Lakeland Health Care Center, DAB No 3147 (2024)

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Lakeland Health Care Center, a skilled nursing facility (SNF) in New Jersey, appeals an Administrative Law Judge’s (ALJ’s) decision dismissing its request for a hearing in accordance with 42 C.F.R. § 498.70(c).  Lakeland Health Care Center, DAB CR6427 (2024) (ALJ Dismissal).  The ALJ concluded that Petitioner was not entitled to a hearing because it filed its request late and without good cause to extend the time for filing. For the reasons explained below, we affirm the ALJ Dismissal.

Legal Background

To participate in the Medicare program, a SNF must be in “substantial compliance” with Medicare participation requirements in 42 C.F.R. Part 483, subpart B.  See Social Security Act (Act) § 1819(h); 42 C.F.R. §§ 483.1, 488.400.  A SNF is not in “substantial compliance” when it has a “deficiency”—that is, a failure to meet a participation requirement—that creates at least the potential for more than minimal harm to one or more residents of the SNF.  42 C.F.R. § 488.301 (defining “Substantial compliance” and “Deficiency”).  The term “noncompliance,” as used in the applicable regulations, is synonymous with a lack of substantial compliance.  Id. (defining “Noncompliance”).  Under agreements with the Centers for Medicare & Medicaid Services (CMS), state survey agencies conduct periodic onsite surveys of SNFs to verify compliance with the Medicare participation requirements.  Id. §§ 488.10(a); 488.11; 488.308; see also Act §§ 1819(g)(1)(A), 1864(a). 

CMS may impose enforcement “remedies,” such as a civil money penalty (CMP), on a SNF that is not in substantial compliance with one or more participation requirements.  See Act § 1819(h); 42 C.F.R. §§ 488.400; 488.402(b), (c); 488.406.  When CMS decides to impose a CMP for a SNF’s noncompliance, it must consider various regulatory factors, including the “seriousness” of the noncompliance, in setting the amount of the CMP.  42 C.F.R. §§ 488.404(b), 488.438(f).  Seriousness is a function of the scope of noncompliance (whether a deficiency is “isolated,” constitutes a “pattern,” or is “widespread”) and severity (whether a deficiency has created a “potential for” only

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“minimal harm” or a potential for “more than minimal harm,” resulted in “[a]ctual harm,” or placed residents in “immediate jeopardy”).  Id. § 488.404(b). 

CMS may impose a CMP in the “upper range” of $50 to $3,000 (as adjusted annually under 45 C.F.R. Part 102) per day for a SNF’s noncompliance that does not place residents in “immediate jeopardy” but that either causes actual harm or creates the potential for more than minimal harm.  Id. § 488.438(a)(1)(ii). A per-day CMP may accrue until the SNF achieves substantial compliance or its provider agreement is terminated.  Id. § 488.454(a). A SNF may appeal a noncompliance determination that resulted in the imposition of a CMS remedy by requesting a hearing before an ALJ.  Id. §§ 488.408(g)(1), 498.3(b)(13), 498.5(b).  Additionally, a SNF can contest the reasonableness of the amount of a CMP.  Id. § 488.438(e), (f); see also Crawford Healthcare & Rehab., DAB No. 2738, at 2 (2016).

A SNF may also informally dispute cited deficiencies through an informal dispute resolution (IDR) process, known as “independent informal dispute resolution” (IIDR), if CMS imposes a CMP against the SNF and the CMP is subject to being collected and placed in an escrow account pending a final administrative decision.  See 42 C.F.R. §§ 488.331, 488.431(a)-(c); Final Rule, 76 Fed. Reg. 15,106, 15,114-15 (Mar. 18, 2011); State Operations Manual (SOM), CMS Pub. 100-07, Ch. 7 (“Survey and Enforcement Process for Skilled Nursing Facilities and Nursing Facilities”), §§ 7212 and 7213.¹ Although CMS “provides an opportunity for [IIDR],” it “retains ultimate authority for the survey findings and imposition of [CMPs.]”  42 C.F.R. § 488.431(a).  The IIDR decision must “[b]e approved by CMS,” and “[w]hen a facility requests a hearing,” it must do so “as specified in [42 C.F.R.] § 498.40.”  Id. § 488.431(a)(4), (d)(1).

A SNF must file its request for an ALJ hearing in writing within 60 days of receipt of the notice of initial determination.  Id. § 498.40(a)(2).  The date of receipt is presumed to be five days after the date on the notice, absent a showing that it was received earlier or later.  Id. §§ 498.40(a)(2), 498.22(b)(3).  If the request for hearing is not filed within 60 days, an ALJ may, on written request, extend the filing deadline for “good cause shown.”  Id. § 498.40(c).  “If good cause is not shown, an ALJ has the discretion to deny a request to extend the filing deadline.”  New Grove Manor, DAB No. 3090, at 2 (2023) (citing West Side House LTC Facility, DAB No. 2791, at 6 (2017)).  An ALJ may dismiss a request for hearing, on the ALJ’s own motion or the motion of a party, if the request was untimely and the ALJ has not extended the time for filing.  42 C.F.R. § 498.70(c). 

Any party may request review of the ALJ’s dismissal by the Departmental Appeals Board (Board) within 60 days from receipt of the dismissal.  Id. §§ 498.80, 498.82(a).

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Case Background

On September 1, 2022, the New Jersey Department of Health (state agency) completed a recertification survey of Petitioner’s facility.  CMS Ex. 1, at 1; CMS Ex. 2.  The state agency found that Petitioner was not in substantial compliance with multiple participation requirements, including those in 42 C.F.R. § 483.25(g)(1)-(3) (Nutrition/Hydration Status Maintenance) (Tag F692), at a scope and severity level of “G.”²  See CMS Ex. 2, at 64‑65; CMS Ex. 1, at 1.

By decision dated October 12, 2022, CMS notified Petitioner that it did not comply substantially with, inter alia, 42 C.F.R. § 483.25(g)(1)-(3).  CMS Ex. 1, at 1.  CMS imposed a $1,415.00 per-day CMP for Tag F692, scope and severity level “G,” for the period from August 29, 2022 through October 11, 2022.  Id.  CMS notified Petitioner that “[t]he accrued CMP as of the date of this letter is $62,260.00,” but that the “CMP will continue to accrue until substantial compliance has been achieved or termination [of the provider agreement] occurs.”  Id. at 1, 2 (emphasis omitted).  CMS also informed Petitioner that its Medicare provider agreement would be terminated effective March 1, 2023, unless Petitioner achieved substantial compliance before that date.  CMS Ex. 1, at 2.  CMS further advised Petitioner that it would deny payment for new admissions if substantial compliance was not achieved by December 1, 2022.  Id.  Also, CMS stated that it was prohibiting Petitioner from providing a Nurse Aide Training and Competency Evaluation Program from September 1, 2022 through August 31, 2024.  Id. at 4.

