Alta Skilled Nursing & Rehabilitation Center, ALJ Ruling 2025-2 (HHS-CRD October 28, 2024)

DISMISSAL

For the reasons set forth below, I dismiss as untimely the hearing request filed by Petitioner, Alta Skilled Nursing & Rehabilitation Center.

Background

The following facts are not in dispute:

Petitioner is a skilled nursing facility located in Reno, Nevada that participates in the Medicare program.  The Nevada Department of Health and Human Services (state agency) completed an extended survey of the facility on April 5, 2024.  Based on the survey findings, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with multiple Medicare program requirements, including 42 C.F.R. § 483.12(c)(2)-(4) (Tag F610 – freedom from abuse, neglect and exploitation:  reporting and investigation), cited at scope and severity level K (pattern of substantial noncompliance that poses immediate jeopardy to resident health and safety).  CMS Exs. 1, 2.

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In a notice letter dated June 7, 2024, CMS advised Petitioner that the facility was not in substantial compliance and that its deficiency posed immediate jeopardy to resident health and safety and constitutes substandard quality of care.  CMS was therefore imposing remedies:  civil money penalties of $7,033 per day for 16 days of immediate jeopardy and $255 per day for 19 days of substantial noncompliance that did not pose immediate jeopardy.  CMS Ex. 1 at 2-3.

A section of the notice letter prominently captioned "APPEAL RIGHTS" advised the facility of its right to request a hearing before an administrative law judge.

If you disagree with the findings of noncompliance that resulted in this letter's imposition of a remedy, or the finding of [substandard quality of care] which resulted in the loss of [nurse aide training and competency evaluation] approval, you or your legal representative may request a hearing before an administrative law judge of the U.S. Department of Health and Human Services, Departmental Appeals Board.

CMS Ex. 1 at 5-6.  The letter then cites the regulations that govern such appeals – 42 C.F.R. § 498.40 et seq. – and explains the process for electronically filing the appeal.  Id. at 6.

The letter emphasizes that "Your appeal must be filed no later than 60 days from the date of receipt of this letter."  CMS Ex. 1 at 6.  On June 7, 2024, CMS sent copies of the notice letter to the facility's administrator by email and by facsimile (fax).1  On the face of the notice, CMS advised the facility that no hard copy would follow.  CMS submits a copy of the June 7, 2024 e-mail, showing that it sent a copy of the notice letter on that date.  CMS Ex. 3.

On August 16, 2024, Petitioner filed its hearing request, using the Departmental Appeals Board's electronic filing system.2

CMS now moves to dismiss the request as untimely.  With its motion and brief (CMS Br.), CMS filed three exhibits (CMS Exs. 1-3).  With its reply (P. Br.), Petitioner filed three exhibits (P. Exs. 1-3).

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Discussion

1. Petitioner is not entitled to a hearing to challenge CMS's June 7, 2024 determination because it did not file a timely hearing request and no good cause justifies extending the time for filing.3

Section 1866(h) of the Social Security Act authorizes administrative review of determinations that a provider has failed to comply substantially with Medicare program requirements "to the same extent as is provided in section 205(b) [of the Act]."  Under section 205(b), the 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 decision.  The hearing request "must be filed within sixty days" after receipt of the notice of CMS's determination.  Act § 205(b) (emphasis added).  The 60-day time limit is thus a statutory requirement.  See Cary Health and Rehab Ctr., DAB No. 1771 at 8-9 (2001).

Similarly, the regulations mandate that the affected party "file the request in writing within 60 days from receipt of the notice . . . unless that period is extended . . . ."  42 C.F.R. § 498.40(a)(2).  If the request is not filed within 60 days, the party may file a written request for extension, which the ALJ may grant "for good cause shown."  On motion of a party, or on his/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).

That Petitioner's hearing request was not filed within 60 days from the date of the notice letter is plain.  To be timely, the appeal should have been filed on or before August 6, 2024.  Petitioner requested a hearing on August 16 – 70 days after the date of the notice.

