Skip to main content


U.S. flag
      An official website of the United States government
              Here’s how you know
        Here’s how you knowDot gov**Official websites use .gov**
                 A **.gov** website belongs to an official government organization in the United States.
                  HTTPS**Secure .gov websites use HTTPS**
                 A **lock** (A locked padlock) or **https://** means you’ve safely connected to the .gov website. Share sensitive information only on official, secure websites. 
  Menu Close
          HHS Search block
    Search
        








  
  
    

  
      

                                      About HHS
    
                        
                              
      
      
      Programs & Services
    
                        
                              
      
      
      Grants & Contracts
    
                        
                              
      
      
      Laws & Regulations Breadcrumb
    Home
                              About
                              Agencies
                              DAB
                              Decisions
                              ALJ Decisions
                              2022
                              Tyler Healthcare Operations 2 LLC d/b/a Rose Trail Nursing and Rehabilitation Center, ALJ Ruling 2022-4 (HHS CRD Jun. 8, 2022)
 Navigate to:
  Departmental Appeals Board (DAB)
    
                                                  
                                                    
            
      
      
      
      About DAB
                                            
            
            Organizational Overview
    
                                                  
                              
            
      
      
      
      Who are the Judges?
    
                                                  
                              
            
      
      
      
      DAB Divisions
    
                                                  
                              
            
      
      
      
      Contact DAB
    
                                                  
                                                    
            
      
      
      
      Filing an Appeal Online
                                            
            
            DAB E-File
    
                                                  
                              
            
      
      
      
      Medicare Operations Division (MOD) E-File
    
                                                  
                                                    
            
      
      
      
      Different Appeals at DAB
                                            
            
            Appeals to DAB Administrative Law Judges (ALJs)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Procedures
    
                                                                
                                                    
            
      
      
      
      Appeals to Board
                          
            
            Practice Manual
    
                                                  
                              
            
      
      
      
      Guidelines
    
                                                  
                              
            
      
      
      
      Regulations
    
                                                  
                              
            
      
      
      
      National Coverage Determination Complaints
    
                                                                
                                                    
            
      
      
      
      Appeals to the Medicare Appeals Council (Council)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Fully Integrated Duals Advantage (FIDA) Demonstration Project
    
                                                  
                                                    
            
      
      
      
      Alternative Dispute Resolution Services
                                            
            
            Sharing Neutrals
    
                                                  
                              
            
      
      
      
      ADR Training
    
                                                  
                              
            
      
      
      
      Other ADR Services
    
                                                  
                                                    
            
      
      
      
      DAB Decisions
                                            
            
            Board Decisions
    
                                                  
                              
            
      
      
      
      DAB Administrative Law Judge (ALJ) Decisions
    
                                                  
                              
            
      
      
      
      Medicare Appeals Council (Council) Decisions
    
                                    
                              
            
      
      
      
      Stakeholder Feedback
    
                                                  
                                                    
            
      
      
      
      Careers
                                            
            
            Open Career Opportunities
    
                                                  
                              
            
      
      
      
      Internships & ExternshipsText resize icon

                    




Tyler Healthcare Operations 2 LLC d/b/a Rose Trail Nursing and Rehabilitation Center, ALJ Ruling 2022-4 (HHS CRD Jun. 8, 2022)








  
  
    

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





Tyler Healthcare Operations 2 LLC d/b/a
Rose Trail Nursing and Rehabilitation Center
(CCN: 455429),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-22-537Ruling No. 2022-4June 8, 2022

        
              
    

      ACKNOWLEDGMENT, DENIAL OF REQUEST FOR AN EXTENSION OF TIME TO FILE HEARING REQUEST, DENIAL OF REMAND REQUEST, AND DISMISSAL OF HEARING REQUEST

I acknowledge receipt by the Civil Remedies Division of Petitioner's request for a hearing, request that I extend the filing deadline for the hearing request, and request for remand of this case back to the Centers for Medicare & Medicaid Services (CMS).  Based on Petitioner's filings, I conclude that Petitioner's hearing request is untimely for the matters that it wants to dispute.  I also conclude that Petitioner did not show good cause for the untimely hearing request.  Finally, I conclude that Petitioner's basis for requesting remand is not sufficient reason for me to do so.  Therefore, I deny Petitioner's requests and dismiss Petitioner's hearing request as untimely.

Petitioner may request, within 60 days of receiving this order, that I vacate the dismissal of Petitioner's hearing request if Petitioner believes good cause exists for me to do so.  42 C.F.R. § 498.72.

