Connecticut Eye Physicians & Surgeons LLC, DAB CR6557 (2024)

DECISION

Petitioner, Connecticut Eye Physicians & Surgeons LLC, challenged an initial and reconsidered determination in its hearing request that CMS has since vacated and superseded with a revised initial determination. Therefore, I grant CMS’s motion to dismiss pursuant to 42 C.F.R. § 498.70(b). Petitioner may file a request for reconsideration of the newly issued revised initial determination pursuant to 42 C.F.R. §§ 498.5(l)(1) and 498.22(a) within the permissible timeframes.

I. Factual and Procedural History

Petitioner is a supplier of ophthalmology services located in South Windsor, Connecticut. On February 6, 2024, National Government Services (NGS), a Medicare administrative contractor, received Petitioner’s Medicare enrollment application. CMS Ex. 2. On March 26, 2024, NGS notified Petitioner by letter that its Medicare reactivation enrollment application was approved, and Petitioner would have a gap in billing privileges for “failing to fully revalidate during a previous revalidation cycle.” CMS Ex. 3 at 2. As such, Petitioner would not be reimbursed for the services it provided to Medicare beneficiaries from December 14, 2023 through February 5, 2024. Id.

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Petitioner requested reconsideration of the determination of the reimbursement gap on April 5, 2024. CMS Ex. 4 at 1-4. On April 19, 2024, NGS confirmed receipt of Petitioner’s reconsideration request and advised Petitioner that it had 90 days to render a decision based on its request. CMS Ex. 4 at 6-7.

On May 22, 2024, NGS issued a reconsidered determination affirming the initial determination: the services Petitioner rendered from December 14, 2023 through February 5, 2024 are not reimbursable. CMS Ex. 5 at 4. NGS notified Petitioner of its further appeal rights. CMS Ex. 5 at 5.

On July 21, 2024, Petitioner filed a request for hearing (RFH) before an administrative law judge (ALJ), and the case was assigned to me. On August 26, 2024, counsel for CMS requested an extension of prehearing deadlines (Motion for Extension), which stated that CMS was considering rescinding the initial determination and needed additional time to complete its review. Motion for Extension at 1. On August 27, 2024, I granted the Motion for Extension.

On September 10, 2024, CMS filed a Prehearing Brief and Motion to Dismiss (CMS Br.) along with six exhibits (CMS Exs. 1-6) in support of its brief and motion. CMS included a new initial determination issued by NGS dated August 28, 2024, which notified Petitioner that it was reopening and revising the initial March 26, 2024 determination. CMS Ex. 6. The August 28, 2024 revised initial determination denies Petitioner’s application for Medicare enrollment. Id.

The revised initial determination vacates and supersedes the original initial and reconsidered determinations, and it is the basis for CMS’s Motion to Dismiss. CMS Ex. 6. Petitioner did not file a response to CMS’s Motion to Dismiss.

II. Discussion

A. Issue

Whether dismissal is appropriate under 42 C.F.R. § 498.70(b).

B. Applicable Law

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment of providers of services and suppliers in the Medicare program. Specifically, section 1866(j)(1) of the Act requires the Secretary to establish an enrollment process for providers and suppliers. 42 U.S.C. § 1395cc(j)(1).

A “supplier” is a “physician or other practitioner, or an entity other than a provider,

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that furnishes health care services under Medicare.” 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 498.2. In this case, Petitioner is a supplier.

For a provider or supplier to collect payment for services provided to Medicare beneficiaries, it must be enrolled in the Medicare program and issued a billing number. 42 C.F.R. §§ 424.505, 424.510. A provider or supplier must, among other requirements, periodically revalidate their enrollment by resubmitting and recertifying the accuracy of its enrollment information every five years. 42 C.F.R. § 424.515.

CMS may deactivate the Medicare billing privileges of a supplier if the “supplier does not furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification from CMS to submit an enrollment application.” 42 C.F.R. § 424.540(a)(3).

Under 42 C.F.R. § 498.30, CMS “may on its own initiative, reopen any other initial or reconsidered determination, within 12 months after the date of notice of the initial determination.” Suppliers or providers who are dissatisfied with CMS’s initial or revised initial determinations as to the “denial or revocation of Medicare billing privileges may request reconsideration in accordance with § 498.22(a).” 42 C.F.R. § 498.5(l)(1). A supplier “dissatisfied with a reconsidered determination under paragraph (l)(1) of this section . . . is entitled to a hearing before an ALJ.” 42 C.F.R. § 498.5(l)(2). Importantly then, a supplier is not entitled to a hearing before an ALJ until there is a reconsidered decision of a revised initial determination. Id.

Under 42 C.F.R. § 498.70(b), an ALJ may dismiss a hearing request if the party requesting a hearing does not otherwise have a right to a hearing.

C. Conclusions of Law and Analysis

My conclusions of law are set forth in bold followed by my findings of fact and discussion.

1. Petitioner has no right to a hearing with respect to the May 22, 2024 reconsidered determination, because CMS issued a revised initial determination, which vacates and supersedes both the initial determination dated March 26, 2024 and the reconsidered determination dated May 22, 2024.
2. Dismissal of Petitioner’s request for hearing pursuant to 42 C.F.R. 498.70(b) is therefore appropriate.

CMS issued a revised initial determination dated August 28, 2024, denying Petitioner’s Medicare enrollment application under 42 C.F.R. § 424.530(a)(1) and maintaining the

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deactivated status of its Medicare billing privileges for failure to comply with Medicare requirements, i.e., Petitioner is not actively registered with the State of Connecticut and is administratively dissolved. CMS Ex. 6. Petitioner’s May 22, 2024 reconsidered determination, which affirmed the March 26, 2024 initial determination and which is the basis for Petitioner’s RFH, is now moot. CMS moves for dismissal on these grounds.

Because Petitioner has not filed a response to CMS’s Motion to Dismiss, it is unclear whether Petitioner has requested a reconsidered determination based on the newly issued August 28, 2024 revised initial determination. In any event, Petitioner has not filed a new RFH or sought leave to amend its original RFH based on a reconsidered determination of the August 28, 2024 revised initial determination. Thus, there is no reconsidered determination for which Petitioner may seek ALJ review under 42 C.F.R. § 498.5(l)(2). Accordingly, Petitioner’s RFH is dismissed.

III. Conclusion

For the foregoing reasons, Petitioner’s RFH is dismissed pursuant to 42 C.F.R. § 498.70(b). CMS’s motion to dismiss is hereby granted. Petitioner may file a request for reconsideration of the August 28, 2024 revised initial determination pursuant to 42 C.F.R. §§ 498.5(l)(1) and 498.22(a) within the permissible timeframes. Consistent with the timeframes set forth in the regulations, Petitioner may then file a RFH if it is dissatisfied with that reconsidered determination pursuant to 42 CFR §§ 498.5 and 498.40, et seq. The parties may also request that a dismissal of a request for hearing be vacated pursuant to 42 C.F.R. § 498.72.

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