Lakeland Health Care Center,CR6427 (2024)

DECISION

The request for hearing of Petitioner, Lakeland Health Care Center, is dismissed pursuant to 42 C.F.R. § 498.70(c).  Petitioner’s request for hearing was not timely filed, and Petitioner has not shown good cause to extend the time for filing the request for hearing. 

I. Background and Facts

The Centers for Medicare & Medicaid Services (CMS) notified Petitioner by letter dated October 12, 2022, that a survey of Petitioner’s facility completed on September 1, 2022, found Petitioner was not in substantial compliance with program participation requirements (Notice).  CMS advised Petitioner regarding mandatory termination if Petitioner did not return to substantial compliance by March 1, 2023.  CMS also advised Petitioner that it was imposing a discretionary denial of payments for new admissions effective December 1, 2022, and a per-day civil money penalty (CMP) of $1,415.00 from the period beginning August 29, 2022 that would continue to accrue until substantial compliance was reached.  As of October 11, 2022, the CMP accrued to $62,600. 

CMS advised Petitioner that it had the right to request informal dispute resolution (IDR) or independent IDR (IIDR).  CMS Exhibit (Ex.) 1 at 4-5.  CMS also advised that, if it

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disagreed with the enforcement remedies imposed, Petitioner may also request a hearing before an administrative law judge (ALJ).  Id. at 5.The Notice stated in pertinent part regarding a hearing before an ALJ: 

Your appeal must be filed no later than 60 days from the date of receipt of this letter.  

***

A request for a hearing must be made electronically, per the instructions noted above, within 60 calendar days of the date of your receipt of this notice, regardless of whether an IDR or an IIDR has been requested or is in process. 

CMS Ex. 1 at 5, 6 (emphasis in original).

Petitioner filed its request for hearing (RFH) on August 11, 2023.  Petitioner acknowledged that its RFH was filed untimely and stated that it had good cause to file out of time because it relied on a favorable recommendation from the IIDR panel and CMS did not notify Petitioner that it rejected the IIDR’s recommendation until July 7, 2023.  RFH at 2-3. 

Petitioner’s RFH was docketed and assigned to me, and I issued an Acknowledgement and Standing Prehearing Order on August 23, 2023 (Standing Order).  Paragraph 8.a of the Standing Order required that any motion to dismiss or for more definite statement be filed not later than September 22, 2023.  On September 17, 2023, CMS filed a motion to dismiss Petitioner’s request for hearing on grounds it was not timely filed (CMS Motion) and Exhibits 1-5.  On October 20, 2023, Petitioner filed an opposition to the motion to dismiss (Opposition), and on November 10, 2023, CMS filed a reply to Petitioner’s Opposition. 

II. Issues, Conclusions of Law, and Discussion

1. Issues

Whether good cause exists to extend the time for filing the request for hearing in this case, or whether the request for hearing should be dismissed because it was untimely filed.

2. Applicable Law

A provider or supplier notified of an initial, reconsidered, or reopened and revised decision that results in an enforcement remedy has the right to request a hearing by an

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ALJ in accordance with the procedures set forth at 42 C.F.R. pt. 498.  42 C.F.R. §§ 488.408(g), 498.3(b)(13), and 498.5(b).  The regulations set forth the requirements for timely filing a request for hearing: 

The affected party or its legal representative or other authorized official must file the request in writing within 60 days from receipt of the notice of initial, reconsidered, or revised determination unless that period is extended....

42 C.F.R. § 498.40(a)(2).  The 60-day period runs from the date of receipt by the affected party, which is presumed to be five days after the date of the notice unless proven otherwise.  42 C.F.R. §§ 498.40(a)(2) and 498.22(b)(3).

An ALJ has discretion to extend the period for filing a request for hearing if the petitioner files a “written request for extension of time stating the reasons why the request was not filed timely,” and the ALJ finds good cause for the late filing.  42 C.F.R. § 498.40(c).  An ALJ may dismiss an untimely hearing request if the ALJ does not find good cause to grant an extension of time to file.  42 C.F.R. § 498.70(c); see also 42 C.F.R. § 498.40(c). 

3. Conclusions of Law and Analysis

My conclusions of law are set forth in bold followed by my findings of fact and discussion.

1. Petitioner failed to file its request for hearing within the 60-day period provided by the regulation.  42 C.F.R. § 498.40(a)(2).
2. Petitioner has not shown good cause to extend by 235 days the period for filing its request for hearing.  42 C.F.R. § 498.40(c).
3. Dismissal of Petitioner’s request for hearing pursuant to 42 C.F.R. § 498.70(c) is appropriate.

CMS’s Notice is dated October 12, 2022. CMS Ex. 1. Pursuant to 42 C.F.R. §§ 498.40(a)(2) and 498.22(b)(3), it is presumed that Petitioner received the Notice on October 19, 2022.

Petitioner then had until December 19, 2022, 60 days from receipt of the Notice, to file its request for hearing.  Petitioner did not file its request for hearing until August 11, 2023, which is 235 days past the deadline. Petitioner does not dispute that its request for hearing was filed late.

