SUBJECT:

The Carlton at the Lake,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

This case is before me following its reassignment to me from the docket of Administrative Law Judge Joseph K. Riotto. Having reviewed the pleadings and evidence in the case, I am now prepared to address the pending Motion for Summary Affirmance filed by the Centers for Medicare & Medicaid Services (CMS) on March 19, 1999. ⁽¹⁾

Since the filing of that Motion, appellate panels of the Departmental Appeals Board (Board) have issued several rulings addressing the question of the sufficiency of a party's request for a hearing, the central issue to be resolved by my decision in this case. I afforded the parties the opportunity to submit supplemental briefs addressing the recent authority. Both parties submitted supplemental briefs, which I have considered.

I decide that The Carlton at the Lake's (Petitioner's) August 18, 1998 hearing request did not comply with the content requirements set forth at 42 C.F.R. § 498.40(b). Consequently, I grant CMS's Motion for Summary Affirmance. Furthermore, the civil money penalty (CMP) imposed by CMS is sustained for the period beginning on April 10, 1998, and continuing through July 29, 1998.

I. Background

By letter dated August 17, 1998, CMS notified Petitioner that Petitioner was not in substantial compliance with the federal participation requirements for nursing homes participating in the Medicare and Medicaid programs. The notice letter recited that the Illinois Department of Public Health (IDPH) had conducted a standard (health) survey of Petitioner on April 10, 1998, and a Life Safety Code survey of Petitioner on April 16, 1998. According to CMS, these surveys revealed that Petitioner was not in substantial compliance with federal program participation requirements. On June 9, 1998, IDPH conducted a revisit and concluded that the health deficiencies had been corrected. IDPH had not yet conducted a Life Safety Code revisit to determine whether those deficiencies had been corrected, however. Then, on June 25, 1998, IDPH returned to the facility and conducted an abbreviated standard (complaint) survey. According to CMS, the complaint survey revealed that the facility was again out of compliance with participation requirements. IDPH conducted a Life Safety Code revisit on July 2, 1998, after which IDPH determined that Petitioner had attained substantial compliance with the Life Safety Code requirements. Finally, on July 30, 1998, IDPH conducted a health revisit, which revealed that Petitioner had attained substantial compliance with all remaining participation requirements, effective July 29, 1998.

The notice letter informed Petitioner that, as a result of the facility's noncompliance, CMS had determined to impose a CMP in the amount of $50 per day for the 111 days beginning on April 10, 1998 and continuing through July 29, 1998. The notice letter went on to state that the total amount of the CMP due from Petitioner was $11,000.⁽²⁾

CMS additionally advised Petitioner of its right to request a hearing before an administrative law judge (ALJ) and explained that:

[a] request for a hearing should identify the specific issues and the findings of fact and conclusions of law with which you disagree. It should also specify the basis for contending that the findings and conclusions are incorrect.

By letter dated August 18, 1998, Petitioner, through counsel, requested a hearing. The letter states in its entirety:

This office has been retained to represent [Petitioner] regarding its continued participation in the Title XVIII Medicare Program. Reference is made to the Notice of Imposition of Remedies issued by [CMS] dated August 17, 1998, a copy of which is attached hereto for your reference.

In order to contest the imposition of remedies and the allegations referenced therein, we hereby request that a hearing be scheduled in accordance with 42 CFR 498. The basis for the facility's challenge is that: 1) that the procedures imposed by [CMS] violate the facility's constitutionally guarantied due process rights; 2) that the interpretive guidelines and program letters are invalid because they have not been promulgated pursuant to the Administrative Procedure Act; 3) that the surveyors misapplied applicable laws and interpretive regulations; 4) that the surveyors improperly classified scope and severity levels in the violations; 5) that factual observations made by the surveyors were incorrect; 6) that procedures used to determine the facility's cycle and time for correction were misapplied; 7) that the conditions observed during Life Safety Code Surveys were not deficiencies; and 8) that [CMS] and the State are estopped from requiring building corrections after approving the building annually since 1985.

Please address all further correspondence in this matter to my attention at the above address.

Thank you.

In response to Judge Riotto's August 21, 1998 Order, Petitioner requested an unopposed stay of proceedings in October 1998, which Judge Riotto granted. On March 17, 1999, the parties jointly filed a notice of issues and set forth agreed-upon briefing deadlines. CMS stated that it would file a motion to dismiss Petitioner's hearing request, and/or for summary adjudication.

