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                              Surgical Care, PC, ALJ Ruling 2020-14 (HHS CRD July 30, 2020)
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Surgical Care, PC, ALJ Ruling 2020-14 (HHS CRD July 30, 2020)








  
  
    

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





Surgical Care, PC,
	(NPI: 1487848321; PTANs: 092180, NA1655)
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-20-543Ruling No. 2020-14July 30, 2020

        
              
    

      RULING
I deny the request for an extension of time to file a request for hearing filed by Petitioner, Surgical Care, PC, because Petitioner did not establish good cause to extend the time for filing.  42 C.F.R. §§ 498.40(a)(2), (c); 498.70(c).  Therefore, I dismiss Petitioner’s request for hearing as untimely.
I.  Background and Procedural History
Petitioner is a provider in the Medicare program.  On March 23, 2020, Wisconsin Physicians Service Insurance Corporation (WPS), a Medicare administrative contractor, sent a letter to Petitioner (WPS Letter)1
 in which a hearing officer denied its request for reconsideration of the effective date assigned for its reactivated Medicare enrollment.
Page 2
The hearing officer explained that WPS had rejected four separate enrollment applications Petitioner had submitted to revalidate its reenrollment because Petitioner failed to comply with development requests dated February 22, April 8, July 3, July 12, and September 17, 2019.  WPS Letter at 2.  The hearing officer explained that, on November 7, 2019, WPS received an enrollment application for purposes of revalidation that it was able to process to approval, and that pursuant to 42 C.F.R. § 424.521(a)(1), billing privileges could be authorized 30 days earlier.2
  WPS Letter at 1, 3.
On June 5, 2020, Petitioner submitted its Request for Hearing, to include numerous appendices, in which it sought an earlier effective date of its reactivated billing privileges.  Petitioner’s hearing request was jointly signed by Ms. Cristine M. Miller, an outside health care compliance consultant, and Petitioner’s owner, Dr. Rick Windle.  Request for Hearing at 5.  Acknowledging that it submitted its hearing request more than 60 days after its presumed receipt of the March 23, 2020 letter,3
 Petitioner stated the following:
As was stated in the Decision Letter that was dated March 23, 2020, an appeal is allowed within the time period of 60 days from the receipt of the Unfavorable Decision Letter.  Surgical Care PC and Dr. Rick Windle received this letter on April 29, 2020.  That allows the appeal to be filed prior to June 28th, 2020.  June 28, 2020 occurs on a Sunday, so we believe that our deadline is Monday, June 29, 2020 . . . As the Reconsideration Decision was mailed at the start of the COVID-19 pandemic precautions, we are sure this had a large
Page 3
impact in the delay of the letter being transported from Wisconsin to Nebraska.4
Request for Hearing at 1.  Dr. Windle submitted a notarized statement in which he “attest[ed]” the following:  “I, Rick J. Windle, did receive and open the Medicare Reconsideration Denial dated March 23, 2020 . . . on April 29th, 2019 [sic].”  Request for Hearing at 15.  In an appendix to the request for hearing captioned “DO THE RIGHT THING!,” Dr. Windle candidly addressed the reason why Petitioner had not complied with the revalidation request, stating:
Unfortunately, the individual that was handling our Medicare credentialing and our billing was not communicating with me regarding the re-credentialing of my Medicare provider number and I was unaware of the difficulties and lack of response to the CMS inquiries.  Not only were we not responding to Medicare inquiries, but we were having problems with other payors as well.
Request for Hearing at 55.  Dr. Windle further explained that WPS’s “unfavorable decision” resulted from him “trusting an employee while trying to do the right thing.”5
Page 4
Request for Hearing at 56.  Petitioner appended reference letters from two other physicians.  Request for Hearing at 57-59.  One letter from Dr. Mathieu Hinze stated the following, in pertinent part:
Trust is a very important facet in the patient/surgeon relationship.  It can also be said the same for office staff and the surgeon.  He was let down when apparently a lapse in  front office paper work allowed the [M]edicare reimbursement to come to a halt all the while he performed the necessary procedures on those patients in a timely fashion.  Please help this fine surgeon to recoup those lost payments.
