Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Casa Del Sol Senior Care Center, |
DATE: February 27, 2006 |
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Centers for Medicare & Medicaid
Services.
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Docket No. C-05-584 Decision No. CR1418 |
DECISION | |
REQUEST FOR HEARING I dismiss the hearing request of Petitioner, Casa Del Sol Senior Care Center, as it relates to a survey of the facility that was completed on December 9, 2005. I find that Petitioner did not timely request a hearing concerning the survey findings, and it has not made a showing of good cause for its failure to do so. I. Background and Undisputed Material Facts The facts of this case are not disputed. Petitioner is a skilled nursing facility that is located in Las Cruces, New Mexico. It participates in the Medicare program, and its participation is subject to regulations which govern the participation of skilled nursing facilities in Medicare at 42 C.F.R. Parts 483, 488, and 498. On December 9, 2005, a survey was conducted of Petitioner's facility by the New Mexico Department of Health in order to determine whether Petitioner was complying substantially with Medicare participation requirements. As a result of the surveyors' findings, the Centers for Medicare & Medicaid Services (CMS) concluded that Petitioner failed to comply substantially with participation requirements. The issues in this case turn on the adequacy of notice made by CMS to Petitioner in letters setting forth the proposed remedies and appeal rights and Petitioner's responses to those letters. I conclude, as explained fully below, that the correspondence between CMS and Petitioner evidences that Petitioner was clearly and adequately notified that CMS intended to impose a period of denial of payment for new admissions (DPNA). The correspondence shows also that Petitioner made assumptions to its detriment concerning the date on which it regained substantial compliance. CMS's first notice letter to Petitioner is dated February 1, 2005. In it, CMS indicated that, based on Petitioner's failure to comply with four conditions of participation, CMS would impose on Petitioner, inter alia, a per instance civil money penalty (CMP) of $5,000, and DPNA, effective February 15, 2005. The notice explained:
Concerning the DPNA, the notice explained:
Concerning the time for perfecting the appeal for a hearing before an administrative law judge, the notice indicated that: "A written request for hearing must be filed no later than April 2, 2005 (60 days from the date of receipt of this letter via fax)." CMS sent Petitioner a second notice letter, this one dated February 9, 2005. In bold type across the top of the letter, it states "This letter supercedes the CMS letter dated February 1, 2005 to revise DPNA effective date." The explanations from the February 1, 2005 letter were changed slightly. Now, CMS explained concerning the CMP:
Concerning the DPNA, CMS explained:
And, concerning the time for perfecting an appeal, CMS wrote: "A written request for hearing must be filed no later than April 10, 2005 (60 days from the date of receipt of this letter via fax)." Petitioner responded to CMS in a letter dated March 21, 2005. Petitioner wrote:
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CMS sent Petitioner a letter dated May 3, 2005, that explained that Petitioner had corrected its deficiencies and achieved substantial compliance. Concerning the DPNA, CMS noted:
CMS's letter further indicated: "Per-instance Civil Money Penalty ALREADY IMPOSED in the amount $5,000.00." (Bold type in original). Petitioner filed a request for hearing dated June 7, 2005, in which Petitioner explained:
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CMS filed Respondent's Motion To Dismiss Petitioner's Hearing Request (CMS's Motion), dated July 20, 2005, in which CMS argues for the dismissal based on the untimeliness of Petitioner's request for a hearing, or alternatively, for Petitioner having waived its right to a hearing. Petitioner filed its Application For Leave To File Untimely Appeal And Response To Respondent's Motion To Dismiss Petitioner's Appeal (Petitioner's Response), dated August 19, 2005. II. Issues, findings of fact and conclusions of law
The issues in this case are whether:
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 governing administrative hearings in cases involving CMS's determinations of noncompliance afford providers a hearing on any remedies imposed before an administrative law judge if the provider requests a hearing within 60 days of its receipt of notice of the remedy determination from CMS. 42 C.F.R. § 498.40(a)(2). Petitioner is not entitled to a hearing concerning the noncompliance findings made at the December 9, 2005 survey because it did not file a hearing request within the 60-day period. CMS sent a revised notice of remedy determination to Petitioner concerning the December 9, 2005 survey on February 9, 2005. In order to perfect its request for a hearing within the 60-day period, Petitioner would have had to request a hearing not later than April 10, 2005. Petitioner sent a letter to CMS dated March 21, 2005, in which Petitioner waived its right to appeal the CMP part of the proposed remedies. Petitioner filed its request for hearing on June 7, 2005. In the request for hearing, Petitioner asserted that its request was "timely under the circumstances of the survey cycle." Petitioner does not dispute, however, that the request for hearing was filed outside of the 60-day period for timely filing a request for hearing. Petitioner's Response at 2.