When Petitioner received the notice.  The regulations were drafted at a time when virtually all notices were served by U.S. mail.  Hence, they provide that the date of 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."  42 C.F.R. § 498.22(b)(3).  Over time, as technology has made it possible, CMS has adopted more advanced (and, arguably, more reliable) methods of sending its notices, and the Departmental Appeals Board has found that these alternative methods are valid.

In a modern era of electronic mailing and messaging, the term "mails" is not unambiguous.  The core question for due process is whether the transmission method is as capable of accomplishing the essential purpose of notice.

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Fairway Medical Clinic & Shadow Creek Medical Clinic, DAB No. 2811 at 9 (2017) (emphasis added).  As the Board explained in Fairway, that "essential purpose" requires a "notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections."  It does not require "rigid conformity in terms of the kind of notice that must be given."  Fairway, DAB No. 2811 at 8 n.6 (2017) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950), and citing Lehner v. United States, 685 F.2d 1187, 1190-91 (9th Cir. 1982)).

Thus, the Board has upheld the practices of sending notices by email, fax, or upload into a shared electronic folder and has agreed that such notices are received on the date sent or filed.  See Ishtiaq A. Malik, M.D., DAB No. 2962 at 7-8 (2019) (finding that Petitioner received notice of his Medicare exclusion when the Inspector General emailed the notice to his attorney); Allan L. Silverstein, M.D., DAB No. 2908 at 7-8 (2018); LCD Complaint:  Bioengineered Skin Substitute, DAB No. 2814 at 6-7 (2017). 

Petitioner does not challenge CMS's practice of serving notice by email but – without providing any underlying support – declares that the facility did not receive the email.

Petitioner does not deny that the June 7 email was correctly addressed to the facility's administrator.  In fact, on August 12, 2024, CMS sent to the administrator, at the same address, an email requesting payment.  Petitioner concedes that the administrator received the August 12 email and submits it as an exhibit.  P. Ex. 1; P. Ex. 2 at 2; see Illini Heritage Rehab & Health Care, DAB No. 3125 at 7 (2023) (affirming the ALJ's reasonable inference that the facility received two "correctly directed" faxes on their documented transmission dates).

Section 498.22(b)(3) places the burden of proof on whoever asserts that the affected party received notice before or after the regulation's presumptive date of receipt.  Illini, DAB No. 3125 at 7 (quoting Cary Health & Rehab. Ctr., DAB No. 1771 at 11 (2001)).  Absent other evidence, the mere assertion that the affected party did not receive a determination is insufficient to rebut the presumption of receipt under section 498.22(b)(3).  Illini at 7; Transnet Home Grp., DAB No. 3027 at 5 (2020); MedStar Health, Inc., DAB No. 2684 at 5, 7-8 (2016).

Thus, the Board affirmed the ALJ's dismissal where the facility presented two affidavits:  one from the facility's general counsel claiming that he had "significant knowledge" of the facility's "receipt of CMS correspondence" and declaring that CMS's fax was not received; the second, from the facility's former administrator, claiming that it was the facility's "custom and practice" to "always scan the documents and email them" to the general counsel and others.  Illini at 3; see Silverstein, DAB No. 2908 at 7 (affirming the

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ALJ's conclusion that a lawyer's sworn statement that he did not receive an electronically transmitted notice was insufficient to overcome the presumption of receipt).

Here, Petitioner has submitted virtually no evidence to support its claim that it did not receive the June 7, 2024 email, not even a declaration from the (then) administrator – to whom the email was sent – or anyone else.  Petitioner has thus not met its burden of establishing that the facility did not receive the email.

Aside from arguing that it did not receive the June 7 notice until August 13, 2024, Petitioner has not alleged good cause to justify my extending the period for it to appeal.

Conclusion

Because Petitioner's hearing request was untimely, and because no good cause justifies my extending the time for filing, I dismiss this appeal pursuant to 42 C.F.R. § 498.70(c).