Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Sunchase Nursing Center, |
DATE: November 22, 2000 |
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Health Care Financing Administration
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Docket No.C-99-435 Decision No. CR717 |
DECISION | |
The Health Care Financing Administration (HCFA) moves
to dismiss the hearing request filed by Petitioner, Sunchase Nursing Center.
Petitioner opposes the motion. I dismiss the hearing request. I do so
pursuant to 42 C.F.R. § 498.70(c) which gives an administrative law judge
discretion to dismiss a hearing request in a case involving HCFA where
the party requesting a hearing did not file a hearing request timely and
where that party has not shown good cause for its failure to file a hearing
request timely. Petitioner did not file a hearing request timely. 42 C.F.R.
§ 498.40(a)(2). Petitioner has not made a showing of good cause for filing
an untimely hearing request. 42 C.F.R. § 498.40(c). HCFA submitted seven exhibits (HCFA Ex. 1 - HCFA Ex. 7)
to support its motion. Petitioner submitted two exhibits (P. Ex. A and
P. Ex. B) to oppose HCFA's motion. Additionally, Petitioner submitted
a document which it entitled "Response to Motion for Disclosure of Interest"
which alleges facts to oppose HCFA's contention that Petitioner's counsel
does not represent the present owner of the facility. I am designating
that document as P. Ex. C. I admit into evidence HCFA Ex. 1 - HCFA Ex.
7 and P. Ex. A - P. Ex. C. On my own motion, I am admitting into evidence two additional
documents. The first document, which I identify and receive into evidence
as ALJ Ex. 1, consists of a ruling dated March 25, 1999, issued by Administrative
Law Judge Mimi Hwang Leahy in another case involving the same parties
who are before me here. That case was docketed in the Departmental Appeals
Board Civil Remedies Division as Sunchase Nursing Center, Docket
No. C-98-465. The second document, which I identify and receive into evidence
as ALJ Ex. 2, consists of a letter dated October 20, 1998, from the Arkansas
Department of Human Services to Petitioner's Administrator. As was true
of ALJ Ex. 1, ALJ Ex. 2 was also part of the record in Docket No. C-98-465. I. Issue, findings of fact and conclusions of
law
The issue in this case is whether a basis exists for me
to dismiss Petitioner's hearing request.
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 separately numbered heading.
A party is not entitled to a hearing unless it files its
hearing request within a specified time limit. A party who requests a
hearing must make its request within 60 days of receiving a notice of
a determination from HCFA in order to be entitled to a hearing. 42 C.F.R.
§ 498.40(a)(2). A notice is presumed to be received five days from its
date of mailing unless there exists evidence to show that it was received
on some other date. 42 C.F.R. § 498.22(b)(3). Thus, unless facts establish
otherwise, a party will be entitled to a hearing if it files a hearing
request within 65 days of the date that HCFA mailed a notice of a determination
to that party.
The undisputed facts which are relevant to the timing
of Petitioner's hearing request in this case are as follows. On September
17, 1998, a survey was conducted of Petitioner's facility by the Arkansas
Department of Human Services, Division of Medical Services, Office of
Long Term Care (Arkansas State survey agency). This survey was made as
a revisit to verify whether Petitioner had corrected previously identified
failures to comply substantially with federal participation requirements.
The surveyors who conducted this survey concluded that Petitioner was
not complying substantially with federal participation requirements. Their
findings included a determination that Petitioner's noncompliance was
so egregious as to place residents of Petitioner's facility in a state
of immediate jeopardy. Both the Arkansas State survey agency and HCFA
sent notices to Petitioner as a consequence of these findings. These notices
were as follows:
On February 3, 1999, Ms. Debbie Thetford Nye, Esq. wrote
to HCFA in response to HCFA's January 29, 1999 letter. P. Ex. B. Ms. Nye
asserted:
Id. Ms. Nye asserted additionally that Petitioner
had stated this contention in a conference call that transpired before
Administrative Law Judge Leahy and counsel for HCFA. This conference call
occurred in the case involving Petitioner which was docketed at the Civil
Remedies Division of the Departmental Appeals Board with Docket Number
C-98-465. Ms. Nye contended that, at this conference call, counsel for
HCFA had replied to the assertion by averring that no civil money penalties
had been imposed against Petitioner for the September 1998 survey. Therefore,
according to Ms. Nye, Judge Leahy had ruled that there was nothing involving
the September 1998 survey that could be part of the case that was pending
before her. Ms. Nye averred that she had contacted Ms. Leslie Weyn, a
staff attorney at the Civil Remedies Division, to ascertain whether in
fact the remedy of civil money penalties had been imposed. Ms. Nye contended that, as of February 3, 1999, Petitioner
believed that there were no civil money penalties for which Petitioner
owed payment. She concluded by asserting that "if in fact the civil money
penalty had been imposed" then Petitioner would "seek permission to file
a delayed appeal and include the issue within its ongoing appeal." On April 7, 1999, Ms. Nye filed a letter with the Departmental
Appeals Board Civil Remedies Division. She requested a hearing "to appeal
the finding of noncompliance and immediate jeopardy which led to the imposition
of a civil money penalty and denial of payment for new admissions effective
September 23, 1998."
