California Post-Acute Care, ALJ Ruling 2026-36 (HHS-CRD September 8, 2026)

RULING ON MOTION FOR PARTIAL DISMISSAL

The Centers for Medicare & Medicaid Services (CMS) moves for partial dismissal of the hearing request filed by Petitioner, California Post-Acute Care, a skilled nursing facility (SNF) that participates in the Medicare program. CMS argues that Petitioner’s hearing request was timely only for the purpose of appealing the amount of the civil money penalty (CMP) imposed on Petitioner but was untimely as to the findings of noncompliance that served as a basis for the CMP and for the denial of payment for all new admissions (DPNA). Petitioner responds that its hearing request was timely to dispute all findings of noncompliance and the imposition of all enforcement remedies. In the alternative, Petitioner argues that confusing notices issued by the state agency, acting on behalf of CMS, provide good cause to extend the deadline for Petitioner to appeal those notices.

As explained below, I reject Petitioner’s argument that its hearing request timely disputed the initial determinations finding noncompliance and imposing an enforcement remedy. Therefore, those initial determinations are binding. Further, because I conclude that Petitioner failed to prove that those notices of initial determination confused Petitioner, Petitioner did not show good cause for filing its hearing request late.

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Therefore, I grant CMS’s motion for partial dismissal of Petitioner’s hearing request. The findings of noncompliance leading to the imposition of enforcement remedies (i.e., DPNA and CMP) are binding and not subject to appeal. Petitioner timely appealed the amount of the CMP; therefore, the only issue for adjudication is whether the amount of the CMP is reasonable under relevant statutory and regulatory factors.

I. Background

On May 13, 2025, the California Department of Public Health (state agency), acting on behalf of CMS, conducted an abbreviated standard survey of Petitioner’s facility based on a complaint and other incidents reported to the state agency. CMS Ex. 1. The state agency found noncompliance with two Medicare requirements for SNFs. CMS Ex. 1. In a May 28, 2025 notice of initial determination, Los Angeles County Public Health informed Petitioner as follows: 

Based on deficiencies cited during this survey and as authorized by CMS San Francisco Regional Office, we are giving formal notice of imposition of statutory DPNA effective August 13, 2025. This remedy will be effectuated on the stated date unless [Petitioner] demonstrate[s] substantial compliance with an acceptable [plan of correction] and subsequent revisit. This notice in no way limits the prerogative of CMS to impose discretionary DPNA at any appropriate time.

CMS Ex. 2 at 3. The notice stated the following appeal rights: 

If you disagree with the determination of noncompliance . . ., you or your legal representative may request a hearing before an administrative law judge   You may appeal the finding of noncompliance that led to an enforcement action, but not the enforcement action or remedy itself.  You must file your hearing request no later than 60 days from the date of receipt of this letter.

CMS Ex. 2 at 4. 

Petitioner did not request a hearing within the stated timeframe to dispute the findings of the May 13, 2025 survey and the imposition of a DPNA. 

On May 29, 2025, the state agency, acting on behalf of CMS, conducted another abbreviated standard survey of Petitioner’s facility based on an incident reported to the state agency. CMS Ex. 3. The state agency found noncompliance with three Medicare

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requirements for SNFs, including a finding of abuse/actual harm to a resident that occurred on May 28, 2025. CMS Ex. 3. In a June 12, 2025 notice of initial determination, Los Angeles County Public Health informed Petitioner that, as authorized by CMS, a discretionary DPNA was being imposed on Petitioner effective June 27, 2025. CMS Ex. 4 at 3. This notice provided the same appeal rights as the first one, advising that Petitioner had 60 days to request a hearing if Petitioner disagreed with the determination of noncompliance. CMS Ex. 4 at 4. 

Petitioner did not request a hearing within the stated timeframe to dispute the findings of the May 29, 2025 survey and the imposition of a DPNA. 

