Glacier Peak Pain Care, PLLC, ALJ Ruling 2025-19 (HHS-CRD June 5, 2025)

DISMISSAL

I dismiss Petitioner’s request for hearing by an administrative law judge (ALJ) to dispute the effective date for the reactivation of its Medicare billing privileges because it is untimely.

I. Background

Petitioner is enrolled in the Medicare program as a clinic/group practice that is owned by Kirsten Baca, M.D.  CMS Ex. 4 at 1, 4; CMS Ex. 11 at 1, 5.  On January 23, 2024, a contractor with the Centers for Medicare & Medicaid Services (CMS) sent notices to Petitioner at both the physical address and post office box listed in Petitioner’s Medicare enrollment records.  CMS Ex. 1 at 1; CMS Ex. 2 at 1; see also CMS Ex. 11 at 3-4.  The CMS contractor advised Petitioner that it needed to revalidate the information in its Medicare enrollment records by April 30, 2024.  CMS Ex. 1 at 1; CMS Ex. 2 at 1.  The CMS contractor warned that a failure to timely revalidate may result in the deactivation of its Medicare billing privileges and that CMS would not pay for services rendered by Petitioner during the period of deactivation.  CMS Ex. 1 at 1; CMS Ex. 2 at 1.

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In a July 11, 2024 notice, the CMS contractor advised Petitioner that its Medicare billing privileges were deactivated as of July 3, 2024, because Petitioner failed to timely revalidate its Medicare enrollment records.  CMS Ex. 3 at 1.  The notice stated that Petitioner could file a rebuttal to dispute the deactivation and/or file an enrollment application to revalidate its Medicare enrollment records to reactivate its billing privileges.  CMS Ex. 3 at 1-2.

On September 16, 2024, CMS received an electronically filed reactivation enrollment application from Petitioner.  CMS Ex. 4 at 1.  The reactivation enrollment application listed Dr. Baca as a contact person for Petitioner and provided Dr. Baca’s Gmail address as her email address.  CMS Ex. 4 at 6.  In an October 1, 2024 notice of initial determination, the CMS contractor approved the reactivation enrollment application; however, the CMS contractor stated that Petitioner “will have a gap in billing privileges from July 3, 2024 through September 15, 2024 for failing to fully revalidate during a previous revalidation cycle.”  CMS Ex. 5 at 1.

On October 7, 2024, Petitioner requested reconsideration of the gap in billing privileges.  CMS Exs. 6-7.  Petitioner asserted that it allegedly did not receive notice from the CMS contractor that Petitioner needed to revalidate.  CMS Ex. 6 at 1.  Petitioner submitted the request by email from Dr. Baca’s Gmail account.  CMS Ex. 7.  On October 8, 2024, the CMS contractor acknowledged receipt of the reconsideration request.  CMS Ex. 8.  In a December 19, 2024 reconsidered determination, a hearing officer with the CMS contractor upheld the initial determination noting that the CMS contractor properly sent notice to Petitioner to revalidate its enrollment information.  CMS Ex. 9 at 3.  The CMS contractor’s hearing officer emailed the reconsidered determination to Dr. Baca’s Gmail account on December 19, 2024.  CMS Ex. 10.

On March 18, 2025, Petitioner electronically filed a request for an ALJ hearing to dispute the gap in billing privileges from July 3, 2024 through September 15, 2024.  Petitioner asserted in the hearing request that Petitioner’s failure to timely revalidate its Medicare enrollment information was caused by a former employee who failed to fulfill “critical duties” from January 23, 2024 through September 4, 2024.  Hr’g Req. at 2.  Petitioner requested that CMS treat September 4, 2024, as the date on which Petitioner received the notice to revalidate so that its revalidation application, filed on September 16, 2024, would be considered timely.  Hr’g Req. at 2.

On March 20, 2025, the Civil Remedies Division (CRD) acknowledged receipt of the hearing request, provided dates for prehearing submissions, and issued my Standing Order.  On April 24, 2025, CMS filed a prehearing brief (CMS Br.) that included a motion to dismiss and 11 proposed exhibits.  Petitioner did not file a response to the motion to dismiss.

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II. 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.  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 “unless there is a showing that it was, in fact, received earlier or later.”  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).

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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 for the following reasons:

In the present case, CMS’s Reconsideration Decision was issued on December 19, 2024.  CMS Exs. 9, 10.  The presumed date of receipt, based on 42 C.F.R. § 498.22(b)(3), was December 24, 2024.  An appeal was therefore due by February 22, 2025.  However, Petitioner did not file a request for hearing until March 18, 2025.  DAB E-File, Doc. No. 1.  Moreover, Petitioner did not request an extension of time from the ALJ, nor articulate the reason for its untimely filing.  Thus, this Tribunal should dismiss Petitioner’s hearing request pursuant to 42 C.F.R. § 498.70(c) because it was filed 24 days late.

CMS Br. at 4.

CMS is correct that Petitioner filed its hearing request late.  The reconsidered determination provided Petitioner with notice as to the 60-day time limit to request reconsideration:

FURTHER APPEAL RIGHTS – ADMINISTRATIVE LAW JUDGE (ALJ):

If you are satisfied with this decision, you do not need to take further action.  If you believe that this determination is not correct, you may request ALJ review for the reconsideration portion of this decision letter.  To request ALJ review, you must file your appeal with the Civil Remedies Division of the Departmental Appeals Board within 60 calendar days after the date of receipt of this decision.

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CMS Ex. 9 at 3.

In the hearing request, Petitioner neither asked for an extension of time to file the hearing request nor showed good cause why Petitioner filed the hearing request late.  Further, Petitioner did not respond to CMS’s motion to dismiss.  In the absence of any dispute, I conclude that Petitioner’s hearing request is late and that there is no good cause to extend the filing date.

III. Order

I dismiss Petitioner’s request for hearing.