Mohammed Mansour, M.D., DAB CR5609 (2020)

DECISION

Mohammed Mansour, M.D. (Petitioner or Dr. Mansour), challenges the effective date of Medicare billing privileges for his private practice, assigned by National Government Services (NGS), a Centers for Medicare & Medicaid Services (CMS) administrative contractor.  The undisputed evidence shows that after the Provider Transaction Access Number (PTAN) for his private practice was terminated, Petitioner re-enrolled his private practice in the Medicare program on February 15, 2018.  For this reason, and as explained in greater detail below, I conclude that NGS correctly determined that the effective date of Petitioner’s billing privileges is February 15, 2018, with retrospective billing privileges beginning January 16, 2018.

I.  Background and Procedural History

Petitioner is a physician licensed to practice in New York, specializing in Gastroenterology.  CMS Exhibit (Ex.) 13 at 1.  In letters dated April 14, 2017, NGS notified Petitioner that he needed to revalidate his Medicare enrollment records.  CMS Ex. 2.  NGS mailed one letter to Petitioner’s mailing and special payments address, and the second letter to one of his practice locations, as reported in his enrollment record.  Id.;

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see also CMS Ex. 1.  The letters specifically stated that Petitioner needed to revalidate the record associated with PTAN 07J841 and his reassignment to Interfaith Professional Physician Services, P.C. (Interfaith).  CMS Ex. 2.  However, the letters also instructed, “[y]ou need to update or confirm all the information in your record, including your practice locations and reassignments.”  Id. at 1, 3 (emphasis added).Finally, the letters warned, “[f]ailure to respond to this notice will result in a hold on your payments, and possible deactivation of your Medicare enrollment.”  Id.

On May 26, 2017, NGS received a revalidation application (Form CMS-855I) from Petitioner.  CMS Ex. 3.  In Section 4C, Practice Location Information, Petitioner listed only the address for Interfaith and did not list any of his private practice locations.  Id. at 18.  Petitioner also listed a single contact person.  Id. at 24.  On June 14, 2017, NGS emailed a letter to the contact person listed on Petitioner’s application.  CMS Ex. 4; CMS Ex. 16 at 1.  The June 14, 2017 letter specifically asked whether Petitioner was still in private practice:

Please verify that the provider is still in private practice, as the information given in Section 4 to verify the private practice is the same as the information for the group reassignment.  If the provider is no longer in Private Practice [sic], please submit a cover letter stating we can terminate his PTAN with an effective date.  Or call to advise of changes.

CMS Ex. 4 at 3.  Also on June 14, 2017, an NGS staff member left a voicemail for Petitioner’s contact person requesting the same information.  CMS Ex. 16 at 1. 

On July 18, 2018, a representative from NGS spoke with Petitioner’s contact person by telephone.  CMS Ex. 16 at 1.  On this call, the contact person “advised that [Petitioner] is no longer in private practice and to Voluntary [sic] termination from private practice effective 7/17/2017.”  Id.  In a letter dated July 24, 2017, NGS notified Petitioner that his revalidation application pertaining to his reassignment to Interfaith was approved.  CMS Ex. 7.  The notice also advised that Petitioner’s “[v]oluntary termination from private practice” was effective as of July 17, 2017.  Id. at 1.

On November 20, 2017, NGS received a CMS-855I from Petitioner seeking to reactivate PTAN 07J841, update information, and add five practice locations.  CMS Ex. 10.  On January 8, 2018, NGS requested additional information from Petitioner’s three listed contact persons1 via email.  CMS Ex. 11.  By letter dated February 13, 2018, NGS rejected Petitioner’s November 20, 2017 application because Petitioner failed to respond NGS’s January 8, 2018 request for additional information.  CMS Ex. 12.  The rejection

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letter stated, “[i]f you would like to resubmit an application, you must complete a new Medicare enrollment application(s).”  Id. at 1.

