Yoram Haviv, M.D., DAB CR5569 (2020)

DECISION

Petitioner, Yoram Haviv, M.D., is a California physician who participates in the Medicare program as a supplier of services.  After his Medicare billing privileges were deactivated, he applied to reenroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted the application, effective February 24, 2017.  Petitioner now challenges that effective date. 

Because Petitioner filed his subsequently-approved reenrollment application on February 24, 2017, I find that February 24 is the correct effective date for his reenrollment.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff’d, Goffney v. Azar, No. 2:17-CV-8032 MRW, 2019 WL 6520519 (C.D. Cal. Sept. 25, 2019).

Background

In a letter and email, dated March 30, 2017, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner that it approved his revalidated Medicare enrollment

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application, although with a lapse in coverage from January 19 through February 24, 2017.  CMS Ex. 7.1   Petitioner requested reconsideration.  CMS Ex. 8. 

In a reconsidered determination, dated June 7, 2017, the contractor determined that February 24, 2017, was the correct effective date because that was the date Petitioner Haviv filed his subsequently-approved revalidation application.  CMS Ex. 9.  Petitioner appealed. 

CMS moves for summary judgment.  Because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre-Hearing Order at 3, 5 (¶¶ 4, 10) (August 31, 2017).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied. 

CMS submits its motion and brief (CMS Br.) with nine exhibits (CMS Exs. 1-9).  Petitioner rests his case on the information he submitted with his hearing request.  In the absence of any objections, I admit into evidence CMS Exs. 1-9.

Discussion

Petitioner filed his subsequently-approved reenrollment application on February 24, 2017, and his Medicare reactivation enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).2

Enrollment.  Petitioner Haviv participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services furnished 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

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Management and Budget.  42 C.F.R. § 424.502.3   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 from Medicare for covered services provided to program beneficiaries.  For a physician, the effective date for billing privileges “is the later of the date of filing” a subsequently‑approved enrollment application or “[t]he date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

Revalidation and Deactivation.  To maintain his billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of his 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 his enrollment information.  42 C.F.R. § 424.515(d) and (e).  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).

If, within 90 days from receipt of CMS’s notice, the supplier does not furnish complete and accurate information and all supporting documentation or does not resubmit and certify the accuracy of his enrollment information, CMS may deactivate his billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3), 424.555(b).  To reactivate his billing privileges, the supplier must complete and submit a new enrollment application.  42 C.F.R. § 424.540(b)(1).  It is settled that, following deactivation, section 424.520(d) governs the effective date of reenrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7; Goffney, DAB No. 2763 at 7.

I have no authority to review a deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 (2019). 

Petitioner’s deactivation and reenrollment.  In a notice letter, dated September 13, 2016, the contractor directed Petitioner Haviv to revalidate his Medicare enrollment by updating or confirming the information in his record.  The letter directed Petitioner to the PECOS website and explained that a supplier could revalidate through the PECOS system or by mailing to the contractor a completed CMS-855 Medicare enrollment application.  The letter warned that Petitioner had to revalidate by November 30, 2016, or risk his Medicare enrollment being deactivated; the letter explained that, during the period of deactivation, Medicare would not pay for the services rendered.  CMS Ex. 1.

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Petitioner responded by filing a revalidation application on December 8, 2016; however, the contractor deemed the application insufficient and, in a letter dated December 19, 2016, directed Petitioner to supply, within 30 calendar days, a long list of revisions and supporting documentation.  CMS Ex. 2.  Petitioner responded, but, again, the contractor deemed his submissions insufficient.  In an email dated January 16, 2017, the contractor’s representative advised Petitioner Haviv that she could not accept his corrections and that his enrollment application was still missing information.  She wrote that she would be sending another request-for-information email, listing the necessary corrections.  Significantly, she advised that, unless she received the corrections by “Thursday, the 19th,” Petitioner’s application could be rejected.  CMS Ex. 3 at 1 (emphasis added). 

A January 16 request-for-information email included another long list of necessary revisions.  Unfortunately, it included an opening paragraph identical to that of the December 19 letter, which directed Petitioner to supply the information “within 30 calendar days from the date of this letter.”  CMS Ex. 3 at 2 (emphasis added); see CMS Ex. 2 at 1.4

Petitioner submitted his corrections on January 18, but the contractor again deemed them insufficient.  CMS Ex. 8 at 1; see CMS Br. at 3.  In a notice dated January 20, 2017, the contractor rejected Petitioner’s December 8 application and advised Petitioner to submit a new application.  CMS Ex. 4 at 1-2. 

On February 24, 2017, Petitioner submitted a Medicare reenrollment application, which, after requesting and obtaining additional information, the contractor approved.  CMS Ex. 5 at 3-30; CMS Exs. 6, 7.    

Petitioner complains that the contractor rejected his December 8 application, arguing that his submissions should have been sufficient.  He also points to the January 16 request‑for-information email that advised him to submit the missing information within 30 days, and argues that the contractor acted prematurely, before that 30-day deadline was up.  While the conflicting deadlines in the contractor’s two January 16 notices are troubling, I have no authority to review a rejected application, no matter what the circumstances.  42 C.F.R. § 424.525(d).

On February 24, 2017, the contractor received Petitioner’s second reenrollment application, which it subsequently approved.  CMS Ex. 5 at 3-30; CMS Exs. 6, 7.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved reenrollment application – February 24, 2017 – is the correct effective date of enrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.  I have no authority to grant Petitioner an earlier effective date based on any

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equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on February 24, 2017, CMS properly granted his Medicare reenrollment effective that date. 

1. This is not correct.  His lapse was from January 19 through February 23.
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2. I make this one finding of fact/conclusion of law.
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3. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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4. CMS does not address the disparities between these notices.
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