Request for Hearing at 57.
On June 9, 2020, I acknowledged receipt of Petitioner’s request for hearing, at which time I explained that I had construed that Petitioner had requested an extension of the filing deadline.  I ordered CMS to file a response.
In response, CMS filed a motion to dismiss and supporting memorandum of law (CMS Memorandum).  CMS submitted a document, “USPS Coronavirus Updates: Expected Delivery Changes,” to refute Petitioner’s speculative statement that it was “sure” that “COVID-19 pandemic precautions . . . had a large impact in the delay of the letter being transported from Wisconsin to Nebraska.”  CMS Memorandum at 3-4; CMS Ex. 2; *see*Request for Hearing at 1.  In that document, the U.S. Postal Service reported that “[t]here is no impact to First-Class letters and flats.”  CMS Ex. 2 at 1-2.  CMS also alleged that Dr. Windle’s statement was “self-serving” and “should not be considered credible absent other supporting evidence.”  CMS Memorandum at 4.
Page 5
I afforded Petitioner an opportunity to respond to CMS’s motion to dismiss.  Petitioner, through newly retained counsel, filed a response (P. Response), along with supporting documents that included an affidavit by Dr. Windle (P. Affidavit), color photographs (P. Exs. 1-2), and email communications (P. Exs. 3-4).  Petitioner, in its memorandum in response to the motion to dismiss, argued that “[w]hat happened to the Notice . . . cannot be determined with any absolute certainty” and “[i]t is not unreasonable to conclude that the Notice could not have been delayed in its delivery such that it would not have been received by the presumptive date of March 28th, 2012 [sic].”  P. Br. at 3.  Dr. Windle explained that the “changes in mail delivery . . . was [sic] disruptive and caused delays in receiving mail.”  P. Affidavit at 3.  Dr. Windle explained that on April 8, 2020, the building where his office is located “notified its tenants that mail would no longer be delivered to individual tenant mail boxes, but that . . . mailroom personnel would retrieve the mail from the [building complex’s internal] post office and leave it in the mailroom located in the basement of the hospital.”  P. Affidavit at 2.  Dr. Windle stated that “[a]s a result,” Petitioner “was required to send its staff to the mailroom, to sort through piles of envelopes and packages in order to retrieve its mail.”6
  P. Affidavit at 2.  Dr. Windle stated that “[s]taff from Surgical Care P.C. picked up the mail on a daily basis.”  P. Affidavit at 2.  Dr. Windle discussed email correspondence dated April 17 and 29, 2020, and explained that this correspondence demonstrated that he did not receive the March
Page 6
23, 2020 letter until April 29, 2020.  P. Affidavit at 3-4; *see*P. Exs. 3-4.7
  Petitioner also argued that Dr. Windle’s affidavit and supporting evidence demonstrate that it did not receive the reconsidered determination until April 29, 2020, or alternatively, April 17, 2020, at the earliest.  P. Response at 8.
II.  Issues
The general issue here is whether I should grant Petitioner’s request for an extension of time to file a request for hearing.  The specific issues that I must decide are whether Petitioner has filed a timely request for hearing, and if not, whether Petitioner has good cause to file a late request for hearing.
