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                              Illini Heritage Rehab & Health Care, DAB No. 3125 (2023)
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Illini Heritage Rehab & Health Care, DAB No. 3125 (2023)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Appellate Division





Illini Heritage Rehab & Health Care
Docket No. A-23-3Decision No. 3125December 19, 2023

        
              
    

      FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE ORDER OF DISMISSAL

Illini Heritage Rehab & Health Care (Petitioner), a skilled nursing facility (SNF), appeals the order of an Administrative Law Judge (ALJ) dismissing Petitioner’s hearing request.  *Illini Heritage Rehab & Health Care*, ALJ Ruling, Docket No. C-22-641 (Aug. 9, 2022) (Dismissal Order).  The ALJ concluded that Petitioner was not entitled to a hearing because Petitioner filed its request late and without good cause to extend the time for filing.  For the reasons explained below, we sustain the Dismissal Order.

Legal Background

To participate in the Medicare program, SNFs like Petitioner must be in “substantial compliance” with participation requirements in 42 C.F.R. Part 483, subpart B.  Social Security Act (Act) § 1819(h); 42 C.F.R. §§ 483.1, 488.400; *see*42 C.F.R. § 488.301 (defining “Substantial compliance”).  State survey agencies, by agreement with the Secretary of Health and Human Services, verify compliance through onsite surveys.  Act §§ 1819(g), 1864(a); 42 C.F.R. §§ 488.10, 488.11.  CMS is authorized to impose remedies, including civil money penalties (CMPs), on facilities found to be in “noncompliance.”  42 C.F.R. §§ 488.301 (defining “Noncompliance”); 488.400, 488.402(b)-(c), 488.406, 488.430.

CMS must give an affected SNF written notice of an initial determination to impose a CMP, and within 60 days after receiving CMS’s notice the affected SNF may request a hearing with an ALJ.  *Id*. §§ 488.406(a)(3), 488.845(c), 498.3(b)(13), 498.20(a), 498.40(a).  The notice of initial determination is presumptively received “5 days after the date on the notice unless there is a showing that it was, in fact, received earlier or later.”  *Id*.§ 498.22(b)(3); *see id.* § 498.40(a)(2) (cross-referencing 42 C.F.R. § 498.22(b)(3)).

A SNF that misses the 60-day deadline for filing a hearing request “may file with the ALJ a written request for extension of time stating the reasons why the request was not filed timely,” and the ALJ may extend the filing deadline for “good cause shown.”  *Id*. §§ 498.40(c), 498.70(c).  If an ALJ dismisses a hearing request, the dissatisfied party may

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request review by the Departmental Appeals Board (Board).  *Id*. §§ 498.80, 498.82(a).

Case Background1

***A.     The 2020 survey and subsequent notices***

The Illinois Department of Public Health (IDPH) completed a survey of Petitioner (a SNF located in Champaign, Illinois) on November 17, 2020, and determined Petitioner was not in substantial compliance with the infection control requirements of 42 C.F.R. § 483.80.  Dismissal Order at 1; CMS Ex. 1, at 1.  A letter dated November 28, 2020, informed Petitioner that IDPH was imposing various remedies and recommending that CMS impose a CMP.  CMS Ex. 1, at 1-4.

On May 10, 2021, CMS issued a six-page letter (the CMS Initial Determination) notifying Petitioner, “By Fax,” that, based on IDPH’s survey findings, Petitioner was not in substantial compliance with 42 C.F.R. § 483.80, and CMS was imposing a CMP.  Dismissal Order at 1-2; CMS Ex. 2, at 1.   The total CMP was $191,230 for the period from October 28, 2020, through December 7, 2020.  Dismissal Order at 2; CMS Ex. 2, at 2. The CMS Initial Determination gave Petitioner notice of its right to request a hearing before an ALJ and instructions on how to file such a request.  CMS Ex. 2, at 4-6.  The instructions warned in conspicuous typeface that a “**request for a hearing must be filed *no later than 60 days* from the date of receipt of this notice**,” and provided phone numbers for two CMS representatives to address “any questions.”  Dismissal Order at 2 (underlining replaced with italics); CMS Ex. 2, at 6 (same).

On June 1, 2022, CMS issued another letter (the Second CMS Notice), “By Fax Only,” notifying Petitioner that the CMP imposed per the CMS Initial Determination was due and payable on June 26, 2022.  Dismissal Order at 2; CMS Ex. 5, at 2.  CMS used the same fax number previously used to transmit the CMS Initial Determination, and Petitioner received the Second CMS Notice on June 1, 2022, the same day that CMS faxed it.  Dismissal Order at 6; CMS Ex. 3 (May 10, 2021 fax cover sheet confirming successful transmission); CMS Ex. 4 (confirmation of same transmission); P. Ex. C (June 1, 2022 fax cover sheet with header confirming receipt at same fax number).

