Robert Cassman, MD, DAB CR5602 (2020)

DECISION

The effective date of reactivation of Petitioner’s billing privileges is January 23, 2018.  Petitioner is entitled to a period for retrospective billing beginning 30 days prior to the effective date of reactivation of Petitioner’s billing privileges. 

I.  Background and Findings of Fact

On May 3, 2018, Petitioner requested administrative law judge (ALJ) review of the March 26, 2018 reconsidered determination of Noridian Healthcare Solutions, the Medicare Administrative Contractor (MAC).  Request for Hearing (RFH).  The reconsidered determination upheld an initial determination by the MAC that the reactivation of Petitioner’s billing privileges was effective on January 23, 2018, a date after the date of the deactivation of Petitioner’s billing privileges on September 8, 2017.1   Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 1-5.  Petitioner

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complains that the gap in billing privileges from September 8, 2017 through January 22, 2018 (gap period), resulted in Petitioner not being paid for services rendered to Medicare-eligible beneficiaries during the gap period.

CMS filed a motion for summary judgment (CMS Br.) with CMS Ex. 1 on June 7, 2018.  Petitioner did not file his prehearing exchange as required by my Acknowledgment and Prehearing Order (Prehearing Order) issued on May 8, 2018.  I issued an Order to Show Cause (OSC) on July 13, 2018, giving Petitioner until July 23, 2018, to file his prehearing exchange and explain his failure to file timely.  Petitioner filed a response to the OSC on July 19, 2018.  Petitioner explained that he had no further documents to submit and requested that I proceed with the case.  CMS waived filing a reply brief on August 2, 2018.  Petitioner did not object to my consideration of CMS Ex. 1, which is admitted and considered as evidence. 

The material facts are not disputed.  On April 5, 2017, the MAC notified Petitioner at two separate addresses that his enrollment record needed to be revalidated by June 30, 2017.  CMS Ex. 1 at 24-27.  Both letters stated that, “[f]ailure to respond to this notice will result in a hold on your payments, and possible deactivation of your Medicare enrollment.”  CMS Ex. 1 at 24, 26.  On August 2, 2017, the MAC sent Petitioner letters notifying him that his revalidation was past due.  CMS Ex. 1 at 20-23.  After not receiving a response from Petitioner to either the revalidation notice or the subsequent past-due notice, the MAC notified Petitioner that it deactivated Petitioner’s billing privileges effective September 8, 2017.  CMS Ex. 1 at 18-19. 

There is no dispute that Petitioner submitted a revalidation application via the Medicare Provider Enrollment, Chain, and Ownership System (PECOS) received by the MAC on January 23, 2018.  CMS Ex. 1 at 10, 12.  The January 23, 2018 application was processed to approval by the MAC.  The MAC reactivated Petitioner’s billing privileges effective January 23, 2018, based on the application received on that date.  CMS Ex. 1 at 7-8, RFH at 1.  The MAC’s action resulted in a gap in Petitioner’s billing privileges from September 8, 2017 through January 22, 2018, during which period Petitioner was unable to obtain reimbursement from Medicare for services he delivered to Medicare eligible beneficiaries.  There is no dispute that Petitioner remained enrolled in Medicare during the gap period.  CMS Br. at 9. 

II.  Issues, Conclusions of Law, and Analysis

A.  Issues

Whether I have jurisdiction to review the reconsidered determination by CMS or a MAC of the effective date of reactivation of Medicare billing privileges, i.e., the right to file claims with and to receive payment from Medicare; and

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The effective date of reactivation.

B.  Conclusions of Law and Analysis

My conclusions of law are set forth in bold text followed by my analysis applying law and policy to the undisputed facts.

1.  There is authority for ALJ review in this case, but it is limited to the effective date of reactivation of Petitioner’s billing privileges, i.e., the date of reactivation of Petitioner’s right to submit claims to and receive payment from Medicare for care and services delivered to Medicare-eligible beneficiaries.

2.  Petitioner has no right to ALJ review of the determination of the MAC or CMS to deactivate Petitioner’s billing privileges.

This case involves a gap in Petitioner’s billing privileges that was created when the MAC deactivated Petitioner’s billing privileges, and then reactivated Petitioner’s billing privileges on a later date.  Petitioner’s real grievance is that CMS and the MAC declined to pay Petitioner for services rendered to Medicare eligible beneficiaries during the gap period, even though there is no dispute that Petitioner was enrolled in Medicare during the gap period.

