Errajith De Silva, M.D., F.C.C.P. and Bertrand De Silva MD, Inc., 2025-13 (HHS-CRD April 17, 2025)

DISMISSAL

I dismiss Petitioners’ request for hearing by an administrative law judge (ALJ) to dispute the effective date for the reactivation of their Medicare billing privileges.  I dismiss the hearing request as to Errajith De Silva, M.D., F.C.C.P. (Dr. De Silva) because it is untimely.  I dismiss the hearing request as to Dr. De Silva’s group practice, Bertrand De Silva MD, Inc. (Group Practice), based on the doctrine of res judicata.  

I. Procedural History

On February 27, 2025, Petitioners filed as their hearing request a letter dated August 20, 2024.  The letter requested a February 6, 2024 effective date for Petitioners’ Medicare billing privileges.  On March 3, 2025, the Civil Remedies Division (CRD) acknowledged 

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receipt of the hearing request, provided the parties with prehearing submission deadlines, and issued my Standing Order. 

On March 27, 2025, the Centers for Medicare & Medicaid Services (CMS) filed a motion to dismiss Petitioners’ hearing request and 13 exhibits (CMS Exs. 1-13).  CMS also requested a stay in the prehearing submission schedule pending a ruling on the motion. 

On March 31, 2025, CRD informed CMS that it failed to submit one of its exhibits (i.e., CMS Ex. 6) and that it must submit that exhibit as soon as possible.  At the same time, CRD reminded Petitioners that, under my Standing Order, their response to CMS’s request for a stay was due the following day and that Petitioner’s response to the motion to dismiss was due on April 7, 2025. 

On March 31, 2025, CMS filed CMS Exhibit 6.  On April 1, 2025, Petitioners uploaded a document that CRD confirmed was Petitioners’ reply to the motion to dismiss. 

In an April 2, 2025 email, CRD informed the parties that I granted CMS’s unopposed request for a stay in the prehearing submission schedule and that Petitioners had until April 7, 2025, to file any additional response to the motion to dismiss or to request additional time to respond to that motion.  Petitioner did not file any additional documents. 

II. Background

Dr. De Silva is a physician who owns the Group Practice.  CMS Ex. 1 at 1; CMS Ex. 5 at 4-5; CMS Ex. 6 at 1-3.  They are both enrolled as suppliers in the Medicare program.  See CMS Ex. 1 at 1; CMS Ex. 5 at 1-2; CMS Ex. 6 at 1-3. 

In an August 29, 2023 notice, a CMS contractor advised the Group Practice that it needed to revalidate the information in its Medicare enrollment records by November 30, 2023.  The notice warned that a failure to timely revalidate may result in the deactivation of its Medicare billing privileges.  The notice explained that CMS would not pay for services rendered by the Group Practice during the period of deactivation.  CMS Ex. 7 at 1. 

In a February 15, 2024 notice, the CMS contractor advised the Group Practice that its Medicare billing privileges were deactivated as of February 6, 2024, because the Group Practice failed to timely revalidate its Medicare enrollment records.  The notice stated that the Group Practice could file a rebuttal to dispute the deactivation.  The notice also indicated that the Group Practice could recover its billing privileges if it filed an enrollment application to revalidate its Medicare enrollment records.  CMS Ex. 8 at 1-2. 

On April 30, 2024, CMS received an enrollment application from the Group Practice.  CMS Ex. 13 at 1.  On May 25, 2024, the CMS contractor requested additional 

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information from the Group Practice concerning the April 30, 2024 enrollment application.  See CMS Ex. 2 at 2, 3; CMS Ex. 3 at 2, 3.  On June 7, 2024, CMS received a reactivation enrollment application from the Group Practice.  CMS Ex. 5 at 1.  On July 1, 2024, a CMS contractor rejected the April 30, 2024 enrollment application because the enrollment application was missing necessary information.  CMS Ex. 13 at 1.  On July 2, 2024, CMS received an enrollment application from Dr. De Silva for the purpose of “adding, deleting, or changing general Medicare enrollment information.”  CMS Ex. 6 at 1.  In a July 10, 2024 notice of initial determination, a CMS contractor approved the reactivation enrollment application and set June 2, 2024, as the effective date for both Petitioners.  CMS Ex. 1 at 1. 

On August 20, 2024, the CMS contractor received a request for reconsideration from Petitioners that sought a February 6, 2024 effective date of reactivation.  CMS Ex. 2 at 3; CMS Ex. 3 at 3; see also Hearing Req. (August 20, 2024 letter to the CMS contractor). 

On October 18, 2024, a hearing officer issued two nearly identical partially favorable reconsidered determinations that modified the effective date for Petitioners’ reactivation of Medicare billing privileges to April 30, 2024.  CMS Exs. 2-3.  The hearing officer determined that Petitioners’ filing of an enrollment application on June 7, 2024, provided the missing information that the contractor requested on May 25, 2024.  Therefore, Petitioners were entitled to an April 30, 2024 effective date.  CMS Ex. 2 at 5; CMS Ex. 3 at 5; 42 C.F.R. § 424.540(d)(2).  On October 21, 2024, the hearing officer sent a single email to Dr. De Silva’s email address that attached both reconsidered determinations, one for each of the Petitioners.  CMS Ex. 4; see also CMS Ex. 2 at 1; CMS Ex. 3 at 1. 