In its October 12, 2022 decision, CMS advised Petitioner that it “may request an . . . [IIDR]” “within 10 calendar days” from receipt of CMS’s notice, but cautioned that “[r]equesting an IDR or IIDR will not delay the imposition of any enforcement remedy.”  Id. at 4, 5, 6 (emphasis in original).  CMS also advised Petitioner that it may request a hearing before an ALJ in accordance with the regulations in “42 CFR § 498.40, et seq.”  Id. at 5.  CMS’s notice included a section discussing Petitioner’s right to request a hearing, prominently captioned “APPEAL RIGHTS,” and which cautioned that the IDR process is separate from the appeal process.  Id. at 5.  CMS stated in part as follows:

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

* * * *

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If you elect to dispute deficiencies through the Informal Dispute Resolution (IDR) process . . ., this will not extend the 60-day period to file your appeal before the [Board].  Filing an appeal will not stop the imposition of any enforcement remedy.

* * * *

An appeal/request for hearing must be filed no later than sixty (60) calendar days from the date of your receipt of this letter.

Id. (emphases in original).  On the next page, CMS wrote as follows: 

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. 

Id. at 6 (emphasis in original).

CMS addressed its October 12, 2022 decision to Petitioner’s “Administrator” and sent it “Via Email” to the administrator, whose email address appears on the notice.  See id. at 1.³  CMS provided the name, telephone number, and email address of a CMS employee Petitioner could contact if it had any questions.  See id. at 6.

By letter dated October 15, 2022, Petitioner, by its administrator, submitted a request for an IIDR to the state agency to dispute the deficiency cited as Tag F692.  See CMS Ex. 3.  On November 17, 2022, the state agency issued its IIDR decision recommending a reduction in the deficiency’s scope and severity level from “G” to “D.”⁴  See CMS Ex. 4. However, the IIDR decision letter cautioned as follows:

Since CMS has authority over survey findings, it may be appropriate for CMS to examine this specific [IIDR] decision.  [IIDR] findings are recommendations to CMS and if CMS has reason to disagree with the [state agency’s] findings it may reject them in favor of its own binding determination. . . .

Id. at 1 (citing 42 C.F.R. § 488.431).

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By letter dated July 7, 2023 addressed and emailed to Petitioner’s administrator, CMS notified Petitioner that CMS was not adopting the IIDR panel’s recommendation, and the deficiency cited as Tag F692, at scope and severity level “G,” “[r]emains as written.”  CMS Ex. 5.

ALJ Proceedings and Dismissal

On August 11, 2023, Petitioner filed its request for hearing (RFH), arguing that the deficiency cited as, and the scope and severity assigned to, Tag F692 was “unwarranted” and “incorrect,” and the CMP imposed for it was “unreasonable.”  See RFH at 1, 4-13.  Petitioner acknowledged that its request for hearing was late but asserted that it had good cause to extend the filing due date because “CMS failed to act on an [IIDR] decision from two state survey agencies reversing the deficiencies for nearly eight (8) months.”  Id. at 1.⁵ Petitioner stated:

Based upon the IIDR determination and subsequent communications with CMS, [Petitioner] understood that the CMP Notice Letter would be revised and reissued, therefore allowing [Petitioner] to determine whether or not to appeal within the 60 day window.  Given the extreme delay in a decision by CMS, in all fairness to [Petitioner], CMS should have issued an amended Notice, providing [Petitioner] with a new opportunity to file a . . . hearing request.

Id. at 1-2; see also id. at 2 (asserting Petitioner did not overlook the filing date or choose not to appeal by a “particular deadline,” but instead “relied on a recommendation from the IIDR panel, communications received from CMS, followed by silence from CMS over a total of eight (8) months to reasonably conclude there was no reason to file” a request for hearing).

On September 17, 2023, CMS moved to dismiss Petitioner’s request for hearing as untimely filed and without good cause for extending the filing deadline. CMS’s Mot. to Dismiss (MTD) at 1-3, 7-9.  CMS urged the ALJ to reject Petitioner’s assertion that its participation in IIDR “somehow eliminate[d] or delay[ed] its obligation to file a timely hearing request” and its “attempts to shift the blame for its late filing to CMS by

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claiming” CMS led it to believe that it would issue a revised determination.  Id. at 8, 12.  CMS stated that Board decisions have “made the point that IIDR and the [42 C.F.R. Part 498] hearing processes are distinct and [a] facility cannot demonstrate good cause for filing a late request simply [by] claiming that it was participating in IIDR.”  Id. at 9.  CMS submitted five exhibits in support of its motion.  CMS Exs. 1-5.

On October 20, 2023, Petitioner filed an opposition to CMS’s motion, complaining about CMS’s alleged failure to act on the IIDR decision for around 8 months.  P.’s Opp’n to CMS’s Mot. to Dismiss (P. Opp’n) at 1-2.  Petitioner also argued that it satisfied the “good cause standard” because it “relied upon the communications [Petitioner] had with CMS and the post-IIDR process of review by CMS” “[i]n good faith” and “believed, in good faith, that the IIDR process review by CMS would result in the issuance of a new determination by CMS, reducing the CMP, or deleting the penalty altogether.”  Id. at 22.  Petitioner also discussed at length the survey findings, in particular those that resulted in the citation of Tag F692, arguing that it did not violate 42 C.F.R. § 483.25(g)(1)-(3), disputing the scope and severity level assigned for Tag F692, and asserting the CMP imposed is unwarranted altogether or unreasonable.  See id. at 4-18.  Petitioner did not submit exhibits with its opposition. 

In its reply brief filed on November 10, 2023, CMS again urged the ALJ to reject Petitioner’s “good cause” arguments as baseless and dismiss the late request for hearing.  CMS emphasized that Petitioner’s only communication with CMS occurred “over 4 months after it received the IIDR decision,” and “CMS, at no point, stated that it would accept the IIDR panel’s recommendation and issue a revised initial determination letter.”  CMS’s “Response to Petitioner’s Reply to CMS’s Motion to Dismiss” at 4.

On January 25, 2024, the ALJ dismissed Petitioner’s request for hearing under 42 C.F.R. § 498.70(c) as filed late and without good cause to extend the filing due date.  See ALJ Dismissal at 1, 3 (Conclusions of Law 1-3).⁶  The ALJ rejected Petitioner’s argument that “it had good cause to file out of time because it relied on a favorable recommendation from the IIDR panel.”  Id. at 2, 4.  The ALJ stated that “[v]arious 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

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procedure distinct from the appeal rights provided to facilities under Part 498 of the federal regulations.”  Id. at 4 (citing West Side House, DAB No. 2791, at 5, 7; Cary Health & Rehab. Ctr., DAB No. 1771, at 27, 29 (2001)).  The ALJ also stated that “[w]here 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.”  Id. (second alteration in original) (quoting New Grove Manor, DAB No. 3090, at 16).  The ALJ found that CMS provided Petitioner clear instructions that its request for hearing was due within 60 days from its receipt of the notice, “‘regardless of whether an IDR or IIDR has been requested or is in process.’”  Id. at 5 (quoting CMS Ex. 1, at 6). 

