SUBJECT: Alden Nursing Center - Morrow,

Petitioner,

Centers for Medicare & Medicaid Services

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

On October 23, 2001, after receiving extensions from the Board, Alden Nursing Center - Morrow (Alden) appealed the June 25, 2001 decision of Administrative Law Judge (ALJ) Carolyn Cozad Hughes dismissing Alden's case for the second time after a remand from the Board. Alden Nursing Center - Morrow, DAB CR784 (2001) (ALJ Remand Decision). This is thus the second time this case has arrived at the appellate level without Alden-Morrow having received a hearing on the merits. For the reasons explained below, we determine that the ALJ erred, and disregarded the instructions of the Board on remand, in denying Alden's request to amend its hearing request. We find that there is not substantial evidence in the record to support the ALJ's treatment of the amended hearing request as rescinded by Alden. We further determine that the ALJ's conclusion that the amended hearing request did not meet the content requirements for a valid hearing request was unsupported by the record and inconsistent with the instructions on remand. We reverse the ALJ's dismissal and order a hearing to be conducted without further delay.

Legal Background

The regulations governing the conduct of ALJ hearings at 42 C.F.R. Part 498 provide that a request for hearing must be filed within 60 days of receipt of notice of an appealable determination. Section 498.40(a)(2). The contents of the request must -

(1) Identify the specific issues, and the findings of fact and conclusions of law with which the affected party disagrees; and

(2) Specify the basis for contending that the findings and conclusions are incorrect.

Section 498.40(b). The ALJ may extend the time for filing a hearing request "for good cause shown." Section 498.40(c). The ALJ may dismiss a hearing request where the "affected party did not file a hearing request timely and the time for filing has not been extended." Section 498.70(c).

In addition, the statute provides for administrative sanctions for misconduct by a party to a hearing. Section 1128A(c)(4) of the Social Security Act (the Act), made applicable to civil money penalty proceedings involving nursing facilities by section 1819(h)(2)(B)(ii) of the Act, provides:

The official conducting a hearing under this section may sanction a person, including any party or attorney, for failing to comply with an order or procedure, failing to defend an action, or other misconduct as would interfere with the speedy, orderly, or fair conduct of the hearing. Such sanction shall reasonably relate to the severity and nature of the failure or misconduct. Such sanction may include-

* * *

(B) prohibiting a party from introducing certain evidence or otherwise supporting a particular claim or defense,
(C) striking pleadings, in whole or in part,
(D) staying the proceedings,
(E) dismissal of the action,
(F) entering a default judgment,
(G) ordering the party or attorney to pay attorneys' fees and other costs caused by the failure or misconduct,
(H) refusing to consider any motion or other action which is not filed in a timely manner.

Procedural Background

The history of this case is tangled and prolonged since the initial filing on October 14, 1996 by Alden of a request for a hearing to challenge the October 8, 1996 determination of the Centers for Medicare & Medicaid Services (CMS) to impose a CMP of $24,200 on Alden.⁽¹⁾ We summarize briefly here the events not in dispute leading to the first remand of this case. We discuss in the next section the procedures provided on remand and the decision of the ALJ appealed here.

Early in the case the parties agreed to an indefinite stay for purposes of settlement negotiations which the ALJ⁽²⁾ approved on December 2, 1996 and which continued until February 10, 1999, at which time CMS moved the ALJ to issue a show cause order as to why the hearing request should not be dismissed as untimely for failure to meet content requirements. On February 26, 1999, Alden sought leave to file an amended hearing request, accompanied by eleven attachments which contained information about the challenges to the deficiency findings pressed by Alden during informal dispute resolution (IDR) at the state level. On October 18, 1999, ALJ Leahy denied Alden's motion to amend and granted CMS's motion to dismiss. Alden Nursing Center-Morrow, DAB CR622 (1999) (Initial ALJ Decision). Alden appealed the dismissal to the Board.