***B.     Petitioner’s Request for Hearing and CMS’s Motion to Dismiss***

On July 8, 2022, Petitioner requested an ALJ hearing to contest the alleged deficiencies.  Request for Hearing (RFH) at 1.  Petitioner attached six exhibits, including written testimony (in the form of duly sworn declarations or affidavits) from M.S., who was

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General Counsel for Petersen Health Care (General Counsel), and I.B., who was Petitioner’s former Administrator (Former Administrator) in 2020 and 2021.  P. Exs. A-F; *see*Standing Pre-Hr’g Order at 8 (concerning written direct testimony).  Petitioner claimed that it received the CMS Initial Determination imposing a CMP and advising of Petitioner’s appeal rights on June 1, 2022, and “did not receive prior notice of the CMP imposed via facsimile.”  RFH at 1.  Petitioner did not seek extension of its filing deadline based on good cause, per 42 C.F.R. § 498.40(c).  Dismissal Order at 2.  Instead, Petitioner asked that the ALJ “please consider this request for hearing as timely as the facility is appealing within 60 days of receipt of the May 10, 2021 notice.”  RFH at 1.

CMS moved for dismissal because Petitioner’s hearing request was “more than a year late” and Petitioner had not presented good cause for its late filing.  CMS’ Mot. to Dismiss at 1.  CMS asserted it “sent the May 10, 2021, [CMS Initial Determination] by fax and received confirmation of its successful transmission, which gives rise to the regulatory presumption of receipt” under 42 C.F.R. § 498.22(b)(3).  *Id.* at 7.  Therefore, CMS contended, the “imposition of all remedies is now final and cannot be appealed,” no due process violation existed, and equitable relief was unavailable.  *Id.* at 8-9.  CMS filed seven supporting exhibits.  Dismissal Order at 3; CMS Exs. 1-7.  They included the CMS Initial Determination, its fax cover sheet, and a “fax confirmation sheet that CMS received show[ing] that the fax successfully transmitted 8 pages to [P]etitioner’s Administrator ... on May 10, 2021,” at the same fax number posted on the facility’s website.  CMS’ Mot. to Dismiss at 3, 5; CMS Exs. 2-4.

Petitioner replied that “there is good cause for the late filing of [Petitioner’s] Request for Hearing,” so it “should not be dismissed.”  P. Reply to Mot. to Dismiss at 6.  Petitioner argued it did not receive timely notice of the remedies being imposed, CMS should “attempt to rectify the deficiencies regarding proper notice,” and dismissal would deny Petitioner due process.  *Id.*at 3-6 (emphasis omitted).  Petitioner filed six exhibits, including the two previously submitted declarations of the General Counsel and Former Administrator.  Dismissal Order at 3; P. Exs. 4-5.  The General Counsel claimed “significant knowledge” of receipt of CMS correspondence “by our facilities, including [Petitioner],” and stated that on May 20, 2021, a fax containing the CMS Initial Determination “was not received at the facility.”  P. Ex. 4, ¶¶ 1, 3.  The General Counsel explained that ordinarily, “when a facility receives notification of a penalty being imposed by CMS, the Administrator of the facility will alert ... the General Counsel via email,” and the Second CMS Notice “was the first notification [Petitioner] received” of the CMP.  *Id.*, ¶¶ 4, 6.  The Former Administrator claimed a “custom and practice that, when I have received correspondence from CMS directly to the facility, I would always scan the documents and email them to” persons including “the General Counsel,” and “I did not receive any correspondence from CMS ... via facsimile.”  P. Ex. 5, ¶¶ 4, 6.  Petitioner criticized fax transmission as “outdated and inefficient,” complained of perceived shortcomings in CMS’s fax transmittal documentation, and questioned why the

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CMS Initial Determination was not uploaded via the ePOC system.2  P. Reply to Mot. to Dismiss at 3-4.

***C.     The ALJ Dismissal***

The ALJ ruled that, “[b]ecause Petitioner filed its request for hearing nearly one year late and has not made a showing of good cause for an extension of the deadline to file a request for hearing, I dismiss the request for hearing.”  Dismissal Order at 1.

The ALJ found Petitioner’s written testimony unpersuasive.  The General Counsel “did not state that she works on site at the facility ... or was present at the facility on May 10, 2021,” or “explain how she has personal knowledge that” the facility did not receive the CMS Initial Determination allegedly faxed on that date.  *Id.* at 4.  The General Counsel’s declaration also “did not explain whether she or anyone else investigated the matter” or “address the possibility that she did not receive an email from the administrator on May 10, 2021, because the administrator did not comply with established protocol.”  *Id.* at 4 & n.8.  “At most,” this declaration “established that the administrator did not notify [the] General Counsel ... of the facility’s receipt of” the CMS Initial Determination.  *Id*. at 4-5.  The ALJ similarly found the Former Administrator’s declaration was “conspicuously silent regarding whether [the Former Administrator] was present at Petitioner’s facility on May 10, 2021,” and it offered no “insight into the facility’s process for monitoring incoming fax correspondence and ensuring its delivery to the appropriate recipient.”  *Id.* at 5.  The Former Administrator also did not explain whether any investigation (including staff interviews or record searches) took place into “whether any personnel retrieved an incoming fax transmission on May 10, 2021.”  *Id.*