On February 15, 2018, NGS received another CMS-855I application from Petitioner seeking to reactivate PTAN 07J841, update information, and add five practice locations.  CMS Ex. 13.  By letter dated April 3, 2018, NGS approved Petitioner’s application, effective February 15, 2018, with retrospective billing privileges beginning January 16, 2018.2   CMS Ex. 14 at 1.  Additionally, NGS provided Petitioner a new PTAN for his private practice, “A300190870.”  Id.

Petitioner requested reconsideration of the February 15, 2018 effective date determination.  CMS Ex. 15.  By letter dated June 6, 2018, NGS issued an unfavorable reconsidered determination upholding the February 15, 2018 effective date, with retrospective billing beginning January 16, 2018.3   DAB E-File Docket Entry 1a.4

Petitioner requested a hearing before an administrative law judge, and the case was assigned to me.  I issued an Acknowledgment and Pre-Hearing Order, dated August 1, 2018 (Pre-Hearing Order), which required each party to file a pre-hearing exchange consisting of a brief and any supporting documents.  Pre-Hearing Order ¶ 4.  CMS filed its brief (CMS Br.), which incorporated a motion for summary judgment, and twenty proposed exhibits (CMS Exs. 1-20), including the written direct testimony for one witness (CMS Ex. 19).  Petitioner filed a brief (P. Br.) in which he opposed CMS’s motion for summary judgment and cross-moved for summary judgment.  Petitioner did not request to cross-examine CMS’s proposed witness.  Nor did Petitioner object to the exhibits offered by CMS.  Therefore, in the absence of objection, I admit CMS Exs. 1-20 into the record.

Although Petitioner moves for summary judgment, he nevertheless asserts that there are “numerous issues of fact” at issue.  P. Br. at 1.  Petitioner filed a witness list indicating he intended to question four witnesses.  In response, CMS filed a document it styled “Respondent’s Opposition to Petitioner’s List of Witnesses” (CMS Opp.).  CMS argued

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that the expected testimony of Petitioner’s witnesses is irrelevant to any issue I may hear and decide.  CMS Opp.  CMS also pointed out that Petitioner did not offer the written direct testimony of the proposed witnesses and, accordingly, had failed to comply with my Pre-Hearing Order.  Id. at 6.

Petitioner never moved to subpoena any of his named witnesses.  Nevertheless, I may issue subpoenas on my own motion.  42 C.F.R. § 498.58(a).  I therefore construed CMS’s opposition as a motion to quash and permitted Petitioner the opportunity to respond.  The regulations permit subpoenas to be issued “if they are reasonably necessary for the full presentation of a case.”  Id.  Here, I find that it is not necessary to issue subpoenas because the proposed testimony of the witnesses is not material to any issue I may hear and decide.5   I therefore grant CMS’s motion to quash.  As I explain more fully below, the material facts in this case are not in dispute.  Based on the undisputed facts, CMS is entitled to judgment as a matter of law.  I therefore grant CMS’s motion for summary judgment and deny Petitioner’s cross-motion for summary judgment.

II. Issues

The issues in this case are:

Whether summary judgment is appropriate; and

Whether NGS, acting on behalf of CMS, properly established February 15, 2018, as the effective date of Petitioner’s enrollment in the Medicare program.

III. 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)).

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IV. Discussion

A. Applicable Legal Authority

The Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services . . .” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).

A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The regulations define “Enroll/Enrollment” as “the process that Medicare uses to establish eligibility to submit claims for Medicare-covered items and services . . . .”  42 C.F.R. § 424.502.  A provider or supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program.”  42 C.F.R. § 424.510(a).  CMS then establishes an effective date for billing privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may permit limited retrospective billing under 42 C.F.R. § 424.521.

