Gary R. Tylock MD PA, 2025-22 (HHS-CRD August 29, 2025)

DISMISSAL

I dismiss the hearing request in this case because there is no evidence that the individual who filed the hearing request either has the right to a hearing or has been appointed to represent the affected party who does have a right to a hearing. 42 C.F.R. § 498.70(b).

I. Background

Gary R. Tylock MD PA (the group practice) was enrolled in the Medicare program as a supplier. On December 6, 2024, a contractor for the Centers for Medicare & Medicaid Services (CMS) deactivated the group practice’s Medicare billing privileges. The group practice filed an enrollment application seeking reactivation of its billing privileges. The CMS contractor reactivated the group practice’s billing privileges effective December 18, 2024. The group practice requested an earlier date of reactivation. On May 9, 2025, the CMS contractor issued a reconsidered determination affirming the effective date for reactivation. The CMS contractor informed the group practice that it could appeal the reconsidered determination by requesting a hearing before an administrative law judge (ALJ). Electronic Filing System (E-File) Doc. No. 1a.

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On June 23, 2025, Amy Levine, a Credentialing and Contract Manager with MIRBC Consulting LLC, signed and filed a request for an ALJ hearing purportedly on behalf of the group practice. On June 25, 2025, the Civil Remedies Division (CRD) acknowledged receipt of the hearing request and issued my Standing Order and the Civil Remedies Division Procedures (CRDP). The Standing Order directed that, within ten days, any party represented by a non-attorney representative had to file a notice appointing the non-attorney to serve as a representative in this proceeding. Standing Order ¶ 3.

The group practice did not timely file a notice of appointment for Ms. Levine.

Because the hearing request was not signed by a principal or authorized representative of the group practice, CRD staff contacted Ms. Levine by email on July 30, 2025, and informed her that she needed to submit a signed notice of her appointment as a representative for the group practice. E-File Doc. No. 6 at 2-3. On July 30, 2025, Ms. Levine responded that she “did not receive any notices. Can you please have them resent[.]” E-File Doc. No. 6 at 2. CRD staff replied on July 30, 2025, and directed Ms. Levine to paragraph 3 of the Standing Order for information as to the notice Petitioner needed to submit. E-File Doc. No. 6 at 1.

After receiving no further response, on August 4, 2025, CRD staff emailed Ms. Levine to inform her that I had authorized the group practice to use Form CMS-1696 to appoint Ms. Levine. CRD staff attached to form to the email and stated that Ms. Levine needed to submit a signed notice of appointment within seven days. CRD staff warned Ms. Levine that this case may be dismissed if Petitioner failed to either file the signed notice or request additional time. E-File Doc. No. 6 at 1.

On August 4, 2025, Ms. Levine responded that Dr. Tylock was retired and asked if another individual could sign the notice of appointment. E-File Doc. No. 7 at 2-3. CRD staff replied that a principle of the company, such as an owner, managing employee, or other authorized official could sign the notice. E-File Doc. No. 7 at 2.

The group practice did not timely submit a signed notice of appointment or a request for additional time to do so.

On August 15, 2025, Ms. Levine emailed CRD staff asking if the “appearance” would be in person or via Zoom. E-File Doc. No. 7 at 1. CRD staff responded that a hearing would be virtual if one was necessary and informed Ms. Levine that I had extended the deadline to file a signed notice of appointment as representative until August 20, 2025.

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The group practice did not file a signed notice appointing Ms. Levine as its non-attorney representative by August 20, 2025.

II. Analysis

Providers and suppliers who have been denied enrollment or the renewal of enrollment in the Medicare program have the right to notice and an opportunity for a hearing on the record. 42 U.S.C. § 1395cc(h)(1)(A), (j)(8) (cross-referencing 42 U.S.C. §§ 405(b), (g); 42 C.F.R. § 498.1(g). The approval of an effective date for billing privileges that is later than a provider or supplier requests “is in essence a denial of billing privileges for a period prior to that date”; therefore, a challenge to the effective date for billing privileges is an appealable initial determination. Victor Alvarez, M.D, DAB No. 2325 at 5 (2010); 42 C.F.R. § 498.3(b)(15). When CMS denies enrollment and billing privileges in the Medicare program, the provider or supplier has right to an ALJ hearing under the procedures in 42 C.F.R. Part 498. 42 C.F.R. § 424.545(a); 498.5(l)(2). In order to obtain a hearing, providers and suppliers must timely file a request for an ALJ hearing after CMS issues a reconsidered determination. 42 C.F.R. §§ 498.25(a)(3), 498.498.40.

The Administrative Procedure Act neither permits nor prohibits non-attorneys from practice before federal agencies; however, it recognizes that, in addition to counsel, there may be others who can serve as a “duly qualified representative in an agency proceeding.” 5 U.S.C. § 555(b); see also 5 U.S.C. § 500(d)(1). The Social Security Act authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the recognition of “agents or other persons, other than attorneys” to appear in administrative proceedings involving the Medicare program. 42 U.S.C. § 406(a)(1) (made applicable to the Medicare program by 42 U.S.C. § 1395ii). The Secretary’s only substantive requirements for individuals who want to serve as a representative in a proceeding is that they not be suspended or disqualified from appearing in proceedings before the Secretary or be prohibited by law from appearing before the Secretary. 42 C.F.R. § 498.10(a). The only procedural requirement is that, “[i]f the representative appointed is not an attorney, the party must file written notice of the appointment with . . . the ALJ.” 42 C.F.R. § 498.10(b).

In the present case, Ms. Levine signed the hearing request. However, “[a] hearing request signed by a non-attorney representative must be accompanied by a document appointing the non-attorney representative, signed by the party for whom the hearing is requested . . . .” CRDP § 2(c). This “appointment of representative must be signed by the non-attorney representative and the individual with authority to appoint the non-attorney representative, such as the affected party himself or herself or the affected party’s authorized official (e.g., president or chief executive officer).” CRDP § 3(b)(ii).

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It is essential that the party timely authorize a non-attorney to serve as its representative because it is only after such an appointment is made that the non-attorney representative may “[g]ive or accept any notice or request pertinent to the proceedings,” such as the hearing request. 42 C.F.R. § 498.11(a)(1). In addition, only a duly appointed representative may, on behalf of the affected party, present evidence and obtain information. 42 C.F.R. § 498.11(a)(2)-(3).

In the present case, despite the deadline set out in the Standing Order, and the separate requests from CRD staff with two extensions of time, Ms. Levine failed to file a signed appointment to represent the group practice. CRD informed Ms. Levine that I may dismiss the hearing request if she did not submit a notice of appointment from the group practice. Because Ms. Levine, and not an individual from the group practice, signed and filed the hearing request, I conclude that the hearing request should be dismissed because Ms. Levine is not a proper party to this case and has no right to request a hearing. 42 C.F.R. § 498.70(b); see Allan Young, D.O., DAB No. 2847 at 5-6 (2018).

III. Order

I dismiss the request for hearing.