The ALJ considered Petitioner’s other evidence and arguments to be equally unpersuasive.  Documentation that Petitioner received and responded to a February 1, 2021 notice from IDPH (not CMS) was “neither relevant nor material to the question of whether Petitioner received notice of the [CMS Initial Determination] on May 10, 2021.”  *Id.*(discussing P. Exs. 1-2).  Concerning Petitioner’s submission of an apparent ePOC screenshot, the ALJ did “not question Petitioner’s familiarity with the ePOC system,” but concluded Petitioner’s apparent reliance on ePOC established no impropriety or defect in CMS’s service of the CMS Initial Determination by fax.  *Id.* at 6 (discussing P. Exs. 4-6).  The ALJ cited authority that CMS’s transmittal of notices by fax was permissible, and rejected Petitioner’s “single” and “non-precedential” contrary case.  *Id.* at 6 & n.10.

The ALJ found CMS’s evidence that Petitioner received the CMS Initial Determination on May 10, 2021, by fax, to be “compelling” and unrebutted.  *Id.* at 7.  CMS filed

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exhibits showing that it successfully sent the CMS Initial Determination “via fax at approximately 2:45 pm on May 10, 2021,” to “the correct incoming fax number,” and “successfully transmitted a subsequent notice to the same fax line on June 1, 2022.”  *Id.* at 6 (discussing CMS’ Mot. to Dismiss at 3, CMS Exs. 3-4, 6, and P. Ex. C at 1).  Petitioner offered no rebuttal evidence “such as logs” or “witness declarations from the personnel who were responsible for retrieving and distributing incoming fax transmissions,” or “protocols for handling incoming fax transmissions.”  *Id.* at 7.  The ALJ rejected, as “unsupported speculation,” Petitioner’s arguments that a “9” prefix to the fax number on May 10, 2021, “may have impacted the delivery of the fax,” and that its duration of between seven and eight minutes “should have alerted the sender that there could have been an issue.”  *Id.* (quoting P. Reply to Mot. to Dismiss at 4). The ALJ observed that the “9” prefix “is merely a commonplace requirement to dial an outside line,” and Petitioner presented no “evidence of an ideal transmission time for an 8-page fax, or that the length of the transmission somehow invalidates a system-generated report of a successful transmission.”  *Id.*  “The evidence establishes,” the ALJ found, “that CMS timely notified Petitioner of the May 10, 2021 initial determination that same day,” after which Petitioner “had 60 days to file a request for hearing,” and Petitioner “has not offered any probative evidence” to the contrary.  *Id.* at 8.

“Therefore,” the ALJ concluded, “Petitioner was required to file its request for hearing no later than July 9, 2021,” but had not done so or “made any showing of good cause warranting an extension of the filing deadline.”  *Id.*  Consequently, the ALJ dismissed Petitioner’s hearing request.  *Id.*

Standard of Review

The Board reviews a disputed finding of fact to determine whether it is supported by substantial evidence on the record as a whole and a disputed conclusion of law to determine whether it is erroneous.  *See**Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s Participation in the Medicare and Medicaid Programs* (*Guidelines*), “Completion of the Review Process,” ¶ (c), (last visited Dec. 14, 2023), https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/participation/index.html?language=en.

Because 42 C.F.R. § 498.70 gives an ALJ discretion whether or not to dismiss a hearing request, the Board reviews a dismissal under that regulation for abuse of discretion.  *Transnet Home Grp.*, DAB No. 3027, at 5 (2020); *MedStar Health, Inc.*, DAB No. 2684, at 5, 7-8 (2016); *High Tech Home Health, Inc.*, DAB No. 2105, at 8 (2007), *aff’d*, Civ. No. 07-80940 (S.D. Fla. Aug. 15, 2008).  We review a “good cause” determination under section 498.40(c)(2) for abuse of discretion also.  *New Grove Manor*, DAB No. 3090, at 6 (2023); *Hillcrest Healthcare, L.L.C.*, DAB No. 1879, at 5 (2003).

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Analysis

Petitioner timely asked the Board to vacate the Dismissal Order because Petitioner “disagrees with the ALJ’s finding that there was no good cause for the late filing of its Request for Hearing.”  Request for Review (RR) at 1.  Petitioner contends it did not receive notice from CMS on May 10, 2021, and therefore had good cause to file its hearing request late.  *Id.* at 2-5; P.’s Reply to CMS Resp. to P.’s RR at 1-2.  As support, Petitioner relies particularly on the affidavits of the General Counsel and Former Administrator, and also argues that “[f]ax is not the most efficient or standard way of relaying information” under the relevant circumstances.  RR at 3-4; P.’s Reply to CMS Resp. to P.’s RR at 1-3.  Petitioner further contends that, when making the good cause determination, the ALJ failed to consider all relevant circumstances, including Petitioner’s procedures for handling incoming faxes and response to other survey-related correspondence.  RR at 5-6.

