DEPARTMENTAL APPEALS BOARD
GUIDELINES --
APPELLATE REVIEW OF DECISIONS OF ADMINISTRATIVE LAW JUDGES AFFECTING A
PROVIDER'S OR SUPPLIER'S ENROLLMENT IN THE MEDICARE PROGRAM
Introduction
Section 1866(j) of the Social Security Act, as amended by section 936 of Medicare Prescription Drug, Improvement, and Modernization Act of 2003, authorizes the Secretary to establish a process for the enrollment in the Medicare program of providers of services and suppliers. Any prospective provider, existing provider, prospective supplier or existing supplier is entitled to a hearing if it is dissatisfied with a determination related to the denial or revocation of Medicare billing privileges made by the Centers for Medicare & Medicaid Services (CMS) or one of its contractors after reconsideration of an initial determination. See 71 Fed. Reg. 20,754 (Apr. 21, 2006), as amended by 71 Fed. Reg. 37,504 (June 30, 2006) (technical amendment) and 73 Fed. Reg. 36,448 (June 27, 2008). A hearing is provided by an administrative law judge (ALJ) in accordance with subpart D of 42 C.F.R. Part 498. A dissatisfied party (one of the entities listed above or CMS or one of its contractors) may request review of the ALJ decision by the Departmental Appeals Board (Board). These guidelines have been designed to assist the parties in understanding and following the procedures in subpart E of 42 C.F.R. Part 498 relating to Board review. These guidelines also apply to an appeal of ALJ decision involving a revocation of billing privileges that results in the termination of a corresponding provider agreement.
If you have any questions about these guidelines, you may call Appellate Division attorney Carolyn Reines-Graubard at (202) 565-0116.
Starting the Review Process
(a) Under 42 C.F.R. § 498.80, either party dissatisfied with an ALJ decision or dismissal may request review by the Board as specified in subpart E of 42 C.F.R. Part 498. Your request for review must be filed within 60 days after you receive the ALJ decision or dismissal unless you make a written request for an extension which the Board grants for good cause shown. The Board will presume that you received the ALJ decision or dismissal five days after the date on the notice of decision or dismissal unless you show that it was received later or the other party shows that it was received earlier.
(b) A prospective provider, existing provider, prospective supplier or existing supplier has a right to be represented before the Board, at its own expense, by an attorney or someone else. A representative should file with the Board a signed statement that he or she has been authorized to represent the prospective provider, existing provider, prospective supplier or existing supplier, unless the same representative appeared in the proceedings before the ALJ.
(c) Your request for review must specify each finding of fact and conclusion of law with which you disagree, and your basis for contending that each such finding or conclusion is unsupported or incorrect. The Board expects that the basis for each challenge to a finding or conclusion in the ALJ decision will be set forth in a separate paragraph or section, and that the accompanying arguments will be concisely stated. In addition, where appropriate, each argument should be supported by precise citations to the record and/or by precise citations to statutes, regulations or other relevant authorities upon which you are relying.
Filing Requirements for All Submissions
(a) A submission is considered "filed" with the Board on the postmark date, the date sent by registered or certified mail, the date deposited with a commercial delivery service, or the date a fax (where permitted) is sent.
(b) If the last day of the period for filing a submission falls on a federal nonworkday (a Saturday, Sunday, legal holiday, or a day which by statute or Executive Order is declared to be a nonworkday for federal employees), the submission may be filed on the next federal workday.
(c) All submissions to the Board should be addressed to:
Department of Health and Human Services, Departmental Appeals Board,
MS 6127, Appellate Division, 330 Independence Ave., S.W., Cohen Building,
Room G-644, Washington, D.C. 20201.
Faxes should be sent to (202) 565-0238. Do not fax a submission if it is over 10 pages.
(d) Both parties should provide an original and two copies of all submissions to the Board and a copy to the opposing party. (If your submission is faxed, the required two copies should be mailed.) Include in any submission to the Board a statement that you have sent a copy to the opposing party.
