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CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
IN THE CASE OF  


SUBJECT: B&K Nursing Center,

Petitioner,

DATE:December 4, 2003

             - v -

 

Centers for Medicare & Medicaid Services

 

Docket No. A-03-94
Civil Remedies Docket No. C-03-303
Decision No. 1901
DECISION
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FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE D
ECISION

Petitioner, B&K Nursing Center (B&K), appealed a July 22, 2003 Order by Administrative Law Judge (ALJ) Keith W. Sickendick. Order Dismissing Case, DAB Docket No. C-03-303 (2003) (ALJ Order). The ALJ Order dismissed B&K's Request for Hearing based on abandonment. B&K had appealed to the ALJ a determination by the Centers for Medicare & Medicaid Services (CMS) imposing the following remedies on B&K -- denial of payment for new Medicare and Medicaid admissions for the period November 15, 2002 through February 25, 2003 and civil monetary penalties (CMPs) totaling $56,800, at various daily rates applied during the period October 3, 2002 through February 25, 2003.

Based on the analysis below, we sustain the ALJ Order.

Background

The record in this appeal consists of the record before the ALJ and the parties' submissions on appeal.

B&K is a dually-participating, long-term care nursing facility in Hobart, Oklahoma. The Oklahoma State Department of Health surveyed B&K on August 15 and October 5, 2002. Both surveys revealed that B&K was not in substantial compliance with nursing home requirements for Medicare and Medicaid participation. Subsequent revisit surveys (November 13, 2002 and February 6, 2003) revealed that B&K continued to remain noncompliant. In letters dated November 27, 2002, February 14, 2003 and March 7, 2003, CMS notified B&K of proposed remedies to be imposed against it. By letter dated March 25, 2003, CMS notified B&K that it had been found in substantial compliance and that B&K's provider agreement would not be terminated. CMS Br. at 2; see also CMS Exs. 2-5.

In its February 14, 2003 letter to B&K, CMS detailed B&K's appeal rights. On February 27, 2003, counsel for B&K filed a request for hearing with this Board's Civil Remedies Division. Counsel for B&K provided the following as his address --

Oklahoma Health Systems Management
P.O. Box 1445
Newcastle, Oklahoma 73065

Counsel for B&K did not provide any other address with the hearing request, nor did he give any reason to suggest that the Newcastle address identified on his stationery was incorrect as the address for B&K. Counsel for B&K also provided telephone and telefacsimile numbers.

On April 22, 2003, the ALJ issued to the parties a Notice of Case Assignment and Prehearing Case Development Order (Prehearing Order). The Prehearing Order was mailed to counsel for B&K at the same Newcastle address which he provided with B&K's Request for Hearing. The Prehearing Order established five separate deadlines, between May 6th and June 23rd, for submission of notices of appearance, motions, prehearing exchanges and a status report.

On May 12th CMS filed with the ALJ a Motion to Dismiss or, in the Alternative, a Motion for a More Detailed Hearing Request with a copy to B&K at the Newcastle address. CMS alleged that B&K had not filed a valid hearing request within the meaning of 42 C.F.R. § 498.40. Pursuant to the Prehearing Order, which cited 42 C.F.R. § 498.17(b)(1), B&K was required to respond to the CMS Motion within 20 days. B&K did not respond to CMS' Motion. On June 26, 2003, the ALJ ordered B&K to show cause, by July 8th, why the ALJ should not grant CMS' Motion to Dismiss and why the ALJ should not dismiss for abandonment or as a sanction. B&K did not respond to the ALJ's Order to Show Cause. The ALJ Order dismissing B&K's Request for Hearing followed. The ALJ sent each of the foregoing orders to B&K at the Newcastle address referenced above. On August 12, 2003, B&K appealed the ALJ Order.

ALJ Order

The ALJ based his dismissal of B&K's Request for Hearing on the regulation providing that -

(a) The ALJ may dismiss a request for hearing if it is abandoned by the party that requested it.

(b) The ALJ may consider a request for hearing to be abandoned if the party or its representative --

(1) Fails to appear at the prehearing conference or hearing without having previously shown good cause for not appearing; and

(2) Fails to respond, within 10 days after the ALJ sends a "show cause" notice, with a showing of good cause.

