Resource Health Care, Inc., DAB No. 3063 (2022)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DISMISSAL

Resource Health Care, Inc. (Petitioner) appeals the October 18, 2021 ruling of an Administrative Law Judge (ALJ) dismissing Petitioner’s request for a hearing.  Resource Health Care, Inc., Dismissal, Docket No. C-22-40 (ALJ Dismissal).  The ALJ determined that Petitioner had no right to an ALJ hearing because the Centers for Medicare and Medicaid Services (CMS) did not issue a reconsidered determination that would have entitled Petitioner to ALJ review.  The ALJ further concluded that she had no authority to review CMS’s dismissal of Petitioner’s request for reconsideration.  For the reasons explained below, we affirm the ALJ’s dismissal of Petitioner’s hearing request under 42 C.F.R. § 498.70(b).

Legal Background

CMS or its contractor may revoke a provider’s Medicare billing privileges and corresponding provider agreement if, among other reasons, the provider “is determined to not be in compliance with the enrollment requirements described in [42 C.F.R. Part 424] subpart P” or its applicable enrollment application.  42 C.F.R. § 424.535(a)(1).1   The decision to revoke a provider’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 provider “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 provides, in pertinent part, that a provider may request reconsideration of an initial determination by filing a written request with CMS within 60 days of receipt of the notice of initial determination.  Id. § 498.22(a), (b)(3).  

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If an affected party is unable to timely request reconsideration, it may request an extension of time by filing a written request with CMS stating the reasons why the request for reconsideration was not timely filed.  Id. § 498.22(b)(3), (d)(1).  CMS will extend the deadline to request reconsideration “if the affected party shows good cause for missing the deadline.”  Id. § 498.22(d)(2). 

When a request for reconsideration is properly filed, CMS “[m]akes a reconsidered determination, affirming or modifying the initial determination and the findings on which it was based.”  Id. § 498.24(c).  A provider “dissatisfied with a reconsidered determination . . . is entitled to a hearing before an ALJ.”  Id. § 498.5(l)(2).  An initial determination to revoke billing privileges is “binding” unless it is reconsidered under section 498.24, reversed or modified by a hearing decision under section 498.78 (remand by an ALJ), or revised under sections 498.32 or 498.100 (reopening and revision).  42 C.F.R. §§ 498.20(b), 498.24.

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).  A party whose hearing request is dismissed by an ALJ may appeal that dismissal to the Board.  Id. §§ 498.80, 498.82(a).

Case Background2

Petitioner is a home health agency located in Houston, Texas that participated in the Medicare program.   See Declaration of Matthew Mba (Aug. 2, 2021), Docket No.
C-22-40 (ALJ Dkt.) #1c, at ¶¶ 2-3.3  On October 13, 2020, Palmetto GBA (Palmetto), a Medicare contractor for CMS, sent a notice to Petitioner stating that Petitioner’s Medicare billing privileges were being revoked effective December 12, 2019.  Revocation Notice (Oct. 13, 2020), ALJ Dkt. #1a, at 1.  Palmetto sent the revocation notice to 7447 Harwin Drive, Suite 216, Houston, Texas.  Id.  The notice stated that Petitioner’s billing privileges were being revoked pursuant to 42 C.F.R. § 424.535(a)(1)(i) because Petitioner was not in compliance with Medicare requirements.  Id.  The notice further informed Petitioner of its appeal rights, including the right to request reconsideration within 65 days of the date of the revocation notice.  Id. at 2 (providing that any reconsideration request must be received by CMS in writing “within

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65 calendar days of the date of this letter”).4   The notice further advised Petitioner that if it did not request reconsideration, “CMS deems this a waiver of all rights to further administrative review.”  Id. at 3.

CMS received a request for reconsideration from Petitioner on August 2, 2021, nearly ten months after the date of the revocation notice.  See Letter Dismissing Reconsideration Request (Aug. 16, 2021), ALJ Dkt. #1b, at 1.5   By letter dated August 16, 2021, CMS notified Petitioner’s counsel that it was dismissing Petitioner’s request for reconsideration as untimely.  Id. (“CMS is unable to accept [Petitioner’s] reconsideration request as it was not timely submitted.”).  CMS explained that it did not receive Petitioner’s reconsideration request until August 2, 2021, which was beyond the applicable filing deadline.  Id.6   CMS stated that it confirmed the revocation notice “was sent to the correspondence mailing address listed in [Petitioner’s] Medicare enrollment at the time of the initial determination.”  Id.  CMS further determined that Petitioner “failed to show good cause for its late request” and, therefore, CMS was “unable to render” a reconsidered determination.  Id.