In their filings on appeal both parties quoted language from an amended hearing request letter filed by Alden dated February 26, 1999, but the letter with those quotations could not be found in the official file. A different letter from Alden addressed to ALJ Leahy and seeking permission to file the motion to amend the hearing request was the only letter dated February 26, 1999 that appeared in the record. The Board thereupon --

inquired of the Civil Remedies Division whether the ALJ or staff attorney assigned to the case had any documents that had been inadvertently omitted from the administrative record, and was advised that the record provided the Board contained all documents received by the Civil Remedies Division regarding Petitioner's request for hearing.

Alden Nursing Center-Morrow, DAB No. 1734, at 2 (2000) (Appellate Decision). Given this turn of events, the Board concluded that it was essential to recreate a complete record for the ALJ to act upon and remanded with specific instructions to the ALJ as follows:

The ALJ is directed to provide to the parties an item-by-item inventory of the administrative record, so that they may identify and provide to the ALJ any documents, including the February 26, 1999 letter, that are found to be missing from the record. The ALJ should admit such documents and may also consider as part of the record the documents filed by the parties in conjunction with Petitioner's appeal, including Petitioner's affidavit addressing a statement in the ALJ decision about the origin of the documents proffered in support of Petitioner's putative amended hearing request. The ALJ shall reconsider HCFA's request for dismissal in light of this new material and the Board's decisions in Alden-Princeton Rehabilitation and Health Care Center, Inc., DAB 1709 (1999), and Fairview Nursing Plaza, Inc., DAB 1715 (2000), and the rulings in Four States Care Center, Docket No. A-99-66 (June 7, 1999) and Rehabilitation Health Care Center of Tampa, Docket No. A-99-95 (August 16, 1999), and issue a new ruling.

Appellate Decision at 2. The Board further specifically requested that the ALJ expedite her review in light of the age of the case at that point. The ALJ then issued the remand decision appealed here.

Proceedings on Remand and ALJ Remand Decision

On remand, the Civil Remedies Division staff attorney sent a letter to the parties, dated November 14, 2000, which reported that her recollection of "extra-record events in this case" had recently been triggered with the result that she "came across a pile of documents in [her] office" with a note on top in her handwriting reading "wrong submission." The "pile" reportedly consisted of three sets of documents submitted by Alden,⁽³⁾ including the missing letter quoted to the Board. We describe these papers in some detail since their content is at the heart of the issue of whether a valid hearing request has been placed in the record in this case.

Each set contained two distinct letters dated February 26, 1999 and date-stamped as received on March 1, 1999. One letter was addressed directly to ALJ Leahy and consisted of a single sentence which read as follows: "Enclosed herein please find our Motion to Reactivate and Set This Cause for Hearing and For Leave to File an Amended Hearing Request, together with supporting documentation regarding the above captioned matter." The other letter was addressed to the Chief of the Civil Remedies Division and purported to be the amended hearing request.⁽⁴⁾ The body read as follows:

Please take this correspondence as our Amended Request for Hearing on behalf of our client, Alden Morrow Rehabilitation & Health Care Center, for surveys of 4/16-19/96 and 6/11-14/96.

In our request for hearing we did not specify that we were contesting each of the specific tags found in these surveys. You will enclosed please find [IDR] . . . forms and other documentation, which specify and detail the tags, issues and findings of fact with which my clients disagree. Please take these IDR's and other documents as contested issues which we ask for hearing on by this document, which incorporates the IDR's.

In each of these responses the bases for my client's contentions are specified, and state the facts and their conclusions. My clients contest the civil money penalties imposed as a result of the surveys.

Each set also included a four-page motion containing Alden's arguments for the ALJ to reactivate the case and give it leave to amend the hearing request. In addition, each set included the documentation incorporated by reference in the amended hearing request, consisting of eleven separately-stapled but unnumbered groups of papers including IDR dispute forms for different tags and other documentation.

In her letter to the parties explaining her discovery of this material in her office, the staff attorney indicated that she now recalled that she had received this submission on March 1, 1999, but that she got a call the same day from an individual in the office of Alden's counsel, whose name she did not recall, asking her not to file the materials in the record because they contained errors which would be corrected by another package to be sent in a few days. Letter dated November 14, 2000, at 2-3. The staff attorney asserted that she took this request as amounting to a voluntary withdrawal of the entire package (letters, motion, and documentation), and so she "prevented" them from being filed in the case record. Id. at 2-4.

