Mirkin Vision Care, PC, DAB CR6443 (2024)

DECISION

For the reasons stated below, I affirm the denial of Petitioner’s Medicare enrollment application.  Petitioner must direct its request to reopen its enrollment application to the contractor for the Centers for Medicare & Medicaid Services (CMS) that denied Petitioner’s enrollment application.

I.  Procedural History

On October 31, 2023, National Supplier Clearinghouse (NSC), a CMS contractor, issued an unfavorable reconsidered determination upholding the denial of Petitioner’s Medicare enrollment application.  CMS Ex. 10.  Petitioner timely requested a hearing to dispute the reconsidered determination.

On December 18, 2023, the Civil Remedies Division (CRD) acknowledged Petitioner’s hearing request and issued my Standing Order.  On January 18, 2024, Petitioner’s owner sent an email to CRD that reiterated much of the same information as was in the hearing request.  Electronic Filing System (E-File) Doc. No. 5 at 2-3.  On January 22, 2024, CMS timely filed a prehearing brief, which included a motion for summary judgment, and ten

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proposed exhibits.  Petitioner did not file a prehearing exchange.  CRD sent an email on February 27, 2024, to Petitioner’s owner stating that Petitioner had not filed a prehearing exchange.  E-File Doc. No. 5 at 2.  Petitioner’s owner responded on February 28, 2024.  E-File Doc. No. 5 at 1.  CRD replied that Petitioner had until March 1, 2024, to request additional time to file a prehearing exchange.  E-File Doc. No. 5 at 1.  Petitioner neither requested additional time to file an exchange.

II.  Admission of Evidence and Decision on the Written Record

Petitioner did not object to any of CMS’s proposed exhibits.  Standing Order ¶ 10.  Therefore, I admit all of the proposed exhibits into the record.

I directed the parties to submit written direct testimony from all witnesses that the parties wanted to present in this case and that the opposing party could request to cross-examine the witnesses.  Standing Order ¶¶ 11-12.  I also advised the following:

If the parties either do not file any written direct testimony or the parties do not request to cross-examine any of the witnesses from whom written direct testimony has been submitted, I will consider such actions by the parties to serve as a constructive request for a decision on the written record because there will be no reason to hold an in-person hearing.

Standing Order ¶ 7(g)(iii); see also Standing Order ¶ 13.  Therefore, “[u]nless a hearing is required for cross-examination of a witness or witnesses, the record will be closed and the case will be ready for a decision after all the submission deadlines have passed.”  Standing Order ¶ 14.

In the present case, all deadlines for prehearing submissions have passed and neither party filed written direct testimony.  Because neither party offered any written direct testimony from witnesses, I do not need to hold a hearing and may issue a decision based on the written record.  EI Medical, Inc., DAB No. 3117 at 15 (2023); Vandalia Park, DAB No. 1940 (2004).  Therefore, I deny CMS’s summary judgment motion as moot, and I issue a decision based on the written record.

III.  Issue

Whether CMS had a legitimate basis to deny Petitioner’s enrollment application.

IV.  Jurisdiction

I have jurisdiction to hear and decide the issue in this case.  42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2).

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V.  Findings of Fact

1. Petitioner is an optometry/optician practice that provides eyeglasses and lenses.  CMS Ex. 1 at 27; CMS Ex. 4 at 3.
2. Daniel S. Mirkin, O.D., an optometrist, is Petitioner’s owner and president.  CMS Ex. 1 at 29, 31; CMS Ex. 4 at 5.
3. On January 9, 2023, Dr. Mirkin signed an application for Petitioner to enroll in the Medicare program as a supplier of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS).  CMS Ex. 1 at 19, 27.  On January 10, 2023, Petitioner mailed the enrollment application to Novitas Solutions (Novitas), which is a CMS contractor.  CMS Ex. 1 at 39.  Novitas received the enrollment application on or about January 13, 2023.  See CMS Ex. 1 at 3, 5.
4. On January 13, 2023, Novitas determined that there was no reason to return Petitioner’s enrollment application.  CMS Ex. 1 at 3, 5.
5. In a January 22, 2023 letter, Novitas informed Petitioner that, as an owner of five percent or more of Petitioner, Dr. Mirkin needed to provide his fingerprints to Novitas within 30 calendar days of the postmark on the letter.  The letter identified DMEPOS suppliers as high‑risk suppliers, which is why CMS required fingerprint screening.  The letter warned:  “Failure to submit fingerprints for all individuals listed within the designated time frame may result in denial of your Medicare billing privileges.”  CMS Ex. 2 at 1-2.
6. On July 10, 2023, Novitas issued a notice of initial determination denying Petitioner’s enrollment application under 42 C.F.R. § 424.530(a)(1) due to noncompliance with enrollment requirements.  Novitas specified that Petitioner failed to timely provide the fingerprints for Dr. Mirkin.  Novitas advised Petitioner that it could request reconsideration within 60 days of the denial if Petitioner thought the denial was incorrect.¹  CMS Ex. 3 at 1-3.

