Westborough Healthcare, 2025-17 (HHS-CRD May 15, 2025)

DISMISSAL

Westborough Healthcare (Petitioner or Facility) is a skilled nursing facility (SNF) located in Westborough, Massachusetts that participates in the Medicare program. On January 13, 2022, Ascellon Corporation (Ascellon), a contractor for the Centers for Medicare & Medicaid Services (CMS), conducted a Life Safety Code (LSC) and Emergency Preparedness (EP) survey at the facility. As a result of the survey, Ascellon found that Petitioner was not in substantial compliance with the Medicare requirements located at 42 C.F.R. § 483.90(a), citing tags K351, K916, K918, and K920. CMS Exhibit (Ex.) 1, Petitioner’s Request for Hearing (RFH)1 at 16-27.

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In an email on January 21, 2022, CMS notified Petitioner that it was not in substantial compliance with Medicare program requirements and imposed remedies. CMS Ex. 1 at 1. The notice explained that not only must Petitioner submit a Plan of Correction (POC) within 10 calendar days, but the notice also confirmed that Petitioner’s Enforcement Cycle began with the January 13, 2022, survey. All surveys conducted after this survey would become a part of the Enforcement Cycle, and the Enforcement Cycle would not end until substantial compliance was achieved for all deficiencies from all surveys within the Enforcement Cycle.

The January 21, 2022, notice provided that unless substantial compliance was achieved before July 13, 2022, Petitioner’s provider agreement in the Medicare and Medicaid programs would be terminated July 13, 2022. Additionally, CMS would impose a Denial of Payment for New Admissions (DPNA) effective April 13, 2022, and impose a prohibition against the provision of a Nurse Aid Training and Competency Evaluation Program (NATCEP) for a period of two years. CMS Ex. 1 at 3-4. The notice further confirmed that if Petitioner disagreed with the determination made based on the January 13, 2022, survey, Petitioner could request a hearing before an administrative law judge (ALJ) with the Department of Health and Human Services, Departmental Appeals Board (DAB). However, the appeal must be filed no later than 60 days from the date of receipt of the January 21, 2022, letter. Specific information was given concerning where the appeal should be sent and what identifying information should be in the appeal. CMS Ex. 1 at 4.

Petitioner did not timely appeal CMS’s determination, and pursuant to 42 C.F.R. § 498.70(c), CMS moves to dismiss the hearing request as untimely.

For the reasons discussed below, I grant CMS’s motion. I agree that the hearing request is untimely, and that Petitioner has not shown good cause for my extending the time for filing.

I. Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions. Act § 1819. The Secretary’s regulations are found at 42 C.F.R. Part 483. To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements. To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “[t]he potential for causing minimal harm.” 42 C.F.R. § 483.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance. Act § 1864(a);

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42 C.F.R. § 488.308. The state agency must also investigate all complaints. Act § 1819(g)(4).

As discussed above, CMS sent Petitioner a notice of determination via email on January 21, 2022. CMS Ex. 1. Petitioner received CMS’s notice of determination that same date. CMS Ex. 2. On January 31, 2022, Petitioner submitted a POC addressing the cited violations. In the response, Petitioner asserted that to correct the deficiencies and to meet the requirements for re-certification with the Medicare and Medicaid programs, the Facility must have additional equipment installed to its generator. Petitioner requested a waiver for one year to meet the requirements. RFH Exhibit E. On July 20, 2022, Petitioner submitted a revised POC to CMS. Petitioner’s Opposition to CMS’s Motion to Dismiss (Pet. Op.) at 3. On August 16, 2022, Ascellon conducted another survey and determined that Petitioner remained noncompliant with one of the cited violations, identified as K351. CMS Ex. 4. On August 24, 2022, Petitioner submitted another POC. CMS Ex. 4 at 2. On August 25, 2022, Ascellon determined that Petitioner had achieved substantial compliance on August 24, 2022. CMS Ex. 5.

On September 6, 2022, CMS sent Petitioner a notice by email confirming that Petitioner had achieved substantial compliance. Additionally, CMS stated that the DPNA was imposed for the period from April 13, 2022, through August 23, 2022, and that the termination of the Medicare provider agreement was not imposed. CMS Ex. 5. On November 7, 2022, Petitioner submitted its appeal and requested a hearing. RFH at 5.

II. Discussion

a. Petitioner is not entitled to a hearing because it did not file timely requests, and no good cause justifies extending the time for filing.

Section 1866(h) of the Act authorizes administrative review of determinations that a provider fails to comply substantially with Medicare program requirements “to the same extent as is provided in section 205(b) of the Act.” Under section 205(b), the Secretary of Health and Human Services must provide reasonable notice and opportunity for a hearing “upon request by [the affected party] who makes a showing in writing that his or her rights may be prejudiced” by the Secretary’s determination. The hearing request “must be filed within sixty days” after receipt of the notice of CMS’s determination. Act § 205(b). The 60-day time limit is therefore a statutory requirement. See The Brightpointe, DAB No. 3157 at 3 (2024).

The regulations also mandate that the affected party “file the request in writing within 60 days from receipt of the notice . . . unless that period is extended.” 42 C.F.R. § 498.40(a). On motion of a party, or his/her own motion, the ALJ may dismiss a hearing request where that request was not timely filed and the time for filing was not extended. 42 C.F.R. § 498.70(c).