Pursuant to the briefing schedule, CMS timely submitted a brief in support of a motion for summary affirmance, with four exhibits. Petitioner timely submitted a response brief. CMS filed a reply. Subsequently, Petitioner filed a motion for leave to supplement the record instanter with the decision in Fairview Nursing Plaza, Inc., DAB No. 1715 (2000). Petitioner attached a copy of the decision to its motion, and labeled it as "Exhibit A." Finally, as noted above, by Order dated July 18, 2001, I offered the parties the opportunity to file supplemental briefs, which they did.

Petitioner did not object to CMS's exhibits. CMS did not object to Petitioner's motion to supplement the record with the Fairview decision. Therefore, I receive into evidence CMS Exhibits (Ex.) 1 - 4. I also grant Petitioner's motion and receive into evidence P. Ex. A.

II. Applicable law

The regulations at 42 C.F.R. § 498.40 promulgated by the Secretary of Health and Human Services specify that a request for a hearing must -

(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.

42 C.F.R. § 498.40(b).

An ALJ must examine the contents of the document which requested a hearing in order to determine whether the right to a hearing has accrued with respect to all, some, or none of the issues stated in the document. Consequently, the fact that an affected party has filed a document containing the words "request a hearing" within the 60-day filing period does not mean that the document satisfies the applicable regulatory requirements. See Birchwood Manor Nursing Center, DAB No. 1669 (1998), aff'd, Birchwood Manor Nursing Center v. Dep't of Health and Human Servs., No. 98-60695 (5^th Cir. June 29, 1999); Regency Manor Healthcare Center, et al., DAB No. 1672 (1998); Care Inn of Gladewater, DAB No. 1680 (1999).

The regulations at 42 C.F.R. § 498.40(c) provide that the ALJ may extend the time for filing a request for hearing for good cause shown. Under 42 C.F.R. § 498.70(c), the ALJ may dismiss a hearing request entirely or as to any stated issue if the affected party did not timely file a hearing request and the time for filing has not been extended for good cause.

III. Findings of fact and conclusions of law

I make the following findings of fact and conclusions of law:

1. 42 C.F.R. § 498.40(b) requires that a request for a hearing identify the issues and the findings of fact and conclusions of law with which a petitioner disagrees and specify the basis for the petitioner's position.

2. Petitioner's August 18, 1998 hearing request did not identify the issues and the findings of fact and conclusions of law with which it disagreed, with respect to any issues relating to the surveys of April 10, 1998, April 16, 1998, June 25, 1998, and July 2, 1998.

3. Petitioner failed to file a timely hearing request that complied with the requirements of 42 C.F.R. § 498.40(b) with respect to any issues relating to the surveys of April 10, 1998, April 16, 1998, June 25, 1998, and July 2, 1998; accordingly, Petitioner's hearing request is properly dismissed pursuant to 42 C.F.R. § 498.70(c).

4 Petitioner failed to establish good cause within the meaning of 42 C.F.R. § 498.40(c) which would warrant an extension of time for filing a hearing request.

5. Petitioner has not established a basis for a hearing on new issues pursuant to 42 C.F.R. § 498.56(a).

6. The CMP remedy imposed by CMS, in the amount of $50 per day for 111 days (a total of $5,550), is sustained for the period beginning on April 10, 1998 and continuing through July 29, 1998.

IV. Discussion

For the reasons set forth below, I conclude that Petitioner's August 18, 1998 hearing request was legally defective and failed to preserve for adjudication any issues relating to the surveys of April 10, 1998, April 16, 1998, June 25, 1998, and July 2, 1998. Accordingly, I grant CMS's motion for summary affirmance of all issues relating to those surveys. Further, I sustain a CMP in the amount of $50 per day for the period beginning on April 10, 1998 and continuing through July 29, 1998.

Based on the premise that Petitioner's hearing request did not satisfy the requirements of 42 C.F.R. § 498.40(b), CMS moved for dismissal of the hearing request or, in the alternative, for summary affirmance of the imposition of CMS's remedies. CMS argues that Petitioner did not specify any issues or identify a single finding of fact relating to any of the surveys referenced in CMS's August 17, 1998 notice letter with which it disagreed. CMS contends further that Petitioner's hearing request is silent as to what might be the "basis" for its challenge to the findings contained in those surveys.

