Reliance Care Enterprise, LLC, DAB CR6585 (2024)

DECISION

In this procedurally confusing case, Petitioner, Reliance Care Enterprise, LLC, a company that provides non-emergency medical transportation, applied to enroll in the Medicare program.  The Medicare contractor, Noridian Healthcare Solutions, denied its enrollment because non-emergency medical transportation companies are not eligible to enroll in the Medicare program.  Petitioner appealed, and the Centers for Medicare and Medicaid Services (CMS) now moves to dismiss this appeal.

For the reasons discussed below, I deny CMS’s motion.  However, on the merits, I affirm the contractor’s revised reconsidered determination denying Petitioner’s Medicare enrollment.

Background

On May 21, 2024, Petitioner applied to enroll in the Medicare program (submitting Form CMS 855B).  CMS Ex. 4.  In a letter dated June 6, 2024, the contractor advised Petitioner that its application was denied because no statute or regulation authorizes Medicare enrollment or payment for a non-emergency medical transportation company.  CMS Ex. 3 at 1.  Petitioner timely requested reconsideration.  CMS Ex. 2.

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In a reconsidered determination, dated August 21, 2024, the contractor affirmed the denial of enrollment, citing 42 C.F.R. § 424.530(a)(3), and concluding that “the entity is not in compliance with all requirements to enroll in the Medicare program.”  CMS Ex. 1 at 2.  On its face, this was plainly an error.  The quoted text is not from section 424.530(a)(3), which applies to entities that have been convicted of felonies (obviously not the case here).  It is from section 424.530(a)(1), which requires compliance with all enrollment requirements.

On August 30, 2024, Petitioner filed this appeal.

While this appeal was pending, the contractor vacated its erroneous reconsidered determination of August 21 and, on October 2, 2024, issued a revised one, as authorized by 42 C.F.R. §§ 498.30 and 498.32.  CMS Ex. 5.  The revised reconsideration cites the correct regulatory provision – 42 C.F.R. § 424.530(a)(1) – but is otherwise virtually identical to the August 21 determination.

In the meantime, responding to my initial order, CMS filed its prehearing exchange on October 10, 2024.  The exchange included a pre-hearing brief and motion to dismiss, with five exhibits (CMS Exs. 1-5).  In the absence of any objections, I admit into evidence CMS Exs. 1-5.

For its part, on November 13, 2024, Petitioner re-submitted its request for hearing.

Discussion

1. I deny CMS’s motion to dismiss because Petitioner re-filed its request for a hearing before an administrative law judge on November 13, 2024, well within the 60-day deadline for appealing the contractor’s October 2 revised, reconsidered determination.1

CMS moves to dismiss, arguing that Petitioner has no right to further review because it appealed a reconsidered determination that the contractor subsequently vacated.

Medicare enrollment appeals are governed by 42 C.F.R. Part 498.  42 C.F.R. § 424.545.  The contractor’s August 21 denial of Petitioner’s enrollment application was an “initial determination” that is subject to review under the procedures set forth in 42 C.F.R. Part 498; see 42 C.F.R. §§ 498.3(b)(5), 498.3(b)(17).  A 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);

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498.5(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); 498.5(l)(2); 498.40.  The regulations do not provide for a hearing in the absence of a reconsidered 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, DAB No. 2460 at 4-5 (2012).

CMS recognizes that Petitioner timely appealed the August 21 reconsidered determination, and that appeal was properly before me.  CMS argues that, because the contractor reopened and revised that determination, Petitioner’s appeal is moot.  Without expressly saying so, CMS implies that Petitioner is not entitled to a hearing on the revised reconsidered determination because it did not timely appeal that determination.  I disagree.

Notwithstanding the strict jurisdictional requirement for a reconsidered determination, a petitioner, particularly one who is appearing on its own behalf, should not unfairly be denied review if, in fact, it has requested and obtained a reconsidered determination and has requested ALJ review within 60 days of the contractor issuing the reconsideration.

Here, the revised reconsideration simply corrected an obvious scrivener’s error and was, otherwise, identical to the original reconsideration.  The matter should certainly be consolidated with this proceeding, so long as Petitioner timely appealed.  In fact, Petitioner did so when, on November 13, it refiled its original hearing request.  Petitioner is therefore entitled to review of the revised reconsideration.

2. I affirm the denial of enrollment.  Although Medicare may pay for some non-emergency transportation services, those services must be supplied by ambulances that meet regulatory requirements, and Petitioner has not established (or even claimed) that it is an ambulance service or that it meets those requirements.

The reconsidered determination explains little about why the contractor denied the application.  It says that Medicare excludes “non-emergent transportation services.”  CMS Ex. 5 at 2.  While technically accurate, this may be a bit misleading.

The Medicare statute lists medical and other services that may be entitled to Medicare coverage.  They include ambulance service, where other methods of transportation are

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contraindicated by the individual’s condition and “to the extent provided in regulations.”  Act § 1861(s)(7); 42 C.F.R. §§ 410.10(i), 410.40, 410.41.

These covered services include some nonemergency transportation services, such as nonemergency “basic life support,” and nonemergency “advanced life support.”  42 C.F.R. § 410.40(c).  Special rules address nonemergency, scheduled, repetitive ambulance services and nonemergency ambulance services that are either unscheduled or that are scheduled on a nonrepetitive basis.  42 C.F.R. § 410.40(e)(2) and (3).  However, because only ambulance services are included, the supplier must meet specific vehicle, staff, billing, and reporting requirements for ambulances.  42 C.F.R. §§ 410.40(a), 410.41.

Here, although Petitioner is certified, by the State of Nevada, to provide nonemergency medical transportation to passengers, it does not purport to be an ambulance or to meet any of the regulatory requirements of sections 410.40 and 410.41.  It is therefore not eligible to enroll in the Medicare program as a supplier of services.2  If a prospective supplier does not comply with enrollment requirements, CMS (or the contractor) may deny its application.  42 C.F.R. § 424.530(a)(1).  I therefore affirm the contractor’s determination to deny enrollment.

Petitioner asks, in the alternative, that the contractor return its $709 application fee.  My authority here is limited.  I am simply not authorized to order that the application fee be returned.  See 42 C.F.R. § 498.3(b) (listing initial determinations that are reviewable through the administrative process).

Conclusion

For the reasons discussed above, I deny CMS’s motion to dismiss.  I affirm the contractor’s revised reconsidered determination denying Petitioner’s Medicare enrollment.