April Kientz, APRN-C, DAB CR5649 (2020)

DECISION

I affirm the determination of Wisconsin Physicians Service Insurance Corporation (WPS), a contractor for the Centers for Medicare & Medicaid Services (CMS), that January 29, 2019, is the effective date for revalidation/reactivation of Petitioner’s Medicare enrollment and billing privileges and December 30, 2018, is the beginning of Petitioner’s retrospective billing period.

I.  Procedural History

Petitioner was originally enrolled in the Medicare program as a nurse practitioner on November 20, 2012.  CMS Ex. 12 at 1.  On May 2, 2019, WPS issued a reconsidered determination concerning the revalidation/ reactivation effective date of Petitioner’s Medicare billing privileges.  CMS Ex. 1.  Petitioner timely requested a hearing to dispute the reconsidered determination.  On July 3, 2019, the Civil Remedies Division (CRD) acknowledged the hearing request and issued my Standing Prehearing Order.  In response, CMS moved for summary judgment and filed a brief in support of the motion

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(CMS Br.) and 13 exhibits (CMS Exs. 1-13).1   On August 29, 2019, Petitioner submitted her brief in opposition (P. Br.), accompanied by six exhibits (P. Exs. 1-6).  CMS filed a reply on September 13, 2019 (CMS Reply), accompanied by CMS Rebuttal Ex. 1. 

II.  Decision on the Written Record

I admit all of the proposed exhibits into the record without objection.  See Standing Prehearing Order ¶ 10; CRD Procedures § 14(e). 

The Standing Prehearing Order advised the parties to submit written direct testimony for each witness and that an in-person hearing would only be held if a party requested to cross-examine a witness.  Standing Prehearing Order ¶¶ 11-13; CRD Procedures §§ 16(b), 19(b).  Petitioner offered written direct testimony for one witness and listed a second witness without submitting her written direct testimony.  CMS did not request to cross-examine the witness for whom written direct was submitted.  Therefore, I issue this decision based on the written record.  Standing Prehearing Order ¶ 14; CRD Procedures § 19(d).

III.  Issue

Whether CMS had a legitimate basis to assign January 29, 2019, as the effective date for the revalidation/reactivation of Petitioner’s Medicare enrollment and billing privileges.

IV.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R §§ 498.3(b)(15), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).

V.  Findings of Fact and Conclusions of Law

1. In a May 30, 2018 notice, WPS notified Petitioner that she needed to revalidate her Medicare enrollment.  The notice stated that Petitioner needed to submit, by August 31, 2018, a CMS-855 enrollment application, either by paper or electronically through the Provider Enrollment, Chain, and Ownership System (PECOS).  The notice warned that a failure to respond to the notice could result in deactivation of Medicare enrollment.  It further explained that during deactivation, Medicare will not pay for the services rendered and that this will cause “a gap” in reimbursement.  CMS Ex. 2.

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2. In a September 5, 2018 notice, WPS informed Petitioner that she had not provided a response to WPS’s revalidation notice.  The notice stated that Petitioner needed to revalidate her enrollment by submitting a CMS-855 application.  WPS again warned of potential deactivation and a gap in reimbursement.  CMS Ex. 3.
3. In a November 7, 2018 notice, WPS informed Petitioner that WPS deactivated her Medicare billing privileges as of November 6, 2018, for failing to revalidate her enrollment record.  CMS Ex. 4.
4. On November 29, 2018, WPS received a revalidation/reactivation enrollment application from Petitioner filed through PECOS.  CMS Ex. 6; P. Ex. 1 ¶ 5.
5. In a December 7, 2018 email, WPS requested that Petitioner submit a CMS-855R reassignment enrollment application.  The email stated that a failure to provide the completed CMS-855R within 30 days would result in deactivation of Petitioner’s Medicare billing privileges.  CMS Ex. 7; P. Ex. 1 ¶ 6.
6. On December 13, 2018, Petitioner submitted a CMS-855R reassignment enrollment application to WPS.  CMS Ex. 8; P. Ex. 1 ¶ 7.
7. In a December 26, 2018 notice, WPS requested additional information regarding the November 19, 2018 revalidation enrollment application.  The notice warned that Petitioner’s application would be rejected if Petitioner did not furnish the additional information, including “a newly-completed and dated CMS 855R Authorization Statement, Sections 6A and 6B” within 30 days.  CMS Ex. 9; P. Ex. 1 ¶ 9.
8. On January 25, 2019, WPS rejected Petitioner’s revalidation/reactivation enrollment application received on November 29, 2018, because Petitioner did not complete the CMS-855R reassignment enrollment application.  WPS indicated that Petitioner could file a new enrollment application.  CMS Ex. 10; P. Ex. 1 ¶ 10.
9. On January 29, 2019, WPS received a revalidation/reactivation enrollment application from Petitioner filed through PECOS.  CMS Ex. 11; P. Ex. 1 ¶ 14.
10. In a January 30, 2019 notice, WPS informed Petitioner that WPS deactivated her Medicare billing privileges as of November 6, 2018, due to inactivity.  CMS Ex. 5.
11. On February 6, 2019, and February 19, 2019, WPS issued letters acknowledging receipt of Petitioner’s revalidation/reactivation enrollment application and requesting additional information, with which Petitioner complied.  P. Ex. 1 ¶¶ 15-17; P. Exs. 5-6.