Petitioner did not file a hearing request timely and is
not entitled to a hearing. The notices that HCFA sent to Petitioner on
September 21, and October 20, 1998 plainly advised Petitioner of its right
to request a hearing and advised Petitioner of the deadlines by which
Petitioner could request a hearing. HCFA Ex. 3; HCFA Ex. 4. Petitioner
would have been entitled to a hearing had it filed a hearing request within
60 days of its receipt of either of those two notices. 42 C.F.R. § 498.40(a)(2).
It did not do so. Petitioner did not file a hearing request until April
7, 1999. And, even if Ms. Nye's February 3, 1999 letter were construed
to be a hearing request, that letter was not submitted within 60 days
of Petitioner's receipt of the September 21, and October 20, 1998 notices. Petitioner seems now to argue that it didn't actually
receive HCFA's October 20, 1998 notice. Also, Petitioner seems to argue
that HCFA bears a burden of producing affirmative evidence - independent
of a copy of the notice that it sent to Petitioner - that the notice was
actually received by Petitioner. In its response to HCFA's motion, Petitioner
asserts that:
Petitioner's response to motion to dismiss at 4. I find these arguments to be without merit. First, Petitioner
misstates the law. The regulations create a presumption that a notice
that HCFA sends to a party is received by that party. 42 C.F.R. § 498.22(b)(3).
It is Petitioner's burden to prove that it did not receive a notice if
it denies that it received that notice. Second, Petitioner offered no affirmative evidence that
it failed to receive the notice. I note particularly that Petitioner did
not provide a declaration or affidavit from any of its officers or employees
in which any of those individuals asserted that the notice was not received
by Petitioner. Finally, even if Petitioner did not receive the October
20, 1998 notice it has not denied receiving HCFA's September 21, 1998
notice. As was the case with the October 20, 1998 notice, HCFA's September
21, 1998 notice plainly told Petitioner that HCFA was imposing remedies
and that Petitioner had a right to request a hearing.
A party that has not filed a hearing request timely may
ask for an extension of time within which to file its request. 42 C.F.R.
§ 498.40(c)(1). An administrative law judge may grant a request for an
extension where the party who requests the extension establishes good
cause for not having filed its hearing request timely. 42 C.F.R. §
498.40(c)(2). An administrative law judge may dismiss a hearing request
where the request has not been filed timely and where the party making
the request fails to demonstrate good cause for its failure to file a
hearing request timely. 42 C.F.R. § 498.70(c). 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 CR387 (1995) aff'd DAB No. 1554 (1996); Jackson Manor Health
Care, Inc., DAB CR545 (1998); Mathis Nursing Home, DAB CR461
(1997). Avoidable human error is not "good cause" for failing to file
a hearing request timely. Jackson Manor Health Care, Inc., DAB
CR545, at 9 - 10; Mathis Nursing Home, DAB CR461, at 9. Petitioner did not establish good cause for failing to
file a hearing request timely. It has described no circumstance beyond
its ability to control which would have prevented it from filing a hearing
request timely. As I discuss above, at Finding 1, Petitioner did not satisfy
me that it failed to receive HCFA's September 21, 1998 and October 20,
1998 notices. It has not demonstrated that any language in either of these
notices was ambiguous or misled Petitioner into concluding that it did
not need to protect its rights by requesting a hearing. And, Petitioner
has not established that it was misled into concluding that it did not
need to request a hearing by other statements made to it by or on behalf
of HCFA. Petitioner asserts, generally, that it was misled into
believing that it did not have to file a hearing request inasmuch as HCFA
had not advised it clearly that it was imposing remedies against Petitioner.
More specifically, Petitioner argues that HCFA's September 21, 1998 and
October 20, 1998 notices were vague and confusing and did not state that
HCFA was imposing remedies against Petitioner. Additionally, Petitioner
argues that it was led to believe at a prehearing conference in another
case, Civil Remedies Docket No. C-98-465, that no remedies had been imposed
against it by HCFA. Finally, Petitioner asserts in its April 7, 1999 hearing
request that it had received a document dated October 20, 1998, from the
Arkansas State survey agency, which informed Petitioner that "recommended
remedies would not be forwarded to HCFA unless a revisit survey found
the facility remained out of compliance." Petitioner evidently is suggesting
that it relied on this alleged October 20, 1998 notice as holding Petitioner
harmless from the imposition of any remedy by HCFA unless additional deficiencies
were identified at Petitioner's facility in the future. I find Petitioner's general assertion that it was misled
into believing that it did not have to file a hearing request to be without
merit. I also find each of the arguments that Petitioner makes to support
its overall assertion to be without merit. Petitioner offered no persuasive
evidence to show that it was misled into not filing a hearing request
timely in this case. I do not find that there is any material ambiguity in
either the September 21, 1998 notice or the October 20, 1998 notice. Each
of these notices clearly and unequivocally tells Petitioner that HCFA
had determined to impose remedies against Petitioner which included civil
money penalties. HCFA Ex. 3; HCFA Ex. 4. Each of these notices also plainly
tells Petitioner that it had a right to request a hearing to contest HCFA's
determinations. And, each notice cautions Petitioner that it must request
a hearing within 60 days in order to be entitled to one.