Additionally, the ALJ rejected, as unsubstantiated, Petitioner’s claim that it reasonably assumed that CMS would issue a revised letter with new appeal rights based on the IIDR decision and subsequent communication with CMS.  See id. at 4-5.The ALJ further noted that Petitioner could not have relied upon any communication with CMS in March 2023 in deciding whether to request a hearing because such communication “occurred three months after” the 60-day period expired in December 2022 and “does not appear to contain any relevance to the 60-day time period for filing an appeal.”  See id. (emphasis in original).  Lastly, addressing Petitioner’s complaint that CMS took too much time to make its decision on the IIDR’s recommendation, the ALJ stated the ALJ did “not have jurisdiction over CMS’s decision whether to adopt the IIDR’s recommendation,” and Petitioner cited no “authority requiring CMS to make such a decision within a certain time period.”  Id. at 5-6.

The ALJ concluded as follows:

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.  The dismissal of Petitioner’s request for hearing has no bearing on the merits of Petitioner’s appeal.

Id. at 6.

Standard of Review

The Board reviews a disputed finding of fact to determine whether it is supported by substantial evidence on the record as a whole, and a disputed conclusion of law to determine whether it is erroneous. See Guidelines – Appellate Review of Decisions of

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Administrative Law Judges Affecting a Provider’s Participation in the Medicare and Medicaid Programs (Guidelines), “Completion of the Review Process,” ¶ (c).⁷

The Board reviews an ALJ’s “good cause” determination under 42 C.F.R. § 498.40(c)(2) for abuse of discretion.  See Waterfront Terrace, Inc., DAB No. 2320, at 5 (2010).  “The standard of review for an ALJ’s exercise of discretion to dismiss a hearing request where such dismissal is committed by regulation to the discretion of the ALJ is whether the discretion has been abused.”  High Tech Home Health, Inc., DAB No. 2105, at 8 (2007), aff’d, No. 9:07-CV-80940 (S.D. Fla. Aug. 15, 2008).

Analysis

Before the Board, Petitioner challenges the ALJ Dismissal on two fronts.  First, relying on the summary judgment standard (and inaccurately describing the ALJ Dismissal on procedural grounds as a decision granting summary judgment for CMS), Petitioner attempts to persuade the Board that the ALJ erred or abused discretion in dismissing its request for hearing rather than permitting its case to proceed to hearing and review of the merits of its challenge to CMS’s October 12, 2022 decision because, Petitioner argues, were the ALJ to review the merits, Petitioner would prevail.  See Petitioner Lakeland Healthcare Center’s Br. in Supp. of Req. for Review (RR) at 1-2 (also asserting the ALJ “chose not to address” its challenge to the deficiency finding and imposition of a CMP and instead “discussed only” CMS’s arguments for dismissal), 21-25.  Second, Petitioner reprises the “good cause” arguments it made earlier, thus conveying its position that the ALJ erred or abused discretion in rejecting them.  See id. at 3-4, 6, 25-27.  Petitioner asks the Board to remand this case, “reinstating [it] to the active hearing calendar,” which we construe as asking the Board to vacate the ALJ Dismissal and remand this case for an evidentiary hearing before, and merits review by, an ALJ.  Id. at 2, 28.

In section A, below, we explain why we reject Petitioner’s arguments that the ALJ erred or abused discretion in dismissing Petitioner’s request for hearing, thus foreclosing merits review by the ALJ.  We conclude that the ALJ properly addressed only the issue of timeliness of Petitioner’s request for hearing and, if untimely, whether dismissal was warranted. 

In section B, we discuss the ALJ’s determination that Petitioner filed its request for hearing late on August 11, 2023 (which Petitioner does not dispute), and the ALJ’s rationale for rejecting Petitioner’s “good cause” arguments.  The ALJ’s calculation of the due date (December 19, 2022) was (1) apparently based on an assumption that CMS sent its October 12, 2022 decision to Petitioner by regular mail (it evidently was sent only by

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email that day); and (2) not fully consistent with the computation rules in 42 C.F.R. Part 498 because the ALJ apparently applied a seven-day, not a five-day, presumption of receipt.  Despite these irregularities, ultimately, the ALJ correctly determined that Petitioner did not file its hearing request timely.  The ALJ moreover did not err or abuse discretion in dismissing the late request for hearing under 42 C.F.R. § 498.70(c) once the ALJ determined, in an exercise of authorized discretion, that Petitioner did not establish good cause to extend the filing due date.  Accordingly, we affirm the ALJ Dismissal.⁸

A. The ALJ correctly confined the analysis to whether Petitioner’s request for hearing should be dismissed as late and without good cause to extend the filing due date.

Petitioner writes:

[The ALJ’s] decision granted summary judgment in favor of [CMS] and against Petitioner, without any evidentiary hearing. . . .  [T]he granting of summary judgment was not appropriate in this matter where numerous genuine issues of material fact remain in dispute with respect to the survey performed resulting in the deficiency . . . [and the imposition of] a CMP . . . Contrary to the ALJ’s determination that the undisputed facts in this case support CMS’s position, the Petitioner submitted sufficient fact to not only withstand the Motion for Summary Judgment, but to sufficiently demonstrate that Petitioner should be granted a full hearing, with an opportunity to present all evidence and cross-examine CMS witnesses.

RR at 1-2.  Petitioner also devotes a significant portion of its brief to a discussion of the survey findings and argues, essentially, that CMS was wrong to cite it with Tag F692.  See id. at 8-21; see also id. at 28 (“Not a single word regarding the actual merits of the survey appear[s] in the 6-page [ALJ] Decision issued in this matter.”).

This is not Petitioner’s first attempt to bring the summary judgment standard into discussion.  Before the ALJ, Petitioner argued that its challenge to CMS’s enforcement action would be meritorious and that it would be entitled to judgment in its favor as a matter of law were the ALJ to proceed to merits review. See P. Opp’n at 18-20.  Also, earlier, Petitioner addressed the survey findings in some detail.  See id. at 5-18.

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Summary judgment is appropriate when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.  See Pearsall Nursing & Rehab. Ctr. - North, DAB No. 2692, at 5 (2016). The summary judgment standard and Petitioner’s arguments challenging the legality of CMS’s October 12, 2022 decision have no place here.

