Charles D. Mayron, M.D., DAB CR5055 (2018)

DECISION

Petitioner’s Medicare billing privileges were deactivated on March 20, 2017, as a result of his failure to timely comply with a request that he revalidate his Medicare enrollment. For the reasons discussed below, I conclude that the effective date of Petitioner’s reactivated Medicare billing privileges remains March 27, 2017, which is the date that the Medicare administrative contractor received the revalidation application that it processed to approval.

I. Background and Procedural History

On December 15, 2016, National Government Services (NGS), a Medicare administrative contractor, sent Petitioner a letter requesting that Petitioner, an ophthalmologist, revalidate his individual Medicare enrollment no later than February 28, 2017. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 2 at 1; see CMS Ex. 1 at 2. NGS instructed Petitioner to “update or confirm all the information in your record, including your practice locations and reassignments.” CMS Ex. 2 at 1. NGS cautioned that a “[f]ailure to respond to this notice will result in a hold on your payments,

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and possible deactivation of your Medicare enrollment,” and further warned that in the event of deactivation, “[Petitioner] will not be paid for services rendered during the period of deactivation.” CMS Ex. 2 at 1. NGS provided two telephone numbers that Petitioner could call if he needed assistance, and also provided various public websites that he could reference. CMS Ex. 2 at 1-2.

Petitioner did not revalidate his enrollment information, as requested (CMS Ex. 2), nor did he submit Medicare enrollment applications for either enrollment or the reassignment of benefits.Petitioner claims, in his hearing request, that he submitted a Form CMS-855I in January 2017. However, despite CMS’s assertions in its brief that there is no “indication that such application was submitted via CMS’ internet-based system” and “Petitioner failed to include the actual enrollment application” (CMS Br. at 7), Petitioner has not submitted any evidence that he filed a Form CMS-855I application in compliance with the revalidation request prior to March 27, 2017. Although Petitioner submitted page 1 of P. Ex. 2 as apparent proof of a January 2017 application, this document, an email confirmation from NGS, pertains to the “Authorization Statement for Reassignment of Medicare Benefits” form that NGS received on January 17, 2017. CMS Ex. 3 at 3-4.  Rather, Petitioner submitted an “Authorization Statement for Reassignment of Medicare Benefits,” which is a two-page form authorizing the reassignment of benefits that is to be signed by the supplier and the supplier’s authorized or delegated official, that NGS received on January 17, 2017. CMS Ex. 3 at 3-4; see CMS Ex. 2 at 1. Petitioner listed himself as the “Contact Person” on the form, and he provided, inter alia, a contact email address. CMS Ex. 3 at 4.

On February 7, 2017, NGS sent an email message to the email address Petitioner provided in January 2017. CMS Ex. 4. NGS’s email message included an attachment, which was a letter informing Petitioner that his application was incomplete and that he needed to submit a Form CMS-855I enrollment application within 30 days. CMS Ex. 4 at 3. The letter cautioned that NGS may reject the revalidation application if Petitioner did not provide complete information within 30 days. CMS Ex. 4; see CMS Ex. 5 at 1 (NGS case notes (February 7, 2017 entries)); P. Ex. 2 at 2 (Petitioner’s “screen shot” of a purportedly corrupt email attachment bearing a file name, “Development with Attach 855I and 855R(2).doc”). Petitioner did not submit a response to NGS’s request for additional information.Petitioner has given various reasons for his failure to timely respond to this development request. Petitioner initially argued, in his request for reconsideration, that NGS’s February 7, 2017 email message went to a spam folder and that the file attachment was “corrupt.” CMS Ex. 9 at 2. In his request for hearing, Petitioner claimed that he had submitted a Form CMS-855I via the internet-based Provider, Enrollment, Chain and Ownership System (PECOS) in January 2017, and that NGS did not send the email message requesting additional development to his designated contact person. In his brief, Petitioner again made no reference to NGS’s email message being treated as “spam,” but rather, argued that the email notification was “defective” for various reasons, to include that it was not directed to the attention of his contact person, the subject of the email did not identify that it regarded the revalidation request, the attachment was “corrupt,” and that he could not reply to the message.

