Opinion
HHBCV166032066S
02-17-2017
National Health Care Associates dba the Pines at Bristol Center v. Connecticut Department of Social Services
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#122)
Sheila A. Huddleston, Judge.
Pending before the court is a motion to dismiss this administrative appeal on the grounds that (1) it is untimely because it was filed more than forty-five days after the final decision was mailed, and (2) the plaintiff lacks standing to assert the rights of its resident to certain Medicaid benefits. The plaintiff argues that (1) the appeal is timely because the plaintiff filed a motion for reconsideration that was denied less than forty-five days before the appeal was filed, and (2) it has standing as an assignee of its resident's rights under Medicaid. For the reasons stated below, the court concludes that the appeal is untimely and consequently does not reach the question of standing. The motion to dismiss is granted.
RELEVANT FACTS AND PROCEDURAL HISTORY
The plaintiff, National Health Care Associates d/b/a The Pines at Bristol Center, filed this administrative appeal pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183, on January 22, 2016. Attached to its appeal was a copy of the final decision by the defendant, Connecticut Department of Social Services, issued on December 2, 2015 (#100.31). The final decision denied a request by Brian Bray, a resident at a facility operated by the plaintiff, for recalculation of the applied income that he was required to contribute to his long-term care. On August 1, 2016, the plaintiff filed a motion to substitute itself " on behalf of Brian Bray" as plaintiff (#118). It simultaneously filed an amended complaint (#119). On August 12, 2016, the defendant moved to dismiss the appeal on the grounds that (1) the appeal was not timely filed, and (2) the plaintiff lacks standing to bring the appeal (#122).
On September 26, 2016, the defendant filed an objection to the plaintiff's motion to amend the complaint (#128). A day later, on September 27, 2016, the plaintiff filed an objection to the defendant's motion to dismiss (#129), and on September 28, 2016, the plaintiff filed a corrected objection (#133), arguing that the motion to dismiss was itself untimely. The plaintiff further represented that the appeal was timely because it filed a petition for reconsideration on December 12, 2015, " ten days after the mailing of the fair hearing decision." (Emphasis added.) Plaintiff's Response in Opposition to Defendant's Motion to Dismiss (#133), p. 10. The plaintiff further asserted that the petition for reconsideration was denied by telephone on December 19, 2015. Id. The plaintiff did not submit a copy of a petition for reconsideration at that time. Notably, neither the original complaint nor the amended complaint mentioned that a petition for reconsideration had been filed or denied; both the original and the amended complaint alleged only that the plaintiff was aggrieved by the final decision issued on December 2, 2015.
On October 19, 2016, the plaintiff filed a reply to the defendant's objection to the motion to amend the complaint (#138). The plaintiff submitted as an exhibit to that motion a copy of a purported petition for reconsideration, in letter form, dated December 12, 2015 (#139). Above the defendant's address in the December 12, 2015 letter were the words " Via Postal Mail." The plaintiff did not submit an affidavit to authenticate the December 12, 2015 letter or to attest to the fact that it was, in fact, mailed to the defendant.
On October 21, 2016, the defendant filed a reply to the plaintiff's objection to the motion to dismiss together with an affidavit by Dulce Frazao, a social services operations manager in the defendant's Office of Legal Counsel, Regulations and Administrative Hearings (OLCRAH) (#140). Frazao attested that her job duties include overseeing the operations of processing, scheduling, conducting and rendering administrative hearings decisions. She based her affidavit on her personal knowledge of the administrative appeal filed by the plaintiff. She explained the procedures by which OLCRAH processes requests for administrative hearings and the issuance of decisions. She attested that on August 12, 2016, counsel for the defendant inquired by electronic mail as to whether any request for reconsideration had been made in this case. Frazao personally reviewed the administrative record underlying the appeal and reported that it did not include any request for reconsideration.
