Torsten Ehrig, MD, DAB CR5507 (2020)

DECISION: REMAND TO COMPLY WITH CENTERS FOR MEDICARE & MEDICAID SERVICES POLICY AND ORDER OF DISMISSAL

This case is remanded to the Centers for Medicare & Medicaid Services (CMS) pursuant to 42 C.F.R. § 498.56(d) so that CMS may comply with its policy set forth in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, § 15.27.1.2 (on reactivation the Medicare administrative contractor (MAC) grants retrospective billing privileges in accordance with MPIM § 15.17B) and § 15.17B (retrospective billing privileges of up to 30 days prior to effective date) (rev. 865, eff. Mar. 12, 2019), if it has not already done so.

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

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I. Procedural History

National Government Services, the MAC, notified Petitioner by letter dated January 4, 2019, of its initial determination to reactivate Petitioner's billing privileges but with a gap in billing privileges from October 30, 2018 through December 3, 2018. The MAC explained in its letter that if Petitioner disagreed with the effective date determination, Petitioner could request reconsideration before a contractor hearing officer within 60 days.2 The MAC provided the address to which the reconsideration request should be mailed. The MAC did not advise Petitioner of any right to review by an administrative law judge (ALJ). CMS Ex. 1 at 5-7; CMS Ex. 2 at 5-7.

Petitioner requested review by an ALJ by letter dated March 27, 2019, that was received at the Civil Remedies Division (CRD) of the Departmental Appeals Board on April 1, 2019. P. Ex. 1 at 8-9.3 The case was docketed as C-19-641 and assigned to another ALJ. CMS Motion to Dismiss with Incorporated Memorandum of Law in Support of Motion to Dismiss (CMS Br.) at 2 ¶ 2. According to the CRD docket for C-19-641, on May 10, 2019, CMS moved to dismiss the case because Petitioner failed to request reconsideration, among other grounds. On July 11, 2019, the request for hearing was actually dismissed for abandonment because Petitioner failed to respond to the CMS motion to dismiss and failed to respond to an order to show cause.

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By letter dated April 8, 2019 and received by the MAC on April 15, 2019, Petitioner requested reconsideration of the determination that there was a gap in billing privileges. CMS Ex. 2 at 1-4; P. Ex. 1 at 11-12.

The MAC advised Petitioner by letter dated May 14, 2019, that the request for reconsideration was received on April 15, 2019, and that no action would be taken because Felicia Cirigliano was not authorized to sign the request for reconsideration. CMS Ex. 2 at 11-12; P. Ex. 1 at 23.

Petitioner sent the MAC a second letter requesting reconsideration dated May 30, 2019, signed by Petitioner that was received by the MAC on June 3, 2019. CMS Ex. 1 at 1-4, P. Ex. 1 at 22. The MAC responded by letter dated July 22, 2019. The MAC advised Petitioner that his request for reconsideration was received more than 60 days after the date of presumed receipt of the January 4, 2019 initial determination; therefore, the request for reconsideration was untimely and the request would be dismissed. CMS Ex. 1 at 11-12.

However, also on July 22, 2019, the MAC issued a reopened and revised initial determination. The July 22, 2019 reopened and revised determination shows that the MAC approved Petitioner's reactivation application. However, the MAC decided that the gap in billing privileges existed only during the period October 30, 2018 through November 3, 2018. P. Ex. 1 at 3-5; CMS Br. at 3 ¶ 7. The MAC advised Petitioner of the right to request reconsideration, again erroneously advising Petitioner that the deadline for requesting reconsideration was within 60 days of the postmark date of the reopened and revised determination. The MAC did not advise Petitioner that he had the right to request ALJ review. P. Ex. 1 at 4-5. The MAC clearly recognized that it was issuing a reopened and revised decision based on its advice that Petitioner had the right to request reconsideration. There is no evidence Petitioner requested reconsideration in response to the reopened and revised determination.

Although the MAC did not advise Petitioner of any right to request ALJ review in its July 22, 2019 notice of a reopened and revised initial determination, Petitioner nevertheless filed a request for a hearing before an ALJ by letter postmarked October 7, 2019. The case was assigned to me and an Acknowledgment and Prehearing Order (Prehearing Order) was issued on October 30, 2019.  On November 13, 2019, CMS moved to dismiss Petitioner's request for hearing on grounds that:  Petitioner failed to timely request reconsideration and Petitioner had no right to a hearing in the absence of a reconsidered determination by CMS or the MAC; and Petitioner's request for hearing was untimely. CMS filed CMS Exs. 1 and 2 with its motion. Petitioner filed a late opposition to the motion to dismiss by letter dated December 9, 2019, but postmarked December 12, 2019. Pursuant to 42 C.F.R. § 498.17(b)(1) and the Prehearing Order ¶ II.B, Petitioner had 20 days to respond to the CMS motion to dismiss or until December 3, 2019. Furthermore, according to the Prehearing Order ¶ I, Petitioner was required to register to use DAB E-

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File, but Petitioner has never done so. Petitioner's clear lack of attention to detail, inability to follow instructions, and violation of my Prehearing Order may be grounds for imposition of a sanction, but I conclude I have no jurisdiction and the case must be dismissed even without consideration of Petitioner's possibly contumacious behavior.