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12. On February 25, 2019, WPS issued an initial determination approving Petitioner’s revalidation/reactivation enrollment application that WPS received on January 29, 2019.  The initial determination stated that there was a gap in billing privileges from November 6, 2018 through January 28, 2019.  CMS Ex. 12; P. Ex. 1 ¶ 18.
13. In a letter dated April 5, 2019, Petitioner requested that WPS reconsider the initial determination.  CMS Ex. 13.
14. In a May 2, 2019 reconsidered determination, WPS upheld its previous conclusion that the deactivation was appropriate.  However, WPS permitted a 30-day retrospective billing period and modified the gap in billing privileges to November 6, 2018, through December 29, 2018.  CMS Ex. 1.
15. Based on the foregoing factual findings, I conclude that the effective date of the reactivation/revalidation of Petitioner’s Medicare billing privileges is January 29, 2019, because that is the date that WPS received a revalidation/reactivation enrollment application that was subsequently approved.  42 C.F.R. § 424.520(d).
16. I also conclude that WPS permissibly set a retrospective Medicare billing period to begin on December 30, 2018, because that date is within 30 days from the date WPS received Petitioner’s revalidation/reactivation enrollment application that WPS subsequently approved.  42 C.F.R. §§ 424.520(d) and 424.521(a).

VI.  Analysis

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers.  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.  42 U.S.C. § 1395x(d).  Nurse practitioners are suppliers.  See 42 U.S.C. § 1395x(aa)(5); 42 C.F.R. § 410.75.

A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  “Enroll/Enrollment means the process that Medicare uses to establish eligibility to submit claims for Medicare-covered items and services . . . .”  42 C.F.R. § 424.502.  A supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  Once the . . . supplier successfully completes the enrollment process . . . CMS enrolls the . . . supplier into the Medicare program.”  42 C.F.R. § 424.510(a).  CMS then establishes an effective date for billing privileges under the requirements in 42 C.F.R. § 424.520(d) and may permit a 30-day retrospective billing period under 42 C.F.R. § 424.521(a)(1).

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To maintain Medicare billing privileges, suppliers must revalidate their enrollment information at least every five years; however, CMS reserves the right to require revalidation at any time.  42 C.F.R. § 424.515.  When CMS notifies suppliers that it is time to revalidate, the suppliers must submit the appropriate enrollment application, accurate information, and supporting documents within 60 calendar days of CMS’s notification.  42 C.F.R. § 424.515(a)(2).

If a supplier’s enrollment application is missing information, CMS may reject the enrollment application if the supplier does not supply the missing information within 30 days from the date the contractor requested the missing information.  42 C.F.R. § 424.525(a)(1).

CMS can deactivate an enrolled supplier’s Medicare billing privileges if the supplier fails to comply with revalidation requirements.  42 C.F.R. § 424.540(a)(3).  When CMS deactivates a supplier’s 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).  If CMS deactivates a supplier’s billing privileges due to an untimely response to a revalidation request, the enrolled supplier may apply for CMS to reactivate its Medicare billing privileges by completing a new enrollment application or, if deemed appropriate, recertifying its enrollment information that is on file.  42 C.F.R. § 424.540(b)(1).