III.  Analysis
A provider or supplier dissatisfied with a reconsidered determination “is entitled to a hearing before an ALJ.”  42 C.F.R. § 498.5(*l*)(2).  The procedures to request a hearing are found in 42 C.F.R. § 498.40.  In order to exercise the right to a hearing, a provider or supplier must file its request for hearing in writing no later than 60 days from the date that it receives a reconsidered determination.  42 C.F.R. § 498.40(a)(2).  Receipt of the notice of a reconsidered determination is presumed to be five days after the date on the notice unless shown otherwise.  *Id*.; 42 C.F.R. § 498.22(b)(3).  A provider or supplier may request that an ALJ extend the date to file a hearing request; however, the provider or supplier must show good cause in order for the ALJ to grant such a request.  42 C.F.R. § 498.40(c).  If a hearing request is untimely and there is no good cause to extend the filing date, then an ALJ may dismiss the hearing request.  42 C.F.R. § 498.70(c); *see, e.g., Fairway Med. Clinic & Shadow Creek Med. Clinic*, DAB No. 2811 at 14 (2017) (an ALJ has the “discretionary authority to conclude, ultimately, that dismissal is proper for untimely appeal and for lack of credible explanation of good cause for late filing”); *MedStar Health, Inc.,*DAB No. 2684 at 7 (2016).
Page 7
***A.  Petitioner has not rebutted the presumption that it received the March 23,*** ***2020 reconsidered determination no later than March 30, 2020.***
WPS issued the reconsidered determination March 23, 2020, and therefore, the presumed date of receipt is five days thereafter.  42 C.F.R. §§ 498.22(b)(3), 498.40(a)(2).  Because March 28, 2020 was a Saturday, the presumed date of receipt is Monday, March 30, 2020.
Initially, Petitioner alleged that “Covid-19 pandemic precautions . . . had a large impact in the delay of the letter being transported from Wisconsin to Nebraska.”  Request for Hearing at 1.  At that time, Dr. Windle stated that *he* “did receive and open the Medicare Reconsideration Denial dated March 23, 2020 . . . on April 29th, 2019 [sic].”  Request for Hearing at 15.  Dr. Windle’s statement did not address whether Petitioner had received the letter prior to April 29, 2020.
CMS, in seeking dismissal of the request for hearing, explained that “WPS sent its decision letters via First Class Mail,” and that the U.S. Postal Service reported that the Covid-19 pandemic had caused “no impact to First-Class letters.”  CMS Memorandum at 3; CMS Ex. 2 at 1-2.  CMS noted that Petitioner did not provide “a copy of the envelope or the letter with its office’s date stamp,” or “show that such a date stamp was used in the ordinary course of its business.”  CMS Memorandum at 4.  CMS noted that even if Petitioner’s allegation that it did not receive the March 23, 2020 letter until April 29, 2020, is “true,” it “should have realized the letter had been received unreasonably late and that it still had ample time to file before the due date . . . [and] [i]nstead it chose to wait to file.”  CMS Memorandum at 4.
Petitioner thereafter submitted a response in which it seemingly backtracked from its prior claim that it had not timely received the letter based on Covid-19 pandemic-related “delay of the letter being transported from Wisconsin to Nebraska.”  P. Response.  Instead, Petitioner argued that the letter was delayed after it was delivered by the U.S. Postal Service to its building complex.  P. Response at 3 (explaining that Petitioner did not receive mail directly from the U.S. Postal Service, and that “the mail was delivered to a separate post office box in the professional office building, and needed to be retrieved by . . . staff.”).  Petitioner contended that as a result of access restrictions to its building due to the Covid-19 pandemic, “[i]t is not unreasonable to conclude that the Notice could have been delayed in its delivery.”  P. Response at 3.  Petitioner claimed that “the pandemic . . . resulted in a chaotic mail process,” and speculated that it “more likely than
Page 8
not” caused “the Notice at issue being lost or delayed.”8
  P. Response at 5.  Petitioner broadly cites to paragraphs 10-15 of Dr. Windle’s affidavit in support, yet the affidavit makes no such claims.  P. Response at 5; *see*P. Affidavit.  Rather, Dr. Windle focused on the changes implemented by its building complex’s mail operations *beginning* on April 8, 2020.  P. Affidavit at 2.  Dr. Windle discussed that pursuant to the new policy, mail would no longer be delivered to tenant mailboxes and that building mailroom staff “would retrieve the mail from the post office and leave it in the mailroom.”  P. Affidavit at 2.  Dr. Windle explained that Petitioner’s staff retrieved mail from the mailroom, sorted through “piles” of mail, and picked up the mail each day.  However, the photographs contradict these claims.  P. Exs. 1, 2.