First, to the extent Petitioner states that the ALJ issued a summary judgment decision for CMS, Petitioner mischaracterizes what CMS and the ALJ did, despite also indicating awareness that the ALJ did not issue such a decision and of the distinction between a summary judgment decision and dismissal of a request for hearing on procedural grounds.  See RR at 21 (stating that the ALJ’s “granting of the Motion to Dismiss was akin to granting summary judgment”).  To be clear, CMS filed a motion asking the ALJ to dismiss Petitioner’s request for hearing under 42 C.F.R. § 498.70(c) because it was submitted late and without good cause to extend the filing due date; CMS did not move for summary judgment in its favor as to Tag F692 and the imposition of a CMP for it.⁹  The ALJ granted CMS’s motion to dismiss and did not reach the merits of any CMS deficiency finding or the imposition of any sanction.¹⁰

Second, the only issue that the ALJ decided was whether Petitioner’s request for hearing should be dismissed for untimeliness and without showing good cause for an extension.  See Hospicio San Martin, DAB No. 1554, at 1 (1996) (stating that “[t]he only issues before the ALJ were whether [petitioner] made its request for a hearing pursuant to 42 C.F.R. § 498.40(a)(2) timely, and whether, assuming [it] did not make its request timely, good cause existed to grant [it] a hearing” and affirming ALJ dismissal of the late request for hearing with no good cause).  The question of whether Petitioner could or might prevail on the merits were the ALJ to permit the case to proceed to merits review is not the relevant issue.  See id. at 3 n.2 (in upholding dismissal, noting that the ALJ “did not

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reach the merits” of petitioner’s arguments that CMS’s predecessor agency erroneously terminated petitioner’s participation in Medicare and that petitioner would have “to file a timely hearing request before being permitted to produce evidence to show [the agency] erred in its determination, since the production of such evidence would have been done in the context of a hearing”); New Grove Manor, DAB No. 3090, at 8 n.8 (in affirming ALJ dismissal, stating that the ALJ properly confined the discussion to whether petitioner timely requested a hearing and, if not, whether it showed good cause to extend the filing deadline, and “committed no error in not addressing the merits” of petitioner’s arguments that CMS was wrong to find noncompliance).

Petitioner takes exception to the following sentence on page 6 of the ALJ Dismissal:  “The dismissal of Petitioner’s request for hearing has no bearing on the merits of Petitioner’s appeal.”  See RR at 27.  Petitioner asserts that the ALJ’s statement “does not make sense” and that the ALJ’s decision to “entirely bar[] the merits of Petitioner’s appeal from ever being heard or considered by any tribunal . . . is clear error.”  Id.  We read the sentence in the ALJ Dismissal as intended to convey that the ALJ reached only the issue that was before the ALJ—whether Petitioner’s request for hearing should be dismissed for untimeliness.  In other words, the ALJ did not reach the merits of Petitioner’s appeal because its request for hearing was dismissed.

An ALJ is “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), . . . may only extend the period for filing for good cause shown.”  ALJ Dismissal at 4; see 42 C.F.R. § 498.70 (stating the ALJ “may” (as opposed to “must” or “shall”) dismiss a request for hearing “[o]n his or her own motion, or on the motion of a party”).  The Board has repeatedly held that, absent a showing of good cause for an extension, an ALJ’s dismissal of a late request for hearing is a lawful exercise of authority committed to the ALJ’s discretion.  See, e.g., Christina Paylan, M.D., DAB No. 3112 (2023); New Grove Manor, DAB No. 3090, at 2 (“If good cause is not shown, an ALJ has the discretion to deny a request to extend the filing deadline.”); Transnet Home Grp., DAB No. 3027, at 1-2 (2020) (affirming dismissal under section 498.70(c), which “permits – but does not require – an ALJ to dismiss a hearing request” filed late and without good cause for an extension under section 498.40(c)(2)); West Side House, DAB No. 2791, at 6 (concluding the ALJ did not abuse discretion in determining that the SNF did not show good cause to extend the time to request a hearing).

The Board is “mindful of the fact that, in affirming the ALJ’s exercise of discretion to dismiss [the request for hearing], [it is] foreclosing [Petitioner’s] right to [ALJ] review of” CMS’s October 12, 2022 decision.  Axion Healthcare Servs., LLC, DAB No. 2783, at 5 (2017).  However, the Part 498 regulations do not obligate an ALJ to refrain from dismissing a request for hearing submitted late and without good cause for an extension because an appellant argues to the effect that its challenge to the underlying agency action would be meritorious.  At the dismissal stage, it is irrelevant (or at least premature

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to ask) whether an appellant could or might succeed in challenging the agency action if the case proceeds to merits review.

In sum, we reject Petitioner’s assertion that the ALJ committed “clear error” in dismissing its request for hearing, rather than permitting the case to proceed to merits review.  The ALJ appropriately confined the discussion to the issue of whether dismissal is appropriate under section 498.70(c).

B. The ALJ did not err or abuse discretion in dismissing Petitioner’s untimely request for hearing, as authorized by 42 C.F.R. § 498.70(c).

1. The ALJ correctly determined that Petitioner’s request for hearing was late.

In determining that Petitioner filed its request for hearing late, the ALJ stated:

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.

ALJ Dismissal at 3 (emphasis added).

The ALJ thus correctly applied 42 C.F.R. § 498.40(a)(2), which provides that a request for hearing “must” be filed “within 60 days from receipt of the notice of initial, reconsidered, or revised determination unless that period is extended” by the ALJ.  Id.  The ALJ also correctly stated, earlier on page 3 of the Dismissal, that under 42 C.F.R. § 498.22(b)(3) (to which section 498.40(a)(2) refers), the date of receipt “is presumed to be five days after the date of the notice unless proven otherwise.”  Id. (emphasis added).

Nevertheless, the ALJ apparently did not also consider that CMS sent its October 12, 2022 decision to Petitioner only by email to its administrator.  See CMS Ex. 1, at 1.  Before the ALJ, CMS argued that under 42 C.F.R. § 498.40(a), “Petitioner was obligated to file its hearing request within sixty (60) days of its receipt of [CMS’s decision], or December 11, 2022,” which we note was 60 days from October 12, 2022.  MTD at 7.  We construe this language as meaning that CMS assumed same-day electronic delivery of its decision.  We see no indication that CMS sent its notice by means other than email to Petitioner’s administrator, and Petitioner does not state otherwise.