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); *cf.* 42 U.S.C. § 1395i‐3(h)(2)(B)(ii)(III)(bb).

Page 3

One such remedy is a civil money penalty (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).

If an SNF wishes to dispute the imposition of a CMP or other enforcement remedies, the SNF must request a hearing within 60 days from receipt of CMS's initial determination.  42 C.F.R. § 498.40(a)(2).  However, if, within 60 days from date on the initial determination, an SNF affirmatively waives its right to a hearing in writing, CMS will reduce the CMP amount imposed on the SNF by 35%.  42 C.F.R. § 488.436.

For good cause shown, an administrative law judge may extend the date for filing a hearing request.  42 C.F.R. § 498.40(c)(2).  If an SNF files an untimely hearing request and the administrative law judge does not find good cause to extend the due date for that hearing request, then the administrative law judge may dismiss the hearing request.  42 C.F.R. § 498.70(c).  An SNF may request, within 60 days of receiving a dismissal, that the administrative law judge vacate the dismissal for good cause and/or that the Departmental Appeals Board (DAB) review the dismissal.  42 C.F.R. §§ 498.72, 498.82.

II.  Background

Petitioner's facility is located in Tyler, Texas.  On August 26, 2021, the Texas Health & Human Services Commission (state agency) completed a survey of Petitioner's facility.  The state agency drafted a Statement of Deficiencies that indicated Petitioner was not in substantial compliance with several Medicare program requirements for SNFs, including two that caused immediate jeopardy to the health and safety of residents.  The state agency verified that, by August 26, 2021, Petitioner's residents were no longer in immediate jeopardy; however, Petitioner remained out of substantial compliance with Medicare requirements.  P. Ex. 5.

In a November 19, 2021 notice of initial determination (November 19 Notice), CMS reiterated the deficiencies found during the state agency survey and noted that the state agency had subsequently found that Petitioner had returned to substantial compliance with Medicare participation requirements on September 23, 2021.  P. Ex. 1 at 1.

Page 4

CMS also informed Petitioner that it was imposing an $11,400 per-day CMP for 11 days (August 15, 2021 through August 25, 2021) and a $350 per-day CMP for 28 days (August 26, 2021 through September 22, 2021), for a total penalty of $135,200.  P. Ex. 1 at 1-2.  Finally, the notice informed Petitioner of its right to request a hearing to dispute the imposition of the CMP and of Petitioner's option to waive its right to a hearing and receive a 35% reduction in the total CMP amount.  P. Ex. 1 at 2-4.  The November 19 Notice stated in bolded print that Petitioner had until January 18, 2022, to request a hearing or to waive the right to a hearing.  P. Ex. 1 at 2-3.

Petitioner's administrator received the November 19 Notice and thought that, based on Petitioner's plan of correction, CMS had incorrectly stated that Petitioner returned to substantial compliance on September 23, 2021, instead of September 15, 2021.  P. Ex. 3 ¶ 3; *see* P. Ex. 5 at 39.  On an unspecified date, the administrator contacted CMS and the state agency concerning the date Petitioner returned to substantial compliance.  P. Ex. 3 ¶ 3.  Later, after receiving no further response, the administrator again contacted CMS and CMS indicated it would issue another notice.  P. Ex. 3 ¶ 4; P. Ex. 4 at 4-5.

In a March 22, 2022 notice (March 22 Notice), CMS reduced the duration of the CMP imposed on Petitioner.  The March 22 Notice stated that the state agency conducted an administrative review that resulted in an adjustment of the date that substantial compliance was achieved, and that the new date was September 15, 2021.  The March 22 Notice further stated the $350 per-day CMP now only accrued from August 26, 2021 through September 14, 2021.  CMS stated that the total CMP was now $132,400.  Finally, the March 22 Notice stated that Petitioner had not appealed the CMP or waived its right to appeal the CMP by January 18, 2022; therefore, the modified total CMP amount was due on April 6, 2022.  P. Ex. 2 at 1.

Petitioner's administrator received the March 22 Notice and realized that the notice did not provide Petitioner with a right to request a hearing.  P. Ex. 3 ¶ 5.  The administrator emailed CMS about this and the CMS representative indicated that Petitioner did not have appeal rights based on the March 22 Notice or, consequently, the option to waive appeal rights to receive a reduction in the CMP amount.  P. Ex. 3 ¶ 5; P. Ex. 4 at 1-4.