CMS counters that “none of [Petitioner]’s arguments have merit.”  CMS’ Resp. to P.’s RR at 6.   CMS argues that substantial and unrebutted evidence supports the ALJ’s finding that Petitioner received the CMS Initial Determination on the date it was faxed, May 10, 2021, and the ALJ rightly rejected Petitioner’s complaints about fax transmittals.  *Id.* at 6-15.  CMS further asserts that the ALJ did not err in concluding that Petitioner “failed to establish good cause for its untimely appeal,” or in “holding that [Petitioner]’s responses to other notices were not relevant or material” evidence.  *Id.*at 6. “Because the ALJ did not abuse her discretion in dismissing the case,” CMS contends, the Board should affirm the Dismissal Order.  *Id.*

For the reasons explained below, we reject Petitioner’s arguments and affirm the Dismissal Order.  As the ALJ observed, Petitioner’s arguments blur two distinct issues:  first, whether Petitioner timely requested an ALJ hearing before the deadline; and second, assuming Petitioner missed that deadline, whether good cause existed for an extension of time.  *See*Dismissal Order at 3 n.4 (noting that Petitioner “changed its approach” during briefing from “maintaining its position that it filed a timely hearing request within 60 days of receipt,” to “primarily argu[ing] there is good cause for a late filing and extension of the deadline”).  Addressing those issues together, the ALJ ruled that “Petitioner has not shown it did not receive the May 10, 2021 initial determination that same day, and it has not otherwise made any showing of good cause warranting an extension of the filing deadline.”  *Id.* at 8.  We affirm that determination as supported by substantial evidence, free of legal error, and within the ALJ’s sound discretion.

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***A.     The ALJ did not err in determining that Petitioner’s hearing request was untimely.***

***1.     The ALJ did not err in finding that Petitioner received the CMS Initial Determination by fax on May 10, 2021.***

Substantial evidence supports the ALJ’s finding that CMS successfully transmitted the CMS Initial Determination on May 10, 2021, to Petitioner’s correct fax number.  On May 10, 2021, CMS issued clear notice to Petitioner, “By Fax,” of the CMP imposed and the 60-day deadline after receipt for requesting an ALJ hearing.  CMS Ex. 2, at 1-2, 4-6.  The record shows CMS successfully transmitted this CMS Initial Determination – and also the Second CMS Notice, which Petitioner admittedly received the day it was faxed – to the same fax number listed on Petitioner’s own website.  Dismissal Order at 6; CMS Exs. 3-7; CMS’ Mot. to Dismiss at 3; P. Ex. C at 1.  The ALJ reasonably inferred that Petitioner received both correctly directed faxes on their documented transmission dates, and reasonably rejected Petitioner’s contrary theories as “unsupported speculation.”  Dismissal Order at 7; *see Wax David Flowers*, DAB No. 3039, at 8 (2021) (“Inferences based on speculation are not reasonable.”); *accord Sylvie Wamba*, DAB No. 3068, at 6 (2022). “Our role is not to reweigh the evidence ourselves or to substitute our own evaluation, but rather to determine whether the findings reached by the ALJ are supported by substantial evidence viewed in the context of the entire record.”  *Golden Living Ctr. – Frankfort*, DAB No. 2296, at 9 (2009), *aff’d*, 656 F.3d 421 (6th Cir. 2011).  “Evidence sufficient to support a factual finding under the ‘substantial evidence’ standard need only be ‘more than a mere scintilla,’ meaning ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”  *Mercy Home Care, Sioux City*, DAB No. 3044, at 11 (2021) (citing *Richardson v. Perales*, 402 U.S. 389, 401 (1971)).  The record evidence that Petitioner received the faxed CMS Initial Determination on May 10, 2021, meets this standard.

Petitioner continues to rely on the General Counsel’s and Former Administrator’s declarations to disprove receipt of the CMS Initial Determination on May 10, 2021, but the ALJ reasonably discounted that evidence.  *See*RR at 2-3, P.’s Reply to CMS Resp. to P.’s RR at 2-3.  We have held that the effect of 42 C.F.R. § 498.22(b)(3) is of “placing the burden of proof on whichever party asserts actual receipt before or after the presumed date to make a showing to support that assertion.”  *Cary Health & Rehab. Ctr.*, DAB No. 1771, at 11 (2001).  Petitioner bears that burden here and has not met it.