On June 6, 2025, the state agency, acting on behalf of CMS, conducted an abbreviated survey investigating a complaint at Petitioner’s facility. CMS Ex. 5; see also CMS Ex. 6 at 1. The state agency found noncompliance with a single Medicare requirement for SNFs. CMS Ex. 5. In a June 23, 2025 notice of initial determination, Los Angeles County Public Health informed Petitioner that, as authorized by CMS, a discretionary DPNA was being imposed on Petitioner effective June 27, 2025. CMS Ex. 6 at 3. This notice provided the same appeal rights as the first two, advising that Petitioner had 60 days to request a hearing if Petitioner disagreed with the determination of noncompliance. CMS Ex. 6 at 4. 

Petitioner did not request a hearing within the stated timeframe to dispute the findings of the June 6, 2025 survey and the imposition of a DPNA. 

On June 11, 2025, the state agency, acting on behalf of CMS, conducted an abbreviated standard survey of Petitioner’s facility based on multiple complaints and other incidents reported to the state agency. CMS Ex. 7. The state agency found noncompliance with six Medicare requirements for SNFs. CMS Ex. 7. In a June 23, 2025 notice of initial determination, Los Angeles County Public Health informed Petitioner that, as authorized by CMS, a discretionary DPNA was being imposed on Petitioner effective June 27, 2025. CMS Ex. 8 at 3. This notice provided the same appeal rights as the first three, advising that Petitioner had 60 days to request a hearing if Petitioner disagreed with the determination of noncompliance. CMS Ex. 8 at 4. 

Petitioner did not request a hearing within the stated timeframe to dispute the findings of the June 11, 2025 survey and the imposition of a DPNA. 

On June 30, 2025, the state agency, acting on behalf of CMS, conducted an abbreviated standard survey of Petitioner’s facility based on an incident reported to the state agency. CMS Ex. 9. The state agency found noncompliance with a single Medicare requirement for SNFs. CMS Ex. 9. In a July 10, 2025 notice of initial determination, Los Angeles County Public Health informed Petitioner that, as authorized by CMS, a discretionary DPNA was imposed on Petitioner effective June 27, 2025. CMS Ex. 10 at 3. This notice

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provided the same appeal rights as the first four, advising that Petitioner had 60 days to request a hearing if Petitioner disagreed with the determination of noncompliance. CMS Ex. 10 at 4. 

Petitioner did not request a hearing within the stated timeframe to dispute the findings of the June 30, 2025 survey and the imposition of a DPNA. 

On September 29, 2025, CMS issued an initial determination in which it stated that CMS determined that Petitioner was not in substantial compliance with Medicare requirements based on the state agency’s five surveys in May and June 2025. CMS Ex. 11 at 1. CMS also stated that the state agency conducted a survey of Petitioner’s facility on July 22, 2025, which showed that Petitioner returned to substantial compliance with Medicare requirements effective July 3, 2025. CMS Ex. 11 at 1. CMS indicated that a DPNA had been in effect beginning June 27, 2025, through July 2, 2025. CMS Ex. 11 at 1. In addition, CMS informed Petitioner that it was imposing a $920 per-day CMP on Petitioner from May 28, 2025, through July 2, 2025. CMS Ex. 11 at 2. CMS provided Petitioner with the following appeal rights notice: 

The [state agency] and/or CMS previously advised you of your right to appeal the initial determination(s) and the imposition of certain remedies listed above. Please refer to that/those notice(s) and note the deadline for those appeals if you would like to challenge the findings of noncompliance that led to those remedies. 

If you disagree with the determination to impose remedies based on the noncompliance identified at the survey(s) listed in this notice, or with the determination of your facility’s return to substantial compliance on the date specified above, you or your legal representative may request a hearing before an administrative law judge.....Your appeal must be filed no later than 60 days from the date of receipt of this notice. 

CMS Ex. 11 at 3-4. 

On November 28, 2025, Petitioner filed a hearing request to appeal the findings and deficiencies related to the May and June 2025 surveys as well as the enforcement remedies imposed based on those surveys. CMS Ex. 12 at 1. Petitioner also disputed the imposition and amount of the CMP imposed. CMS Ex. 12 at 2. 

On December 1, 2025, the Civil Remedies Division of the Departmental Appeals Board (DAB) acknowledged receipt of the hearing request, provided the parties with prehearing

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submission deadlines, and issued my Standing Order. Based on requests from the parties, I extended the dates for prehearing submissions twice. 

