Vizion One, Inc. v. Dist. of Columbia Dep't of Health Care Fin., No. 14-AA-1023

CitationNo. 14-AA-1023
Case DateOctober 05, 2017
CourtCourt of Appeals of Columbia District


No. 14-AA-1023
No. 14-AA-1024


Argued January 17, 2017
October 5, 2017

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

On Petitions for Review of Decisions of the District of Columbia Office of Administrative Hearings
(DHCF-147-14 and DHCF-191-14)

Donald M. Temple for petitioner.

Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for respondent.

Before THOMPSON and EASTERLY, Associate Judges, and REID, Senior Judge.

REID, Senior Judge: In these consolidated appeals petitioner, Vizion One, Incorporated ("Vizion One"), challenges decisions of an Administrative Law Judge ("ALJ") of the Office of Administrative Hearings ("OAH"). The decisions concerned actions taken against Vizion One by respondent, D.C. Department of

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Health Care Finance ("DHCF"). The first decision (Appeal No. 14-AA-1023) involved DHCF's suspension of Medicaid payments to Vizion One based on a "credible allegation of fraud"; Vizion One appealed that decision to OAH but the ALJ dismissed the appeal on the ground that it was untimely. The second decision (Appeal No. 14-AA-1024) concerned DHCF's "termination for convenience" of Vizion One's Medicaid Provider Agreement. The ALJ (1) rejected Vizion One's arguments that DHCF had terminated the provider agreement in bad faith and had violated Vizion One's due process rights, and (2) granted DHCF's cross-motion for summary adjudication and dismissed the case with prejudice. For the reasons stated below we affirm OAH's decision in Appeal No. 14-AA-1024, but we vacate OAH's decision dismissing Appeal No. 14-AA-1023 and remand that case to OAH for further proceedings, including an evidentiary hearing, on the merits of Vizion One's appeal.


A. DHCF's Letter of February 20, 2014, Vizion One's Response, and DHCF's Reply of March 26, 2014

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The record reveals the following. On February 21, 2014, DHCF hand delivered a letter, dated February 20, 2014, to Vizion One. The letter stated that DHCF "was informed that the owner, operator, or employee(s) of Vizion One [] ha[d] been arrested for health care fraud," and that this information constituted "a credible allegation of fraud for which an investigation is pending under the Medicaid program."1 Hence, under 42 C.F.R. § 455.23 (a), DHCF was "withholding all Medicaid payments due to [Vizion One] as a provider of home health services under the District [of Columbia's] Medicaid program."2 The payments were suspended, effective February 20, 2014. DHCF stated that "[i]n

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addition to [its] right to request administrative review by DHCF, [Vizion One] ha[d] the right to appeal [the suspension] decision by filing a written request with [OAH] . . . . for a hearing before an [ALJ] within fifteen (15) calendar days of receipt of this notice."3 The letter makes no mention of a "good cause" determination under 42 C.F.R. § 455.23 (a)(1) (2012).

At the time when Vizion One was notified that its Medicaid payments were suspended, it operated a multimillion dollar business with 1100-1200 clients, and over 1,000 personal care aides, nurses, and other staff. The federal regulation under which DHCF suspended payment to Vizion One specified that (1) "[t]he State Medicaid agency must suspend all Medicaid payments to a provider after the agency determines there is a credible allegation of fraud . . . unless the agency has good cause to not suspend payments or to suspend payment only in part[,]" (42 C.F.R. § 455.23 (a)(1)); (2) "[a] provider may request, and must be granted

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administrative review where State [including the District of Columbia] law so requires[,]" § 455.23 (a)(3); and (3) the notice of suspension must "[s]et forth the applicable State administrative appeals process and corresponding citations to State law[,]" § 455.23 (b)(2)(vi). While the letter informed Vizion One that it had the right to request an administrative review "within five (5) days of th[e] notice" and "the right to appeal this decision by filing a written request with the District of Columbia Office of Administrative Hearings" "within fifteen (15) calendar days of receipt of this notice, it was silent as to the District's "good cause" determination, the appeals process, and contained no citations to District law regarding the appeals process.