The General Counsel’s assertion that CMS’s fax “was not received at the facility” does not conclusively establish non-receipt.  *See*P. Ex. 4, ¶ 3; *see also Transnet* at 5 (“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).”); *MedStar* at 7 (“In the absence of any other evidence, the mere assertion that Petitioner did not receive the ... determination ... , made by an ‘authorized official’

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not claiming any personal knowledge of the situation, is not probative evidence of the fact asserted.”); *cf. Allan L. Silverstein, M.D.*, DAB No. 2908, at 7 (2018) (holding ALJ reasonably concluded a “lawyer’s sworn statement that he did not receive” electronically transmitted notice “was insufficient to overcome the presumption” of receipt).

Similarly, the Former Administrator’s claims that “*I* have never received notices from CMS by facsimile,” and “*I* did not receive any correspondence from CMS ... via facsimile” do not establish that *no one else at the* *facility*received such a fax (or whether anyone even investigated that possibility).  *See*P. Ex. 5, ¶¶ 3, 6 (emphasis added); *see also*42 C.F.R. § 488.434(a)(1) (stating “CMS sends a written notice of the penalty to the *facility*”) (emphasis added); CMS Ex. 2 (showing CMS Initial Determination addressed to “Illini Heritage Rehab & HC,” secondarily to “Administrator”).  As the ALJ summarized, the Former Administrator’s testimony “lacks any indicia of personal or investigatory knowledge of whether *Petitioner* received an incoming fax transmission from CMS on May 10, 2021.”  Dismissal Order at 5.

The ALJ also reasonably considered other factual gaps in Petitioner’s case.  Petitioner initially claimed that it “received the May 10, 2021 letter advising of [Petitioner’s] appeal rights” – that is, the CMS Initial Determination – “on June 1, 2022,” citing the General Counsel’s declaration as factual support.  RFH at 1 (citing P. Ex. A, subsequently redesignated as P. Ex. 4).  Yet Petitioner later claimed that CMS “emailed a copy of” the CMS Initial Determination “to a representative for [Petitioner] on June 6, 2022,” which “was the first time that this letter had been reviewed by [Petitioner].”  P. Reply to Mot. to Dismiss at 2; P. Ex. 3 (June 6, 2022 email from CMS).  In other words, as the ALJ summarized, Petitioner argued “that it did not receive the May 10, 2021 initial determination until either June 1 ... *or* June 6.”  Dismissal Order at 3 n.4 (emphasis added).  The ALJ permissibly found that “Petitioner’s inconsistency in its alleged date of receipt” of the CMS Initial Determination, which is a key fact in this case, “does not bolster its arguments.”  *See* Dismissal Order at 4 n.6; *see also Illinois Knights Templar Home*, DAB No. 2369, at 5-6 (2011) (confirming that ALJ may base credibility assessments on factors including testimony’s lack of record support and inconsistency with other evidence).

We find no clear error in, and accordingly defer to, the ALJ’s determination that Petitioner’s evidence lacked sufficient detail, credibility, and weight to rebut substantial record evidence of successful fax transmittal of the CMS Initial Determination to Petitioner on May 10, 2021.  *See*Dismissal Order at 3-8; *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904, at 27 (2004) (“Absent clear error, we defer to the findings of the ALJ on weight and credibility of testimony.”), *aff’d*, 129 F. App’x 181 (6th Cir. 2005) (per curiam).

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***2.     The ALJ committed no legal error in concluding that Petitioner’s hearing request was untimely and CMS’s transmission of notice by fax was permissible.***

Having supportably found that CMS successfully faxed the CMS Initial Determination to Petitioner on May 10, 2021, the ALJ correctly concluded that 42 C.F.R. § 498.40(a)(2) required Petitioner “to file its request for hearing no later than July 9, 2021.”  *See*Dismissal Order at 8.  The ALJ unerringly construed and applied section 498.40(a)(2), which undisputedly requires a party to request a hearing “in writing within 60 days from receipt of the notice of initial ... determination.”