On August 19, 2026, CMS moved for partial dismissal of Petitioner’s hearing request (CMS Mot.) and submitted 12 exhibits in support of that motion (CMS Exs. 1-12). CMS also requested an extension of time to the prehearing submission schedule, which I granted. On August 31, 2026, Petitioner submitted an opposition to CMS’s motion (P. Opp.), and on September 4, 2026, CMS filed a reply (CMS Reply). 

II. Analysis

1. Petitioner’s hearing request is untimely to appeal the findings of noncompliance from the May and June 2025 surveys, and the enforcement remedies that CMS imposed based on those findings. As a result, those findings, and the enforcement remedies imposed based on those findings, are binding on the parties. Petitioner’s hearing request is timely to appeal the amount of the CMP imposed. 

CMS moves to dismiss, as untimely, the portion of Petitioner’s hearing request that pertains to the findings of noncompliance from the May and June 2025 surveys and the remedies imposed based on those findings. CMS Mot. at 1. CMS asserts that Petitioner had 60 days to appeal after receiving each notice that imposed the DPNA, and Petitioner did not do so. CMS Mot. at 1-2. CMS posits that the only issue Petitioner timely appealed is the reasonableness of the CMP amount. CMS Mot. at 2. To support this position, CMS cites Taos Living Ctr., DAB No. 2293 (2009), Generations at Regency, DAB CR6660 (2025), and Scenic Pointe Nursing and Rehab. Ctr., DAB CR6726 (2025) for the proposition that the notices imposing a DPNA following the May and June surveys were initial determinations that needed to be appealed timely or else they became binding. CMS Mot. at 7; CMS Reply at 3. CMS also argues that the September 29, 2025 notice of initial determination that CMS issued only imposed a CMP based on the now binding results of the May and June 2025 surveys; therefore, the CMS notice did not extend the deadlines for Petitioner to request a hearing to dispute the findings of those surveys. CMS Mot. at 8. CMS concedes that Petitioner’s hearing request preserved Petitioner’s right to challenge the reasonableness of the amount of the CMP that was imposed. CMS Mot. at 9. 

Petitioner opposes CMS’s motion. Petitioner’s defense rests heavily on the fact that each of the state agency notices of initial determination indicate in the appeal section that the Civil Remedies Division requires all hearing requests to be accompanied by the notice letter from CMS. P. Opp. at 2, 7. Petitioner also asserts that the state agency notices each indicate that CMS will issue a separate notice should other remedies be imposed. P. Opp. at 2. Both of these provisions from the state agency notices, when taken together, point to the September 29, 2025 CMS notice as the only one the Civil Remedies

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Division would accept. P. Opp. at 2. Petitioner characterizes the state agency notices as a “continuously updated enforcement cycle” rather than five independent enforcement actions. P. Opp. at 2. Petitioner sums up its argument as follows: “Because CMS concedes that [Petitioner’s] challenge to that September 29, 2025 determination is timely . . . and because that determination controls the actual duration and lawful scope of the [discretionary]DPNA, the findings underlying the [discretionary]DPNA and CMP cannot be severed from that timely and undisputed live issue.” P. Opp. at 3. 

I agree with CMS that Taos controls; therefore, Petitioner’s hearing request is untimely to dispute the findings of noncompliance from the May and June 2025 surveys and the enforcement remedies imposed on Petitioner based on those findings of noncompliance. 

Medicare participating SNFs must meet a variety of ongoing statutory requirements as to how they provide services, maintain the rights of its residents, and administer their facilities. 42 U.S.C. § 1395i-3(a)(3), (b)-(d). Each facility must comply with “such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.” 42 U.S.C. § 1395i-3(d)(4)(B); see 42 U.S.C. § 1395i-3(c)(1)(xi), (f). The Secretary promulgated regulations to implement the statutory requirements and to establish those “other requirements relating to health, safety, and well-being of residents.” See 42 C.F.R. pt. 483, subpt. B. 

