David Plitt, MD, ALJ Ruling 2023-9 (HHS CRD June 26, 2023)

DISMISSAL

For the reasons explained below, Dr. Plitt’s request for hearing is dismissed pursuant to 42 C.F.R. § 498.70(b). 

I.      Background

By letter dated June 1, 2022, the Centers for Medicare & Medicaid Services (CMS), through its administrative contractor Palmetto GBA (Palmetto),  notified Petitioner, David Plitt, M.D., that he must complete a fingerprint-based background check within 30 days of the date of the letter, because he has a 5 percent or greater ownership interest in a provider or supplier that is considered to be at—or elevated to­—the “high risk” or “high level” screening category pursuant to 42 C.F.R. § 424.518(d).  See Docket Entry # 1a in the Departmental Appeals Board (DAB) Electronic Filing System (E-File) for Docket No. C-23-469.  The letter also indicated that failure to submit fingerprints within the designated timeframe “may result in denial” of Dr. Plitt’s Medicare billing privileges.  Id. at 2.

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By letter dated August 3, 2022, Palmetto notified Dr. Plitt that his Medicare billing privileges were revoked effective September 2, 2022, pursuant to 42 C.F.R. § 424.535(a)(1), after failing to comply with the June 1, 2022 request.  Docket Entry # 1a in DAB E-File at 3-5.  The letter indicated that Dr. Plitt, within 30 days of the date of the letter, could submit a Corrective Action Plan (CAP) and provide evidence that he was in compliance with Medicare requirements.¹ Id. at 4.  The letter also informed Dr. Plitt that he must request reconsideration within 60 days of receiving the initial determination.² Id.

On March 10, 2023, Dr. Plitt sent to Palmetto a letter titled “Revocation Rebuttal”. Id. at 6-7.  Dr. Plitt stated that he did not receive the background check request until November 4, 2022.  Though Dr. Plitt disputed that he was classified as “high risk”, he stated that he “immediately” completed the fingerprint-based background check upon receiving the letter.  Dr. Plitt indicated that Palmetto mailed letters to an “inactive” correspondence address, because his provider enrollment staff failed to update his address when they submitted his enrollment application on May 9, 2022.  Moreover, Dr. Plitt stated that he did not receive the revocation letter until February 24, 2023, after “numerous phone calls and emails to Palmetto” and that he was unable to send a reconsideration request because he did not have the official reason for the revocation.  Id. at 6-7. 

In a response letter dated March 14, 2023, Palmetto stated that it was “unable to accept” Dr. Plitt’s reconsideration request, because the request “must be received within 65 calendar days of the date of the initial determination letter” and that Dr. Plitt “failed to show cause” for the late request.  Id. at 8.  

By letter dated May 15, 2023, Dr. Plitt requested a hearing before an administrative law judge (ALJ) and the case was assigned to me. 

II.     Discussion

Palmetto did not issue a reconsidered determination in this matter because it was determined that Dr. Plitt did not timely request reconsideration.  Without a reconsidered determination, Dr. Plitt does not have a right to an ALJ hearing.  42 C.F.R. § 498.5(1)(2).

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The revocation of a provider or supplier’s Medicare enrollment is an “initial determination” that is subject to the review procedures set forth in 42 C.F.R. Part 498.  42 C.F.R. § 498.3(a)(1), (b)(17)(i).  Under the review procedures in Part 498, a provider or supplier “dissatisfied with an initial determination or revised initial determination related to the denial or revocation of Medicare billing privileges may request reconsideration in accordance with § 498.22(a).” 42 C.F.R. § 498.5(1)(1).  Section 498.22(a) states that CMS or one of its contractors “reconsiders an initial determination that affects a prospective provider or supplier . . . if the affected party files a written request in accordance with paragraphs (b) and (c) of this section.” Section 498.22(b) provides, in relevant part, that the affected party may request reconsideration if the party files the request “[w]ithin 60 days from receipt of the notice of initial determination, unless the time is extended in accordance with paragraph (d) of this section.” 42 C.F.R. § 498.22(b)(3).  Section 498.22(d)(1) states that a party “unable to file the request within the 60 days . . . may file a written request with CMS, stating the reasons why the request was not filed timely.” CMS will extend the 60-day deadline for filing a request for reconsideration “if the affected party shows good cause for missing the deadline.” 42 C.F.R. § 498.22(d)(2).  If the affected party does not request reconsideration of an initial determination, then the initial determination is binding.  42 C.F.R § 498.20(b). 

