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                              The Reserve at Richardson, ALJ Ruling 2022-3 (HHS CRD Apr. 1, 2022)
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The Reserve at Richardson, ALJ Ruling 2022-3 (HHS CRD Apr. 1, 2022)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





The Reserve at Richardson
(CCN: 676448),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-22-339Ruling No. 2022-3April 1, 2022

        
              
    

      DISMISSAL

Petitioner filed a request for a hearing before an administrative law judge more than 60 days after the Centers for Medicare & Medicaid Services (CMS) faxed a notice to Petitioner that it was imposing civil money penalties (CMP) and other enforcement remedies on Petitioner based on noncompliance with Medicare requirements for skilled nursing facilities.  Petitioner asserts that its hearing request is timely because it never received CMS's notice or, in the alternative, that the lack of notice is good cause for an extension of time to file the hearing request.  CMS moved for dismissal of the hearing request and provided proof that CMS successfully transmitted the notice to Petitioner by fax.  Petitioner opposed the motion, submitting a declaration from Petitioner's former administrator that she did not receive CMS's enforcement notice.

My review of the documents that Petitioner submitted raise significant questions as to the actions of Petitioner's former administrator, who misplaced or hid a subsequent CMS notice and was terminated from her position based on performance issues.  Therefore, I dismiss Petitioner's hearing request as untimely because Petitioner failed to refute CMS's proof that CMS successfully faxed the enforcement notice to Petitioner.  Petitioner also failed to show good cause for the untimely hearing request.

Page 2

I.  Legal Framework

The Medicare program "provides basic protection against the costs of . . . related post‐hospital . . . care" for individuals over the age of 65 who are eligible for Social Security retirement benefits and for individuals under 65 who meet other criteria.  42 U.S.C. § 1395c.  Post-hospital care includes extended care services provided at a skilled nursing facility (SNF).  42 U.S.C. §§ 1395f(a)(2)(B), 1395x(h)-(i).

For Medicare program purposes, an SNF is an institution that is primarily engaged in providing skilled nursing care and/or rehabilitation services for its residents but is not primarily engaged in the care and treatment of mental diseases.  42 U.S.C. §§ 1395x(j), 1395i-3(a)(1).  Because an SNF is a "provider of services" in the Medicare program, each SNF that participates in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u).  Further, a participating SNF must meet a variety of ongoing requirements related to how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d); 42 C.F.R. pt. 483, subpt. B.

When an SNF fails to meet a statutory or regulatory participation requirement, then the SNF has a "deficiency."  42 C.F.R. § 488.301; *see* 42 U.S.C. § 1395i-3(h)(1).  "Noncompliance" means "any deficiency that causes a facility to not be in substantial compliance."  42 C.F.R. § 488.301; *see also* 42 U.S.C. § 1395i-3(h)(3).  To maintain "substantial compliance," an SNF's deficiencies may "pose no greater risk to resident health or safety than the potential for causing minimal harm."  42 C.F.R. § 488.301.

Broadly, noncompliance that subjects an SNF to enforcement remedies is divided into two levels.  One level is comprised of deficiencies that immediately jeopardize the health or safety of residents and the other level is composed of deficiencies that do not.  42 U.S.C. § 1395i-3(h)(1).  "Immediate jeopardy" exists when "the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident."  42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct surveys to determine whether SNFs are in substantial compliance.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  These surveys can be unannounced surveys that occur at least once every 15 months or can be in response to a complaint.  42 U.S.C. § 1395i-3(g).  When the results of a survey show that an SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies on the SNF.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  When CMS selects an enforcement remedy to impose on an SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  *See* 42 C.F.R. § 488.404(a)-(b); *see also* 42 U.S.C. § 1395i‐3(h)(2)(B)(ii)(III)(bb).

Page 3

One such remedy is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  CMS may impose a per‐instance CMP for each instance of an SNF's noncompliance, or a per‐day CMP for the number of days an SNF is not in substantial compliance.  42 U.S.C. § 1395i‐3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).

