Premala Raja, M.D., DAB CR5149 (2018)

DECISION

First Coast Service Options, Inc. (First Coast), an administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), determined that the effective date for reactivation of Medicare billing privileges for Premala Raja, M.D. (Petitioner) was December 14, 2016. Petitioner appealed. Since Petitioner filed an enrollment application that was subsequently processed to approval on December 14, 2016, I affirm CMS’s determination.

I. Background

Petitioner is a cardiologist who was enrolled in the Medicare program as a supplier.Petitioner is considered a “supplier” for purposes of the Social Security Act (Act) and regulations. See Act § 1861(d), (u) (codified at 42 U.S.C. §§ 1395x(d), (u)); 42 C.F.R. § 498.2. CMS Exhibit (Ex.) 1 at 1-2. In a letter dated June 15, 2016, First Coast requested that Petitioner revalidate her Medicare enrollment information by August 31, 2016. CMS Ex. 5 at 1. The letter informed Petitioner that failure to respond could result in the deactivation of her billing privileges and a gap in her reimbursement. Id. In response, Petitioner submitted an enrollment application (Form CMS-855I) that First Coast received on August 30, 2016. CMS Ex. 6 at 3.

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In a letter dated October 11, 2016, First Coast informed Petitioner that her application was missing information and was at risk of being rejected. CMS Ex. 7 at 1. Petitioner asserts that she sent an application with the missing information to First Coast on October 24, 2016. Petitioner Ex. (P. Ex.) 7 at 2-5; P. Ex. 14 at 2-3. Meanwhile, First Coast sent a letter to Petitioner dated December 2, 2016 asserting that it had not received a response from Petitioner and that her billing privileges would be deactivated on December 1, 2016. CMS Ex. 3 at 1. On December 14, 2016, First Coast received a completed enrollment application from Petitioner. CMS Ex. 4 at 1-5. First Coast subsequently processed this application to approval, as it informed Petitioner by letter dated February 14, 2017. CMS Ex. 1 at 1-2. In its initial determination approving Petitioner’s application, First Coast stated that Petitioner’s effective date of enrollment was January 1, 2012. Id. CMS represents that this effective date was cited in error. CMS Motion for Summary Judgment/Prehearing Brief (CMS Br.) at 1 n.1. In any event, at some point, First Coast determined that the effective date of Petitioner’s reactivated billing privileges would be December 14, 2016, resulting in a gap in her billing privileges from December 1, 2016 to December 13, 2016. P. Ex. 14 at ¶ 11; see also CMS Ex. 2 at 2.

In a reconsideration request dated April 3, 2017, Petitioner challenged the contractor’s effective date determination, and sought to have the gap in her billing privileges removed. CMS Ex. 8 at 1-2. On May 15, 2017, First Coast issued an unfavorable decision on Petitioner’s reconsideration request. CMS Ex. 2 at 1-2. 

In a letter postmarked June 28, 2017, Petitioner requested review of First Coast’s reconsidered determination. The case was assigned to me for a hearing and decision. Pursuant to my Acknowledgement and Pre-Hearing Order, CMS filed its pre-hearing brief, which included a motion for summary judgment, and eight exhibits (CMS Exs. 1-8). Petitioner filed a response brief (P. Br.) and fourteen exhibits (P. Exs. 1-14). In the absence of objections to either party’s exhibits, I admit all exhibits into the record. Petitioner submitted the declaration of one witness (P. Ex. 14); however, CMS did not request to cross-examine Petitioner’s witness. As stated in my Pre-Hearing Order, “[a]n in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.” Pre-Hearing Order ¶ 10.

As explained more fully below, I conclude that there are no facts in dispute that are material to the result of this case, and that CMS is entitled to judgment as a matter of law. I therefore grant CMS’s motion for summary judgment.

II. Issues

The issues in this case are:

Whether summary judgment is appropriate; and

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Whether CMS had a legitimate basis for determining that Petitioner’s Medicare billing privileges are effective December 14, 2016.

III. Jurisdiction

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

IV. Discussion

A. Applicable Legal Authority

The 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 “Enroll/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 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.

The regulations provide that suppliers must submit enrollment applications to revalidate and reactivate their enrollment and billing privileges when the supplier’s billing privileges are deactivated for any reason other than a failure to submit a claim within 12 months. 42 C.F.R. §§ 424.515, 424.540(b). For suppliers that are physicians or non-physician practitioners, or physician or non-physician practitioner organizations, the effective date for Medicare billing privileges is the date on which the supplier files an enrollment application that is subsequently approved or the date on which the supplier first begins providing services at a new location, whichever is later. 42 C.F.R. § 424.520(d). The date of filing for a paper application is the date on which the contractor receives the application. Medicare Program Integrity Manual (MPIM) § 15.17 (rev. 676, issued and effective Dec. 19, 2016); see also Alexander C. Gatzimos, M.D., J.D., L.L.C., DAB No. 2730 (2016).

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

1. Summary judgment is appropriate.

CMS argues that it is entitled to summary judgment in its favor. An appellate panel of the Departmental Appeals Board (DAB) has stated the standard for summary judgment as follows:

Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. . . . The party moving for summary judgment bears the initial burden of showing that there are no genuine issues of material fact for trial and that it is entitled to judgment as a matter of law. . . . To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact — a fact that, if proven, would affect the outcome of the case under governing law. In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (citations omitted).