While I accept Dr. Windle’s claim that *he,*as the owner of Petitioner,did not personally review the March 23, 2020 letter until April 29, 2020, as true for the purposes of this discussion, the simple fact is that *Petitioner* has not rebutted the presumption that *it*received the March 23, 2020 letter on or before March 30, 2020.  First, CMS refuted Petitioner’s initial claim that there was a delay by the U.S. Postal Service, and Petitioner did not counter this argument.  In fact, even though CMS explained that Petitioner could have submitted a copy of the envelope or letter bearing a marking of its receipt date, Petitioner did not submit such evidence with its response.  Rather, Petitioner offered a new explanation that it did not timely receive the letter because its building’s mail service was chaotic, “more likely than not” caused the March 23, 2020 letter to become lost or delayed, and/or that the April 8, 2020 mail processing changes somehow prevented it from timely receiving the March 23, 2020 letter.  P. Response at 4-6; P. Affidavit at 2.
Additionally, I note that Dr. Windle provided first-hand information regarding *his own*receipt of the letter on April 29, 2020, but provided no basis for his claim that *Petitioner*did not receive the letter prior to that date.  P. Affidavit at 4.  Dr. Windle did not claim that *he*retrieved the letter from the mailroom himself on April 29, 2020, nor did he claim that his usual practice was to review incoming mail on the same day as its receipt; to the contrary, Dr. Windle reported that unidentified “staff” regularly retrieved mail from the mailroom.9
  P. Affidavit at 2-4.  Further, Dr. Windle did not address when Petitioner’s
Page 9
staff retrieved the letter from the mailroom, nor did he address the basis for his claim that [t]he Letter was received by [Petitioner] on April 29, 2020.”10
  In fact, Dr. Windle previously explained that he did not handle, and was not aware of, enrollment-related correspondence.  *See*Request for Hearing at 55 (“the individual that was handling our Medicare credentialing and our billing was not communicating with me regarding the re-credentialing of [his] Medicare provider number and [he] was unaware of the difficulties and lack of response to the CMS inquiries,” and that “[n]ot only were we not responding to Medicare inquiries, but we were having problems with other payors as well.”); *see also*WPS Letter at 2 (noting that Petitioner had failed to provide the information requested in development requests dated February 22, April 8, July 3, July 12, and September 17, 2019).  Petitioner has not demonstrated that *it*did not receive the March 23, 2020 letter on or before March 30, 2020.
***B.  Petitioner did not establish good cause for an extension of the regulatory deadline for filing a hearing request.***
If an affected party establishes that there is good cause to extend the filing date for a hearing request, then an ALJ may accept an otherwise untimely hearing request.  42 C.F.R. § 498.40(c).  The regulations do not define what constitutes “good cause” to extend the filing deadline, and the Departmental Appeals Board (DAB) “has never attempted to provide an authoritative or complete definition of the term ‘good cause’ in section 498.40(c)(2).”  *Brookside Rehab. & Care Ctr.*, DAB No. 2094 at 7 n.7 (2007) (citing *Glen Rose Med. Ctr. Nursing Home*, DAB No. 1852 at 7 n.5 (2002)).  Rather, an adjudicator must consider the relevant circumstances of each case to determine whether there is “good cause” to extend the filing deadline.  *See* *NBM Healthcare, Inc.*, DAB No. 2477 at 4 (2012) (“[T]he facts of this case do not show good cause under ‘any reasonable definition of that term.’”).
