CASE | DECISION | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Riverview Village,

Petitioner,

DATE: December 6, 2001
                                          
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Centers for Medicare & Medicaid Services

 

Docket No.C-01-412
Decision No. CR842
DECISION
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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

A. The facility must file its hearing request within 60 days of receipt of the notice, notwithstanding how the notice was conveyed.

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:

We are not accepting the suggestion that the notice be sent via certified mail because this would preclude sending a valid notice via other means, such as telefax, telegram, commercial overnight delivery services, or other means that may be faster. In fact, for these reasons we are revising this section of the rule to eliminate the requirement that the notice be sent by mail with return receipt requested.

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:

[CMS] . . . mails notice of an initial determination to the affected party, setting forth the basis or reasons for the determination, the effect of the determination, and the party's right to reconsideration, if applicable, or to a hearing.

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.

B. The evidence establishes that Petitioner received notice via Facsimile transmission on December 14, 2000.

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.

If service is made by fax, proof of service must be made by affidavit . . . or by certificate. . .[which] must include: (A) the date and time of transmission; (B) the telephone number of the transmitting facsimile machine; (C) the recipient's name and facsimile machine telephone number; (D) the number of pages transmitted; (E) and a statement that the document was transmitted by facsimile and the person signing the affidavit or certificate believes the transmission to have been complete and without error.

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.

JUDGE
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Carolyn Cozad Hughes

Administrative Law Judge

 

FOOTNOTES
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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.

CASE | DECISION | JUDGE | FOOTNOTES