| STATE OF COLORADO
OFFICE OF ADMINISTRATIVE COURTS 1525 Sherman Street, 4th Floor Denver, CO 80203 STEP BY FAITH HOME HEALTH CARE, LLC,
Petitioner, v. STATE DEPARTMENT OF HEALTH CARE POLICY AND FINANCING,
Respondent. |
5 COURT USE ONLY 5 |
| PHILIP J. WEISER, Attorney General HAAR KATTA, Assistant Attorney General* 1300 Broadway, 6th Floor
Denver, CO 80203 Telephone: (720) 508-6087 FAX: (720) 508-6041 E-Mail: haar.katta@coag.gov Registration Number: 54885 *Counsel of Record |
Case No.: SR 2022-0054 |
| REPLY IN SUPPORT OF MOTION TO DISMISS | |
Respondent, State Department of Health Care Policy and Financing (Department), by and through undersigned counsel of the Colorado Attorney
General’s Office, hereby submits this Reply in Support of the Department’s Motion
to Dismiss for Lack of Subject Matter Jurisdiction.
BACKGROUND
This case centers on a Step by Faith Home Health Care’s (SBF) failure to file a timely appeal after receiving the Department’s Notice of Adverse Action. The Department will explain, in brief, the provider enrollment and claim submission
processes, the Department’s issuance of RA letters to notify providers about claim denials and their appeal rights, and an abridged procedural history for this case.
A. Provider Enrollment and “Backdating”
The Department administers Health First Colorado, Colorado’s Medicaid Program (Medicaid). Providers participating in Medicaid receive reimbursement for services performed for Medicaid members if the providers submit appropriately coded “claims” for reimbursement. Exhibit A, ¶ 4. Additionally, providers may receive reimbursement only if they have first enrolled in Medicaid. Exhibit A, ¶ 5.
Typically, the date the Department approves an application for enrollment is considered the enrollment date. However, a provider may request that the Department backdate their enrollment to the date of submission of their application for enrollment in order to receive reimbursement for services provided prior to the date their application was approved. Exhibit A, ¶ 6.
B. Provider Claim Submission Process
Providers submit claims through the Gainwell interChange Healthcare Platform’s Provider Web Portal (Portal), where it is their responsibility to correctly submit claims to Gainwell Technologies (Gainwell), the Department’s Fiscal Agent. Exhibit A, ¶ 8. When providers submit claims through the Portal, the Portal immediately reviews the claim information for compliance with Medicaid billing policy. Exhibit A, ¶ 9. Specifically, once a provider submits a claim, the Portal
immediately returns a response to the provider indicating whether a claim will be denied, suspended, or paid. Exhibit A, ¶ 10.
C. The Department’s Adjudication and Notification of Claim Status
Process
Next, the Portal transfers the claim to the Colorado interChange system for adjudication and reporting to the provider in the form of a Provider Remittance Advice (RA letter). Exhibit A, ¶ 9. This RA letter is generated and made available for a provider to download on the first Monday following a provider’s claim submission. Exhibit A, ¶¶ 9, 11, 12. 13. The RA letter “shall be proper and sufficient notification of fiscal agent action resulting from any provider request or submittal.” Section 8.043.04, and see Exhibit A, ¶ 19. The Department provides detailed instructions to providers on the multiple ways in which they can access RA letters. Exhibit B1; Exhibit A, ¶ 13. The Portal assigns each RA Letter a unique Remit Number. Exhibit A, ¶ 14.
As previously explained, providers must file an administrative appeal within 30 calendar days from the date of a notice of adverse action, such as the denial of a claim in an RA letter. The Department makes providers aware of this 30-day requirement in several ways: First, the Department sets forth this requirement in 10 C.C.R. 2505-10, § 8.050.3. Exhibit A, ¶ 16. Second, the Department’s General Provider Information Manual specifies that providers have 30 days to file a written
1 This document is accessible online at: https://hcpf.colorado.gov/pull-remit-advice (last accessed on July 10, 2022 at 1:35 PM).
appeal of an adverse action. Exhibit C, p. 732; Exhibit A, ¶ 17. Third, RA letters specify that providers may appeal the Department’s determination by filing a written appeal with the Office of Administrative Courts (OAC) within 30 days. Exhibit A, ¶18.