When a facility fails to meet a statutory or regulatory participation requirement, then the facility has a “deficiency.” 42 C.F.R. § 488.301. “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.” 42 C.F.R. § 488.301. To maintain “substantial compliance,” a facility’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.” 42 C.F.R. § 488.301. 

CMS contracts with state agencies to survey Medicare-participating SNFs and to investigate complaints against those SNFs. 42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10. When the survey or investigation shows that an SNF is not in substantial compliance with Medicare participation requirements, CMS may impose remedies on the SNF. 42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406. Imposing a remedy, such as a DPNA or CMP, based on a finding of noncompliance is an appealable “initial determination.” 42 C.F.R. §§ 488.408(g)(1), 498.3(b)(13). While the SNF may dispute the findings of noncompliance, the SNF cannot seek review of CMS’s choice of a remedy or remedies to impose. 42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13). 

In the present case, Petitioner had the right to request a hearing to dispute the findings of noncompliance from the May and June 2025 surveys because CMS imposed an enforcement remedy, i.e., a DPNA, on Petitioner based on those findings. 42 C.F.R. §§ 488.330(e)(3)(ii), 488.408(g)(1), 498.3(b)(13), 498.40; Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 21 (2000) (holding that facilities are entitled to review of

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any determination of substantial noncompliance with Medicare participation requirements whether termination or “some other remedy is imposed.”). However, Petitioner only had 60 days from the receipt of an initial determination to request a hearing. 42 C.F.R. § 498.40(a)(2). An initial determination is legally binding if it is not timely appealed. See 42 C.F.R. § 498.20(b); Scenic Pointe, DAB CR6726 at 7-8. 

Petitioner disputes the validity of the initial determinations issued through the state agency and appears to indicate that only the September 29, 2025 notice, issued directly by CMS, was a valid initial determination. However, the five initial determinations imposing a DPNA on Petitioner, based on the findings of noncompliance from the May and June surveys, were expressly authorized by CMS. CMS Ex. 2 at 3; CMS Ex. 4 at 3; CMS Ex. 6 at 3; CMS Ex. 8 at 3; CMS Ex. 10 at 3. This means that those notices were as valid as the notice issued directly by CMS because “CMS or the State (as authorized by CMS)” provides notice to an SNF of the imposed remedy. 42 C.F.R. § 488.402(f)(1) (emphasis added). Significantly, the notice must include information on the right to appeal the initial determination, which is exactly what each of the state agency notices did. 42 C.F.R. § 488.402(f)(1)(iv); CMS Ex. 2 at 4; CMS Ex. 4 at 4; CMS Ex. 6 at 4; CMS Ex. 8 at 4; CMS Ex. 10 at 4. 

Petitioner asserts that CMS’s position, that it needed to request a hearing within 60 days of receiving initial determinations issued through a state agency, is a departure from a long-standing practice of allowing SNFs to appeal all deficiencies whenever CMS issued its final initial determination at the end of a survey cycle. P. Opp. at 16-17. However, that does not appear to have been CMS’s policy. Indeed, in CMS’s State Operations Manual (SOM), state agencies may provide notice of a DPNA to an SNF when CMS authorizes the DPNA, and such a DPNA will take effect without further notice from CMS. SOM, CMS Pub. 100-07, Ch. 7, §§ 7305.1.1(d), (e), 7305.1.3(j), 7305.2.1(a). 

This is consistent with the DAB’s long-standing interpretation of the regulations concerning initial determinations. As early as 2002, the DAB interpreted the regulations to require SNFs to request a hearing after receiving notice of the imposition of an enforcement remedy based on findings of noncompliance, rather than wait until CMS’s final notice was issued. In Mimiya Hospital, DAB No. 1833 (2002), CMS issued a CMP notice for a set period based on immediate jeopardy noncompliance and an indefinite period for non-immediate jeopardy noncompliance. The facility did not request a hearing until after a subsequent CMS notice provided the date on which Petitioner returned to substantial compliance and the duration of the non-immediate jeopardy noncompliance was fixed. An administrative law judge dismissed that hearing request as untimely. Mimiya, DAB No. 1833 at 5-6. On appeal, the DAB agreed that the hearing request was properly dismissed as to the challenge of the immediate jeopardy noncompliance because CMS’s original notice provided sufficient information as to whether Petitioner should dispute those deficiencies. Mimiya, DAB No. 1833 at 5-6. Further, the DAB determined that the non-immediate jeopardy noncompliance was also properly noticed in CMS’s