To maintain Medicare billing privileges, providers and suppliers must revalidate their enrollment information at least every five years.  42 C.F.R. § 424.515.  However, CMS reserves the right to perform revalidations at any time.  42 C.F.R. § 424.515(d), (e).  When CMS notifies providers and suppliers that it is time to revalidate, the providers or suppliers must submit the appropriate enrollment application, accurate information, and supporting documentation within 60 calendar days of CMS’s notification.  42 C.F.R. § 424.515(a)(2).  CMS may deactivate an enrolled provider’s or supplier’s Medicare billing privileges if the enrollee fails to comply with revalidation requirements.  42 C.F.R. § 424.540(a)(3).  When CMS deactivates providers’ or suppliers’ 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).

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B. Findings of Fact and Conclusions of Law6

1. Summary judgment is appropriate because there is no dispute as to any material fact.

Summary judgment is appropriate if “the record shows that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (citations omitted).  The moving party must show that there are no genuine issues of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law.  Id.  If the moving party meets its initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial . . . .’”  Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).  “To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact — a fact that, if proven, would affect the outcome of the case under governing law.”  Senior Rehab., DAB No. 2300 at 3 (citations omitted).  To determine whether there are genuine issues of material fact for hearing, an administrative law judge must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  Id.

As I am required to do when ruling on motions for summary judgment, I accept as true Petitioner’s factual representations.  I therefore assume that Dr. Mansour did not authorize the Interfaith contact person to act on behalf of his private practice.  However, that fact is not material to any issue I may hear and decide.  Petitioner acknowledges that the PTAN for Dr. Mansour’s private practice was deactivated.  See P. Br. at 1.  Petitioner does not dispute that, subsequent to the deactivation, the only enrollment application that NGS processed to completion was the one NGS received on February 15, 2018.  These are the only facts material to establishing the effective date of Medicare enrollment and billing privileges for Dr. Mansour’s private practice.  Based on these facts, CMS is entitled to judgment as a matter of law.  Accordingly, summary judgment is appropriate.

2. On February 15, 2018, NGS received Dr. Mansour’s application to re-enroll his private practice in the Medicare program and processed that application to completion.

3. The effective date of reactivation of Medicare billing privileges for Dr. Mansour’s private practice is February 15, 2018.

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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 “[t]he date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d).  The “date of filing” is the date that the Medicare contractor “receives” a signed enrollment application that the Medicare contractor is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).

It is undisputed that NGS received a Form CMS-855I to reactivate Dr. Mansour’s billing privileges for his private practice on February 15, 2018.7   CMS Ex. 13.  It is also undisputed that NGS subsequently approved the application, assigning a new PTAN, A300190870.  CMS Ex. 14.  Accordingly, as required by regulation, the effective date of Dr. Mansour’s billing privileges for his private practice is February 15, 2018.  42 C.F.R. § 424.520(d).  As permitted by regulation, NGS authorized Petitioner to bill retrospectively from January 16, 2018.  42 C.F.R. § 424.521.

As I explain in the following sections of this decision, none of Petitioner’s arguments provide a basis for changing the effective date of billing privileges for his private practice.

4. I have no authority to consider Dr. Mansour’s arguments that NGS should not have deactivated the Medicare billing privileges of his private practice because deactivation of Medicare billing privileges is not reviewable by an administrative law judge.

Petitioner implicitly acknowledges that the Medicare billing privileges of his private practice were deactivated.  P. Br. at 1.  Furthermore, Petitioner does not dispute that an authorized contact person (for his Interfaith revalidation application) requested deactivation of his private practice PTAN.  See P. Br. at 4.  These admissions render most of Petitioner’s contentions irrelevant because the decision to deactivate a supplier’s Medicare billing privileges is not an appealable initial determination subject to review by an administrative law judge.  42 C.F.R. § 498.3(b); see also Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017); cf. James Shepard, M.D., DAB No. 2793 at 8 (2017) (providers and suppliers may not challenge indirectly an action for which the regulations prohibit direct administrative review).

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Despite this clear bar to review, Petitioner devotes the majority of his brief to arguing that NGS should not have deactivated the PTAN for Dr. Mansour’s private practice in July 2017.  While not required to do so, I explain why, even if I were to consider Petitioner’s arguments, I would find them without merit.  In so doing, I accept Petitioner’s factual representations as true, for purposes of summary judgment.

