Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Riverview Village, |
DATE: December 6, 2001 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-01-412
Decision No. CR842 |
DECISION | |
DECISION This case presents the question as to whether the Centers
for Medicare & Medicaid Services (CMS) may validly give notice of
a determination to impose remedies via facsimile transmittal (fax). For
the reasons set forth below, I conclude that notice sent via fax is valid,
and I dismiss as untimely the hearing request filed by Riverview Village
(hereafter, Petitioner or facility). BACKGROUND Petitioner is a nursing facility certified to participate
in the Medicare and Medicaid programs as a provider of services. In a
notice dated December 14, 2000, CMS advised Petitioner that, based on
deficiencies found during a standard survey and complaint investigation,
CMS was imposing against the facility a civil money penalty (CMP) in the
amount of $200 per day, effective November 22, 2000. The letter set forth
Petitioner's appeal rights and specifically advised that "a written request
for a hearing must be filed no later than 60 days from the date of
receipt of this letter." CMS Ex. 1, at 3 (emphasis added). On its
face, the notice indicates that CMS sent it to Petitioner by both certified
mail and by fax. Id., at 1. The fax receipt indicates that it was
sent to the following number: (812) 282-8558, and
received on December 14, 2000, at 10:35 a.m. A transmittal slip attached
to the receipt indicates that D. Wolfe sent the transmittal. CMS Ex. 2. In a letter to the Departmental Appeals Board (DAB) dated
February 14, 2001, Petitioner requested a hearing. CMS Ex. 4. The record
is silent as to the date the letter was actually mailed. Petitioner sent
the letter certified, and the copies were delivered to both the DAB and
CMS on February 20, 2001. CMS Ex. 5, at 1. CMS now moves to dismiss Petitioner's hearing request
as untimely, arguing that Petitioner did not file its hearing request
within 60 days of receiving CMS' notice on December 14th. By
CMS' reckoning, the hearing request was due on or before February 12,
2001. Petitioner counters that CMS may not serve notice by fax, and that
the presumption of receipt five days after mailing (or December 19th)
controls, giving Petitioner until February 17, 2001 to file and, since
February 17 was a Saturday, it had effectively until Monday, February
19, 2001 to file its hearing request.(1) DISCUSSION
Section 1866(h) of the Social Security Act (Act) authorizes
administrative review of determinations that a provider fails to comply
substantially with the provisions of the regulation "to the same extent
as is provided in section 205(b) [of the Act]." Under section 205(b) of
the Act, the Secretary of the U.S. Department of Health and Human Services
(Secretary) must provide reasonable notice and opportunity for a hearing
"upon request by [the affected party] who makes a showing in writing that
his or her rights may be prejudiced" by the Secretary's determination.
The hearing request "must be filed within sixty days" after receipt
of the notice of CMS' determination. Act, section 205(b) (emphasis added).
Similarly, the regulations mandate that the affected party
"file its request in writing within 60 days from receipt of the notice
. . . unless that period is extended." 42 C.F.R. �
498.40(a). If the request is not filed within 60 days, the affected party
may file with the ALJ a written request for extension of time stating
the reasons why the request was not filed timely and, upon a showing of
good cause, the ALJ may extend the time for filing. 42
C.F.R. � 498.40(c); see also Cary Health and Rehabilitation
Center, DAB No. 1771, at 9 (2001). On motion of a party or on his
or her own motion, the ALJ may dismiss a hearing request where that request
was not timely filed and the time for filing was not extended. 42 C.F.R.
� 498.70(c). The statute and regulations are thus explicit that the
time for filing begins to run with the date the notice is received,
without regard to the method by which CMS conveys it - mail, hand delivery,
courier service, fax, or some other method. A facility is simply not free
to ignore CMS' notices based on the manner of service. The regulation which governs specifically the manner in which CMS notifies an affected party of its decision to impose a CMP, 42 C.F.R. � 488.434, omits reference to mailing: "[CMS] sends a written notice of the penalty . . . ." (emphasis added). Review of the preamble to the regulation confirms that the drafters intended to allow CMS flexibility in its method of sending notice:
59 Fed. Reg. 56,116, 56,200-01 (Nov. 10, 1994). Thus,
since at least 1994, the regulations have specifically authorized service
by fax of a notice of imposition of a CMP. Petitioner cites a more general rule, 42 C.F.R. � 498.20(a), to support its claim that the federal regulations do not permit fax service of the initial notice. That regulation says:
I do not see that 42 C.F.R. � 498.20(a) precludes CMS
from serving notice in another fashion, particularly in light of the specific
rule for service of notice in CMP cases, nor that it changes the requirement
that petitioners request hearings within 60 days of receiving CMS' notice,
without regard to how that notice is conveyed. See Cary,
DAB No. 1771, at 10-12. Under 42 C.F.R. �� 498.40(a)(2) and 498.22(b)(3), receipt
is "presumed to be five days after the date on the notice unless there
is a showing that it was, in fact, received earlier or later." A mailed
notice can reasonably take five days to reach the affected party; a fax
transmission can be achieved in minutes. Even though it may have faxed
the notice, unless CMS can demonstrate an earlier date of receipt, the
five-day presumption controls. Thus, in Cary, an appellate panel
of the Departmental Appeals Board (Board) recognized, in principle, the
validity of sending notice of the denial of payment for new admissions
by fax. But based on the regulatory presumption, the Board found the hearing
request timely because CMS had not overcome the presumption by showing
an earlier date of receipt. Cary, DAB No. 1771, at 10-12. I next consider whether here CMS has overcome the presumption that Petitioner received its notice on December 19th.
