Leslie D. Brown, LCSW-C, DAB CR5505 (2020)

DECISION

Petitioner's Medicare billing privileges were deactivated on December 4, 2017, as a result of her failure to timely comply with a request that she revalidate her individual Medicare enrollment record. For the reasons discussed below, I conclude that the effective date of Petitioner's reactivated Medicare enrollment and billing privileges is August 31, 2018.

I. Background and Procedural History

On January 9, 2017, Novitas Solutions (Novitas), a Medicare administrative contractor, sent a letter to Petitioner, a licensed clinical social worker (certified), requesting that she revalidate her individual Medicare enrollment record no later than March 31, 2017. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 1; see Petitioner (P.) Ex. 1 at 1. Novitas mailed the letter to Petitioner at an address on Hollins Lane in Baltimore, Maryland.1 CMS Ex. 1 at 1. Novitas instructed Petitioner to "update or confirm all the information in [her] record . . . ." CMS Ex. 1 at 1. Novitas cautioned

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Petitioner that a "[f]ailure to respond to this notice will result in a hold on [her] payments and possible deactivation of [her] Medicare enrollment." CMS Ex. 1 at 1. Novitas also warned that Petitioner "will not be paid for services rendered during the period of deactivation" and deactivation "will cause a gap in [her] reimbursement." CMS Ex. 1 at 1. After Novitas did not receive Petitioner's enrollment application for purposes of revalidation prior to the March 31, 2017 deadline, Novitas sent Petitioner another letter informing her that it was "holding all payments" because she had not revalidated her enrollment record. CMS Ex. 2 at 1. On December 4, 2017, Novitas sent a third letter informing Petitioner that because she had not revalidated her enrollment, it had deactivated her billing privileges effective that same day. CMS Ex. 3 at 1.

On August 31, 2018, Novitas received Petitioner's completed Form CMS-855I application for purposes of revalidation, at which time Petitioner listed an address on North Charles Street in Baltimore. CMS Exs. 4 at 13, 24, 27; 13 at 6. In a cover letter, Petitioner reported that she had revalidated her enrollment on an unspecified date and had also changed her address through the CMS Enterprise Identity Management (EIDM) website. CMS Ex. 4 at 2. Petitioner explained that she had received the revalidation request that had been sent to her former address on Hollins Lane because it had been forwarded by the U.S. Postal Service, but she did not receive subsequent correspondence (i.e., the payment hold and deactivation letters) Novitas had sent to that address. CMS Ex. 4 at 2.

In a letter dated November 20, 2018, Novitas informed Petitioner that it had approved her revalidation application. CMS Ex. 8 at 1. Novitas explained that Petitioner would have a gap in her billing privileges "from 12/04/2017 through 08/30/2018 for failing to timely submit [her] revalidation application." CMS Ex. 8 at 1. The letter also informed Petitioner that her physical address had been updated effective August 31, 2018. CMS Ex. 8 at 2.

In a letter received on December 11, 2018, Petitioner disputed the gap in her reactivated billing privileges. CMS Ex. 9 at 5-7. In support of her request, Petitioner submitted undated screenshot printouts from the "Identity & Access Management System." CMS Ex. 9 at 9-10.

Novitas issued a reconsidered determination on February 11, 2019, wherein it maintained the August 31, 2018 effective date of Petitioner's reactivated billing privileges. CMS Ex. 12 at 2. Novitas explained that Petitioner "ha[d] not provided evidence to support an earlier effective date," and that "[t]he revalidation correspondence was sent to the only address as listed in the Provider Enrollment[,] Chain[,] and Ownership System (PECOS) at the time of the mailings." CMS Ex. 12 at 4. Novitas further explained that it "did not receive any request from [Petitioner] to update [her] address," and Petitioner "only updated [her] address in the Identity & Access Management System, which is not PECOS."  CMS Ex. 12 at 4. Addressing the screenshot printouts Petitioner submitted

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with her reconsideration request, Novitas remarked that "the Systems Notification area of Internet-based PECOS is to alert providers of issues with the PECOS application itself (e.g. when the system will be down for maintenance)" and that "[p]roviders would need to review the area labeled Revalidation Notification Center to determine the status of any revalidation request." CMS Ex. 12 at 4.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on April 1, 2019. The Civil Remedies Division issued an acknowledgment letter and Standing Pre-Hearing Order (Pre-Hearing Order) on April 19, 2019. CMS filed a pre-hearing brief and memorandum in support of summary judgment, along with 16 proposed exhibits (CMS Exs. 1-16). Petitioner filed a brief in response2 (P. Br.) and 13 proposed exhibits (P. Exs. 1-13). In the absence of any objections, I admit all submitted exhibits into the evidentiary record.