On October 14, 2021, Petitioner filed a request for hearing before the ALJ challenging the revocation of its Medicare billing privileges and CMS’s dismissal of its request for reconsideration.  See Request for Hearing (RFH).  Petitioner asserted that it “did not receive the notice of revocation due to an address change” and, therefore, CMS failed to give proper notice of the revocation.  RFH at 1 (alleging Petitioner “never received the October 13, 2020 correspondence as it was mailed to the wrong address”); but see Mba Decl., Dkt. #1c, at ¶ 8 (alleging that Petitioner’s owner received the revocation notice from counsel on July 28, 2021).  Petitioner argued that CMS’s failure to send the revocation notice to the correct address prevented Petitioner from submitting a timely request for reconsideration.  RFH at 2-3.  Petitioner argued that this error was analogous to defective “service of process” under the Federal Rules of Civil Procedure and that CMS violated its due process rights.  Id.  Petitioner further requested that the ALJ grant an extension “for filing the request for hearing” because Petitioner “was unable to file this appeal within 60 days due to CMS’s failure to give proper notice” of the revocation.  Id. (citing 42 C.F.R. § 498.40(c) (authorizing ALJs to extend the time for filing a request for hearing for good cause shown)).

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On October 18, 2021, the ALJ dismissed, sua sponte, Petitioner’s hearing request on the ground that Petitioner had no right to a hearing absent a reconsidered determination.  ALJ Dismissal at 1 (“No statutory or regulatory provision allows for a hearing before an ALJ in the absence of a reconsidered determination.”).  The ALJ further explained that “a provider or supplier has no right to appeal CMS’s dismissal of an untimely request for reconsideration.”  Id. at 2 (citing Karthik Ramaswamy, M.D., DAB No. 2563, at 7 (2014), aff’d, Ramaswamy v. Burwell, 83 F. Supp. 3d 846 (E.D. Mo. 2015)).  The ALJ concluded that she had no jurisdiction over Petitioner’s hearing request absent a reconsidered determination and no authority to address CMS’s refusal to accept an untimely request for reconsideration.  Id.

On December 16, 2021, Petitioner timely appealed the ALJ Dismissal to the Board.  See 42 C.F.R. § 498.80.

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.

Analysis

In its Request for Review (RR) filed with the Board, Petitioner reiterates the arguments it made in its Request for Hearing before the ALJ.  Petitioner further asserts that the ALJ’s dismissal of its hearing request was improper because it “did not receive a copy of the revocation [notice].”  RR at 2 (¶ 6).  Petitioner maintains that the revocation notice was allegedly “mailed to the wrong address” and, therefore, Petitioner did not timely file its request for reconsideration.  Id. at 1 (¶ 1).  In its Reply, Petitioner asserts that it had “good cause” for the late filing of its reconsideration request and that “the ALJ erred in not determining good cause existed.”  P. Reply at 4 (citing 42 C.F.R. § 498.22(d)(2)). Petitioner continues to assert that its due process rights were violated and again requests an extension of time, this time under 42 C.F.R. §§ 498.95(c) and 498.40(c).  RR at 2-3.7   For the reasons explained below, we reject Petitioner’s contentions and affirm the ALJ’s dismissal of Petitioner’s hearing request.

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The ALJ’s dismissal of Petitioner’s request for hearing is supported by the governing regulations and Board precedent.  An ALJ may dismiss a request for hearing if the petitioner “is not a proper party or does not otherwise have a right to a hearing.”  42 C.F.R. § 498.70(b).  Indeed, not every determination made by CMS or its contractors is subject to ALJ review.  Providers and suppliers are entitled to a hearing before an ALJ if they are “dissatisfied with a reconsidered determination.”  Id. § 498.5(l)(2) (emphasis added).  The Board has long held that “the 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.”  Rollington Ferguson, M.D., DAB No. 2949, at 3 (2019) (quoting Cap. Dist. Behav. Health Psychs., PLLC, DAB No. 2866, at 4 (2018) (quoting Hiva Vakil, M.D., DAB No. 2460, at 5 (2012))); 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.”).  Thus, absent a reconsidered determination, Petitioner has no right to an ALJ hearing, and its arguments concerning an alleged change of address and lack of timely notice have no bearing on this matter.  See Joseph L. Russino, M.D., DAB No. 3057, at 6 (2022) (holding supplier had no right to ALJ hearing absent a reconsidered determination where supplier contested receipt of revocation notice and CMS dismissed reconsideration request as untimely and lacking good cause for late filing); Haissam Elzaim, M.D., DAB No. 2501, at 4-5 (2013) (holding supplier had no right to ALJ hearing without a reconsidered determination where revocation notice was allegedly sent to old address and reconsideration request was denied as untimely); Better Health Ambulance, DAB No. 2475, at 4-5 (2012) (holding supplier had no right to ALJ hearing absent a reconsidered determination where contractor dismissed supplier’s reconsideration request as untimely).