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The Part 498 regulations were promulgated in 1987.  Notably, the “five-day presumption of receipt” language in 42 C.F.R. § 498.22(b)(3) reads the same today as it did in 1987.  See Final Rule, 52 Fed. Reg. 22,444, 22,449 (June 12, 1987).  But with the passage of time came the widespread, common use of notice and transmittal methods like email that, in general, result in delivery in real time, or earlier than, for instance, by U.S. mail, the method predominantly in use decades ago.  The Board has found the use of email an acceptable means of notice so long it accomplishes notice.  In one recent case governed by Part 498 regulations, the Board stated:

Generally speaking, the regulations in 42 C.F.R. Part 498 contemplate notice by mail.  See Riverview Village, DAB No. 1840, at 8 (2002).  However, the Board has recognized the validity of CMS notice by means other than mail where the method of notice used was capable of accomplishing the essential due process purpose of notice and in fact accomplished notice.  New Grove Manor at 6 n.6 (citing Fairway Med. Clinic & Shadow Creek Med. Clinic, DAB No. 2811, at 8-9 (2017) (“While the word ‘mails’ as used in [42 C.F.R. §] 498.20(a) may be interpreted as intended to refer to U.S. postal mail, we do not conclude that the term can only refer to U.S. government postal mail, to the exclusion of all other means of notice.”), aff’d sub nom. Murtaza Mussaji, D.O., P.A. v. United States Dep’t of Health & Human Servs., 741 F. App’x. 222 (5th Cir. July 23, 2018)[)].

Paylan, DAB No. 3112, at 7 (first alteration in original); see also id. at 6-8 (holding that the ALJ did not err in finding that CMS’s decision, sent by email, gave the supplier proper notice of its right to appeal within 60 days); Fairway & Shadow Creek, DAB No. 2811, at 8-11 (holding that the ALJ did not err in finding that CMS’s decisions, sent by fax, provided the suppliers with valid notice of their right to appeal within 60 days).  Importantly, at no time during the appeal process did Petitioner assert that CMS’s notice by email was defective or inadequate in any way.

We now turn to the ALJ’s calculation of the due date.  In stating that Petitioner is presumed to have received CMS’s October 12, 2022 decision on October 19, 2022,¹¹ the ALJ appears to have assumed a seven-day presumption of receipt despite correctly noting that section 498.22(b)(3) provides for a five-day presumption of receipt.  See ALJ Dismissal at 3. Applying the regulation, the presumed date of receipt of CMS’s October

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12, 2022 decision would have been October 17, 2022 (Monday), absent evidence to the contrary.  The 60th day from October 17, 2022 would have been Friday, December 16, 2022; the due date was not, as the ALJ stated, December 19, 2022 (Monday).  42 C.F.R. §§ 498.22(b)(3), 498.40(a)(2).¹²

Petitioner does say that it “received” CMS’s decision “on October 13, 2022.”  See CMS Ex. 3, at 1.  It is not clear whether, by using the word “received,” Petitioner is indicating that the decision was delivered to Petitioner’s administrator by email on October 13, or that Petitioner’s administrator saw or read the email that day.¹³  Regardless of whether the administrator received the email on October 12 or October 13, Petitioner effectively acknowledged receipt during the five-day presumption period.  Moreover, Petitioner’s request for IIDR is dated October 15, 2022, three days after the date of CMS’s decision (October 12, 2022), which indicates receipt (and actual knowledge) of CMS’s decision within the five-day presumption period.  See CMS Ex. 3, at 1.  In short, “there is a showing that [CMS’s decision] was, in fact, received earlier” than the fifth day.  42 C.F.R. § 498.22(b)(3); see Cary Health, DAB No. 1771, at 11 (holding that the five-day presumption rule in section 498.22(b)(3) controls unless there is evidence of receipt before or after the five-day period).

However, regardless of whether Petitioner received the October 12, 2022 decision by email on October 12 or October 13, 2022, Petitioner does not dispute that it filed its request for hearing on August 11, 2023.  See RR at 25.  That date fell many months after the 60-day appeal period expired in December 2022.  The ALJ therefore correctly concluded that “Petitioner failed to file its request for hearing within the 60-day period provided by . . . 42 C.F.R. § 498.40(a)(2).”  ALJ Dismissal at 3 (bolding removed).

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2. The ALJ did not abuse discretion in finding no good cause to extend the appeal due date.

a. The ALJ did not abuse discretion in rejecting Petitioner’s unsubstantiated arguments that Petitioner reasonably believed CMS would issue a revised notice giving Petitioner more time to request a hearing.

Petitioner insists that it did not “overlook[]” the filing deadline; nor did it simply choose “not to file by a particular deadline.”  RR at 6.  Petitioner asserts that it had good cause for an extension because it reasonably “understood” and “believed,” “in good faith,” that CMS would “revise[] and reissue[]” its decision consistent with the partially favorable IIDR decision or “delet[e] the penalty altogether,” “therefore allowing [Petitioner] to determine whether or not to appeal within the 60-day window.”  Id. at 3, 4, 26.

Earlier, Petitioner asserted that it reasonably expected CMS to revise its decision, but the ALJ rejected the argument as unsubstantiated and unpersuasive.  The ALJ stated:

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.  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.

ALJ Dismissal at 5 (citation omitted). 

We agree with the ALJ’s assessment of Petitioner’s argument.  Petitioner offers no evidence of belief or understanding that CMS would issue a revised decision providing Petitioner more time to request a hearing beyond the 60-day period from receipt of the October 12, 2022 decision.  Petitioner, moreover, could not have reasonably believed or understood CMS would do so.

We see nothing in CMS’s October 12, 2022 decision or in the state agency’s IIDR letter that Petitioner reasonably could have understood to mean that CMS could or would issue a new or revised decision setting a new 60-day appeal period, suspending the 60-day period, or otherwise giving Petitioner more time to request a hearing.  CMS clearly and correctly notified Petitioner that the IIDR process and the Part 498 appeal process are separate and that each has its own timeframe.  CMS Ex. 1, at 4-6.  Referring to the regulations in “42 CFR 498.40, et seq.,” CMS also notified Petitioner that it “must” request a hearing before an ALJ within 60 days of receipt of CMS’s decision to preserve its right to a hearing “regardless of whether an IDR or an IIDR has been requested or is in process,” and that participating in IIDR “will not extend the 60-day period” to request a

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hearing. Id. at 5, 6 (emphasis in original). Additionally, the IIDR letter correctly informed Petitioner that CMS, which “has authority over survey findings,” could “disagree with” and “reject” the IIDR “recommendations” “in favor of its own binding determination.”  CMS Ex. 4, at 1 (citing 42 C.F.R. § 488.431).

“[T]he timeline of state IDR proceedings . . . [is] independent from the formal appeal process under Part 498 regulations and [has] no bearing on a CMS initial determination or the deadline for requesting a hearing on that determination.”  New Grove Manor, DAB No. 3090, at 15 (citing Rutland Nursing Home, DAB No. 2582, at 6 (2014); Cary Health, DAB No. 1771, at 27); see also West Side House, DAB No. 2791, at 7 (explaining that “the IIDR process is distinct from and in addition to a facility’s right to a formal administrative appeal . . . and that participation in IIDR will not toll a hearing request deadline”).  Moreover, CMS is not bound to follow or defer to an IIDR determination, and it “has the ultimate authority for the survey findings and imposition of CMPs.”  Kindred Transitional Care & Rehab - Greenfield, DAB No. 2792, at 21-22 (2017); see also 42 C.F.R. § 488.331(b)(1) (“Failure of the State or CMS, as appropriate, to complete informal dispute resolution timely cannot delay the effective date of any enforcement action against the facility.”).  Furthermore, section 498.40(c)(2) plainly states that “the ALJ,” not CMS, may extend the filing due date “[f]or good cause shown.”