On March 3, 1999, another package was received from Alden's attorney and was filed in the official case file. This consisted again of three sets of documents. The documents included only one of the two letters dated February 26, 1999, the one addressed to ALJ Leahy. That letter was the one quoted in the Initial ALJ Decision. The letter quoted by the parties on appeal (the amended hearing request) was apparently not in the package included in the official record. The attached papers were now labeled as numbered Attachments 1 - 11. The staff attorney did not contemporaneously compare the "replacement" package with the set of materials she withheld from the record, and did not note the omission. Letter of November 14, 2000, at 5. Having done so now, she provided copies of both letters to both parties, in the hope that they and the ALJ would "understand why there is only one February 26, 1999 [letter] in the record even though Mr. Greenburg had also authored a different letter of the same date." Id. at 6.

In briefing on remand, CMS submitted a set of papers evidently identical to those stored since March 1999 in the staff attorney's office. This set had been served on CMS on March 1, 1999. CMS Ex. 2; ALJ Remand Decision at 3.⁽⁵⁾ The ALJ admitted this exhibit, as well as CMS Exhibit 1 and Alden's Exhibits 1 through 4 submitted on remand in "the interest of creating a complete record." ALJ Remand Decision at 4. The ALJ does not appear, however, to have admitted the documents in the staff attorney's office into the record themselves, but rather to have decided that these papers should be treated as "rescinded" or as simply never having been filed, rather than as "missing." See ALJ Remand Decision at 1, n.1.

The ALJ made the following two findings of fact and conclusions of law (FFCLs) on remand:

1. Petitioner did not file a valid hearing request pursuant to 42 C.F.R. § 498.40(b) within the 60-day time limit required by 42 C.F.R. § 498.40(a).

2. Based on the totality of the particular circumstance[s] of this case, dismissal of this case is appropriate under 42 C.F.R. § 498.70(c).

ALJ Remand Decision at 14.

Issues on Appeal

Alden alleged that the ALJ erred in dismissing the hearing request and in determining that no valid amended hearing request was submitted by Alden. Alden also alleged that the ALJ erred in ruling that Alden's amended hearing request, even if accepted, did not meet the content requirements of 42 C.F.R. § 498.40(b).

Standard of Review

Our standard of review of an ALJ decision on a disputed issue of law is whether the ALJ erred. Our standard of review on a disputed finding of fact is whether the ALJ Decision is supported by substantial evidence on the record as a whole. See, e.g., Lake Cook Terrace Nursing Center, DAB No. 1745 (2000). The bases for modifying, reversing or remanding an ALJ decision include the following: a finding of material fact necessary to the outcome of the decision is not supported by substantial evidence; a legal conclusion necessary to the outcome of the decision is erroneous; the decision is contrary to law or applicable regulations; or a prejudicial error of procedure (including an abuse of discretion under the law or applicable regulations) was committed. See Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs, ¶ 4(b), at http://www.hhs.gov/dab/guidelines/prov.html; see also Community Nursing Home, DAB No. 1807 (2002).

1. The ALJ erred in denying Alden's request to amend its hearing request under the circumstances of this case.

A week after CMS determined to impose a CMP against it, Alden filed a request for a hearing. Neither the ALJ nor CMS raised any question about the effectiveness of this request to preserve Alden's hearing right for 2½ years. The ALJ granted a stay for negotiation purposes, and no challenge was made to the content of the hearing request until February 10, 1999. CMS filed its motion to dismiss five months after the Board's decision in Birchwood Manor Nursing Center, DAB No. 1669 (1998), aff'd sub nom., Birchwood Manor Nursing Center v. Dep't of Health and Human Servs., No. 98-60695 (5th Cir. June 29, 1999), was issued. That decision was the first to uphold dismissal of a hearing request as untimely based on the inadequacy of its contents.