I conclude that Petitioner’s explanations for the untimely filing of its hearing request do not fall within any reasonable definition of the term “good cause” as set out in 42 C.F.R. § 498.40(c)(2).  The DAB has consistently ruled that where, as here, a party consciously chooses for reasons of its own not to request a hearing, it must accept the consequences
Page 10
of its inaction.  *Hammonds Lane Ctr.,*DAB No. 1853 at 1 (2002); *Hillcrest Healthcare, L.L.C.,* DAB No. 1879 (2003).  Because Petitioner has made no showing of good cause for an extension of the deadline for the filing of a request for hearing, I cannot extend the filing deadline for the hearing request based on good cause.  Petitioner has not rebutted the presumption that *it*received the March 23, 2020 reconsidered determination later than March 30, 2020.  Although its owner, Dr. Windle, reports that he did not open and review the letter until April 29, 2020, there is simply no probative evidence supporting that *Petitioner*did not receive the letter within the presumptive five-day period.
Petitioner has not offered any other reason why there is good cause to extend the deadline to file its request for hearing.  I am especially mindful that the Covid-19 pandemic has been disruptive to the lives of countless people and has undoubtedly impacted Medicare providers and suppliers.  To that end, Civil Remedies Division ALJs have readily afforded lenience when a party claims, or the circumstances otherwise indicate, that the Covid-19 pandemic has adversely impacted a party’s ability to comply with an order or a deadline.  However, such a circumstance is not presented here.  Petitioner broadly raised the Covid-19 pandemic as a reason for its failure to file a timely request for hearing, but there is a distinction between the Covid-19 pandemic being a legitimate and compelling reason for an inability to comply with a deadline versus a post-hoc excuse for failing to meet a deadline.  Petitioner initially alleged that it was “sure” that the Covid-19 pandemic had a “large impact in the delay of the letter being transported from Wisconsin to Nebraska.”  Request for Hearing at 1.  After CMS refuted the allegation of interstate mail transportation delays associated with “Covid-19 pandemic precautions,” Petitioner then claimed that, due to mail processing changes within its building complex, “[i]t is not unreasonable to conclude that the notice could have been delayed in its delivery.”  P. Response at 3; *see*P. Affidavit at 2-3.  However, Petitioner has not shown that changes to its building’s mail operations, most of which became effective April 8, 2020, prevented its timely receipt of the March 23, 2020 letter.  P. Affidavit at 2.  Petitioner has not otherwise claimed that the Covid-19 pandemic has affected its operations, staffing, ability to retrieve mail on a daily basis, or ability to prepare and file a request for hearing.  Further, even assuming that Dr. Windle first reviewed the March 23, 2020 letter on April 29, 2020, I note that Petitioner still had a full month remaining of the 60-day period in which to file a request for hearing.  In the absence of evidence demonstrating when it actually received the letter (i.e., an incoming mail stamp, late-postmarked envelope, or sworn statement by a staff member attesting to the date the letter was received in the mail), Petitioner did avail itself of the ample opportunity to file a timely request for hearing.
Finally, although I am dismissing Petitioner’s request for hearing based on untimeliness, I note that Petitioner’s hearing request appears to be largely premised on a request for equitable relief.  *See, e.g.,*Request for Hearing at 55 (acknowledging the “lack of
Page 11
response to the CMS inquiries” and that Petitioner was “not responding to Medicare inquiries,” and recognizing that “ignorance is no excuse.”); 57 (“He was let down when apparently a lapse in front office paper work allowed the [M]edicare reimbursement to come to a halt . . . . Please help this fine surgeon to recoup those lost payments.”).  Dr. Windle persuasively explained the financial impact of the gap in its billing privileges.  Request for Hearing at 55.  Further, Dr. Windle detailed laudable personal achievements and acts of kindness, along with difficult circumstances he has faced as a practicing surgeon.  Request for Hearing at 55-56.  Unfortunately, my review is limited to whether the evidence indicates that WPS assigned the correct effective date for reactivation based on its receipt of the application it processed to approval.  *See, e.g.*, *Urology Grp. of NJ, LLC*,DAB No. 2860 at 7 (2018) (“The governing authority to determine the effective date for reactivation of Petitioner’s Medicare billing privileges is 42 C.F.R. § 424.520(d).” (italics omitted)); *see*42 C.F.R. §§ 424.520(d), 424.521(a)(1), 498.3(b)(15).  I lack authority to fashion equitable remedies.  *US Ultrasound*, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”); *see 1866ICPayday.com, L.L.C*., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”).  Thus, even if this case had proceeded on the merits, I note that I am not authorized to impose an equitable remedy.
