.R. § 498.3(b).

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