We agree with a number of the premises with which the ALJ began her analysis, but find that the conclusions at which she arrived from those premises were in error and resulted in a dismissal which was unfair in the light of the fundamental purposes of the hearing procedures, including the content requirements for hearing requests. Thus, we agree that the regulations have meaning and that Alden's initial hearing request was inadequate to provide the information expressly required by the regulations. See ALJ Remand Decision at 4. We further agree that the regulations and the various appellate decisions on the application of the content requirements in the regulations must read to be consistent with each other. Id. at 4-5. From these premises, the ALJ concluded that Alden's initial filing was not an adequate hearing request and that it followed that no hearing request was timely filed. Id. at 7. She recognized that she had discretion to determine not to dismiss a hearing request that does not comply with the regulatory content requirements. ALJ Remand Decision at 7, citing Alden-Princeton Rehabilitation and Health Care Center, DAB No. 1709 (1999). She defined that discretion to be bounded, however, by whether she found "good cause" for Alden's failure to file timely based on 42 C.F.R. § 498.40(c). ALJ Remand Decision at 8. She considered that any "more lenient standard" than that which she derived from this regulation would allow an appeal to stand "in the absence of a valid, timely filed hearing request" and obviate any good cause showing. Id. On that basis, she determined that she must dismiss the hearing request and deny permission to amend it.

We disagree that these conclusions follow. We conclude that the discretion to permit amendment of a hearing request to rectify the inadequate content of a timely-filed request is not so narrow. Rather, the discretion must be exercised with a view to achieving the ends of the content requirements while preserving hearing rights for those affected parties seeking in good faith to exercise them. We believe that this analysis better reconciles the fairness of the hearing processes, the purposes of the hearing request regulation, and our prior decisions dealing with inadequate hearing requests and the opportunity to cure defects.

Thus, while we agree that the regulation must be given meaning and effect, that meaning must be understood in the context of the purposes behind the regulation and overall role of the hearing process. We have previously identified the reasons behind the content requirements, as follows:

Part 498 does not require any further submission by a petitioner to identify the disputed issues in a case following the filing of a hearing request. Thus, if the ALJ were to accept as a hearing request a document that did not comply with section 498.40(b), this might deprive HCFA of the opportunity to prepare adequately for a hearing. In addition, without notice of what issues are before him or her, the ALJ might not be able to rule correctly on the relevance of evidence sought to be introduced at the hearing. Furthermore, the case might proceed to hearing only to find that no hearing is required because only legal issues are disputed. Moreover, if the ALJ were to permit the petitioner to identify the issues in dispute after accepting a deficient submission as a hearing request, this would substantially delay the resolution of the case.

Birchwood at 11. The Board has also noted that "a petitioner's willingness and ability to identify the facts and legal interpretations in controversy served the regulations' reasonable expectation that litigation will be initiated and maintained only for legitimate reasons." Care Inn of Gladewater, DAB No. 1680, at 7-8 (1999); see also Regency Manor Healthcare Center, et al., DAB No. 1672 (1998). In Birchwood, the Board upheld the decision of an ALJ to dismiss a facially-inadequate hearing request, where the ALJ found that the petitioner sought to excuse its failure by a spurious claim that CMS's determination notice was impossible to comprehend. The petitioner in that case maintained, both before the ALJ and on appeal, that it had no need or obligation to amend its hearing request to come into compliance.

Where we disagree with the ALJ is in the very constrained reading she applied to the circumstances relevant to whether an inadequate hearing request should be treated as a complete nullity and whether the opportunity to perfect the appeal by amendment is permitted only on a showing of good cause for failing to file timely. The factors and circumstances to be considered in the situation of a petitioner seeking to amend a timely-filed, but inadequately-articulated hearing request have generated a large number of appeals of dismissal orders in the wake of our Birchwood decision. It is clear that more guidance is needed for addressing these scenarios in a manner that meets the goals of the regulations but gives sufficient deference to the statutory right to hearing.