If CMS imposes a CMP based on a finding of substantial noncompliance, then the SNF may request a hearing to challenge CMS's initial determination of noncompliance that led to the imposition of an enforcement remedy and/or the level of noncompliance (if a successful challenge to the level would affect the range of CMP amounts imposed on the SNF).  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‐3(h)(2)(B)(ii); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.408(g)(1), 488.434(a)(2)(viii), 498.3(b)(13)-(14), (d)(10); *see also* 5 U.S.C. §§ 554, 556.  However, CMS's choice of remedies is not reviewable.  42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13).

The SNF must request the hearing within 60 days from receipt of CMS's initial determination.  42 C.F.R. § 498.40(a)(2).  For good cause shown, an administrative law judge may extend the filing date for a hearing request.  42 C.F.R. § 498.40(c)(2).  Untimely hearing requests are subject to dismissal.  42 C.F.R. § 498.70(c).  Either party may request, within 60 days of receiving a dismissal, that an administrative law judge vacate a dismissal if there is good cause to do so.  42 C.F.R. § 498.72.

II.  Procedural History

On February 22, 2022, Petitioner filed a request for hearing to dispute CMS's imposition of CMPs.  The hearing request included a statement of good cause for filing an untimely request as well as documents supporting that request.1
  On February 28, 2022, the Civil Remedies Division acknowledged the hearing request and issued my Standing Prehearing Order.

On March 15, 2022, CMS filed a Motion to Dismiss for Untimely Filing of Request for Hearing and Objection to Petitioner's Motion to File a Hearing Request or Alternatively for Extension of Time to File a Hearing Request (CMS Motion).  CMS submitted an exhibit in support of the motion (CMS Ex. 1).  On March 25, 2022, Petitioner timely filed a Response to Respondent's Motion to Dismiss (P. Response).  Petitioner submitted an exhibit in support of its opposition to dismissal (P. Ex. 1).

Page 4

III.  Findings

I base the findings below on the evidence that the parties submitted.

Petitioner is an SNF located in Richardson, Texas, that participates in the Medicare program.  *See* RFH at 28.
	Petitioner contracted with a management company to manage Petitioner's facility.  The management company hired the facility administrator, L.L.,2
 in May 2021.  L.L. was required to inform Lauren Golden, a manager with the entity that owns Petitioner, of correspondence regarding surveys and enforcement.  RFH at 108 (Decl. of Lauren Golden at ¶¶ 2-3); P. Ex. 1 ¶¶ 2-3.
	Based on a survey of Petitioner's facility that ended on October 16, 2021, the state survey agency drafted a Statement of Deficiencies (SOD) indicating that Petitioner was not in substantial compliance with several Medicare participation requirements, including one deficiency that posed immediate jeopardy to the health and safety of residents.  RFH at 28-97.
	On November 1, 2021, the state survey agency emailed the SOD and other information to Petitioner's administrator.  On November 2, 2021, L.L. forwarded that email to Lauren Golden and others.  RFH at 105-106, 108 (Decl. of Lauren Golden at ¶ 4); P. Ex. 1 ¶ 3.
	Based on a CMS survey completed on November 2, 2021, CMS drafted a SOD indicating that Petitioner was not in substantial compliance with several Life Safety Code (LSC) provisions.  RFH at 99-103.
	On November 19, 2021, an LSC re-visit survey occurred and no LSC deficiencies were found.  The state survey agency emailed information concerning the re-visit to L.L., who forwarded that information to Lauren Golden and others.  RFH at 108 (Decl. of Lauren Golden at ¶ 6), 118-119, 121.
	In a November 19, 2021 notice, CMS advised Petitioner that it was imposing the following enforcement remedies based on the deficiencies found in both the October 16 and November 2, 2021 surveys:  a $6,850 per-day CMP for 18 days from September 28, 2021 through October 15, 2021; a $250 per-day CMP beginning on October 16, 2021, and continuing until further notice; termination of Petitioner's provider agreement unless Petitioner achieved substantial compliance before April 16, 2022; and denial of payment for new admissions (DPNA)Page 5

beginning on November 16, 2021, and continuing until Petitioner achieves substantial compliance or is terminated.  CMS Ex. 1 at 4-5.

