David Plitt, M.D., DAB No. 3129 (2024)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DISMISSAL

David Plitt, M.D. (Petitioner) appeals the June 26, 2023 ruling of an Administrative Law Judge (ALJ), dismissing Petitioner’s request for a hearing.  David Plitt, MD, ALJ Ruling No. 2023-9 (June 26, 2023) (Dismissal).  The ALJ determined that Petitioner had no right to an ALJ hearing because the Centers for Medicare & Medicaid Services (CMS) did not issue a reconsidered determination.  We agree and affirm the ALJ’s dismissal of Petitioner’s hearing request for the reasons stated below.

Legal Background

Under the Social Security Act (Act) and its implementing regulations, the Department of Health and Human Services administers the Medicare program, including enrollment of health care “providers” and “suppliers,” through CMS and administrative contractors.  Act §§ 1816(a), 1842(a), 1866(j)(1)(A), 1874A; 42 C.F.R. § 400.202 (defining “Provider” and “Supplier”).1  Section 424.510(d)(2)(i) of the regulations requires suppliers such as Petitioner to include in enrollment applications “[c]omplete, accurate, and truthful responses to all information requested within each section as applicable to the provider or supplier type.”  The enrollment process requires “screening of providers and suppliers,” which includes a licensure check and also may include “fingerprinting” and “a criminal background check,” among other measures.  Act § 1866(j)(1)(A), (j)(2)(B). 

Accordingly, regulations in 42 C.F.R. Part 424 require CMS to screen certain Medicare enrollment applications “based on a CMS assessment of risk and assignment to a level of ‘limited,’ ‘moderate,’ or ‘high.’”  42 C.F.R. § 424.518.  When an individual maintains a five percent or greater ownership interest in a provider or supplier that CMS has designated at a “high” level of categorical risk, the Medicare contractor “[r]equires the

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submission of a set of fingerprints for a national background check.”  Id. § 424.518(c)(2)(ii)(A).  The contractor uses the fingerprints to conduct a criminal history record check of the Federal Bureau of Investigation’s Integrated Automated Fingerprint Identification System.  Id. § 424.518(c)(2)(ii)(B).  An individual subject to this fingerprint-based criminal history record check requirement “[m]ust submit a set of fingerprints” either “[u]pon submission of a Medicare enrollment application” or “[w]ithin 30 days of a Medicare contractor request.”  Id. § 424.518(d)(1).  Failure to submit the requested fingerprints will result in the individual’s billing privileges being “[d]enied under § 424.530(a)(1)” or “[r]evoked under § 424.535(a)(1).”  Id. § 424.518(d)(2).  Relevant here, CMS may revoke a currently enrolled supplier’s Medicare enrollment if the supplier “is determined to not be in compliance with the enrollment requirements.”  Id.§ 424.535(a)(1).  Revocation bars the supplier “from participating in the Medicare program from the effective date of the revocation until the end of the reenrollment bar” that CMS imposes.  Id.§ 424.535(c)(1). 

CMS’s revocation of a supplier’s Medicare enrollment is an “initial determination” that the supplier may appeal by requesting CMS’s reconsideration of the adverse determination.  42 C.F.R. §§ 498.3(a), (b)(17)(i); 498.5(l)(1).  To request reconsideration, a supplier must file a written request “within 60 days from receipt of the notice of initial determination, unless the time is extended” by CMS upon the supplier’s request and showing of good cause.  Id. § 498.22(a), (b)(3), (d).  “The date of receipt will be presumed to be 5 days after the date on the notice unless there is a showing that it was, in fact, received earlier or later.”  Id. § 498.22(b)(3).  When a reconsideration request is properly filed, CMS “[m]akes a reconsidered determination, affirming or modifying the initial determination and the findings on which it was based.”  42 C.F.R. § 498.24(c). 

A supplier dissatisfied with a reconsidered determination may seek a hearing before an ALJ, id. §§ 498.5(l)(2), 498.40; however, an ALJ may dismiss a hearing request when the requesting party “is not a proper party or does not otherwise have a right to a hearing,” id. § 498.70(b).  If still dissatisfied, the supplier has a right to request Departmental Appeals Board (Board) review of the ALJ’s dismissal order or decision.  Id. §§ 498.80, 498.82(a).     

“An initial determination,” including one that revokes billing privileges, is “binding” unless “[r]econsidered in accordance with [42 C.F.R.] § 498.24,” or reversed, modified, or revised in accordance with other specified regulations.  Id. § 498.20(b). 