Frazao further attested that on October 17, 2016, the defendant's counsel sent Frazao a copy of a letter dated December 12, 2015, that had been faxed to her by the plaintiff's counsel. The defendant's counsel informed Frazao that the plaintiff's counsel said that she had inquired about the request for reconsideration in a telephone call on December 19, 2015, and was advised that it had been denied. Upon receipt of this information, Frazao again searched the administrative record. She found that the December 12, 2015 letter was not included in the administrative record and that there was no record of its receipt by the defendant. She also confirmed that there was no written decision or response regarding a request for reconsideration in the administrative record.
Frazao further attested that, as a matter of department protocol, processing technicians and a unit secretary for the administrative hearings unit respond to telephone inquiries about hearings by accessing the administrative hearings database. Any inquiries regarding the outcome of a hearing decision and a reconsideration ruling are referred to a hearings supervisor for assistance. The hearings supervisor then determines if a hearing decision or reconsideration ruling has been rendered and mailed out. It is against OLCRAH policy and practice to verbally convey a decision on a request for reconsideration.
Frazao further attested that in addition to reviewing the administrative record, she personally reviewed the December 2015 case narratives in the defendant's eligibility management system for the applicant whose Medicaid eligibility is at issue in this case, and she also reviewed OLCRAH's administrative hearings database notes to determine if there was any record of the purported telephone conversation with the plaintiff's counsel regarding the request for reconsideration. She found no record of any conversation regarding a request for reconsideration, pending or otherwise, in this case, although she did find that telephone conversations with the plaintiff's counsel about other issues are recorded in the case notes.
The parties appeared for oral argument on the motion to dismiss on December 8, 2016. At that time, the court asked the plaintiff's counsel whether she had any evidence that the December 12, 2015 letter requesting reconsideration had actually been mailed to the defendant and had been received by the defendant. The plaintiff's counsel said that a paralegal in her office was the one who had mailed the letter to the defendant and who had spoken to the defendant's office by telephone to determine the status of the request for reconsideration. She further represented that the paralegal no longer worked for her office and that she might have difficulty in obtaining her former paralegal's cooperation.
The court continued the hearing to afford the plaintiff another opportunity to present evidence to counter the affidavit presented by the defendant. An evidentiary hearing was scheduled for February 3, 2017, and then continued at the plaintiff's request to February 16, 2017. On February 16, 2017, the plaintiff's counsel filed a " waiver of evidentiary hearing" and agreed that the motion to dismiss could be decided on the basis of the papers previously submitted (#142). The defendant's counsel then filed a caseflow request asking the court to adjudicate the motion (#143).
ANALYSIS
An administrative appeal filed pursuant to General Statutes § 4-183 must be both filed and served within forty-five days after issuance of the agency's decision. See Glastonbury Volunteer Ambulance Association, Inc. v. Freedom of Information Commission, 227 Conn. 848, 854-57, 633 A.2d 305 (1993). Failure either to file or to serve the appeal within the statutory time limit deprives the court of subject matter jurisdiction over the appeal. Id. When the forty-fifth day falls on a day when the court is closed, an appeal is timely if it is filed on the next business day. See General Statutes § 51-347c and Practice Book § 7-17; see also Carter v. Commissioner of Social Services, 177 Conn. 599, 601-02, 418 A.2d 931 (1979).
Pursuant to General Statutes § 4-183(c), if the final decision is mailed, the time to appeal begins to run on the date of its mailing. If a petition for reconsideration is timely filed, the time for appealing begins to run when the petition is denied. In this case, it is undisputed that the defendant mailed notice of its final decision on December 2, 2015. If no petition for reconsideration was filed, the forty-five days to appeal would have run on Saturday, January 16, 2016. The court was closed, however, on January 16, January 17, and January 18, 2016 (a holiday). Pursuant to General Statutes § 51-347c and Practice Book § 7-17, the last day to file the appeal was therefore extended to Tuesday, January 19, 2016. The appeal was filed on Friday, January 22, 2016.