Petitioner argues that revalidation of his private practice PTAN was not due until October 2017, while NGS sent the revalidation notice to Interfaith in April 2017.  P. Br. at 2.  Petitioner characterizes NGS’s inquiries regarding the status of his private practice PTAN as mistaken or improper.  Id. at 2, 5.  I see nothing improper in NGS’s actions.  The regulations authorize CMS or its contractor to request revalidation at least every five years or at the discretion of CMS.  42 C.F.R. § 424.515(d).  It is not a mistake, but a lawful exercise of CMS’s discretion to collect all revalidation information for suppliers with multiple payment arrangements at one time, rather than piecemeal.

In the Medicare Program Integrity Manual (MPIM), Ch. 15, § 15.29.4.1,8 CMS instructs its contractors as follows:

In scenarios where a revalidation response is received for a single reassignment within an enrollment record that has multiple reassignments and/or employment arrangements, the [administrative contractor] shall develop to the contact person (or the individual provider if a contact is not listed), for the remaining reassignments and/or employment arrangements not accounted for.

Moreover, the revalidation letter, addressed to Dr. Mansour, explained that he would be required “to update or confirm all the information in your record, including your practice locations and reassignments.”  CMS Ex. 2 (emphasis added).  Dr. Mansour therefore had, at a minimum, constructive notice that NGS required him to update all his practice locations concurrent with the Interfaith revalidation.  Moreover, even if the revalidation letter had not explained the requirement, Petitioner, as a Medicare supplier, is expected to be familiar with Medicare rules and to abide by them.  See, e.g., Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 8 (2011) (“Medicare suppliers are presumed to have constructive notice of the statutes and regulations that govern their participation as a matter of law.”); Realhab, Inc., DAB CR2763 at 12-13 (2013), aff’d, DAB No. 2542

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(2013) (suppliers agree, as a condition of Medicare participation, to abide by all Medicare statutes, regulations, and program instructions).

Petitioner does not dispute that the person to whom he delegated responsibility for the Interfaith application authorized NGS to deactivate the PTAN for Dr. Mansour’s private practice.  Nevertheless, Petitioner argues that the contact person for Interfaith “was not authorized to discuss any matter regarding Dr. Mansour’s private practice PTAN . . . .”  P. Br. at 4.  While I accept that Dr. Mansour did not authorize the Interfaith contact person to respond to NGS’s inquiry as to whether he was still in private practice, he nevertheless chose to list her as a contact person, thus giving her apparent authority to act regarding his revalidation application.9   See CMS Ex. 13 at 7.

Petitioner’s attempt to blame an employee or contractor for transmitting inaccurate information to NGS is analogous to cases in which suppliers have attempted to evade the consequences of improper billing by blaming the company that submitted claims on the suppliers’ behalf.  In such cases, appellate panels of the DAB have stated unequivocally that the supplier is ultimately responsible for the claims submitted.  See, e.g., Louis J. Gaefke, D.P.M., DAB No. 2554 at 5-6 (2013).  I see no reason why that analysis should not apply equally to revalidation.

Just as suppliers are responsible for the accuracy of claims submitted by third parties on their behalf, so too, suppliers are responsible for the accuracy of information submitted as part of the revalidation process, even if submitted by employees or contractors.  Indeed, each time a supplier submits a Medicare enrollment application, the supplier ‒ not a contact person ‒ must sign a certification statement attesting that the contents of the application are “true, correct, and complete.”  See CMS Ex. 3 at 27-28; see also 42 C.F.R. § 424.510(d)(3); Sandra E. Johnson, CRNA, DAB No. 2708 at 14-15 (2016).  This underscores the fact that suppliers themselves are responsible for the content of their Medicare enrollment applications, even if filled out by an employee or contractor hired to assist with credentialing.  Thus, Dr. Mansour is ultimately responsible for the actions of the contact person who authorized NGS to deactivate his private practice PTAN, even if she did so in error.

