Binoy Chandra Shekharan, M.D., DAB CR5393 (2019)

DECISION

Petitioner, Binoy Chandra Shekharan, M.D., (Dr. Chandra or Petitioner) appeals the determination establishing the effective date of his enrollment and billing privileges as a Medicare supplier. Noridian Healthcare Solutions (Noridian), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), approved Petitioner's reactivation application that it received on February 2, 2017; accordingly it correctly determined that the effective date of reactivation of Petitioner's Medicare billing privileges is February 2, 2017. I therefore affirm the effective date determination.

I. Background

Petitioner is a physician employed by Cobre Valley Regional Medical Center and 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. See, e.g., Petitioner's Request for Hearing (RFH). By letters dated April 16, 2016, one addressed to Petitioner at his practice location and one to his mailing address, Noridian notified Petitioner that he must

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revalidate his Medicare enrollment record by June 30, 2016. CMS Exhibits (Exs.) 2, 3. In the letters, Noridian warned that "[f]ailure to respond to this notice will result in a hold on your payments, and possible deactivation of your Medicare enrollment." CMS Ex. 2at 1; CMS Ex. 3 at 1. Petitioner did not respond to CMS's requests and, by letter dated July 26, 2016, Noridian notified Petitioner that his revalidation application was past due. CMS Ex. 4 at 1. In the letter, Noridian stated that if Petitioner's enrollment were deactivated he would "not be paid for services rendered during the period of deactivation."The letter from Noridian did not indicate a certain date when Petitioner's Medicare billing privileges would be deactivated. Id. By letter dated September 19, 2016, Noridian notified Petitioner that his Medicare billing privileges were deactivated, effective September 1, 2016, because he did not revalidate his enrollment record. CMS Ex. 6 at 1.

Petitioner electronically submitted CMS-855I and CMS-855R Medicare enrollment applicationsWith its pre-hearing exchange, CMS submitted a copy of Petitioner's CMS-855R but not the CMS-855I. Nonetheless, the reconsidered determination states that Petitioner submitted both a CMS-855R and CMS-855I on February 2, 2017 and that ultimately both applications were processed to completion. CMS Ex. 10 at 2. Petitioner does not contend that the CMS-855I was submitted on a different date. Therefore, I assume that both applications were received the same day. to revalidate his Medicare enrollment and reactivate his billing privileges via the Medicare Provider, Enrollment Chain, and Ownership System (PECOS); the applications were received on February 2, 2017. CMS Ex. 1 at 2; CMS Ex. 10 at 2. In a March 6, 2017 letter, Noridian approved Petitioner's Medicare revalidation application and assigned an effective date of February 2, 2017. CMS Ex. 7 at 2-3. In its letter, Noridian informed Petitioner that there was a lapse in his Medicare billing privileges from September 1, 2016 through February 1, 2017.Petitioner claims, and CMS Ex. 7 appears to show, that Noridian sent two letters notifying Petitioner of the approval of his revalidation application. CMS Ex. 7 at 2-7. The first of these two letters (CMS Ex. 7 at 5-7) does not explicitly describe the lapse in Petitioner's billing privileges; however, both letters state that the effective date of reactivation is February 2, 2017. CMS Ex. 7 at 2, 5. Since the September 1, 2016 deactivation is not in dispute, even in the absence of a statement describing the dates during which Petitioner's billing privileges lapsed, both letters effectively reflect that Petitioner's billing privileges were deactivated from September 1, 2016, through February 1, 2017. Id.

In a reconsideration request dated April 5, 2017, Petitioner, through his representative, timely challenged the contractor's effective date determination. CMS Ex. 7 at 11-16. However, this request was returned because the request was not signed by an

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"authorized/delegated official, the provider, or a legal representative" as required by regulation. CMS Ex. 8 at 1; 42 C.F.R. §§ 498.10, 498.22(b)(2). By letter dated May 1, 2017, Petitioner requested reconsideration of the effective date of revalidation of his Medicare billing privileges, and sought to have Noridian change his effective date to bill Medicare to September 1, 2016. CMS Ex. 9 at 2. He based this request on claims that neither he nor his office had received Noridian's requests for revalidation. Id. Additionally, Petitioner claimed that when he had spoken with Noridian, he had received conflicting information regarding whether there would be a lapse in his billing privileges. Id. By letter dated July 5, 2017, Noridian issued a reconsidered determination reaffiming the effective date of February 2, 2017, with a lapse in billing privileges from September 1, 2016 through February 1, 2017. CMS Ex. 10 at 2.

By letter dated August 7, 2017, Petitioner requested a hearing before an administrative law judge. RFH. The case was assigned to me and I issued an Acknowledgement and Pre-Hearing Order on September 8, 2017 (Pre-Hearing Order). The Pre-Hearing Order directed each party to file a pre-hearing exchange consisting of a brief and any supporting documents and set forth the deadlines for those filings. Pre-Hearing Order ¶ 4. CMS filed a brief and motion for summary judgment (CMS Br.) and 10 exhibits (CMS Exs. 1‑10) six days after the deadline set out in the Pre-Hearing Order. With its brief and exhibits, CMS filed a request for leave to file out of time. CMS Request for Leave.