On May 20, 2022, Petitioner filed a request for an administrative law judge hearing with the Civil Remedies Division.  The hearing request provided a detailed explanation as to the deficiencies Petitioner contested; however, Petitioner did not contest the duration of the CMPs.  P. Ex. 6.

Also, on May 20, 2022, Petitioner filed a motion (P. Motion) in which it requested that I accept its hearing request as timely, extend the time for Petitioner to file its hearing request late, or remand this case to CMS.  Petitioner submitted six marked exhibits in support of its motion.

Page 5

III.  Timeliness of the Hearing Request

As mentioned above, on May 20, 2022, Petitioner requested a hearing to dispute the deficiencies discussed in the Statement of Deficiencies for the August 26, 2021 survey.  Specifically, Petitioner contested the following:

that notice was properly provided to the Facility;
	the findings of noncompliance;
	the findings of substandard quality care;
	all remedies imposed, including but not limited to the CMPs imposed;
	the scope and severity of each of the deficiencies cited;
	the reasonableness and appropriateness of CMP imposed;
	the reasonableness of each deficiency cited; and
	all other enforcement remedies imposed.P. Ex. 6 at 2.  The rest of the request provided Petitioner's specific basis for its disagreement with the Statement of Deficiencies.  P. Ex. 6 at 2-4.

Petitioner asserted that its hearing request was timely because Petitioner filed it within 60 days of the March 22 Notice.  Petitioner cited an unpublished order, issued by another administrative law judge.  *See* *The Villa at Mountain View*, Dkt No. C-22-219 (HHS CRD Apr. 28, 2022).  Petitioner argued that *Mountain View* indicates that, because CMS issued an initial determination that failed to provide the date of the SNF's return to substantial compliance, the SNF had the right to file a hearing request within 60 days of receipt of a subsequent notice that established the date of substantial compliance.  P. Motion at 3.  Petitioner then stated the following:

Petitioner's 60-day deadline to appeal did not begin until Petitioner received notice of the full CMP with the accurate dates of substantial compliance as listed in CMS's March 22, 2022 notice.  Petitioner has filed its request for hearing within 60 days of receiving notice of the enforcement remedies imposed against it as provided in the March 22, 2022 notice. Thus, just like in *Villa at Mountainview*, CMS's notice to the Facility was not compliant with the regulations until it sent the March 22, 2022 notice that correctly specified the duration of the per-day CMP and when the Facility returned to substantial compliance.

P. Motion at 3.

Page 6

As discussed below, *Mountain View* does not support Petitioner's argument.  The Social Security 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 CMP imposed on the SNF, which must include the following:  the date on which the penalty begins, "[w]hen the penalty stops accruing, if applicable," and a statement as to the SNF's right to a hearing and the opportunity to waive that right to receive a reduction in the CMP.  42 C.F.R. § 488.434(a)(2)(v), (vi), (viii).  The regulations account for the fact that per-day CMPs accrue "for the number of days of noncompliance until the date the facility achieves substantial compliance" and, if substantial compliance did not occur by the time CMS sent the notice imposing a CMP, then CMS must send a second notice, when the SNF has achieved substantial compliance, stating "[t]he amount of the penalty per day" and "[t]he number of days involved."  42 C.F.R. § 488.440(b), (d)(1).

An SNF must file a hearing request within 60 days of receiving CMS's notice imposing a CMP.  42 C.F.R. §§ 488.431(d)(1), 498.40(a)(2).  An SNF that wants to waive its right to a hearing must file a written waiver with CMS within 60 days of the date on CMS's notice.  42 C.F.R. § 488.436.

In the present case, CMS sent Petitioner a notice that it was imposing per-day CMPs on Petitioner for a period of immediate jeopardy noncompliance and a period of non-immediate jeopardy noncompliance.  The notice specified ranges of dates for each period of noncompliance and the amount of penalty per day for each range.  The notice indicated when Petitioner returned to substantial compliance.  CMS also advised Petitioner of the date on which a hearing request or a waiver of hearing rights was due.  November 19 Notice at 1-4.

Petitioner disagreed with the date on which Petitioner returned to substantial compliance (i.e., the end date for the non-immediate jeopardy per-day CMP).  However, instead of exercising its right to request a hearing to dispute the duration of noncompliance, Petitioner decided to informally attempt to resolve this discrepancy with CMS.1
  While doing so, Petitioner allowed the date to file a hearing request to pass.  It was not until

Page 7

after CMS issued the March 22 Notice that Petitioner requested a hearing to dispute the deficiencies in the case.