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original notice and the facility’s appeal of those deficiencies was untimely. As stated in the decision, only the duration of the non-immediate jeopardy noncompliance was timely appealed and could be adjudicated: 

As Mimiya’s October 22, 2000 request for a hearing came within 60 days of the August 30, 2000 letter, we find that Mimiya’s request for a hearing on the issue of when it achieved substantial compliance was timely. In so finding, we emphasize that the deficiency finding in the April survey which established the beginning date for the $100 per day CMP was set out in the May 26, 2000 notice and was not timely appealed by Mimiya; thus only the duration of the period for which the $100 per day CMP was assessed, and not the underlying violation itself, remains an issue for a hearing. 

Mimiya, DAB No. 1833 at 7. A federal court affirmed the DAB as follows: 

Although Mimiya did not exercise its right to request a hearing, CMS complied with the requirements of due process by giving Mimiya notice of the deficiencies and the amount of the penalty, and an opportunity to be heard. 

Mimiya Hosp., Inc. SNF v. U.S. Dep’t of Health & Human Servs., 331 F.3d 178, 181 (1^st Cir. 2003). 

In 2009, the DAB used reasoning from Mimiya to hold that SNFs must appeal, within 60 days, an initial determination issued by a state agency imposing a DPNA. In Taos, the state agency found that an SNF was noncompliant with Medicare requirements and issued a letter informing the SNF that CMS authorized the imposition of a DPNA should the SNF not return to substantial compliance during a revisit survey. The letter also provided notice of the SNF’s right to request a hearing before an administrative law judge within 60 days of receiving the letter. The SNF did not file a hearing request within 60 days. The state agency then investigated a complaint against the SNF, resulting in a finding of noncompliance with actual harm to a resident. The state agency issued a notice stating that, due to the new finding of noncompliance, the DPNA, which had become effective, would remain in effect. The state agency letter also provided the SNF with notice of its right to request a hearing if it disagreed with the new noncompliance finding. Petitioner requested a hearing to dispute the newly identified noncompliance. The state agency conducted another survey to investigate additional complaints and found noncompliance with Medicare requirements. The state agency sent a letter to the SNF stating that additional noncompliance was found and the DPNA would remain in effect. The state agency provided notice of the SNF’s right to request a hearing concerning the new findings of noncompliance. The SNF filed a hearing request

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contesting the new findings of noncompliance. Finally, CMS issued a notice informing the SNF that the DPNA would continue until the SNF achieved substantial compliance with Medicare requirements and that CMS was also imposing a CMP. The state agency then conducted a revisit survey and found that the SNF had achieved substantial compliance with Medicare requirements. The SNF filed another hearing request alleging it had been in substantial compliance since the first survey that had found noncompliance. Taos, DAB No. 2293 at 4-7. 

The DAB held that the SNF was not entitled to a hearing to contest the findings from the first survey. The DAB rejected the SNF’s argument that the first state agency letter was not an initial determination because CMS did not issue it and the letter failed to impose all enforcement remedies at that time (i.e., CMS imposed the CMP later). The DAB found that the state agency’s first letter stated that the DPNA was authorized by a CMS regional office and that the letter explicitly gave instructions that a hearing request must be filed within 60 days. This was enough to make it an initial determination, which had to be appealed within 60 days. Taos, DAB No. 2293 at 9-11. 

The SNF also argued that the final notice issued by CMS revised the first state agency letter because it stated that the SNF had a right to appeal the determinations identified in CMS’s notice, including the findings of noncompliance from the first survey. However, the DAB rejected this argument because the regulations permitted the state agency to issue the initial determination imposing the DPNA because CMS authorized that enforcement remedy, and CMS had not revised that determination. The DAB expressly rejected the SNF’s attempts to interpret the text of CMS’s final notice to provide the SNF with a new right to request a hearing to contest the results of the first survey’s findings, noting that the regulations clearly provide that the hearing request was due 60 days after the SNF received the first state agency letter. Taos, DAB No. 2293 at 11-12. 