From Birchwood on, our decisions relating to ALJ's dismissals have reiterated the important theme that we "do not conclude lightly that Petitioner has no right to a hearing on HCFA's imposition of a civil money penalty." Birchwood at 10; see also Fairview Nursing Plaza, Inc., DAB No. 1715, at 5 (2000); Alden-Princeton Rehabilitation & Health Care Center, Inc., DAB No. 1709, at 14 (1999). In Birchwood, we balanced the need to honor statutory hearing rights with the compelling reasons for requiring compliance with reasonable procedural requirements to manage administrative litigation fairly for the purposes we described. Given the conduct of the petitioner in that matter, we found no error in the ALJ's conclusion that dismissal was appropriate. That result did not imply that the same balancing process would automatically support dismissal of every case initiated by an inadequate hearing request. We were not there dealing with a petitioner that made good faith efforts to perfect its appeal once the adequacy of its hearing request was challenged. We therefore rejected a number of arguments proffered there in an effort to deny the authority of the regulation, for example, on the grounds that it had not previously been strictly enforced in practice or that the inadequacy had not been identified early in the case.

In subsequent cases where the situations differed significantly from Birchwood, the Board has clearly recognized that many circumstances may militate against inflexible dismissal and in favor of an exercise of discretion to meet the purposes of regulation without the drastic step of cutting off all hearing rights. For example, in Alden-Princeton, the Board concluded that the language of section 498.70 gave an ALJ discretion not to dismiss a case based on such considerations as whether defects in the request were subsequently remedied by the submission of additional documents, whether HCFA had effectively waived its objection to the request, and whether the overall course of the proceedings may have reasonably led a petitioner to conclude that its request was acceptable. See also Fairview.

In the two rulings which we directed the ALJ here to consider on remand, we made explicit that the considerations which we rejected in Birchwood as reasons to ignore the regulations were nevertheless relevant to the appropriateness of dismissal where a petitioner seeks to remedy a failure to comply with the content requirements. Thus, we cited with approval the reasoning of ALJ Steven T. Kessel who declined to dismiss in those cases where "the intent of the procedures had been fulfilled." Board Ruling in Four States Care Center, Docket No. A-99-66, at 2 (June 7, 1999). We stated that --

the ALJ recognized the important principle that a request for hearing must be complete enough to provide notice of the issues, but he determined that the defect in the initial request for hearing had been remedied and that HCFA had in effect waived its objection to that request. He therefore elected not to exercise his discretion to dismiss the request for hearing, and ordered the parties to move forward with hearing preparations.

See also Rehabilitation Health Care Center of Tampa, Docket No. A-99-95 (August 16, 1999).⁽⁶⁾

ALJ Kessel's position is consistent with understanding the central purpose of the hearing request content requirements as a reasonable way of focusing the scope of the dispute but not as a hidden obstacle preventing the unwary petitioner from exercising the right to a hearing. The ALJ in this case should have adopted ALJ Kessel's resolution of this issue.

It cannot be denied that the practice of filing "notice" pleadings to initiate these cases was tolerated prior to Birchwood. Nor that, in many cases, no review of the adequacy of the hearing request appears to have been undertaken by either CMS or the ALJ until the case has been pending for many months, often delayed because of settlement efforts. While the initial hearing requests filed in many cases, especially before or soon after Birchwood, may well not amount to timely valid hearing requests, the course of events in many of those cases has established that the parties and the ALJ understood that a hearing was being sought and often the nature of the dispute has become well-understood by all. That is certainly evident in the present case. In such situations, absent strong reasons to the contrary, such as intransigency on the part of the petitioner, it is unreasonable to dismiss the case with prejudice without permitting the petitioner an opportunity to rectify its initial submission by a clarifying amendment.

The ALJ in the present case determined that Alden did not show good cause for her to exercise her discretion to decline to dismiss under 42 C.F.R. § 498.40(c). ALJ Remand Decision at 9. She focused on the fact that Alden was represented by experienced counsel and that it did not seek to amend until CMS filed its motion to dismiss, which came years after the period to appeal had ended. Id. at 9. She rejected the position that she should consider CMS's failure to object earlier because she believed that counsel for CMS could reasonably "advance her client's interest" by seeking a negotiated settlement and had "no duty to alert an adverse party" to a problem discernable on the face of the regulations. Id.