Case Background2

In May 2022, Petitioner, David Plitt, M.D., a physician specializing in cardiology who was participating in the Medicare program, submitted an application, which listed an

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inactive correspondence address, to Palmetto GBA (Palmetto), a Medicare administrative contractor acting on behalf of CMS.   Docket No. C-23-469 (ALJ Dkt.), #1a, at 6-7.

By letter dated June 1, 2022, Palmetto directed Petitioner to submit a set of fingerprints for a background check within 30 days or face possible denial of Medicare billing privileges.  Dismissal at 1; ALJ Dkt. #1a, at 1-2.  The notice was mailed to the inactive address listed in Petitioner’s May 2022 application.  Dismissal at 1; see ALJ Dkt. #1a, at 1, 6.  The notice explained the background check was required due to Petitioner’s “5 percent or greater ownership” in a provider or supplier that CMS “designated at the high screening level.”  ALJ Dkt. #1a, at 1; see Dismissal at 1.  “Failure to submit fingerprints for all individual(s) listed,” the letter warned, “within the designated time frame may result in denial of [Petitioner’s] Medicare billing privileges.”  ALJ Dkt. #1a, at 2.  

Palmetto issued an August 3, 2022 initial determination, effective September 2, 2022, which revoked Petitioner’s Medicare privileges under 42 C.F.R. § 424.535(a)(1) for noncompliance with the fingerprint-based background check and barred Petitioner’s re-enrollment for one year pursuant to section 424.535(c).  Dismissal at 2; ALJ Dkt. #1a, at 3-5.  The initial determination warned that if Petitioner considered it incorrect, then Petitioner must submit any request for reconsideration within 60 days after the letter’s postmark date, and “[f]ailure to timely request a reconsideration is deemed a waiver of all rights to further administrative review.”  Dismissal at 2; ALJ Dkt. #1a, at 4.       

Seven months later, on March 10, 2023, Petitioner sent Palmetto a letter, on the letterhead of “Health Partners Network, WVUMedicine,” titled “Revocation Rebuttal.”  Dismissal at 2; ALJ Dkt. #1a, at 6-7.  The letter stated that Petitioner “never received the letter” of June 1, 2022 requiring submission of fingerprints, and requested “that Dr. Plitt’s West Virginia Medicare privileges be reinstated with no break in coverage.”  Dismissal at 2; ALJ Dkt. #1a, at 6-7.  The letter acknowledged that “[o]ur failure to update the correspondence address on Dr. Plitt’s record” with the doctor’s May 2022 application submission “caused Palmetto to mail letters to an inactive correspondence address” and that “[r]e-training was held” for staff on the importance of updating the correspondence address with application submissions.  ALJ Dkt. #1a, at 6; see Dismissal at 2.  “Once Dr. Plitt became aware of the request” from Palmetto, the letter asserted, “he immediately completed the fingerprint-based background check” and “obtained and submitted fingerprints,” although “it is our position that he did not satisfy the criteria” for “high risk” screening.  ALJ Dkt. #1a, at 6; Dismissal at 2.  Petitioner stated that, before receipt of the August 3, 2022 revocation letter on February 24, 2023, “we were unable to submit a reconsideration request because we did not have the official reason for the revocation or know to whom the request should be submitted.” ALJ Dkt. 1a, at 6; Dismissal at 2.

A March 14, 2023, Palmetto response letter notified Petitioner that the reconsideration request was untimely.  Dismissal at 2.   Palmetto explained that “[t]he initial determination letter was dated August 3, 2022,” and “a reconsideration request must be

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received within 65 calendar days of the date of the initial determination letter,” so Petitioner’s March 10, 2023 request was “beyond the applicable submission time frame.”  ALJ Dkt. #1a, at 8.  Petitioner had “failed to show good cause” for the late request, Palmetto stated, so it was “unable to render” a reconsidered determination.  Id.

On May 15, 2023, Petitioner, through counsel, filed a request for hearing before the ALJ challenging the revocation of Petitioner’s Medicare billing privileges.3  Dismissal at 2; Request for Hearing (RFH).  “On October 25, 2022,” Petitioner’s counsel stated, “we received notification from our claim’s denial follow up team, that Dr. Plitt had been terminated from Medicare effective September 2, 2022,” and “we expeditiously tried to determine” the basis for revocation.  RFH at 1.  Petitioner’s counsel asserted that Petitioner “never received” Palmetto’s June 1, 2022 fingerprint request until November 4, 2022, whereupon “he immediately complied with the request.”  Id.  Petitioner again asserted non-receipt of Palmetto’s August 3, 2022 revocation letter until February 24, 2023, inability to request reconsideration until then, and the inapplicability of the high risk screening criteria to Petitioner.  Id. at 1-2.  CMS did not file a response.