The November 19, 2021 notice was addressed to Petitioner's administrator and stated that it was:  "Delivered by Fax Only."  CMS Ex. 1 at 2.
	The November 19, 2021 notice stated at the top of the first page:  "**This serves as official notice pursuant to 42 CFR Part §488.**"  CMS Ex. 1 at 2 (emphasis in original).
	The November 19, 2021 notice provided Petitioner with information as to its right to request a hearing to dispute the imposition of enforcement remedies and that:  "**You must file your hearing request . . . no later than January 18, 2022 (60 days from the date of receipt of this letter via fax).**"  CMS Ex. 1 at 6 (emphasis in original).
	Along with the November 19, 2021 notice, CMS provided the November 2, 2021 survey SOD.  CMS Ex. 1 at 12-16.
	CMS's facsimile transmittal sheet for the November 19, 2021 enforcement notice shows that it was sent to Petitioner's administrator at fax number (469) 906-5376 on November 19, 2021, and comprised 16 pages.  CMS Ex. 1 at 1.
	CMS's fax to Petitioner's administrator resulted in a "Confirmation receipt" showing that 16 pages were sent on November 19, 2021, to fax number "4699065376."  The receipt indicated:  "Result:  Success."  CMS Ex. 1 at 17.
	On December 8, 2021, L.L. emailed CMS because she said she never received the SOD for the November 2, 2021 survey.  RFH at 20.
	In a December 9, 2021 email from CMS to L.L., CMS thanked L.L. for contacting CMS and stated:  "You should have received a fax to the number below with enforcement letter and [the SOD] attached [no later than] Nov. 18th.  However, I enclosed [the SOD], if you can send [the plan of correction] to me I will approve and get it processed."  RFH at 20.  The fax number referenced in the email was (469) 906-5376.  RFH at 21; P. Ex. 1 ¶ 4.
	On December 9, 2021, L.L. forwarded CMS's email to Lauren Golden and others.  *See* RFH at 20, 108 (Decl. of Lauren Golden at ¶ 5); P. Ex. 1 ¶ 4.
	In a January 26, 2022 notice, CMS advised Petitioner that it had achieved substantial compliance with Medicare participation requirements on December 16, 2021.  As a result, CMS summarized the enforcement remedies imposed onPage 6

Petitioner as follows:  a $6,850 per day CMP for 18 days from September 28, 2021 through October 15, 2021; a $250 per day CMP for 61 days beginning on October 16, 2021 and continuing through December 15, 2021; and a DPNA from November 16, 2021 through December 15, 2021.  The termination of Petitioner's provider agreement never took effect and was rescinded.  RFH at 24.

The January 26, 2022 notice stated that CMS's records showed that Petitioner had not filed an appeal, which had been due by January 18, 2022.  RFH at 24.
	The January 26, 2022 notice was addressed to Petitioner's administrator and stated that it was:  "Delivered by Fax Only."  RFH at 24.
	CMS's fax transmittal sheet for the January 26, 2022 notice shows that it was sent to Petitioner's administrator at fax number (469) 906-5376 on January 26, 2022.  RFH at 23.
	On or before February 7, 2022, L.L. was terminated from the position as administrator of Petitioner's facility.  L.L. was terminated based on performance issues.  RFH at 109 (Decl. of Lauren Golden at ¶ 7), 126 (Decl. of Craig Corriston ¶ 3).
	Craig Corriston, Regional Vice President of Operations for the management company, temporarily served as administrator of Petitioner's facility.  Mr. Corriston went to Petitioner's facility on February 7, 2022, and cleaned out the administrator's desk.  While doing so, Mr. Corriston found CMS's January 26, 2022 notice indicating that CMS imposed a CMP on Petitioner.  Mr. Corriston did not know of the CMP.  He contacted Ms. Golden and she stated that she did not know of the CMP.  RFH at 109 (Decl. of Lauren Golden at ¶¶ 7-9), 126-127 (Decl. of Craig Corriston ¶¶ 3-5).
	Petitioner filed a hearing request on February 22, 2022.  RFH at 1.IV.  The Parties' Contentions

CMS moved for dismissal of Petitioner's hearing request because it was untimely and there is no good cause for extending the deadline for submission.  Specifically, CMS argues that, on November 19, 2021, it faxed CMS's notice that it was imposing enforcement remedies on Petitioner due to the deficiencies found during both the October 16 and November 2, 2021 surveys.  CMS Motion at 1.

