Gregory Morey, CNP, ALJ Ruling 2020-11 (HHS CRD May 12, 2020)

DISMISSAL

Petitioner, Gregory Morey, CNP, challenges the effective date of his enrollment in the Medicare program.  However, the Medicare contractor dismissed his request for reconsideration because it had not been signed by a "responsible authorized or delegated official" within the organization.  Petitioner then requested this review.  The Centers for Medicare & Medicaid Services (CMS) moves to dismiss, arguing that Petitioner has no right to further review because he did not obtain a reconsidered determination.

Although the Medicare contractor may have relied on a hyper-technical requirement, which could have been easily remedied had Petitioner been informed, I have no choice but to grant CMS's motion and dismiss this case pursuant to 42 C.F.R. § 498.70(b).

Background

Petitioner Morey is a nurse practitioner in Michigan who joined the VLSR Madireddy medical practice on January 3, 2017.  CMS Ex. 2 at 1.  He applied for enrollment in the Medicare program.  The Medicare contractor, Wisconsin Physicians Service Insurance Corporation, approved his enrollment application, with an effective date of July 5, 2017,

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and a retrospective billing date of June 5, 2017.If a physician or non-physician practitioner meets all program requirements, CMS may allow it to bill retrospectively for up to "[t]hirty days prior to [its] effective date if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries . . . ." 42 C.F.R. § 424.521(a)(1).  CMS Ex. 2 at 4.  The contractor notice advised him that, if he disagreed with the established effective date, he could request reconsideration before a contractor hearing officer; the reconsideration request "must be signed and dated by the physician, non-physician practitioner, or any responsible authorized or delegated official within the entity."  CMS Ex. 1; Departmental Appeals Board Electronic Filing System document #1c.

Petitioner's request for reconsideration is signed by the medical practice's billing supervisor and credentialing manager.  CMS Exs. 1, 2, 4; Hearing Request.  On September 26, 2017, the Medicare contractor dismissed Petitioner's request for reconsideration because it was not signed by an authorized or delegated official.  CMS Ex. 1.

Discussion

To receive Medicare payments for services furnished to program beneficiaries, a Medicare supplier must be enrolled in the Medicare program.  42 C.F.R. § 424.505.  To enroll in Medicare, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1); 424.515(a).  When CMS determines that a supplier meets the applicable enrollment requirements, it grants him Medicare billing privileges.  For non-physician practitioners, the effective date for billing privileges "is the later of the date of filing" a subsequently-approved enrollment application or "[t]he date that the supplier first began furnishing services at a new practice location."  42 C.F.R. § 424.520(d) (emphasis added).

CMS's determination as to the effective date of enrollment is an "initial determination" that is subject to review under the procedures set forth in 42 C.F.R. Part 498.  42 C.F.R. §§ 498.3(a)(1), (b)(15).  A supplier or prospective supplier dissatisfied with an initial determination may request reconsideration by filing a written request within 60 days from receipt of the notice of the initial determination.  42 C.F.R. §§ 498.5(d)(1), (l)(1); 498.22.  If CMS (or its contractor) receives a properly-filed request for reconsideration, it makes a reconsidered determination affirming or modifying the initial determination.  42 C.F.R. § 498.24(c).

A supplier or prospective supplier dissatisfied with a reconsidered determination is entitled to a hearing before an administrative law judge.  42 C.F.R. §§ 498.5(d)(2), (l)(2); 498.40.  The regulations do not provide for a hearing in the absence of a reconsidered

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determination, even though this "may[,] in certain situations[,] be unfair."  Ramaswamy v. Burwell, 83 F. Supp. 3d 846, 854 (E.D. Mo. 2015); Rollington Ferguson, M.D., DAB No. 2949 (2019); Denise A. Hardy, D.P.M., DAB No. 2464 at 4-5 (2012); Hiva Vakil, M.D., DAB No. 2460 at 4-5 (2012).This issue is ultimately not settled.  In a Social Security appeal brought pursuant to section 405(g) of the Social Security Act, the Supreme Court recently determined that the Appeals Council's dismissal of a request for review is a "final decision . . . made after a hearing" and thus subject to federal court review.  The Court left open the question of whether a federal court may review dismissals made at the lower levels of the administrative review process.  Smith v. Berryhill, 139 S. Ct. 1765 at 1777 n.17 (2019).

Conclusion

Because neither CMS nor its contractor issued a reconsidered determination, Petitioner does not have a right to a hearing before an administrative law judge.  I therefore dismiss his hearing request pursuant to 42 C.F.R. § 498.70(b).