William Gillen, M.D., ALJ Ruling 2020-8 (HHS CRD Mar. 19, 2020)

DISMISSAL

Petitioner, William Gillen, 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.

I grant CMS's motion and dismiss this case.  Petitioner has no right to a hearing because he has not obtained a reconsidered determination.  Moreover, Petitioner is complaining that the Medicare contractor rejected an earlier enrollment application.  I have no authority to review a rejected application.  42 C.F.R. § 424.525(d).  I therefore dismiss this matter pursuant to 42 C.F.R. § 498.70(b).

Background

Petitioner Gillen is an Ohio physician who applied for enrollment in the Medicare program.  On June 6, 2016, he submitted a Medicare enrollment application.  P. Ex. 1.  The application was apparently incomplete, and, in a letter dated June 24, 2016, the Medicare contractor (CGS) requested additional information.  The letter emphasized:

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"Please note – if the information is not submitted until the 30th day and the information is incomplete or incorrect, no additional contact for corrections will be made and the application may be rejected."  CMS Ex. 9 at 30 (emphasis in original).  Petitioner concedes that he did not submit the required information within the 30 days.  P. Br. at 4.  In a letter dated July 26, 2016, the contractor advised Petitioner that his application was rejected.  CMS Ex. 9 at 33.

On July 28, 2016, Petitioner submitted the information that the contractor had requested in its June 24 letter, and, in a letter dated August 11, 2016, the contractor acknowledged receiving the information on August 2, 2016, which it treated as a new application.  P. Ex. 2.  In a letter dated August 25, 2016, the contractor requested additional information, again warning that the application could be rejected if not submitted within 30 days.  CMS Ex. 9 at 46.  Petitioner claims to have submitted the requested information, but the contractor was obviously not satisfied.  In a letter dated September 26, 2016, the contractor rejected the August 2 application.  CMS Ex. 9 at 56.

Petitioner submitted yet another application on about November 4, 2016.  CMS Ex. 9 at 59; see CMS Ex. 9 at 112.  Again, in a letter dated November 16, 2016, the contractor requested additional information.  CMS Ex. 9 at 96, 100.  Although Petitioner claims to have emailed the requested information on December 14, 2016 (CMS Ex. 9 at 99), the contractor either did not receive it or was not satisfied and rejected the application.  CMS Ex. 9 at 112.

Finally, on December 30, 2016, Petitioner submitted another enrollment application.  CMS Exs. 3, 4.  In a letter dated January 12, the contractor requested additional information.  CMS Ex. 5.  Petitioner submitted that information (CMS Ex. 6), and, in a letter dated January 26, 2017, the Medicare contractor advised him that his enrollment application had been approved with an effective date of November 30, 2016.1   CMS Ex. 7.  The notice also advised that, if he disagreed with the established effective date, Petitioner could request reconsideration before a contractor hearing officer.  CMS Ex. 7 at 2.  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. 7 at 2.  In fact, the regulations that govern reconsideration provide that the request must be filed "within 60 days from receipt of the notice of the initial determination."  42 C.F.R. § 498.22(b)(3)

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(emphasis added).2   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 letter warned that failing to request reconsideration timely "is deemed a waiver of all rights to further administrative review."  CMS Ex. 7 at 2.

Petitioner's request for reconsideration is dated May 11, 2017, long after the deadline.  CMS Ex. 2.  On May 23, 2017, the contractor dismissed Petitioner's request for reconsideration because it was not filed within the designated timeframe.  CMS Ex. 1.

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 "the date an enrolled physician . . . first began furnishing services at a new practice location."  42 C.F.R. § 424.520(d) (emphasis added).

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); 498.5(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.  42 C.F.R. §§ 498.5(d)(2); 498.5(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).

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Finally, even if I could overlook the absence of a reconsidered determination (which I cannot), Petitioner could not prevail.  He complains that the contractor rejected his August 2016 application.  P. Br. at 6.  I have no authority to review a rejected application.  42 C.F.R. § 424.525(d).

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. As I have noted elsewhere, Medicare contractors sometimes conflate the effective date with the retrospective billing date.  Here, November 30, 2016, is not the effective date of Petitioner's enrollment, which can be no earlier than December 30, 2016, the date he submitted his subsequently-approved enrollment application.  42 C.F.R. § 424.520(d).  CMS may authorize a supplier to bill retrospectively for up to 30 days, which it apparently did here.  See Primary Care of Bonne Terre LLC, DAB CR5053 at 4 (2018).
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2. Although I urge CMS to amend its misleading notice letters so that they accurately reflect the regulations, the error is irrelevant here inasmuch as Petitioner did not request reconsideration until May 11, 2017, well after the 60-day period had expired.
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