On October 23, 2024, Dr. De Silva filed a request for an ALJ hearing with CRD to dispute the effective date for the reactivation of billing privileges.  CMS Ex. 9.  Dr. De Silva only filed a copy of the reconsidered determination for the Group Practice with the hearing request.  CMS Ex. 10.  On October 28, 2024, CRD acknowledged receipt of the hearing request and issued the Standing Order for Judge Keith Sickendick, the ALJ assigned to that case.  CRD docketed the case under number C-25-80 and captioned the case as the Group Practice versus CMS.  See CMS Ex. 11 at 1; CMS Ex. 12 at 1. 

On December 31, 2024, Judge Sickendick issued an Order to Show Cause why he should not dismiss the hearing request for abandonment because the Group Practice did not timely file a prehearing submission.  CMS Ex. 11 at 1.  On January 21, 2025, Judge Sickendick dismissed the Group Practice’s hearing request for abandonment because the Group Practice did not respond to the show cause order.  CMS Ex. 12 at 1. 

III.   Parties to this Case

When the Civil Remedies Division docketed this case, it identified Dr. De Silva as the only petitioner.  However, as CMS suggests, the document filed as a hearing request 

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seeks a more favorable effective date for reactivation for both Dr. De Silva and the Group Practice.  Mot. to Dismiss at 3; see also Hearing Req. 

I agree with CMS.  Dr. De Silva and the Group Practice are each an “affected party,” that have the right to file a hearing request.  42 C.F.R. §§ 498.2 (definition of “Affected party”), 498.40(a).  Therefore, I have changed the case caption to include the Group Practice as a party to this case. 

IV. Discussion

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers in the Medicare program.  42 U.S.C. §§ 1302, 1395cc(j).  A “supplier” includes “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  42 U.S.C. § 1395x(d). 

A supplier must enroll in the Medicare program to receive payment for covered items or services.  42 U.S.C. §§ 1395n(a), 1395u(h)(1); 42 C.F.R. § 424.505.  To enroll, the supplier must submit an enrollment application and provide all required information.  42 C.F.R. § 424.510(a). 

To maintain enrollment, a supplier must recertify the accuracy of its enrollment information every five years.  42 C.F.R. § 424.515.  A supplier “must submit to CMS the applicable enrollment application with complete and accurate information and applicable supporting documentation within 60 calendar days of [CMS’s] notification to resubmit and certify to the accuracy of its enrollment information.”  42 C.F.R. § 424.515(a)(2).  If a supplier fails to submit information required by CMS within 90 days of receiving notice from CMS to revalidate, then CMS may deactivate the supplier’s Medicare billing privileges.  42 C.F.R. § 424.540(a)(3).  During a period of deactivation, CMS cannot reimburse the supplier for any health care items or services provided to Medicare beneficiaries.  42 C.F.R. §§ 424.540(e), 424.555(b); 86 Fed. Reg. 62,240, 62,359-60 (Nov. 9, 2021); see also Goffney v. Becerra, 995 F.3d 737, 743 (9th Cir. 2021). 

To reactivate billing privileges, a supplier must recertify the enrollment information on file with CMS and furnish any missing information.  42 C.F.R. § 424.540(b)(1).  If a supplier does this, “[t]he effective date of a reactivation of billing privileges . . . is the date on which the Medicare contractor received the . . . supplier’s reactivation submission that was processed to approval by the Medicare contractor.”  42 C.F.R. § 424.540(d)(2). 

If a supplier is displeased with the effective date for reactivation of billing privileges, the supplier may request that CMS or a CMS contractor reconsider the effective date assigned in the initial determination.  See 42 C.F.R. § 498.3(b)(15), 498.22. 

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If the supplier is dissatisfied with the reconsidered determination, then the supplier may request an ALJ hearing; however, the hearing request “must be filed within sixty days after notice of such decision is received by the individual making such request.”  42 U.S.C. §§ 405(b)(1), 1395cc(h)(1), (j)(8); see also 42 C.F.R. § 498.40(a)(2).  The presumed receipt date for the reconsidered determination is five days after mailing.  42 C.F.R. §§ 498.22(b)(3), 498.40(a)(2).  An ALJ may extend the due date for a hearing request “[f]or good cause shown.”  42 C.F.R. § 498.40(c)(2). 

The regulations do not define what constitutes “good cause” to extend the filing deadline for a hearing request and the Departmental Appeals Board (DAB) “has never attempted to provide an authoritative or complete definition of the term ‘good cause’ in section 498.40(c)(2).”  Brookside Rehab. & Care Ctr., DAB No. 2094, at 7 n.7 (2007) (citing Glen Rose Med. Ctr. Nursing Home, DAB No. 1852 at 7 n.5 (2002)).  However, a basic definition of “good cause” means “[a] legally sufficient reason.”  Black’s Law Dictionary 12th ed. (2024) (defined under the second definition of the word “cause”).  Therefore, good cause is more than just explaining why a request for hearing is late.  See Brookside, DAB No. 2094, at 7 n.7 (“Here, we need not decide exactly the scope of an ALJ’s discretion under [42 C.F.R. § 498.40(c)(2)] since (under any reasonable definition of that term) the ALJ reasonably determined that [the provider] did not show ‘good cause.’”). 