In Cary, the petitioner asserted that it "did not
receive this [March 24th notice] until a few days following
March 24th." It submitted a declaration from the facility administrator
stating that her files contained a copy of the March 24th letter
sent by regular mail, which had "no fax markings" and no indication "on
the letter that it was faxed," and that "Cary Health has no other copies
of this letter indicating that it was faxed to Cary Health by [CMS]."
Before the Board, the petitioner "absolutely" denied receiving
a copy of the letter by fax. Id., at 11 (emphasis in original). In contrast, here Petitioner has not denied receipt of
the December 14th fax, and offers no affidavits or other declarations
denying that it received the faxed document on December 14, 2000. In fact,
Petitioner admits "[t]he Notice was also faxed to Riverview on December
14, 2000." Petitioner's Response (P. Resp.), at 2. In a careful tautology,
Petitioner says that the notice "was not received by Riverview, pursuant
to 42 C.F.R. � 498.22(b)(3), until December
19, 2000." Id., at 1 (emphasis added). Inasmuch as "pursuant to
42 C.F.R. � 498.22(b)(3)" means only the presumption of receipt five days
after the date of the notice, this statement only repeats the five-day
rule and says nothing about when, in fact, Petitioner first received CMS'
notice. Petitioner asserts that CMS must prove when Petitioner
received the document. But the Board has generally not allowed a party
to be so coy. Where Petitioner does not deny receiving notice, it may
be assumed to have received it. Wellington Oaks Care Center, DAB
No. 1626 (1997). On that basis alone I could find that Petitioner received
the fax on December 14th. Moreover, CMS has affirmatively demonstrated that Petitioner
received its notice on the morning of December 14, 2000. On its face,
the transmittal receipt indicates that D. Wolfe, whose phone number is
(312) 886-5214, sent the document to D. Woods at fax number (812) 282-8558.
The transmittal began at 10:33 a.m. on December 14th and was
completed at 10:35 a.m. on the same day. CMS Ex. 2. In addition, CMS submitted
a declaration from Douglas Wolfe, Program Representative for the CMS Division
of Survey and Certification, stating that he personally sent the four-page
notice by fax to Petitioner's fax number on December 14, 2000, and received
confirmation of its receipt at that time ("COM OK," PAGES 04/04"). Wolfe
Declaration, CMS Ex. 2. He attaches a copy of the facility's ownership
documents which confirm that Petitioner's fax number is (812) 282-8558. This is precisely the documentation Petitioner suggests is necessary to establish receipt of a fax.
P. Resp., at 9 (quoting U.S. V. Galiczynski,
44 F. Supp. 2d 707, at 715 (E.D. Penn. 1999), aff'd, 203 F.3d 818
(3rd Cir. 1999)). Petitioner does not challenge the substance of the Wolfe
Declaration, but moves to strike it as untimely, arguing that CMS should
not be allowed to raise new matters in a reply brief. I note, first, that
CMS raised no new matters in its reply. The Wolfe Declaration explains
evidence already presented (CMS Ex. 2), and affirms the argument CMS made
in its Memorandum in Support of Motion to Dismiss.
Second, Petitioner was afforded the opportunity
to respond to the CMS' reply, including the Wolfe Declaration, so it can
hardly claim to have been "sandbagged." Petitioner's Motion to Strike
is therefore denied. CONCLUSION For the reasons stated, I conclude that I do not have before me a timely filed hearing request. Moreover, Petitioner has not, pursuant to 42 C.F.R. � 498.40(c), filed a written request for extension of time stating why the hearing request was not filed timely.(2) I therefore exercise my authority under 42 C.F.R. � 498.70(c) and dismiss this appeal. |
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JUDGE | |
Carolyn Cozad Hughes Administrative Law Judge
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FOOTNOTES | |
1. The parties also dispute whether the effective date of filing is the date of mailing or the date of receipt. I do not reach this issue because, using either date, Petitioner failed to file its hearing request within 60 days after first receiving notice of CMS' initial determination. 2. Petitioner has not alleged good cause for late filing, and I make no good cause finding here. I note, however, that the regulation authorizing service by means other than mail, including fax, in a CMP case is seven years old. See 59 Fed. Reg. 56,116 (November 10, 1994). Surely by now the time has passed for parties to plead ignorance of its provisions, particularly where the faxed notice advises, on its face, of the need to appeal within 60 days. | |