Vizion One timely invoked its right to an administrative review by submitting a written letter by email to DHCF on February 25, 2014. The letter asserted Vizion One's difficulty in preparing a response because DHCF had "seized" "virtually [Vizion One's] entire set of records." Vizion One declared that "no owner or management employee . . . ha[d] been arrested for, or charged with, health care fraud[,]" but that "one or more lower level former or current employees ha[d] been charged with colluding with several patients to defraud the Medicaid program, and [] [they] were arrested." The rest of the response set forth Vizion

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One's arguments and evidence for lifting the suspension, based on the "good cause" exception in 42 C.F.R. § 455.23 (a)(1), including the negative impact on Vizion One's ability to service its 1100 to 1200 clients and meet its $900,000 per week payroll.

About one month later, DHCF sent Vizion One another letter, dated March 26, 2014, responding to Vizion One's "letter dated February 25, 2014[,] regarding DHCF's decision to suspend Medicaid payments to Vizion One[]." DHCF addressed the letter to attorneys at Vizion One's first law firm; a "certificate of mailing" appears to be postmarked March 31, 2014. The March 26 letter stated that "an employee of Vizion One []" had been arrested and indicted on charges of "conspiracy to commit health care fraud in a scheme to defraud DC Medicaid out of more than $124,000," and that the indictment and seizure of Vizion One's records was "sufficient to meet the CFR standard for a credible allegation of fraud." The letter further stated: "We have reviewed your response to our notice of suspension of payments to Vizion One, Inc. and we have considered the good cause exception and whether to suspend payment in part and our position has not changed." DHCF declared that Vizion One's suspension would continue "until further notice." The letter advised Vizion One of its "right to request an appeal of

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[DCHF's] decision by filing a written request within fifteen days of this notice with [OAH]." The letter again contained no citations to District law regarding the appeals process.

B. Vizion One's Appeal to OAH

In response to the March 26, 2014, letter, the attorney representing Vizion One at the time sent a letter on April 10, 2014, to DHCF appealing the temporary suspension. The certificate of service attached to the attorney's letter indicates it was sent by mail to DHCF. A five-page fax (including cover, the attorney's letter, and a copy of DHCF's March 26, 2014, letter) was sent to OAH, also on April 10; the fax contained a time stamp of 5:19 p.m. An email stating, in part, that "[a] fax has arrived," was sent from a address to OAH at 6:29 p.m. on April 10, 2014. OAH stamped the email as received on April 11, 2014, at 9:05 a.m.

On Friday May 30, 2014, Vizion One electronically filed a Motion for Summary Adjudication. The motion challenged the District's temporary suspension of Vizion One's Medicaid payments and its failure to find "good

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cause" for only a partial suspension of payments. Vizion One further alleged that DHCF failed "to properly implement and enforce federal laws and to adequately safeguard [Vizion One's] rights," and that "DHCF should have determined that good cause existed upon which to impose a partial, rather than complete, suspension of payments."

Subsequently, at a status hearing before the ALJ on June 2, 2014, DHCF announced its intent to file a motion to dismiss on the ground that the appeal in 14-AA-1023 was untimely. Vizion One's current counsel raised a question as to the calculation of the fifteen-day period for filing an appeal. He stated, "I think that, as a premise, the 15-day period is likely [calculated] from the time the notice is received, rather than the time it was transmitted." He further asserted that "counsel [for DHCF] ha[d] not augmented on the record that [the] notice was received by [Vizion One's first] counsel . . . on the 26th [of March]." He asked that the record be clarified. Counsel for Vizion One remarked that "three days are generally added to the notice period of time." The ALJ responded saying, "[c]ertificate of service of a pleading, or order, establishes a deadline for response and [if] it's delivered by mail, . . . five days are added to the deadline for response." The ALJ suggested a hearing and counsel for Vizion One requested a hearing. On June 2,

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2014, the ALJ issued an order scheduling an evidentiary hearing on June 23, 2014, and instructing the parties to "be prepared at that time to present all evidence and argument they have regarding the issues in this case." In a subsequent order, dated June 18, 2014, the ALJ scheduled additional hearing dates on June 24 and 30, 2014, again instructing the parties that they "shall be prepared at that time to present all evidence and argument they have regarding the issues in this case."

In its June 16, 2014, response to Vizion One's motion (styled as consolidated cross-motion for summary adjudication and opposition to petitioner's motion for...

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