Elmhurst Rehabilitation and Healthcare Center, ALJ Ruling 2025-21 (HHS-CRD August 19, 2025)

RULING

Petitioner, Elmhurst Rehabilitation and Healthcare Center, is a long-term care facility that participates in the Medicare program.  The Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with the Medicare program requirement governing dialysis care (42 C.F.R. § 483.25(l)) and that its deficiency posed immediate jeopardy to resident health and safety.  Based on the substantial noncompliance, CMS imposed civil money penalties (CMPs).

Petitioner appealed.

On April 14, 2025, an Administrative Law Judge issued a decision generally affirming CMS’s determination.  Elmhurst Rehab. & Healthcare Ctr., DAB CR6668 (2025).  Neither party filed a request for review with the Departmental Appeals Board pursuant to 42 C.F.R. § 498.82.  After 60 days, the decision became final and binding.  42 C.F.R. § 498.74.

It appears that the decision included a clear error as to the duration of the facility’s substantial noncompliance.  In fact, Petitioner had not challenged that determination.

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CMS has now filed what it titles a “Motion for Clarification,” asking me to correct the error.  Departmental Appeals Board Electronic Filing System (DAB E-file) Dkt. C-23-530, Doc. # 70.  Because the judge who issued the decision has since retired, the matter was reassigned to me.  See 42 C.F.R. § 498.100(b)(2); DAB E-file Dkt. C-23-530, Doc. #71.

Petitioner has not opposed CMS’s motion.  See 42 C.F.R. § 498.17(b) (giving a party 20 days to submit a rebuttal statement).  But I do not have the authority to grant the relief that CMS requests.  Because the decision is final, I may not alter it unless I reopen the matter pursuant to 42 C.F.R. § 498.100.  But the regulation authorizes reopening “within 60 days from the date of the notice of decision. . . .”  42 C.F.R. § 498.100(a).  Sixty days from April 14 was June 13, 2025.  The regulations do not give me the authority to extend that deadline, for good cause or any other reason.

CMS attempted to bring the error to the attention of the Civil Remedies Division on May 28, 2025, which would have been within the 60-day deadline.  DAB E-file Dkt. C-23-530, Doc. # 69 at 3.  However, the judge who issued the decision had retired, and the assigned staff attorney was no longer employed by the Departmental Appeals Board.  CMS received no response.  CMS counsel was eventually contacted by an attorney with the Civil Remedies Division, who, on July 8, 2025, referred her to the Part 498 regulations and noted that CMS could choose to file a motion.  DAB E-file Dkt. C-23-530, Doc. # 69 at 2.

On July 18, 2025, CMS filed its motion.  DAB E-file Dkt. C-23-530, Doc. # 70.  Unfortunately, the regulation does not give me the authority to reopen the decision because the time has run out.  However, CMS is not without options.  Although its appeal to the Departmental Appeals Board should have been filed within 60 days from receipt of the decision, unlike me, the Board, for good cause shown, may extend the time for filing.  42 C.F.R. § 498.82(a)(2).  Inasmuch as staffing changes at the Civil Remedies Division contributed to the late filing, CMS may be able to establish good cause.

Of course, since Petitioner seems to agree that the decision includes a clear error, the parties may agree to the revised duration date.

Because I have no authority to reopen the April 14, 2025 decision, I deny CMS’s motion.