Here, Palmetto issued its initial determination on August 3, 2022.  The presumptive date of receipt is August 8, 2022, five days after the initial determination.  See 42 C.F.R. § 498.22(b)(3).  Dr. Plitt did not request reconsideration until March 10, 2023, 214 days after the presumptive date of receipt.  On March 14, 2023, Palmetto dismissed Dr. Plitt’s request for reconsideration pursuant to 42 C.F.R. § 498.22 because Dr. Plitt did not establish good cause for the untimely filing.  

In his request for hearing, Dr. Plitt disputes the presumptive date of receipt.  Dr. Plitt asserts that he did not receive the initial determination until February 24, 2023, almost six months after the August 8, 2022 presumptive date.  P. Req. for Hrg. at 1.  In an attempt to establish good cause for the untimely filing, Dr. Plitt argues that he could not timely file a request for reconsideration, because he did not have “the basis for the revocation.” P. Req. for Hrg. at 2.  However, Dr. Plitt 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.  According to Dr. Plitt, training was held to “reeducate staff on the importance of ensuring all information including the correspondence address is updated with application submissions.” See Docket Entry # 1a in DAB E-File at 6-7.  Dr. Plitt also stated that he “does not satisfy any of the criteria which would trigger the necessity of a fingerprint[-]based background check.” P. Req. for Hrg. at 2.  

While I am sympathetic to Dr. Plitt and the circumstances surrounding this revocation, I do not have the jurisdiction to hear this appeal.  Palmetto’s denial of Dr. Plitt’s reconsideration request as untimely is not a “reconsidered determination” as described by

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the regulations.  Without a reconsidered determination by the contractor, the initial determination is “binding” and, therefore, administratively final.  42 C.F.R. § 498.20(b).  The regulations plainly require that CMS or one of its contractors issue a “reconsidered determination” before the affected party is entitled to request a hearing before an ALJ.  42 C.F.R. § 498.5(l)(2); see Haissam Elzaim, M.D., DAB No. 2501 (2013); Hiva Vakil, M.D., DAB No. 2460 (2012); Denise A. Hardy, D.P.M., DAB No. 2464 (2012).  Because there is no reconsidered determination, it follows that there is no right to administrative review of the contractor’s determination that the reconsideration request was untimely.  See Karthik Ramaswamy, M.D., DAB No. 2563 (2014) (en banc), aff’d, Ramaswamy v. Burwell, 83 F. Supp. 3d 846 (E.D. Mo. 2015).  This is true even where a party contends that the timeliness determination was factually or legally erroneous.  Id. at 7-8. 

Under the regulations, an ALJ does not have the authority to consider the merits of this matter, nor is there authority to grant equitable relief.  ALJs and the Departmental Appeals Board are bound by and may not ignore properly promulgated and applicable regulatory requirements.  US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  An ALJ is bound to follow the Act and regulations and has no authority to declare statutes or regulations invalid.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“[a]n ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground.”). 

III.    Conclusion

Dr. Plitt does not have a right to a hearing before an ALJ in this matter.  See Hiva Vakil, M.D., DAB No. 2460 at 5 n.4.  Without a reconsidered determination, Palmetto’s initial determination revoking Dr. Plitt’s Medicare enrollment and billing privileges, effective September 2, 2022, is final, not subject to review, and remains in force exactly as stated by the contractor.  Therefore, Dr. Plitt’s hearing request is DISMISSED pursuant to 42 C.F.R. § 498.70(b).

Endnotes

¹  A CAP cannot be accepted for revocation based only on reasons other than 42 C.F.R. § 424.535(a)(1).  42 C.F.R. § 405.809.  Petitioner’s revocation was based on 42 C.F.R. § 424.535(a)(1), so he had the option to submit a CAP, in addition to a reconsideration request before a hearing officer.

²  The presumptive date of receipt is five days after the date of the initial determination, so Petitioner would have 65 days to submit a request for reconsideration under the regulations.  See 42 C.F.R. § 498.22(b)(3).