In the present case, there is no dispute that WPS received Petitioner’s revalidation/ reactivation enrollment application, which WPS later approved, on January 29, 2019.  CMS Ex. 11 at 1; CMS Ex. 12 at 1; P. Ex. 1 ¶¶ 14, 18.  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” of a Medicare enrollment application that is subsequently approved or the date 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” an 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 7-8 (2016).  The Departmental Appeals Board has applied these effective date provisions to reactivation cases, and its decisions doing so are consistent with § 424.555(b)’s prohibition on reimbursing services while a provider or supplier is deactivated.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6-7 (2019).  Therefore, WPS correctly established January 29, 2019, as the effective date for Petitioner’s billing privileges and for the reassignment of her Medicare benefits.  Further, on reconsideration, WPS legitimately exercised its authority to permit a 30-day retrospective billing period and revised the end of the gap in billing privileges from January 29, 2019, to December 30, 2018.

Petitioner states that WPS mailed revalidation notices dated May 30, 2018, to 2735 Pembrook Pl, Manhattan, KS 66502 and 1133 College Avenue Suite E230, Manhattan,

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KS 66502, and the revalidation notice to the 1133 College Avenue address was returned as undeliverable.  P. Br. at 8.  Petitioner also argues that a second revalidation notice dated September 5, 2018, which was sent to the 1133 College Avenue address, was also returned as undeliverable.  P. Br. at 8.  Petitioner contends that WPS did not attempt to send the notices to the correct address.  P. Br. at 9.  However, WPS sent a copy of the May 30, 2018 revalidation notice to the 2735 Pembrook Place address, which was the correspondence address in the revalidation/reactivation enrollment application Petitioner submitted and WPS subsequently approved, as well as the address WPS later used for Petitioner’s contact person, payment address, verified place of business, and practice location.  CMS Reply at 2; CMS Ex. 2 at 1-2; CMS Ex. 6 at 2; CMS Ex. 8 at 4; CMS Ex. 11 at 2; CMS Ex. 12.  WPS sent the letters to the only two addresses in Petitioner’s PECOS file.  CMS Reply at 2; CMS Rebuttal Ex. 1 at 2.

In any event, Petitioner’s arguments are related to the deactivation of Petitioner’s billing privileges.  The decision to deactivate billing privileges is not an “initial determination” that can be disputed at a hearing, but is subject to a separate review process involving the submission of a rebuttal to CMS.  See 42 C.F.R. §§ 424.545(b), 498.3(b); see also Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017), aff’d sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).  I only have authority to decide whether the date of revalidation/reactivation of Petitioner’s enrollment and billing privileges is correct based on the law and facts applicable to this case.  Ark. Health Grp., DAB No. 2929 at 12 (2019) (“Where, as here, the contractor deactivated Petitioner’s billing privileges, the issue for us (and the [administrative law judge]) is the effective date of reactivation.”).

Petitioner also asserts that she was unable to file her corrected application within the 30 days provided by the December 26, 2018 development request letter because WPS staff provided her office with inaccurate information.  P. Br. at 9-10; P. Ex. 1 ¶¶ 11, 19.  Specifically, Petitioner argues that, in a January 25, 2019 phone call, WPS provided her office manager with misinformation about Advanced Dermatology’s (her practice group’s) authorized official.  P. Br. at 9-10; P. Ex. 1 ¶ 11.  Relying on the information from the WPS representative, Petitioner’s office manager and another staff member registered for a new account in PECOS and requested to be authorized officials for Advanced Dermatology.  P. Br. at 10.  Once the request was approved on January 29, 2019, Petitioner submitted a corrected revalidation application.  P. Br. at 10; P. Ex. 1 ¶ 17.

Petitioner’s arguments are related to the rejection of Petitioner’s first revalidation application.  However, the decision to reject an application is not subject to further appeal.  42 C.F.R. § 424.525(d).  Further, Petitioner’s arguments also amount to a request for equitable relief.  I do not have authority to provide equitable relief based on principles of fairness and thus cannot change Petitioner’s effective date for that reason.  US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the [administrative law judge] nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who

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does not meet statutory or regulatory requirements.”).  For the reasons already explained above, I conclude that Petitioner’s revalidation/reactivation date is correct.

VII.  Conclusion

I affirm the CMS contractor’s determination that Petitioner’s effective date for revalidation/reactivation of Medicare enrollment and billing privileges is January 29, 2019.  Further, the CMS contractor legitimately set December 30, 2018, as the beginning of a retrospective period of billing.

1. Although CMS uploaded each of its proposed exhibits with a file name that included an exhibit number, CMS failed to mark and paginate its exhibits.  See Standing Prehearing Order ¶ 8; CRD Procedures § 14(c).  I cite the exhibit number indicated in the file name.
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