Skyline Wound Care, PLLC, ALJ Ruling 2023-12 (HHS CRD August 11, 2023)

RULING DENYING MOTION TO VACATE

Petitioner, Skyline Wound Care, PLLC, is a group medical practice that appealed the effective date of its Medicare enrollment.  On May 31, 2023, I found that it had abandoned its appeal and dismissed the case.  Petitioner now asks that I vacate that dismissal pursuant to 42 C.F.R. § 498.72.  For the reasons discussed below, I deny Petitioner’s motion. 

Background

Petitioner is a group medical practice that applied to participate in the Medicare program.  CMS Ex. 1.  In its enrollment application, Amani Hemphill, M.D., is identified as the practice’s authorized official.  CMS Ex. 1 at 1.  Sharon Palacios, identified as a practice employee, is listed as the “enrollment application contact person.”  CMS Ex. 1 at 5.  

In letters dated August 12, August 23, and November 29, 2022, Novitas Solutions, the Medicare contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), advised Petitioner that it approved its application, effective June 14, 2022, with a retrospective billing date of March 16, 2022.  CMS Exs. 2, 6.  In a request filed on September 14, 2022, Petitioner sought reconsideration.  Amani Hemphill, M.D., who is identified in the request as “Authorized Official/C.E.O,” filed the request.  CMS Ex. 4.

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  In a reconsidered determination, dated December 6, 2022, the Medicare contractor affirmed the effective date.  CMS Ex. 5.  On February 28, 2023, Sarabjit S. Anand, M.D., filed, on behalf of Petitioner, a request for a hearing before an administrative law judge, again challenging the effective date.  Request for Hearing (Departmental Appeals Board Electronic Filing System document # 1).  The case was assigned to me. 

On March 2, 2023, I issued an Acknowledgment and Pre-Hearing Order with deadlines by which I required the parties to submit briefs and proposed exhibits as part of their prehearing exchanges.  In that order, I warned the parties that failing to comply with my directives and schedule could result in sanction.  On April 6, 2023, CMS timely submitted its exchange – a motion for summary judgment with brief in support and exhibits.  Petitioner’s deadline to file its exchange was May 11, 2023.  Petitioner did not respond to CMS’s motion; it did not file any pre-hearing exchange. 

On May 19, 2023, I ordered Petitioner to show cause, no later than May 30, 2023, why I should not dismiss its hearing request for abandonment pursuant to 42 C.F.R. § 498.69(a), (b)(2).  In that order, I directed Petitioner to explain why it had failed to comply with my prehearing order and ordered that it “must include its pre-hearing exchange along with its response.”  Order to Show Cause at 2 (emphasis in original).  Petitioner did not respond.  

On May 31, 2023, I dismissed Petitioner’s appeal pursuant to 42 C.F.R. § 498.69(b)(2).  I found that Petitioner had abandoned its request for hearing because it:  1) disregarded my pre-hearing order by failing to file its pre-hearing exchange; 2) did not respond to the motion for summary judgment filed by CMS; and 3) did not respond to the order to show cause.  

On July 27, 2023, Petitioner asked me to vacate the dismissal.  The motion is signed by Sharon Palacios, who identifies herself as “Credentialing Coordinator.”  It does not include Petitioner’s pre-hearing exchange.  On August 1, 2023, CMS filed its opposition to Petitioner’s request. 

Discussion

An ALJ may dismiss a request for hearing if it is abandoned by the party that requested it.  42 C.F.R. § 498.69(a).  A hearing request is abandoned if:  1) the party fails to appear at a prehearing conference or hearing without having previously shown good cause for not appearing; and 2) within ten days, the party fails to respond to a “show cause” notice with a showing of good cause.  42 C.F.R. § 498.69(b)(2).  A party fails to appear if it does not comply with an ALJ’s order to submit prehearing documents.  Delaware Med. Assocs., P.A., DAB No. 2938 at 1 (2019); Axion Healthcare Servs., LLC, DAB No. 2783 at 3

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(2017).  Here, because Petitioner failed to submit its prehearing exchange, as ordered, and failed to respond to my order to show cause, I was authorized to dismiss its hearing request for abandonment. 

I may vacate a dismissal if the requesting party shows good cause for my doing so.  42 C.F.R. § 498.72. 