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7. The July 10 notice also stated the following (CMS Ex. 3 at 2):

   If you believe that you are able to correct the deficiencies and establish your eligibility to participate in the Medicare program you may submit a corrective action plan (CAP) within 30 days after the postmark date of this letter.  The CAP should provide evidence that you are in compliance with Medicare requirements.  The CAP request must be signed and dated by the authorized or delegated official within the entity.

8. The July 10 notice also stated that Petitioner should file the CAP request and the request for reconsideration with NSC.  The email address for NSC was provided as NSC.Appeals@palmettogba.com.  CMS Ex. 3 at 2.
9. On July 13, 2023, Dr. Mirkin sent an email to NSC requesting that NSC reopen Petitioner’s enrollment application so that Dr. Mirkin could submit his fingerprints.  Dr. Mirkin explained that one of his parents had suffered a prolonged illness and passed away.  He further stated:  “I was distracted and did not get fingerprinting done in time.”  CMS Ex. 5 at 1-2.
10. Dr. Mirkin sent the July 13 email to the following incorrect email address:  appeals@palmettogba.com.  CMS Ex. 5 at 1.
11. On August 18, 2023, Dr. Mirkin re-sent the July 13 email to NSC’s correct email address.  CMS Ex. 5.
12. On August 29, 2023, NSC sent a notice to Petitioner indicating that NSC interpreted the August 18 email as Petitioner’s CAP.  NSC stated that the CAP request was not signed.  NSC stated that Petitioner had 15 calendar days from August 29, 2023, to file a properly signed CAP or Petitioner’s CAP request would be dismissed.  CMS Ex. 6 at 3.
13. In a September 11, 2023 notice, NSC informed Petitioner that it was dismissing Petitioner’s CAP request.  NSC stated that August 18, 2023, was beyond the due date for the CAP to be filed.  NSC also stated that Petitioner failed to show good cause for the late filing.²  CMS Ex. 7 at 3.
14. On September 11, 2023, Petitioner requested reconsideration of the initial determination.  The request indicated that Dr. Mirkin’s fingerprints were not submitted due to the illness and death of Dr. Mirkin’s mother.  CMS Ex. 9.

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15. In an October 31, 2023 reconsidered determination, NSC upheld the denial of Petitioner’s enrollment application.  NSC stated that it could not verify that Petitioner submitted Dr. Mirkin’s fingerprints; therefore, the initial determination denying the enrollment application under 42 C.F.R. §§ 424.518(c)(2)(B) and 424.530(a)(1) was correct.  CMS Ex. 10 at 3-4.

VI.  Conclusions of Law and Analysis

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to establish regulations for enrolling providers and suppliers in the Medicare program and requirements for DMEPOS suppliers to obtain a supplier number.  42 U.S.C. §§ 1395m(j)(1)(B), 1395cc(j)(1)(A).  DMEPOS suppliers must enroll in the Medicare program and receive a supplier number to obtain payment for items and services provided to Medicare beneficiaries.  42 U.S.C. § 1395m(j)(1)(A); 42 C.F.R. §§ 424.57(b)-(c), 424.505.