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I am granted discretion by 42 C.F.R. § 498.70(c) to dismiss a request for hearing that is not timely filed, and pursuant to 42 C.F.R. § 498.40(c)(2), I may only extend the period for filing for good cause shown.  Petitioner urges me to find good cause for its late filing, but I cannot so conclude under these facts.  The regulations do not define the term “good cause, and relevant Departmental Appeals Board (Board) decisions turn on whether the specific facts of the case fit within a reasonable definition of good cause.  See, e.g., West Side House LTC Facility, DAB No. 2791 at 6 (2017) (citing Rutland Nursing Home, DAB No. 2582 at 5 (2014)). 

Various appellate panels of the Board have commented that the IIDR procedure established by 42 C.F.R. § 488.431 and the IDR procedure established by 42 C.F.R. § 488.331 do not toll the federal administrative appeal process before an ALJ, because IIDR is a wholly separate procedure distinct from the appeal rights provided to facilities under Part 498 of the federal regulations.  See, e.g., West Side House, Dab No. 2791 at 5, 7; Cary Health & Rehab. Ctr., DAB No. 1771 at 27, 29 (2001) (“[if] choosing to participate in an IDR process were sufficient to excuse the failure to file a timely request for a federal hearing, the time frame for such appeals would become almost meaningless.”).  Where a CMS Notice is explicitly clear “that the deadline to request an ALJ hearing [is] unaffected by IDR or IIDR proceedings,” petitioner may not reach the “unreasonable conclusion” that ongoing IIDR proceedings modify its filing deadline. New Grove Manor, Dab No. 3090 at 13 (2023).  

Petitioner argues good cause exists because: 

• Petitioner timely requested IIDR;
• The IIDR decision was issued on November 17, 2022 (with approximately a month remaining before the 60-day period for requesting a hearing expired);
• The IIDR decision was favorable to Petitioner; with a recommendation that the citation be reduced from a scope and severity of “G” to a “D”;
• On March 20, 2023, Petitioner both received a CMP Due and Payable Notice from CMS that stated substantial compliance was achieved on December 6, 2022, and Petitioner was later informed that day the CMP Due and Payable notice was rescinded because Petitioner was not yet considered in substantial compliance;¹

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• CMS then did not respond to the IIDR recommendation until July 7, 2023, almost eight months after the issuance of the IIDR recommendation; and
• CMS did not accept the IIDR recommendation to reduce the scope and severity of the citation.

RFH at 2-4; Opposition at 2, 4-5.

Essentially, Petitioner’s argument is that it assumed CMS would either accept or reject the IIDR’s recommendation and then reissue a revised Notice Letter that would then provide Petitioner a new 60-day window to appeal.  See id.  Other than a bald assumption, Petitioner does not provide any evidence to support its belief, which is in stark contrast to the appeal instructions set forth in CMS’s Notice:

A request for a hearing must be made electronically, per the instructions noted above, within 60 calendar days of the date of your receipt of this notice, regardless of whether an IDR or an IIDR has been requested or is in process.

CMS Ex 1 at 6. While Petitioner asserts that its belief was due to communications from CMS on March 20, 2023, this communication occurred three months after Petitioner’s deadline to file a hearing request before an ALJ and does not appear to contain any relevance to the 60-day time period for filing an appeal.  See Opposition at 4-5.  As such, Petitioner could not have relied upon it in deciding not to file an appeal before the 60-day time period expired.  See id.  When the time to request a hearing expired, Petitioner could not have known whether CMS would adopt the IIDR’s recommendation.  Petitioner does not otherwise argue or provide any evidence of communications with CMS prior to December 19, 2022 that would contravene the appeal parameters expressly stated in the October 12, 2022 Notice Letter (CMS Ex. 1 at 6), or otherwise indicate that CMS would accept the IIDR’s recommendation to reduce the scope and severity of the citation from a “G” to a “D”.²  Notably, the November 17,2022 IIDR determination letter states that its determinations are “recommendations to CMS and if CMS has reason to disagree with the State’s findings it may reject them in favor of its own binding determination.”  CMS Ex. 4 citing 42 C.F.R. § 488.431.

Petitioner takes umbrage with CMS’s decision not to adopt the IIDR’s recommendation and the eight months it took CMS to reach this decision.  Opposition at 1-5.  This tribunal, however, does not have jurisdiction over CMS’s decision whether to adopt the

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IIDR’s recommendation, and Petitioner does not cite any authority requiring CMS to make such a decision within a certain time period.

I conclude that CMS’s delay in notifying Petitioner whether it was going to adopt the IIDR’s recommendation to reduce the citation’s scope and severity rating – absent any evidence that CMS communicated to Petitioner an intent to adopt the recommendation – does not constitute good cause for extending the request for hearing timely filing requirements.  Petitioner provides no acceptable explanation for why it did not contemporaneously file both its request for IIDR and a request for hearing.  Accordingly, the request for hearing is dismissed.  The dismissal of Petitioner’s request for hearing has no bearing on the merits of Petitioner’s appeal. 

III. Conclusion

For the foregoing reasons, Petitioner’s request for hearing is dismissed.

Endnotes

¹ Neither Petitioner, nor CMS has offered these documents and/or emails as exhibits in support or opposition to CMS’s Motion to Dismiss.  It is also unclear from the record whether and when Petitioner was deemed to have reached substantial compliance and whether and when CMS issued a second CMP Due and Payable Notice.

² A “D” level scope and severity rating of a violation indicates an isolated incident with no actual harm with a potential for more than minimal harm that is not immediate jeopardy.