Prescott v. Mo. Dep't of Soc. Servs.

• Decision Date: 30 June 2015
• Docket Number: WD 77389
• Parties: Jason A. Prescott, Appellant, v. Missouri Department of Social Services, Respondent.
• Court: Missouri Court of Appeals

464 S.W.3d 560

Jason A. Prescott, Appellant

v.Missouri Department of Social Services, Respondent.

WD 77389

Missouri Court of Appeals, Western District.

Filed: June 30, 2015

Robert R. Harding, Jefferson City for appellant.

Corey E. Ranfranz, Jefferson City, for respondent.

Before Division Four: Alok Ahuja, C.J., Lisa White Hardwick, J., and Robert M. Clayton, III, Sp.J.

Opinion

Alok Ahuja, Chief Judge

Jason Prescott is a professional counselor who specializes in treating Medicaid-eligible mentally ill children. Following an audit, the Department of Social Services determined that Prescott had submitted unsubstantiated claims, and had been overpaid. The Administrative Hearing Commission (the “AHC”) dismissed Prescott's petition for review of the Department's decision, finding that his application was untimely. The circuit court affirmed the AHC's decision, and Prescott now appeals to this Court. We affirm.

Factual Background

Prescott's primary source of compensation for his counseling services is through the State-administered Medicaid program. In the Fall of 2011, the Department's Medicaid Audit and Compliance Unit audited Prescott. Prescott was unable to provide auditors with any supporting documentation for his claims for services performed in 2010, because of a computer failure. As a result, the Department sent a decision letter to Prescott by certified mail on October 31, 2011, finding that he had submitted false claims in the amount of $41,296 (“Decision Letter”). The disallowed claims constituted all of the funds Prescott had received from the Medicaid program in 2010.

Prescott alleges that he did not receive the Decision Letter until November 23, 2011. On that date, Prescott asserts that he found a postal slip in the bushes in front of his home, notifying him that the Postal Service had attempted to deliver a certified letter from the Department. Prescott contacted Toni Davis at the Department, whose name appeared on the slip, and asked her whether the Decision Letter was still available. Davis contacted the Post Office and confirmed that the letter was still available for pickup at Prescott's local post office. Davis called Prescott back, and informed him that the letter was available. Prescott retrieved the letter later on November 23, 2011.

As required by § 621.055,¹ the Decision Letter advised Prescott of his appeal rights. In relevant part, the letter stated:

This is a final decision regarding administration of the medical assistance program in Missouri. Missouri Statute, Section 208.156, RSMo (2000) provides for appeal of this decision.

If you were adversely affected by this decision, you may appeal this decision to the Administrative Hearing Commission. To appeal, you must file a petition within 30 days from the date of mailing or delivery of this decision, whichever is earlier.... If any such petition is sent by registered mail or certified mail, the petition will be deemed filed on the date it is mailed.

The date on which Prescott received the Decision Letter (November 23, 2011) was the day before Thanksgiving. Prescott had a pre-arranged, non-refundable vacation trip scheduled to begin on Thanksgiving Day. Prescott alleges that Davis told him that, “while she could not give him legal advice, [Prescott] would have 30 days from the date he received; i.e. picked up, the October 31 letter in which to file an appeal.” By affidavit, Davis denied that she said this to Prescott.

Upon return from his vacation, Prescott sent a letter to the Department on December 6, 2011, notifying it of his intention to seek AHC review. He then filed his petition for review with the AHC on December 12, 2011.

At some point following his receipt of the Decision Letter, Prescott asserts that he had his computer repaired, and was able to provide the Department with documentation supporting $35,032 of the claims which the Department had disallowed in the Decision Letter.

The Department filed a motion for involuntary dismissal of Prescott's administrative appeal, alleging that it was untimely under § 208.156.8. The AHC granted the Department's motion. It found that the Decision Letter was sent by certified mail on October 31, 2011, but that Prescott did not receive it until November 23, 2011. Prescott did not file his petition to appeal with the AHC until December 12, 2011, more than 30 days after the mailing of the Decision Letter. The AHC determined that, under § 208.156.8, it only had jurisdiction to hear appeals of Department decisions if the appeal was commenced within thirty days from the date of mailing of the Department's decision. As a result, the AHC determined that Prescott's petition for review was untimely, and it ordered the petition dismissed.

