Linda Halinski, 2025-5 (HHS_CRD December 10, 2024)

DISMISSAL

Petitioner, Linda Halinski, NP, challenges the determination of the effective date of her participation in the Medicare program.  The Centers for Medicare & Medicaid Services (CMS) move to dismiss Petitioner’s request for hearing, arguing Petitioner has no right to further review because she did not request reconsideration nor obtain a reconsidered determination for this issue. 

After careful review of the record, I agree and dismiss this case pursuant to 42 C.F.R. § 498.70(b). 

I. Background

By letter dated March 30, 2022, First Coast Service Options, Inc. (First Coast), the Medicare administrative contractor for CMS, notified Petitioner that her initial enrollment application had been approved with a retrospective billing date of January 6, 2022.  CMS Ex. 2 at 1.  In a separate notice dated April 7, 2022, First Coast notified Petitioner that her reassignment application was approved, and her Medicare billing privileges were reassigned to Roberta Rexroth, PA (Roberta Rexroth), then her employer, with a retrospective billing date of December 29, 2021.  CMS Ex. 3 at 1. 

Both notices informed Petitioner of her right to submit a reconsideration request.  CMS Ex. 2 at 2-3; CMS Ex. 3 at 2.  On April 14, 2022, Roberta Rexroth requested reconsideration, asking “for an earlier effective date of 10/1/2021 for [Petitioner] to be attached to my group.”  CMS Ex. 4.  On July 12, 2022, CMS issued its reconsidered determination, upholding the April 7, 2022 initial determination.  CMS Ex. 1 at 3. 

On September 4, 2022, through the Departmental Appeals Board Electronic Filing System (DAB E-File), Petitioner filed a request for hearing (RFH).  Petitioner also filed CMS’s reconsidered determination issued on July 12, 2022, identifying it as the decision which she was appealing.  Compare DAB E-File Doc. No. 1a, with CMS Ex. 1.  The case was originally assigned to Administrative Law Judge (ALJ) Jacinta L. Alves, and the Civil Remedies Division issued ALJ Alves’ Standing Prehearing Order for Provider/Supplier Revocation, Termination, Preclusion, and Enrollment Related Cases (Standing Prehearing Order). 

On October 12, 2022, CMS filed a Motion to Dismiss and 10 supporting exhibits (CMS Exs. 1-10).  CMS’s Motion to Dismiss was untimely filed, but CMS proffered good cause for the untimely filing.  See Standing Prehearing Order ¶ 4; Motion to Dismiss at 4.  Petitioner did not file a response to CMS’s motion or a prehearing exchange by the deadlines set forth in the Standing Prehearing Order.  Standing Prehearing Order at ¶¶ 4, 5b. 

On November 18, 2022, ALJ Alves issued an Order to Show Cause (OSC) informing Petitioner that she was required to file her prehearing exchange but failed to do so and directed Petitioner to show cause why the case should not be dismissed for abandonment.  OSC.  The OSC further instructed Petitioner to file any documents or take any other actions required by the Standing Prehearing Order for which deadlines had passed.  Id. 

Petitioner filed a response to ALJ Alves’ OSC on November 19, 2022.  Petitioner resubmitted her originally filed request for hearing, as well as new documents consisting of a letter dated November 19, 2022, another letter requesting her “payment from Medicare to start December 1, 2021,” and a list of questions that is signed by Petitioner and dated November 28, 2022 (collectively “Response”).  DAB E-File Doc. No. 6-8a.  Petitioner did not specifically respond to CMS’s Motion to Dismiss, nor did she object to any of CMS’s proposed exhibits. 

On October 16, 2024, the case was reassigned to me.  On November 1, 2024, I issued an Order discharging the OSC based on Petitioner’s response and finding good cause for CMS’s untimely filed Motion to Dismiss.  I also provided Petitioner an opportunity to respond to CMS’s Motion to Dismiss and to submit a statement clarifying the basis for her hearing request.  Order Discharging OSC at 2-3.  Petitioner’s response, if any, was due by November 21, 2024.  Order Discharging OSC at 3. 

Petitioner has not filed a response to my Order.  CMS’s Motion to Dismiss is ready for ruling. 

II. Discussion

After careful consideration of the record, particularly Petitioner’s request for hearing and Response, I find that First Coast has not issued a reconsidered determination addressing the effective date of Petitioner’s Medicare enrollment, which is the issue for which Petitioner seeks review.  Without a reconsidered determination, Petitioner does not have a right to a hearing before an ALJ.  42 C.F.R. § 498.5(l)(2).  Therefore, because Petitioner does not have a right to a hearing, I dismiss Petitioner’s request for hearing pursuant to 42 C.F.R. § 498.70(b). 

On March 30, 2022, First Coast issued an initial determination approving Petitioner’s initial enrollment application.  CMS Ex. 2.  Petitioner was granted a retrospective billing date of January 6, 2022, which was the date requested in her initial enrollment application.  Compare CMS Ex. 2 at 1, with CMS Ex. 9 at 16. 

In a separate notice, on April 7, 2022, First Coast issued an initial determination approving the reassignment of Petitioner’s Medicare benefits to Roberta Rexroth, her employer, retrospective to December 29, 2021.  CMS Ex. 3 at 1.  Roberta Rexroth filed a reconsideration request, asking “for an earlier effective date of 10/1/2021 for [Petitioner] to be attached to my group.”  CMS Ex. 4.  First Coast issued a “Reconsideration Decision” on July 12, 2022, finding “the effective date of December 29, 2021 was issued correctly based on the approved CMS-855R application receipt date of March 29, 2022.”  CMS Ex. 1 at 3. 