On June 26, 2023, the ALJ dismissed Petitioner’s hearing request.  Dismissal at 4.  The ALJ reasoned that Palmetto “determined that Dr. Plitt did not timely request reconsideration,” therefore “Palmetto did not issue a reconsidered determination,” and “[w]ithout a reconsidered determination, [Petitioner] does not have a right to an ALJ hearing.”  Id. at 2.  “If the affected party does not request reconsideration of an initial determination,” the ALJ explained, “then the initial determination is binding.”  Id. at 3; see also id. at 4 (“Without a reconsidered determination by the contractor, the initial determination is ‘binding’ and, therefore, administratively final. 42 C.F.R. § 498.20(b).”).  The ALJ acknowledged Petitioner’s attempts to establish good cause for untimely filing of the reconsideration request, but stated, “While I am sympathetic to Dr. Plitt and the circumstances surrounding this revocation, I do not have the jurisdiction to hear this appeal,” nor any “authority to grant equitable relief.”  Id. at 3-4.  Thus, the ALJ concluded that Palmetto’s initial determination “is final, not subject to review,” and dismissed Petitioner’s hearing request “pursuant to 42 C.F.R. § 498.70(b).”  Id. at 4.

On August 25, 2023, Petitioner, through counsel, timely appealed the Dismissal to the Board.  Request for Review (RR).  CMS timely responded, requesting affirmance of the Dismissal because “Palmetto did not issue a reconsidered determination,” and therefore “the initial determination is binding, and Petitioner had no right to request a hearing before the ALJ,” who, like the Board, also could not consider Petitioner’s equitable arguments.  CMS Br. at 1, 5-9.  Petitioner filed no reply.

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Standard of Review

“The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record as a whole,” and “[t]he standard of review on a disputed issue of law is whether the ALJ decision is erroneous.”  Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines), “Completion of the Review Process,” ¶ (c) (available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html). 

Analysis

Petitioner’s request for Board review reiterates the arguments of Petitioner’s hearing request before the ALJ.  Petitioner again offers a “complete picture” of delayed receipt of Palmetto’s correspondence, argues that Petitioner “needed to have the communication in hand to even present a basis for the appeal,” and states that Petitioner “is a crucial member of the Cardiology team” providing care to numerous patients in West Virginia.  RR at 1-2.  However, Petitioner does not specify any factual finding by the ALJ that is not supported by substantial evidence, or cite any legal authority or basis for contending that the Dismissal is legally erroneous.

We reject Petitioner’s contentions and affirm the ALJ’s factual findings and legal conclusions as unrefuted.  Petitioner does not contest the ALJ’s findings that Palmetto “issued its initial determination on August 3, 2022” and that “Dr. Plitt did not request reconsideration until March 10, 2023.”  See Dismissal at 3.  Petitioner does not challenge the ALJ’s finding that Petitioner “admits that he did not receive any correspondence because his provider enrollment staff failed to update his address when they submitted an enrollment application on his behalf” on May 9, 2022.  See id. at 2, 3; see ALJ Dkt. #1a, at 6.  Moreover, Petitioner does not cite any legal authority or argument contrary to the ALJ’s analysis of the applicable regulations in 42 C.F.R. Part 498, including sections 498.5(l)(2), 498.20(b), and 498.22.  Petitioner also does not dispute the ALJ’s analysis of abundant Board precedent supporting the Dismissal.  See Dismissal at 4.    

We hold that the ALJ’s dismissal of Petitioner’s request for hearing is supported by substantial evidence and consistent with the governing regulations.  The ALJ correctly summarized that, under 42 C.F.R. § 498.22(b) and (d), Petitioner had to file any reconsideration request within 65 days after the date on the initial determination notice, unless CMS extended that deadline on request and for good cause shown.  Dismissal at 2 n.2, 3.  The ALJ was neither factually nor legally mistaken in reasoning that Petitioner presumptively received Palmetto’s initial determination no later than August 8, 2022 (five days after the date on the notice) under section 498.22(b)(3), yet Petitioner “did not request reconsideration until March 10, 2023,” several months later.  See id. at 3.  The ALJ supportably found that Palmetto did not issue a reconsidered decision, but instead

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dismissed Petitioner’s reconsideration request as untimely and “because [Petitioner] did not establish good cause for the untimely filing.”  Id.  The ALJ acknowledged that Petitioner “disputes the presumptive date of receipt,” claims actual receipt occurred much later, and has made “an attempt to establish good cause for the untimely filing.”  Id.  Nevertheless, the ALJ did not err in concluding that, regardless, under section 498.5(1)(2), “[w]ithout a reconsidered determination, Dr. Plitt does not have a right to an ALJ hearing.”  Id. at 2; see also id. at 4.  Accordingly, the ALJ properly dismissed Petitioner’s hearing request pursuant to section 498.70(b), which authorizes dismissal when the requesting party “does not … have a right to a hearing.”  