In response to CMS's arguments, Petitioner alleges that its hearing request is adequate to satisfy the requirements of 42 C.F.R. § 498.40(b). Petitioner argues that CMS's interpretation of 42 C.F.R. § 498.40(b) is overly technical. Petitioner points out further that different ALJs have interpreted the requirements of 42 C.F.R. § 498.40(b) differently. Finally, in the event that CMS's motion is granted in whole or in part, Petitioner requests, in the alternative, either a hearing on new issues that impinge on its rights, in accordance with 42 C.F.R. § 498.56(a), or an extension of time to amend its hearing request based on good cause, in accordance with 42 C.F.R. § 498.40(c).

As appellate panels of the Board have emphasized, this tribunal should not lightly conclude that a petitioner has, contrary to clear requirements, failed to take advantage of its opportunity for hearing. See Fairview Nursing Plaza, DAB No. 1715, at 5. On the other hand, the Board's decisions mandate "strict adherence by petitioners to the regulations' requirements when filing hearing requests." Care Inn of Gladewater, Inc., DAB No. 1680, at 11; See Birchwood Manor Nursing Center, DAB No. 1669, at 10.

In Alden-Princeton Rehabilitation and Health Care Center, Inc., DAB No. 1709 (1999), and Fairview, the appellate panel set forth the process for assessing the sufficiency of a hearing request and the suitability of dismissal for failure to satisfy regulatory requirements. First, I must determine whether the language of Petitioner's hearing request, when read in the context of CMS's notice, meets the requirements set forth in the plain language of 42 C.F.R. § 498.40(b). If it fails to meet one or both of the regulatory requirements, I should consider whether to exercise my discretion not to dismiss the case.

In assessing against the regulatory requirements of 42 C.F.R. § 498.40(b)(1) the adequacy of Petitioner's hearing request to challenge CMS's findings at the health surveys, I conclude that the wording used by Petitioner is legally insufficient to preserve any issues for appeal relating to the health surveys of April 10 or June 25, 1998. Petitioner's hearing request is similarly lacking with regard to the Life Safety Code surveys conducted on April 16 and July 2, 1998. The primary reason for drawing this conclusion is that it is impossible from Petitioner's hearing request to determine which of CMS's findings from which survey Petitioner intends to challenge.

Petitioner requests that a hearing be scheduled "to contest the imposition of remedies and the allegations referenced [in the Notice of Imposition of Remedies dated August 17, 1998]." Nowhere does the hearing request refer to any of the four surveys by date. Thus, while Petitioner's hearing request does indicate that it disagrees with at least some of CMS's allegations, Petitioner has failed to articulate in any way which issues or findings from which of the surveys are in dispute.

While I intend no hyper-technical reading of Fairview, it is important that I explain precisely why it does not offer support to Petitioner here. When the appellate panel wrote that the use of the terms "all" and "each" fairly raised all findings and conclusions in each of CMS's assertions of noncompliance, it was able to do so by treating the terms "all" and "each" as absolutes, as blanket assertions of an all-inclusive challenge to CMS's entire case. The panel's language is unmistakable on this point:

[w]hile Fairview indeed used broad terms, "all" and "each," to convey that it intended to challenge the numerous findings and conclusions that CMS relied on to impose the CMP, those terms were neither ambiguous nor so generalized as to be meaningless, as the ALJ concluded. To the contrary, Fairview made clear by its use of these terms, together with its reference to the CMP case number, that it wished to appeal each factual finding in every example supporting the deficiencies on which CMS relied.

Fairview, DAB No. 1715, at 13.

The force of this analysis can be readily demonstrated by altering arguendo the exact language approved in Fairview, and by then testing the structural integrity of the appellate panel's argument in the context of that altered language. For example, if instead of using the absolute expression "all," the challenged hearing request had complained of "some" or "several" of CMS's charges, it is difficult to imagine the panel believing that Fairview had "made clear by the use of these terms" that it intended to place in issue "each factual finding in every example . . . ." In the same way, had the Fairview hearing request stopped short of challenging "each example" and "each tag number cited," and contested "most" or "virtually all" of them, it is not easy to suppose that the appellate panel would have been comfortable in the analysis it set out immediately preceding the language I have quoted above. In short, the Fairview hearing request may have been neither careful nor precise pleading, but it was absolutely inclusive pleading, and I understand its absoluteness and its inclusiveness to have been at the heart of the appellate panel's rationale.