The Portal assigns a “Denial Date” for each denied claim that corresponds to date of the RA letter in which the claim denial is reported. Exhibit A, ¶ 19; See Exhibit A in Support of the Department’s Motion to Dismiss (assigning all claims associated with Remittance Advice # 1237943 a denial date of March 27, 2020)). An appeal of a denied claim must therefore be submitted within 30 days of the date on the RA letter.
C. Procedural History
On June 7, the Department filed its Motion to Dismiss. In its motion, the Department explained that because it notified SBF that its (then, most recently- denied) Medicaid reimbursement claims (the Claims) were denied on March 27, 2020, SBF had 30 days from that date to appeal the Department’s denial pursuant to 10 C.C.R. 2505-10, § 8.050.3. Accordingly, the Department explained that because SBF filed its appeal 674 days after the expiration of that deadline, its appeal was untimely.
2 This document is accessible online at: https://hcpf.colorado.gov/gen-info- manual#provrespon (last accessed on July 10, at 1:21 PM).
After requesting and obtaining an extension, on June 24, 2022, SBF
submitted its Response to the Department’s Motion, raising several arguments, most notably that the Department failed to serve SBF with its March 27, 2020 RA letter and that, as of April 28, 2020, the Department had not yet decided whether to deny the Claims.
The Department subsequently sought, and received, leave to file a Reply from
the Court.
STANDARD OF REVIEW
Colorado Courts generally treat mandatory time limits for commencing appeals as jurisdictional. Therefore, a late appeal deprives the reviewing court of authority to hear it. See People v. Donahue, 750 P.2d 921, 922 (Colo. 1988). Colorado Courts apply this same rule for administrative appeals and, therefore, failure to timely appeal an administrative action is generally considered a jurisdictional defect. See Obert v. Colo. Dep’t of Soc. Services, 766 P.2d 1186, 1190 (Colo. 1988); Cramer v. Indus. Claim Appeals Office, 885 P.2d 318, 319 (Colo. App. 1994); Country View Care Ctr., Inc. v. Colo. Dep’t of Soc. Services, 703 P.2d 1334, 1335 (Colo. App. 1985).
Colorado regulation states that a provider “may appeal a notice of Adverse Action by filing a written appeal within thirty (30) calendar days from the date on the notice of Adverse Action.” § 8.050.3.A. The filing date is “the date the Office of
Administrative Courts receives the appeal.” § 8.050.3.C. The regulation uses
mandatory language, directing that “[f]ailure to file a timely appeal shall result in
dismissal of the appeal.” Id. (emphasis added).
In Farmers Ins. Grp. v. Dist. Ct. of Second Jud. Dist., the Colorado Supreme Court held that in narrow instances, Courts may consider motions submitted after the expiration of a period specified in the Colorado Rules of Civil Procedure where the failure to act was a result of excusable neglect. Farmers Ins. Grp. v. Dist. Ct. of Second Jud. Dist., 181 Colo. 85, 88, 507 P.2d 865, 867 (1973) (holding that Plaintiff failed to meet its burden of showing that its failure to comply with C.R.C.P. 25(a)(1) was due to excusable neglect).
Excusable neglect involves a situation where the failure to act results from circumstances which would cause a reasonably careful person to neglect a duty in general, most situations involve unforeseen
occurrences such as personal tragedy, illness, family death, destruction of files, and other similar situations which would cause a reasonably prudent person to overlook a required deadline date in the performance of some responsibility. Failure to act due to carelessness and negligence is not excusable neglect.
Id. at 867 (emphasis added). Mistake or ignorance of the applicable law does not constitute excusable neglect. Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310, 321-22 (Colo. 2010); Adams v. Sagee, 2017 COA 133, ¶ 3, n.1. Parties do not demonstrate excusable neglect where their failure to file timely is a result of “poor office procedures and an apparently overwhelming workload[.]” Goodman v.
WP Mountain, 222 P.3d at 322.
ARGUMENT
Although SBF claims that as of April 28, 2020, it subjectively believed that the Department had not reached a decision on the Claims, its conduct establishes SBF’s awareness of the Department’s denial and payment of these claims. Given
SBF’s awareness that the Department had reached a determination on these claims coupled with its failure to act on the RA letter made available for its review, SBF cannot demonstrate excusable neglect sufficient to excuse its untimely appeal.
