Palm Beach Pain Management, Inc., Port St. Lucie Pain Management PLLC and Anthony Glenn Rogers, M.D., ALJ Ruling 2024-2 (HHS CRD October 16, 2023)

RULING AND CONSOLIDATION ORDER

Petitioners, Palm Beach Pain Management, Inc., and Port St. Lucie Pain Management, PLLC, are Florida medical practices that participated in the Medicare program as suppliers of services.  Petitioner, Anthony Glenn Rogers, M.D., is the sole owner of both practices and reassigned his Medicare benefits to those entities. 

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The Medicare contractor, First Coast Services Options, Inc., revoked Petitioners’ Medicare enrollments and billing privileges, established reenrollment bars, and placed them on the CMS preclusion list.  Petitioners requested reconsideration.  In determinations dated July 27, 2023, a CMS hearing officer affirmed the revocations. 

Petitioners subsequently filed separate appeals, seeking a hearing before an administrative law judge (ALJ).  The scope of these appeals is limited.  Petitioners ask only that Petitioners “be removed from the Medicare Preclusion List.”  The appeals were docketed as C-23-757 (the practices) and C-23-758 (Dr. Rogers). 

The Centers for Medicare & Medicaid Services (CMS) now moves to dismiss both appeals.  For the reasons discussed below, I deny CMS’s motions. 

Consolidation Order

In the interest of administrative economy and to conserve other resources, I have determined that consolidation of the requests for hearing is appropriate.  Accordingly, I order consolidation of the two cases.  Docket number C-23-757 is dismissed, and the requests for hearing are consolidated under docket number C-23-758, which will appear on all future pleadings and correspondence. 

The dates of submission, set forth in my orders of September 15, 2023, remain the same. 

Ruling Denying CMS’s Motions to Dismiss

Petitioners’ hearing requests are adequate to preserve their rights to review by an Administrative Law Judge.¹

CMS complains that Petitioners’ hearing requests do not specify the findings of fact and conclusions of law with which they disagree, as required by 42 C.F.R. § 498.40(b), and should therefore be dismissed.  Section 498.40(b) provides that a hearing request must “identify the specific issues, and the findings of fact and conclusions of law with which the affected party disagrees” and must “specify the basis for contending that the findings and conclusions are incorrect.”  CMS asks that I dismiss the appeals pursuant to 42 C.F.R. § 498.70(b), which authorizes me to dismiss an appeal if the party requesting it does not have a right to a hearing. 

First, I do not agree that Petitioners’ appeals fail to comply with section 498.40(b).  They are terse because the appeals are limited to Petitioners’ inclusion on the Preclusion List, which is a narrow and specific issue. 

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Moreover, even if I agreed that the hearing requests fall short of the section 498.40(b) requirements (which I do not), I could not dismiss.  The Departmental Appeals Board has rejected “efforts to use [the requirements of section 498.40(b)] to frustrate the good faith efforts of petitioners to perfect appeals and exercise hearing rights created by the statute.”  The Carlton at the Lake, DAB No. 1829 at 4 (2002) (citing Fairview Nursing Plaza, Inc., DAB No. 1715 (2005); Alden-Princeton Rehab. and Health Care Ctr., DAB No. 1709 (1999)). 

The Board has stated emphatically that an affected party’s good-faith efforts to appeal an allegedly erroneous decision should not be “defeated by ‘gamesmanship’ or hyper-technical procedural strictures.”  Carlton, DAB No. 1829 at 4.  The government’s interest, according to the Board, “ultimately lies in the factual and legal accuracy of its determinations. .. .”  Id.  For these reasons, the Board has directed ALJs to exercise discretion to accept “as adequate to preserve a right to hearing” requests that fail to “identify the specific issues and findings of fact and conclusions of law with which the affected party disagrees” and fail to “specify the basis for contending the findings and conclusions are incorrect.”  Id. at 9. 

CMS cites two cases to support its claim that Petitioners’ hearing requests should be dismissed:  Associated Internists, P.C., DAB No. 2298 at 6 (2010) and Capitol House Nursing & Rehab. Ctr., DAB No. 2252 (2009).  However, neither case supports its position.  These cases were dismissed because the petitioner asked for review of a determination that is not reviewable, not because the hearing request lacked specificity. 

A supplier’s hearing rights are established by federal regulations, 42 C.F.R. Part 498.  Only an initial determination is entitled to further review.  42 C.F.R. § 498.3(b), 498.5.  In each of the cases CMS cites, the Board affirmed a dismissal because the petitioner attempted to appeal something that was not an initial determination.  In Capitol House, the petitioner did not purport to appeal the determination that the facility was not in substantial compliance with Medicare program requirements (which is a reviewable initial determination).  Instead, it challenged the “agency’s findings” as set forth in a letter describing the results of an Independent Dispute Resolution proceeding, which was not an initial determination.  See 42 C.F.R. § 488.331 (allowing the facility an informal opportunity to dispute survey findings).  Capitol House, DAB No. 2252 at 5-6.² 

In Associated Internists, a clinical laboratory sought to appeal CMS’s rejection of its plan of correction, which is not an initial determination and is not reviewable.  42 C.F.R. § 493.1844; see 42 C.F.R. § 493.1844(c) (providing that actions not listed in paragraph (b) of this section are not initial determinations and are not subject to appeal under this section).  Associated Internists, DAB No. 2298 at 5. 

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In contrast, here, Petitioners appeal their inclusion on CMS’s Preclusion List, which is an initial determination that I have the authority to review.  42 C.F.R. § 498.3(b)(20); see 83 Fed. Reg. 16,642-16,643 (Apr. 16, 2018). 

I therefore deny CMS’s motions to dismiss. 

Endnotes

¹  I make this one finding of fact/conclusion of law. 

²  The Board also noted that the ALJ gave Petitioner a second opportunity to file a legally sufficient hearing request, but Petitioner failed to do so.  Id. at 6-8.