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Here, Petitioner failed to meet the deadline for appealing the CMS’s determination. Petitioner does not dispute that it received CMS’s January 21, 2022, email determination notice. In response to the notice, Petitioner submitted a POC addressing the alleged violations. In fact, Petitioner submitted a revised POC on July 16, 2022, and an additional POC on August 24, 2022. There is no dispute that Petitioner’s first and only hearing request was filed on November 7, 2022, or 290 days after receiving CMS’s January 21, 2022, notice.

b. No Good Cause

As CMS acknowledges, a party may submit a written request seeking to establish that good cause justifies the extension of time of the filing date. 42 C.F.R. § 498.40(c). The regulations do not define what constitutes “good cause” to extend the filing deadline, however many ALJs have ruled that “good cause” means circumstances beyond a party’s ability to control. See, e.g., Shadow CreekMedical Clinic, ALJ Ruling No. 2017-5 (2016); Oak Park Healthcare Ctr., DAB CR1917 (2009); Hillcrest Healthcare, LLC, DAB CR976 (2002), aff’d, DAB No. 1879 (2003).

The Departmental Appeals Board (Board) has not articulated a “good cause” standard. Rutland Nursing Home, DAB No. 2582 at 5 (2014); Hammonds Lane Ctr., DAB No. 1853 n.3 (2002). Nevertheless, the Board has consistently agreed that where a party, by inadvertence or tactical choice, makes no effort to preserve its hearing rights, it must accept the consequences of its inaction – loss of its right to a hearing. Rutland, DAB No. 2582 at 5; Hammonds Lane Ctr., DAB No. 1853 at 1; Hillcrest Healthcare LLC, DAB No. 1879. More specifically, the Board has sustained dismissals where the facility missed a filing deadline because it opted to pursue other avenues (Rutland, Hillcrest); waited for the results of a waiver (Kids Med., DAB No. 2471 (2012)); and opted to focus on its plan of correction and resurvey rather than to pursue an appeal (Nursing Inn of Menlo Park, DAB No. 1812 (2002)).

While Petitioner does not dispute that its appeal was not filed timely, Petitioner offers an explanation to demonstrate what is assumed to be its “good cause” argument. Petitioner appeals the DPNA imposed on September 6, 2022, for the period April 13, 2022, through August 23, 2022. Petitioner insists that the imposition of the DPNA was not communicated to the facility prior to September 6, 2022, and is the sole result of Respondent’s failure to timely act on the Facility’s life safety waiver requests, to communicate its inaction, and to conduct a timely revisit.

Petitioner asserts that CMS’s January 21, 2022, letter was inadequate notice that a DPNA had been imposed and would go into effect on April 13 unless it was withdrawn. This argument is unconvincing as Petitioner further admits that the letter stated that a DPNA “will be imposed effective April 13 unless substantial compliance is achieved on or

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before April 13, 2022.” Pet. Op. at 5-6. Despite the wording “will be imposed,” Petitioner contends that it reasonably read the letter and understood that a DPNA might be imposed. Id. at 6. This argument is illogical. While Petitioner asserts that it interpreted “will be imposed” as “might be imposed,” Petitioner does not deny that it submitted a revised POC on July 20, 2022, and the contractor found that Petitioner was still out of compliance after a second survey on August 16, 2022. Petitioner then submitted another POC on August 24, 2022. Further, Petitioner does not deny that it was not until August 25, 2022, that CMS finally determined Petitioner to be in substantial compliance. Thus, Petitioner’s asserted interpretation of the word “will” is implausible.

Petitioner asserts that it believed, in good faith, that it was in substantial compliance as of January 31, 2022, when it submitted its POC and waiver requests. Petitioner contends that because it received no response from CMS or the contractor in the months that followed, it had no reason to believe that a DPNA had been imposed effective April 13, 2022. Again, Petitioner’s argument is unreasonable. Because Petitioner did not receive a response to its waiver request within a time frame that it self-imposed, it presumably concluded that a waiver had been granted. Just as with Petitioner’s interpretation of the word “will,” this interpretation was without foundation.

Additionally, Petitioner’s argument that its delay in appealing CMS’s determination was caused by Respondent’s failure to timely act on the facility’s waiver request otherwise lacks merit. A facility’s opting to pursue a plan of correction does not toll the period for requesting a hearing, and Petitioner could not reasonably have expected that its submission of its plan of correction and waiver request would have tolled its statutory obligations to timely request a hearing. As the Board noted in Nursing Inn of Menlo Park, nothing in the notice suggests that some other action by the facility, such as preparing and submitting a plan of correction to the state agency, would stay the 60-day deadline for requesting a hearing. DAB No. 1812 at 4.

Furthermore, the contractor’s delay in reviewing the plan of correction does not justify the facility’s failure to request a hearing within 60 days, as required by the statute and regulation. See, e.g., Rutland, DAB No. 2582 at 7 (where the state’s delays in completing the Independent Dispute Resolution process do not justify the facility’s failure to file its appeal timely).

Finally, CMS’s notice used standard language to advise the facility of its appeal rights and deadlines. Despite Petitioner’s assertions that the notice language was ambiguous, the Board and reviewing courts have repeatedly determined that this language is “clear and unambiguous” and provides explicit instructions as to what the facility must do to preserve its hearing rights. W. Side HouseLTC Facility, DAB No. 2791 at 6 (2017); Rutland, DAB No. 2582 at 8; Waterfront Terrace, Inc., DAB No. 2320 at 3, 6 (2010); Mimiya Hosp., DAB No. 1833 at 4, 6 (2002), aff’d, 155 F. App’x 28 (2d Cir. 2005). Therefore, no good cause justifies Petitioner’s failing to request a hearing timely. CMS

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sent a notice that told Petitioner exactly what to do to appeal, and in plain language warned that appeals had to be filed within 60 days of receiving the notice. Petitioner did not file anything to preserve its appeal rights until long after the filing deadline had passed.

III. Conclusion

I conclude that CMS’s motion to dismiss has merit. Accordingly, the motion to dismiss is granted, and this case is dismissed pursuant to 42 C.F.R. § 498.70(c) because the request for hearing was not timely filed.