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5. I may not change the effective date of enrollment based on equitable considerations.

Finally, to the extent Petitioner argues that deactivation of his private practice PTAN was unfair and, accordingly, the February 15, 2018 effective date is inequitable under the circumstances presented, I may not set aside CMS’s lawful exercise of its discretion based on principles of equity.  See, e.g., Cent. Kansas Cancer Inst., DAB No. 2749 at 10 (2016); see also James Shepard, M.D., DAB No. 2793 at 9 (2017).

V. Conclusion

For the reasons explained above, I affirm that the effective date of Medicare enrollment for Dr. Mansour’s private practice is February 15, 2018, with retrospective billing privileges beginning January 16, 2018.  CMS’s motion for summary judgment is granted.  Petitioner’s cross-motion for summary judgment is denied.

1. At the time Petitioner submitted this application, he listed himself and two additional contact persons. CMS Ex. 10 at 7-8.
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2. NGS erroneously characterized Petitioner’s effective date of enrollment and reassignment of billing privileges as January 16, 2018.  In fact, January 16, 2018, is Petitioner’s retrospective billing date.  See 42 C.F.R. §§ 424.520(d), 424.521(a)(1).
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3. NGS again erroneously characterized Petitioner’s effective date as January 16, 2018.  February 15, 2018, is Petitioner’s effective date, and, as noted previously, January 16, 2018, is Petitioner’s retrospective billing date.  See 42 C.F.R. §§ 424.520(d), 424.521(a)(1).
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4. Neither party offered the reconsidered determination as an exhibit. I therefore cite to the copy Petitioner submitted with his hearing request.
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5. Petitioner’s proposed witnesses consist of unnamed NGS and CMS employees and two named employees of the credentialing company that prepared the Interfaith revalidation application on Dr. Mansour’s behalf. The only purpose for the testimony of these witnesses would be to describe the communications between NGS and the Interfaith contact person(s) and to establish that an Interfaith contact person erroneously communicated to NGS that Dr. Mansour was no longer in private practice. However, as I discuss in Section IV.B.4, below, even if an Interfaith contact person mistakenly requested that NGS deactivate the PTAN for Dr. Mansour’s private practice, this would not lead to a different outcome. Therefore, the witnesses’ testimony is not reasonably necessary for the full presentation of Petitioner’s case. 42 C.F.R. § 498.58(a).
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6. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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7. Petitioner also submitted an application that NGS received on November 20, 2017.  CMS Ex. 10.  NGS rejected that application.  CMS Ex. 12.  Petitioner has not argued that the effective date of Medicare enrollment for Dr. Mansour’s private practice should be calculated based on the November 2017 application.  In any event, appellate panels of the DAB have held that a rejected enrollment application cannot be the basis for an effective date.  James Shepard, M.D., DAB No. 2793 at 7 (2017); see also Lindsay Zamis, M.D., & Lindsay Zamis, M.D., a Professional Corporation, DAB No. 2802 at 11 (2017).
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8. In light of the Supreme Court’s recent decision in Azar v. Allina Health Services, 139 S. Ct. 1804 (2019), it is unclear what weight, if any, I should give to the MPIM instructions.  In any event, the regulation itself (42 C.F.R. § 424.515(d)) authorizes CMS to request revalidation at CMS’s discretion, so the MPIM provision seems fully consistent with that authority.
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9. It was at all times within Dr. Mansour’s control whether or not to designate a contact person to respond to inquiries regarding his application.  As the instructions in Form CMS-855I explain, “[i]f no one is listed below [as a contact person], we will contact you directly.”  See CMS Ex. 3 at 24.  Having chosen to designate a contact person, Dr. Mansour cannot now disavow that choice.  Cf. Jackson Manor Health Care, DAB CR545 at 7 (1998) (corporation may not avoid the consequences of the avoidable failure of one of its employees to discharge a duty).
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