I find that Petitioner's challenge to "the allegations referenced" cannot reasonably be read to place at issue every finding in the four surveys covered by CMS's notice letter. Perhaps if there were but a single survey at issue, the ambiguity in Petitioner's hearing request would be less problematic. The notice letter, however, refers to two health surveys (April 10 and June 25, 1998) and two Life Safety Code surveys (April 16 and July 2, 1998). Each of these four surveys cited deficiencies.⁽³⁾ Unlike the hearing request in Fairview, the language used by Petitioner does not in any way make clear, through use of the word "all" or otherwise, that it intends to put at issue all of the findings of all the surveys in question.

The appellate panel decisions make clear that an adequate hearing request must satisfy both prongs of 42 C.F.R. § 498.40(b). I have concluded that Petitioner's hearing request fails to specify adequately which of CMS's findings of fact or conclusions of law it seeks to contest. I therefore find that Petitioner's August 18, 1998 hearing request is legally insufficient within the meaning of 42 C.F.R. § 498.40(b)(1). Since Petitioner's hearing request fails to satisfy the requirements of 42 C.F.R. § 498.40(b)(1), I need not consider whether it also fails to comply with 42 C.F.R. § 498.40(b)(2). In any event, the two prongs of 42 C.F.R. § 498.40(b) functionally overlap to a certain extent. For example, Petitioner's hearing request states that two of Petitioner's bases for contesting CMS's findings are that: "factual observations made by the surveyors were incorrect;" and "the conditions observed during the Life Safety Code surveys were not deficiencies." These statements are quite general, and are reminiscent of the statements of basis found inadequate in the Alden-Princeton decision. Nevertheless, one might conclude that they were minimally adequate to state a basis for disagreement if they could be identified with particular findings of fact. Because Petitioner's hearing request fails to articulate which specific findings of fact it seeks to challenge, however, it is impossible to determine whether the listed bases are adequate to support the hearing request.

I next consider whether I should exercise my discretion not to dismiss Petitioner's hearing request. The regulations at 42 C.F.R. § 498.70 confer on ALJs the discretion to consider, when presented with extenuating circumstances in a particular case where the requirements of 42 C.F.R. § 498.40(b) were not met, whether the case should not be dismissed in its entirety or as to any particular issue. Alden-Princeton, DAB No. 1709, at 15. I may examine such factors as whether defects in the initial request for hearing were, in effect, subsequently remedied by the submission of additional documents; whether CMS in effect waived its objection to the request in whole or in part; whether Petitioner may have reasonably concluded that its hearing request was sufficient in whole or part based on the course of the proceedings; and whether, and the extent to which, the intent of the Secretary's hearing request filing procedures were fulfilled. Id. at 17.

In the present case, Petitioner did not submit additional documents to supplement or amend its August 18, 1998 hearing request. Moreover, the record does not establish that CMS has ever waived its objections to the adequacy of Petitioner's hearing request. There is nothing in this record that could have led Petitioner to believe that its hearing request was sufficient.

Petitioner contends that a finding that its hearing request is inadequate under 42 C.F.R. § 498.40 is not supported by DAB precedent. Petitioner by this claim ignores the Board's decisions in Birchwood Manor Nursing Center, Regency Manor Healthcare Center, and Care Inn of Gladewater, Inc.

Petitioner argues further that CMS's interpretation of 42 C.F.R. § 498.40(b) is "at the extreme end" and that similarly worded hearing requests have been accepted unchallenged. As support for its position, Petitioner cites to the ALJ decisions in Life Care Center of Hendersonville, DAB CR542 (1998) and CarePlex of Silver Spring, DAB No. 1627 (1997), as having "more practical and realistic" interpretations of the requirements of 42 C.F.R. § 498.40.

However, in the Board's decision in Care Inn of Gladewater, Inc., an appellate panel of the Board distinguished Life Care Center of Hendersonville, stating as follows:

Care Inn argued that the ALJ in Life Care Center of Hendersonville . . ., held that section 498.40(b)(2) does not require a "bill of particulars" in requesting a hearing. However, in that case there was no allegation that the petitioner's hearing request was fatally defective for failure to comply with the content requirements of section 498.40; rather, the question was whether failure to articulate precisely a legal defense in a hearing request would forever bar the petitioner from asserting that defense. Here, by contrast, Care Inn's request did not specify any basis for its disagreement with the noncompliance findings, and thus failed to meet the threshold standards for the content of hearing requests.