(e) The parties should not submit to the Board materials already submitted to the ALJ since those materials will be transferred to the Board by the ALJ.
(f) A submission (including the request for review) may not incorporate by reference a brief or parts of a brief previously submitted to the ALJ.
(g) Certain written submissions are subject to page limits, unless the Board grants a motion to increase the number of pages: request for review - no more than 40 pages; response - no more than 40 pages; reply - no more than 20 pages. If typed, the submission should be double-spaced and the font size should be no less than 12. Cover letters and attachments are not included in the page count.
Development of the Record on Appeal
(a) The request for review is referred to a panel of three Board members, one of whom presides over the development of the record on appeal. The Presiding Board Member is assisted by a staff attorney whom the parties may contact if they have questions about case status or procedures.
(b) The Board may not admit evidence into the record in addition to the evidence introduced at the ALJ hearing or in addition to the documents considered by the ALJ if the hearing was waived. See 42 C.F.R. § 498.86(a).
(c) The opponent of the party that requested review may submit a response. The response must be filed within 30 days after the opposing party receives a copy of the request for review.
(d) The party that requested review then may submit a reply. The reply must be filed within 15 days after receipt of a copy of the opposing party's submission in (c) above.
(e) If both parties have filed a request for review, the Board may provide for the parties' responses and replies to be filed simultaneously.
(f) The Board expects any party needing an extension for filing the response or the reply (or any additional submissions required by the Board) to file a request for an extension before the original due date, to include a statement about whether the opposing party objects to the requested extension, and to state the reasons for the request. The Board will grant an extension only for good cause shown. The Board may limit the length of an extension even where good cause is shown, to ensure that the Board can meet the regulatory deadline specified below for issuing a decision, dismissal order or remand to the ALJ.
(g) Generally, the request for review, the response and the reply are the only record additions on appeal. If either party wishes to appear before the Board to present oral argument, that party should request such an opportunity no later than the time for filing its last submission provided for in (c) or (d) above and should state the purpose of the requested appearance. Generally, any oral proceeding will be conducted by the Presiding Board Member by telephone conference rather than in person. The Board will not permit oral argument if it cannot be scheduled in time to ensure that the Board can meet the regulatory deadline specified below for issuing a decision, dismissal order or remand to the ALJ.
Completion of the Review Process
(a) The Board may dismiss, deny, or grant CMS's request for review. The Board will grant the request for review of a prospective provider, existing provider, prospective supplier, or existing supplier unless the Board dismisses the request because: 1) that entity requests dismissal; 2) that entity did not file timely (or show good cause for late filing); 3) that entity does not have a right to review; or 4) a previous determination or decision on the same facts and law and regarding the same question has become final as specified in 42 C.F.R. § 498.83(b)(4). The Board also may remand any case to the ALJ, with appropriate instructions.
(b) The Board has adopted the following standard of review. The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record as a whole. The standard of review on a disputed issue of law is whether the ALJ decision is erroneous. The bases for modifying, reversing or remanding an ALJ decision include the following: a finding of material fact necessary to the outcome of the decision is not supported by substantial evidence; a legal conclusion necessary to the outcome of the decision is erroneous; the decision is contrary to law or applicable regulations; a prejudicial error of procedure (including an abuse of discretion under the law or applicable regulations) was committed.
(c) The Board will review only those parts of the record before the ALJ which are cited by the parties or which the Board considers necessary to decide the appeal. The Board will not consider issues not raised in the request for review, nor issues which could have been presented to the ALJ but were not.
(d) The Board must issue a decision, dismissal order or remand to the ALJ, as appropriate, no later than 180 days after the Board’s receipt of a request for review of an ALJ’s decision or dismissal order. 42 C.F.R. § 498.88(g).
(e) The Board’s decision or dismissal order is binding unless:
the prospective provider, existing provider, prospective supplier, or existing supplier has a right to judicial review and timely files a civil action seeking judicial review in accordance with 42 C.F.R. § 498.90, or the Board reopens and revises its decision in accordance with 42 C.F.R. § 498.102.
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