Neither party has submitted the written direct testimony of any witnesses, and a hearing is therefore unnecessary for the purpose of cross-examination of witnesses. Pre-Hearing Order, §§ 12-14. The record is closed, and the case is ready for a decision on the merits.3

II. Issue

Whether CMS had a legitimate basis to assign Petitioner an August 31, 2018 effective date for her reactivated billing privileges.

III. Jurisdiction

I have jurisdiction to hear and decide this case. 42 C.F.R § 498.3(b)(15); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); see also 42 U.S.C. § 1395cc(j)(8).

IV. Findings of Fact, Conclusions of Law, and Analysis4

1. On January 9, 2017, Novitas requested that Petitioner revalidate her individual Medicare enrollment record no later than March 31, 2017.

2. After Novitas did not receive a response to its revalidation request, it deactivated Petitioner's billing privileges effective December 4, 2017.

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3. Novitas received Petitioner's completed enrollment application for purposes of revalidation and reactivation on August 31, 2018, and Novitas ultimately processed that application to approval.

4. An effective date earlier than August 31, 2018, is not warranted for the reactivation of Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.520(d).

As a licensed clinical social worker (certified), Petitioner is a "supplier" for purposes of the Medicare program. See P. Ex. 1 at 1; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier); 498.2. A "supplier" furnishes items or services under Medicare, and the term applies to physicians or other practitioners who 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 who 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." Id.; 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. Further, a supplier "may be required to revalidate [its] enrollment outside the routine 5-year revalidation cycle . . . ." 42 C.F.R. § 424.515(e).

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 receipt of notification." 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); Urology Grp. of NJ, LLC, DAB No. 2860 at 10 (2018) ("The regulations, taken together, clearly establish that a deactivated provider or supplier was not intended to be entitled to Medicare reimbursement for services rendered during the period of deactivation."). 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), aff'd, Goffney v. Azar, 2:17-CV-8032 (C.D. Cal. Sept. 25, 2019); see Urology Grp., DAB No. 2860 at 11 ("Taking these unique effects of revocation into consideration, it is reasonable to conclude that CMS intended for revocations and deactivations to share the feature of

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precluding a provider or supplier from collecting reimbursement for services rendered during the period of inactive Medicare billing privileges, while simultaneously intending for revocations to have more severe consequences on a provider's or supplier's ability to participate."); Frederick Brodeur, M.D., DAB No. 2857 at 16 (2018) ("Allowing a deactivated supplier to bill for services furnished during a period of deactivation would conflict with section 424.555(b) of the regulations . . . ."). 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 January 9, 2017, Novitas mailed a letter to Petitioner directing her to revalidate her Medicare enrollment record no later than March 31, 2017, and Novitas warned that Petitioner's failure to revalidate could result in deactivation of her Medicare billing privileges, with a resulting gap in reimbursement. CMS Ex. 1 at 1. Novitas thereafter deactivated Petitioner's billing privileges on December 4, 2017, after it did not receive a response to its revalidation request. CMS Ex. 3 at 1. Petitioner does not contest that she received the initial revalidation request, but claims that "[a]ccording to [her] records, a CMS 855 was filed on January 19, 2017" for purposes of revalidating her enrollment. P. Br. at 4. She further argues that because she did not receive subsequent correspondence from Novitas (because the U.S. Postal Service was no longer forwarding her mail), she was unaware that Novitas had held her payments and deactivated her billing privileges based on nonreceipt of a response to its revalidation request. P. Br. at 6. In support of this assertion, Petitioner submitted a marked-up copy of the January 2017 revalidation request that contains handwritten notes, to include the dates of "1/19/17" and "8/1/18." P. Ex. 9 at 1. Petitioner concedes that "[a]s I have no proof of mailing my CMS 855 within the specified time frame . . . I have no alternative but to offer my word and past reputation in compliance." P. Br. at 2. Petitioner "recognize[d] that this legal argument is not strong." P. Br. at 2.