The ALJ also did not err in concluding that fax delivery of the CMS Initial Determination was legally permissible.  *See*Dismissal Order at 6 (stating “I am unaware of any authority prohibiting CMS from serving an initial determination via facsimile”).  The general rule for sending written notice of a CMP to a SNF like Petitioner, *see* 42 C.F.R. § 488.434(a)(1), is that CMS “mails” such notice, *see* 42 C.F.R. § 498.20(a)(1).  “While the word ‘mails’ as used in subsection 498.20(a) may be interpreted as intended to refer to U.S. postal mail, we do not conclude that the term can only refer to U.S. government postal mail, to the exclusion of all other means of notice.”  *Fairway Med. Clinic & Shadow Creek Med. Clinic*, DAB No. 2811, at 8-9 (2017), *aff’d sub nom. Mussaji v. United States Dep’t of Health & Hum. Servs.*, 741 Fed. Appx. 222 (5th Cir. 2018).  CMS has rejected by rulemaking a suggestion that CMP notices be sent by certified mail, as this “would preclude a *valid notice sent via other means, such as telefax*, telegram, commercial overnight delivery services, *or other means that may be faster*.”  Final Rule, *Medicare and Medicaid Programs; Survey, Certification and Enforcement of Skilled Nursing Facilities and Nursing Facilities*, 59 Fed. Reg. 56,116, 56,170, 56,200-01 (Nov. 10, 1994) (emphasis added).  Accordingly, the Board recognizes that CMS may use notice methods other than mail, including fax, when those methods can and do accomplish the essential due process purpose of notice.  *See**New Grove*at 6 n.6 (“[T]he Board has recognized the validity of CMS notice by means other than mail (e.g., facsimile), where the method of notice used was capable of accomplishing the essential due process purpose of notice and in fact accomplished notice.”);*Fairway* at 9 (“In a modern era of electronic mailing and messaging,” the “core question for due process is whether the transmission method is as capable [as postal mail] of accomplishing the essential purpose of notice.”); *Riverview Village*, DAB No. 1840, at 8 (2002) (“We do not rule out the use of a FAX for notice purposes where the FAX clearly and unambiguously specifies that it is the notice document.”).  A “notice of appeal rights could be served by fax alone, so long as the document served is clearly the notice document,” as it clearly was here.  *See* *Fairway* at 10 (interpreting *Riverview*).  The faxed CMS Initial Determination gave Petitioner clear notice, through boldface headings and plain text, of the relevant survey results, enforcement remedies, and appeal rights, including the 60-day deadline for requesting an ALJ hearing.  CMS Ex. 2, at 1-2, 4-6.

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The ALJ also did not err in disregarding Petitioner’s complaints that sending the CMS Initial Determination by fax, while permissible, was not the best available option.  Petitioner admittedly “is not suggesting that the only acceptable way to receive notice is through the United States Postal Service,” yet asserts that “[f]ax is not the most efficient or standard way of relaying information,” especially about a “significant” CMP imposed on a SNF “during a global pandemic.”  RR. at 3-4.  This unsupported assertion by counsel is not competent evidence that service by fax was inferior to other methods.  *See Atty’s Parti Expo, Inc.*, DAB No. 2925, at 8 (2019) (“[A]rguments by counsel are not evidence.”); *Community Nursing Home*, DAB No. 1807, at 13 n. 5 (2002) (“Counsel’s assertions ... are not competent evidence and are properly disregarded.”).  Petitioner’s unsupported complaints of inefficiency cannot invalidate fax service of notice – not only, but perhaps *particularly*, during a global pandemic when fax transmission “may be faster” than mail delivery.  *See*59 Fed. Reg. at 56,170, 56,200-01 (stating that “telefax ... may be faster” than mail); *see also Fairway*at 12 n.8 (noting that communication methods other than U.S. mail, “e.g., email or fax, should generally result in delivery in real time, or in less time than it takes for mail to be delivered by the postal service”).

Furthermore, the ALJ did not err in rejecting Petitioner’s reliance on *Corpus Christi Nursing and Rehabilitation Center*, DAB CR3640 (2015), despite Petitioner’s claims that *Corpus Christi* and this case share “incredibly similar” facts and “striking similarities.”  *See*P. Reply to Mot. to Dismiss at 4; RR at 4.  In *Corpus Christi*, an ALJ found that CMS sent a notice of initial determination by facsimile, and concluded that CMS failed to serve the notice “by mail as required by 42 C.F.R. § 498.20(a)(l).”  *Corpus Christi,* DAB CR3640, at 4, 7.  “Accordingly,” the ALJ concluded, “CMS never accomplished proper service, and the running of the 60-day period for Petitioner to request ALJ review was not triggered.”  *Id.* at 7.  However, “ALJ decisions are not precedential and do not bind other ALJs or the Board.”  *Robert Hadley Gross*, DAB No. 2807, at 7 (2017), *aff’d,* No. 1:17-cv-01801, 2023 WL 5094912 (D.D.C. Aug. 9, 2023); *see Cornelius M. Donohue, DPM*, DAB No. 2888, at 7 (2018) (observing that an ALJ decision allegedly “nearly identical” to petitioner’s, but “which was not appealed to the Board, is not precedential and does not bind other ALJs or the Board”).  Even if we were to consider *Corpus Christi*, its conclusion that CMS must deliver notice of a CMP by mail, not fax, is inconsistent with binding Board precedent issued after *Corpus Christi*was decided.  *Compare Corpus Christi*, DAB CR3640, at 5-6, *with* *Fairway*at 8-10.  As the ALJ correctly noted, *Corpus Christi*’s conclusion is “wholly inconsistent with” CMS “regulation, rulemaking, [and] policy,” as well as Board decisions.  *See*Dismissal Order at 6 n.10; *see also id.*at 6 (citing *Fairway* at 10; *Riverview* at 8; 59 Fed. Reg. 56,116, 56,200-01 (Nov. 10, 1994); State Operations Manual (SOM), CMS Pub. 100-07, Ch. 7, § 7305.4 (Rev. 63, effective Sept. 10, 2010)).

