SUBJECT:

John Knox Village Care Center,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

Petitioner's request for hearing dated March 18, 2002, is dismissed pursuant to 42 C.F.R. § 498.70(c) because it was not timely filed. Petitioner has not shown good cause to extend the time for filing an appeal.

I. PROCEDURAL HISTORY

Petitioner's facility was surveyed by the Missouri Department of Health and Senior Services (the State agency) on December 17, 2001. The survey team cited Petitioner for two deficiencies and the State agency recommended that the Centers for Medicare & Medicaid Services (CMS) impose the enforcement remedy of a denial of payment for new admissions (DPNA). By letter dated January 4, 2002, CMS advised Petitioner that, based upon the deficiencies found by the State agency on the December 17, 2001 survey, a DPNA was being imposed effective January 19, 2002. Petitioner was subsequently found to have achieved substantial compliance and the DPNA ended effective January 23, 2002. However, due to the imposition of the four-day DPNA, Petitioner was advised by the State agency in a letter dated February 26, 2002, that it was prohibited from conducting nurse aide training for a period of two years. Petitioner requested a hearing by letter dated March 18, 2002. Petitioner also sent CMS a letter dated March 18, 2002, requesting that the time for filing an appeal be extended. The case was assigned to me for a hearing and decision on April 11, 2002.

On April 30, 2002, CMS moved to dismiss Petitioner's request for hearing due to late filing. On May 12, 2002, Petitioner filed a responsive pleading and requested that the time for filing a request for a hearing be extended. Petitioner submitted exhibits one through six with its pleading (P. Exs. 1 - 6). CMS submitted exhibits one and two (CMS Exs. 1 and 2). I admit all exhibits for purposes of this decision.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. FINDINGS OF FACT: The following findings of fact are based upon the admissions and the undisputed assertions of the parties in their briefs, the request for hearing, and the admitted exhibits:

1. Petitioner has been authorized to participate in Medicare, Medicaid and all other Federal health care programs as a skilled nursing facility pursuant to a participation agreement with the Secretary of Health and Human Services, at all times pertinent to this appeal.

2. On December 17, 2001, Petitioner's facility was surveyed by the State agency and deficiencies were found.

3. By letter dated January 4, 2002, CMS notified Petitioner that, based on the deficiencies cited by the State agency on the December 2001 survey, CMS would impose a DPNA effective January 19, 2002. CMS Ex. 1.

4. CMS sent the January 4, 2002 notice to Petitioner on January 4, 2002 by regular mail and facsimile. CMS Ex. 2.

5. Petitioner is presumed to have received the January 4, 2002 notice on January 9, 2002, absent evidence that it was, in fact, received earlier or later.

6. By letter dated March 18, 2002, Petitioner requested a hearing related to the deficiencies and remedy of which it was notified by CMS's January 4, 2002 notice.

7. Petitioner's request for hearing bears the date March 18, 2002, 68 days after its presumed receipt of the January 4, 2002 notice.

B. CONCLUSIONS OF LAW

1. CMS has not rebutted the presumption that its January 4, 2002 notice of deficiencies and imposition of a remedy was delivered to Petitioner by mail five days after the date of that notice.

2. Petitioner's request for hearing dated March 18, 2002, was filed more than 60 days after Petitioner received the January 4, 2002 notice.

3. Petitioner's request for hearing was not timely filed.

4. A pending informal dispute resolution (IDR) proceeding pursuant to 42 C.F.R. § 488.331 is not good cause for failure to timely file a request for hearing.

5. Petitioner has cited no cause beyond its control as grounds for the late filing of its request for hearing.

6. Petitioner has not shown good cause to justify an extension of the time to file a request for hearing in this case.

7. Dismissal of a late filed request for a hearing is appropriate pursuant to 42 C.F.R. § 498.70(c) when the time for filing has not been extended.

III. DISCUSSION

A. ISSUES

(1) Whether good cause exists to extend the time for filing the request for hearing in this case.

(2) Whether the request for hearing must be dismissed because it was untimely filed.