We disagree with the gamesmanship embodied in this conception of the relationship of CMS and an affected party seeking review of an adverse determination. While these proceedings are unquestionably adversarial processes, the government's interest ultimately lies in the factual and legal accuracy of its determinations affecting providers of services to vulnerable beneficiaries, not merely in victory in litigation by any means permissible. The question is not whether CMS counsel had any duty to Alden but whether its course of action led Alden reasonably to believe that CMS understood the bases for Alden's appeal and to rely on the understanding that its appeal had been perfected.⁽⁷⁾ In this regard, it is particularly telling that, had CMS raised its objections early in this proceeding, Alden would have had ample time remaining in its regulatory period of appeal to amend its hearing request as of right.

In addition, Alden's actions here evidence good faith. Almost immediately when the defect was pointed out, Alden sought to submit additional documentation to remedy the inadequacy of its original formulation. Discretion cannot be exercised in an arbitrary manner, especially where its exercise serves to undo completely a hearing right contemplated by statute despite evident efforts by an affected party to preserve and assert that right. We discuss below the adequacy of the later submission but here we conclude that relevant considerations in deciding whether to permit Alden to offer an amended hearing request should have included such factors as the effect of CMS's inaction over a long period during which the case was pending from which Alden could reasonably have believed that its initial submission was acceptable, the prompt effort by Alden to remedy defects once challenged, and the long delays and procedural missteps, many not the fault of Alden, that prolonged this case.

We conclude that the ALJ erred in dismissing without permitting Alden to cure the defect in its hearing request because she did not consider these relevant factors and instead gave undue weight to other factors that should not have been decisive, such as the nature of Alden's representation.

Alden also argued that the ALJ in the present case was bound not only by regulation and precedent, but by the law of the case and that her refusal to permit amendment was contrary to our instructions on remand. We directed the ALJ to determine if the record lacked any documents which the parties identified as missing and then to admit the documents and reconsider dismissal in light of such material. Appellate Decision at 2. Instead, the ALJ notified the parties of the existence of the unfiled submission in the staff attorney's office but characterized it as "rescinded" and did not admit it to the record. ALJ Remand Decision at 3, n.3., 17.

The only basis for this description seems to be the assertion in the staff attorney's letter that she did not place the materials she received from Alden on March 1, 1999 in the official record because she understood that to be the wish of someone from Alden's counsel's office. Letter of November 14, 2000. We do not find this assertion to be substantial evidence that Alden ever intended to withdraw its amended hearing request. The staff attorney was reciting a recovered recollection 20 months after the events involved, on a subject which she had failed to recall even upon inquiry from the Board earlier and of which she made no contemporaneous record. She could not identify the person with whom she spoke. Her handling of the materials does not appear to accord with Civil Remedies Division practice of including the submission in the record and noting its subsequent withdrawal with an explanation of the circumstances. The ALJ's conclusion that Alden voluntarily rescinded its amended hearing request is extremely implausible since it implies that Alden first sought to amend its hearing request in response to CMS's motion to dismiss, then a few days later intentionally withdrew the amended hearing request and unmarked attachments, only to replace it with a marked set of attachments but no amended hearing request.⁽⁸⁾ We do not accept this scenario and we therefore agree with Alden that the missing amended hearing request letter should have been admitted into the record pursuant to our instructions. In any case, the letter is now in the record in several places and the original submission is in effect admitted since CMS made its copy an exhibit.

While the ALJ denied that Alden had shown good cause to be permitted to amend its hearing request, she nevertheless went on to address the contents of the amended hearing request. She concluded that the package (regardless of which version or attachments were considered) was not a valid hearing request. We next address this conclusion.

2. The amended hearing request package sufficed to meet the content requirements for a hearing request.

The ALJ asserted that, even if she considered all of the attachments and both the letters dated February 26, 1999, she still concluded that neither submission satisfied the regulatory requirements. ALJ Decision at 12. We determine that this conclusion is erroneous.

