Ghodratollah Sarrafi, M.D., ALJ Ruling 2020-1 (HHS CRD Oct. 24, 2019)

RULING AND ORDER DISMISSING CASE

On August 22, 2019, I issued an Acknowledgment Order (Order) in which I observed that Petitioner's hearing request may have been untimely filed. On September 6, 2019, the Centers for Medicare & Medicaid Services (CMS) filed a Motion to Dismiss, along with two proposed exhibits (CMS Exs. 1-2). Petitioner timely filed his response (P. Br.). Petitioner did not offer exhibits in support of his response, but his hearing request included 11 exhibits (P. Exs. A‑K).1 As explained more fully below, I find that Petitioner's hearing request was untimely filed and that Petitioner did not demonstrate good cause for the untimely filing. I therefore dismiss the hearing request.

1. Petitioner's hearing request was filed untimely.

A Medicare provider or supplier dissatisfied with a reconsidered determination by CMS or its administrative contractor may request a hearing before an administrative law judge. 42 C.F.R. §§ 498.5(l)(2), 498.40(a)(1). The regulation provides that the hearing request will be filed "with the [administrative law judge] office identified in the determination

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letter." 42 C.F.R. § 498.40(a)(1). In addition, an affected party must "file the request in writing within 60 days from receipt of the notice . . . unless that period is extended in accordance with paragraph (c) of this section." 42 C.F.R. § 498.40(a)(2). In turn, 42 C.F.R. § 498.40(c)(2) provides: "For good cause shown, the [administrative law judge] may extend the time for filing the request for hearing." The regulations presume that a party receives the reconsidered determination five days after the date of the notice unless the party shows that the notice was, in fact, received earlier or later. 42 C.F.R. § 498.22(b)(3), incorporated by reference in 42 C.F.R. § 498.40(a)(2).

On March 18, 2019, CMS's Provider Enrollment and Oversight Group2 issued an unfavorable reconsidered determination, which upheld the revocation of Petitioner's Medicare billing privileges under 42 C.F.R. § 424.535(a)(8)(ii). CMS Ex. 1. In accordance with the regulations, I presume that Petitioner received the reconsidered determination no later than five days after it was issued – that is, on or before March 23, 2019. Petitioner offered no evidence or argument that he received the reconsidered determination after that date. Accordingly, Petitioner had until May 22, 2019, to file a timely hearing request with the Departmental Appeals Board (DAB). Petitioner filed his hearing request with the DAB on August 13, 2019, which is not within 60 days of the presumed date of receipt.3 I therefore find that Petitioner filed his hearing request untimely.

2. Petitioner has not demonstrated good cause for the untimely filing.

Because Petitioner did not file his hearing request by the deadline, I must dismiss the hearing request unless I find there was good cause for the untimely filing. 42 C.F.R. § 498.40(c)(2). Appellate panels of the DAB have not attempted to provide a complete or authoritative definition of good cause but have generally upheld administrative law judges' decisions concluding that circumstances within a party's ability to control do not establish good cause. See, e.g., MedStar Health, Inc., DAB No. 2684 at 8 (2016) (circumstances within a party's control do not establish good cause under any reasonable definition of the term). Under the circumstances presented here, I do not find good cause for Petitioner's untimely filing.

Petitioner explains that he initially misfiled his request for hearing with "another CMS agency/division" in good faith and within the time limit. P. Br. at 2; P. Ex. A (Docket Entry 1 at 7) (Sarrafi Affidavit ¶ 12). According to Petitioner, for a layperson like himself, the Department of Health and Human Services, Centers for Medicare and

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Medicaid Services, Center for Program Integrity, Provider Enrollment & Oversight Group, or Departmental Appeals Board are all "a part of HHS/CMS" and "an appeal request mailed to the incorrect sub-entity is insignificant." P. Br. at 4. Petitioner contends that, despite his misfiling, there is good cause to extend the deadline for filing as he reasonably believed that his request was properly filed and timely. P. Br. at 2 (citing 20 C.F.R. § 404.911(b)(8)).

Contrary to Petitioner's arguments, it was not reasonable to ignore the clear instructions he received from CMS. CMS first provided instructions for filing a hearing request in the reconsidered determination. Consistent with 42 C.F.R. § 498.40(a)(1), the reconsidered determination identified the DAB as the office to which Petitioner should direct his request for administrative law judge review:

If you believe that this determination is not correct, you may request a final ALJ review for the reconsideration portion of this decision letter. To request a final ALJ review, you must file your appeal within 60 calendar days after the date of receipt of this decision by writing to the following address:

Department of Health and Human Services
Departmental Appeals Board, Mail Stop 6132
Attn: CMS Enrollment Appeal
330 Independence Avenue, S.W.
Cohen Building, Room G-644
Washington, D.C. 20201.

CMS Ex. 1 at 5.4 Nevertheless, instead of filing his hearing request with the DAB, Petitioner sent a hearing request, dated April 12, 2019, to CMS's Provider Enrollment and Oversight Group, the same office that issued the reconsidered determination. P. Exs. F, G (Docket Entry 1 at 23-29).

By letter dated April 26, 2019, CMS responded to Petitioner's misdirected hearing request. P. Ex. G. CMS's April 26 letter notified Petitioner of his error and referred him to the instructions for filing with the DAB:

This letter is in response to your correspondence dated April 12, 2019. . . .