B. APPLICABLE LAW

A provider notified of an initial, reconsidered, or reopened and revised decision that results in an enforcement remedy is accorded the right to request a hearing by administrative law judge in accordance with the procedures set forth at 42 C.F.R. Part 498. 42 C.F.R. §§ 488.408(g), 498.5(b), and 498.3(b)(13). The regulations are clear regarding the requirements for timely filing a request for hearing. 42 C.F.R. § 498.40(2) provides:

The affected party or its legal representative or other authorized official must file the request in writing within 60 days from receipt of the notice of initial, reconsidered, or revised determination unless that period is extended . . . .

The 60-day period runs from the date of receipt by the affected party, which is presumed to be five days after the date of the notice unless it is shown that the notice was received earlier or later. 42 C.F.R. §§ 498.40(a)(2) and 498.22(b)(3). I have the discretion to extend the period for filing a request for hearing if the petitioner files a "written request for extension of time stating the reasons why the request was not filed timely," and I find good cause for the late filing is shown. 42 C.F.R. § 498.40(c). Although the legislative history for 42 C.F.R. § 498.40 is not helpful in understanding the application of these regulatory provisions in this case, ⁽¹⁾ the requirement for timely filing a written request for hearing is commonly viewed as the means by which administrative finality can be achieved, i.e., if there is no deadline for filing and an affected party may file at anytime, the record on an action may never be closed.

I am authorized to dismiss a request for hearing if it was not timely filed and I have not granted an extension of the period to file. 42 C.F.R. § 498.70(c).

C. ANALYSIS

There is no dispute that Petitioner filed its request for hearing more than 60 days after receipt of the January 4, 2002 CMS notice of deficiencies and imposition of a remedy. ⁽²⁾

There is no dispute regarding the sufficiency of the January 4, 2002 notice. The issue is whether Petitioner states grounds for extending the time to file its request for hearing. Petitioner argues that there is good cause because "it did not know that the (State agency and CMS) [were] using an inappropriate standard for review to determine if verbal abuse occurred until the IDR decision was received." Petitioner's Response at 4. Petitioner alleges that while the IDR process was initiated promptly, an IDR decision was not issued before the deadline for filing the request for hearing. Petitioner also contends that it is the IDR decision that gives it grounds for appeal. ⁽³⁾

Petitioner filed its request for hearing by letter dated March 18, 2002. Counsel for Petitioner also requested in a separate letter dated March 18, 2002, and addressed to the Health Care Financing Administration, ⁽⁴⁾ that CMS extend the time for filing a request for hearing. P. Ex. 6. Petitioner reveals in the letter to CMS that in the IDR proceeding, it disputed the scope and severity of the cited deficiency and whether or not the deficiency existed at all. The letter indicates that Petitioner's theory was that the conduct of a certified nursing assistant (CNA) did not rise to the level of "harmful verbal abuse." Petitioner also indicates in that letter that it hoped that the case could be resolved at the IDR level and that until there was an IDR decision, "the only findings were those of the state [surveyors]."

Petitioner's counsel indicates in the request for hearing dated March 18, 2002, that Petitioner challenges "whether the behavior of a particular CNA was appropriately placed at a Level G ⁽⁵⁾; and whether these incidents constituted verbal abuse as that term is interpreted in Medicare law and regulations." Petitioner does not explain in its March 18 letter to CMS or its response to CMS's motion to dismiss how the IDR decision impacted the issues specified in its request for hearing. It appears that the issues Petitioner raised on IDR and in its request for hearing are essentially the same. Furthermore, other than its expressed desire to attempt to resolve the case at the IDR level, Petitioner does not explain why it could not have requested a hearing at the same time it requested IDR on the same issues. ⁽⁶⁾

The regulations do not define the term "good cause" but an appellate panel of the Departmental Appeals Board (Board) has held that "good cause" means circumstances beyond the provider's control. Hospicio San Martin, DAB No. 1554 (1996). Participation in a State IDR proceeding has been held not to be a "circumstance beyond a provider's control." The IDR process established by 42 C.F.R. § 488.331 does not toll the federal administrative appeal process because it is a separate procedure in addition to the appeal rights provided to facilities under federal regulations. ⁽⁷⁾ The Board noted in Cary, "(i)f approaching the deadline for termination to go into effect and/or choosing to participate in an IDR process were sufficient to excuse the failure to file a timely request for a federal hearing, the time frame for such appeals would become almost meaningless." Cary, at 29; see also, Nursing Inn of Menlo Park, DAB No. 1812 (2002) (IDR is not cause to extend period for filing an appeal).