The regulations provide that an administrative law judge may extend the time for filing a hearing request beyond the 60-day period when a petitioner establishes good cause for not filing a request timely. 42 C.F.R. § 498.40(c)(2). The administrative law judge has discretion to dismiss a hearing request that is untimely filed, where the deadline for filing the request has not been extended. 42 C.F.R. § 498.70(c). In this case there is no dispute that Petitioner did not file a timely request to challenge the noncompliance findings stemming from the December 9, 2005 survey. Petitioner has, however, advanced several arguments in support of my finding good cause to extend the time for filing beyond the 60-day period. The term "good cause" is not defined at 42 C.F.R. § 498.40 or anywhere else in 42 C.F.R. Part 498. In a case cited by both parties, Hillcrest Healthcare, L.L.C., DAB CR976 (2002), the administrative law judge described an approach to defining good cause the synthesis of which is that a good cause for extending the time for filing is one that was beyond the petitioner's control. Although rational and consistent with the Part 498 regulations, this approach has not been adopted by an appellate panel of the Departmental Appeals Board (Board). The Board has not provided an authoritative or complete definition of the term "good cause" in section 498.40(c)(2). Wesley Long Nursing Center, Inc., DAB No. 1937, at 7 n.7 (2004). Neither, however, has the Board, despite ample opportunity, disabused us of this approach to considering "good cause." Id. citing Glen Rose Medical Center Nursing Home, DAB No. 1852 (2002); Hillcrest Healthcare, L.L.C., DAB No. 1879 (2003). Accordingly, I am guided by the principle that "good cause" may be found among those causes that are beyond the control of a petitioner. Nevertheless, in the instant matter, Petitioner has failed to persuade me that anything transpired beyond Petitioner's control that caused it to untimely file its request for a hearing. Petitioner asserts that "[t]he Facility did not make an informed waiver of its right to appeal, where the CMS subsequently assesses penalties without prior notice to the Facility." Petitioner's Response at 3. And, "Petitioner was misled by the statements contained in the CMS letter of February 9, 2005." Id. at 4. And, Petitioner makes also constitutional arguments. I find that the notice provided to Petitioner was adequate, Petitioner was not misled, and the constitutional arguments are beyond the scope of my authority to review. Petitioner professes surprise at the contents of CMS's May 3, 2005 letter, which Petitioner characterizes as "revising the range of penalties" and "CMS' attempt to enforce subsequent additional sanctions beyond the scope of those in [sic] described in the notice of substantial non-compliance." Petitioner's Response at 3. Petitioner mis-characterizes the notices from CMS. The February 9, 2005 letter from CMS clearly warns of the possibility that there will be a period of DPNA imposed:
Moreover, CMS's May 3, 2005 notice does not revise the range of penalties, it defines them for the first time. In the February 9, 2005 letter, CMS warned of a DPNA period of indefinite duration; in the May 3, 2005 letter, CMS explained that the duration of the DPNA had been defined. No "subsequent additional sanctions," as Petitioner describes them, are proposed in the May 3, 2005 letter from CMS. Petitioner claims also that it was misled by the following language in CMS's February 9, 2005 notice letter: "This denial of payment will continue until your facility achieves substantial compliance or your provider agreement is terminated." Petitioner explains:
Petitioner's Response at 4 (bold type in original). Petitioner's view of CMS's notice hinges entirely on Petitioner's self-serving assessment that "[t]he facility achieved substantial compliance on February 9, 2005." I find it unpersuasive. Petitioner's assertion that its plan of correction was "fully accepted" by CMS is unsupported, and Petitioner makes no proffer why it was reasonable for it to believe it had regained substantial compliance on February 9, 2005. Obviously, the determination that substantial compliance is regained is not achieved by a facility's mere declaration. CMS must verify that the deficiencies are corrected. Prior to verification by CMS, a facility's claim to have achieved substantial compliance is an opinion. Petitioner appears to have assumed that its presentation of a plan of correction would toll the period of DPNA on February 9, 2005. But, Petitioner should have known that its plan was subject to confirmation at a revisit survey. Petitioner assumed the risk that when the revisit occurred, CMS would not agree with Petitioner's contention that substantial compliance was achieved on February 9, 2005. Petitioner should not have waived its right to challenge the CMP, and failed to file a timely request for hearing if it contemplated challenging the remedies under any of the patently foreseeable scenarios regarding the duration of the period of DPNA. The language in the CMS notices is unambiguous; I reject the notion that Petitioner was misled in any way. Finally, I do not have the authority to review Petitioner's argument concerning the Due Process Clause of the U.S. Constitution. CMS's motion is granted, and I dismiss Petitioner's request for a hearing pursuant to 42 C.F.R. § 498.70(c). |
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JUDGE | |
Anne E. Blair Administrative Law Judge |
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