Given clear and explicit notices, and the plain language of section 498.40(c)(2), Petitioner could not have reasonably believed that CMS would later extend the time for Petitioner to request a hearing, and could and should have preserved its right to an ALJ hearing.¹⁴  Petitioner might have hoped that CMS would agree with the IIDR recommendation, in which case Petitioner might have decided to accept the partially favorable outcome rather than spend more time and resources appealing CMS’s October 12, 2022 decision to an ALJ; but, Petitioner had no assurance that CMS would agree with the IIDR recommendation.  With Petitioner’s apparent consideration of this “cost-benefit tradeoff” between waiting for CMS to (hopefully) agree with the IIDR recommendation and requesting a hearing and its “tactical choice” to wait for CMS to decide “came the possibility that the time for filing a hearing request . . . would expire,” as it did here.  Hillcrest Healthcare, L.L.C., DAB No. 1879, at 7 (2003).  An appellant’s inaction or dilatory action on appeal in making such a strategic decision does not constitute good cause.  See id. 

Moreover, because the informal dispute resolution process and the Part 498 appeals process are separate and the former does not toll appeal deadlines, participation in IIDR as a reason for delayed action or inaction in securing a right to a hearing cannot support good cause to extend the appeal due date.  See Rutland, DAB No. 2582, at 5 (holding that

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the facility’s “participation in the state IDR process did not constitute good cause for extending the 60-day time period for requesting an ALJ hearing” (emphasis omitted)), 7‑8 (rejecting the facility’s argument that the CMS notice letter was ambiguous as to its appeal rights and not clear that IDR was not a formal appeal because the notice letter stated “in plain, unmistakable terms how it could request an ALJ hearing to appeal the determination . . . and the deadline for doing so”).  Further, any factual difference between Petitioner’s case and West Side House (cited in ALJ Dismissal at 4) is inconsequential for purposes of our analysis.  See RR at 5 (asserting that “[t]here is no parallel between” the two cases because CMS’s alleged delay in acting on the IIDR recommendation in Petitioner’s case was unreasonably long).  As we and the ALJ have explained, the informal dispute resolution process and the Part 498 appeals process are separate, and CMS is not legally obligated to issue its decision on an IIDR recommendation within a certain period.  That is as true here as it was in West Side House.    

b. The ALJ did not abuse discretion in rejecting Petitioner’s arguments for good cause based on alleged CMS delay in acting on the IIDR recommendation and March 2023 communication between CMS and Petitioner.

Petitioner repeatedly complains about CMS’s “lack of communication” and delay in issuing its decision on the IIDR recommendation.  RR at 27; see id. at 4 (referring to “nearly 8 months of unexplained time that transpired before CMS rejected an IIDR Decision that the Petitioner was relying upon in good faith” (emphasis in original)), 6 (referring to “silence from CMS” for over 8 months), 25, 26.  Petitioner argues that the ALJ erred by not considering “the duration of time that CMS took to review an IIDR Decision.”  Id. at 5.  Petitioner claims that it detrimentally relied on CMS’s lengthy delay, which supported good cause, but the ALJ did not address its claim.  Id. at 5, 27. 

First, we read the ALJ’s analysis as indicating consideration of Petitioner’s complaint about how long CMS took to review the IIDR recommendation but rejecting Petitioner’s claim of good cause based on the alleged delay, correctly noting that “IIDR is a wholly separate procedure distinct from the appeal rights” under Part 498.  See ALJ Dismissal at 4-5 (citing West Side House, DAB No. 2791, at 5, 7; Cary Health, DAB No. 1771, at 27, 29) (setting out the timeline of events beginning with Petitioner’s request for IIDR and ending with CMS’s July 7, 2023 decision not to accept the IIDR recommendation).  The ALJ also noted that Petitioner failed to cite any authority requiring CMS to review an IIDR decision within a certain period.  See id. at 6.  The ALJ also stated that the ALJ had no “jurisdiction over CMS’s decision whether to adopt the IIDR’s recommendation.”  Id. at 5-6.

Petitioner does not now cite authority that could call into question the soundness of the ALJ’s determination that CMS had no legal obligation to review and issue its decision on

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an IIDR recommendation within a certain period.  Nor are we aware of any authority that would suspend or extend the 60-day appeal period if CMS does not issue its decision on an IIDR recommendation until after the expiration of the 60-day appeal period.  The Board has stated that “the fact that the IDR process was completed after the 60-day period for requesting an ALJ hearing does not constitute good cause for extending that period.”  Rutland, DAB No. 2582, at 7. 

Petitioner’s repeated complaints about CMS’s delayed action on the IIDR recommendation aside, the more pertinent question in light of Petitioner’s allegation of detrimental reliance is whether CMS actually stated or did anything on which Petitioner reasonably relied to forego its right to merits review by the ALJ.  Conspicuously absent is any evidence that CMS stated or did anything before the 60-day appeal period expired to lead Petitioner to reasonably believe or conclude that it would have more time to appeal.  Nor has Petitioner provided any evidence that CMS indicated it would accept the IIDR recommendation or otherwise took action favorable to Petitioner, which could have alleviated any concerns Petitioner might have had about possibly missing the appeal deadline.  Petitioner itself repeatedly complains about CMS’s silence and inaction for around 8 months after the IIDR issued its recommendation on November 17, 2022; it does not assert or show that CMS and Petitioner communicated between November 17, 2022 and mid-December 2022, when the 60-day appeal period expired.  If CMS said or did nothing for many months after November 17, 2022, well after the appeal deadline expired, then we question what, specifically, Petitioner could have relied on to its detriment.  As the ALJ aptly stated, “Petitioner does not . . . argue or provide any evidence of communications with CMS prior to [the appeal due date] that would contravene the appeal parameters expressly stated in [CMS’s October 12, 2022 decision], or otherwise indicate that CMS would accept the IIDR’s recommendation[.]”  ALJ Dismissal at 5.

The one communication from CMS that Petitioner points to concerns CMS’s issuance of a March 20, 2023 “CMP Due and Payable notice,” which, Petitioner says, “stated substantial compliance was achieved on December 6, 2022.”  RR at 7; ALJ Dismissal at 4.  Petitioner represents that it responded to that notice the same day via email, informing the CMS representative of the IIDR recommendation to reduce the scope and severity level of Tag F692 to “D.”  RR at 7.  Petitioner also asserts that the CMS representative responded by email the same day, stating:

I was just informed by the State Agency that your facility has NOT reached substantial compliance.  Therefore, the attached notice has been rescinded.