The ALJ’s dismissal of Petitioner’s hearing request follows Board precedent that the absence of a reconsidered determination renders CMS’s initial determination binding, administratively final, and not subject to ALJ review.  See, e.g., Rollington Ferguson, M.D., DAB No. 2949, at 3 (2019) (“The absence of a reconsidered determination thus renders [the Medicare contractor’s] initial determination … binding and administratively final.”), appeal dismissed, No. 4:19-cv-05262, 2020 WL 5653285 (N.D. Cal. Sep. 23, 2020), aff’d, No. 20-17451, 2021 WL 4893349 (9th Cir. Oct. 20, 2021); Haissam Elzaim, M.D., DAB No. 2501, at 4-5 (2013) (“Without a reconsidered determination to provide a basis for further review, the initial determination to revoke Petitioner’s billing privileges became ‘binding.’”); Better Health Ambulance, DAB No. 2475, at 4 (2012) (“In the absence of a reconsidered determination from [the Medicare contractor], the initial revocation determination became binding.”). 

Under these circumstances, we have held consistently that the affected party has no right to an ALJ hearing.  See, e.g., Resource Health Care, Inc., DAB No. 3063, at 5 (2022) (“[A]bsent a reconsidered determination, Petitioner has no right to an ALJ hearing, and its arguments concerning an alleged change of address and lack of timely notice have no bearing on this matter.”); Denise A. Hardy, D.P.M., DAB No. 2464, at 5 (2012) (“By filing a request for a hearing without having first obtained a reconsidered determination, Petitioner did not comply with the procedures set forth in the applicable regulations … and is therefore not entitled to a hearing before an ALJ.”); Hiva Vakil, M.D., DAB No. 2460, at 5 (2012) (“Without a reconsidered determination by [the Medicare contractor], the initial determination is ‘binding’ and, therefore administratively final,” and petitioner “did not have the right to a hearing before the ALJ.”).  

Accordingly, the ALJ correctly concluded that, without a reconsidered determination, “there is no right to administrative review of the contractor’s determination that the reconsideration request was untimely …. even where a party contends that the timeliness determination was factually or legally erroneous.”  Dismissal at 4.  See Karthik Ramaswamy, M.D., DAB No. 2563, at 7 (2014) (stating that governing regulations “do not provide for further review from a contractor dismissal of a reconsideration request as untimely,” and entertaining contrary arguments that contractor erroneously dismissed reconsideration request “would amount to reviewing the dismissal, which we, like the

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ALJ, have no authority to do”), aff’d, 83 F. Supp. 3d 846 (E.D. Mo. 2015); accord Joseph L. Russino, M.D., DAB No. 3057, at 7 (2022).

The ALJ also followed Board precedent in disclaiming both the “authority to consider the merits of this matter” and “authority to grant equitable relief.”  See Dismissal at 4.  As we have explained, circumstances allegedly mitigating the untimely filing of a reconsideration request are not reviewable at this stage, after CMS, through its contractor, has found no good cause for extending the filing deadline.  “Even if we accept as true for purposes of this decision that events occurred as Petitioner alleges,”4 or agreed with Petitioner “that the decision to dismiss his reconsideration request was ill-founded or improper, we would not conclude that the ALJ erred in applying the effective date regulation.”  Ramaswamy at 7.  Furthermore, the allegedly “crucial” nature of Petitioner’s practice, see RR at 2, has no bearing on our application of controlling regulations and precedent.  “We have no authority to vacate an ALJ’s dismissal based on a supplier’s history of participation in the program or on concerns about the possible effect(s) revocation could have on the beneficiaries or the program.”  Union Pharmacy & Med. Supplies, Inc., DAB No. 3062, at 7 (2022).  “[T]o the extent that Petitioner seeks equitable relief from the ALJ’s dismissal, the Board has consistently held that the Board and the ALJ are not empowered to grant equitable relief.”  Id. (citing cases).

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Conclusion

We affirm the ALJ’s dismissal of Petitioner’s request for hearing.