This factual scenario differs in some important respects from *Mountain View*.  While both cases involve CMS's issuance of a notice imposing per-day CMPs for a period of immediate jeopardy noncompliance and a period of non-immediate jeopardy noncompliance, the CMS notice in *Mountain View* did not provide a date on which the facility achieved substantial compliance.  *Mountain View*, Dkt No. C-22-219 at 1.  The facility timely waived its right to a hearing and requested to receive a reduction in the CMP amount.  However, CMS later issued a second notice indicating when the facility returned to substantial compliance, which provided the end date for the per-day CMP for the non-immediate jeopardy noncompliance.  Based on this new information, the facility withdrew its waiver of its hearing rights and filed a request for hearing.  CMS moved for dismissal of the hearing request as untimely.  *Mountain View*, Dkt No. C-22-219 at 2-3.

The administrative law judge decided that Petitioner had no basis to withdraw its waiver of hearing rights for the per-day CMP based on the immediate jeopardy noncompliance because that period was stated in CMS's original notice.  However, the administrative law judge allowed the facility to challenge the non-immediate jeopardy deficiencies because CMS's original notice did not provide the end date for the per-day CMP based on those deficiencies.  It is significant that the administrative law judge's reasoning was based in part on the facility's inability to know the duration of the per-day CMP for the non-immediate jeopardy deficiencies by the time it had to file the waiver of its hearing rights.  *Mountain View*, Dkt No. C-22-219 at 4-6.

In the present case, Petitioner never waived its right to a hearing and CMS provided Petitioner with the dates on which both per-day CMPs ended.  It is true that Petitioner disagreed with the date that it returned to substantial compliance, i.e., the end date for the per-day CMP for the non-immediate jeopardy noncompliance; however, that is significantly different than CMS indicating an indefinite period.  Petitioner did not request a hearing or waive its right to request a hearing by January 18, 2022.  Rather, Petitioner decided to informally resolve the duration issue with CMS.  Therefore, while CMS eventually reduced the number of days of non-immediate jeopardy noncompliance based on Petitioner's informal request, this scenario is different than the one presented in *Mountain View*.  To the extent that *Mountain View* provides any light on this case, it is that Petitioner cannot now dispute the immediate jeopardy noncompliance deficiencies.

A case that is similar to *Mountain View* and closer to the present one is *Mimiya Hospital*, DAB No. 1833 (2002).  In that case, CMS issued a CMP notice for a set period based on immediate jeopardy noncompliance and an indefinite period for non-immediate jeopardy noncompliance.  The facility did not request a hearing until after a subsequent CMS notice that provided the date on which Petitioner returned to substantial compliance.  An administrative law judge dismissed that hearing request as untimely.  *Mimiya*, DAB

Page 8

No. 1833 at 5-6.  On appeal, the DAB agreed that the hearing request was properly dismissed as to the challenge of the immediate jeopardy noncompliance because CMS's original notice provided sufficient information as to whether Petitioner should dispute those deficiencies.  *Mimiya*, DAB No. 1833 at 5-6.  Further, the DAB determined that the non-immediate jeopardy noncompliance was also properly noticed in CMS's original notice and the facility's appeal of those deficiencies was untimely.  As stated in the decision, only the duration of the non-immediate jeopardy noncompliance was timely filed and could be adjudicated:

As Mimiya's October 22, 2000 request for a hearing came within 60 days of the August 30, 2000 letter, we find that Mimiya's request for a hearing on the issue of when it achieved substantial compliance was timely.  In so finding, we emphasize that the deficiency finding in the April survey which established the beginning date for the $100 per day CMP was set out in the May 26, 2000 notice and was not timely appealed by Mimiya; thus only the duration of the period for which the $100 per day CMP was assessed, and not the underlying violation itself, remains an issue for a hearing.

*Mimiya*, DAB No. 1833 at 7.  A federal court affirmed the DAB as follows:

Although Mimiya did not exercise its right to request a hearing, CMS complied with the requirements of due process by giving Mimiya notice of the deficiencies and the amount of the penalty, and an opportunity to be heard.

*Mimiya Hospital, Inc. SNF, v. U.S. Dep't of Health & Human Services*, 331 F.3d 178, 181 (1st Cir. 2003).