IV.  Conclusion
Petitioner has not shown that an extension of the filing deadline is warranted based on good cause.  Therefore, I deny Petitioner’s motion for an extension of the filing deadline.   I dismiss Petitioner’s hearing request pursuant to 42 C.F.R. § 498.70(c).


          /s/
        Leslie C. Rogall

                      Administrative Law Judge
      1. This letter can be found at docket entry # 1a in the electronic case docket.  Petitioner included copies of this letter at pages 16-19 and 47-50 of its request for an administrative law judge (ALJ) hearing (Request for Hearing), and the Centers for Medicare & Medicaid Services (CMS) submitted the same letter as CMS Ex. 1. back to note 1
                      2. The reconsidered determination is not a model of clarity, but the hearing officer ultimately summarized that Petitioner “has not provided evidence to definitely support an earlier effective date” and that WPS would not grant an earlier effective date for Petitioner’s reactivated billing privileges.  WPS Letter at 3.  As such, the reconsidered determination maintained the “gap in billing privileges from March 25, 2019 through October 07, 2019 for failing to respond to a development request related to a revalidation application.”  Request for Hearing at 35-37 (December 26, 2019 initial determination).  I note that CMS, in support of its motion to dismiss, incorrectly explained that Petitioner filed its application for the purpose of reactivating its billing privileges on December 26, 2019, and that billing privileges had been authorized 30 days earlier, beginning November 26, 2019.  CMS Memorandum at 1. back to note 2
                      3. As will be explained later in this ruling, the presumed date of receipt of the letter is March 30, 2020; therefore, the request for hearing should have been filed no later than May 29, 2020.  42 C.F.R. §§ 498.22(b)(3), 498.40(a)(2). back to note 3
                      4. Petitioner’s request for hearing is not paginated, so my references to that document and its appendices are to the page numbers listed in the electronic version of the document. Further, Petitioner included copies of 12 letters from WPS in its submission, which it identified as Letter # 1 through Letter # 12. back to note 4
                      5. In its Request for Hearing, Petitioner did not “[i]dentify the specific issues, and the findings of fact and conclusions of law with which [it] disagrees,” nor did it “[s]pecify the basis for contending that the findings and conclusions are incorrect” as required by 42 C.F.R. § 498.40(b).  In particular, Petitioner did not allege that it submitted an enrollment application that could be processed to approval prior to November 7, 2019.  Rather, Dr. Windle essentially raised a plea for equitable relief.  Request for Hearing at 54-56.  Further, Petitioner alleged that WPS “[did] not reference” a particular June 10, 2019 letter in its reconsidered determination, and that CMS “confused the recredentialing process by inappropriately combining a separate practice . . . to the process.”  Request for Hearing at 4.  However, the June 10, 2019 letter does not pertain to Petitioner’s own enrollment; rather, it pertains to the enrollment of a separate entity, “Rick Windle, MD,” with a National Provider Identifier (NPI) of 1154303071.  See Request for Hearing at 23-24.  In fact, it appears that Petitioner has conflated its own enrollment revalidation process with the revalidation of Rick Windle, MD.  I note that seven of the twelve letters Petitioner (NPI 1487848321) submitted in support of its request for hearing pertain to the enrollment of other entities.  See Request for Hearing at 21-22 (“Letter # 1” to Rick Windle, MD, NPI 1154303071); 23-24 (“Letter # 2” to Rick Windle, MD, NPI 1154303071); 33-34 (“Letter # 7” to Rick Windle, MD, NPI 1154303071); 38-40 (“Letter # 9,” addressing the reassignment of benefits by Rick Windle, MD, NPI 1154303071, to Women’s Clinic of Lincoln, PC, NPI 1760407274); 41 (“Letter # 10,” acknowledging receipt of request for reconsideration on behalf of Rick Windle, MD, regarding a reassignment to Women’s Clinic of Lincoln, PC); 42-46 (“Letter # 11, Reconsidered Determination pertaining to the effective date of the reassignment of benefits by Rick Windle, MD, NPI 1154303071, to Women’s Clinic of Lincoln, PC). back to note 5