The ALJ gave her fundamental reasons for her rejection of the amended hearing request package in the following statement:

I simply cannot tell which of the many statements in the numerous attached documents constitute the findings and conclusions with which Petitioner disagrees and which of the conflicting statements constitute the bases for its disagreements. Nor am I willing to parse through these submissions and attempt to cobble together what might be considered a valid hearing request.

ALJ Remand Decision at 12-13.

The ALJ admitted that the Board has held that the regulation does not specify any particular format or wording necessary to identify a valid hearing request. ALJ Remand Decision at 13, citing Fairview at 13. She further acknowledged that IDR documentation could adequately comprise a hearing request. ALJ Remand Decision at 13. Nevertheless, she characterized Alden's amended hearing request as inadequate because it was not "consistent" and the intent was not "clear." Id. Instead, she characterized Alden as having "thrown together" IDR submissions and plans of correction and expected her to "sort them out." Id. She reasoned that Alden had thus still never submitted a valid hearing request, and that she was hence without authority to provide a hearing. Id.

This description and treatment of the documents submitted by Alden is without foundation in the record. Reviewing the February 26, 1999 amended hearing request addressed to the Division Chief and the associated attachments, we find the combination states a case much clearer and more organized than is evident from the ALJ's description.⁽⁹⁾ The amended hearing request clarifies that each deficiency discussed in the attached IDR forms is contested on appeal. The body of the letter establishes that the attached IDR materials and supporting documentation are to be read as part of the hearing request in order "to specify and detail the tags, issues and findings of fact" being challenged, to set out the bases for each challenge and to present the "the facts and their conclusions" on which Alden would rely. Generally, the attachments present information about the basis of the dispute in the IDR process as to a particular tag. In most cases, each attachment consists of a sheet identifying a single deficiency which Alden contested with a succinct statement of the basis for the contest, followed by a page or two of narrative explaining the specific disputes which Alden raised as to particular examples cited by the surveyors. Those narratives refer to attached documents such as facility records regarding the resident(s) at issue and identify each record by a number. The supporting documentation includes the plan of correction which gives some contemporaneous reflection of Alden's assertions.

The thoroughness of this material collectively contrasts strikingly with the brevity of the hearing request found minimally adequate in Fairview where the petitioner simply asserted that it was contesting "all deficiencies and findings of non-compliance in this matter." DAB No. 1715, at 11. We do not hold that a party could not overshoot the mark aimed at by the regulation, by dumping paperwork too voluminous and disorganized to communicate to the ALJ or CMS the findings disputed or the bases for challenging them as required by the regulation. In this case, however, the amended hearing request letter and the cover sheets to each attachment provide an adequate roadmap for the purpose of identifying the subject and bases of the dispute.

Neither do we hold that the ALJ was herself obliged to sort out ambiguities or contradictions in Alden's documentation in order to formulate the proper scope of the hearing. Many options are available short of final dismissal to narrow and clarify the issues prior to a hearing. For example, the ALJ raised a question as to Alden's position regarding Tab 318 on the basis that she found statements in the relevant IDR sheet and the plan of correction to be contradictory. ALJ Remand Decision at 12. Such problems could be resolved by requiring a pre-hearing submission or by fleshing out during a pre-hearing conference. If the ALJ concluded that evidence submitted by Alden contradicted its assertions, she may certainly weigh that fact in her ultimate resolution of the issues.

It is unacceptable, however, to conclude that no hearing request has actually ever been filed identifying issues and findings in dispute and the bases for those disputes. For that reason, we reject the ALJ's conclusion that she cannot afford a hearing to Alden because it has not filed a valid hearing request. To the extent that the ALJ may have taken this position in part as sanction for the responsibility she attributed to Alden for causing delay and confusion by its actions in this case (ALJ Remand Decision at 13-14), dismissal would be inappropriately severe. See Kermit Healthcare Center, DAB No. 1819 (2002).