CMS relies on a fax receipt that confirmed all 16 pages related to the November 19, 2021 notice imposing enforcement remedies was successfully transmitted as proof of service.  CMS Motion at 1; CMS Ex. 1 at 17.  Based on a November 19, 2021 receipt date, CMS

Page 7

urges that Petitioner had to file a hearing request by January 18, 2022.  However, Petitioner did not file a hearing request until February 22, 2022.  CMS Motion at 2.

Petitioner asserts that it never received the November 19, 2021 notice from CMS.  Therefore, its hearing request is timely because Petitioner has 60 days from the date of receipt of the notice to file the hearing request.  RFH at 1.  Petitioner argues in the alternative that good cause exists to extend the date of filing "because the delay was a direct result of CMS's lack of notice to the Facility.  This lack of notice was beyond the Facility's control and constitutes good cause to extend the Petitioner's time to file the request for hearing."  RFH at 2.

Petitioner recounts the events following the October 16 and November 2, 2021 surveys.  Petitioner states that the facility never received a SOD regarding the November 2, 2021 survey and contacted CMS on December 9, 2021.  CMS responded that Petitioner should have received the SOD and the enforcement letter and then provided only the SOD to Petitioner as requested.  Petitioner concludes from this that "[i]t was reasonable for the Facility to conclude that CMS would resend the enforcement notice just as it had resent the [SOD] with the alleged deficiencies.  To this date, the Facility has not received the letter referenced by CMS in its email."  RFH at 3.

Petitioner relies on L.L.'s past performance in forwarding information about surveys and enforcement actions to Ms. Golden as proof that L.L. did not receive the November 19, 2021 notice.  If she had received it, L.L. would have forwarded it.  RFH at 4.  Petitioner procured a declaration from L.L. in which she stated that, by December 9, 2021, L.L. had not received any enforcement correspondence from CMS.  P. Ex. 1 ¶ 4.  Petitioner concludes that CMS should have realized that Petitioner had not received the November 19, 2021 notice.  RFH at 4; P. Response at 2-3.

Petitioner argues that the regulations require that CMS provide written notice of any enforcement action imposed against a facility and asserts that the Federal Rules of Civil Procedure indicate that service is not effective if the sender learns that the filing did not reach the person being served.  P. Response at 1-2.  Petitioner also states that it filed a hearing request within 60 days of receiving the January 26, 2022 notice, the only notice that Petitioner received concerning the CMPs that CMS imposed.  P. Response at 3.

V.  Analysis

The Social Security Act (Act) requires that the Secretary provide SNFs with notice and an opportunity for a hearing to dispute CMPs imposed on the SNFs.  42 U.S.C. §§ 1320a-7(c)(2), 1395i-3(h)(2)(B)(ii)(I).  The regulations state that CMS "sends" written notice of the penalties that CMS is imposing to the SNF and advises the SNF of its right to a hearing.  42 C.F.R. § 488.434(a).

Page 8

An SNF must file a hearing request within 60 days of receiving CMS's notice imposing enforcement remedies.  42 C.F.R. §§ 488.431(d)(1), 498.40(a)(2).  If a hearing request was not filed within 60 days, the SNF may request an extension of time and explain why the request was not filed timely.  42 C.F.R. § 498.40(c)(1).  An administrative law judge may extend the date for filing the hearing request for "good cause shown."  42 C.F.R. § 498.40(c)(2).

The regulations do not define what the term "good cause" means.  Further, the Departmental Appeals Board has not definitively defined that term either.  *Day Op of North Nassau, Inc.*, DAB No. 2818 at 6-7 (2017) (citing cases).  Therefore, I will consider all of the facts and circumstances based on the information before me.

In this case, I must determine whether CMS properly served the November 19, 2021 notice on Petitioner.  More specifically, I must determine whether Petitioner received the notice.

CMS stands on its records showing that its November 19, 2021 notice states that CMS sent the notice by facsimile to Petitioner's fax number and that a fax machine confirmation receipt shows that the fax was successfully received by Petitioner's fax machine.  CMS Ex. 1.  This is strong evidence that Petitioner received the notice.

