Joseph L. Russino, M.D., DAB No. 3057 (2022)

Joseph L. Russino, M.D. (Petitioner) appeals the March 30, 2021 decision of the Administrative Law Judge (ALJ) dismissing Petitioner’s request for a hearing pursuant to 42 C.F.R. § 498.70(b).  Joseph L. Russino, M.D., Docket No. C-21-366 (ALJ Dismissal).  The ALJ determined that Petitioner was not entitled to an ALJ hearing because neither the Centers for Medicare and Medicaid Services (CMS) nor its contractor issued a reconsidered determination that was subject to ALJ review.  For the reasons explained below, we affirm the ALJ’s dismissal of Petitioner’s hearing request.

Legal Background

CMS administers the Medicare program, in part through contracts with private contractors who perform certain program functions, including the enrollment of providers and suppliers in the Medicare program on CMS’s behalf.  Social Security Act (Act) §§ 1816, 1842, 1874A; 42 C.F.R. §§ 421.5(b), 421.404(c).  A “supplier” of Medicare services – a term that includes a physician, such as Petitioner – must be enrolled and maintain enrollment in the Medicare program to receive payment for items and services covered by Medicare.  42 C.F.R. §§ 400.202 (defining “Supplier”), 424.505.  “Enrollment” is the process that CMS uses to:  (1) identify a prospective supplier; (2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; (3) identify and confirm a supplier’s owner(s) and practice location(s); and (4) grant the supplier Medicare billing privileges.  Id. § 424.502 (defining “Enroll/Enrollment”); see id. §§ 424.505, 424.510.

CMS may revoke a Medicare supplier’s billing privileges and supplier agreement if the supplier “is determined to not be in compliance with the enrollment requirements described in [42 C.F.R. Part 424, subpart P].”  42 C.F.R. § 424.535(a)(1).  CMS may exercise this revocation authority if, as pertinent here, it determines that in the past ten years the supplier has been “convicted (as that term is defined in 42 CFR § 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries,” or if the supplier fails to comply with the

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reporting requirements in 42 C.F.R. § 424.516(d).  Id. § 424.535(a)(3), (9).  In accordance with 42 C.F.R. § 424.516(d)(1)(ii), physicians (and physician organizations) must report “[a]ny adverse legal action” “to their Medicare contractor” “[w]ithin 30 days[.]”

Revocation of a supplier’s Medicare enrollment is an “initial determination” subject to the review procedures in 42 C.F.R. Part 498.  See 42 C.F.R. § 498.3(a)(1), (b)(17).  A supplier “dissatisfied with an initial determination or revised initial determination related to the denial or revocation of Medicare billing privileges may request reconsideration in accordance with § 498.22(a).”  Id.§ 498.5(l)(1).  Section 498.22, in turn, provides that CMS will reconsider an initial determination, such as a revocation, if the supplier files a request for reconsideration with CMS within 60 days of receiving the notice of initial determination.  Id. § 498.22(a), (b).  The date of receipt of the initial determination is presumed to be five days after the date on the notice, absent a showing it was received earlier or later.  Id. § 498.22(b)(3).  When a reconsideration request has been properly filed, CMS makes a “reconsidered determination, affirming or modifying the initial determination . . . .”  Id. § 498.24(c).  A party unable to file a reconsideration request within 60 days “may file a written request with CMS stating the reasons why the request was not filed timely[;]” and CMS may extend the deadline if it concludes “the affected party shows good cause for missing the deadline.”  Id. § 498.22(d)(1), (2).  Under the regulations, only a supplier “dissatisfied with a reconsidered determination” is entitled to an ALJ hearing.  Id. § 498.5(l)(1).  In the absence of a reconsidered determination in accordance with 42 C.F.R. § 498.24, an initial revocation determination from CMS or a CMS contractor is binding.  See id. § 498.20(b)(1).

An ALJ may dismiss a hearing request “for cause” when the requesting party “is not a proper party or does not otherwise have a right to a hearing.”  42 C.F.R. § 498.70(b).  In turn, a party whose hearing request is dismissed by the ALJ may appeal that dismissal order to the Board.  Id. §§ 498.80, 498.82(a).  An ALJ’s “dismissal of a request for hearing is binding unless it is vacated by the ALJ or the [Board].”  Id. § 498.71(b).

