Karen Craig, O.T., DAB CR5586 (2020)

DECISION

Petitioner, Karen Craig, O.T., is an occupational therapist practicing in Florida who participates in the Medicare program as a supplier of services.  After her Medicare billing privileges were deactivated, she applied to reenroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted the application, effective March 21, 2017.  Petitioner now challenges that effective date. 

Because Petitioner filed her subsequently-approved enrollment application on March 21, 2017, I find that March 21 is the correct effective date for her 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 a letter, dated April 7, 2017, the Medicare contractor, First Coast Service Options, Inc., advised Petitioner that it approved her revalidated Medicare enrollment application, effective March 21, 2017.  CMS Ex. 11.

Page 2

Petitioner requested reconsideration.  CMS Ex. 12. 

In a reconsidered determination, dated August 31, 2017, the contractor determined that March 21, 2017, was the correct effective date because that was the date Petitioner Craig filed her revalidation application, which was subsequently processed and approved.  CMS Ex. 1. 

Petitioner appealed. 

Although CMS has moved 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) (November 3, 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 witnesses.  Id. at 5 (¶¶ 9, 10).  Although both parties list witnesses and provide their written direct testimony, neither party has asked to cross-examine any of them.  See P. Br. at 7.  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.

CMS submits its motion and brief (CMS Br.) with thirteen exhibits (CMS Exs. 1-13).  Petitioner submits her opposition brief (P. Br.) with four composite exhibits (P. Exs. 1-4).  CMS filed a reply.  In the absence of any objections, I admit into evidence CMS Exs. 1-13 and P. Exs. 1-4.

Discussion

Petitioner filed her subsequently-approved reenrollment application on March 21, 2017, and her Medicare reenrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner Craig 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

Page 3

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. § 424.502.2   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 her 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).

Revalidation and Deactivation.  To maintain her billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of her 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 her 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 her enrollment information, CMS may deactivate her billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3); 424.555(b).  To reactivate her 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 May 16, 2016, the contractor directed Petitioner Craig to revalidate her Medicare enrollment by updating or confirming the information in her record.  The letter directed Petitioner to the PECOS website and explained that a supplier could revalidate through the PECOS system or by

Page 4

mailing to the contractor a completed CMS-855 Medicare enrollment application.  The letter warned that Petitioner had to revalidate by July 31, or risk her Medicare enrollment being deactivated; the letter also explained that, during the period of deactivation, Medicare would not pay for the services rendered.  CMS Ex. 2 at 1-2.

The contractor sent the notice to the addresses it had on file for Petitioner and the group to which she assigned her benefits, but Petitioner did not respond.  CMS Ex. 2; CMS Ex. 5 at 3-4; CMS Ex. 13 (Fitch Decl. ¶¶ 5-7).3

By letter dated December 15, 2016, the contractor advised Petitioner that her Medicare billing privileges were stopped, effective December 14, 2016, because she had not revalidated her enrollment record.  The letter also explained how she could reactivate her enrollment.  CMS Ex. 6.

On January 17, 2017, Petitioner filed the required applications (CMS forms 855R and 855I).  CMS Exs. 7, 8.  However, the contractor deemed them insufficient and, in a letter dated January 28, 2017, directed Petitioner to supply, within 30 calendar days, additional information and signatures.  CMS Ex. 8 at 1.  Petitioner did not timely respond, and, in letters dated March 10, 2017, the contractor rejected Petitioner’s January 17 applications.  CMS Ex. 8 at 3-6.

On March 21, 2017, Petitioner submitted new Medicare reenrollment applications, which, after requesting and receiving additional information (CMS Ex. 10), the contractor subsequently approved.  CMS Exs. 9, 11.  Thus, pursuant to section 424.520(d), the date Petitioner filed her subsequently-approved enrollment application – March 21, 2017 – is the correct effective date of reenrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

Petitioner nevertheless argues that she is entitled to Medicare reimbursement retroactive to December 14, 2016, the date of her deactivation, because she did not receive the May 16, 2016 notice letter advising her to reactivate and because CMS’s instructions regarding reactivation are confusing and inaccurate.  With respect to the notice issue, CMS’s evidence that it mailed the letters and that they were not returned is fairly solid.  On the other hand, it is also certainly possible that Petitioner Craig did not receive them. 

Page 5

I need not resolve that issue, however, because I have no authority to review a deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 .

Nor have I the authority to grant Petitioner an earlier effective date based on her equitable and policy arguments.  Sokoloff, DAB No. 2972 at 9.

Conclusion

Because Petitioner filed her subsequently-approved reenrollment application on March 21, 2017, CMS properly granted her Medicare reenrollment effective that date.

1. I make this one finding of fact/conclusion of law.
• back to note 1
2. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
• back to note 2
3. Petitioner concedes that one of the addresses listed is her home address, and that the contractor had it on file (P. Br. at 8), but claims that she did not receive the notice (see discussion).  CMS included a redacted version of CMS Exhibit 5, which is a PECOS entry from Petitioner’s earlier employer.  Petitioner asks me to order discovery so that she can obtain an unredacted version and other “source materials.”  I have no authority to order discovery.  Moreover, the documents requested are neither relevant nor likely to lead to relevant evidence.  First, Petitioner concedes that a notice was addressed to her home.  Second, as discussed, I have no authority to review the deactivation.
• back to note 3