Ashim Aggarwal, M.D., DAB CR5452 (2019)

DECISION

Petitioner’s request for hearing is dismissed pursuant to 42 C.F.R. § 498.70(a) and (b).*

I. Procedural History

Wisconsin Physicians Service Insurance Corporation, a Medicare administrative contractor (MAC), notified Petitioner by letter dated January 30, 2019, of its initial determination that Petitioner’s Medicare enrollment application was approved.  However, the MAC advised Petitioner that there was a gap in his billing privileges from December 13 through 26, 2018, because his Medicare enrollment revalidation application was filed late.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1.

Petitioner requested reconsideration on May 29, 2019.  CMS Ex. 2.  On June 7, 2019, the MAC declined to reconsider its initial determination because the reconsideration request was not timely filed and good cause to extend the time for filing the request for reconsideration was not shown.  CMS Ex. 3 at 1.  Petitioner submitted a second request

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for reconsideration by letter dated June 21, 2019. CMS Ex. 4. The MAC notified Petitioner by letter dated June 27, 2019, that it declined to conduct reconsideration because Petitioner’s request for reconsideration was not timely filed and good cause was not shown to extend the period for requesting reconsideration. CMS Ex. 5.

Petitioner requested a hearing before an administrative law judge (ALJ) on August 26, 2019. On October 3, 2019, CMS moved to dismiss Petitioner’s request for hearing because Petitioner has no right to request a hearing in the absence of a reconsidered determination by CMS or the MAC and the MAC’s initial determination is final and binding. CMS filed CMS Exs. 1 through 5 with its motion. Petitioner filed a response in opposition to the CMS motion to dismiss on October 10, 2019, with Petitioner’s exhibits (P. Exs.) 1 through 8.

II.  Applicable Law

A provider or supplier may request reconsideration of an initial determination by CMS or a MAC that affects the provider’s or supplier’s ability to participate in the Medicare program.  42 C.F.R. § 498.5(a), (b), (d) and (l).  CMS or its contractor reconsiders an initial determination if there is a written request for reconsideration that complies with 42 C.F.R. § 498.22(b) and (c).  The request for reconsideration must be filed in writing with CMS or its contractor; either directly by the provider/supplier or through the provider’s or supplier’s designated legal representative or authorized official, within 60 days of receipt of the notice of the initial determination.  42 C.F.R. § 498.22(b).  The date the provider or supplier receives the initial determination is presumed to be five days after the date on the notice from CMS or its contractor, unless there is a showing that it was received earlier or later.  42 C.F.R. § 498.22(b).  CMS will extend the time for filing a request for reconsideration if the provider or supplier shows good cause for missing the deadline to file the request for reconsideration.  Pursuant to 42 C.F.R. § 498.5(l)(2), CMS, a CMS contractor, and a prospective or existing provider or supplier dissatisfied with a reconsidered determination are entitled to a hearing before an ALJ.  The regulations provide no right to ALJ review of a CMS or MAC determination to decline to conduct reconsideration.  The regulations also provide no right to ALJ review of the CMS or MAC determination that good cause has not been shown for extending the deadline to request reconsideration.

III.  Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by the pertinent findings of fact and analysis.

A. Petitioner has no right to a hearing before an ALJ because there has been no reconsidered determination and, therefore, the initial determination is final and binding.

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B. Dismissal is required because Petitioner has no right to a hearing.

The pertinent facts are not disputed. 

The MAC notified Petitioner by letter dated January 30, 2019, of its initial determination that Petitioner’s Medicare enrollment application was approved, but with a gap in Petitioner’s billing privileges from December 13 through 26, 2018, because his Medicare enrollment revalidation application was filed late.  CMS Ex. 1.  Petitioner requested reconsideration on May 29, 2019.  CMS Ex. 2.  The MAC declined to reconsider its initial determination because the reconsideration request was not timely and good cause to extend the time for filing the request for reconsideration was not shown.  CMS Ex. 3 at 1.  Petitioner’s second request for reconsideration was also denied because it was late and good cause to extend the period for requesting reconsideration was not shown.  CMS Exs. 4, 5. 

The law is clear in this matter.  Pursuant to 42 C.F.R. § 498.20(b)(1), the MAC’s initial determination became final and binding when Petitioner failed to timely request reconsideration and reconsideration was denied.  I may dismiss a request for hearing for cause when a prior determination on the same issue has become final because the affected party did not timely request reconsideration.  42 C.F.R. § 498.70(a).  CMS has requested dismissal and dismissal is appropriate on this basis. 

Petitioner also has no right to an ALJ hearing because there was no reconsideration and dismissal is required for that reason.  The regulations clearly provide Petitioner a right to ALJ review only when there is a reconsidered determination or a revised reconsidered determination.  42 C.F.R. § 498.5(l)(2).  Since Petitioner’s reconsideration request was denied as untimely, there is no reconsidered determination within the meaning of 42 C.F.R. §§ 498.5(l)(2) or 498.24, and no right to ALJ review.  Petitioner cites no statutory or regulatory provision that grants a right to ALJ review of a determination of CMS or its contractor to deny reconsideration and there is none.  Accordingly, dismissal is required by 42 C.F.R. § 498.70(b) because Petitioner has no right to a hearing. 

Petitioner urges me to consider the merits of his case.  However, I simply have no authority under the regulations to consider the merits, and I have no authority to grant equitable relief.  ALJs and the Departmental Appeals Board (Board) are bound by and may not ignore properly promulgated and applicable regulatory requirements.  US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  I am bound to follow the Act and regulations and have no authority to declare statutes or regulations invalid.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“[a]n ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground.”).

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IV.  Conclusion

For the foregoing reasons, Petitioner’s request for hearing is dismissed.

• *. Citations are to the 2018 revision of the Code of Federal Regulations (C.F.R.), unless otherwise indicated.