Case Background1

Petitioner is a physician and Medicare supplier practicing obstetrics and gynecology in Pennsylvania.  CMS Exhibit (Ex.) 1, at 17-20.  On May 21, 2018, a Medicare contractor, Novitas Solutions, Inc. (Novitas), received Petitioner’s application, Form CMS 855-I.  See id. at 1, 2.2  Petitioner had signed the application on May 11, 2018, and identified his

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practice locations under Section 4C, titled “Practice Location Information”: 100 E. Lancaster Ave., Suite 317 South, Wynnewood, Pennsylvania (“the Wynnewood location”); and 250 West Lancaster Ave., Suite 19301, Paoli, Pennsylvania (“the Paoli location”).  Id. at 19-20, 30.  Petitioner’s application specifically identified the Wynnewood location as the address to which CMS should direct correspondence related to Petitioner’s application.3  Id. at 26.

On April 9, 2020, Novitas sent a notice letter to Petitioner at the Wynnewood location, stating that it revoked his enrollment and billing privileges for ten years, effective December 20, 2018.4  CMS Ex. 3.  Novitas stated that it revoked Petitioner’s enrollment pursuant to 42 C.F.R. § 424.535(a)(3) based on Petitioner’s December 20, 2018 felony conviction for “Forgery-Unauthorized Act in Writing” in violation of Pennsylvania law.  Id. at 1.  Novitas stated that it also revoked Petitioner’s enrollment pursuant to section 424.535(a)(9) because Petitioner had failed to report that “adverse legal action” as required by section 424.516.  Id.  Novitas informed Petitioner of his appeal rights, including that he could request reconsideration from CMS provided that CMS receive any such request within 65 days of the issue date of the revocation notice letter.  Id. at 1-2.  Novitas further informed Petitioner that if he did not request reconsideration, “CMS deems this a waiver of all rights to further administrative review.”  Id. at 3.

Petitioner submitted a reconsideration request on November 23, 2020, and CMS received the request on that day.  See CMS Ex. 4; CMS Ex. 5, at 1.  Petitioner acknowledged the date of the revocation notice and that his request was a “late filing. . . .”  CMS Ex. 4, at 3.  He nonetheless requested that CMS excuse the lateness and reconsider the revocation of his enrollment and billing privileges because he had been practicing at Lehigh Valley Hospital in Schuylkill County, Pennsylvania5 (“the Pottsville location”) “from June 2017 to 2020,” id. at 2, and he “ha[d] not maintained an office at [the Wynnewood location] since February of 2019.”  Id. at 3.  Petitioner stated that he did not learn of the revocation notice until November 6, 2020, when the mail room at the Wynnewood location notified him of “bulk mail” that had been delivered to that address.  Id.

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By letter dated December 2, 2020, CMS stated that it was “unable to accept” Petitioner’s reconsideration request.  CMS Ex. 5.  CMS explained that Petitioner had filed his request well after the 60-day time limit.  Id.  CMS explained that it had “confirmed that the revocation letter was sent to the correspondence address listed in [Petitioner’s] Medicare enrollment at the time of the initial determination” and informed Petitioner that it had “determined that [Petitioner had] failed to show good cause for [his] late request.”  Id.  CMS advised Petitioner, as Novitas did in its notice of revocation, that the “failure to timely submit a reconsideration request is deemed a waiver of all further administrative review.”  Id.

On January 12, 2021, Petitioner filed an appeal and request for ALJ hearing, challenging the revocation of his enrollment and billing privileges under sections 424.535(a)(3) and 424.535(a)(9) and the imposition of a ten-year re-enrollment bar.  Petitioner also argued that CMS abused its discretion in ruling that his reconsideration request was late and that precluding a review of the merits of his arguments would deny him his right to due process.  See Req. for Hearing.