As stated on pages 5 and 6 of [the reconsidered determination], if you believe that the determination to revoke your Medicare billing privileges is

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not correct, you may request review by an Administrative Law Judge with the Civil Remedies Division of the Departmental Appeals Board. Please note that the request must be filed within 60 days of the date of receipt of the March 18, 2019 reconsideration decision. More detailed instructions regarding how to file such request are included below.

P. Ex. G (Docket Entry 1 at 27). The letter went on to reiterate the instructions for filing a hearing request. Id. at 27-29. At the time CMS sent Petitioner the letter informing him that he had misfiled his hearing request, Petitioner still had approximately three weeks (until May 22, 2019) to file a timely hearing request with the DAB.

Again Petitioner did not follow the instructions CMS provided. Instead, he directed another letter, dated May 20, 2019, to CMS expressing thanks for the opportunity to present his case: "This is in response to your letter of April 26, 2019. I received this letter when I was on vacation. Thanks for giving me the opportunity to present my case in person. Please schedule a date for the meeting and I will attend it." P. Ex. H (Docket Entry 1 at 32).

Once more, in a letter dated May 23, 2019, CMS alerted Petitioner to his misunderstanding and provided Petitioner with instructions for perfecting his hearing request:

This letter is in response to your correspondence dated May 20, 2019.

Your correspondence incorrectly indicates that CMS is providing you an opportunity to present your case in person. On March 18, 2019, an unfavorable reconsideration decision was issued upholding the revocation of your Medicare billing privileges. If you would like to request Administrative Law Judge review of the reconsidered decision, please see pages five and six of the attached decision for instructions on how to properly file an appeal.

P. Ex. I (Docket Entry 1 at 34). Yet, even after receiving this letter, Petitioner did not immediately contact the DAB to request an extension of his filing deadline. Rather, it was not until August 13, 2019, some 80 days later, that Petitioner, through counsel, filed a hearing request via the DAB E-File system.

Petitioner argues that he reasonably believed that a misdirected filing would be internally routed to the appropriate person or department for hearing. P. Br. at 3. Even if Petitioner subjectively believed this to be true, any such belief was not reasonable. CMS specifically notified him – twice – that he had filed with the wrong office and reiterated that he needed to file with the DAB. P. Exs. G, I. Significantly, after CMS first notified Petitioner of his misfiling, Petitioner still had an opportunity to file with the DAB before

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the May 22, 2019 deadline, but Petitioner failed to do so. The only "reasonable" explanation for Petitioner's failure to send his hearing request to the DAB by the deadline is that he utterly failed to read the instructions CMS provided in both its reconsidered determination and its April 26 letter. The choice whether or not to read carefully and follow CMS's clear instructions was at all times within Petitioner's ability to control. As another administrative law judge observed in Elinor Schottstaedt, M.D., "carelessness . . . is never good cause to extend the time for filing a request for hearing." DAB CR2131 at 4 (2010), aff'd, DAB No. 2337 (2010). Under these circumstances, Petitioner has not demonstrated good cause to extend the deadline.

Nor am I persuaded otherwise by Petitioner's suggestion that 20 C.F.R. § 404.911(b)(8) establishes that he had good cause for his untimely filing. See P. Br. at 2. Section 404.911(b)(8) of 20 C.F.R. provides that "good cause" for an untimely request for review may include sending a request "to another Government agency in good faith within the time limit and the request did not reach [the proper office] until after the time period had expired." The cited provision applies in certain Social Security cases, but not in Medicare cases brought under 42 C.F.R. Part 498. Moreover, I do not find the Social Security regulations sufficiently analogous to look to them for guidance in this case. The Social Security hearing regulations are designed to assist claimants for Social Security benefits who may be disabled, elderly, or unsophisticated. By contrast, Petitioner, as a Medicare supplier, is expected to be familiar with Medicare rules, including those in Part 498, and to abide by them. See, e.g., Schottstaedt, DAB No. 2337 at 5 (citing Cary Frounfelter & Kast Orthotics & Prosthetics, Inc., DAB No. 2211at 22 (2008)). Further, even if I applied the principle underlying 20 C.F.R. § 404.911(b)(8) in the present case, I would not find that Petitioner misfiled his hearing request "in good faith." Here, Petitioner received actual notice that he had misfiled his hearing request and received specific instructions to refile with the DAB. Petitioner had an opportunity to correct his own mistake and to file his hearing request with the DAB by the deadline, but he repeatedly did not follow the available instructions until well after the deadline.

ORDER

Petitioner's hearing request was not filed within 60 days after he received the March 18, 2019, reconsidered determination, as required by 42 C.F.R. § 498.40(a)(2). For the reasons explained above, Petitioner has not shown good cause, as provided in 42 C.F.R. § 498.40(c), for filing the hearing request out of time. I therefore grant CMS's Motion to Dismiss. Petitioner's hearing request is hereby dismissed. The parties may request that an order dismissing a case be vacated pursuant to 42 C.F.R. § 498.72.

• 1. Petitioner's exhibits appear at pages 6-39 of Docket Entry 1 in the electronic file for this case. I refer to the PDF page numbers, as the exhibits are not separately paginated.
• 2. The Provider Enrollment and Oversight Group is a component of CMS itself, not an administrative contractor.
• 3. I take administrative notice that August 13, 2019, is 143 days after the presumed date of receipt.
• 4. CMS's reconsidered determination also explained how to file an appeal electronically using the DAB electronic filing (DAB E-File) system. CMS Ex. 1 at 5-6.