The Secretary of the Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. pts. 424 and 4982 that specify review and appeal rights in provider and supplier enrollment cases.  Under 42 C.F.R. pt. 498, there is no right to ALJ review of a CMS or MAC determination to deactivate a provider’s or supplier’s billing privileges.  The relevant regulation concerning appeal rights provides only that the provider or supplier may submit a rebuttal to CMS or the MAC under 42 C.F.R. § 405.374 (opportunity for rebuttal required for suspension of payments, offset,

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or recoupment).  42 C.F.R. § 424.545(b).  I conclude Petitioner has no right to ALJ review of the MAC determination to deactivate Petitioner’s billing privileges. 

Although not raised by Petitioner in this case, I note that Petitioner has no right to ALJ review in this forum of the denial of payment of Petitioner’s claims during the gap period.  Medicare claim reimbursement is simply not subject to review by an ALJ in this forum.  Urology Grp. of NJ, LLC, DAB No. 2860 at 6-7 (2018).

Petitioner does have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioner’s billing privileges.  CMS or the MAC may deactivate the billing privileges of a provider or supplier for failure to do any of the following:

1.  Submit a claim for 12 consecutive months;

2.  Report a change in enrollment information within 90 days of the date of the change, except a change in ownership or control, which must be reported within 30 days; and

3.  Give CMS or the MAC complete and accurate information and all supporting documents within 90 calendar days of a request from CMS or the MAC to submit an enrollment application or certify the accuracy of its enrollment information.

42 C.F.R. § 424.540(a).  A provider or supplier deactivated for failure to submit a claim for 12 consecutive months may reactivate billing privileges by recertifying that all information on file with CMS is correct; providing any missing information; meeting all Medicare enrollment requirements; and being prepared to submit a valid claim.  42 C.F.R. § 424.540(b)(2).  When deactivation is based on failure to timely notify CMS or the MAC of a change of information or to timely respond to a request for information, a provider or supplier must complete and submit a new enrollment application to reactivate its billing privileges, unless CMS or the MAC permit the provider or supplier to recertify that its enrollment information on file is correct.  42 C.F.R. § 424.540(b)(1).  Deactivation of Medicare billing privileges is an action to protect the provider or supplier from misuse of its billing privileges and to protect the Medicare Trust funds from unnecessary overpayments.  42 C.F.R. § 424.540(c).

The Secretary has not specifically stated that a provider or supplier has a right to ALJ review of CMS or MAC determinations related to the reactivation of billing privileges.  42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5.  However, 42 C.F.R. § 498.3(b)(15) provides that “[t]he effective date of a Medicare provider agreement or supplier approval” are initial determinations subject to review by an ALJ.  The Board has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare as well as the effective date of the

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reactivation of billing privileges.  See, e.g., Victor Alvarez, M.D., DAB No. 2325 at 3-10 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Grp. of NJ, LLC, DAB No. 2860 at 6 (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation).  Applying the reasoning of the Board in Alvarez and Urology, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of reactivation of billing privileges.  Furthermore, the only determination of CMS or the MAC that is subject to my review in a provider and supplier enrollment case is the reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014).

3.  Summary judgment is appropriate.

I have concluded, based on the rationale of the Board in prior cases, that Petitioner has a right to ALJ review of the reconsidered determination of the effective date of reactivation of his right to file claims with and receive payment from Medicare.  I also conclude that there are no disputed issues of material fact related to the reactivation of Petitioner’s billing privileges that require a hearing in this case; CMS is entitled to judgment as a matter of law; and summary judgment is appropriate.

Petitioner is entitled to a hearing on the record before an ALJ under the Act.  Act §§ 205(b); 1866(h)(1), (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  However, when summary judgment is appropriate, no hearing is required.  The Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  I advised the parties in the Acknowledgement and Prehearing Order (Prehearing Order) that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Prehearing Order ¶¶ II.D. & G.  Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).

4.  The effective date of reactivation of Petitioner’s billing privileges is the date on which the MAC received the application that it processed to approval, and that date is January 23, 2018.

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5.  Current CMS policy requires a period of retrospective billing related to the reactivation of Medicare billing privileges.