42 C.F.R. § 498.69. The ALJ found that dismissal was warranted under this regulation because B&K had not responded to his June 26, 2003 Order to Show Cause.

Standard of Review

The standard of appellate review of a dismissal of a request for hearing where dismissal is committed by regulation to the discretion of the ALJ is whether the ALJ has abused his or her discretion. Riverview Village, DAB No. 1840, at 5 (2002); Osceola Nursing and Rehabilitation Center, DAB No. 1708, at 2 (1999).

ANALYSIS
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B&K's entire argument on appeal was an unsupported and unexplained assertion that: "This [the ALJ Order] is the first such correspondence we have received. We have received no other orders or motions, and do not understand why we were not previously contacted." B&K Notice of Appeal at 1. On October 2, 2003, CMS filed its brief in response to B&K's appeal. There, CMS urged that the ALJ Order be sustained and noted that B&K had failed to respond to any of the ALJ's deadlines or to any correspondence initiated by CMS. CMS Br. at 3. (1)

There is no merit to B&K's argument. The Newcastle, Oklahoma Post Office Box address provided by counsel for B&K with its Request for Hearing to the ALJ has remained constant throughout both the proceedings before the ALJ and on appeal. The Appellate Division acknowledged receipt of B&K's appeal by letter dated August 26, 2003 mailed to counsel for B&K at the Newcastle Oklahoma Post Office Box. Counsel for B&K signed (but did not date) and returned to the Appellate Division the Return Receipt Card accompanying the Acknowledgment of Appeal, reinforcing the validity of the Newcastle address.

Moreover, B&K's assertion that it received no correspondence prior to the ALJ Order is contradicted by the record. On June 13, 2003, CMS wrote to B&K noting that the ALJ's Prehearing Order had required B&K to file its prehearing exchange on June 6th and had ordered both parties to discuss possible settlement by June 23rd. CMS provided a June 13, 2003 FAX receipt showing B&K's receipt of this correspondence. CMS Appellate Ex. A. CMS also submitted a May 23rd Fed Ex receipt, signed by counsel for B&K, evidencing delivery of CMS' Prehearing Exchange. CMS Appellate Ex. B. (2) Both these receipts reflect the address and FAX number provided by B&K at the outset of the case before the ALJ. If, as it asserted here, B&K had not been contacted by the ALJ, it could have reasonably been expected to inquire about the Order to which CMS was referring.

B&K has offered no argument or evidence supporting a conclusion that the ALJ abused his discretion in dismissing its request for hearing. Rather, B&K's lack of responsiveness to either the ALJ or opposing counsel supports the ALJ's ultimate determination that B&K had abandoned its request for hearing. The Board has previously ruled that an ALJ may reasonably construe failure to file a prehearing document as tantamount to failure to appear for a prehearing conference or a hearing, as referred to in 42 C.F.R. §498.69(b)(1). Osceola Nursing and Rehabilitation Center at 8.

Conclusion

Based on the preceding analysis, we sustain the ALJ Order dismissing B&K's Request for Hearing.

JUDGE
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Judith A. Ballard

Cecilia Sparks Ford

Donald F. Garrett
Presiding Board Member

FOOTNOTES
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1. B&K did not submit a reply brief, which would have been due to be filed on or about October 22, 2003. Under the procedures established by the Board, and as outlined in the Board's acknowledgment to the parties, B&K had an opportunity to file a reply to CMS' response brief within 15 days of receipt. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs (at http://www.hhs.gov/dab/guidelines/)

2. The Board may admit evidence into the record in addition to the evidence introduced at the ALJ hearing (or the documents considered by the ALJ if the hearing was waived), if the Board considers that the additional evidence is relevant and material to an issue before it. 42 C.F.R. § 498.86. CMS Appellate Exhibits A and B are admitted into the record. B&K has not objected to this evidence. Morever, this evidence is relevant to the argument raised by B&K on appeal from the ALJ Order that it had received no case-related correspondence and had not been previously contacted.

CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES