Shuvendu Sen, M.D., ALJ Ruling 2019-6 (HHS CRD June 7, 2019)

DISMISSAL

Petitioner, Shuvendu Sen, M.D., is a New York physician who participated in the Medicare program until January 2018, when his billing privileges were revoked.  Ten months after the Medicare contractor sent him notice of its reconsidered determination upholding the revocation, he appealed.  The Centers for Medicare & Medicaid Services (CMS) moves to dismiss his appeal as untimely.

I agree that the request is untimely, find no good cause for extending the filing deadline, and dismiss this appeal pursuant to 42 C.F.R. § 498.70(c).

Discussion

In a reconsidered determination dated May 14, 2018, the Medicare contractor, Novitas Solutions, upheld its initial determination revoking Petitioner’s Medicare billing privileges.  CMS Ex. 9.  The notice letter advised Petitioner of his appeal rights and warned, “you must file your appeal within 60 calendar days after the date [you receive] this decision . . . .”  CMS Ex. 9 at 3.  Petitioner’s appeal is dated and postmarked March

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15, 2019, ten months after the contractor mailed its notice.  The Civil Remedies Division received it on March 18, 2019.

In a motion (CMS Br.) filed April 16, 2019, CMS asked that Petitioner’s hearing request be dismissed as untimely.  Petitioner responded (P. Br.) on May 6, 2019, opposing dismissal.  With its motion, CMS submitted eleven exhibits (CMS Exs. 1-11).  With his submission, Petitioner submitted one exhibit (P. Ex. 1), his written declaration.

A Medicare supplier, such as Petitioner, who is dissatisfied with a reconsidered determination related to his enrollment may request a hearing before an administrative law judge.  42 C.F.R. § 498.5(l)(2).  He must file the request, in writing, within 60 days from receiving the notice of a reconsidered determination, unless that period is extended for good cause.  42 C.F.R. § 498.40(a)(2), (c).  Receipt is presumed to be five days after the date of the notice unless there is a showing that it was received earlier or later.  42 C.F.R. §§ 498.22(b)(3); 498.40(a)(2).  I may dismiss an appeal if the affected party did not timely file, and the time for filing has not been extended.  42 C.F.R. § 498.70(c).

Here, the reconsidered determination is dated May 14, 2018.  Factoring in five days for delivery, we presume that Petitioner received it on or before May 19.  Sixty days from May 19 is July 18, 2018, and Petitioner’s appeal was due no later than that day.  Petitioner filed his appeal almost eight months after the date it was due.

Petitioner argues that his hearing request was timely because he did not receive a copy of the notice until months after the contractor purportedly mailed it to him.  He claims that he first learned that his billing privileges were revoked in “late January 2019” and received a copy of the notice on January 29, 2019.  P. Ex. 1 at 2-3 (Sen Decl. ¶¶ 7, 8).

CMS submits the written declaration of Robin Fry, who works for the Medicare contractor as a provider relations hearing specialist.  CMS Ex. 6 at 1 (Fry Decl. ¶ 1).  Hearing Specialist Fry explains the process by which the contractor monitors its correspondence with “all actions taken on a particular enrollment application.”  CMS Ex. 6 at 2 (Fry Decl. ¶¶ 5, 6).  The contractor saves the emails and letters it sends to providers and suppliers in connection with their applications.  If a letter is returned as “undeliverable,” the contractor’s staff notes that fact in the electronic system (called APEX) and saves a copy of the document returned.  CMS Ex. 6 at 2 (Fry Decl. ¶ 6).  The contractor’s records show that, on May 14, 2018, it mailed the reconsidered determination, by regular U.S. mail, to Petitioner at the address he provided in his reconsideration request.  Petitioner concedes that the Medicare contractor mailed the reconsidered determination to his correct home address.  The contractor has no record that the letter was returned as undeliverable or for any other reason.  CMS Ex. 6 at 3 (Fry Decl. ¶ 10); P. Ex. 1 at 2 (Sen Decl. ¶ 7).

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The contractor’s electronic system also shows that Rohit Paleja, Petitioner’s designated contact person, called the contractor’s toll-free line on August 1, 2018, and August 16, 2018.  Each time, he spoke to a customer services’ representative, who documented the call in the electronic system.  On August 16, the customer services’ representative faxed the reconsidered determination to Rohit Paleja.  CMS Ex. 6 at 3 (Fry Decl. ¶¶ 11, 12, 13); CMS Exs. 10, 11.  Petitioner concedes that Rohit Paleja is his “biller.”  P. Ex. 1 at 3 (Sen Decl. ¶ 9); P. Br. at 2.  Petitioner has not responded to this evidence, except to re-assert that he did not receive the determination until late January.  P. Ex. 1 at 2 (Sen Decl. ¶ 7).

I find Petitioner’s written declaration insufficient to overcome the regulatory presumption that he received the reconsidered determination within five days of its mailing.  A presumption of receipt reflects the “well-recognized principle” that it is both reasonable and legally sound for parties in litigation to consider certain legal documents sent through a regular mail system and in the course of litigation to have been received by a date certain.  Kenneth Schrager, DAB No. 2366 at 4 (2011); see MedStar Health, Inc., DAB No. 2684 at 7 (2016) (finding that, without other evidence, an “authorized official’s” assertion that the supplier did not timely receive notice of a reconsidered determination was insufficient to overcome the regulatory presumption).

Moreover, Petitioner has not rebutted the compelling evidence that, on August 16, the contractor sent a second copy of the notice to his designated contact person.  Even assuming he did not receive the initial mailing (which I reject), his appeal should have been filed no later than October 15, 2018.

In the alternative, Petitioner argues that the “unique and discrete circumstances” of this case justify my denying CMS’s motion.  According to Petitioner, the factual and legal bases underlying CMS’s determination are so “feeble” that it would be unjust for me to deny Petitioner a hearing on the merits.

This argument fails for two reasons:  first, unless a party timely files its hearing request or demonstrates good cause for late filing, it is not entitled to appeal, no matter the merits of its case; and second, Petitioner’s case is hardly “unique.”  Contrary to Petitioner’s assertion, CMS’s determination would, in fact, prevail if the case were decided on the merits.  To maintain its Medicare enrollment, a supplier must be operational to furnish Medicare-covered items or services at the practice location listed on its enrollment application.  42 C.F.R. § 424.535(a)(5); Wendell Foo, DAB No. 2904 at 2, 21 (2018); OC Housecalls, Inc., DAB No. 2893 at 10 (2018).  Petitioner concedes that his most recent enrollment application listed a UPS Box as his primary practice location.  P. Br. at 2, 5; CMS Ex. 1 at 17.

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Conclusion

Petitioner’s appeal was untimely, and he has not shown good cause for my extending the deadline for filing his appeal. I therefore dismiss his hearing request pursuant to 42 C.F.R. § 498.70(c).