Prescott filed a petition for judicial review in the Circuit Court of Cole County. The circuit court affirmed the AHC's decision. Prescott now appeals to this Court.

Standard of Review

On appeal from a circuit court's review of an AHC decision, this Court reviews the AHC's decision, not the judgment of the circuit court. Psychare Mgmt., Inc. v. Dep't of Social Servs., 980 S.W.2d 311, 312 (Mo. banc 1998). “In reviewing the commission's decision, the Court may not determine the weight of the evidence or substitute its discretion for that of the administrative body; the Court's function is to determine primarily whether competent and substantial evidence upon the whole record supports the decision, whether the decision is arbitrary, capricious, or unreasonable, and whether the commission abused its discretion.” Id. Questions of law, however, are reviewed by this Court de novo. Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009).

Discussion

I.

Prescott's first Point raises an issue of statutory interpretation: he argues that the AHC erred in concluding that his appeal was untimely under § 208.156.8.

Section 208.156.8 states in pertinent part that a person providing services for which benefit payments are authorized under the Medicaid program

shall have thirty days from the date of mailing or delivery of a decision of the department of social services ... in which to file his petition for review with the administrative hearing commission....

(Emphasis added.) As a general proposition, “[t]he failure to comply with the statutory time limitations for appeal from an administrative agency decision, whether to another administrative body or to a circuit court, results in the lapse of subject matter jurisdiction and the loss of right of appeal.” Fayette No. 1, Inc. v. Mo. Dep't of Social Servs., 853 S.W.2d 393, 396 (Mo.App.W.D.1993) (citing Cmty. Fed. Sav. & Loan Ass'n v. Dir. of Revenue, 752 S.W.2d 794, 799 (Mo. banc 1988) ).

Prescott makes two interrelated arguments to support his claim that his petition for review was timely under § 208.156.8. He argues: (1) that the Department's use of certified mail to send the Decision Letter to him did not constitute “mailing,” but instead “delivery,” of the letter; and (2) even if the use of certified mail constituted “mailing,” that his petition for review was timely so long as it was filed either within thirty days of the date of mailing, or within thirty days of the date of delivery, of the letter. We conclude, to the contrary, that the Department's use of certified mail constituted a “mailing” of the Decision Letter within the meaning of § 208.156.8, and that the statute required Prescott to petition for review within thirty days of that mailing, not within thirty days of his receipt of the letter. The Decision Letter was mailed to Prescott on October 31, 2011 by certified mail, but he did not file his petition for review with the AHC until December 12, 2011; his petition was accordingly untimely under the statute.

A.

We first address Prescott's contention that the Department's use of certified mail to send him the Decision Letter did not constitute the “mailing” contemplated by § 208.156.8.

As the Supreme Court of the United States has recognized, use of certified mail for official notices may have significant benefits for governmental agencies, because “[u]sing certified mail provides the State with documentation of personal delivery and protection against false claims that notice was never received.”

Jones v. Flowers, 547 U.S. 220, 237, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). At the same time, however, “the use of certified mail might make actual notice less likely in some cases—the letter cannot be left like regular mail to be examined at the end of the day, and it can only be retrieved from the post office for a specified period of time.” Id. at 235, 126 S.Ct. 1708. Postal rules provide that pieces of certified mail “may not be opened or given to the recipient before the recipient signs and legibly prints his or her name on the delivery receipt (and return receipt, if applicable) and returns the receipt(s) to the USPS employee.” United States Postal Service, Domestic Mail Manual § 508.1.1.7.b (May 31, 2015). Thus, if the intended recipient of certified mail is not available at the time a mail carrier attempts to deliver it, a notice of attempted delivery is left at the recipient's address, the mail is returned to the post office, and the recipient has a limited period of time in which to retrieve the certified mail from the post office before it is returned to the sender.

Because of these restrictions on the delivery of certified mail, courts in other jurisdictions have held that where a statute or insurance policy requires that notice of cancellation of the policy be “mailed,” notice sent by certified mail does not comply with the “mailing” requirement, but instead constitutes an attempt at actual delivery which is effective only upon receipt.²

Under the statute at issue in this case, however, the certified mail sent to Prescott constituted “mailing” of the Decision Letter. We reach this conclusion based on several considerations. First, although § 208.156.8 specifies the time within which an aggrieved party must ...