CMS moved to dismiss Petitioner’s appeal on the ground that Petitioner was not entitled to an ALJ hearing on a CMS dismissal of a request for reconsideration.  CMS’s Motion to Dismiss at 1.  Petitioner opposed the motion, arguing he had never been given sufficient notice of the revocation, “a seminal event that could effectively end his career.”  P. Resp. to Mot. at 4.  Petitioner faulted Novitas for sending its revocation notice only to the Wynnewood location.  Id.  He stated that at the time of the notice he had four work addresses listed on his “PECOS”6 Enrollment Record Summary, two of which (including the Wynnewood location where the notice was sent) were listed under the section titled “Mailing Address,” and two others (including the Pottsville location) that were listed as current locations under the “Reassignment of Benefits” section.7  Id. at 4-5 (citing CMS Ex. 2).  Petitioner argued that the revocation notice should have been sent to all locations listed on the PECOS form, including his asserted current location (the Pottsville location), and he faulted CMS for not also sending the notice to his e-mail address, which was on file.  Id.  Petitioner argued that the ALJ had “discretion to exercise jurisdiction over” Petitioner’s appeal, to give Petitioner “an opportunity to prove mitigating

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circumstances to demonstrate why” revocation should be reversed.  Id. at 6 (citing 42 C.F.R. § 498.40).  Relying on 42 C.F.R. § 498.40(c)(2) (“For good cause shown, the ALJ may extend the time for filing the request for hearing.”), Petitioner maintained that an ALJ may consider a “late request for a hearing.”  Id.  He asked the ALJ to “extend the time for the filing of a request for a hearing” in accordance with section 498.80 for good cause shown.  Id. at 7-8.  Petitioner also raised equitable and due process arguments in support of his request for a hearing.  Id. at 2-3.

On March 30, 2021, the ALJ granted CMS’s motion to dismiss, concluding that he did “not have jurisdiction to review either CMS’s dismissal of Petitioner’s reconsideration request or the underlying determination by Novitas to revoke Petitioner’s enrollment.”  ALJ Dismissal at 3.  The ALJ observed that the “regulations afford Petitioner a right to ALJ review only when there is a reconsidered determination or a revised reconsidered determination[;]” but that CMS had dismissed Petitioner’s untimely request for reconsideration, and a “dismissal of a request for reconsideration is not a determination subject to ALJ review.”  Id. (citing 42 C.F.R. § 498.5(l)(2)) (citations omitted).8  The ALJ also rejected as inapt Petitioner’s request for an extension of time to request an ALJ hearing under section 498.40, stating that “[w]hile the regulations do permit me to extend the time for filing of an otherwise valid hearing request, I cannot extend the time for filing a hearing request I do not have the jurisdiction to entertain in the first place.”  Id. (citing 42 C.F.R. § 498.70(c)).

Petitioner timely appealed the ALJ Dismissal to the Board.

Standard of Review

The standard of review on a disputed factual issue is whether the ALJ’s decision is supported by substantial evidence in the record as a whole.  The standard of review on a disputed issue of law is whether the ALJ’s decision is erroneous.  See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program, at https://www.hhs.gov/about/agencies/‌dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html.  In this case, there are no reviewable factual disputes; we are reviewing only the ALJ’s legal conclusion dismissing Petitioner’s request for hearing.

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Analysis

In his brief in support of his request for Board review of the ALJ Dismissal (P. Br.), Petitioner asserts that he timely filed his request for reconsideration with CMS within 60 days from his receipt of the April 9, 2020 revocation notice on or around November 6, 2020, and “CMS was therefore required to extend the time for filing of the request for reconsideration” under section 498.22(d)(2).  P. Br. at 4-5, 6-7.  Petitioner also asserts that he had good cause for filing his reconsideration request on November 23, 2020, because, he says, Novitas’s sending the revocation notice to a single address by “ordinary mail and not by certified mail” was “obviously minimal and under the circumstances was totally insufficient.”  Id. at 4.  According to Petitioner, the contractor could have and should have sent the revocation notice to his other addresses, including the Pottsville location where he says he has worked since June 2019.  Id. at 3-4, 7, 8-9, 14, 15.  Petitioner also argues that the ALJ erred in concluding he did not have jurisdiction to review the underlying determination to revoke his enrollment and billing privileges.  Id. at 6-11.  Petitioner argues, moreover, that CMS and the ALJ violated his due process rights by “insulat[ing]” the dismissal of his reconsideration request – an action Petitioner says amounts to “an abuse of government discretion” – from any further administrative review.  Id. at 10-14.