Finally, the issue of SBF’s request to backdate enrollment is unrelated to whether it
complied with the Department’s timely filing requirements.
A. SBF’s Conduct Establishes its Awareness of the Department’s
Determinations Regarding the Claims
As noted above, the Portal provides an immediate response to providers submitting claims, informing them whether a claim will be denied, suspended, or paid. Exhibit A, ¶ 10. Here, SBF submitted certain claims through the Portal during the week preceding the fiscal cycle concluding on March 27, 2020. On at least one occasion, these immediate post-submission notifications made SBF aware of the Department’s denial of its claim on March 23, 2020, prior to the Department’s generation of the March 27, 2020 RA letter. Exhibit A, ¶¶ 27-32.
On March 23, 2020, Ms. Gillies called Gainwell’s representative, Opal McCoy. Exhibit A, ¶ 28. Ms. McCoy created call notes indicating that the reason Ms. Gillies called was because SBF’s claim was denied. Id.; Exhibit D. Specifically, Ms. Gillies was calling about the denial of Claim Number 2220083004482, a claim addressed in the March 27, 2020 RA letter:
Opal: Okay, can you provide me with the claim number in question?
Toi: So, the claim number is 2220083004482. Opal: Okay, and this was a denied claim?
Toi: Yes. . . .
Exhibit E, Transcript at 02:04-07; Exhibit F, Call Audio at 02:21-02:35; Exhibit A, ¶
- During this same exchange, Gillies acknowledges that she understands that this claim was denied. Id.; Exhibit F, Call Audio at 02:35-02:41; Exhibit A, ¶ 29. During this call Ms. McCoy informed Ms. Gillies that this claim was denied because SBF used an improper modifier and that Ms. Gillies would need to submit a new claim using a different modifier:
Toi: Okay, as far as this claim ID that was – that I’m entering in right now, and I’m just going to go back to the claim
um…
Opal: Well, you can’t adjust under that claim. You would need to resubmit a new claim and change the modifier and use a U6 instead of a U1 modifier.
Toi: Ohhhhh- kay (inaudible)
Opal: That’s all you would need to do. Yes ma’am, there’s nothing you can do with a denied claim. It has to be a new claim.
Toi: Okay. Opal: Yes ma’am.
Exhibit E, Transcript at 5:07-15; Exhibit F, Call Audio at 08:23-08:47; Exhibit A, ¶
- McCoy made a note of this discussion in her call notes. Exhibit D; Exhibit A,
¶ 30. Additionally, during this call, Ms. Gillies asked Ms. McCoy to confirm that SBF submitted a specific Prior Authorization number in association with Claim Number 2220083004482. Exhibit F, Call Audio at 08:58-09:26; Exhibit A, ¶ 31.
Similarly, Ms. McCoy confirmed this and made a note of the same in her call notes. Exhibit D; Exhibit A, ¶ 31.
In other words, despite SBF’s claim that it was unaware the Department had reached a determination on the Claims, SBF was well-aware that the Department had denied certain claims. On the March 23, 2020 call, Ms. Gillies acknowledged that Claim Number 2220083004482 was denied and Ms. McCoy explained to Ms.
Gillies why the claim was denied.
SBF was similarly aware of the Department’s determination to pay certain of the Claims. As revealed by Gainwell’s internal records, the Department paid SBF
$1,745.36 on March 30, 2020. Exhibit G; Exhibit A, ¶ 23. The “Payment Status” parameter of Gainwell’s internal records reveals that SBF, in fact, received this payment. Exhibit G; Exhibit A, ¶ 23. SBF’s receipt of $1,745.36 following its submission of certain claims necessarily indicates an awareness that the Department reached a decision on these Claims.
Given Ms. Gillies’ call acknowledging that she understood that Claim Number 2220083004482 was denied and SBF’s receipt of $1,745.36 from the Department as payment for some of the Claims, SBF’s conduct establishes that it was aware of both the Department’s denial and payment of claims addressed in the March 27, 2020, RA letter.