The regulations do not define “good cause” but leave that determination to the discretion of the ALJ.  Looking to regulations governing certain Social Security benefit appeals, many ALJs have ruled that “good cause” means circumstances beyond a party’s ability to control.  See, e.g., Shadow Creek Med. Clinic,ALJ Ruling No. 2017-5 (2016); Oak Park Healthcare Ctr., DAB CR1917 (2009); Hillcrest Healthcare, LLC, DAB CR976 (2002), aff’d, DAB No. 1879 (2003); Hammonds Lane Ctr., DAB CR913 (2002), aff’d, DAB No. 1853 (2002); Glen Rose Med. Ctr. Nursing Home, DAB CR918 (2002), aff’d, DAB No. 1852  (2002); Parkview Care Ctr., DAB CR785 (2001); Hospicio San Martin, DAB CR387 (1995), aff’d, DAB No. 1554 (1996); 20 C.F.R. § 404.933(c); but see Ghodratollah Sarrafi, M.D., ALJ Ruling 2020-1 (2019) (suggesting that Medicare providers and suppliers should be held to a higher standard than Social Security disability recipients).¹

For its part, the Departmental Appeals Board has avoided articulating a “good cause” standard.  Burien Nursing & Rehab. Ctr., DAB No. 2870 at 5 (2018); Rutland Nursing Home, DAB No. 2582 at 5 (2014); Hammonds Lane Ctr., DAB No. 1853 n. 3; Wellington Oaks Care Ctr., DAB No. 1626 (1997).²  Nevertheless, the Board has consistently agreed that, where a party, by inadvertence or tactical choice, makes no effort to preserve its hearing rights, it must accept the consequences of its inaction – loss

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of its right to a hearing.  Rutland, DAB No. 2582 at 5; Hammonds Lane Ctr., DAB No. 1853 at 1; Hillcrest Healthcare, LLC, DAB No. 1978 (2003). 

Here, I need not even apply the Social Security standard.  Petitioner has not established good cause “under any reasonable definition.”  Petitioner claims that the “responsible party” (whom it does not identify) was unable to respond “to the additional information (not specified) requested during the specified period,” and that “the said individual” was on maternity leave from April through mid-July.  Motion to Vacate at 1.  These vague and unsupported assertions do not establish good cause. 

First, Petitioner does not suggest what the “additional information” might have been, and I find it highly unlikely that any additional information was required.  Nothing in my order or CMS’s motion and brief requests or refers to additional information.  In fact, the record in this case was completed at the reconsideration level, as it generally is in supplier enrollment appeals.  The regulations discourage adding to the record documents not produced at the reconsideration level.  As I explained in my prehearing order, “Petitioner may not offer new documentary evidence in this case absent a showing of good cause.”  Pre-hearing Order at 5 (¶ 6) (emphasis added) (citing 42 C.F.R. § 498.56(e)). 

Moreover, even assuming that Petitioner’s claim has some validity, if it needed time to develop or respond to new information, it could and should have requested the additional time.  It was not free to ignore the deadlines. 

Nor does the fact that one unidentified individual was on maternity leave establish good cause.  On March 2, 2023, when I issued my prehearing order, Petitioner was notified of the deadlines.  It has had more than five months to submit its exchange but has failed to do so.  At least three individuals representing Petitioner have been involved through the stages of this appeal:  Dr. Hemphill, who signed the Medicare application and requested reconsideration; Dr. Anand, who filed the hearing request; and Sharon Palacios, the employee who filed the request to vacate.  Petitioner has not explained what precluded the individuals who were not on leave – or a different practice employee – from responding to my orders.  Nor has Petitioner explained what prevented the practice from hiring counsel to handle the appeal.  Petitioner could thus have pursued the matter but failed to do so. 

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Conclusion

Section 498.72 allows me to vacate a dismissal if the petitioner establishes good cause.  Because Petitioner has not established good cause, I deny its request to vacate the dismissal. 

Endnotes

¹  The Social Security regulations instruct the ALJ to consider:  1) the circumstances that kept the respondent from making the request on time; 2) whether any agency action misled him; 3) whether the respondent understood the requirements for filing; and 4) whether the respondent had any physical, mental, educational, or linguistic limitation that prevented the respondent from filing a timely request or from understanding or knowing about the need to file a timely request for review.  20 C.F.R. § 404.911(a).

²  While the SSA “good-cause” standard may be the most-widely used and its application the least likely to be considered an abuse of discretion, it is not the only standard an ALJ might reasonably apply, particularly given the absence of controlling regulations or other guidance.  In reviewing an ALJ’s dismissal, the Board does not decide de novo its own view of good cause; rather it applies an abuse of discretion standard.