Dhiraj Kotwal, M.D., ALJ Ruling 2020-4 (HHS CRD Nov. 13, 2019)

DISMISSAL

Petitioner, Dhiraj Kotwal, M.D., challenges the effective date of his participation in the Medicare program.  However, the Medicare contractor dismissed, as untimely, his request for reconsideration.  Petitioner then requested this review.  The Centers for Medicare & Medicaid Services (CMS) moves to dismiss, arguing that Petitioner has no right to further review because he did not obtain a reconsidered determination.

Although the contractor obviously misunderstands the regulations governing the timeliness of appeals and may have improperly dismissed Petitioner’s request, I have no choice but to grant CMS’s motion and dismiss this case pursuant to 42 C.F.R. § 498.70(b). 

Background

Petitioner Kotwal is a Texas physician, specializing in infectious diseases.  CMS Ex. 1; P. Ex. 1.  He applied for enrollment in the Medicare program, and, in a letter dated November 4, 2016, the Medicare contractor, Novitas Solutions, Inc., advised him that his enrollment application had been approved with an effective date of August 28, 2016. 

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The notice also advised that, if he disagreed with the established effective date, he could request reconsideration before a contractor hearing officer.  CMS Ex. 4. 

The notice incorrectly advised Petitioner that his request had to be submitted “within 60 calendar days of the postmark date of this letter.”  CMS Ex. 4 at 3.  In fact, the regulations that govern reconsideration provide that the request must be filed “[w]ithin 60 days from receipt of the notice of initial determination.”  42 C.F.R. § 498.22(b)(3) (emphasis added).  The date of receipt is presumed to be five days after the date on the notice unless there is a showing that it was, in fact, received earlier or later.  The regulations also require CMS to extend the time for filing if the affected party shows good cause for missing the deadline.  42 C.F.R. § 498.22(d)(2).  Here, the contractor’s notice letter says nothing about the Petitioner’s right to request an extension of time.1

CMS also seems to be under the misapprehension that the date of filing is the date the contractor receives the request.  While this is true of enrollment applications, the rules for requesting review under section 498 differ.  The Departmental Appeals Board has long maintained that appeals filed pursuant to the section 498 regulations are deemed filed when they are mailed.  Riverview Village, DAB No. 1840 (2002).

Petitioner’s request for reconsideration is dated November 21, 2016.  It appears that Petitioner submitted it three times, and that the first of these may have been filed timely.  CMS Ex. 5 at 5 (“Second Attempt”); CMS Ex. 5 at 19 (“Third Attempt”); see CMS Ex. 5 at 9, 23; P. Ex. 1 at 2 (Kotwal Decl. ¶ 10); P. Ex. 3 at 3, 7 (showing mailing date of December 23, 2016, within the 60-day deadline); P. Ex. 10 (showing delivery date of December 24, 2016, signed by G. Welsh).

In any event, on March 3, 2017, the contractor dismissed Petitioner’s request for reconsideration because it was not filed within “the designated timeframe.”  CMS Ex. 7.   

Discussion

To receive Medicare payments for services furnished to program beneficiaries, a Medicare supplier must be enrolled in the Medicare program.  42 C.F.R. § 424.505.  To enroll in Medicare, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  When CMS determines that a supplier meets the applicable enrollment requirements, it grants him Medicare billing privileges.  For physicians, the effective date for billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “[t]he date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

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CMS’s determination as to the effective date of enrollment is an “initial determination” that is subject to review under the procedures set forth in 42 C.F.R. Part 498.  42 C.F.R. § 498.3(a)(1), (b)(15).  A supplier or prospective supplier dissatisfied with an initial determination may request reconsideration by filing a written request within 60 days from receipt of the notice of the initial determination.  42 C.F.R. §§ 498.5(d)(1), (l)(1), 498.22.  If CMS (or its contractor) receives a properly-filed request for reconsideration, it makes a reconsidered determination affirming or modifying the initial determination.  42 C.F.R. § 498.24(c).  A supplier or prospective supplier dissatisfied with a reconsidered determination is entitled to a hearing before an administrative law judge (ALJ).  42 C.F.R. §§ 498.5(d)(2), (l)(2), 498.40. 

The regulations do not provide for a hearing in the absence of a reconsidered determination, even though this “may in certain situations be unfair.”  Ramaswamy v. Burwell, 83 F. Supp.3d 846, 854 (E.D. Mo. 2015); Rollington Ferguson, M.D., DAB No. 2949 (2019); Denise A. Hardy, D.P.M., DAB No. 2464 at 4-5 (2012); Hiva Vakil, M.D., DAB No. 2460 at 4-5 (2012).2

Conclusion

Because neither CMS nor its contractor issued a reconsidered determination, Petitioner does not have a right to an ALJ hearing.  I therefore dismiss his hearing request pursuant to 42 C.F.R. § 498.70(b).

1. I urge CMS to amend its misleading notice letters so that they accurately reflect the regulations.
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2.  But this issue is ultimately not settled.  In a Social Security appeal brought pursuant to section 405(g) of the Social Security Act, the Supreme Court recently determined that the Appeals Council’s dismissal of a request for review is a “final decision . . . made after a hearing” and thus subject to federal court review.  The Supreme Court explicitly left open the question of whether a federal court may review dismissals made at the lower levels of the administrative review process.  Smith v. Berryhill, 139 S. Ct. 1765 at 1777 n.17 (2019).  In arguing that such a dismissal is not reviewable, an agency advocate might prefer a less disturbing set of facts than those presented here. 
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