Moreover, Petitioner is not entitled to ALJ review of CMS’s dismissal of Petitioner’s request for reconsideration or its determination that Petitioner failed to show good cause for the late filing.  See Russino at 6-7 (holding that CMS’s dismissal of a request for reconsideration as untimely was not a determination subject to ALJ review); Ferguson at 4 (holding that dismissal of untimely request for reconsideration was not a determination subject to ALJ review); Karthik Ramaswamy, M.D., DAB No. 2563, at 7 (2014) (holding that the regulations do not authorize ALJ review of the dismissal of a reconsideration request as untimely); Better Health Ambulance at 4-5 (concluding that the ALJ erred in reaching the question of whether there was “good cause” for supplier’s untimely request for reconsideration because the dismissal of a reconsideration request is not a reconsidered determination subject to ALJ review).  Here, Petitioner concedes CMS did not issue a reconsidered determination.  Thus, the ALJ had no authority to review the merits of either CMS’s dismissal of Petitioner’s reconsideration request or Palmetto’s initial determination revoking Petitioner’s enrollment and billing privileges.  See Russino at 7 (citing Ramaswamy and Ferguson).  The absence of a reconsidered determination renders Palmetto’s initial determination dated October 13, 2020, binding and administratively final.  42 C.F.R. § 498.20(b). 

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Still further, Petitioner’s constitutional arguments, including its contention that it was denied due process, cannot be resolved in this forum.  See Russino at 9-10.  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-386, 2017 WL 2798230 (E.D. Tex. June 28, 2017), aff’d sub nom., Shah v. Azar, 920 F.3d 987 (5th Cir. 2019).  Moreover, ALJs and the Board may only review issues “specifically identified” in the regulations as “appealable administrative actions.”  Nawaz at 15(citation omitted).  “ALJs are not free to disregard applicable laws and regulations based on constitutional arguments.”  Russino at 10 (collecting cases).  “Accordingly, the ALJ had no authority to decline to follow or declare unconstitutional the regulations governing the ALJ’s limited jurisdiction in this case.”  Id.

Lastly, we reject Petitioner’s vague request, under 42 C.F.R. §§ 498.95(c) and 498.40(c), for “an extension of time for filing the request for hearing.”  RR at 2, 3.  The ALJ did not dismiss Petitioner’s request for hearing because it was untimely, but because the ALJ had no jurisdiction absent a reconsidered determination.  ALJ Dismissal at 2.  Section 498.95(c) authorizes the Board to grant an extension of time for a party to seek judicial review of a Board decision and has no application here.  Section 498.40(c) is also inapplicable.  As explained in Russino, section 498.40(c) authorizes an ALJ to extend the time for a party entitled to an ALJ hearing to request a hearing; it does not authorize an ALJ to extend the time for a supplier or provider to request reconsideration of an initial determination.  See Russino at 7-8.  In short, neither regulation cited by Petitioner authorizes an extension of time that would confer the ALJ with jurisdiction or provide a basis for vacating the ALJ’s dismissal of Petitioner’s hearing request.

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Conclusion

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

1. Under 42 C.F.R. § 400.202, the term “provider” includes a home health agency, such as Petitioner, “that has in effect an agreement to participate in Medicare.”
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2. The background section is drawn from the ALJ Dismissal and the record before the ALJ.
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3. Petitioner submitted three documents with its Request for Hearing but labeled only the first of the documents as an exhibit (Exhibit A).  See Docket No. C-22-40.  We cite to each of these three documents with a brief description followed by a reference to the ALJ docket number as it appears in DAB E-File.
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4. Palmetto calculated the deadline to be 65 days after the date of the revocation notice because the date of receipt is presumed to be five days after the date on the notice, unless there is a showing that the notice was, in fact, received earlier or later.  See 42 C.F.R. § 498.22(b)(3).
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5. Petitioner did not include a copy of its reconsideration request with its submission to the ALJ.  In any event, Petitioner does not dispute that CMS received its reconsideration request on August 2, 2021.
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6. Based on the date of the revocation notice (October 13, 2020), Petitioner’s request for reconsideration was due on December 17, 2020.
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7. Petitioner also repeats several conclusory arguments challenging the merits of its revocation.  RR at 1-2 (¶¶ 2-3); RFH at 2 (¶¶ 2-3).  We do not reach those issues because the only issue before the Board is whether the ALJ’s dismissal of Petitioner’s hearing request was legally correct.
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