Care Inn of Gladewater, DAB No. 1680, at 9, 10.

In this case, as in Care Inn of Gladewater, and unlike Life Care Center of Hendersonville, CMS has alleged that Petitioner's August 18, 1998 hearing request fails to comply with the content requirements of 42 C.F.R. § 498.40. Thus, the rationale in Life Care Center of Hendersonville is inapplicable to this case.

Similarly, the rationale of the decision in CarePlex does not support Petitioner's claim that its hearing request is adequate. In the CarePlex case, there was never any controversy that a valid hearing request challenging CMS's noncompliance determination, as well as its CMP amount determination, had been filed timely by CarePlex. In that case, an appellate panel of the Board disapproved of the ALJ's construction of certain statements made by petitioner's counsel during a prehearing conference. The ALJ had found an intent to waive the issue of the reasonableness of the CMP amount, notwithstanding counsel's subsequent representation that there was no such intent. The appellate panel, after examining the substance of CarePlex's written submissions, including the content of its hearing request, determined that CarePlex had not intended to waive the issue of the reasonableness of the amount of the CMP. Contrary to what Petitioner claims, the CarePlex decision did not set any standard for evaluating what a hearing request must contain under 42 C.F.R. § 498.40(b).

In Regency Manor Healthcare Center, DAB No. 1672, an appellate panel found that the ALJ properly dismissed the petitioners' hearing requests pursuant to 42 C.F.R. § 498.70(c). The panel stated:

[s]pecifically, we find that the ALJ's determination was based on the plain language of section 498.40(b), which mandates that a hearing request identify the specific issues and the findings of fact and conclusions of law that the petitioner disputes, as well as specify the basis for its position. Section 498.70(c), which authorizes dismissal for lack of a timely filed hearing request, clearly refers to the request for hearing described in section 498.40(b). Since Petitioners' letters failed to meet the requirements of section 498.40(b), the ALJ properly dismissed their cases pursuant to section 498.70(c).

Regency Manor, DAB No. 1672, at 2. The Board further stated that "the plain language of section 498.40(b) mandates that a hearing request not only identify 'the specific issues and the findings of fact and conclusions of law that the petitioner disputes,' but also that it 'specify the basis for its position.'" Id., at 9; see also Birchwood Manor Nursing Center, DAB No. 1669, at 2.

Furthermore, with respect to Petitioner's allegation that similar hearing requests have been accepted in the past, an appellate panel of the Board previously rejected this argument in Birchwood Manor:

past practice of HCFA and the ALJs is irrelevant to the legal question presented here. As indicated above, section 498.40(b) on its face requires that a request for hearing contain certain information. Even if the ALJs did not previously enforce this requirement or HCFA did not previously move to dismiss based on this requirement, that would not change its meaning.

Birchwood Manor, DAB No. 1669, at 12.

For the reasons discussed above, I conclude that no discretionary basis exists which warrants my accepting Petitioner's appeal.

In the event that I agree with CMS's position, Petitioner, in the alternative, asserts that there exists good cause for me to grant an extension for it to file an amended request for hearing, in accordance with 42 C.F.R. § 498.40(c)(2). Petitioner states that it used its "best efforts" to comply with the requirements of the regulations. Petitioner notes that its hearing request was filed before many of the decisions discussed above were issued. Therefore, Petitioner contends, it was "not aware of a possible requirement for much more expansive requests for hearing." P. Br. at 10. Petitioner notes also that counsel had filed "similar requests for hearing in the past, and has been given hearings in accordance with those requests." P. Br. at 11.

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 No. 1554 (1996). Petitioner's "good cause" argument has no merit. Petitioner has not described any circumstance beyond its ability to control which would have prevented it from filing a hearing request timely and in accordance with the requirements of 42 C.F.R. § 498.40. The appellate panel decision in Birchwood, to cite one example, did not in any way change the content requirements, but merely upheld them. Moreover, as discussed above, the appellate panel in the Birchwood decision stated that the past practice of CMS and the ALJs is irrelevant to the determination of whether Petitioner has filed an adequate hearing request within the meaning of the regulations. The plain language of 42 C.F.R. § 498.40(b) requires that a document contain certain information to constitute a hearing request. Despite Petitioner's attempts to suggest otherwise, the meaning of 42 C.F.R. § 498.40(b) has not changed.