We conclude that the ALJ did not err in dismissing Petitioner’s hearing request, a decision that was governed by Part 498 regulations and Board precedent.  An ALJ may dismiss a hearing request if the appellant “is not a proper party or does not otherwise have a right to a hearing.”  42 C.F.R. § 498.70(b).  Physicians and other suppliers have a right to a hearing before an ALJ if they are “dissatisfied with a reconsidered determination. . . .”  Id. § 498.5(l)(2) (emphasis added).  “[T]he regulations plainly require that CMS or one of its contractors issue a ‘reconsidered determination’ before the affected party is entitled to request a hearing before an ALJ.”  Capital Dist. Behavioral Health Psychologists, PLLC, DAB No. 2866, at 4 (2018) (citation and internal quotation marks omitted); see also Denise A. Hardy, D.P.M., DAB No. 2464, at 4 (2012) (“[O]nly reconsidered determinations related to the denial or revocation of billing privileges are eligible for ALJ review.”); Hiva Vakil, M.D.,DAB No. 2460, at 5 (2012) (cited in page 3 of the ALJ Dismissal).9  Here, CMS dismissed Petitioner’s request for reconsideration as untimely and lacking good cause for the late filing, and as a result, CMS did not issue a “reconsidered determination.”  CMS Ex. 5.  The absence of any such reconsidered determination thus rendered the contractor’s April 9, 2020 revocation determination binding and administratively final.  See 42 C.F.R. § 498.20(b)(1).  See also Haissam Elzaim, M.D., DAB No. 2501, at 4 (2013) (holding physician had no right to ALJ review

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of revocation where he argued that CMS improperly dismissed his reconsideration request as untimely); Better Health Ambulance, DAB No. 2475, at 4 (2012) (same).

In Karthik Ramaswamy, M.D., DAB No. 2563 (2014), aff’d, Ramaswamy v. Burwell, 83 F. Supp. 3d 846 (E.D. Mo. 2015), the Board explained the limitations on its jurisdiction to review appeals regarding the dismissal of a reconsideration request:

The regulations set out which contractor actions and determinations are reviewable.  They do not provide for further review from a contractor dismissal of a reconsideration request as untimely.  For us to entertain arguments that [the CMS contractor] applied erroneous standards, made erroneous findings, or reached erroneous conclusions in dismissing this reconsideration request would amount to reviewing the dismissal, which we, like the ALJ, have no authority to do.

Id. at 7; accord Rollington Ferguson, M.D., DAB No. 2949, at 4 (2019) (affirming dismissal of request for ALJ hearing because CMS dismissal of untimely request for reconsideration was not a determination subject to ALJ review), appeal dismissed, No. 4:19-cv-05262-YGR, 2020 WL 5653285 (N.D. Cal. Sept. 23, 2020), aff’d, No. 20-17451, 2021 WL 4893349 (9th Cir. Oct. 20, 2021).

Petitioner here, like the petitioners in Ramaswamy and Ferguson, objects to, and seeks relief from, the dismissal of his reconsideration request.  However, because such a dismissal is not a determination subject to review under the regulations, and a supplier has no right to ALJ review in the absence of a reconsidered determination, the ALJ lacked the authority to review the merits of either CMS’s dismissal of Petitioner’s reconsideration request or the initial determination revoking Petitioner’s enrollment and billing privileges.

We also reject Petitioner’s argument that the ALJ, under 42 C.F.R. § 498.40(c), should have “exercise[d] jurisdiction over [his] request to reconsider the revocation of [h]is Medicare billing privileges.”  P. Br. at 6.  Petitioner appears to have conflated section 498.40, which governs only requests for a hearing before an ALJ, with the regulatory provisions under which CMS or its contractor, in the first instance, may reconsider its determination to revoke billing privileges.10   See 42 C.F.R. § 498.22(a)-(b), (d).  Section