The health portion of the survey has all the tags corrected.  However, the life safety code portion of the survey are not corrected due to waiting for an FSES approval.  Until this has been approved, the facility is not considered in

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compliance.  You must correct all the tags in both surveys to be deemed in compliance.

Id. (italics omitted).  Petitioner states it “understood the above email to indicate that the CMP could be rescinded and the IIDR recommendation could still be accepted by CMS.”  Id.

As the ALJ noted, neither party offered evidence of the parties’ communication on March 20, 2023 as exhibits in support of, or in opposition to, CMS’s motion to dismiss.  ALJ Dismissal at 4 n.1 (also noting that “[i]t is 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”).  Nevertheless, accepting Petitioner’s representation about the communication between CMS and Petitioner, the ALJ rejected Petitioner’s attempt to rely on it as supporting good cause for late filing because the communication occurred on March 20, 2023, “three months after Petitioner’s deadline to file a hearing request . . . and does not appear to contain any relevance to the 60-day time period for filing an appeal.”  ALJ Dismissal at 5.  Moreover, the ALJ noted that the IIDR letter notified Petitioner that CMS could disagree with the IIDR recommendation and reject it.  Id.   

The ALJ did not abuse discretion in rejecting Petitioner’s attempt to rely on the March 20, 2023 communication.  Petitioner presumably was dissatisfied with CMS’s March 20, 2023 response.  However, for purposes of determining whether Petitioner had good cause for missing its appeal due date in December 2022, it is irrelevant whether Petitioner in fact understood its communication with CMS in March 2023 to mean that CMS still might rescind the CMP and accept the IIDR recommendation, or that CMS and the state agency allegedly were “still determining issues relevant to the survey,” or that “errors” allegedly were made in “post-survey communications” to Petitioner.  RR at 7.  Only “errors” or confusing or misleading communication in the period leading up to the appeal due date potentially could be relevant to determining whether Petitioner reasonably relied on such “errors” or communication to its detriment, but Petitioner cites none.  See Borger I Enterprises, LLC, DAB No. 2618, at 4 (2015) (upholding the dismissal of an untimely hearing request where there was “no evidence that misleading instructions or other factors prevented [the SNF] from” timely filing its hearing request, and “the only reason for the late filing was that [the SNF] was hoping . . . to achieve a satisfactory resolution by means other than a formal [ALJ] hearing”).  Notably, Petitioner does not say that, on or around December 6, 2022, before the 60-day appeal period expired, CMS indicated that “substantial compliance was achieved on December 6, 2022” (RR at 7), thus possibly giving Petitioner a reason not to request a hearing before the 60-day period expired in mid-December 2022; Petitioner expressly states that CMS made such a statement on March 20, 2023, about three months after the appeal window closed.  See RR at 7.   

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In short, we, like the ALJ, find no merit to Petitioner’s argument that it, “[i]n good faith,” “relied upon the communications” about “the post-IIDR process.”  RR at 25.

c. Petitioner’s attempt to establish good cause alleging that circumstances beyond its control caused Petitioner to miss the appeal due date fails.

Petitioner also asserts that under the Board’s decision in MedStar Health, Inc., DAB No. 2684 (2016), which “was not referenced” by the ALJ, “Petitioner can show good cause by establishing that a circumstance beyond Petitioner’s control caused a delay in filing until after a deadline.”  RR at 26; see also id. at 4.  Petitioner claims there is good cause to excuse its untimely filing because “[t]he delay by CMS in reviewing, and ultimately deciding to reject, the IIDR Decision,” and “[t]he errant communications from both CMS” and the state agency are “evidence of circumstances beyond Petitioner’s control” that excuse or support good cause for late filing.  Id. at 26-27.  First of all, there is no evidence that any of the communications from CMS or the state agency conveyed erroneous information that prevented Petitioner from filing a timely request for hearing.  The ALJ and the Board have already explained the reasons for rejecting Petitioner’s attempt to rely on alleged CMS delay in acting on the IIDR recommendation and communications after the 60-day appeal deadline expired.    

To the extent Petitioner argues that the alleged CMS delay and purported “errant communications” amount to circumstances beyond Petitioner’s control, Petitioner appears to misread MedStar, as it was the ALJ in that case, not the Board, who endorsed circumstances beyond an appellant’s control as sufficient to establish good cause.  See MedStar, DAB No. 2684, at 8.  The Board affirmed the ALJ’s dismissal but stated that the Board “need not determine whether the ALJ was correct” as to that standard.  Id.; see also New Grove Manor, DAB No. 3090, at 12 & 12 n.11.¹⁵  Still further, we need not precisely define the meaning of “good cause” here because Petitioner’s contentions, addressed herein, are not supported by the record and would not justify extending the hearing request deadline under any reasonable definition of “good cause.”  See New Grove Manor at 11.

In any event, Petitioner fails to establish that its late filing was due to circumstances it could not control.  Again, Petitioner neither alleges nor shows that anything or anyone actually impeded its ability to secure its right to a hearing before the 60-day appeal window closed; Petitioner lost its right to a hearing due to its own inattentiveness.  Moreover, Petitioner was not without options.  It could have contacted the CMS employee identified in CMS’s decision (see CMS Ex. 1, at 6) to ask for clarification about the IIDR and Part 498 appeals processes, or to inquire about the status of CMS’s review of the IIDR recommendation before the appeal deadline expired.  If it had any

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concerns that CMS might not be able to decide on the IIDR recommendation before the appeal due date, it could have filed a request for hearing.  Also, as the ALJ aptly noted, Petitioner could have simultaneously requested IIDR and a hearing before an ALJ.  ALJ Dismissal at 6 (“Petitioner provides no acceptable explanation for why it did not contemporaneously file both its request for IIDR and a request for hearing.”).   

d. To the extent Petitioner asks the Board to vacate the ALJ Dismissal and remand this case for hearing and decision for equity reasons, the Board has no authority to do so.

Petitioner asserts that “[w]ithout a relaxation” of the “stringent” and “a rather draconian” 60-day appeal period, Petitioner would be left with no avenue for having its “appeal . . . heard or considered by any tribunal,” which is “clear error.”  RR at 3-4, 27.  To the extent Petitioner’s assertion could be understood as a request that we vacate the ALJ Dismissal and remand the case for a hearing and merits decision for equity and fairness reasons, the Board, being bound by the applicable regulations, cannot do so.  See Union Pharmacy & Med. Supplies, Inc., DAB No. 3062, at 7 (2022) (“[T]o the extent that Petitioner seeks equitable relief from the ALJ’s dismissal, the Board has consistently held that the Board and the ALJ are not empowered to grant equitable relief.” (citing cases)).  If the Board could simply “relax” the 60-day deadline for such reasons despite the failure to show good cause, a determination committed to the ALJ’s discretion by regulation, then “the time frame for . . . appeals would become almost meaningless.”  Cary Health, DAB No. 1771, at 28. 