As another alternative, in the event I grant CMS's Motion for Summary Affirmance, Petitioner has requested a hearing on new issues that impinge on its rights, pursuant to 42 C.F.R. § 498.56(a). I deny this request. Petitioner has neither articulated any reason why I should exercise my discretion to provide a hearing on new issues, nor has it identified what "new issues" it wishes me to consider. Moreover, CMS contends, and I agree, that Petitioner is not seeking to raise "new issues," but is attempting to litigate issues that it failed to preserve for appeal.

As discussed above, I have determined that Petitioner's hearing request was legally insufficient to preserve any factual issues relating to CMS's August 17, 1998 notice letter.

Petitioner cannot now use 42 C.F.R. § 498.56(a) as a mechanism to somehow "save" those issues and circumvent its own failure to comply with the requirements of 42 C.F.R. § 498.40(b).

Because I have concluded that Petitioner failed to file an adequate hearing request and that no good cause exists to extend the time for filing or to grant a hearing on new issues, the CMP imposed by CMS must be upheld. I note, however, that the August 17, 1998 notice letter contains inconsistent information regarding the amount of the CMP. As I discussed at note 1, above, the notice letter states that CMS is imposing a CMP in the amount of $50 per day for 111 days, but states that the total amount of the CMP is $11,000. CMS argues that it intended to adopt the recommendation of IDPH, which was for a $100-per-day CMP. Accordingly, it says that the notice letter is in error when it states the per diem amount as $50. On the other hand, Petitioner argues that it is impossible from the face of the letter to tell whether CMS erred in stating the per diem amount or the total amount. Petitioner further argues that the notice letter should be construed strictly against the drafter.

I agree with Petitioner. I cannot tell from the notice letter itself which part of the CMP calculation was stated in error. I cannot assume that CMS simply intended to accept the recommendation of IDPH because the notice letter does not uphold every recommendation of IDPH for the imposition of remedies. For example, the letter states that CMS is not pursuing IDPH's recommendations to impose a denial of payment for new admissions or termination. Thus, it is not unreasonable to infer that CMS might also have determined to impose a CMP in an amount less than that recommended by IDPH. I also agree with Petitioner that it is proper to resolve any ambiguity in the notice letter against the party which drafted the letter. I therefore conclude that the amount of the CMP is $50 per day for 111 days, for a total amount of $5,550.

As a final matter, Petitioner's hearing request asserted that CMS's imposition of remedies violated Petitioner's right to due process and that guidelines followed by the State surveyors were not validly promulgated under the Administrative Procedure Act. I have found that Petitioner's hearing request is defective as a whole and, thus, these legal issues are not preserved for appeal. In the alternative, however, I find and conclude that, even if Petitioner's legal challenges to CMS's actions were properly preserved, I lack the authority to rule on them. See Orchard Grove Extended Care Center, DAB CR541 (1998). For this reason, had these issues been preserved, I would grant summary disposition in favor of CMS.

V. Conclusion

Petitioner's August 18, 1998 hearing request did not satisfy the requirements of 42 C.F.R. § 498.40(b). I exercise my discretion under 42 C.F.R. § 498.70(c), and dismiss the hearing request. Accordingly, CMS's motion for summary affirmance is granted. The CMP imposed by CMS is sustained in the amount of $50 per day for the period beginning on April 10, 1998 and continuing through July 29, 1998.

Richard J. Smith

Administrative Law Judge

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

2. While the notice letter states that IDPH recommended that a CMP of $100 per day be imposed, the letter goes on to state that "a CMP in the amount of $50 per day is being imposed." Based on that unambiguous statement of the per diem amount of the CMP, I can only assume that CMS's calculation of $11,000 as the total amount of the CMP represents a mathematical error. Plainly, a CMP of $50 per day over a period of 111 days would result in a total CMP of $5,550.

3. The Life Safety Code survey of July 2, 1998, concluded that Petitioner had achieved substantial compliance, but that deficiencies remained at a scope and severity level "B." While such de minimis deficiencies do not form the basis for the imposition of any remedies by CMS, Petitioner's hearing request makes reference to "Life Safety Code surveys" in the plural. Thus, I cannot exclude the possibility that Petitioner intended by its hearing request to challenge some or all of those findings, as well as those cited at the April 16, 1998 survey.