The pertinent regulation with respect to the effective date of reactivation is 42 C.F.R. § 424.520(d). Urology Grp., DAB No. 2860 at 7 ("The governing authority to determine the effective date for reactivation of Petitioner's Medicare billing privileges is 42 C.F.R. § 424.520(d)" (italics omitted).). Section 424.520(d) 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). Novitas deactivated Petitioner's billing privileges based on her failure to comply with the revalidation request (CMS Exs. 2, 3, 8, 12), and, on August 31, 2018, Novitas received an enrollment application for purposes of revalidation and reactivation that it ultimately processed to approval. CMS Exs. 4 at 36; 8 at 1-2. Based on the August 31, 2018 receipt date of the enrollment application that

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was processed to approval, the August 31, 2018 effective date for reactivated billing privileges is not erroneous. 42 C.F.R. § 424.520(d); see Urology Grp., DAB No. 2860 at 9 ("Moreover, the fact that a supplier must file a new enrollment application in order to reactivate its billing privileges is consistent with the language of section 424.520(d) and compelling evidence that the provision should apply to reactivations."); Frederick Brodeur, DAB No. 2857 at 16 ("Petitioner remained enrolled in Medicare, but his deactivated status made [him] ineligible for payment for any covered services he furnished to otherwise eligible Medicare beneficiaries, pursuant to section 424.555(b), until he provided the information necessary to reactivate his billing privileges."); Willie Goffney, DAB No. 2763 at 6 ("It is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.").

Petitioner recognizes that she cannot challenge the deactivation of her billing privileges. P. Br. at 2 ("CMS essentially asserts that an [ALJ] has no authority to make a judgment in this matter as the deactivation of my enrollment was not an 'initial determination' . . . [i]f that is the case, then my appeal may not progress."). Nonetheless, Petitioner's arguments amount to challenges to the deactivation action, in that she claims that she revalidated her enrollment in January 2017 and did not receive correspondence notifying her of the deactivation of her billing privileges. P. Br. at 4. To the extent that I can construe Petitioner's arguments disputing the deactivation of her billing privileges as a request for an effective date earlier than August 31, 2018, for the reactivation of her billing privileges, Petitioner has not submitted evidence demonstrating that Novitas received a response to its revalidation request prior to August 31, 2018. In fact, Petitioner acknowledges that the only proof of her alleged timely compliance with the revalidation request is "[her] word and past reputation in compliance."5 P. Br. at 2. Unfortunately for Petitioner, she must establish that she revalidated her enrollment prior to August 31, 2018, in order to demonstrate that an earlier effective date of reactivated billing privileges is warranted. 42 C.F.R. § 424.520(d). Because Petitioner has not done so, I have no legal authority to grant an effective date of reactivated billing privileges earlier than August 31, 2018. See Ark. Health Grp., DAB No. 2929 at 12 (2019) ("Where, as here, the contractor deactivated Petitioner's billing privileges, the issue for us (and the ALJ) is the effective date of reactivation."). Because I can only review the effective date assigned for Petitioner's reactivated billing privileges, and Petitioner does present evidence that she submitted a completed application for purposes of reactivation which Novitas received on August 31, 2018, I affirm that Novitas had a legitimate basis to assign an effective date of August 31, 2018, for Petitioner's reactivated billing privileges, which is based on the date of receipt of her application for purposes of revalidation. 42 C.F.R. § 424.520(d).

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To the extent that Petitioner's request for relief is based on principles of equitable relief, I cannot grant such 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."). Petitioner points to no authority by which I may grant her relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires. 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 . . . .").

V. Conclusion

For the foregoing reasons, Novitas had a legitimate basis to assign an August 31, 2018 effective date for Petitioner's reactivated billing privileges.

1. Petitioner listed this address on her previous March 2012 enrollment application. CMS Ex. 11 at 8, 19.
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2. Petitioner submitted her brief as P. Ex. 14. Because P. Ex. 14 is a brief, and not a proposed evidentiary exhibit, I do not admit P. Ex. 14 as an evidentiary exhibit.
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3. As an in-person hearing to cross-examine witnesses is not necessary, it is unnecessary to further address CMS's motion for summary judgment.
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4. Findings of fact and conclusions of law are in italics and bold font.
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5. Petitioner has not submitted any sworn written direct testimony. See Pre-Hearing Order § 12.
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