For these reasons, the ALJ committed no legal error in concluding that Petitioner’s hearing request was untimely and CMS’s transmission of notice by fax was permissible.

Page 11

***B.     The ALJ did not err in determining that no good cause existed for an extension of Petitioner’s time to request an ALJ hearing.***

Having considered Petitioner’s position that its allegedly late receipt of the CMS Initial Determination “amounts to good cause for an extension of the deadline to file its request for hearing,” the ALJ permissibly concluded that “[i]t does not.”  *See*Dismissal Order at 8.  The ALJ determined, with emphasis, that “**Petitioner submitted its untimely request for hearing approximately 14 months after it received the May 10, 2021 initial determination, and it has not demonstrated good cause for an extension of the filing deadline.**”  *Id.* at 3.  That discretionary decision violated no applicable standards.  The 42 C.F.R. Part 498 regulations do not define “good cause,” and the Board has never attempted to define the term comprehensively, including in the context of an ALJ’s determination whether good cause exists to extend the time for filing a hearing request per 42 C.F.R. § 498.40(c)(2).  *See West Side House LTC Facility*, DAB No. 2791, at 6 (2017); *Hillcrest* at 5.  “Instead, the Board has indicated that ALJs should make that determination based on the relevant circumstances in particular cases.”  *JP Mishra Cardiology, P.C.*, DAB No. 2967, at 11 (2019); *see New Grove* at 11 (stating determination whether good cause exists “is a decision that is committed to the ALJ’s broad discretion on a case-by-case basis”).  “If good cause is not shown,” as the ALJ reasonably determined here, then “an ALJ has the discretion to deny a request to extend the filing deadline.”  *See New Grove* at 2 (citing *West Side* at 6).

Petitioner protests that the ALJ failed to consider the relevant circumstances when making the good cause determination, and erred “in her consideration of all of the facts,” but those protests are unavailing.  *See* RR at 5-6.  As Petitioner admits, an ALJ has “significant discretion about what constitutes good cause for late filing,” RR at 3, and as discussed above, the ALJ did carefully consider the facts of this case.  Where, as here, a petitioner asserts that it did not receive timely notice of appeal rights, but submits insufficient supporting evidence, an ALJ reasonably may find good cause for an extension to be lacking.  *See*, *e.g.*,*NBM Healthcare, Inc.*, DAB No. 2477 at 4 (2012) (“The evidence in the record is insufficient to support [petitioner’s] argument that all of its corporate officers were unaware of the events in this case and thus does not demonstrate good cause to vacate the dismissal of it[s] hearing request.”).

Petitioner objects to the ALJ’s statement that Petitioner did not “submit evidence of its protocols for handling incoming fax transmissions,” but this objection also establishes no error by the ALJ.  *See*RR at 5 (quoting Dismissal Order at 7); *see also*Dismissal Order at 7 n.11 (“I reiterate that Petitioner did not submit any evidence regarding its procedures for handling incoming fax transmissions.”).  Petitioner asserts that both the General Counsel’s and Former Administrator’s declarations “discussed the protocol followed for faxes,” RR at 5, but that assertion is inaccurate.  The General Counsel declared that a facility alerts the General Counsel and others “[i]n the ordinary course of business, when a facility receives notification of a penalty being imposed by CMS,” but did not state

Page 12

Petitioner’s protocol for handling incoming faxes in particular.  P. Ex. 4, ¶ 4.  The Former Administrator declared that Petitioner had a “custom and practice” for handling “correspondence from CMS,” but stated that “[t]o my knowledge, all correspondence from this survey was received in the ePOC system or by USPS” and denied receiving “any correspondence from CMS ... via facsimile.”  P. Ex. 5, ¶¶ 4-6.  The ALJ accurately noted that Petitioner “did not identify the specific personnel who would have retrieved an incoming fax transmission on May 10, 2021, nor did it submit any logs of incoming fax transmissions.”  Dismissal Order at 7 n.11.  The ALJ also noted that Petitioner “did not address its protocol for directing a fax transmission to the proper recipient,” for example by “hand delivery to the recipient” or “placement in a mailbox.”  *Id.*  We see no error in the ALJ’s finding that Petitioner’s evidence did not detail its protocols for handling incoming *faxes*specifically (rather than CMS notices generally).

Petitioner maintains that it is “relevant and material to the totality of the circumstances relating to the issue of good cause for late filing” that Petitioner “had received and responded to all other correspondence relating to this survey,” RR at 6, but the ALJ justifiably disagreed.  Evidence that Petitioner promptly handled some correspondence does not prove Petitioner’s non-receipt of other correspondence; therefore, such evidence, even if credited, could not materially alter the case’s outcome.  “The ALJ’s responsibility is to consider all evidence **material** to the outcome (including evidence on the material issues that might cut against the conclusion), but not necessarily all evidence which might have some relevance but could not materially alter the outcome.”  *Mercy Home* at 14.  The ALJ met that responsibility and committed no error in concluding that Petitioner’s evidence of punctuality in handling other survey-related correspondence was “neither relevant nor material” to the question whether Petitioner received the CMS Initial Determination by fax on May 10, 2021.  *See*Dismissal Order at 5.

