Pamela DeSilva, M.D., DAB CR5123 (2018)

DECISION

Noridian Healthcare Solutions, Inc. (Noridian), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reactivated the Medicare billing privileges of Pamela DeSilva, M.D. (Petitioner or Dr. DeSilva) as of December 6, 2016.  Petitioner requested a hearing before an administrative law judge to dispute this effective date.  As explained herein, Noridian correctly determined that Petitioner’s reactivated billing privileges became effective December 6, 2016.  I therefore affirm CMS’ effective date determination.

I. Background

In a letter dated June 14, 2016, Noridian advised Petitioner that her group practice, DeSilva Medical, Inc., was required to revalidate its Medicare enrollment by August 31, 2016.The group practice had only a single member, Dr. DeSilva.  CMS Ex. 8 at 2.  As Noridian explained, a group cannot be enrolled without a member, meaning both group and member were subject to deactivation if either were not properly enrolled.  Id. CMS Exhibit (Ex.) 1.  Petitioner did not submit the requested revalidation documents by this deadline.  Noridian then deactivated the Medicare billing privileges of

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both Petitioner and her group practice effective October 24, 2016.  CMS Ex. 8 at 2.  Petitioner mailed to Noridian an enrollment application form that she asserted to be an “855I” delivered by commercial carrier on October 31, 2016.CMS believes Petitioner misidentified the form she first submitted, which was actually Form 855B.  CMS Br. at 5 n.3.  Form 855I is the enrollment application for individual practitioners, while Form 855B is the enrollment application for group practices.  See Ctrs. for Medicare & Medicaid Servs., Enrollment Applications, available at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/MedicareProviderSupEnroll/EnrollmentApplications.html (last updated Jan. 31, 2018). Request for Hearing at 1; Request for Hearing Supporting Documents (RFH Supp. Doc.) at 1.  Noridian confirmed receipt of her enrollment application on November 2, 2016 and notified Petitioner by email on November 17, 2016 that her application was missing information.  CMS Ex. 2 at 1.  Petitioner submitted the information requested by Noridian on December 6, 2016.  RFH Supp. Doc. at 9-10.  On February 10, 2017, Noridian revalidated Petitioner’s group practice, and notified her that it determined the lapse in coverage for the group to be from October 24, 2016 to December 5, 2016.  CMS Ex. 5 at 2.

Noridian eventually requested that Petitioner submit an 855I enrollment application for herself, as her own enrollment had been deactivated with her group enrollment.  CMS Ex. 8 at 2.  Noridian received an 855I enrollment application from Petitioner on January 25, 2017.  Id.  Noridian processed Petitioner’s application and assigned her an effective reactivation date of January 25, 2017.  CMS Ex. 6 at 11, 13.  Petitioner challenged the effective date determination for her individual enrollment on or about February 28, 2017, asking that her effective date align with the previously established date for her group enrollment, December 5, 2016.  Id. at 10.  On March 28, 2017, Noridian granted Petitioner’s requested relief and issued a favorable decision that modified her individual enrollment effective date to December 6, 2016, meaning Petitioner’s individual and group enrollments lapsed from October 24, 2016 to December 5, 2016.  CMS Ex. 8 at 2.  Because both enrollment lapse periods are the same, I will now refer simply to Petitioner’s billing enrollment period. 

Petitioner requested a hearing before an Administrative Law Judge (ALJ) in a letter dated April 7, 2017.  RFH Letter at 1.  Petitioner challenged her favorable reconsideration decision from Noridian, and requested that the effective date of her enrollment be further changed to October 31, 2016.  Id.  Petitioner asserts that this is when she first submitted her 855I enrollment application.  Id.Petitioner’s argument in this appeal differs substantially from that in her reconsideration request. Petitioner has not previously argued for an effective date earlier than December 6, 2016, and Noridian’s decision in her favor remedied Petitioner’s original grievance in full.

This case was first assigned to ALJ Scott Anderson, who issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on May 10, 2017.  Judge Anderson required each party to file a pre-hearing exchange consisting of a brief and any supporting documents.  Pre-Hearing Order ¶ 4.  CMS filed its brief (CMS Br.), which incorporated a motion for

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summary judgment, and eight proposed exhibits (CMS Exs. 1-8).  Petitioner objected to CMS Exs. 1-5, which referenced an individual who is not a party to this case.  CMS subsequently submitted the correct exhibits, and therefore I strike the previously filed CMS Exs. 1-5 (Docket Nos. 8b through 8f) from the record, and admit CMS Exs. 1-8. 

