Ramarao Kaza, M.D. and Ramarao Kaza, M.D. PC, DAB CR5310 (2019)

DECISION ON REMAND

I find the effective dates of reactivation of the Medicare billing privileges of Petitioners Ramarao Kaza, M.D. (Petitioner Kaza) and Ramarao Kaza, M.D., P.C. (Petitioner Kaza, P.C.) to be August 14, 2017 for Petitioner Kaza, P.C. and August 21, 2017 for Petitioner Kaza.

I. Background

On April 30, 2018 I issued a decision granting summary judgment in favor of the Centers for Medicare & Medicaid Services.  In that decision I found that the effective dates for reinstatement of Medicare billing privileges were August 13, 2017 for Petitioner Kaza, P.C. and August 20, 2017 for Petitioner Kaza.

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Petitioner Kaza appealed.  An appellate panel of the Departmental Appeals Board remanded the case, finding a dispute of material fact as to the date when Petitioner Kaza filed the application for reinstatement of the billing privileges for Petitioner Kaza, P.C.

In my original decision I noted that the contractor awarded effective reinstatement dates to Petitioners Kaza, P.C. and Kaza of August 13 and 20, 2017, respectively, and I concluded that this was an error based on the dates on which I found that Petitioners filed their applications (August 14 and August 21, 2017) which the contractor subsequently approved.  However, I ruled that I would not correct these effective reinstatement dates inasmuch as CMS had not asserted them to be erroneous.  Ramarao Kaza, M.D. & Ramarao Kaza, M.D., P.C., DAB CR5084 at 4 n.1 (2018).  Notwithstanding, the appellate panel ordered that I address this discrepancy on remand.

On remand I ordered the parties to brief the issues identified by the Board’s appellate panel.  CMS filed a brief.  It also filed 26 proposed exhibits, identified as CMS Ex. 1-CMS Ex. 26.  These exhibits include the declaration of a witness, Ms. Tara Brandl.  CMS Ex. 26.  Petitioners filed a brief and filed no exhibits.  Petitioners did not object to my receiving CMS’s proposed exhibits into evidence.  Petitioners did not file a request to cross-examine Ms. Brandl. The initial pre-hearing order that I issued in this case directed Petitioners to file a written request to cross-examine any witness if they wished to do so. Acknowledgment and Pre-hearing Order, January 16, 2018, ¶ 9.

Although CMS again moves for summary judgment, it is unnecessary that I rule on that motion.  The evidentiary record is complete.  CMS filed its proposed exhibits, including Ms. Brandl’s declaration.  Petitioners did not request to cross-examine Ms. Brandl and consequently, there is no need for an in-person hearing.  I decide this case based on the parties’ written exchanges.  I receive into evidence CMS Ex. 1-CMS Ex. 26.  I resolve all disputed issues of fact based on these exhibits and the applicable law and regulations.

II. Issues, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether August 14 and 21, 2017 are the effective dates of reinstatement of Petitioners’ Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

In my original decision I stated the law governing the effective date of reinstatement of billing privileges.  Ramarao Kaza, M.D., DAB CR5084 at 2-3.  The appellate panel took

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no issue with my analysis.  I incorporate it by reference without restating it in detail.  Suffice it to say that the earliest possible effective reinstatement date that a Medicare contractor may assign to a provider or supplier whose billing privileges have been deactivated (as was the case with both Petitioners in this case) is the date that the provider or supplier files a new enrollment application that the contractor subsequently approves.

In its remand to me, the appellate panel identified what it described as a fact conflict.  It noted that the exhibits showed that on March 21, 2017, Petitioner Kaza filed an application electronically for reinstatement of Petitioner Kaza, P.C. with the contractor that received a “tracking number.”  CMS Ex. 14 at 1; CMS Ex. 22 at 13.  The panel noted further that the contractor’s records show that the application was marked as “received” by the contractor on July 5, 2017.  CMS Ex. 14 at 1.  The panel found that either of these dates conceivably could be the date that Petitioner Kaza filed an application for reinstatement that the contractor subsequently approved and, if so, that would militate in favor of a reinstatement of benefits date for Petitioner Kaza, PC, that is earlier than August 14, 2017.