B. SBF’s neglect in taking action following the March 27, 2020 RA letter fails to establish excusable neglect sufficient to excuse its 674-day late appeal request
SBF failed to file a timely notice of appeal because, despite its knowledge that at least3 one of its claims had been denied, it neglected to take action after the March 27, 2020, RA letter was made available for it to download. This constitutes a failure to act due to carelessness and negligence, which cannot establish excusable neglect. Farmers Ins., 507 P.2d at 867. The Portal generated an RA letter denying
SBF’s most recently-submitted claims on March 27, 2020. Pursuant to section
8.043.04, “The weekly Medicaid Remittance Statement shall be proper and
sufficient notification of fiscal agent action resulting from any provider request or
submittal.” Though it is ultimately SBF’s responsibility to timely review any notices the Department has generated and made available, the Department has provided detailed instructions on downloading RA letters to providers. As is routine, the Department’s Portal generated an RA letter and made it available to SBF for download on March 27, 2020. To the extent that SBF, following its submission of the claims denied in the same RA letter and with the knowledge that at least one claim was denied, failed to execute its responsibility of acting upon the RA letter, such conduct is insufficient to establish excusable neglect.
3 Given the five-calendar day briefing schedule for Reply Briefs, the Department has been somewhat limited in its ability to retrieve and then review all of Gainwell’s records of interaction with SBF and Ms. Gillies. However, it is the Department’s understanding that SBF placed additional calls to Gainwell during this time period, during which SBF may have acknowledged that the Department denied additional claims. To the extent that the Court desires or allows it, the Department is happy to submit additional briefing after it has time to retrieve and review more of SBF’s call records, as they may reveal that SBF had even more awareness of the claims addressed in the March 27, 2020 RA letter.
On March 27, 2020, the Portal, operating as designed, generated an RA Letter reporting the Department’s adjudications on the claims SBF submitted in the preceding week. Exhibit G; Exhibit A, ¶ 20. Gainwell’s internal records show that Remit Number 1237943 was assigned to the RA letter corresponding to the March 27, 2020 financial cycle. Exhibit G; Exhibit A, ¶ 21. This same Remit Number appears at the top of the March 27, 2020 RA letter, confirming that the Portal actually generated the March 27, 2020 RA letter (which bears the assigned Remit Number). Exhibit A, ¶ 22; see also Exhibit B in Support of the Department’s Motion to Dismiss (bearing Remit Number 1237943 on each page).
The Department issues detailed guides instructing providers on multiple ways in which they can access RA letters. Exhibit B; Exhibit A, ¶ 13. And once the Portal generates an RA letter, it is the provider’s responsibility to download and review that RA letter and then take any actions the provider feels are appropriate. Section 8.043.04, “If an original claim, a rebill of a denied claim, a request for adjustment of an incorrectly paid claim, or a request for reconsideration of a denied or incorrectly paid claim to the fiscal agency’s Medicaid Exceptions Unit is not acknowledged in written/printed form within thirty (30) days, it is the responsibility of the provider to inquire concerning its status, or resubmit.” See Exhibit A, ¶ 25.
As explained above, SBF was aware of both the denial and payment of certain claims addressed in the March 27, 2020 RA letter. To the extent that SBF was aware of the denial of Claim Number 2220083004482, but then subsequently
failed to take action following the Department’s generation of an RA letter, such conduct does not excuse SBF’s failure to timely appeal the denial of claims.
SBF’s failure to timely appeal the March 27, 2020 RA letter, despite its admitted awareness that the Department denied at least one of the claims addressed in said letter, is a failure to act due to either choice, carelessness, or
negligence. SBF’s failure to act does not constitute excusable neglect. Farmers Ins. Grp., 507 P.2d at 867. In a similar vein, to the extent that SBF’s failure to promptly act on the RA letter, once the Portal generated and made it available to download on March 27, 2020, is attributable to poor business management procedures and/or an overwhelming workload, SBF’s failure to act does not establish excusable neglect. Goodman, 222 P.3d at 322.