                      6. Petitioner appended three mailroom photographs in support of Dr. Windle’s claim that “[n]one of the mail was sorted,” but did not caption the photographs or otherwise provide a narrative explanation of the subjects of the photographs.  P. Exs. 1, 2.  Curiously, one of the photographs focused on the small individual office suite mail bins for another building located in its complex at 2222 South 16th Street.  P. Ex. 2 at 1.  Atop the mail bins for the individual office suites is a slightly larger mail bin for a different address, 2221 South 17th Street (with Petitioner’s office being located in Suite 303).  P. Ex. 2 at 1, 2.  Without the benefit of any explanation by Petitioner, it appears that the bin marked with the 2221 South 17th Street address could be a receptacle for mail that lacked a specific suite number or had been misdelivered to a different tenant.  Regardless of the purpose for the 2221 17th Street mail bin, the photograph depicts that the bin contained a small amount of mail that could be searched in a matter of seconds.  P. Ex. 2 at 1, 2.  Although not dispositive, my observation is that the mailroom appears to be orderly and organized, with relatively small amounts of mail placed in separate marked bins that were organized by recipient address.  In fact, the mail in a number of the bins is bundled by a single rubber band, giving the impression that someone had pre-sorted the mail and bundled it together prior to delivering it to the designated bin.  P. Exs. 1-2. back to note 6
                      7. These email messages are not in their original format, in that the copies were printed from the email account of Petitioner’s counsel.  Furthermore, there is no attestation that these email messages are true and accurate copies of the messages.  Nonetheless, for purposes of this discussion, I will accept at face value Dr. Windle’s claim that he became personally aware of the March 23, 2020 letter on April 29, 2020.  See P. Affidavit at 4-5; P. Ex. 3 at 1 (April 17, 2020 email message from Dr. Windle stating, in part: “Since it is a lot of dough, I remain quite interested.  Just sit tight or should I/we contact them?”); P. Ex. 4 at 1 (April 29, 2020 email message from Dr. Windle stating:  “A couple of things, I just received the letter over a month late.  I have sent this to Mary V.  I am also considering trying to pull political strings, i.e. , [sic] senators.”). back to note 7
                      8. There is no indication that the March 23, 2020 letter was “lost,” and the evidence does not support the existence of a “chaotic” mail process or that mail was not delivered.  See P. Affidavit;P. Exs. 1, 2 (mailroom photographs). back to note 8
                      9. Petitioner did not submit a statement by the staff member who retrieved the March 23, 2020 letter from the mailroom and/or who furnished the letter to Dr. Windle.  And although Dr. Windle stated that the “distribution Manager of Bryan Medical System reported to [him] that mail had been delayed” for an unspecified period of time, Petitioner did not submit a statement from this individual.  P. Affidavit at 3. back to note 9
                      10. Dr. Windle reported he had been awaiting the delivery of the March 23, 2020 letter, and cited April 17, 2020 email correspondence with AWS Medical Solutions, LLC, in support of this allegation.  P. Affidavit at 3; see P. Ex. 3 at 1;Request for Hearing at 36 (addition of AWS Medical Solutions, LLC, to Petitioner’s enrollment record).  Dr. Windle did not report that he had informed his staff of the same, or that he had directed staff to immediately deliver the letter to him. back to note 10 Back to top
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