Joseph F. Alessi, MD, DAB CR5490 (2019)

DECISION

Petitioner's request for hearing is dismissed pursuant to 42 C.F.R. § 498.70(b).1

I. Procedural History

National Government Services, a Medicare administrative contractor (MAC), notified Petitioner by letter dated October 4, 2017, of its initial determination that Petitioner's Medicare enrollment and billing privileges were revoked effective November 3, 2017. The MAC cited as authority for the revocation 42 C.F.R. § 424.535(a)(1) and (9) based on Petitioner's noncompliance with Medicare requirements, specifically that his Rhode Island medical license had expired and Petitioner failed to timely report that his medical license had expired. The MAC also advised Petitioner that he was subject to a three-year bar to reenrollment. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 3.

On August 9, 15, and 20, 2019, Petitioner signed requests for reconsideration. Petitioner argued among other things that he had not received the October 4, 2017 notice of

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revocation until a few weeks prior to signing the reconsideration requests. He stated that the notice was sent to his old employer's address that he had departed 16 months prior to the issuance of the initial determination by the MAC. He requested that the time for requesting reconsideration be extended due to circumstances beyond his control. CMS Ex. 2. On October 2, 2019, the MAC declined to reconsider its initial determination because the reconsideration request was not timely. CMS Ex. 1.

Petitioner requested a hearing before an administrative law judge (ALJ) on October 9, 2019. On November 7, 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. CMS filed CMS Exs. 1 through 5 with its motion. Petitioner filed a response in opposition to the CMS motion to dismiss on November 22, 2019.

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.

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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 October 4, 2017, of its initial determination that Petitioner's Medicare enrollment and billing privileges were revoked. CMS Ex. 3. Petitioner requested reconsideration in August 2019. CMS Ex. 2. The MAC declined to reconsider its initial determination because Petitioner's reconsideration requests were not timely. CMS Ex. 1. The October 2, 2019 decision of the MAC to decline to conduct reconsideration shows that the MAC presumed that the October 4, 2017 notice of initial determination was received by Petitioner within five days of October 4, 2017, as provided by 42 C.F.R. § 498.22(b)(3). However, the MAC's decision to decline to conduct reconsideration does not indicate whether it considered whether the presumption of receipt within five days was appropriate given Petitioner's assertions that the October 4, 2017 notice was not received until a few weeks before he submitted his requests for reconsideration. CMS Ex. 2 at 1, 3. Pursuant to 42 C.F.R. § 498.22(b)(3), the presumption does not apply if there is evidence of receipt earlier or later than determined applying the five day presumption. If Petitioner showed that he did not receive the October 4, 2017 notice of initial determination more than 60 days prior to requesting reconsideration, his requests for reconsideration were not untimely.

Pursuant to 42 C.F.R. § 498.20(b)(1) the MAC's initial determination would be final and binding if Petitioner failed to timely request reconsideration. 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). However, given Petitioner's assertions that he did not receive the notice of initial determination within five days and that he may not have received it more than 60 days prior to his reconsideration request (CMS Ex. 2), I cannot conclude that Petitioner failed to timely request reconsideration. Therefore, dismissal is not appropriate pursuant to 42 C.F.R. § 498.70(a).

However, Petitioner has no right to ALJ review in this case because the MAC declined to conduct reconsideration. 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). Because Petitioner's reconsideration request was denied as untimely, even if that determination was erroneous, 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.

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Petitioner urges me to consider the merits of his case. However, I simply have no authority under the regulations 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).

IV. Conclusion

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

• 1. Citations are to the 2017 revision of the Code of Federal Regulations (C.F.R.), unless otherwise indicated.