The situation described in Taos is similar to the facts in this case, and the DAB’s interpretation of the law resolves many of the arguments that Petitioner makes in this case. The state agency notices informing Petitioner that a DPNA was being imposed/was continuing, based on the results of the May and June 2025 surveys, were initial determinations that Petitioner needed to appeal within 60 days of receiving each notice. These were not notices of a “continuously updated enforcement cycle”, as Petitioner asserts (P. Opp. at 2), but notices of multiple independent complaint investigations occurring within a short time, each of which resulting in findings of noncompliance. Petitioner asserts that such a process is inefficient and unnecessary. P. Opp. at 16. However, the DAB interpreted the regulations as they are written, which would have inured to Petitioner’s benefit had it been able to achieve and remain in substantial compliance before the DPNA took effect. Petitioner also apparently believes that CMS has never applied the regulations in the manner interpreted in Taos, and that to do so now is unfair. P. Opp. at 16-17. However, as explained above, the regulations and CMS policy are the same, or substantially similar to, the regulations in effect when the DAB

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decided Taos.1  The DAB has never overruled its interpretation in Taos.¹ Therefore, there is no unfairness in applying settled law. 

2. Petitioner failed to prove that there was good cause to extend the due dates to appeal the initial determinations related to the findings of noncompliance issued after each of the surveys from May and June 2025. 

If an SNF does not file a hearing request within 60 days of receiving an initial determination, an ALJ may extend the time for filing the request if the SNF shows good cause as to why the hearing request was not timely filed. 42 C.F.R. § 498.40(c). 

Petitioner argues that good cause exists for an extension of the due dates to appeal the initial determinations issued after each of the surveys in May and June 2025. P. Opp. at Petitioner cites Riverview Village Health Care Ctr., DAB No. 1840 (2002) for the proposition that confusing CMS notices can be a basis for allowing an untimely hearing request to proceed. P. Opp. at 7. Petitioner characterizes the state agency notices in this case as confusing because they state that the Civil Remedies Division requires hearing requests to be accompanied by the notice letter from CMS, and CMS did not issue a notice letter until September 29, 2025. P. Opp. at 8-9. Therefore, Petitioner reasonably misunderstood the appeals process. Further, Petitioner posits that CMS itself misunderstood the filing requirements in the same manner as Petitioner, as evidenced by

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Generations at Regency, DAB CR6660 (2025). P. Opp. at 11. Petitioner also points to the September 29, 2025 CMS notice, which is susceptible to the interpretation that Petitioner can still dispute the findings of noncompliance that led to the imposition of remedies. P. Opp. at 12-14. 

CMS argues that Petitioner received clear notice that it needed to request a hearing within 60 days from the date Petitioner received those notices; therefore, Petitioner cannot show good cause. CMS Mot. at 10; Charles S. Pewitt, D.O., DAB No. 3009, at 13 (2020). 

The regulations do not define what the term “good cause” means, and the DAB has not definitively defined that term either. Day Op of North Nassau, Inc., DAB No. 2818 at 6-7 (2017) (citing several cases). Therefore, I consider the facts and circumstances in this case to determine if Petitioner has proven that a good reason for late filing exists. 

I find that the state agency notices, issued from May through July 2025, clearly state in bolded text that Petitioner needed to file a hearing request within 60 days of receiving the notices to dispute the findings of noncompliance leading to the imposition of a DPNA. CMS Ex. 2 at 4; CMS Ex. 4 at 4; CMS Ex. 6 at 4; CMS Ex. 8 at 4; CMS Ex. 10 at 4. The text that Petitioner allegedly found confusing, i.e., that the Civil Remedies Division requires all hearing requests to be accompanied by the notice letter from CMS, is buried in text concerning the requirements for electronic filing of documents with the DAB. CMS Ex. 2 at 4; CMS Ex. 4 at 5; CMS Ex. 6 at 5; CMS Ex. 8 at 5; CMS Ex. 10 at 5. The requirement to file a copy of the CMS notice does not appear in the first section when discussing hearing rights and does not state that only SNFs who receive a notice from CMS have 60 days to file a hearing request. 