CMS's use of a fax machine is permissible under 42 C.F.R. § 488.434(a), and CMS specified in bold on the first page of the November 19, 2021 notice that it was being served pursuant to 42 C.F.R. Part 488.  59 Fed. Reg. 56,116, 56,200-01 (Nov. 10, 1994) (Eliminating the requirement in Part 488 to use return receipt mail to send enforcement notices so that other means, "such as telefax," could be used.); CMS Ex. 1 at 1.  Further, CMS's use of a fax machine to send notice of the imposition of enforcement remedies is consistent with long-standing CMS policy.

The notice shall be in writing and shall be addressed directly to the provider/facility; or to an individual, an officer, managing or general agent, or other agent authorized by appointment or law to receive the notice.  The notice shall be dispatched through first-class mail, or other reliable means. Other reliable means refers to the use of alternatives to the United States mail in sending notices.  Electronic communication, **such as facsimile transmission,** is equally reliable and on occasion more convenient than the United States mail.  If electronic means **such as facsimile transmission** are employed to send notice**, the sender should maintain a record of the transmission to assure proof of transmission if receipt is denied.**

Page 9

State Operations Manual, Ch. 7, § 7305.4 (Rev. 63, Eff. Sep. 10, 2010) (emphasis added). Therefore, this policy anticipates that the fax machine's confirmation receipt will be proof that CMS successfully transmitted the notice to the SNF if the SNF denies receipt.

To overcome CMS's proof, Petitioner makes three factual arguments as to why I should find that Petitioner never received the November 19, 2021 enforcement notice:  1) L.L. emailed CMS in December 2021 and indicated that she had not received the SOD from the November 2021 survey; 2) L.L. had previously informed Lauren Golden when survey and enforcement correspondence had been received from CMS and she did not inform Ms. Golden of the November 19, 2021 enforcement notice; and 3) L.L. declared that she did not receive the November 19, 2021 notice.

I am not persuaded that Petitioner has overcome CMS's fax confirmation receipt because each of Petitioner's arguments hinges on L.L.  As indicated in two declarations provided in this case, L.L. had only been administrator of Petitioner's facility for six months at the time that CMS faxed the enforcement notice.  Further, L.L. would be terminated from her position, based on performance issues, within approximately two to two and half months after CMS faxed the enforcement notice.  Despite Ms. Golden's confidence in L.L.'s ability to always forward information about surveys and enforcement notices, I am less certain about this.

The record reflects that CMS faxed to Petitioner a second notice on January 26, 2022, providing information about the CMPs imposed as well as the requirement that Petitioner make payment because Petitioner had not filed a timely appeal.  RFH at 23-25.  L.L. received this notice and, instead of notifying Ms. Golden or anyone else, placed it in her desk.  This incident proves **both** that CMS was able to successfully provide a notice to Petitioner by fax and that L.L. did not always forward enforcement notices to Ms. Golden or others.

Based on this as well as the fact that L.L. was terminated for performance issues, I do not find L.L.'s statement credible that she did not receive the November 19, 2021 enforcement notice.

In addition, L.L. stated:

To my knowledge all the deficiencies were cleared as of November 19, 2021.  I received the email from [the state survey agency] with a copy of the deficiency-free survey shortly thereafter on or about November 23, 2021.  I also sent this information to Lauren Golden.  I still, however, had not received the November 2, 2021 survey nor any other correspondence from CMS about that survey.  It was not until after my December 9, 2021 communication to CMS that I

Page 10

received any communication regarding the November 2, 2021 survey, but even that did not include any enforcement correspondence or any notice of appeal rights.

P. Ex. 1 ¶ 5.  If L.L. is to be believed, she seems to indicate that she thought all of the deficiencies were cleared and presumably no enforcement remedies would be imposed.  However, in the SOD for the October 16, 2021 survey, the state survey agency found a deficiency (i.e., 42 C.F.R. § 483.25(b)(1)(i), (ii)) at the immediate jeopardy level.  It took 42 pages of the SOD to describe this deficiency.  RFH at 33-75.  An SNF administrator would never have assumed that CMS would impose no enforcement remedies simply because Petitioner had abated an immediate jeopardy situation and returned to substantial compliance with the LSC.  Further, Petitioner did not return fully to compliance until December 16, 2021.  Therefore, I have difficulty accepting L.L.'s statements in her declaration.

