By Brian Craig, J.D.
A Medicare contractor’s determination on the effective date of a reenrollment bar is not an initial determination that gives rise to hearing rights. The HHS Departmental Appeals Board (DAB) administrative law judge (ALJ) held there was no basis for a hearing in a case where a podiatrist challenged his exclusion from Medicare for filing a false income tax return. Furthermore, the ALJ decided that the effective date of an enrollment bar begins 30 days after the contractor mails notice of its determination to revoke, rather than the date of the felony conviction (Robinson v. CMS, Docket No. C-18-452 & C-18-454; Decision No. CR5075, April 20, 2018).
Exclusion. A podiatrist was convicted in June 2011 on four felony counts of filing a false income tax return for concealing taxable income in unreported offshore bank accounts. The Medicare contractor revoked the podiatrist’s Medicare participation on the ground that he had been convicted of a felony that was determined to be detrimental to the best interests of the Medicare program. The contractor also revoked the podiatrist’s professional corporation from participating in Medicare because the entity was owned by the podiatrist.
Although the contractor did not revoke participation until June 30, 2017, it made its determination retroactive to June 9, 2011, based on the convictions. The contractor determined that the reenrollment bar of three years would go into effect on July 23, 2017. The podiatrist challenged the effective date of the reenrollment ban arguing that the effective date should be the date of conviction. The podiatrist also contended that the reenrollment bar should be imposed under the version of the regulation that was in effect in 2011, when he was convicted.
Lack of ALJ authority. The ALJ first ruled, under 42 C.F.R. § 498.3(b), the contractor’s decision as to an effective date of a reenrollment bar is not an initial determination that gives rise to hearing rights. The ALJ lacks authority to provide a hearing to an individual or entity if the subject of that individual or entity’s appeal is not encompassed by an initial determination as is defined by regulation.
Effective date of reenrollment bar. The ALJ also held that the plain meaning of the current version of regulation in 42 C.F.R. § 424.535(c) states that the effective date of an enrollment bar begins 30 days after the contractor mails notice of its determination to revoke. Here, the contractor mailed its determinations on June 23, 2017, and June 30, 2017. The regulation clearly dictates that the reenrollment bar must begin 30 days after the contractor mails notice. The effective date of the reenrollment bar is not contingent on the date when there is a felony conviction that gives the contractor authority to revoke participation but on the date of the determination to revoke based on that conviction.
Equitable principles. Finally, the ALJ considered whether principles of equity prevent application of the effective date for the reenrollment bar. The podiatrist argued that on general principles of equity, it is unfair to impose a bar on reenrollment which caused him to incur overpayments of Medicare reimbursement for services he never would have provided had he known then that participation would subsequently be revoked. The ALJ held that an ALJ has no authority to hear or decide arguments that are grounded on equitable principles challenging CMS’s actions. Therefore, the ALJ grant summary judgment in favor of CMS sustaining the determinations of one of its contractors to revoke the Medicare enrollments.
Companies: Donald E. Robinson, DPM PC
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