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498.40 does not, as Petitioner contends, permit an ALJ to provide an affected party additional time to file a request for reconsideration; nor does the section permit an ALJ to find that an affected party had good cause to file an untimely request for reconsideration.  Moreover, section 498.40 had no bearing on the ALJ’s dismissal of Petitioner’s appeal, as the ALJ did not find Petitioner’s request for ALJ hearing was untimely.  The issue before the ALJ was whether Petitioner was entitled to an ALJ hearing in the first place, an issue that section 498.40 does not address.  Indeed, the cases on which Petitioner relies in support of his argument (see P. Br. at 6, 8) did not, unlike here, present the issue of whether the ALJs had jurisdiction over the appeals for lack of a reconsidered determination, but rather the issue of timeliness of a request for hearing before an ALJ challenging the underlying contractor or CMS action for which a reconsidered determination had been issued.  See, e.g., Erin Engel, D.P.M., DAB CR5669, at 5-7 (2020) (denying CMS’s motion to dismiss request for hearing as late and then determining that the request for hearing was timely filed); Fairway Med. Clinic & Shadow Creek Med. Clinic, DAB No. 2811, at 12-14 (2017) (affirming ALJ’s dismissal of petitioners’ requests for hearing as untimely and not supported by good cause), aff’d sub nom. Murtaza Mussaji, D.O., P.A. v. United States Dep’t of Health & Human Servs., 741 F. App’x 222 (5th Cir. July 23, 2018).11

In short, section 498.40 is not authority by which the ALJ may assume jurisdiction over Petitioner’s appeal.  Section 498.40 also does not, as Petitioner seems to argue, empower the ALJ to look behind CMS’s determination that Petitioner had failed to file a timely reconsideration request and effectively overrule that determination to give Petitioner extra time to request a reconsidered determination.

Relying on Smith v. Berryhill, 139 S. Ct. 1765 (2019), Petitioner argues that the merits of his delayed appeal ought to undergo review by an ALJ of the Civil Remedies Division within the Departmental Appeals Board.  See P. Br. at 10-11.  We are not persuaded that Smith compels us to rule in Petitioner’s favor.  That case arose from the Social Security Administration Appeals Council’s dismissal of an untimely request for review of a Social Security Administration ALJ’s merits decision following a hearing before an ALJ on an application for supplemental security income.  The claimant sought judicial review of the dismissal.  139 S. Ct. at 1773.  Section 205(g) of the Act permits judicial review of “any final decision . . . made after a hearing” by the Social Security Administration.  Affirming the dismissal by the U.S. District Court for the Eastern District of Kentucky for lack of

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subject matter jurisdiction (No. 5:16-cv-00003), the U.S. Court of Appeals for the Sixth Circuit held that the Appeals Council’s dismissal of an untimely request for review of the ALJ’s decision was not a “final decision” subject to judicial review.  Smith, 139 S. Ct. at 1773 (citing Smith v. Commissioner of Social Security, 880 F.3d 813, 814 (6th Cir. 2018)).  The Supreme Court granted certiorari and reversed, holding that the Appeals Council’s dismissal as untimely after the claimant had obtained a hearing before an ALJ on the merits amounted to a “final decision . . . made after a hearing” that would be subject to judicial review in federal court pursuant to section 205(g) of the Social Security Act (42 U.S.C. § 405(g)).12   Id. at 1771, 1780.  Thus, the Court’s decision in Smith was limited to addressing the scope of judicial review, which turned on the meaning of the language in section 205(g) of the Act.  See id. at 1773-76.

The issue presented in Petitioner’s case, however, is different from that in Smith.  The issue before the Board, an administrative adjudicative body, is whether an ALJ of the Departmental Appeals Board had jurisdiction under governing HHS regulations in 42 C.F.R. Part 498 to review an appeal of CMS’s (or its contractor’s) dismissal of a request for reconsideration of an initial determination revoking a Medicare supplier’s enrollment and billing privileges.  As explained above, an ALJ has no authority under the applicable regulations to review CMS’s dismissal of a request for reconsideration under these circumstances.

For similar reasons, Petitioner’s constitutional challenges, including his contention that he was denied due process, cannot be resolved in this forum.13   See P. Br. at 12-14.  ALJs and the Board “are bound by the regulations and may not declare them unconstitutional or decline to follow them on that basis.”  Mohammad Nawaz, M.D., et al., DAB No. 2687, at 15 (2016) (citation omitted), aff’d, No. 4:16-cv-486, 2017 WL 2798230 (E.D. Tex. June 28, 2017), aff’d sub nom., Shah v. Azar, 920 F.3d 987 (5th Cir. 2019).