Petitioner argues that CMS is not entitled to summary judgment because there are material issues of fact in dispute. P. Br. at 4. I disagree. Petitioner has not disputed any fact that is material to my decision. In an attempt to do so, Petitioner relies on the declaration of her office manager asserting that, on October 24, 2016, she mailed a response to First Coast’s request for additional information. P. Ex. 14 at ¶ 5; see also P. Ex. 7 at 2, 5. First Coast apparently has no record of receiving the October 24 submission. See P. Ex. 14 at ¶ 8. Nevertheless, for purposes of ruling on CMS’s Motion for Summary Judgment, I accept as true that Petitioner submitted additional information on or about October 24, 2016. That fact does not alter the outcome of this case. Whether or not First Coast received Petitioner’s October 24 submission is relevant, if at all, to whether First Coast acted properly in deactivating Petitioner’s billing privileges. However, I do not have jurisdiction to review CMS’s deactivation of Petitioner’s billing privileges because deactivation is not an “initial determination” and deactivation

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decisions have a separate review process. See 42 C.F.R. §§ 424.545(b), 498.3(b); see also Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017).

Under the regulations, I am authorized to review the reconsideration of Petitioner’s effective date. 42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2). The effective date of billing privileges is determined based upon the contractor’s receipt of an enrollment application that is subsequently processed to approval. 42 C.F.R. § 424.520(d)(1).Petitioner argues that, based on her October 24 submission, First Coast was in receipt of an application that it was “able to” process to completion.  P. Br. at 7 (bold and underscore in original).  Petitioner’s argument misstates the regulatory standard.  Section 424.520(d) links the enrollment effective date to receipt of an application that is “subsequently approved.”  As an appellate panel of the DAB has explained, this means that the effective date of enrollment is based on “the contractor’s actual receipt of an actual application it processes to approval.”  Donald Dolce, M.D., DAB No. 2685 at 8 (2016) (underscore in original).  Thus, Petitioner’s speculation that First Coast could have processed her earlier application is immaterial, since the argument concedes that First Coast did not, in fact, process or approve that earlier application. Since the application Petitioner claims she submitted was not the application which was subsequently approved, it is not material to my review. See Karthik Ramaswamy, M.D., DAB No. 2563 at 6-7 (2014), aff’d, Ramaswamy v. Burwell, 83 F. Supp. 3d 846 (E.D. Mo. 2015) (alleged impropriety in denying enrollment application was not material to an effective date dispute because the denied application was not the application that was subsequently approved). Therefore, the receipt (or not) of Petitioner’s October 24 submission is not a material fact. Accordingly, I conclude that summary judgment is appropriate.

2. First Coast received a completed enrollment application from Petitioner on December 14, 2016, and subsequently approved this application.

3. First Coast properly established December 14, 2016 as the effective date of Petitioner’s reactivated billing privileges.

The parties do not dispute that First Coast deactivated Petitioner’s billing privileges effective December 1, 2016. P. Br. at 2; CMS Br. at 2; see also CMS Ex. 3 at 1. Further, the parties agree that, subsequent to deactivation, Petitioner submitted a new application that was received by First Coast on December 14, 2016 and processed to approval on February 14, 2016. P. Br. at 2; CMS Br. at 3; see also CMS Ex. 1 at 1-3. Therefore, First Coast correctly set the effective date of Petitioner’s reactivated billing privileges as December 14, 2016—the date on which the contractor received the application which it subsequently approved.

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4. Petitioner’s arguments for retrospective billing do not provide a basis to eliminate the gap in her billing privileges.

Petitioner asserts that she qualifies for retrospective billing pursuant to 42 C.F.R. § 424.521(a)(1). P. Br. at 5-6. The regulation authorizes CMS to permit a supplier to bill Medicare for up to thirty days before the effective date of enrollment if there are “circumstances preclud[ing] enrollment in advance of providing services.” 42 C.F.R. § 424.521(a)(1). Petitioner argues that First Coast’s alleged mishandling of her October 24, 2016 submission precluded her from enrolling earlier, within the meaning of the regulation. P. Br. at 5-6. Therefore, according to Petitioner, she should not be subject to a gap in her billing privileges. Id.

Petitioner points to no legal authority granting her a right to administrative review of CMS’s (or its contractor’s) refusal to grant retrospective billing privileges in a given case. The regulations do not state affirmatively that the refusal to authorize retrospective billing is an “initial determination” subject to administrative review. See 42 C.F.R. § 424.540(b). In the few cases where the issue has been presented, appellate panels of the DAB have declined to hold that there is a right to review on the issue of retrospective billing, but have also stopped short of holding that such review is prohibited. See Shalbhadra Bafna, M.D., DAB No. 2449 at 5 (2012); Robert Young, M.D., DAB No. 2359 at 2 (2011). Further, even if the regulations could be read to authorize administrative review of this issue, appellate panels of the DAB have repeatedly declined to consider review of a denial of retrospective billing when the denial was not part of the contractor’s initial determination or reconsideration. See, e.g., Richard Weinberger, M.D., and Barbara Vizy, M.D., DAB No. 2823 at 22 (2017); Bafna, DAB No. 2449 at 3; Young, DAB No. 2359 at 2. Nothing in the record indicates that First Coast made a determination denying Petitioner retrospective billing privileges pursuant to 42 C.F.R. § 424.521(a)(1) in either its initial determination or its reconsideration. CMS Ex. 1 at 1-2; CMS Ex. 2 at 2. Therefore, Petitioner’s attempt to eliminate the gap in her billing privileges by applying the retrospective billing regulation is unavailing.

V. Conclusion

For the reasons explained above, I affirm CMS’s determination that the effective date of Petitioner’s billing privileges was December 14, 2016.