The Act required the Secretary to “establish procedures under which screening is conducted with respect to providers of medical or other items or services and suppliers under the [Medicare] program. . . .”  42 U.S.C. § 1395cc(j)(2)(A).  Relevant to this case, eyeglasses that are needed following cataract surgery are “prosthetic devices” that are encompassed by the term “medical and other health services.”  42 U.S.C. § 1395x(s)(8); see also 42 C.F.R. § 410.36(a)(2)(ii).  As part of the screening procedures mandated by the Act, the Secretary must determine the level of screening to be conducted according to the risk of fraud, waste, and abuse.  42 U.S.C. § 1395cc(j)(2)(B).  The Act stated that screening may include “a criminal background check” and “fingerprinting.”  42 U.S.C. § 1395cc(j)(2)(B)(ii)(I)-(II).

The Secretary promulgated regulations for the enrollment and screening of suppliers.  See 42 C.F.R. §§ 424.57, 424.510-424.530.  Those regulations designate DMEPOS suppliers as high‑risk to the Medicare program.  42 C.F.R. § 424.518(c)(1)(ii).  Suppliers in the high-risk category must submit “a set of fingerprints for a national background check from all individuals who maintain a 5 percent or greater direct or indirect ownership interest in the . . . supplier” so that a criminal history record check may be made.  42 C.F.R. § 424.518(c)(2)(ii).  An individual subject to a fingerprint-based background check must submit the fingerprints either with the enrollment application or within 30 days of a CMS contractor’s request for the fingerprints.  42 C.F.R. § 424.518(d)(1).  The CMS contractor may deny an enrollment application if fingerprints that are not submitted in accordance with the regulations.  42 C.F.R. §§ 424.518(d)(2)(i), 424.530(a)(1).

Petitioner provides the following assertions in its hearing request as a basis for permitting Petitioner to submit Dr. Mirkin’s fingerprints late:

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This letter concerns my office application to become a durable medical equipment provider.  I went through the application process entirely and paid the $600 fee.  The application was completed except for the fingerprinting requirement.  It turned out that the only approved locations to do this were in Manhattan which was not close at all to where I work and live in NY.  During this time my mother became ill and subsequently passed away and I became caught up in this process of hospitalization, hospice and in grieving afterwards.  Unfortunately, I let time pass and did not comply with the fingerprinting requirement.  The application was denied due to this.

E-File Doc. No. 1.  In a January 18, 2024 email to CRD, Dr. Mirkin expressly requested reopening of Petitioner’s first enrollment application instead of being required to reapply.  Dr. Mirkin noted that Petitioner’s enrollment application was complete except for the fingerprints.  E‑File Doc. No. 5 at 2-3.

Petitioner admitted that it failed to timely submit Dr. Mirkin’s fingerprints as required by the January 22, 2023 notice from Novitas.  As a result, I must uphold the denial of Petitioner’s first enrollment application under 42 C.F.R. § 424.518(d)(2)(i).

Petitioner requests that I reopen its enrollment application to permit the late submission of the fingerprints.  Petitioner provides reasons that may or may not constitute good cause for reopening Petitioner’s application.  However, I only have the authority to determine whether the CMS contractor had a legitimate basis for denying the first enrollment application and not whether the CMS contractor should reopen the enrollment application to permit further processing.  Petitioner must direct its request for reopening to the CMS contractor.  See 42 C.F.R. § 498.30-.32.

VII.  Conclusion

I affirm the denial of Petitioner’s Medicare enrollment application.

Endnotes

¹ On July 11, 2023, Petitioner filed a new enrollment application.  CMS Ex. 4.  In an October 17, 2023 notice, Novitas closed that application because the time period to appeal the July 10, 2023 denial of Petitioner’s first enrollment application had not yet ended.  CMS Ex. 8 at 1.  Following receipt of the July 10, 2023 notice denying the original enrollment application, Petitioner had 60 days to request reconsideration.  CMS Ex. 3 at 2; 42 C.F.R. § 498.22(b)(3).  During that 60-day period, Petitioner was ineligible to file a new enrollment application.  42 C.F.R. 424.530(b).  As a result, Novitas returned the new enrollment application to Petitioner.  42 C.F.R. § 424.526(a)(5).  The decision to return an enrollment application is not appealable.  42 C.F.R. § 424.526(b).

² The denial of a CAP request is not appealable initial determination.  42 C.F.R. § 405.809(b)(2).