Richard Blankenbaker, Jr., M.D., DAB CR5533 (2020)

DECISION

Petitioner, Richard Blankenbaker, Jr., M.D., challenges the effective date of the reactivation of his Medicare billing privileges after those privileges were deactivated due to a failure to revalidate. As explained herein, I find the Centers for Medicare & Medicaid Services (CMS) properly established March 30, 2016 as the effective date of reactivation of Petitioner’s billing privileges.

I. Background

By letter dated August 18, 2014, CMS contractor Noridian Healthcare Solutions (Noridian) notified Petitioner that he needed to revalidate his enrollment record within 60 days. CMS Exhibit (Ex.) 1. Noridian warned Petitioner that “[f]ailure to submit complete enrollment application(s) and all supporting documentation . . . may result in your Medicare billing privileges being deactivated.” Id. at 3.

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On February 26, 2015, Noridian deactivated Petitioner’s enrollment after he failed to timely respond to its request for revalidation.  CMS Exs. 1, 2.  Petitioner submitted a new enrollment application on May 4, 2016.  CMS Ex. 3.  Noridian subsequently approved his application with an effective date of May 4, 2016.  CMS Ex. 4 at 7. 

Petitioner appealed this decision to Noridian, which issued a reconsidered decision on September 29, 2016 upholding the May 4, 2016 effective date.  CMS Ex. 5.  Petitioner requested a hearing before an Administrative Law Judge (ALJ); however, while this matter was pending before another judge in this division, CMS made an unopposed request to remand the matter, which was granted.  CMS Ex. 6 at 1.

On February 22, 2017, CMS issued a revised reconsidered decision1  on remand that modified Petitioner’s effective date of enrollment to March 30, 2016, the same effective enrollment date of Newport Coast Cardiology (NCC), the group practice to which Petitioner reassigned his billing.  CMS Ex. 6 at 4.  In choosing the March 30, 2016 date, CMS explained that Noridian “misinformed” Petitioner that he was not required to submit another reactivation application to reassign his benefits to NCC when NCC submitted its own reactivation application.  Id. at 3.  As a result, CMS directed Noridian “to change the effective reactivation date of Dr. Blankenbaker’s PTAN . . . to March 30, 2016, the effective date of Dr. Blankenbaker’s group, NCC, to which he reassigned his benefits.”  Id. at 4.

Petitioner timely filed a request for hearing on April 21, 2017, and Administrative Law Judge Scott Anderson was designated to hear and decide this case.  On May 10, 2017, Judge Anderson issued an Acknowledgment and Pre-Hearing Order (Pre-hearing Order) that directed the parties to each file a pre-hearing exchange consisting of a brief and any supporting documents, and also set forth the deadlines for those filings.  Pre-hearing Order at 3-4.  Judge Anderson required the parties to submit written direct testimony for any witnesses in lieu of in-person direct testimony.  Id. at 5.  He also advised the parties that he would only hold a hearing in this matter for the purpose of cross-examination of witnesses.  Id. at 5-6.  On August 25, 2017, this matter was transferred to me.  I adopt Judge Anderson’s Pre-hearing Order in its entirety.

II. Admission of Exhibits and Decision on the Record

CMS filed a motion for summary judgment and brief (CMS Br.) and six proposed exhibits (CMS Exs. 1-6). Petitioner filed a brief (P. Br.) and two proposed exhibits (P. Exs. 1-2). Neither party objected to the opposing party’s exhibits. Therefore, I admit CMS Exs. 1-6 and P. 

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Exs. 1-2).2  Neither party objected to the opposing party’s exhibits.  Therefore, I admit CMS Exs. 1-6 and P. Exs. 1-2 into evidence.

Neither party offered the written direct testimony of a witness as part of its pre-hearing exchange, meaning an in-person hearing is not necessary in this matter.  Pre-hearing Order at 6.  Therefore, I will decide this case on the record, based on the parties’ written submissions and arguments.  Civ. Remedies. Div. P. § 19(d).  CMS’s motion for summary judgment is denied as moot.

III. Issue

The issue in this case is whether CMS properly determined March 30, 2016 to be 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 Law

1. Enrollment

Petitioner participates in the Medicare program as a “supplier” of services.  Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services it furnishes to program beneficiaries, a prospective supplier must enroll in the program.  42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors: 1) identify the prospective supplier; 2) validate the supplier's eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier's owners and practice location; and 4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502.

