Skip to main content


U.S. flag
      An official website of the United States government
              Here’s how you know
        Here’s how you knowDot gov**Official websites use .gov**
                 A **.gov** website belongs to an official government organization in the United States.
                  HTTPS**Secure .gov websites use HTTPS**
                 A **lock** (A locked padlock) or **https://** means you’ve safely connected to the .gov website. Share sensitive information only on official, secure websites. 
  Menu Close
          HHS Search block
    Search
        








  
  
    

  
      

                                      About HHS
    
                        
                              
      
      
      Programs & Services
    
                        
                              
      
      
      Grants & Contracts
    
                        
                              
      
      
      Laws & Regulations Breadcrumb
    Home
                              About
                              Agencies
                              DAB
                              Decisions
                              ALJ Decisions
                              2023 ALJ Decisions
                              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)
 Navigate to:
  Departmental Appeals Board (DAB)
    
                                                  
                                                    
            
      
      
      
      About DAB
                                            
            
            Organizational Overview
    
                                                  
                              
            
      
      
      
      Who are the Judges?
    
                                                  
                              
            
      
      
      
      DAB Divisions
    
                                                  
                              
            
      
      
      
      Contact DAB
    
                                                  
                                                    
            
      
      
      
      Filing an Appeal Online
                                            
            
            DAB E-File
    
                                                  
                              
            
      
      
      
      Medicare Operations Division (MOD) E-File
    
                                                  
                                                    
            
      
      
      
      Different Appeals at DAB
                                            
            
            Appeals to DAB Administrative Law Judges (ALJs)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Procedures
    
                                                                
                                                    
            
      
      
      
      Appeals to Board
                          
            
            Practice Manual
    
                                                  
                              
            
      
      
      
      Guidelines
    
                                                  
                              
            
      
      
      
      Regulations
    
                                                  
                              
            
      
      
      
      National Coverage Determination Complaints
    
                                                                
                                                    
            
      
      
      
      Appeals to the Medicare Appeals Council (Council)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Fully Integrated Duals Advantage (FIDA) Demonstration Project
    
                                                  
                                                    
            
      
      
      
      Alternative Dispute Resolution Services
                                            
            
            Sharing Neutrals
    
                                                  
                              
            
      
      
      
      ADR Training
    
                                                  
                              
            
      
      
      
      Other ADR Services
    
                                                  
                                                    
            
      
      
      
      DAB Decisions
                                            
            
            Board Decisions
    
                                                  
                              
            
      
      
      
      DAB Administrative Law Judge (ALJ) Decisions
    
                                                  
                              
            
      
      
      
      Medicare Appeals Council (Council) Decisions
    
                                    
                              
            
      
      
      
      Stakeholder Feedback
    
                                                  
                                                    
            
      
      
      
      Careers
                                            
            
            Open Career Opportunities
    
                                                  
                              
            
      
      
      
      Internships & ExternshipsText resize icon

                    




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)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Palm Beach Pain Management, Inc., Port St. Lucie Pain Management, PLLC,
(PTAN: 40809, AI291)
(NPI: 1629093596, 1528277670)
Petitioners,

v.

Centers for Medicare & Medicaid Services.

Docket No. C-23-757

and

Anthony Glenn Rogers, M.D.,
(PTAN: 15198A, 15198W)
(NPI: 1114938586),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-23-758Ruling No. 2024-2October 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.

**Page 2**

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.

**Page 3**

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.

**Page 4**

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.
  
          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge Back to top
    Contact HHS
    
                        
                                            
      
      
      Careers
    
                        
                                            
      
      
      HHS FAQs
    
                        
                                            
      
      
      Nondiscrimination NoticeHHS Archive
    
                        
                                            
      
      
      Accessibility Statement
    
                        
                                            
      
      
      Privacy Policy
    
                        
                                            
      
      
      Viewers & PlayersBudget/Performance
    
                        
                                            
      
      
      Inspector General
    
                        
                                            
      
      
      Web Site Disclaimers
    
                        
                                            
      
      
      EEO/No Fear ActFOIA
    
                        
                                            
      
      
      The White House
    
                        
                                            
      
      
      USA.gov
    
                        
                                            
      
      
      Vulnerability Disclosure Policy
        Sign Up for Email Updates

Receive the latest updates from the Secretary, Blogs, and News Releases.

Sign Up
  HHS Headquarters
          200 Independence Avenue, S.W.
                  Washington, D.C. 20201
                  Toll Free Call Center: 1-877-696-6775​ Disclaimer Policy: Links with this icon () mean that you are leaving the HHS website. The Department of Health and Human Services (HHS) cannot guarantee the accuracy of a non-federal website.
                  Linking to a non-federal website does not mean that HHS or its employees endorse the sponsors, information, or products presented on the website. HHS links outside of itself to provide you with further information.
                  You will be bound by the destination website's privacy policy and/or terms of service when you follow the link.
                  HHS is not responsible for Section 508 compliance (accessibility) on private websites. For more information on HHS's web notification policies, see Website Disclaimers.
 Continue
                  Go back