George Mars, M.D., DAB CR5582 (2020)

DECISION

Petitioner, George Mars, M.D., is a Nevada 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 December 22, 2016, resulting in a four-month coverage lapse.  Petitioner now challenges that effective date and asks that the lapse in coverage be eliminated. 

Because Petitioner filed his subsequently-approved reenrollment application on December 22, 2016, I find that December 22 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 sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019). 

Background

In notice letters dated January 20, 2017 and May 8, 2017, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner that it approved his revalidated Medicare enrollment application, although with a lapse in coverage from August 15

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through December 22, 2016.  CMS Exs. 6, 18.1   Petitioner requested reconsideration.  CMS Ex. 17. 

In a reconsidered determination, dated August 17, 2017, the contractor determined that December 22, 2016, was the correct effective date and that the lapse in coverage could not be changed.  CMS Ex. 1.  Petitioner appealed. 

CMS moves to dismiss or, in the alternative, for summary judgment. 

Motion to dismiss.  I deny CMS’s motion to dismiss.  CMS’s determination as to the effective date of enrollment is an “initial determination” that is subject to review under the procedures set forth in 42 C.F.R. § 498.3(a)(1), (b)(15).  A supplier or prospective supplier dissatisfied with an initial determination may request reconsideration by filing a written request within 60 days from receiving the notice of the initial determination (as Petitioner did here).  42 C.F.R. §§ 498.5(d)(1), (l)(1), 498.22.  A supplier or prospective supplier dissatisfied with a reconsidered determination is entitled to a hearing before an administrative law judge.  42 C.F.R. §§ 498.5(d)(2); (l)(2); 498.40.  Petitioner timely requested review of the reconsidered determination and is therefore entitled to this review.  See CMS Exs. 1, 6, 17; P. Ex. 18.

Summary judgment.  Although CMS filed a motion for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  The initial order in this case instructed the parties to list any proposed witnesses and to submit their written direct testimony.  Acknowledgment and Prehearing Order at 3, 5 (¶¶ 4(c)(iv), 8) (October 5, 2017).  The order also directed the parties to indicate which, if any, of the opposing side’s witnesses the party wished to cross-examine and explained that an in-person hearing would be needed only if a party wishes to cross-examine the opposing side’s witness.  Id. at 5 (¶¶ 9, 10).  Neither party lists any witnesses.  Although Petitioner submits his own written declaration (P. Ex. 1), CMS has not asked to cross-examine him.  An in-person hearing would therefore serve no purpose, and I may decide this case based on the written record without considering whether the standards for summary judgment are met. 

Exhibits.  CMS submits its motions and brief (CMS Br.) with 18 exhibits (CMS Exs. 1-18).  Petitioner submits his brief opposing CMS’s motions (P. Br.) with 18 exhibits.  In the absence of any objections, I admit into evidence CMS Exs. 1-18 and P. Exs. 1-18.

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Discussion

Petitioner filed his subsequently-approved reenrollment application on December 22, 2016, and his reactivated Medicare enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).2

Enrollment.  Petitioner 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 he 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. § 424.502.3   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.  The effective date for its billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or the date the individual began furnishing services at a new practice location.  42 C.F.R. § 424.520(d) (emphasis added).  The date of filing is the date the Medicare contractor receives an application that it is able to process to approval.  Karthik Ramaswamy, M.D., DAB No. 2563 at 3 (2014), aff’d sub nom. Ramaswamy v. Burwell, 83 F. Supp. 3d 846 (E.D. Mo. 2015).

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

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enrollment application with complete and accurate information and supporting documentation.  42 C.F.R. § 424.515(a)(2).

If, within 90 days from receiving 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 March 17, 2016, the contractor directed Petitioner Mars 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 May 31, 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. 3.

Petitioner did not respond.  See P. Ex. 1 at 1 (Mars Decl. ¶ 5) (conceding that his responses to the contractor’s requests were untimely).  In letters dated June 24, 2016, sent to separate addresses, the contractor reminded Petitioner that he should revalidate his enrollment, noting that he’d missed the May 31, 2016 deadline.  The letters encouraged him to revalidate and again warned that he would not be paid for services rendered during any period of deactivation.  CMS Exs. 4, 5. 

In a letter dated August 18, 2016, the contractor advised Petitioner that his Medicare enrollment was deactivated, effective August 15, 2016.  The contractor would not pay for any claims after that date.  P. Ex. 4.

Petitioner finally filed a revalidation application on September 13, 2016; however, the contractor deemed the application insufficient.  CMS Ex. 7.  There ensued much back-and-forth correspondence between Petitioner and the contractor, with the contractor requesting changes and additional information, and Petitioner responding, but not wholly complying with the contractor’s requests.  See CMS Exs. 8-13: P. Exs. 5, 7-12.  Finally, in a notice dated November 10, 2016, the contractor rejected Petitioner’s September 13 application, noting that it was not complete.  The contractor again explained how to

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submit a new application.  CMS Ex. 14; P. Ex. 10.  I have no authority to review a rejected application.  42 C.F.R. § 424.525(d).

On December 22, 2016, Petitioner submitted a Medicare reenrollment application, which, after requesting and obtaining additional information, the contractor approved.  CMS Exs. 16, 18.4   Thus, pursuant to section 424.520(d), December 22, 2016, 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 equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on December 22, 2016, CMS properly granted his Medicare reenrollment effective that date.

1. The December 22 date is not correct.  His lapse was from August 15 to December 22 (or August 15 through December 21).  The January 20 notice letter also told Petitioner that his enrollment application was approved but did not mention any lapse in coverage.  The May 8 letter corrected that oversight and advised Petitioner that he could request reconsideration.
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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. Medicare contractors stamp paper applications with a “Julian date stamp,” which counts the days of the year consecutively.  Here, the first two digits stamped on the application (upper left corner) indicate the year – 2016.  The next three digits indicate the date – the 357th day of 2016, or December 22, 2016.
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