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From Health Law Daily, April 12, 2017

Medicare supplier had no right to hearing on ‘primary care provider’ determination

By Joseph Arshawsky, J.D.

A physician who operated as a Medicare program supplier was not entitled to a hearing on the denial of his status as a "primary care practitioner," the Departmental Appeals Board (DAB) ruled. The physician was therefore not eligible for incentive payments under the Affordable Care Act (Feiss v. CMS, Docket No. A-17-16, Decision No. 2776, March 14, 2017).

This case involved a physician who was enrolled in the Medicare program as a supplier. In 2010, Sec. 5501 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) added Sec. 1833(x) to the Social Security Act, establishing a program of incentive payments to primary care practitioners for services from January 1, 2011 to January 1, 2016. A "primary care practitioner" includes physicians whose primary specialty designation is family medicine, internal medicine, geriatric medicine, or pediatric medicine, and "for whom primary care services accounted for at least 60 percent of the allowed charges.

CMS determination. CMS determined that the physician was not eligible for the incentive payments for calendar years 2011-2013 because his Medicare primary specialty designation for those years was not considered a "primary care physician or practitioner" and therefore was ineligible for the incentive payments. In calendar year 2012, he became eligible for the incentive payments after he changed his primary specialty designation to "family practice."

ALJ proceedings. CMS moved to dismiss the physician’s request for a hearing before an administrative law judge (ALJ). In support, CMS cited the prohibition on administrative review in Sec. 1833(x)(4). The ALJ granted CMS’ motion because that section denies the ALJ is authority to adjudicate a dispute between a practitioner and CMS concerning eligibility for incentive payments.

DAB ruling. The DAB affirmed the ALJ’s ruling, but did not address the argument concerning Sec. 1833(x)(4), because the DAB concluded that even in the absence of a statutory bar on administrative review of CMS’ determination, the physician had no right to a hearing before an ALJ. The DAB turned to 42 C.F.R. Sec. 498.5, which governs suppliers’ appeal rights, and noted that the term "initial determination" is a term of art, limited to determinations that CMS makes with respect to matters specified in Sec. 498.3(b). The ALJ held that CMS’ failure to qualify the physician to receive incentive payments is not an initial determination; the DAB found that the ALJ’s finding was not erroneous, and the physician had no right to a hearing under Sec. 498.70(b). The physician also made a due process argument that was rejected because there is no general right to an ALJ hearing in the absence of statutory, regulatory, or administrative authority.

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