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Moreover, with respect to appeals under Part 498, ALJs and the Board may only review issues “specifically identified” in the regulations as “appealable administrative actions.”  Nawaz, DAB No. 2687, at 15 (citing Vijendra Dave, M.D., DAB No. 2672, at 10-11 (2016)).  ALJs are not free to disregard applicable laws and regulations based on constitutional arguments.  See, e.g., Horace Bledsoe, M.D. and Bledsoe Family Medicine, DAB No. 2753, at 11 (2016) (holding ALJ “may not reverse a revocation authorized by the regulations based on arguments of constitutional invalidity”), appeal dismissed, Bledsoe v. Price, No. 3:17-cv-00442 (D.S.C. May 4, 2017); Mission Home Health, et al., DAB No. 2310, at 8 (2010) (stating that the facility’s “argument that its constitutional rights were violated . . . provides no basis to reverse a denial of enrollment that is fully supported by the applicable laws and regulations”) (citation omitted), appeal dismissed, Garcia v. Sebelius, No. 5:10-cv-00456 (W.D. Tex. Apr. 6, 2011); Louis J. Gaefke, D.P.M., DAB No. 2554, at 11 n.10 (2013) (“Nothing in the regulations authorizes the ALJ to reverse a revocation to sanction CMS for alleged due process violations where CMS had a basis for the revocation under section 424.535(a).”), appeal dismissed, Gaefke v. Sebelius, No. 2:14-cv-02085 (D. Kan. Aug. 8, 2014).  Accordingly, the ALJ had no authority to decline to follow or declare unconstitutional the regulations governing the ALJ’s limited jurisdiction in this case.

Accordingly, we affirm the ALJ’s dismissal of Petitioner’s request for a hearing.  Because the only issue before us is whether the ALJ correctly dismissed Petitioner’s request for hearing for lack of jurisdiction, we do not address the merits of Petitioner’s arguments that revocation under sections 424.535(a)(3) and 424.535(a)(9) was erroneous, that the contractor’s notice of revocation was defective or inadequate, or that Petitioner’s request for reconsideration was timely and/or supported by “good cause.”  The initial determination revoking Petitioner’s enrollment and billing privileges is binding and administratively final.

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Conclusion

For the foregoing reasons, we affirm the ALJ’s dismissal of Petitioner’s hearing request.