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Based on his failure to comply with the revalidation request, NGS deactivated Petitioner’s Medicare enrollment on March 20, 2017. See CMS Ex. 5 at 1. On March 22, 2017, NGS informed Petitioner that it had rejected his revalidation application. CMS Ex. 6; see CMS Ex. 5 at 1 (NGS case notes documenting that it served this letter via email).

NGS received Petitioner’s Medicare enrollment application for purposes of revalidation and reactivation on March 27, 2017. CMS Ex. 7. After further development (CMS Ex. 7), NGS reactivated Petitioner’s Medicare enrollment, effective March 27, 2017. CMS Ex. 8 at 1.

On May 5, 2017, NGS received Petitioner’s request for reconsideration that disputed the effective date assigned for his reactivated billing privileges. CMS Ex. 9. NGS issued a reconsidered determination on May 23, 2017, in which it maintained the May 27, 2017 effective date of Petitioner’s reactivated billing privileges. CMS Ex. 9 at 6-10. In support, NGS cited to various provisions of Chapter 15 of the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08. CMS Ex. 9 at 7-8.

Petitioner submitted a request for hearing on June 30, 2017. CMS filed a Pre-Hearing Brief and Motion for Summary Judgment (CMS Br.), along with nine exhibits (CMS Exs. 1-9). Petitioner filed a statement that I have construed as a pre-hearing brief and response to CMS’s Motion for Summary Judgment, along with nine exhibits (P. Exs. 1-9), some of which are duplicative of CMS’s submissions. In the absence of objections by either party, I admit the parties’ exhibits into the evidentiary record.

Neither party has submitted the written direct testimony of any witnesses, and therefore, a hearing for the purpose of cross-examination is not necessary. See Acknowledgement and Pre-Hearing Order §§ 8, 9, and 10. I consider the record in this case to be closed, and the matter is ready for a decision on the merits.CMS argues that summary disposition is appropriate. It is unnecessary in this instance to address the issue of summary disposition, as neither party has requested an in person hearing.

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II. Issue

Whether CMS had a legitimate basis to assign Petitioner a March 27, 2017, effective date for his reactivated billing privileges.

III. Jurisdiction

I have jurisdiction to decide this case. 42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

IV. Findings of Fact, Conclusions of Law, and Analysis

1. On December 15, 2016, NGS requested that Petitioner revalidate his Medicare enrollment no later than February 28, 2017.
2. On January 17, 2017, NGS received a signed Authorization Statement for Reassignment of Medicare Benefits that listed Petitioner as the “Contact Person” and included a contact email address.
3. NGS sent Petitioner, at the email address he provided in January 2017, a development request on February 7, 2017, at which time it directed Petitioner to submit a Form CMS-855I.
4. Petitioner did not submit a response to NGS’s development request, and NGS rejected Petitioner’s revalidation application.
5. On March 20, 2017, NGS deactivated Petitioner’s billing privileges because he did not timely revalidate his enrollment.
6. NGS received Petitioner’s enrollment application for purposes of revalidation and reactivation on March 27, 2017, and NGS ultimately processed that application to approval.
7. An effective date earlier than March 27, 2017, the date NGS received Petitioner’s enrollment application for purposes of revalidation and reactivation, is not warranted for the reactivation of Petitioner’s Medicare enrollment and billing privileges.

Petitioner is a “supplier” for purposes of the Medicare program. See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier), 410.20(b)(1); see also 42 C.F.R. § 498.2. A “supplier” furnishes services under Medicare and the term applies

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to physicians or other practitioners that are not included within the definition of the phrase “provider of services.” 42 U.S.C. § 1395x(d). A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services. 42 C.F.R. § 424.505. The regulations at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program. 42 C.F.R. §§ 424.510 - 424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program). A supplier that seeks billing privileges under Medicare “must submit enrollment information on the applicable enrollment application.” 42 C.F.R. § 424.510(a)(1). “Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program.” 42 C.F.R. § 424.510(a)(1); see also 42 C.F.R. § 424.510(d) (listing enrollment requirements). Thereafter, “[t]o maintain Medicare billing privileges, a . . . supplier . . . must resubmit and recertify the accuracy of its enrollment information every 5 years.” 42 C.F.R. § 424.515.

CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the enrollee does not provide complete and accurate information within 90 days of a request for such information. 42 C.F.R. § 424.540(a)(3). If CMS deactivates a supplier’s Medicare billing privileges, “[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary.” 42 C.F.R. § 424.555(b). Further, and quite significantly, the Departmental Appeals Board (DAB) has unambiguously stated that “[i]t is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.” Willie Goffney, Jr., M.D., DAB No. 2763 at 6 (2017). The regulation authorizing deactivation explains that “[d]eactivation of Medicare billing privileges is considered an action to protect the provider or supplier from misuse of its billing number and to protect the Medicare Trust Funds from unnecessary overpayments.” 42 C.F.R. § 424.540(c).

On December 15, 2016, NGS mailed a letter to Petitioner directing him to revalidate his Medicare enrollment record no later than February 28, 2017, and NGS warned that Petitioner’s failure to revalidate could result in deactivation of his Medicare enrollment and billing privileges, with a resulting gap in reimbursement. CMS Ex. 2 at 1. After Petitioner submitted an inadequate response to the revalidation request, NGS, on February 7, 2017, informed Petitioner that he needed to provide a Form CMS-855I. CMS Ex. 4; see CMS Ex. 5 at 1. After Petitioner did not provide the requested information within 30 days, NGS deactivated Petitioner’s billing privileges. CMS Ex. 6. Petitioner submitted a revalidation application that was received on March 27, 2017, and CMS determined the effective date of Petitioner’s reactivated billing privileges is March 27, 2017, the date of receipt of the application. See CMS Exs. 7, 8.

The pertinent regulation with respect to the effective date of reactivation is 42 C.F.R. § 424.520(d). Arkady B. Stern, M.D., DAB No. 2329 at 4 (2010). Section 424.520(d)

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states that “[t]he effective date for billing privileges for physicians . . . is the later of – (1) [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) [t]he date that the supplier first began furnishing services at a new practice location.” The DAB has explained that the “date of filing” is the date “that an application, however sent to a contractor, is actually received.” Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 5 (2016) (emphasis omitted). Petitioner filed the application for purposes of revalidation and reactivation that was processed to approval was March 27, 2017, which is the date that NGS received the application. CMS Ex. 7 at 1. Based on the March 27, 2017 receipt date of the enrollment application that was processed to approval, NGS correctly assigned a March 27, 2017 effective date for reactivated billing privileges. See Goffney, DAB No. 2763 at 6 (stating that supplier may not receive payment for services during period of deactivation); 42 C.F.R. § 424.520(d).

Petitioner is challenging the assignment of a March 27, 2017 effective date of his reactivated billing privileges, which resulted in a one-week gap in his billing privileges from March 20 through 26, 2016. P. Br. Petitioner was required to timely respond to the revalidation request to avoid the prospect of deactivation pursuant to 42 C.F.R. § 424.540(a)(3), and NGS deactivated his billing privileges after it rejected Petitioner’s revalidation application due to his failure to comply with the development request. CMS Ex. 9 at 6-10; see also 42 C.F.R. § 424.525(a)(1) (CMS “may reject a . . . supplier’s enrollment application” if the supplier “fails to furnish complete information . . . within 30 calendar days from the date of the contractor request for missing information.”). The DAB has explained that a deactivation action is not reviewable, and “[t]he only action in the reconsidered determination which is appealable is . . . the initial determination of the effective date of the enrollment application reinstating [the petitioner].”The DAB explained: “Moreover, neither [42 C.F.R. §] 424.545(b) nor any other regulation provides appeal rights from the contractor’s deactivation determination or any rebuttal determination.” Goffney, DAB No. 2763 at 5; see also Arkady B. Stern, M.D., DAB No. 2417 at 3 n.4 (2011) (Petitioner argues on appeal that deactivation was improper, but the DAB “does not have the authority to review” deactivation under circumstances of this case, (citing 42 C.F.R. §§ 424.545(b) and 498.3(b)); Andrew J. Elliott, M.D., DAB No. 2334 at 4 n.4 (2010) (DAB “does not have authority to review” a deactivation).Goffney, DAB No. 2763 at 3-5. NGS correctly deactivated Petitioner’s billing privileges because it rejected, pursuant to 42 C.F.R. § 424.525(d), Petitioner’s inadequate attempt to comply with the revalidation request. Because Petitioner did not comply with the revalidation request in accordance with the time period prescribed by 42 C.F.R. § 424.540(a)(3), NGS appropriately assigned an effective date of March 27, 2017, for Petitioner’s reactivated billing privileges based on a correct application of 42 C.F.R. § 424.520(d).