General Statutes § 4-183 provides in relevant part as follows: " (c)(1) Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, or (2) within forty-five days after the agency denies a petition for reconsideration of the final decision pursuant to subdivision (1) of subsection (a) of section 4-181a, or (3) within forty-five days after mailing of the final decision made after reconsideration pursuant to subdivisions (3) and (4) of subsection (a) of section 4-181a or, if there is no mailing, within forty-five days after personal delivery of the final decision made after reconsideration pursuant to said subdivisions, or (4) within forty-five days after the expiration of the ninety-day period required under subdivision (3) of subsection (a) of section 4-181a if the agency decides to reconsider the final decision and fails to render a decision made after reconsideration within such period, whichever is applicable and is later, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court for the judicial district of New Britain . . ."
The plaintiff's first ground for objecting to the motion to dismiss is that the defendant's motion to dismiss was untimely because it was not filed within thirty days after the defendant appeared in the case. See Practice Book § § 10-30 and 10-31. This ground is plainly meritless. The timeliness of an administrative appeal implicates the court's subject matter jurisdiction. See Glastonbury Volunteer Ambulance Association, Inc. v. Freedom of Information Commission, supra, 227 Conn. 854-57. " The failure of a party to file an administrative appeal under the UAPA within the forty-five days required by § 4-183(c) deprives the trial court of subject matter jurisdiction over the appeal." Commission on Human Rights & Opportunities v. Windsor Hall Rest Home, 232 Conn. 181, 187, 653 A.2d 181 (1995). A claim that the court lacks subject matter jurisdiction can be raised at any time and cannot be waived. See Fairfield Merrittview Ltd. Partnership v. Norwalk, 320 Conn. 535, 548, 133 A.3d 140 (2016); see also Practice Book § 10-33.
The plaintiff's second ground for objecting to the motion to dismiss is its claim that it filed a petition for reconsideration on December 12, 2015, that was orally denied by telephone on December 19, 2015. If in fact a petition for reconsideration was filed on December 12 and denied on December 19, 2015, the defendant concedes that the appeal would be timely. The defendant, however, has presented evidence, through Frazao's affidavit, that the defendant has no record of receiving or denying a petition for reconsideration. The question for the court, then, is whether there is any evidence that a petition for reconsideration was filed.
" Trial courts addressing motions to dismiss for lack of subject matter jurisdiction . . . may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." (Footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Id., 651.
" In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings." (Internal quotation marks omitted.) Id., 651-52. " Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts." Id., 652.
In this case, the plaintiff's complaint alleges that the defendant issued its final decision on December 2, 2015. See Complaint (#100.31), paragraph 7. Attached to and incorporated by reference into the complaint is a copy of the final decision, which is dated December 2, 2015. Immediately below the date appear the words " Signature confirmation." The complaint further alleges that the final decision was " served" on the plaintiff on December 10, 2015. See Complaint (#100.31), paragraph 8. Under § 4-183(c), however, the date on which the final decision is mailed, rather than the date on which it is received, is the date that commences the running of the forty-five-day period for filing an appeal. The plaintiff has admitted that the final decision was mailed on December 2, 2015. See #133, p. 10.
The original complaint made no reference to a petition for reconsideration. Instead, it alleges only that the plaintiff is aggrieved by the final decision of December 2, 2015. See Complaint (#100.31), paragraphs 7, 8, and 9. The amended complaint, filed on August 1, 2016, repeats the allegations of paragraphs 7, 8, and 9 of the original complaint in unaltered form. The amended complaint does not mention a petition for reconsideration.
The first assertion that a petition for reconsideration had been filed appeared in the plaintiff's objection to the motion to dismiss, but it was unaccompanied by a copy of the alleged petition or any affidavit attesting to its filing. The plaintiff subsequently submitted as an exhibit a copy of a letter dated December 12, 2015, signed by the plaintiff's counsel, in which the plaintiff requested reconsideration of the December 2, 2015 decision. The plaintiff did not, however, submit any evidence that the December 12, 2015 letter had actually been mailed. Nor did the plaintiff submit any evidence that the letter had actually been received by the defendant.
The defendant thereafter submitted Frazao's affidavit, in which she attested that there is no record that the defendant received the letter in December 2015, and there is no case narrative reporting a telephone conversation with plaintiff's counsel regarding a request for reconsideration. Frazao also attested that it is against the defendant's policy to verbally convey a decision on a request for reconsideration.
