Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Occupational Health Clinic, Inc., |
DATE: February 21, 2002 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-00-222
Decision No. CR874 |
DECISION | |
DECISION For the following reasons I dismiss the hearing request of Petitioner, Occupational Health Clinic, Inc.:
I. Background and undisputed material facts The facts that I recite in this section are not in dispute. Petitioner is a rural health clinic that is located in
Cape Girardeau, Missouri. Petitioner applied to participate in the Medicare
program. On May 24, 1999, Petitioner was surveyed by the Missouri Department
of Health, acting on CMS's behalf, in order to determine whether Petitioner
was complying with Medicare participation requirements. The Missouri Department
of Health made survey findings that Petitioner was complying with all
participation requirements. CMS Ex. 2.(1)
CMS certified Petitioner to participate in Medicare effective May 24,
1999 based on the Missouri Department of Health's findings. Petitioner was dissatisfied with this determination. It
contended that it should have been certified to participate as early as
July 1998. Petitioner attributed its failure to be certified earlier than
May 24, 1999 to the Missouri Department of Health's failure to conduct
a compliance survey more expeditiously. Petitioner requested that CMS reconsider its certification
determination. On August 11, 1999, CMS (then known as the Health Care
Financing Administration or HCFA) notified Petitioner that it would not
change the effective date of Petitioner's certification to participate
in Medicare. P. Ex. 16. CMS expressed sympathy for the delays that had
occurred in the certification process and for the financial impact that
these delays may have had on Petitioner. However, CMS informed Petitioner
that it made its certification determination pursuant to the federal rules
which governed such certifications. The notice advised Petitioner that,
if it disagreed with CMS's determination, it could request a hearing before
an administrative law judge of the United States Department of Health
and Human Services Departmental Appeals Board. It advised Petitioner that
procedures governing a hearing request are set out at 42 C.F.R. § 498.40.
The notice informed Petitioner that a hearing request must be filed no
later than 60 days from the date of Petitioner's receipt of the notice
letter. Petitioner did not request a hearing until December 27,
1999. On that date it filed with the CMS Kansas City Regional Office a
large package of documents consisting of a cover letter and the Attachments
that I have referred to previously. The cover letter was signed by Debby
Erlanger Steger, who was the Petitioner's President and CEO. The letter
recited communications between Petitioner and a Member of Congress and
noted that Petitioner was grateful for her help "even though it exhausted
the sixty day window for appeal." The letter requested CMS to waive the
sixty day deadline for requesting a hearing. CMS's regional office treated
the letter and the attachments as a hearing request and referred it to
the Civil Remedies Division of the Departmental Appeals Board. The Civil
Remedies Division then assigned the case to me. CMS filed a brief (CMS Br.) seeking to dismiss Petitioner's
hearing request. CMS also moved that summary disposition be entered in
its favor. Petitioner filed a brief (P. Br.) opposing the motion. II. Issues, findings of fact and conclusions of law
The issues in this case are:
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. I discuss each Finding in detail.
The 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 the date that it receives notice of CMS's
determination or reconsidered determination. 42 C.F.R. §
498.40(a)(2). The date of receipt of a notice of
reconsideration is presumed to be five days from the mailing date of the
notice absent a showing that the notice was, in fact, received earlier
or later. 42 C.F.R. § 498.22(b)(3). The notice of reconsideration in this case was mailed
to Petitioner by CMS on August 11, 2000. It is presumed that Petitioner
received the notice on August 16, 2000. Petitioner would have had to request
a hearing by no later than October 15, 2000 in order to be entitled to
one. However, it was not until December 27, 1999 that Petitioner requested a hearing. It filed its request more than two months past the 60-day deadline for requesting a hearing. Therefore, Petitioner did not file its hearing request timely and is not entitled to a hearing.