Applying *Mimiya* to the present case, Petitioner received notice of the deficiencies that CMS had found and of its right to request a hearing within 60 days of receiving the November 19 Notice.  Petitioner chose not to exercise that right until approximately four months after the 60-day period to appeal lapsed.  Petitioner's decision to forego an appeal to informally resolve its dispute concerning the duration of its non-immediate jeopardy noncompliance did not toll the 60-day deadline to appeal the deficiencies in this case.  At best, it permits Petitioner to request a hearing to dispute the date on which Petitioner returned to compliance.  However, of the eight specified matters that Petitioner disputed in its hearing request, none disputes the duration of the per-day CMP regarding the non-immediate jeopardy noncompliance.  Therefore, Petitioner did not appeal the only issue that it could following receipt of the March 22 Notice.

Page 9

IV.  Good Cause to Extend the Due Date for the Hearing Request

Petitioner asserted that it has good cause for filing a late hearing request and requested that I extend the due date for the hearing request.  Petitioner argued that CMS did not correct its error concerning the date of Petitioner's return to substantial compliance until after its hearing request was due.  Petitioner stated:

It is unjust, and inconsistent with the regulations, to require the Facility to make a decision regarding whether to appeal or to waive without knowing the full amount of the CMP and the dates that CMS alleges it was noncompliant, as well as other enforcement actions CMS is imposing against the Facility. Once the Facility receives proper notice, the Facility has 60 days to file a request for a hearing.  *See* 42 C.F.R. § 498.40.  The Facility was not in a position to make a decision regarding whether to appeal until it received the final March 22, 2022 correspondence that listed the full amount of the CMP with accurate dates of substantial compliance.  The fact that CMS did not send it until after the deadline to appeal was beyond the Facility's control.  This lack of notice that was beyond the Facility's control constitutes good cause to extend the Petitioner's time to file the request for hearing.

P. Motion at 4.

Petitioner is correct that 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).  However, the regulations do not define what the term "good cause" means.  Further, the DAB 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.

As stated above, Petitioner received the November 19 Notice, which specified two periods of noncompliance for which per-day CMPs were imposed.  Petitioner disagreed with the end date for the second period of noncompliance and believed it was eight days longer than it should be.  Petitioner informally contacted CMS to correct that date.

CMS eventually corrected that mistake.  In doing so, the total penalty amount changed from $135,200 to $132,400.  Based on the November 19 Notice, Petitioner could easily have calculated the difference eight days would make, i.e., $2,800.  Based on the total CMP, I cannot believe that such a small amount would affect Petitioner's decision to request a hearing.

Page 10

Further, it is not logical that Petitioner needed to wait and see if CMS would reduce the duration of the CMP by a week before deciding to request a hearing to dispute the underlying deficiencies.  CMS had already informed Petitioner of the worst potential outcome, i.e., a $135,200 CMP.  Based on that, Petitioner had enough information to decide if it wanted to timely request a hearing.  Although CMS reduced the amount of the CMP (i.e., the best potential outcome), Petitioner still wants to dispute the deficiencies.  A reduction in the CMP total should not have caused Petitioner to now decide that it needed to dispute the deficiencies.  Only an increase in the duration and the CMP total, such as what happened in *Mimiya* and *Mountain View*, would be grounds to conclude that a facility would not be able to judge whether it wanted to appeal until a total CMP amount was known.

Finally, I cannot conclude that Petitioner has shown good cause for an extension of time because failing to request a hearing while awaiting the conclusion of an informal dispute resolution process is not good cause.  Although Petitioner did not use the Informal Dispute Resolution (IDR) or Independent Informal Dispute Resolution (IIDR) processes to dispute the date it returned to substantial compliance, Petitioner informally contacted CMS and the state agency to achieve a modification of that date.  Therefore, the DAB's analysis, quoted below, as to why there is no good cause is applicable to this case.

In this case, by inadvertence or tactical choice, Hillcrest elected, at least initially, to resolve its dispute by means other than a formal administrative hearing.  With that election came the possibility that the time for filing a hearing request regarding the remedies based on the May 1 survey would expire before Hillcrest could predict or know the outcome of the IDR process . . . . When the deadline for filing the hearing request arrived on or about July 7, Hillcrest knew that CMS had not rescinded those findings but had merely determined the date on which the immediate jeopardy had ceased.

*Hillcrest Healthcare, L.L.C*., DAB No. 1879 (2003).  In the present case, Petitioner knew that it needed to request a hearing by January 18, 2022; however, Petitioner chose to wait and see if CMS could modify the date Petitioner returned to substantial compliance.  Therefore, Petitioner had no good cause for failing to timely request a hearing, and I deny Petitioner's request for an extension of time to file that request.