I am not persuaded by Ms. Nye's February 3, 1999 letter,
or by arguments that Petitioner makes in opposing HCFA's motion to dismiss,
that either HCFA or its counsel misled Petitioner into not requesting
a hearing timely. In her letter, Ms. Nye asserts that Petitioner was misled
by HCFA or its counsel in two respects. P. Ex. B. First, Ms. Nye contends
that HCFA never actually imposed remedies based on the findings of the
September 17, 1998 survey of Petitioner. Rather, according to Ms. Nye,
the State survey agency made only recommendations on which HCFA failed
to act. Id. Second, Ms. Nye asserts that counsel for HCFA represented
at a prehearing conference that occurred before Administrative Law Judge
Leahy in the case that was docketed as C-98-465 that no remedies had been
imposed by HCFA. The implication of this second assertion is that Petitioner
did not request a hearing timely because it was lulled by HCFA's counsel
into believing that it did not have to request a hearing. Ms. Nye gave no basis in her February 3, 1999 letter to
assert that Petitioner had received only recommendations from the State
survey agency about remedy determinations and had not received any determinations
from HCFA to impose remedies. P. Ex. B. Nor has Petitioner provided any
evidence in response to HCFA's motion to dismiss to support this contention.
Despite Petitioner's assertion, the evidence supports the conclusion that
HCFA explicitly informed Petitioner of its remedy determination. HCFA's
September 21, 1998 and October 20, 1998 notices plainly told Petitioner
that HCFA had determined to impose remedies and plainly advised Petitioner
of its right to request a hearing. HCFA Ex. 3; HCFA Ex. 4. The prehearing conference that Ms. Nye refers to in her
February 3, 1999 letter took place on January 12, 1999. ALJ Ex. 1, at
2. The conference thus occurred nearly a month after the deadline
for requesting a hearing in response to the October 20, 1998 notice had
expired. Given that fact, nothing said by HCFA's counsel at that prehearing
conference could have misled Petitioner into not requesting a hearing
timely. Furthermore, Ms. Nye's assertion that HCFA's counsel represented
at the January 12, 1999 prehearing conference that no remedies had been
imposed by HCFA as a consequence of the September 17, 1998 survey was
explicitly rejected by Administrative Law Judge Leahy. ALJ Ex. 1, at 2
- 3. I do not find Ms. Nye's assertion of what was said by HCFA's counsel
at the prehearing conference to be persuasive in light of the fact that
it was rejected by the Administrative Law Judge who presided over that
conference. Id. Petitioner asserts that it was misled into believing that
no remedies were being imposed against it as a result of the September
17,1998 survey by correspondence that it received from the Arkansas State
survey agency dated October 20, 1998 (ALJ Ex. 2). In its brief, Petitioner
represents that the October 20 notice from the Arkansas State survey agency
stated or implied that recommended remedies would not be forwarded to
HCFA unless a revisit survey found Petitioner's facility to remain out
of compliance. P. response to motion to dismiss at 2. My review of the
October 20 notice reveals no such representation by the Arkansas State
survey agency. To the contrary, that notice is silent on the subject of
any civil money penalties or denial of payment for new admissions. Instead,
the October 20 notice appears to be little more than a form letter acknowledging
receipt of Petitioner's allegation of compliance and plan of correction
submitted in response to the findings of noncompliance from the September
17, 1998 survey. Moreover, in contrast to the October 8, 1998 notice (HCFA
Ex. 2), the October 20, 1998 notice does not specifically reference or
amend the earlier correspondence from the Arkansas State survey agency
which stated that recommendations for the imposition of remedies were
being forwarded to HCFA. Therefore, if Petitioner in fact understood the
October 20, 1998 notice from the Arkansas State survey agency to have
rescinded its earlier recommendations for the imposition of remedies,
I find such an understanding to have been unreasonable based on the content
of that notice. And, in any event, as I have explained above, the HCFA
notice plainly and unambiguously stated that HCFA had determined to impose
remedies against Petitioner and informed Petitioner of its right to request
a hearing.
HCFA argues as an alternative ground for dismissal of
Petitioner's hearing request that Ms. Nye is not authorized to act as
counsel for Petitioner. HCFA's theory is that the facility which is the
subject of this case changed ownership on April 1, 1999 and that HCFA
has learned that Ms. Nye does not represent the facility's new owner. It is not necessary for me to address the issue of whether Ms. Nye is authorized to represent Petitioner. The issue is moot because I conclude that 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. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge |
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