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(l)(1). 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. 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. 42 C.F.R. § 498.22(d)(2). 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

CMS failed to file the July 22, 2019 notice of reopened and revised initial determination with the CMS motion to dismiss this case. CMS also failed to move to dismiss on grounds that Petitioner failed to request reconsideration of the reopened and revised initial determination. The MAC clearly recognized in its July 22, 2019 notice of the reopened and revised initial determination that the reopening and revision of the initial determination triggered a new right to request reconsideration and advised Petitioner accordingly. The newly triggered right to request reconsideration arguably rendered irrelevant Petitioner's prior failures to timely request reconsideration as grounds for dismissal of this case. Even though CMS failed to identify the correct factual predicate requiring dismissal, that is, Petitioner's failure to request reconsideration of the July 22, 2019 notice of reopened and revised initial determination, I nevertheless conclude that dismissal is necessary. As discussed hereafter, Petitioner has no right to ALJ review and I have no authority to conduct such review absent a reconsidered determination in this case. Therefore, the absence of a reconsidered determination effectively deprives me of

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any jurisdiction or authority to conduct review and even absent a proper motion to dismiss I may not proceed to conduct a review for which I have no authority.

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.

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

The pertinent facts are not disputed.

On July 22, 2019, the MAC issued a reopened and revised initial determination, approving Petitioner's reactivation application, but establishing a gap in billing privileges from October 30, 2018 through November 3, 2018. P. Ex. 1 at 3-5; CMS Br. at 3 ¶ 7.

There is no evidence that Petitioner requested reconsideration of the July 22, 2019, reopened and revised determination.

Pursuant to 42 C.F.R. § 498.20(b)(1), the MAC's initial determination became final and binding upon Petitioner when he 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).

Dismissal is also appropriate pursuant to 42 C.F.R. § 498.70(b), because Petitioner has no right to ALJ review in the absence of a reconsidered determination by the MAC or CMS. 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). Petitioner did not request reconsideration of the July 22, 2019 reopened and revised initial determination and there is no reconsidered determination within the meaning of 42 C.F.R. §§ 498.5(l)(2) or 498.24.  Therefore, Petitioner has no right to ALJ review. Accordingly, dismissal is required by 42 C.F.R. § 498.70(b) because Petitioner has no right to a hearing.

To the extent Petitioner may be viewed as requesting equitable relief, 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

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declare statutes or regulations invalid. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

I conclude that it is necessary to remand this case to CMS to permit CMS action consistent with current CMS policy. CMS policies regarding deactivations and reactivations of billing privileges are in the MPIM §§ 15.27.1.1 (deactivation) and 15.27.1.2 (reactivation) (rev. 865, eff. Mar. 12, 2019). Pursuant to MPIM § 15.27.1.2, on reactivation, the MAC is to grant retrospective billing privileges in accordance with MPIM § 15.17B, which provides for retrospective billing privileges of up to 30 days prior to the effective date of reactivation. The July 22, 2019 reopened and revised initial determination does not show whether the MAC complied with CMS policy regarding retrospective billing privileges related to a reactivation effective date. Based on the CMS language making retrospective billing mandatory in the situations described in MPIM § 15.17(B), I conclude it is appropriate to return this case to CMS so that CMS may ensure there is compliance by the MAC with CMS policy. Generally, an agency must obey its own rules and policies, particularly when intended to be binding, and a rule or statement of policy should be given equal effect by all agency adjudicators. Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. §§ 4:22, 5:68 (3d ed. 2019). Petitioner is a physician and there appears to be no dispute that he was enrolled in Medicare during the gap period from October 30, 2018 through November 3, 2018, and met all requirements for enrollment. Therefore, CMS must determine whether Petitioner is entitled to retrospective billing privileges for up to 30 days prior to the effective date of reactivation of billing privileges for services rendered to Medicare-eligible beneficiaries during that 30-day period. MPIM § 15.17(B)(1).

IV. Conclusion

For the foregoing reasons, this case is remanded to CMS and Petitioner's request for hearing is dismissed.

• 1. Citations are to the 2018 revision of the Code of Federal Regulations (C.F.R.), unless otherwise indicated.
• 2. The MAC notice incorrectly advised Petitioner that he had 60 days from the postmark on the notice of initial determination to request reconsideration. CMS Exhibit (Ex.) 1 at 6. Pursuant to 42 C.F.R. § 498.22(b)(3), a request for reconsideration may be filed within 60 days of receipt of the notice of initial determination, which is presumed to be five days after the date on the notice, unless there is evidence of earlier or later receipt. In this case, Petitioner did not request reconsideration until April 8, 2019 (CMS Ex. 2 at 2-4), 89 days after his presumed receipt of the January 4, 2019 notice of initial determination on Wednesday, January 9, 2019. I conclude Petitioner suffered no prejudice due to the MAC's erroneous notice of Petitioner's right to request reconsideration. However, CMS should ensure MAC notices correctly state regulatory requirements, particularly due process rights of providers and suppliers.
• 3. In the case before me, on December 12, 2019, Petitioner filed his response in opposition to the CMS motion to dismiss (P. Br.) with multiple attachments. Departmental Appeals Board Electronic Filing System (DAB E-File) Item #5. Pages 3 through 34 of the document filed December 12, 2019, include the attachments that I refer to collectively as Petitioner's Exhibit (P. Ex.) 1. The page numbers for P. Ex. 1 cited in this decision are to specific pages indicated by the document page counter in DAB E-File Item #5.