On September 4, 2022, Petitioner filed a request for hearing, asking for “reconsideration of the billing [p]eriod,” attaching the July 12, 2022 Reconsideration Decision issued by First Coast.  RFH at 4.  CMS contends that Petitioner is not challenging the “effective date of the reassignment of billing privileges” for which the reconsideration decision was issued.  Motion to Dismiss at 2.  CMS contends that instead, Petitioner is challenging the effective date of her enrollment in Medicare, for which reconsideration was never requested nor a reconsideration decision ever issued.  Id. 

Petitioner’s request for hearing provides extensive background information and explains the many issues she had with her then-employer, Roberta Rexroth.  RFH.  Pertinent here, Petitioner explains that she signed a CMS-855R on November 20, 2021.  Id. at 2.  However, sometime in December 2021, Roberta Rexroth informed Petitioner that she did not have a Medicare number.  Id.  After being told to submit an initial enrollment application that was filled out by her employer, in January 2022, Petitioner submitted a CMS-855I application that she completed on her own behalf.  Id. at 2-3.  That application, however, was rejected.  Id. at 3.  Petitioner states she was later informed the application was rejected because requests for information were being made to her employer, and the employer’s representative failed to respond.  Id. at 3-4.  Petitioner resubmitted an application, which was subsequently approved two weeks later.  Id. at 4. 

Petitioner requests that I honor the date of her first application “and whatever else was attached to it that made the date earlier . . . .”  Id.  This statement supports CMS’s contention that Petitioner seeks review of her initial enrollment date rather than the reassignment of her Medicare benefits. 

However, later in her request for hearing, Petitioner requests that “[i]f it is impossible to go back to the original date that I was being held to on my first application I would like at least a two[-]week adjustment backward for my ex[-]employer to be paid for at least two weeks.”  Id.  Petitioner explains that Roberta Rexroth is requesting that she return money to her because, “they would’ve gotten money if I hadn’t made mistakes on the 855I.”  Id. at 4-5.  These statements are ambiguous as they could be requesting a two-week adjustment to either the reassignment or enrollment effective dates.  

Petitioner’s Response provides some clarity.  Petitioner requests that her “payment from Medicare start December 1, 2021.”  Response at 9.  Moreover, the newly submitted portions of Petitioner’s response largely refer to the issues related to the submission of her CMS-855I application submitted in January 2022, and do not discuss her CMS-855R application other than to state that someone on that application was contacted regarding her CMS-855I application rather than herself.  Id. at 1, 9. 

I provided Petitioner an opportunity to clarify the basis for her hearing request, explaining the basis for CMS’s Motion to Dismiss, but Petitioner has not filed a response.  Order Discharging OSC at 2-3.  Therefore, based on a careful review of Petitioner’s submissions and absent additional response from Petitioner, I agree with CMS that Petitioner is requesting a hearing on the effective date of enrollment in Medicare.  

Having determined the issue for which Petitioner seeks review, I find that the evidence does not show Petitioner requested reconsideration of her initial enrollment date or that a reconsidered determination was ever issued.  I acknowledge Petitioner’s statement that Roberta Rexroth requested reconsideration of the initial determination, and that she did not have a chance to review that request.  RFH at 1.  That request is in the record at CMS Ex. 4.  In sum, Roberta Rexroth requested “an earlier effective date of 10/1/2021” for Petitioner to be attached to its group, referencing the April 7, 2022 notice letter.  CMS Ex. 4.  Roberta Rexroth provides the reasons that it believed an earlier effective date was warranted and concludes by “appealing to [First Coast] for the effective date of [Petitioner’s] active [M]edicare billing number for Roberta Rexroth PA to be retroactive to 10/1/2021.”  Id.  Thus, Roberta Rexroth’s request was limited to the effective date of the reassignment of Petitioner’s billing privileges.  There is no other reconsideration request in the record, and Petitioner does not contend that she requested reconsideration of the initial determination regarding her enrollment application. 

Even if the request in the record could be construed as requesting reconsideration of both Petitioner’s enrollment and reassignment effective dates, or Petitioner had offered some evidence that she requested reconsideration, the right to a hearing is triggered by the issuance of a reconsidered determination.  42 C.F.R. § 498.5(l)(2).  Here, the reconsidered determination that Petitioner includes with her request for a hearing analyzes and decides only the effective date on the reassignment of Medicare benefits.  CMS Ex. 1 at 3.1  While Petitioner’s enrollment date is discussed, it is provided only for background purposes.  Id. at 2-3. 

For an affected party to have a right to a hearing before an ALJ, CMS or its contractor must first issue a reconsidered determination pursuant to 42 C.F.R. § 498.25.  42 C.F.R. § 498.5(l)(1)-(2); Hiva Vakil, M.D., DAB No. 2460 at 5 (2012) (“[T]he regulations plainly require that CMS or one of its contractors must issue a ‘reconsidered determination’ before the affected party is entitled to request a hearing before an ALJ.”).  Petitioner did not request, and neither CMS nor its contractor issued, a reconsidered determination addressing the effective date of Petitioner’s Medicare enrollment and billing privileges.  Accordingly, Petitioner has no right to a hearing before an ALJ and dismissal is appropriate pursuant to 42 C.F.R. § 498.70(b).  

III. Conclusion

For the foregoing reasons, I conclude that Petitioner does not have a right to a hearing and Petitioner’s hearing request is dismissed pursuant to 42 C.F.R. § 498.70(b).