I do not have an evidentiary basis to find good cause in this case because Petitioner has provided no evidence that it was in fact confused by the state agency notices. See Maximum Hospice and Palliative Care, DAB No. 2898 at 5 (2018) (“In denying Petitioner’s request to vacate the dismissal, the [administrative law judge] noted that Petitioner had failed to submit any evidence, such as a declaration or affidavit, to support its assertions. Given the complete lack of evidence to support Petitioner’s assertions, we cannot conclude that the [administrative law judge] abused her discretion in failing to find good cause to vacate the dismissal order.”). Petitioner’s identification of the requirement to submit a CMS notice with each hearing request is not obviously confusing. The most reasonable interpretation of that requirement would be to submit the state agency notice, which had been authorized by CMS, with the hearing request. Without evidence that Petitioner truly misunderstood the electronic filing instructions, I will not presume that Petitioner was confused by the notice. 

In addition, even if Petitioner provided evidence that its management personnel were confused by the notice, it was not reasonable for them to ignore the notices. The notices advised that something negative would happen to Petitioner unless hearing requests were

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filed to dispute findings of noncompliance. Had Petitioner’s management been confused as to whether Petitioner could request hearings in the absence of notices from CMS, they could have simply contacted the Civil Remedies Division (at the phone number or email address provided in the state agency notices) to learn whether the state agency notices would meet the requirement to submit notices from CMS. I do not know why Petitioner did not file hearing requests in response to five notices from the state agency, but I have no reason to conclude it was based on the requirement that those hearing requests must include a notice from CMS. 

Finally, Petitioner interprets text from the September 29, 2025 CMS notice as indicating that Petitioner may now appeal any survey listed in that notice, including the May to June 2025 surveys. P. Opp. at 12-14. However, directly above the text referenced by Petitioner is text telling Petitioner to review the previously issued notices of initial determination to find the appeal deadlines for the earlier surveys. CMS Ex. 11 at 3-4. Interpreting both of these provisions together, it is easy to see that the text referring to noncompliance identified in the survey or surveys listed in the September 29, 2025 notice means the survey or surveys conducted subsequent to the previous surveys for which a notice of initial determination had already been issued. Therefore, in this case, Petitioner had the right to appeal the results of only one survey, i.e., the July 22, 2025 revisit survey, and dispute the July 3, 2025 date on which CMS found Petitioner returned to substantial compliance.2  See CMS Ex. 11 at 1; see also Taos, DAB No. 2293 at 11-12. In any event, this language in the September 29, 2025 notice, cannot provide good cause as to why Petitioner failed to file timely hearing requests that were due before the September 29, 2025 notice was sent. 

III. Order

When an SNF does not file a timely hearing request, and the time for filing has not been extended, the hearing request may be dismissed. 42 C.F.R. § 498.70(c). In this case, Petitioner’s hearing request appealing the findings of noncompliance from the May and June 2025 surveys is untimely and is now dismissed. However, the portion of Petitioner’s hearing request that disputes the reasonableness of the CMP is timely, and that portion of the hearing request is not dismissed. 

When determining whether a CMP amount is reasonable, the factors listed in 42 C.F.R. §§ 488.404 and 488.438(f) must be considered. 42 C.F.R. §§ 488.408, 488.408(g)(2), 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2), (3); Alexandria Place, DAB No. 2245

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at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008). There is a “presumption that CMS has considered the regulatory factors in setting” the CMP amount and that those factors support the CMP. Unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it. Coquina Ctr., DAB No. 1860 at 32 (2002). 

Given the need for Petitioner to identify and dispute the factors related to the CMP amount, I modify the prehearing submission schedule as follows: 

• Petitioner will file a prehearing exchange by October 28, 2026.
• CMS will file a prehearing exchange by November 30, 2026.
• Petitioner will either file a reply brief or submit notice that it will not file a reply brief by December 20, 2026. 

If either of the parties needs additional time to file its exchange, the party may file a request for an extension of time.