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Petitioner argues the February 7, 2017 email was “defective” and that he was “not properly notified and that caused [him] to fail to comply with the imposed deadline . . . .” P. Br. Such an argument attacks the propriety of the deactivation of billing privileges, but does not challenge NGS’s correct application of section 424.520(d) in assigning an effective date of reactivated billing privileges. Petitioner cannot challenge the deactivation in this forumI note that even if I could review Petitioner’s deactivation, Petitioner has not demonstrated that NGS was not authorized to deactivate his billing privileges. Petitioner initially alleged, or at least insinuated, he did not receive the development request because he discovered the message, on an unspecified date, “in a spam folder.” CMS Ex. 9 at 2. Although Petitioner does not make this same argument in his hearing request or brief, he offers several reasons why he feels that the February 7, 2017 development email was “defective.” Request for Hearing; P. Br. In support, Petitioner argues that NGS did not direct the email message to Debra Welcome, the person he contends was his “designated party.” However, NGS sent the email address to Petitioner (who listed himself as a “Contact Person” in January 2017) at the email address he provided less than a month earlier, in January 2017. CMS Ex. 3 at 4. And although Petitioner argues the “heading” of the email message did not state it was a revalidation request, Petitioner does not provide any supporting statute, regulation, or case citation that mandates such a requirement. Further, even without a heading describing the subject of the message, the recipient would undoubtedly be on notice that the email pertained to an enrollment matter, particularly because the document attached to the message is titled “Development with Attach 855I and 855R(2).doc”. P. Ex. 2 at 2 (Petitioner’s copy of a “screen shot” showing the file attached to the email); see CMS Ex. 5 at 1 (NGS notes showing title of the attachment). Even assuming arguendo that the attached document was “corrupt” and could not be opened, which Petitioner has not demonstrated, Petitioner was nonetheless on notice that the Medicare administrative contractor was requesting development and had provided Forms CMS-855I and CMS-855R. P. Ex. 2 at 2. And if Petitioner had any questions or needed assistance, NGS had previously provided two telephone numbers and links to several reference websites in its December 2016 letter. CMS Ex. 2. Finally, and not insignificantly, Petitioner made essentially no effort to timely comply with the December 15, 2016 revalidation request, in that he neither submitted a hard copy enrollment application nor certified and updated his enrollment information via the PECOS website. Petitioner failed to attempt any meaningful compliance with the December 15, 2016 revalidation request, and the February 7, 2017 development request was essentially a reprise of the initial request that he comply with the revalidation request, rather than a request that he develop a previously submitted application. See MPIM, § 15.24.2 (noting use of development letters when “revisions” or “supporting documentation” are necessary). , and as previously discussed, I am not empowered to review the deactivation of his billing privileges. See Arkady v. Stern, M.D., DAB No. 2417 at 3 n.4; Andrew J. Elliott, M.D., DAB No. 2334 at 4 n.4. Petitioner limits his arguments to challenging his deactivation, and presents no arguments that NGS did not correctly

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assign a March 27, 2017, effective date for reactivated billing privileges. To the extent that Petitioner is requesting equitable relief in the form of an earlier effective date of reactivated billing privileges, I am unable to grant equitable relief. US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”). I cannot grant Petitioner relief on this basis because I do not have the authority to “[f]ind invalid or refuse to follow Federal statutes or regulations or secretarial delegations of authority.” See, e.g., 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground, even a constitutional one.”).

In the absence of any basis to grant an earlier date for the reactivation of billing privileges, the March 27, 2017 effective date for the reactivation of Petitioner’s billing privileges must stand.

V. Conclusion

For the foregoing reasons, I uphold the March 27, 2017, effective date of Petitioner’s reactivated billing privileges.