On July 31, 2016, Petitioner filed a letter in lieu of a brief asking that her request for hearing supporting documents (RFH Supp. Doc.) be considered part of her pre-hearing exchange.  I admit these submissions as Petitioner’s pre-hearing exchange.  On August 25, 2017, this was matter was transferred to me for hearing and decision.

II. Decision on the Record

Neither party offered the written direct testimony of any witness as part of its pre-hearing exchange, meaning an in-person hearing is not necessary in this matter.  Pre-Hearing Order ¶ 10.  Therefore, I will decide this case on the record, based on the parties’ written submissions and arguments.  CMS’ motion for summary judgment is denied as moot. 

III. Issue

The issue in this case is whether Noridian, acting on behalf of CMS, properly established December 6, 2016, as the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges.

IV. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

V. Discussion

A. Applicable Legal Authority

The Social Security Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).

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 define “Enrollment” as “the process that Medicare uses to establish eligibility to submit claims for Medicare-covered items and services.”  42 C.F.R. § 424.502.  A provider or supplier seeking billing

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privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  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).  CMS then establishes an effective date for billing privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may permit limited retrospective billing under 42 C.F.R. § 424.521.

To maintain Medicare billing privileges, providers and suppliers must revalidate their enrollment information at least every five years.  42 C.F.R. § 424.515.  However, CMS reserves the right to perform revalidations at any time.  42 C.F.R. § 424.515(d), (e).  When CMS notifies providers and suppliers that it is time to revalidate, the providers or suppliers must submit the appropriate enrollment application, accurate information, and supporting documentation within 60 calendar days of CMS’s notification.  42 C.F.R. § 424.515(a)(2).  CMS can deactivate an enrolled provider’s or supplier’s Medicare billing privileges if the enrollee fails to comply with revalidation requirements.  42 C.F.R. § 424.540(a)(3).  When CMS deactivates providers’ or suppliers’ 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).  If CMS deactivates a provider’s or supplier’s billing privileges due to an untimely response to a revalidation request, the enrolled provider or supplier may apply for CMS to reactivate its Medicare billing privileges by completing a new enrollment application or, if deemed appropriate, recertifying its enrollment information that is on file.  42 C.F.R. § 424.540(b)(1).

B. Findings of Fact and Conclusions of LawMy findings of fact and conclusions of law appear as numbered headings in bold italic type.

1. Noridian received Dr. DeSilva’s completed application to revalidate her group practice’s Medicare billing privileges on December 6, 2016, and processed that application to approval, making it the appropriate effective date of reactivation for Dr. DeSilva’s Medicare billing privileges.

The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the “date of filing” or the date the supplier first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d).  The “date of filing” for paper submissions is the date on which the contractor received the application.  Medicare Program Integrity Manual Chapter 15.17, Rev. 676, issued and effective Dec. 19, 2016.

Petitioner suggests that the effective date for her billing privileges should be October 31, 2016 because that is the day FedEx delivered her first enrollment application to Noridian. 

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RFH Letter at 1; RFH Supp. Doc. at 1.  However, the date of receipt is irrelevant if that initial application is deemed insufficient.  The regulations state that the effective date is determined by the date an application is “subsequently approved” by the contractor, not its initial receipt date.  42 C.F.R. § 424.520(d)(1).  In this case, Noridian rejected Petitioner’s first application because it was missing documentation.  CMS Ex. 2 at 1.  As the record reflects, Noridian notified Petitioner of this deficiency and asked for her to provide additional information.  Id.  The group enrollment application received by Noridian on December 6, 2016 was the earliest application submitted by Petitioner that was processed to approval.  RFH Supp. Doc. at 9-10.  Therefore, this is the earliest possible effective date for the reactivation of Petitioner’s billing privileges.  And because CMS provide the same reactivation date for Petitioner’s subsequent individual enrollment application, there is no need to resolve which application was submitted first, or if there was any delay in requesting or approving the later submitted application; CMS remedied this situation by giving Petitioner the earliest possible reactivation date for both applications. 

2. I have no authority to review the rejection of Petitioner’s October 31, 2016 revalidation application.

To the extent Petitioner believes Noridian improperly rejected her first application, I am not able to review that action.  The regulations preclude my review of a contractor’s decision to reject an application.  42 C.F.R. § 424.525(d).  The Departmental Appeals Board has held a supplier could not challenge CMS’ rejection of an enrollment application through an effective date dispute involving a later application.  James Shepard, M.D., DAB No. 2793 at 8 (2017).  Petitioner cannot use the action before me, a dispute as to the effective date of her eventual successful revalidation application, to attack CMS’ rejection of her first revalidation attempt.

V. Conclusion

For the reasons explained above, I affirm the effective date of Dr. DeSilva’s Medicare enrollment and billing privileges to be December 6, 2016.