The Secretary’s regulations do not specifically address how to determine an effective date for the “reactivation” of Medicare billing privileges.  42 C.F.R. pt. 424, subpt. P.3   However, CMS has addressed the determination of the effective date of reactivation by policy. 

CMS policies regarding deactivations and reactivations of billing privileges are published in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, ch. 15, § 15.27.1 (rev. 474, eff. Oct. 8, 2013).  MPIM § 15.27.1.2 (rev. 561, eff. Mar. 18, 2015), which was in effect at the time of the initial and reconsidered determinations, provided that the effective date of reactivation is the date the MAC received the reactivation application that the MAC processed to completion.4   In this case, there is no dispute that the MAC received Petitioner’s application via PECOS on January 23, 2018 (CMS Ex. 1 at 10, 12), and that application was processed to completion.

MPIM § 15.27.1.2 in effect at the time of the initial and reconsidered determinations did not specifically address retrospective billing.  However, effective March 12, 2019, CMS changed its policy and now requires that contractors grant retrospective billing privileges in accordance with MPIM § 15.17(B) when reactivating billing privileges of a provider or supplier described in that section.  MPIM ch. 15, §§ 15.27.1.2 (rev. 865, eff. Mar. 12, 2019).  CMS adopted this new policy while this case was pending ALJ review and before a final administrative decision has issued.  Based on the CMS language making retrospective billing mandatory in the situations described in MPIM § 15.17(B), I conclude it is appropriate to implement the current CMS policy in this case.  Generally, an agency must obey its own rules and policies, particularly when intended to be binding, and a rule or statement of policy should be given equal effect by all agency adjudicators.  Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. §§ 4:22, 5:68 (3d ed. 2019).  Petitioner is a physician and there is no dispute that he was enrolled in Medicare during the gap period and met all requirements for enrollment. 

Therefore, Petitioner is entitled to retrospective billing privileges for up to 30 days prior to the effective date of reactivation of billing privileges for services rendered to Medicare-eligible beneficiaries during that 30-day period.  MPIM § 15.17(B)(1).

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Applying the regulations in this case is straightforward.  There is no dispute the MAC deactivated Petitioner’s Medicare billing privileges on September 8, 2017.  There is also no dispute that on January 23, 2018, the MAC received Petitioner’s application to reactivate his Medicare billing privileges.  Accordingly, the effective date of reactivation may only be January 23, 2018.  The period for retrospective billing begins on December 24, 2017, 30 days prior to the effective date of reactivation.

Petitioner argues in his Request for Hearing that the clinic he worked for was in the process of transitioning to a new billing agent at the time the request for revalidation was received.  RFH at 1.  Petitioner states that he was unaware his enrollment application was not being revalidated in time for the June 30, 2017 deadline.  Furthermore, Petitioner argues that a “temporary person” noticed his enrollment record needed revalidation and submitted the wrong form.  RFH at 1.  Petitioner requested an effective date of September 8, 2017, which would effectively eliminate any gap in his billing privileges.  RFH at 1.  As already discussed, I have no authority to review the determination to deactivate Petitioner’s billing privileges.  42 C.F.R. § 424.545(b).  Petitioner’s arguments may be construed to be for equitable relief or for estoppel.  I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  The errors are undisputed but, as a matter of law they do not arise to the type of affirmative misconduct, such as fraud, that would trigger estoppel against the government.  Estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).  Petitioner’s arguments establish no basis for relief.

III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner’s billing privileges is January 23, 2018, with retrospective billing privileges beginning December 24, 2017.

1. The reconsidered determination incorrectly identifies the gap period as September 8, 2017 through January 23, 2018.  CMS Ex. 1 at 2.  Petitioner’s billing privileges were reactivated effective January 23, 2018.  CMS Ex. 1 at 7.  Therefore, the gap closed on January 22, 2018.
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2. Citations are to the October 1, 2016 revision of the Code of Federal Regulations (C.F.R.) that was in effect at the time of the initial determination, unless otherwise indicated.  An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018), that the applicable regulations are those in effect at the time of the initial determination.  However, the Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination.  Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014).
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3. The effective date for Medicare billing privileges is determined in accordance with 42 C.F.R. § 424.520.
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4. A subsequent revision, revision 865, effective March 12, 2019, did not change this policy stated by MPIM § 15.27.1.2.
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