Instructions on Remand

The history of this case falls well short of meeting the fundamental goal of administrative adjudication, i.e., a prompt, meaningful review by an independent ALJ of appealable administrative actions adversely affecting a petitioner. Alden should not be subjected to further procedural delays or administrative obstacles to realizing the hearing on the merits to which it is entitled. Therefore, on remand, the ALJ is instructed to schedule a hearing at the earliest possible time. The scope of the hearing is to address any challenge to a deficiency finding identified in Alden's amended hearing request and based on a reason referenced therein, including the issues and challenges presented in all the incorporated attachments (i.e., in both the record set and the set in CMS's exhibit). If necessary, a prehearing conference or other proceeding may be held to clarify and frame the issues presented by those challenges.

Conclusion

For the reasons explained above, the ALJ Remand Decision is reversed, the FFCLs therein are vacated, and the matter is remanded for further proceedings consistent with the instructions herein.

Cecilia Sparks Ford

Marc R. Hillson

M. Terry Johnson
Presiding Board Member

1. CMS was previously named the Health Care Financing Administration (HCFA). See 66 Fed. Reg. 35,437 (July 5, 2001). We use "CMS" in this decision unless we are quoting documents that refer to HCFA.

2. The ALJ who conducted the initial proceedings in this was Mimi Hwang Leahy. After remand, ALJ Hughes was substituted for ALJ Leahy.

3. The parties were instructed to file all submissions in triplicate.

4. At times, the two pieces of correspondence dated February 26, 1999 have been referred to in the record as "cover letters." This description makes them sound like interchangeable duplications. In fact, they are different in function as well as addressee - one transmits the motion for leave to file and the other is the amended hearing request itself.

5. It is thus undisputed that CMS had ample and timely notice of the contents of the amended hearing request (which was the letter addressed to the Civil Remedies Division Chief along with its incorporated attachments).

6. These rulings have been published as attachments to the appellate decision in Lakewood Plaza Nursing Center, DAB No. 1767 (2001).

7. We note that one way to avoid the problem of a threshold requirement surfacing after months or years of effort by the parties and the adjudicators might be for the ALJ to notify CMS that any defects in the initial hearing request should be identified within a set time frame or may be considered to have been waived. It is in the interest of fairness to all that inadequate notice be promptly identified and remedied or, if on examination no issue is in fact joined for which a hearing right exists, that the case be cleared from the docket without unnecessary costs being incurred.

8. The ALJ considered that Alden had conceded the accuracy of this interpretation because it had not "objected to or otherwise questioned any of the particulars" in the staff attorney's letter. ALJ Remand Decision at 18. Alden stated in its brief on remand, however, that it read that letter as substantiating that its amended hearing request had been submitted and not filed due to a "clerical error or misunderstanding." Alden's Memorandum of Law on Remand at 1-2, n.1. On appeal, Alden clearly asserted it never rescinded or withdrew its amended hearing request but always intended it to be included in the record. Alden Br. on Appeal at 4-8. The ALJ also faulted Alden for not having told CMS that it had rescinded its original submission and not having supplied the replacement package to CMS. ALJ Remand Decision at 18; Letter of November 14, 2000, at 3-4. Since Alden has never conceded that it sought rescission of its amended hearing request, it was unlikely to have told CMS that it had done so. Alden should indeed have served CMS with a copy of the package including the marked attachments, and the ALJ indicated that the submission indicates that CMS counsel was copied on that package. ALJ Remand Decision at 18. CMS counsel asserted that it was not received there, but there is no basis to assume from that statement that Alden misrepresented having mailed a copy to CMS counsel. Besides, the significant difference between the two versions lies largely in the inclusion of the amended hearing request letter itself in only the first submission, which CMS does not dispute that it received shortly after it was mailed.

9. The attachments are present in two places in the record. Alden's submission with numbered attachments received on March 3, 1999 remains in the case record. As we noted, CMS submitted its copy of the set of papers originally filed with the CMS and the Board on March 1, 1999 and the ALJ admitted that set as part of CMS Exhibit 2 on remand. The CMS set presumably parallels the set put aside by the staff attorney. The ALJ noted that the attachments in the CMS set were unmarked and in a different order than those in the set in the record but we find this insignificant. ALJ Remand Decision at 12.