C. SBF’s request to backdate its enrollment has no bearing on whether SBF timely appealed the March 27, 2020 RA letter.
Notwithstanding the Department’s issuance of the March 27, 2020 RA letter, Ms. Gillies’ expressed acknowledgement of the denial of Claim Number 2220083004482, and SBF’s receipt of the Department’s $1,745.36 payment for claims paid in said RA letter, SBF claims that it subjectively believed that the Department had not reached a determination on these claims. Ultimately, the issue of SBF’s request to backdate its enrollment is irrelevant. SBF was required to file an appeal within 30 days of the March 27, 2020 RA letter, regardless of SBF’s desire to backdate its enrollment – to the extent that SBF felt that it was entitled to a backdated enrollment and believed the Department improperly denied payment for
claims based on this issue, SBF had the opportunity to file a timely appeal raising this argument. SBF, however, did not do so.
In support of this argument, SBF relies on an e-mail from Gainwell employee Nicole Whyte. Ms. Whyte’s e-mail relates to SBF’s request to backdate its enrollment. SBF Response, ¶ 1.4 (citing SBF’s Response Exhibit A). Contrary to
SBF’s assertions, Ms. Whyte’s e-mail does not state or indicate that the Department failed to reach a decision on the Claims; rather, Ms. Whyte correctly states that requests to backdate enrollment must be resolved with the Department, rather than by Gainwell. SBF Response Exhibit A; Exhibit A, ¶ 33.
In fact, SBF’s Exhibit A appears to undercut the argument that backdating SBF’s enrollment would alter the Department’s determination on the Claims – Ms. Whyte indicates that SBF failed to submit required Prior Authorization documentation for dates of service prior to February 1, 2019, when SBF enrolled as a provider. Id. In other words, the Department would necessarily have denied any claims for services provided during the backdated period if SBF failed to obtain the required Prior Authorization. Id.; see also Exhibit C, p. 38 (“All benefit services are subject to applicable reimbursement policies including:[] Prior authorization
requirements[.]”)
SBF’s Exhibit B appears to be a backdate enrollment form in which SBF requests that the Department backdate its enrollment to March 1, 2018. It is not clear when this document was actually submitted.
Most importantly, the issue of whether SBF obtained its desired backdated enrollment is irrelevant. The Portal generated the March 27, 2020 RA letter and
made it available for SBF to download. This triggered the 30-day deadline specified in the RA letter, in the provider general billing manual, and in 10 C.C.R. 2505-10, §
8.050.3. The issue of backdating enrollment has no bearing on whether SBF filed a timely appeal of claims denied on March 27, 2020. Even if SBF felt that backdating its enrollment may have affected the Department’s determination, 10 C.C.R. 2505- 10, § 8.050.3 sets forth no exception to the 30-day requirement where a provider desires to backdate its enrollment. In other words, SBF could have filed a timely appeal and, during that appeal, argued that the Department improperly denied claims because SBF was entitled to an earlier backdated enrollment. However, SBF failed to do so.
CONCLUSION
On March 27, 2020, the Department’s Portal generated an RA letter and made same available for SBF to download. SBF’s conduct established that it was aware that the Department had denied and paid various claims addressed in the March 27, 2020 RA letter. Despite this knowledge, SBF neglected to act on the RA letter which had been generated for it. Accordingly, SBF cannot establish excusable neglect. Any issues relating to SBF’s attempts to backdate its enrollment are irrelevant to the issue of SBF’s failure to file a timely appeal.
As previously argued, SBF’s appeal for back payments is 674 days late, depriving the Court of subject matter jurisdiction and compelling the dismissal of SBF’s appeal.
Respectfully submitted this 11th day of July, 2022.
PHILIP J. WEISER
Attorney General
/s/ Haar Katta
HAAR KATTA, 54885*
Assistant Attorney General State Services Section Attorney for Respondent
*Counsel of Record
Service to the Attorneys for the Respondent is preferred via e-mail as follows:
haar.katta@coag.gov leslie.bostwick@coag.gov dave.sluss@coag.gov
CERTIFICATE OF SERVICE
This is to certify that I have duly served the within REPLY IN SUPPORT OF MOTION TO DISMISS upon all parties herein via email this 11th day of July, 2022 addressed as follows:
Toi Gillies
Step By Faith Home Health Care, LLC 13847 Harrison Street
Thornton, CO 80602 sbfhomecare@gmail.com
/s/ Dave Sluss