Finally, the factual situation surrounding L.L.'s email communication with CMS on December 9, 2021, indicates that L.L. had received the November 19, 2021 enforcement letter.  Petitioner did not provide L.L.'s email to CMS; therefore, I do not know what she actually said to CMS, although L.L. indicated it was limited to a request for a copy of the LSC survey SOD.  CMS responded to her email with a copy of the SOD for the LSC survey.  In doing so, CMS stated that L.L. should have received a fax with the enforcement letter and SOD by about November 18, 2021, and that CMS could process a plan of correction if Petitioner would send it to CMS.  RFH at 20.

L.L. forwarded CMS's email to Ms. Golden and others saying that she had not previously received the SOD and would complete the plan of correction.  L.L. did not mention the enforcement notice in her email and did not say she had not received the enforcement notice.  Neither Ms. Golden nor the others who received L.L.'s email replied to express concern or surprise that an enforcement notice had been faxed weeks earlier.  Further, L.L. did not respond to CMS that she needed a copy of the enforcement notice or indicate that she knew nothing of the enforcement notice.

Both L.L. and Ms. Golden had the opportunity to explain in their declarations why they showed no interest or concern that CMS stated, in its email, that CMS had previously faxed an enforcement notice to L.L.  Instead, L.L. acknowledged that CMS informed her that an enforcement notice had been faxed to her, but simply said that CMS did not forward an unsolicited copy to her.  P. Ex. 1 ¶ 5.  Ms. Golden's declaration is even more disconcerting because she admits to receiving the December 9, 2021 email forwarded from L.L., which contains CMS's statement that an enforcement notice had been faxed in November, but then declares that neither L.L. nor CMS had informed her of "any such enforcement against [Petitioner]."  RFH at 108-109 (Decl. of Lauren Golden at ¶¶ 5, 9).  Indeed, Ms. Golden attached a copy CMS's email to her declaration.  RFH at115-116.

Page 11

Petitioner would have me understand the actions (or inactions) of L.L. as notice to CMS that Petitioner had not received the November 19, 2021 enforcement notice.  I interpret the situation in just the opposite way.

L.L. and Ms. Golden both were aware that the state survey agency had found many deficiencies, including one at the immediate jeopardy level, in the SOD following the October 16, 2021 survey.  They would have expected CMS to impose an enforcement remedy.  When CMS emailed in response to L.L.'s request for a copy of the LSC survey SOD that CMS had already faxed an enforcement notice, they would have reacted to this information had they not known about it.  It would be unreasonable for me to conclude that an administrator and a manager responsible for an SNF, which had recently been found to have had an immediate jeopardy situation, would simply ignore the statement by CMS in its email that an enforcement notice had been faxed on approximately November 18, 2021.

Given that CMS provided proof that it had successfully transmitted the enforcement notice to Petitioner, it is now Petitioner's burden to show nonreceipt.  The situation involving the December 9, 2021 email correspondence with CMS does not provide a basis for me to disregard CMS's clear proof that its fax of the November 19, 2021 enforcement notice was successful.  Nor is it a basis to find good cause to extend the deadline for Petitioner to request a hearing.

An administrative law judge may dismiss a hearing request when the SNF "did not file a hearing request timely and the time for filing has not been extended."  42 C.F.R. § 498.70(c).  Because Petitioner's hearing request is approximately a month late and I have not extended the date for filing, I dismiss Petitioner's hearing request.

It is so ordered.


          /s/
        Scott Anderson

                      Administrative Law Judge
      1. Petitioner uploaded the request for hearing (RFH) and all of these documents in the DAB E-File System as a single pdf document.  DAB E-File Document No. 1.  Because the marked exhibits are confusing, I cite to these documents by the pdf page counter number without reference to exhibit numbers (e.g., RFH at 10). back to note 1
                      2. Because the exhibits in this case indicate that the facility administrator suffered an adverse employment action, I use the administrator's initials in the interests of privacy. back to note 2 Back to top
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