L&M Optical LLC d/b/a Valenza Opticians, DAB No. 3014 (2020)

REMAND TO ADMINISTRATIVE LAW JUDGE

Lisa Marzella DeGiacomo, on behalf of L&M Optical Inc. (Petitioner), appealed the July 28, 2020 Administrative Law Judge (ALJ) dismissal order, L&M Optical LLC d/b/a Valenza Opticians, Order Dismissing Case, Dkt. No. C-20-642.1  The ALJ dismissed the case on the ground that the person who filed the request for hearing, Ms. DeGiacomo, was not a proper party and did not personally have a right to a hearing, and no appointment of representative was filed appointing Ms. DeGiacomo or another to represent Petitioner.  Order Dismissing Case at 1 (citing 42 C.F.R. § 498.70(b)). 

As explained below, we conclude that Ms. DeGiacomo made the requisite showing that she is Petitioner’s appointed representative.  We therefore vacate the dismissal and remand the case to the ALJ for further proceedings.

Legal Background

The Centers for Medicare & Medicaid Services (CMS) may revoke a currently-enrolled supplier’s Medicare enrollment for any of the reasons set out in 42 C.F.R. § 424.535(a).  A “supplier whose Medicare enrollment has been revoked may appeal CMS’ decision” under the procedures in 42 C.F.R. Part 498.  Id. § 424.545(a).  A supplier may seek reconsideration of an initial determination by CMS or one of its contractors to revoke its Medicare enrollment.  Id. §§ 498.3(b)(17), 498.5(l)(1), 498.22(a).  If dissatisfied with the reconsidered determination, the supplier may request a hearing before an ALJ.  Id. §§ 498.5(l)(2), 498.40. 

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“An affected party may appoint as its representative anyone not disqualified or suspended from acting as a representative in proceedings before the Secretary or otherwise prohibited by law.”  42 C.F.R. § 498.10(a).  “If the representative appointed is not an attorney, the party must file written notice of the appointment with CMS, the ALJ, or the Departmental Appeals Board.”  Id. § 498.10(b).

An ALJ may dismiss a hearing request “for cause” when the “party requesting a hearing is not a proper party or does not otherwise have a right to a hearing.”  42 C.F.R. § 498.70(b).  The dismissal of a hearing request “is binding unless it is vacated by the ALJ or the Departmental Appeals Board.”  Id. § 498.71(b). 

A party whose hearing request is dismissed by an ALJ may appeal the dismissal to the Board.  42 C.F.R. § 498.80.  When the Board reviews an ALJ’s order of dismissal, it “may either issue a decision or remand the case to an ALJ for a hearing and decision or a recommended decision for final decision by the Board.”  Id. § 498.88(a).

Case Background

On July 6, 2020, Ms. DeGiacomo filed a request for ALJ hearing on Petitioner’s behalf appealing a July 6, 2020 Reconsideration Decision sustaining the initial determination to revoke Petitioner’s Medicare billing privileges.  Request For Hearing and Originating Case Decision, Dkt. No. C-20-642.  

On July 8, 2020, the ALJ issued an Acknowledgment of Receipt of Request for Hearing and Prehearing Order under Docket Number C-20-642, setting out the next steps in the case. 

On July 28, 2020, the ALJ dismissed the hearing request based on his determination that Ms. DeGiacomo’s “relationship with Petitioner” was “unclear,” she was “not an attorney,” and “no document appointing her a representative for Petitioner was filed with the request for hearing.”  Order Dismissing Case at 1, Dkt. No. C-20-642.  The ALJ further stated that his Prehearing Order directed “Petitioner’s owner, chief executive, president, or one with authority to act on Petitioner’s behalf . . . to file a written and signed appointment of representative” within 10 days and “advised Petitioner that failure to comply would cause [the ALJ] to dismiss this case pursuant to 42 C.F.R. § 498.70(b).”  Id.(citing 42 C.F.R. § 498.10(b)).  Petitioner did not file a signed appointment of representative.  Id.  The ALJ, therefore, dismissed the case pursuant to 42 C.F.R. § 498.70(b).

On August 3, 2020, Ms. DeGiacomo filed a request for review on Petitioner’s behalf appealing the dismissal.  New Appeal, Dkt. No. A-20-96.  On August 11, 2020, the Board issued an Acknowledgment of Request for Review and Order for CMS Response.  Acknowledgment, Dkt. No. A-20-96.  The Board described the documents in the record

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before the ALJ and ordered CMS to submit a written statement explaining why the documents did not sufficiently establish that Ms. DeGiacomo was Petitioner’s owner and authorized representative and why this case should not be remanded to the ALJ for proceedings on the merits.  Id. at 2-3.  On August 12, 2020, counsel for CMS responded as follows:  “CMS does not dispute that Lisa Marzella DeGiacomo is Petitioner’s authorized representative; CMS has no objection to a remand to the ALJ.”  Response to Board Order, Dkt No. A-20-96.

Discussion

There is no dispute that Petitioner has a right to a hearing before an ALJ.  The July 6, 2020 request for ALJ hearing and supporting documents filed by Ms. DeGiacomo, on behalf of Petitioner, indicate that she is Petitioner’s owner and was, at all relevant times, authorized to act on Petitioner’s behalf.  See Request for Hearing and Supporting Documents, Dkt. No. C-20-642.  Ms. DeGiacomo did not seek a hearing in her individual capacity.  Rather, the request for hearing set out Petitioner’s legal business name, contact information, and Medicare supplier identifying information.  Request for Hearing, Dkt. No. C-20-642.     

In the request for hearing, Ms. DeGiacomo referred to Petitioner as “my business, which was closed for two months.”  Id. (emphasis added).  She continued:

Upon being allowed to reopen, I immediately contacted my insurance broker to get my surety bond expedited. Enclosed are copies of my surety bond, business insurance, and my Certification of Liability.

Id.  All of the referenced documents identify Petitioner by its legal business name as “the insured” or “principal.”  See Request for Hearing Supporting Documents, Dkt. No. C-20-642. 

Still further, the July 6, 2020 Reconsideration Decision of Medicare Administrative Contractor, National Supplier Clearinghouse, which Ms. DeGiacomo submitted with the ALJ hearing request, indicates that CMS recognized Ms. DeGiacomo as Petitioner’s authorized representative.  Originating Case Decision at 1, Dkt. No. C-20-642.  The Reconsideration Decision is addressed to “L&M Optical Inc. Attn: Lisa DeGiacomo,” and opens, “Dear Lisa DeGiacomo.”  Id.  The contractor also provided instructions for appealing the Reconsideration Decision, stating:  “If you believe that this determination is not correct, you may request ALJ review . . . .”  Id. at 4.  The contractor set out the minimum requirements and identifying information for a request for ALJ review, including “Your legal business name” and “Your Medicare [Provider Transaction Access Number].”  Id. at 5.  The Reconsideration Decision does not state that an appointment of representative must be filed with a request for ALJ hearing.

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Finally, the request for review filed by Ms. DeGiacomo on behalf of Petitioner on August 3, 2020, confirmed that Ms. DeGiacomo is the “optician, owner and president” of Petitioner.  Request for Review at 1.

Conclusion

The above-described documents provide sufficient notice that Ms. DeGiacomo is Petitioner’s appointed representative and, absent any objection by CMS, the Board vacates the Order Dismissing Case and remands this matter to the ALJ for further proceedings on the merits.