1. The background section is drawn from the ALJ Dismissal and the record before the ALJ.
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2. The contractor apparently considered Petitioner’s May 2018 submission as an application to revalidate his enrollment in Medicare. See CMS Ex. 1, at 2. To maintain billing privileges, suppliers must periodically revalidate their enrollment by resubmitting and recertifying their enrollment information. See 42 C.F.R. § 424.515.
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3. The instructions accompanying section 4C of the form instruct the applicant to “[c]omplete this section for each of your practice locations where you render services to Medicare beneficiaries.” CMS Ex. 1, at 18.
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4. The ALJ Dismissal incorrectly reported that the notice of revocation issued by Novitas (CMS Ex. 3) states that Petitioner’s revocation was effective December 2, 2018. See ALJ Dismissal at 1 (citing CMS Ex. 3), 3. As explained below, the notice of revocation is the final administrative determination, and the effective date of Petitioner’s revocation is December 20, 2018, as stated in the notice of revocation.
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5. In later filings with the ALJ, it became clear that the referenced Lehigh Valley Hospital is located at 700 E. Norwegian Street, Pottsville, Pennsylvania. See, e.g., P. Resp. to Mot. at 4; CMS Ex. 2, at 4. For ease of reference, we refer to this location as “the Pottsville location.”
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6. The Provider Enrollment, Chain, and Ownership System, or “PECOS,” is a web-based Medicare enrollment management system by which providers and suppliers can apply to enroll in Medicare, revalidate and renew their enrollment, report changes to their enrollment records, and withdraw from or opt out of Medicare. See 42 C.F.R. § 424.502 (defining “PECOS”); https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/Manage-Your-Enrollment.
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7. Of the two “Mailing Addresses” listed on that PECOS Enrollment Record Summary dated February 12, 2021, both were listed as “Correspondence” addresses but only one of the two, the Wynnewood location, was listed as current, with the other address listed with an “End Date” of “08/10/2016.” CMS Ex. 2, at 2. Neither of the “Mailing Address” locations was the updated location where Petitioner claimed he was now working and to which he claimed the notice should have been sent. Id.
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8. We do not read the ALJ Dismissal as “ruling” that Petitioner’s reconsideration request was, in fact, “late” as Petitioner contends. P. Br. at 4. The ALJ concluded that CMS’s dismissal of Petitioner’s “request for reconsideration is not a determination subject to ALJ review.” ALJ Dismissal at 3. Thus, the ALJ’s use of the word “untimely” in describing Petitioner’s reconsideration request appears intended only to convey the context for CMS’s dismissal and does not represent a legal or factual determination about the propriety of CMS’s dismissal determination, which (as the ALJ concluded) is not subject to ALJ review under the applicable regulations.
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9. The Board also has stated that the question of whether “good cause” exists for purposes of extending the time for filing a request for reconsideration under 42 C.F.R. § 498.22(d)(2) is not itself a “reconsidered determination” subject to ALJ review. See Vakil, DAB No. 2460, at 5 n.5 (citing 42 C.F.R. §§ 498.5(l)(2), 498.24).
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10. The regulations in 42 C.F.R. § 498.40, captioned “Request for Hearing,” provide in part that a party who is entitled to a hearing before an ALJ “may file a request for a hearing with the ALJ office identified in the determination letter,” provided that such request is “file[d] . . . within 60 days from receipt of the notice of initial, reconsidered, or revised determination . . . .” Id. § 498.40(a)(1)-(2). Section 498.40(c) governs scenarios where a party’s request for an ALJ hearing under this section is not filed within 60 days. This provision permits the party to “file with the ALJ a written request for extension of time stating the reasons why the request was not filed timely. . .[,]” and “[f]or good cause shown, the ALJ may extend the time for filing the request for hearing.” Id. § 498.40(c)(1), (2). The issue before the ALJ was not whether Petitioner’s request for hearing was late, but whether Petitioner had a right to an ALJ hearing at all.
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11. Unlike Petitioner’s case and Engel, DAB CR5669 (which Petitioner cites in page 6 of his brief), which arose from CMS’s revocation of Medicare enrollment and billing privileges under various provisions in 42 C.F.R. § 424.535(a), Fairway and Shadow Creek arose from CMS’s revocation of laboratory certificates under the Clinical Laboratory Improvement Amendments of 1988. See Fairway & Shadow Creek, DAB No. 2811, at 1. Fairway and Shadow Creek did not present the issue of ALJ jurisdiction presented in Petitioner’s case.
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12. The Court noted that “[a] different question would be presented by a claimant who assertedly faltered at an earlier step – e.g., whose request for an ALJ hearing was dismissed as untimely and who then appealed that determination to the Appeals Council before seeking judicial review.” 139 S. Ct. at 1777 n.17. Although the Court stated that “such a claimant would not have received a ‘hearing’ at all, the Court’s precedents also make clear that a hearing is not always required” and, because such a situation was not before the Court, the Court would not consider it. See id. The Court did not address in Smith whether judicial review of an administrative-level dismissal (without a hearing) is available under section 205(g) of the Act.
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13. Petitioner’s due process argument rests on the premise that suppliers possess a constitutionally-protected property right to continued participation in Medicare. P. Br. at 12. Although we do not reach the issue, we note that five federal circuit courts of appeals have rejected similar arguments asserting a property interest in retaining Medicare billing privileges. See Shah v. Azar, 920 F.3d 987, 997-98 & n.30 (5th Cir. 2019) (Fifth Circuit holding that it found persuasive the holdings of the First, Sixth, Ninth, and Tenth Circuits, which have “explicitly rejected” this property interest claim) (citing Parrino v. Price, 869 F.3d 392, 397-98 (6th Cir. 2017) (collecting cases)); see also Lilia Gorovits, M.D., P.C. v. Becerra, No. 20-1850, 2021 WL 1962903, at *6 (E.D. Pa. May 17, 2021) (concluding physician does not have a protected property interest in her continued participation in the Medicare program or in maintaining her billing privileges).
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