In this case, CMS moves to dismiss the hearing request as it relates to Dr. De Silva for untimeliness and as it relates to the Group Practice under the doctrine of res judicata.  Mot. to Dismiss at 4-9.  Petitioners oppose this motion; however, Petitioners’ only response was to upload a document that, on its face, does not refute CMS’s arguments. 

The present case is complicated by the fact that it involves two interrelated suppliers that were involved in the revalidation and reactivation processes.  In some documents these suppliers were treated together, but in others they are treated separately.  The confusion was compounded by some of Petitioners’ filings as well as Petitioners’ failure to make certain filings.  At the hearing stage alone, Dr. De Silva filed a hearing request in 2024 that sounds as though he is only appealing the effective date for reactivation for himself but filed it with only a copy of the hearing officer’s reconsidered determination for the Group Practice.  CMS Exs. 9-10.  As a result, CRD interpreted this as an appeal on behalf of the Group Practice, and Dr. De Silva did not object to this.  See CMS Exs. 11-12; see also CMS Ex. 2 at 7; CMS Ex. 3 at 7 (advising Petitioners that a copy of the hearing officer’s decision must be filed with the request for an ALJ hearing); Civil Remedies Division Procedures § 2(c).  Further, the request for hearing filed in the present matter appears to be Petitioners’ 2024 joint request for reconsideration rather than a hearing request.  Hearing Req.  This filing did not include a copy of either reconsidered determination.  As a result, CRD originally docketed the current matter with Dr. De Silva as the only party. 

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Despite the unusual procedural history to this case, it is clear that the hearing request received in the present case is untimely.  As stated above, Dr. De Silva had 60 days from receipt of his reconsidered determination to file a hearing request.  On October 21, 2024, the CMS contractor sent one email with the separate reconsidered determinations for each of the Petitioners to Dr. De Silva’s email address.  CMS Ex. 4; see also CMS Exs. 2-3.  Dr. De Silva obviously received the email because he filed a hearing request on October 23, 2024, with a copy of the Group Practice’s reconsidered determination.  CMS Exs. 9‑10.  Dr. De Silva’s filing on February 27, 2025, is well beyond the 60-day timeframe to file a hearing request.  Although Dr. De Silva had an opportunity to assert and show good cause for the late filing, Dr. De Silva failed to do so, only filing a document that seems to have no relevance to this case in response to the motion to dismiss.  Therefore, I dismiss Dr. De Silva’s hearing request as untimely.  42 C.F.R. § 498.70(c). 

As to the Group Practice, CMS argues that the Group Practice is barred under the doctrine of res judicata from requesting a second hearing to dispute the reactivation effective date.  Mot. to Dismiss at 7-9.  CMS cited the following regulation as the basis for dismissing the hearing request: 

Res Judicata.  There has been a previous determination or decision with respect to the rights of the same affected party on the same facts and law pertinent to the same issue or issues which has become final either by judicial affirmance or, without judicial consideration, because the affected party did not timely request reconsideration, hearing, or review, or commence a civil action with respect to that determination or decision.

42 C.F.R. § 498.70(a).  This regulation is consistent with the doctrine of res judicata, which forecloses successive litigation on the same claim if there is a final judgment on the merits between the same parties.  Cf. Michael Scott Edwards, OD, and M. Scott Edwards, OD, PA, DAB No. 2975 at 12 (2019). 

Judge Sickendick dismissed the Group Practice’s original hearing request on January 21, 2025.  CMS Ex. 12.  At that point, the Group Practice had 60 days to file a motion to vacate with Judge Sickendick and/or a request for review with the DAB.  CMS Ex. 12; 42 C.F.R. §§ 498.72, 498.80-.82.  According to DAB records, the Group Practice has not sought either type of relief related to the January 21, 2025 dismissal.  

Because the Group Practice did not timely move to vacate the dismissal or request DAB review of the dismissal, the hearing officer’s partially favorable reconsidered determination for the Group Practice is now legally binding.  See 42 C.F.R. § 498.25(b).  The present hearing request involves the same affected parties, issues, facts, and law as the previous hearing request.  Compare Hearing Req. with CMS Ex. 9.  Therefore, I grant 

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CMS’s motion to dismiss the hearing request as it pertains to the Group Practice.  42 C.F.R. § 498.70(a).  As stated by the DAB, “[t]he whole purpose of res judicata is to prevent repetitive litigation of issues after a final and binding decision has already been reached.”  N.Y. State Dep’t of Social Srvs., DAB No. 1186 (1990), 1990 WL 605341, at *2 (H.H.S. Oct. 19, 1990).  The Group Practice had its opportunity for a hearing and cannot seek to file a hearing request because the reconsidered determination is now binding. 

V. Order

I dismiss Petitioners’ request for hearing.