However, the filing of a partial or incomplete application with the contractor does not constitute the filing of an application that the contractor can subsequently approve.  For purposes of reinstatement of billing privileges, the operative date is the date when a provider or a supplier files a completed application upon which a contractor may act.  If an application is incomplete it does not serve to establish an effective date for reinstatement of billing privileges.  That date is established when a supplier files an application that the contractor can process to completion. I take notice that contractors sometimes establish effective reinstatement or participation dates based on applications that are initially missing certain items where the supplier or provider subsequently and timely provides those items at the contractors’ request. But, that is a matter of discretion. A contractor is not required to accept an application that is incomplete.

It is also important to understand that this case involves – and has always involved – two distinct parties seeking reinstatement of billing privileges.  Petitioner Kaza’s status as a participating supplier is separate from that of Petitioner Kaza, P.C.  An application filed on behalf of one does not establish an effective date of participation for the other, even if the contractor processes that application to completion.  Facts that pertain to applications filed on behalf of Petitioner Kaza, P.C. must be reviewed independently from facts that pertain to applications filed by Petitioner Kaza on behalf of himself.  I find that, notwithstanding the disputed issues of fact identified by the appellate panel, the evidence establishes that it was not until August 21, 2017, that Petitioner Kaza filed a completed application for reinstatement of billing privileges on his own behalf that the contractor subsequently approved.

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It is true that Petitioner Kaza initiated certain actions and filed documents with the contractor prior to August 21, both on behalf of himself and on behalf of Petitioner Kaza, P.C.  None of these documents consisted of a completed application for reinstatement of billing privileges.

On March 21, 2017, Petitioner Kaza began a revalidation application for Petitioner Kaza, P.C. by creating an application in the contractor’s on-line application system (“PECOS”).  It is important to note that Petitioner Kaza did not create this application on his own behalf but on behalf of the professional corporation, Petitioner Kaza, P.C.  Thus, this application has no bearing on the status of Petitioner Kaza’s effective reinstatement date.

Moreover, the March 21, 2017 filing was not a complete application for reinstatement.  It consisted merely of the opening of a file.  Petitioner Kaza effectively acknowledges that he did not file a completed application on March 21, 2017, on behalf of Petitioner Kaza, P.C.  He avers only that he “began” a group application on that date.  See Petitioner’s brief at 1.  As CMS explains, PECOS generates a tracking number on the date that an application is begun by a provider or a supplier, without regard for the completeness of the application.  CMS Ex. 26.  A supplier such as Petitioner Kaza, P.C. may open an application but not complete it until a later date.  If a provider or supplier files an incomplete application that is rejected, its resubmissions will retain the original tracking number.  A new tracking number is assigned only in the circumstance where the provider or supplier withdraws its application and re-initiates the application process.  Id.  But, in all instances, what establishes the effective date of reinstatement is the date that a provider or a supplier files a completed application, and not the date when that provider or supplier opens a file on PECOS that receives a tracking number.

In fact, an application on behalf of Petitioner Kaza, P.C., was not filed until July 5, 2017.  CMS Ex. 14 at 1; CMS Ex. 25.  Prior to that date, Petitioner Kaza P.C. had a tracking number but no application had been filed on its behalf.

This application was incomplete.  It lacked critical information consisting of a signed certification statement.  The contractor did not receive that certification statement until August 14, 2017.  CMS Ex. 14 at 5. Petitioner Kaza maintains that he filed a signed certification form with the contractor on March 21, 2017, and that the contractor should have considered this to be the application date for his reinstatement. Petitioner’s brief at 4-5. There is a signed signature page bearing Petitioner Kaza’s signature and dated March 21, 2017, in evidence. CMS Ex. 22 at 12. It is unclear what application that relates to – an application that Petitioner Kaza may have filed on his own behalf or one that he filed on behalf of Petitioner Kaza, P.C. However, the record reflects no linkage between this document and the application that the contractor ultimately accepted, the application that Petitioner Kaza filed on Petitioner Kaza, P.C.’s behalf on August 20, 2017. As I have discussed, all previous filings by Dr. Kaza relate to applications that the contractor rejected and these rejections are not appealable.   On that date, the application was complete.  The

