Linda Silva, P.A., DAB CR5134 (2018)

DECISION

The request for hearing of Petitioner, Linda Silva, P.A., is dismissed pursuant to 42 C.F.R. § 498.70(b)1 because she has no right to a hearing before an Administrative Law Judge (ALJ).

I.  Background

On May 15, 2017, Noridian Healthcare Solutions (Noridian), a Medicare Administrative Contractor, notified Petitioner that her enrollment as a Medicare supplier was revoked effective March 11, 2017, pursuant to 42 C.F.R. § 424.535(a)(1) because her physician assistant license was suspended.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 47-49, 64‑73.  The notice of initial determination informed Petitioner that she could submit a corrective action plan (CAP) within 30 calendar days or request

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reconsideration within 60 calendar days.2  CMS Ex. 1 at 47, 62, 64, 67, 70.  Petitioner submitted a CAP dated May 25, 2017, stating that her license was reactivated and in good standing as of May 24, 2017, and that her license was in suspended status only from March 11, 2017 to May 24, 2017.  CMS Ex. 1 at 50-53, 57‑60.  Noridian denied Petitioner’s CAP request on July 13, 2017.  CMS Ex. 1 at 5, 54.  Noridian correctly advised Petitioner that she could not appeal the adverse determination for the CAP but incorrectly cited 42 C.F.R. § 405.809(a)(2), rather than 42 C.F.R. § 405.809(b)(2).  CMS Ex. 1 at 5, 54.

On September 5, 2017, Petitioner submitted what she characterized as a second CAP request.  CMS Ex. 1 at 8‑10.  Noridian notified Petitioner by letter dated September 18, 2017, that her request did not meet the requirements of 42 C.F.R. § 498.22 for a request for reconsideration and that she could submit only one CAP.  CMS Ex. 1 at 1.

On November 7, 2017, Petitioner requested review by an ALJ.  The case was assigned to me for hearing and decision.  I issued an Acknowledgment and Prehearing Order on November 22, 2017.

On December 11, 2017, CMS filed a motion to dismiss or for summary judgment with CMS Ex. 1.  Petitioner filed her response with no exhibits on January 1, 2018.  CMS waived filing a reply brief.  Petitioner did not object to my consideration of CMS Ex. 1 and it is admitted as evidence.

II.  Applicable Law

A provider or supplier may request reconsideration of an initial determination by CMS 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.3 42 C.F.R. § 498.22(b).  The

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date of receipt of 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).  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.

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.

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

The pertinent facts are not disputed.  Noridian notified Petitioner by letter dated May 15, 2017, of its initial determination revoking her Medicare enrollment and billing privileges.  The notice clearly advised Petitioner that if she disagreed with the initial determination, she could request reconsideration, in writing, within 60 calendar days of the postmark of the May 15 notice letter.  The Noridian notice provided a mailing address for any reconsideration request and a telephone number for any questions.  CMS Ex. 1 at 71.  Pursuant to 42 C.F.R. § 498.22(b)(3), Petitioner was presumed to have received the May 15, 2017 notice on May 20, 2017.

Petitioner timely filed a CAP on May 25, 2017, that was rejected by Noridian on July 13, 2017.  Petitioner subsequently filed a second CAP on September 5, 2017.  Pursuant to 42 C.F.R. § 405.809(a)(2), there is only one opportunity to correct deficiencies that are the basis for revocation and, therefore, only one opportunity to submit a CAP.  Noridian considered but rejected Petitioner’s second CAP as a request for reconsideration because it did not meet the requirements of a request for reconsideration under 42 C.F.R. § 498.22, including the fact that it was filed well beyond expiration of the 60‑day time limit for filing a request for reconsideration.  Because Noridian rejected the second CAP as a reconsideration request and returned it to Petitioner there has been no reconsidered determination in this case.

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 rejected by Noridian 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

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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 admits that she “did not file a reconsideration 42 C.F.R. § 498.22(b), or an extension of time to file per 42 C.F.R. § 498.22(d)” because “she was under the assumption that an appeal or reconsideration was already initiated and in process by Noridian.”  P. Br. at 7‑8.  Petitioner recounts multiple phone calls with Noridian representatives, including one where she was “informed that she could do an appeal verbally by this phone call and she did not need to do any paperwork for this.”  P. Br. at 7.  Petitioner contends that she should be able to rely upon statements of the MAC representative and the government should be bound by those statements.  P. Br. at 9.

Petitioner’s arguments may be construed to be that the government is estopped from denying her review of the revocation of her enrollment based on advice she allegedly received from Noridian employees.  As a matter of law, estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).  There is no evidence suggesting fraud on the part of Noridian or its employees or that there was any intent to mislead Petitioner.

Petitioner’s arguments may also be construed as a request for equitable relief, but I have no authority to grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  I am required 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 2016 revision of the Code of Federal Regulations (C.F.R.), unless otherwise indicated.
• 2. The record includes copies of the May 15 notice sent to Petitioner care of multiple reassignors.  CMS Ex. 1 at 47, 62, 64, 67, and 70.
• 3. The statement in the initial determination that a request for reconsideration had to be filed within 60 days of the postmark of the initial determination is a legal error.  In this case I find no prejudice to Petitioner due to the erroneous advice.  However, CMS and its contractors should exercise caution to ensure that official notices accurately reflect the law.