To enroll, a prospective supplier must complete and submit an enrollment application. 42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application is either a CMS‑approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.  When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments

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from Medicare for covered services provided to program beneficiaries. The effective date for its billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “the date that the supplier first began furnishing services at a new practice location.” 42 C.F.R. § 424.520(d) (emphasis added). In this case, the date of filing of Petitioner's subsequently-approved enrollment application is relevant. If a supplier satisfies certain requirements, CMS will allow a supplier to bill retrospectively for up to 30 days prior to the effective date. 42 C.F.R. § 424.521(a)(1).

2. Revalidation

To maintain its billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of its enrollment information, a process referred to as “revalidation.” 42 C.F.R. § 424.515. In addition to periodic revalidations, CMS may, at other times and for its own reasons, ask a supplier to recertify the accuracy of its enrollment information. 42 C.F.R. § 424.515(d). Within 60 days of receiving CMS's notice to recertify, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation. 42 C.F.R. § 424.515(a)(2).

3. Deactivation

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). CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the enrollee does not “furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification from CMS to submit an enrollment application and supporting documentation, or resubmit and certify to the accuracy of its enrollment information.” 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).

4. Reactivation

The reactivation of an enrolled supplier’s billing privileges is governed by 42 C.F.R. § 424.540(b). The process for reactivation is contingent on the reason for deactivation. If CMS deactivates a supplier’s billing privileges due to a reason other than nonsubmission of a claim, the supplier must apply for CMS to reactivate its Medicare billing privileges by completing and submitting the appropriate enrollment application(s) or recertifying its enrollment information, if deemed appropriate. 42 C.F.R. § 424.540(a)(3), (b)(1).

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B. Findings of Fact and Conclusions of Law3

1. CMS assigned Petitioner the effective date of reactivation of March 30, 2016, the date of approval of his group application, and the effective date can be no earlier.

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).  CMS policy in effect at the time Petitioner filed his enrollment application provided a revalidation application filed more than 120 days after deactivation, as occurred here, would necessitate the filing of a new application and thus establishment of a new effective date under the provisions of section 15.17 of the Medicare Program Integrity Manual (MPIM).  MPIM, CMS Pub. 100-08, Ch. 15, § 15.29.4.3 (Rev. 578, eff. May 15, 2015).  The “date of filing” is the date on which a contractor receives a signed enrollment application it is able to process to completion.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).

Here, Petitioner filed his subsequently approved revalidation request on May 4, 2016.  CMS Ex. 3 at 1.  Noridian found Petitioner’s effective date of enrollment to be May 4, 2016, but on remand, CMS revised Petitioner’s effective date of enrollment to March 30, 2016.  CMS Ex. 6 at 4.  CMS chose that date acknowledging Noridian had misinformed Petitioner regarding whether he was required to submit another reactivation application to reassign his benefits to NCC.  Id. at 3.  Therefore, CMS changed the effective date from May 4, 2016 (the date Noridian received Petitioner’s application which was subsequently processed to completion), to March 30, 2016 (the date Noridian processed NCC’s application to reactivate its billing privileges to completion). 

CMS does not cite any authority that requires or even permits assignment of a group’s effective date of enrollment to an individual supplier because he reassigns his billing privileges to that group.  However, the applicable regulation only dictates that the effective date of enrollment for physicians or “physician practitioner organizations” is the later of the date the supplier begins furnishing services at a new practice location or the date of filing of an enrollment application subsequently approved by a Medicare contractor.  42 C.F.R. § 424.520(d)(1).  Petitioner is both a physician and a practice member in NCC.  CMS Ex. 4 at 2.  Thus, it is reasonable to read the regulation to afford CMS the discretion to align both the individual and group enrollment applications by using the date of the earlier application between them, particularly where, as happened here, CMS’s contractor erroneously advised the individual supplier not to apply for reactivation.

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The assignment to Petitioner of NCC’s effective date of enrollment works to his advantage, and reflects CMS’s attempt to exercise its discretion in Petitioner’s favor because its contractor had erred.  I am aware of no authority that permits me to review that exercise in discretion.  Because the regulations do not appear to expressly forbid it, I find CMS reasonably relied on the date of NCC’s enrollment application, March 30, 2016, to establish the effective date of Petitioner’s individual enrollment. 