An administrative law judge may dismiss a hearing request
where the request has not been filed timely. 42 C.F.R. § 498.70(c). However,
the administrative law judge may extend the time within which a party
may file its hearing request where that party makes a showing of good
cause for not filing the request timely. 42 C.F.R. § 498.40(c). What is
"good cause" is not defined by the regulations. However, in cases involving
untimely hearing requests it has been held to be circumstances that are
beyond a party's ability to control which prevented that party from filing
a timely request. Hospicio San Martin, DAB CR387 (1995), aff'd,
DAB No. 1554 (1996). I find reason to dismiss Petitioner's hearing request
pursuant to 42 C.F.R. § 498.70(c), because Petitioner has not established
good cause for failing to file its hearing request timely. There were
no circumstances that were beyond Petitioner's ability to control that
prevented Petitioner from filing a hearing request within the 60-day filing
period. Petitioner asserts that, during the period when it was entitled to request a hearing, it was attempting to settle its dispute with CMS. P. Br. at 2. Settlement discussions included the intervention of Petitioner's representative in Congress. According to Petitioner:
Id. Thus, Petitioner argues that it could not request
a hearing until settlement discussions had ended, because Petitioner did
not know what issues it would be appealing until then. There is nothing in this case to show that forces beyond
Petitioner's control prevented it from filing a hearing request within
the 60-day period. Petitioner was put on notice by CMS's August 11, 1999
letter that it had only 60 days within which to request a hearing. Nothing
in that letter suggested that the 60-day period could be extended by ongoing
settlement discussions with CMS. Petitioner has produced no evidence that
CMS either told Petitioner or implied to it that it should not file its
request pending the outcome of settlement discussions. Furthermore, there
is nothing in the regulations governing hearings that suggests that the
time limits for requesting a hearing are or should be tolled by ongoing
settlement discussions. Indeed, Ms. Steger's December 27, 1999 letter in which
she requests a hearing makes it plain that Petitioner was aware that it
had failed to comply with the 60-day deadline. That is made evident by
Ms. Steger's request that the deadline be waived. I do not find to be persuasive Petitioner's argument that it did not know what issues to raise until settlement negotiations had ended. Petitioner knew - from the moment it received CMS's August 11, 1999 letter - that it wished to challenge the date when CMS certified it to participate in Medicare. Petitioner could have raised its contention that it ought to have been certified at an earlier date and all arguments that it wished to make in support of that contention in a hearing request without awaiting the outcome of settlement discussions.
The process by which a provider becomes certified to participate
in Medicare is established by regulations that are published at 42 C.F.R.
Part 489. The basic requirements for certification include a requirement
that a State survey agency must ascertain whether a provider applying
for participation satisfies the conditions for participation and must
certify its findings to CMS. 42 C.F.R. § 489.10(d). The provider applying
for participation generally must undergo a compliance survey by the State
survey agency in order for that agency to find that the provider satisfies
all conditions of participation. 42 C.F.R. § 489.13(a)(1)(i). The earliest
date that a provider may be certified by CMS to participate in Medicare
is the date of the compliance survey. 42 C.F.R. § 489.13(b). A provider
will be certified to participate as of the date of the compliance survey
if that provider is found by the State survey agency to be complying with
all federal participation requirements as of the date of the survey. As a matter of law, May 24, 1999 was the earliest date
in which CMS had the authority to certify Petitioner to participate. 42
C.F.R. § 489.13(b). The undisputed facts of this case are that Petitioner
was surveyed on May 24, 1999 for compliance with participation requirements
by the Missouri Department of Health. The Missouri Department of Health
advised CMS that Petitioner satisfied all federal participation requirements
as of May 24, 1999, the date of the survey. CMS then certified Petitioner
to participate as of that date. I do not have the authority to order CMS to certify Petitioner
to participate in Medicare at a date that is earlier than the date in
which CMS first had the authority to certify Petitioner. CMS was required
by law to certify Petitioner no earlier than that May 24, 1999 because
no compliance survey had been completed earlier than that date. Petitioner asserts that it was damaged by the Missouri Department of Health's failure to expeditiously survey Petitioner for compliance. According to Petitioner, its certification was delayed unreasonably for several months and it suffered damages as a consequence of this delay. I accept Petitioner's assertions as true for purposes of this decision. But true or not, these assertions are irrelevant. The regulations do not give me authority to override CMS's certification determination where CMS certified Petitioner to participate as of the earliest date on which the law allows certification to become effective. Neither do I have equitable authority to override the explicit requirements of governing regulations. GranCare Home Health Services and Hospice, DAB CR464 (1997). |
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JUDGE | |
Steven T. Kessel Administrative Law Judge
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FOOTNOTES | |
1. I admit into evidence CMS Exhibits (CMS Exs.) 1-2 which were attached to CMS's motion for summary disposition. I admit into evidence Petitioner documents 1-16, which I have renamed Petitioner's Exhibits (P. Exs.) 1-16. These documents are from Petitioner's president Debby Erlbacher Steger which were forwarded to the Departmental Appeals Board from CMS in a letter dated January 13, 2000. | |