At oral argument, the plaintiff's counsel acknowledged that she had no personal knowledge that the December 12, 2015 letter had been mailed. She stated that she gave it to a paralegal, who allegedly mailed it and would have been the one to have the telephone contact with the defendant to follow up on it. She further stated that the paralegal no longer worked for her firm. She represented that the paralegal's testimony about her conversation with someone at the defendant's office would be evidence of the defendant's receipt of the letter. The court accordingly afforded the plaintiff an opportunity to obtain and present evidence that the December 12, 2015 letter was mailed to and received by the defendant. A hearing was scheduled for February 16, 2017, but on that date, the plaintiff waived its right to present evidence concerning the mailing and receipt of the December 12, 2015 letter and consented to the court's consideration of the motion to dismiss on the existing state of the record.
It is undisputed that the defendant issued its final decision by mail on December 2, 2015, and that the plaintiff's appeal was filed on January 22, 2016. The only question is whether there is evidence that the plaintiff filed a request for reconsideration on December 12, 2015. The court concludes that there is not. Neither the original complaint nor the amended complaint alleges that a request for reconsideration was filed. The defendant has presented evidence, in the form of Frazao's affidavit, that (1) the defendant has no record of receiving the December 12, 2015 letter; (2) the defendant has no record of any telephone conversation with plaintiff's counsel concerning the December 12, 2015 letter, although it has records of conversations with her about other issues; and (3) it would contravene the defendant's policy and practice to convey the disposition of a request for reconsideration in a telephone conversation. The plaintiff has presented no evidence to the contrary. The plaintiff's counsel has no personal knowledge that the December 12, 2015 letter was actually mailed or received.
In its October 21, 2016 reply (#140) to the plaintiff's objection, the defendant acknowledged that the " mailbox rule" raises a rebuttable presumption that " a properly stamped and addressed letter that is placed into a mailbox or handed over to the United States Postal Service . . . will be received." (Internal quotation marks omitted.) Butts v. Bysiewicz, 298 Conn. 665, 677 n.8, 5 A.3d 932 (2010). The defendant contends that Frazao's affidavit rebuts the presumption of delivery. The court agrees that Frazao's affidavit is sufficient to rebut a presumption of delivery, but further finds that the plaintiff has failed to present evidence that a properly stamped letter was deposited in the mail in the first place.
" [R]epresentations of counsel are not evidence and are certainly not proof." Martin v. Liberty Bank, 46 Conn.App. 559, 562-63, 699 A.2d 305 (1997); see also Celentano v. Zoning Board of Appeals, 135 Conn. 16, 18, 60 A.2d 510 (1948). " Fairly stated, evidence legally is the means by which alleged matters of fact are properly submitted to the trier of fact for the purpose of proving a fact in issue. On the other hand, proof is the result or the effect of such evidence. Moreover, these representations by counsel were not testimony, which, in turn, when given under oath or stipulated to, is a species of evidence. It is well settled that representations of counsel are not, legally speaking, evidence." (Internal quotation marks omitted.) Cologne v. Westfarms Associates, 197 Conn. 141, 153-54, 496 A.2d 476 (1985). In this case, only the representations of counsel support a claim that the December 12, 2015 letter was mailed at all, and those representations are based on her belief that a paralegal she no longer employs mailed the letter. She does not represent that the letter was " properly stamped."
In the absence of allegations in the complaint that a request for reconsideration was filed, and in the absence of evidence that the December 12, 2015 letter was mailed to or received by the defendant, and in light of the defendant's affirmative and unrebutted evidence that it did not receive a request for reconsideration, the court concludes that the time for appeal began to run when the defendant mailed its final decision on December 2, 2015. The appeal was filed on January 22, 2016, three days after the extended deadline of January 19, 2016. Because the appeal was not filed within the time authorized by § 4-183, the court lacks subject matter jurisdiction. The appeal is accordingly dismissed.