2. I have no authority to review the deactivation of Petitioner’s Medicare billing privileges on February 26, 2015, nor may I review the rejection of any revalidation application.

Petitioner first argues that CMS violated his due process rights because he never received notice of his need to revalidate.  P. Br. at 11-13.  However, I have no authority to review constitutional claims, or provide relief not expressly permitted under the regulations.  See 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, even a constitutional one.”); Fla. Health Sciences Ctr., Inc., DAB No. 2263 at 5-6 (2009).  Petitioner’s constitutional claim is of dubious merit, in any case; as he explained in his request for reconsideration, he received no notifications from CMS because of misconduct by one of his own employees, not by CMS or one of its contractors.  CMS Ex. 4 at 3-4.  He can hardly blame the government for the duplicitous actions of his own staff.   

Petitioner further argues that he submitted an enrollment application on June 3, 2015 and should therefore receive billing privileges as of the date of his deactivation.4   P. Br. at 2-3, 13-15.  Petitioner has provided no evidence that he submitted an enrollment application on June 3, 2015, much less that any such application was successfully received and successfully processed to completion by CMS or a CMS contractor.  Even if he did submit an application in June 2015 that Noridian ultimately rejected, I do not have the authority to review a contractor’s decision to reject an application.  42 C.F.R. § 424.525(d). 

Petitioner also misstates the policy in effect at the time he or his group filed an enrollment application in 2016, namely, that the effective date of reactivation is the date the contractor receives an application that results in reactivation.  MPIM § 15.27.1.2.

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The earliest revalidation application actually approved by Noridian in the record before me was submitted March 30, 2016.  There is simply no basis in the record that would permit CMS or its contractor to select an earlier date.  Id.

Petitioner nevertheless contends that his failure to revalidate his billing enrollment and the long gap that occurred as a result stemmed from the failure of an untrustworthy employee who was charged by Petitioner and NCC to maintain their respective enrollments.  CMS Ex. 4 at 3-4.  I am sympathetic to Petitioner’s circumstance, and recognize he has suffered significant losses while providing critical medical services to program beneficiaries through no specific fault of his own. 

However, I have no authority to review CMS’s decision to deactivate a supplier.  This is because deactivation is not an “initial determination” subject to review by an administrative law judge.  See 42 C.F.R. § 498.3(b)(6); Urology Grp. of NJ, LLC, DAB No. 2860 at 6 (2018) (“The regulations do not grant suppliers the right to appeal deactivations.”); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017) (“Only facts relevant to the effective date resulting from the . . . application were material to the ALJ decision”). 

Nor can I provide Petitioner any form of equitable relief relying on his explanation for his failure to seek revalidation.  See, e.g., UpturnCare Co., DAB No. 2632 at 19 (2015) (providing the Departmental Appeals Board (Board) may not overturn denial of provider enrollment in Medicare on equitable grounds); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding the ALJ and Board could not provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements); US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  CMS’s selection of March 30, 2016 as Petitioner’s effective date of enrollment must therefore stand. 

VII. Conclusion

CMS granted Petitioner an effective date of enrollment of March 30, 2016, which corresponds to the date his group practice’s application was processed.  I therefore find March 30, 2016, to be the effective date of Dr. Blankenbaker’s enrollment and billing privileges.

1. The revised reconsidered decision is erroneously dated February 22, 2016. CMS Ex. 6 at 1.
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2. Petitioner identified three witnesses in his pre-hearing exchange, see DAB E-file Dkt. No. C-17-611, Doc. No. 13c, but failed to provide written direct testimony for those individuals, as required by the Pre-hearing Order issued in this case. Pre-hearing Order at 5.
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3. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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4. Petitioner relies on CMS policy in place at the time his billing privileges were deactivated, which provided that a supplier’s effective date of reactivation would be the date of that supplier’s deactivation. MPIM, ch. 15 § 15.27.1.2 (rev. 474, eff. Oct. 8, 2013). But even before Petitioner’s deactivation, CMS had already issued notice that it intended to change its policy, which, as it still stands, sets the effective date of reactivation to be the date of receipt of an enrollment application. See CMS Transmittal 561, Pub 100-08 (Dec. 12, 2014) (amending MPIM, ch. 15 § 15.27.1.2); CMS Transmittal 578, Pub 100-08 (Feb. 25, 2015) (amending MPIM, ch. 15 § 29.4.3).
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