Conclusion

We affirm the ALJ Dismissal.

Endnotes

¹ The SOM and its Appendices are available at https://www.cms.gov/regulations-and-guidance/guidance/manuals/internet-only-manuals-ioms-items/cms1201984.

² CMS identifies deficiency citations using alpha-numeric “Tag” designations that correspond to the regulatory requirements and CMS’s guidance on the requirements.  See generally SOM, Ch. 7.  Deficiencies are assigned scope and severity levels, designated by one of 12 letters (A–L), and are used to select remedies.  See id. § 7400.3.1.  A scope and severity level of “G” is assigned for an “isolated” deficiency that caused actual harm below the “immediate jeopardy” level.  See id.

³ As we will discuss later, CMS’s October 12, 2022 decision does not indicate that CMS also sent the decision to Petitioner by means other than email to Petitioner’s administrator.  Neither party claims that CMS sent its decision to Petitioner by another means.  We assume that CMS sent it to Petitioner’s administrator only by email.

⁴ A scope and severity level of “D” is assigned for an “isolated” deficiency determined to have caused “[n]o actual harm with potential for more than minimal harm that is not immediate jeopardy.” See SOM, Ch. 7, § 7400.3.1.

⁵ Petitioner refers to “two state survey agencies,” namely the New Jersey Department of Health and the New York State Department of Health, that were involved in the IIDR process.  See, e.g., RFH at 1, 3.  We note, moreover, that the Statement of Deficiencies and CMS’s October 12, 2022 decision indicate that the New Jersey Department of Health completed the survey, whereas the November 17, 2022 IIDR decision letter (on New Jersey Department of Health’s letterhead) states “the New York State Department of Health” reviewed the IIDR request and made the determination.  Compare CMS Ex. 1, at 1, and CMS Ex. 2, at 1, with CMS Ex. 4, at 1.  Neither party addresses why two agencies were involved in this case; nor do they assert that itself is material to the issue of whether the ALJ properly dismissed Petitioner’s request for hearing.   

⁶ After CMS filed its reply brief, the ALJ twice granted motions to extend the due dates for filing prehearing submissions.  On January 22, 2024, while the ALJ’s ruling on CMS’s motion to dismiss was pending, CMS filed its prehearing brief along with 10 exhibits.  On January 25, 2024, the ALJ issued the dismissal before Petitioner’s prehearing brief (and any exhibits) were due.  Because Petitioner did not submit any exhibits with its opposition to CMS’s motion to dismiss and the ALJ dismissed the request for hearing before Petitioner’s prehearing exchange was due, the only exhibits in the record of the ALJ proceedings are those filed by CMS (five exhibits submitted with its motion to dismiss; 10 exhibits submitted with its prehearing brief).  The ALJ did not discuss or cite CMS’s prehearing brief or the 10 exhibits submitted with it; nor do we.    

⁷ The Guidelines are available at: https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/participation/index.html?language=en.

⁸ Petitioner’s submissions and the ALJ Dismissal refer to the amount of the CMP CMS imposed as $62,600.  P. Opp’n at 1; RR at 1, 3; ALJ Dismissal at 1 (“As of October 11, 2022, the CMP accrued to $62,600.”).  We clarify that CMS imposed a total CMP of $62,260, not $62,600, through October 11, 2022.  See CMS Ex. 1, at 1.  A per-day CMP of $1,415 multiplied by 44 (for the 44-day period beginning August 29, 2022, through October 11, 2022) equals $62,260.  See id. 

⁹ Petitioner states that, in its motion to dismiss, CMS “very likely intentionally” avoided discussing the survey results and addressed the “procedural arguments only” because Petitioner made “highly meritorious arguments . . . at the IIDR level.”  RR at 6.  We will not speculate on CMS’s view of Petitioner’s earlier arguments.  Suffice it to say that CMS moved to dismiss Petitioner’s request for hearing as filed late and without good cause, confining its discussion to the reasons why CMS believed the ALJ ought to dismiss the request for hearing.  See ALJ’s Standing Prehearing Order at 7 (¶ 8.a) (notifying the parties that a party may move to dismiss a request for hearing and the nonmovant may respond to such a motion).

¹⁰  Petitioner also states the ALJ “relied heavily on the exhibits presented by CMS,” RR at 2, implying that the ALJ’s review was one-sided in favor of CMS, but we perceive no cause for such concern.  Petitioner appears to disregard that the ALJ cited only the exhibits CMS submitted with its motion to dismiss because the ALJ determined to reach only the issue of whether dismissal was appropriate; the ALJ could not have cited to any exhibit other than those submitted by CMS (with its motion) because Petitioner did not submit any exhibits with its opposition to the motion.  See supra note 6.  If Petitioner had any concerns about the exhibits CMS submitted with its motion to dismiss, Petitioner could and should have raised them in its opposition and submitted exhibits with its opposition.  We see no language in the ALJ’s Standing Prehearing Order or the Civil Remedies Division Procedures (CRDP) (both of which were provided to the parties early in the process) that would have precluded Petitioner from doing so.

¹¹ October 15, 2022 was a Saturday; October 16, 2022 was a Sunday.  Section 498.22(b)(3) does not state that only weekdays or regular business days are to be counted for purposes of presumption of receipt.  Also, we have considered the possibility that the ALJ considered a seven-day period based on the “Computation of Time” provisions in the CRDP, which generally contemplate that, in computing any period of time under the Procedures, Saturdays, Sundays, and federal holidays would be excluded from computation.  See CRDP ¶ 11.  However, to be clear, the plain language of section 498.22(b)(3) provides for a five-day presumption period for receipt.

¹² Neither December 16, 2022 nor December 19, 2022 was a federal holiday.  See Act § 216(j), incorporated by reference at Act § 1872 (extending deadlines that fall on a non‑workday to the next Federal workday). 

¹³ In the context of a recent case arising from an ALJ’s dismissal of a late request for hearing seeking to challenge the Inspector General’s decision to exclude the petitioner from participation in federal health care programs, the Board rejected the argument that the date of “receipt” for purposes of the 5-day presumption-of-receipt rule in 42 C.F.R. § 1005.2(c) means the date on which the intended recipient “opens and reads” the operative notice sent by mail.  See Toni De Lanoy, DAB No. 3127, at 10-11 (2024), appeal docketed, No. 5:24-cv-00066-MW-MJF (N.D. Fla. April 1, 2024).

¹⁴  Petitioner does not assert or show that anything in fact impeded or prevented Petitioner from requesting a hearing within the 60-day period.

¹⁵  The Board has never attempted to provide an authoritative or complete definition of the term “good cause,” as stated in 42 C.F.R. § 498.40(c).  See New Grove Manor, DAB No. 3090, at 11 (citing Board decisions).