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contractor processed the application and reinstated Petitioner Kaza P.C.’s billing privileges based on that completed application.  The earliest effective reinstatement date that the contractor could assign to Petitioner Kaza, P.C. was August 14, 2017. August 14, 2017 is the earliest effective reinstatement date that the contractor may assign to Petitioner Kaza, P.C. As I noted in my original decision the contractor erroneously assigned August 13, 2017, as the effective reinstatement date.

I reiterate that the application filed on behalf of Petitioner Kaza, P.C. cannot establish an effective reinstatement date for Petitioner Kaza.  He was required to file a separate application for reinstatement of billing privileges.  The information that he may have filed on behalf of his professional corporation is not transferrable.

The facts concerning Petitioner Kaza’s application for reinstatement are thus separate from those governing the application for Petitioner Kaza, P.C.  Petitioner Kaza filed an enrollment application on May 22, 2017.  CMS Ex. 2.  This application was incomplete and the contractor rejected it by letter dated June 27, 2017.  CMS Ex. 4.  Based on that rejection the contractor deactivated Petitioner Kaza’s billing privileges.  As I explained in my first decision in this case, the rejection and deactivation are not appealable issues.

On July 5, 2017, Petitioner Kaza filed an application for reinstatement of his billing privileges via PECOS.  CMS Ex. 6 at 1.  That application received a tracking number on that date, meaning that the contractor’s electronic system acknowledged that Petitioner Kaza opened an application file on July 5.  As I have stated, the assignment of a tracking number is not evidence that an application is complete, but only shows that a provider or supplier has filed something with the contractor via PECOS.

The contractor rejected Petitioner Kaza’s July 5 application in a letter dated August 11, 2017.  CMS Ex. 12.  The contractor concluded that the July 5 application was incomplete.  This non-appealable action by the contractor rendered Petitioner Kaza’s July 5, 2017 application inapplicable for purposes of determining his effective date of reinstatement.

On August 4, 2017, Petitioner Kaza filed an application with the contractor to assign his individual billing privileges to Petitioner Kaza, P.C.  CMS Ex. 11.  The contractor rejected this application on August 11, 2017, because Petitioner Kaza hadn’t signed or dated it and because, as of that date, Petitioner Kaza, P.C. remained deactivated.  CMS Ex. 13.

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On August 21, 2017, Petitioner Kaza filed a paper application for reinstatement of his billing privileges.  CMS Ex. 17.  The contractor affixed a control number, 2017233, to the application, establishing the receipt date of August 21, 2017.  The contractor was able to process this application.  The date of this application – August 21, 2017 – is the earliest possible date for reinstatement of Petitioner Kaza’s Medicare billing privileges. As I noted in my previous decision the contractor erroneously assigned August 20, 2017, as the effective date of reinstatement. The correct date is August 21, 2017.

Petitioner Kaza’s arguments do not establish any basis for me to find effective reinstatement of benefits dates earlier than August 14, 2017 for Petitioner Kaza, P.C. and August 21, 2017 for Petitioner Kaza.

Petitioner Kaza does not deny that he filed the August 21, 2017 paper application that the contractor processed to completion.  However, he asserts that earlier applications that he filed were, in fact, complete – or nearly so – and that the contractor should have accepted and processed those applications.  These arguments essentially challenge the contractor’s rejection of Petitioner’s applications filed prior to August 21.  But, and as I have stated, the contractor’s rejections of Petitioner’s pre-August 21, 2017 applications are not appealable.  I may not examine the merits of those rejections or decide whether those applications ought to have been accepted.

Petitioner also raises equitable arguments that he raised previously, asserting, essentially, that the contractor did not deal fairly with him or his professional corporation.  As I explained in my original decision, I have no authority to consider these arguments.  Ramarao Kaza, M.D., DAB CR5084 at 5.