Petitioner did not submit his required pre-hearing exchange by the November 17, 2017 deadline indicated in the Pre-Hearing Order. Therefore, I issued an Order to Show Cause (OSC). Petitioner, through his representative, responded on November 29, 2017 and filed a brief (P. Br.) and five exhibits (P. Exs. 1-5). Petitioner's response indicated that because CMS did not timely file its materials, Petitioner was unsure of the status of his appeal. P. Response to OSC at 2. On December 1, 2017, I granted CMS's request to file out of time and discharged the OSC. Order Granting Request for Leave to File Out of Time, Discharging Order to Show Cause, and Setting Deadline for Objections. No party objected to the exhibits of the other. In the absence of objection, I admit CMS Exs. 1-10 and P. Exs. 1-5.

Neither party offered written direct testimony of any witness as part of its pre-hearing exchange. My September 8, 2017 Pre-Hearing Order indicated that "[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. Therefore, an in-person hearing is not necessary and I decide this case based on the parties' written submissions. Pre-Hearing Order ¶¶ 4(c)(iv), 8, 10; Civil Remedies Division Procedures § 19(d).

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II. Issue

The issue in this case is whether Noridian, acting on behalf of CMS, properly established February 2, 2017, as the effective date for reactivation of Petitioner's enrollment in Medicare.

III. Jurisdiction

I have jurisdiction to hear and 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 a retrospective billing date that is 30 days prior to the effective date 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 a provider or supplier that it is time to revalidate, the provider or supplier 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 may deactivate an enrolled provider's or supplier's Medicare billing privileges if the enrollee fails to comply with revalidation requirements.

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42 C.F.R. § 424.540(a)(3).  When CMS deactivates a provider's or 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). 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 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 Law

1. On February 2, 2017, Noridian received Dr. Chandra's application to revalidate his Medicare billing privileges and subsequently approved that application.

2. The effective date of reactivation of Petitioner's Medicare enrollment and billing privileges is February 2, 2017.

Petitioner asks me to grant him an effective date of September 1, 2016 because he claims not to have received notification from Noridian that a revalidation application was required. P. Br. at 2. However, the requested date is inconsistent with the regulations. The regulations provide that 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" is the date that the Medicare contractor "receives" a signed enrollment application that the Medicare contractor is able to process to approval. 73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).

Petitioner does not dispute that Noridian received the application to revalidate his Medicare enrollment and billing privileges on February 2, 2017, nor that it was the February 2, 2017 application that the CMS contractor processed to completion. RFH at 2-3. Accordingly, the effective date of reactivation for Dr. Chandra's Medicare billing privileges is February 2, 2017.

3. I have no authority to review the deactivation of Dr. Chandra's Medicare billing privileges on September 1, 2016.

Petitioner argues, based on Noridian's letter dated March 3, 2017, that he did not need to revalidate his Medicare enrollment. P. Br. at 2; P. Ex. 1. However, the March 3 letter states that Noridian had already received Petitioner's February 2, 2017 revalidation application. P. Ex. 1. As of March 3, 2017, Petitioner had already submitted his reenrollment application and did not need to submit further information. Additionally,

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Petitioner asserts that CMS's online database listed incorrect information regarding whether revalidation was required. Neither of these arguments entitles Petitioner to an earlier effective date because the issue of whether Petitioner received accurate information regarding the need revalidate is only relevant to whether Noridian 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 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). Thus, my jurisdiction in this case is limited to reviewing the effective date of reactivation of Petitioner's enrollment and billing privileges. 42 C.F.R. § 498.3(b)(15).

4. Petitioner's arguments in equity are not a basis to change the effective date of reactivation of his Medicare billing privileges.

Petitioner argues that he did not receive Noridian's revalidation requests, that he received contradictory information from Noridian representatives, and that Noridian's initial March 6, 2017 letter did not include the dates of Petitioner's lapse in Medicare billing privileges. P. Br. at 2-3. These arguments are based on principles of fairness and are therefore equitable in nature. However, many DAB decisions have held that neither administrative law judges nor appellate panels have authority to overturn a legally valid agency action on equitable grounds or otherwise grant equitable relief. US Ultrasound, DAB No. 2302 at 8 (2010) ("[n]either the ALJ or the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements."); see, e.g., Richard Weinberger, M.D. and Barbara Vizy, M.D., DAB No. 2823 at 18-19 (2017).

V. Conclusion

For the reasons explained above, I affirm that the effective date of reactivation of Dr. Chandra's Medicare enrollment and billing privileges is February 2, 2017.