I conclude that Petitioner's election to invoke the IDR process does not constitute good cause for extending the time for Petitioner to file its request for hearing. The issues raised in the IDR proceeding are the same as those alleged in the request for hearing and

Petitioner provides no acceptable explanation for why it did not simultaneously file both its request for IDR and a request for hearing. Further, the pendency of an IDR proceeding does not constitute good cause for delaying the filing of a request for hearing. Petitioner has cited no cause beyond its control as justification for extending the 60-day period for filing a request for a hearing. Accordingly, the requested extension is denied. Petitioner's request for hearing was filed eight days late and no extension has been granted. Accordingly, the request for hearing must be dismissed.

IV. CONCLUSION

For the foregoing reasons, Petitioner's request for hearing dated March 18, 2002, is dismissed.

Keith W. Sickendick

Administrative Law Judge

1. 52 Fed. Reg. 22,446 (June 12, 1987).

2. CMS argues that the notice was actually delivered by facsimile transmission on January 4, and that the March 18, 2002 request for hearing was 13 days late. CMS offers as evidence the CMS facsimile machine report showing a successful transmission. I do not accept the CMS evidence of a successful transmission as sufficient evidence of receipt by Petitioner to rebut the presumption established by 42 C.F.R. §§ 498.40(a)(2) and 498.22(b)(3) that the notice was not received until five days after the date of mailing. See Cary Health and Rehabilitation Center, DAB No. 1771 (2001); Riverview Village, DAB No. 1840 (2002).

Petitioner admits that its request for hearing was filed 69 days after the presumed receipt of CMS's January 4, 2002 notice - 9 days late. Petitioner's Response at 4. I have taken administrative notice of a 2002 calendar. By my calculation, March 18, 2002, the date on the request for hearing, is actually the 73rd day after the January 4, 2002 date which appears on the CMS notice. Deducting 65 days (the 60-day appeal period plus five days presumed mail time) reveals that Petitioner's request for hearing was actually eight days late.

3. Petitioner also alludes to an argument that it was not on notice that its nurse aide training program was affected until it received a February 26, 2002 letter from the State agency. P. Ex. 4; Petitioner's Response at 2, 7. However, the suggestion is inaccurate in that the January 4, 2002 CMS notice clearly indicated that nurse aide training and competency evaluation programs were affected by the CMS action. Thus, I will not accept Petitioner's suggestion that the State agency notice dated February 26, 2002, triggered another appeal period or constituted new grounds for appeal.

4. Effective July 5, 2001, the Health Care Financing Administration was renamed the Centers for Medicare & Medicaid Services. 66 Fed. Reg. 35,437 (2001).

5. Scope and severity level "G" indicates actual harm that does not amount to immediate jeopardy. State Operations Manual, section 7400.

6. Petitioner argues in its two March 18, 2002 letters and response brief that, until it received the IDR decision, it had no findings of fact or conclusions of law to appeal. Petitioner states in its brief that "[u]ntil [it] received the [State agency's] IDR decision, it did not know what standard the [State agency] used and, therefore, could not identify in its request for the hearing, as required by the regulations, the "specific issues and findings of fact and conclusions of law" to be challenged." Petitioner's Response at 8 - 9, see also Id. at 4. This explanation is not acceptable. Petitioner does not deny that it received a statement of deficiencies (SOD) for the survey in issue, and the SOD contains the only findings and conclusions that CMS and the survey team are required to issue under the regulations. There is no contention that the SOD does not indicate that Petitioner was cited for the deficiency and the basis for the citation. Furthermore, the grounds for appeal set forth in the request for hearing appear to be the same as those advanced by Petitioner in IDR.

7. The purpose of the IDR process is to give the affected provider an opportunity to resolve the matter quickly without the need for litigation. 59 Fed. Reg. 56,147 (1994). But IDR does not substitute for the hearing process or constitute good cause for delay of the hearing process. See Prospect Heights Care Center, DAB CR802 (2001).