V.  Requested Remand to CMS

Finally, Petitioner argued that CMS improperly provided the November 19 Notice and the March 22 Notice to Petitioner because CMS served them by facsimile.  Petitioner asked for me to "remand this matter to CMS to correct the defective notices."  P. Motion

Page 11

at 7.  Petitioner primarily bases its argument on 42 C.F.R. § 498.20(a)(1), which indicates that CMS mails initial determinations to providers and suppliers.  P. Motion at 6.

As an initial matter, I note that Petitioner's administrator stated in his declaration that he received both the November 19 Notice and the March 22 Notice, and his declaration does not indicate there was any difficulty in doing so.  P. Ex. 3 ¶¶ 2-3, 5.  Further, Petitioner submitted copies of the notices, and those filings include the fax cover sheets from CMS and fax transmission-related information at the top of each page of the notices.  P. Exs. 1-2.  Therefore, Petitioner's request for remand is not based on Petitioner failing to receive timely and actual notice of the actions CMS was taking.

In any event, CMS's use of a fax machine to send notices concerning the imposition of CMPs is permissible under 42 C.F.R. § 488.434(a).  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.).  Unlike the requirement in 42 C.F.R. § 498.20(a)(1), the requirement in 42 C.F.R. § 488.434(a) is that CMS "sends" the notice concerning the imposition of the CMP to the facility.

In this case, the notices CMS sent are clear that they provide official notice of the CMP and that the notices are being delivered by fax only pursuant to 42 C.F.R. Part 488 (and not Part 498).  P. Ex. 1 at 1; P. Ex. 2 at 2.  The DAB has found that service by fax under these circumstances is sufficient.  *Fairway Medical Clinic & Shadow Creek Medical Clinic*, DAB No. 2811 at 8-9 (2017).

Therefore, I conclude that CMS properly served the notices on Petitioner, and Petitioner received those notices from CMS.  As I result, I deny Petitioner's request that I remand this case to CMS.

VI.  Dismissal of Hearing Request

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 I have concluded that Petitioner's hearing request is approximately four months late and I have not extended the date for filing, I dismiss Petitioner's hearing request.


          /s/
        Scott Anderson

                      Administrative Law Judge
      1. One of the email exchanges between Petitioner's administrator and a CMS representative in March 2022 indicates that the administrator wanted to waive Petitioner's hearing rights to obtain a reduced CMP amount.  P. Ex. 4 at 2-4.  However, Petitioner only asserted in its motion and hearing request a desire to dispute the deficiencies that CMS found in the Statement of Deficiencies.  Further, in a declaration signed on May 20, 2022, the administrator only "expected that I would be able to appeal the March 22, 2022 notice from CMS" and does not indicate that Petitioner wanted to waive its hearing rights to obtain a reduced CMP.  Therefore, I only consider Petitioner's efforts to obtain a hearing in this matter. back to note 1 Back to top
    Contact HHS
    
                        
                                            
      
      
      Careers
    
                        
                                            
      
      
      HHS FAQs
    
                        
                                            
      
      
      Nondiscrimination NoticeHHS Archive
    
                        
                                            
      
      
      Accessibility Statement
    
                        
                                            
      
      
      Privacy Policy
    
                        
                                            
      
      
      Viewers & PlayersBudget/Performance
    
                        
                                            
      
      
      Inspector General
    
                        
                                            
      
      
      Web Site Disclaimers
    
                        
                                            
      
      
      EEO/No Fear ActFOIA
    
                        
                                            
      
      
      The White House
    
                        
                                            
      
      
      USA.gov
    
                        
                                            
      
      
      Vulnerability Disclosure Policy
        Sign Up for Email Updates

Receive the latest updates from the Secretary, Blogs, and News Releases.

Sign Up
  HHS Headquarters
          200 Independence Avenue, S.W.
                  Washington, D.C. 20201
                  Toll Free Call Center: 1-877-696-6775​ Disclaimer Policy: Links with this icon () mean that you are leaving the HHS website. The Department of Health and Human Services (HHS) cannot guarantee the accuracy of a non-federal website.
                  Linking to a non-federal website does not mean that HHS or its employees endorse the sponsors, information, or products presented on the website. HHS links outside of itself to provide you with further information.
                  You will be bound by the destination website's privacy policy and/or terms of service when you follow the link.
                  HHS is not responsible for Section 508 compliance (accessibility) on private websites. For more information on HHS's web notification policies, see Website Disclaimers.
 Continue
                  Go back