In sum, “we generally defer to the ALJ’s assessment of the weight to give evidence,” and Petitioner gives us no good reason to depart from that general deference in this case.  *See Avalon Place Trinity*, DAB No. 2819, at 14 (2017), *aff’d*, 761 Fed. Appx. 407 (5th Cir. 2019) (per curiam).  We recognize that Petitioner argues the ALJ’s “finding that there was no good cause” was “a prejudicial error of procedure.”  *See* RR at 1, 6.  We also recognize that “a prejudicial error of procedure (including an abuse of discretion under the law or applicable regulations)” is one valid basis for modifying, reversing, or remanding an ALJ decision.  *Guidelines*, “Completion of the Review Process,” ¶ (c).  However, in alleging procedural error, Petitioner essentially “disagrees” with the ALJ’s weighing of the evidence and resultant findings.  *See*RR at 1.  This is not a valid basis for relief, because “the Board’s role as an appellate body is not to re-weigh evidence or substitute its own evaluation of evidence for that of the ALJ.”  *Life Care Ctr. of Bardstown*, DAB No. 2479, at 15 (2012),*aff’d*, 535 F. App’x 468 (6th Cir. 2013).

The ALJ rationally determined, from record-supported factual findings, that Petitioner did not establish “good cause” under any reasonable definition of that term.  *See NBM*

Page 13

*Healthcare* at 3-4 (stating that the Board had no need to decide exactly the scope of an ALJ’s discretion because the facts did not meet any reasonable definition of good cause);*Brookside Rehab. & Care Ctr.*, DAB No. 2094, at 7 n.7 (2007) (same); *see also*Dismissal Order at 3 (quoting *NBM Healthcare* at 3).  Under the applicable “abuse of discretion” standard, we may not substitute our judgment for the ALJ’s.  *See Retail LLC*, DAB No. 2660, at 9-10, 14 (2015);*Vincent Baratta, M.D.*, DAB No. 1172, at 9 n.5 (1990).  Instead, we “consider only whether the decision maker has articulated a reasonable basis for the decision under review, not whether it was the *only* reasonable decision.”  *Retail LLC* at 10 (underlining replaced with italics) (citing *River East Econ. Revitalization Corp.*, DAB No. 2087, at 9 (2007)).  In reviewing an ALJ’s discretionary dismissal, the Board also “must balance the importance of preserving a party’s statutory hearing rights with the need for fairness, integrity, and timeliness in the processing of appeals.”  *Meridian Nursing & Rehab at Shrewsbury*, DAB No. 2504, at 8 (2013), *aff’d*, 555 F. App’x 177 (3d Cir. 2014).

Applying the controlling legal standards, we see no abuse of discretion.  The ALJ reasonably ruled that “Petitioner has not shown it did not receive the May 10, 2021 initial determination that same day, and it has not otherwise made any showing of good cause warranting an extension of the filing deadline.”  Dismissal Order at 8.  Again, we do not “substitute our judgment for that of the ALJ,” and we hold that “the ALJ has articulated a reasonable basis for the decision under review,” regardless of “whether it was the only reasonable decision.”  *See Retail LLC* at 14.  “Where, as here, Petitioner received clear notice of its right to appeal and when it had to appeal, we see no ALJ abuse of discretion in not extending the due date for appeal.” *Charles S. Pewitt, D.O.,* DAB No. 3009, at 13 (2020); *see Waterfront Terrace, Inc.*, DAB No. 2320, at 6-8 (2010) (holding that the ALJ did not abuse discretion in finding no good cause for extension of appeal deadline where operative notice reasonably informed petitioner of its appeal rights).  Nor has Petitioner established any error in the ALJ’s discretionary balancing of “the importance of preserving a party’s statutory hearing rights” against “the need for fairness, integrity, and timeliness in the processing of appeals.”  *See Meridian Nursing* at 8.

For these reasons, the ALJ did not err in determining that no good cause existed for an extension of Petitioner’s time to request a hearing.

Page 14

Conclusion

We affirm the ALJ’s Dismissal Order.

Endnotes

1  This section is drawn from the Dismissal Order and the record before the ALJ.

2  Petitioner and the ALJ identify ePOC as the “Electronic Plan of Correction” system.  P. Reply to Mot. to Dismiss at 1; Dismissal Order at 6.  CMS calls ePOC its “electronic point of access system.”  CMS’ Mot. to Dismiss at 7.
  
          /s/
        Christopher S. Randolph

                      Board Member
          /s/
        Constance B. Tobias

                      Board Member
          /s/
        Kathleen E. Wherthey

                      Presiding Board Member Back to top
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