June Walatkiewicz, LMSW and June A. Walatkiewicz, LMSW, ACSW, LMFT, PLLC, DAB CR5662 (2020)

DECISION

The effective date of reactivation of Petitioner’s billing privileges is May 16, 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 October 15, 2018, Petitioner requested administrative law judge (ALJ) review of the August 17, 2018 reconsidered determination of Wisconsin Physicians Service Government Health Administrators, a 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 May 16, 2018, a date after the deactivation date of March 31, 2018.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 2.  Petitioner complains that the gap in billing privileges from March 31, 2018 through May 15, 2018 (gap period), resulted in Petitioner not being paid for services rendered to Medicare-eligible beneficiaries during the gap period.  RFH at 3.  While Petitioner’s request for a hearing was pending, the MAC issued a revised reconsidered determination on November 20, 2018, in which the MAC changed the effective date of deactivation from March 31, 2018

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to April 9, 2018.  The effective date of reactivation of May 16, 2018, was not changed.  CMS Ex. 2 at 1.

CMS filed a motion for summary judgment and prehearing brief (CMS Br.) with CMS Exs. 1 and 2 on November 26, 2018.  Petitioner filed a brief in response (P. Br.) to the CMS motion with no exhibits on December 18, 2018.  CMS waived the right to file a reply brief on December 27, 2018.  Petitioner did not object to CMS Exs. 1 and 2, which are admitted and considered as evidence.

The material facts are not disputed. 

On and before March 31, 2018, Petitioner was enrolled in Medicare with billing privileges and she continued to be enrolled throughout the gap period.  CMS Br. at 9-13. 

On January 2, 2018, the MAC received a CMS-855I Medicare enrollment application from Petitioner to revalidate Petitioner’s Medicare enrollment.  CMS Ex. 1 at 5 (Julian date “2018002”), 8, 34, 68.  The MAC notified Petitioner by letter dated February 5, 2018, that it rejected Petitioner’s CMS-855I received by the MAC on January 2, 2018, because the MAC did not receive requested information.  CMS Ex. 1 at 69-70, 74.  The MAC notified Petitioner by a separate letter dated February 5, 2018, that it would stop Petitioner’s Medicare billing privileges effective March 31, 2018.  CMS Ex. 1 at 71-72.

The MAC received another CMS-855I from Petitioner on May 16, 2018.  CMS Ex. 1 at 76-104 (Julian date “2018136”), 128, 130.  The MAC issued an initial determination on June 22, 2018, approving Petitioner’s application received by the MAC on May 16, 2018.  However, the MAC declared that there was a gap in Petitioner’s billing privileges from March 31 through May 15, 2018.  CMS Ex. 1 at 133-35, 140-42. 

On July 2, 2018, Petitioner requested a reconsidered determination related to the gap period.  She argued that she missed emails from the MAC sent on January 5 and 22, and February 5, 2018, which later resulted in the rejection of the CMS-855I the MAC received on January 2, 2018.  CMS Ex. 1 at 137-39.  There is no dispute that the rejection of the application received January 2 resulted in the MAC’s deactivation of her billing privileges effective March 31, 2018.

The MAC issued a reconsidered determination on August 17, 2018, upholding a reactivation effective date of May 16, 2018, with a gap in billing privileges from March 31 through May 15, 2018.  CMS Ex. 1 at 1-4.  On November 20, 2018, the MAC issued a reopened and revised reconsidered determination that upheld the reactivation effective date of May 16, 2018, but changed the gap period to April 9 through May 15, 2018.  CMS Ex. 2.

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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

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.

3.  Petitioner has no right to ALJ review of the determination of the MAC or CMS to reject Petitioner’s application.

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 decline 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.  CMS Br. at 9.

For the following reasons, I conclude Petitioner has no right to ALJ review of the MAC determination to deactivate Petitioner’s billing privileges or the rejection of an application.  Petitioner also has no right to ALJ review in this forum of the denial of payment of Petitioner’s claims during the gap period.  Petitioner does have a right to ALJ review of any reconsidered determination of the effective date of the reactivation of Petitioner’s billing privileges.

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The Secretary of the Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. pt. 4241 that establish a process for enrolling providers and suppliers in Medicare.  Pursuant to the regulations, CMS or the MAC may deactivate the billing privileges of an enrolled 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).

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

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suspension of payments, offset, or recoupment).  42 C.F.R. § 424.545(b).  The regulations also specifically provide that there is no right to request review of a MAC or CMS determination to reject an enrollment application.  42 C.F.R. § 424.525(d).  I conclude Petitioner has no right to ALJ review of the MAC determination to deactivate Petitioner’s billing privileges.  I conclude Petitioner has no right to review of the MAC’s rejection of the CMS-855I it received from Petitioner on January 2, 2018.  I also conclude 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.

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 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 any determination on 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).  In this case it is the MAC’s November 20, 2018 revised reconsidered determination (CMS Ex. 2), which changed the effective date of deactivation from March 31, 2018 to April 9, 2018 but upheld an effective date of reactivation of May 16, 2018, that is subject to my review.  42 C.F.R. § 498.32(b)(1).

4.  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 her 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.

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Petitioner is entitled to a hearing on the record before an ALJ under the Social Security Act (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 Acknowledgment and Prehearing Order (Prehearing Order) that summary judgment is an available procedural device and that the law as it has developed under 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).

5.  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 May 16, 2018.

6.  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.2   However, CMS has addressed the determination of the effective date of reactivation by policy.

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CMS policies regarding deactivations and reactivations of billing privileges in effect at the time of the initial and reconsidered determinations in this case are in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, ch. 15, §§ 15.27.1.1 (deactivation) and 15.27.1.2 (reactivation) (rev. 561, eff. Mar. 18, 2015).3   MPIM § 15.27.1.2 provides that the effective date of reactivation is the date the MAC received the reactivation application that the MAC processed to completion.  In this case, the MAC received the application processed to completion on May 16, 2018.

The version of 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) (rev. 865, eff. Mar. 12, 2019) 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 was 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 licensed clinical social worker and there is no dispute that she 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). 

Applying the regulations in this case is straightforward.  There is no dispute the MAC deactivated Petitioner’s Medicare billing privileges effective March 31, 2018.  CMS Ex. 1 at 71-72.  The MAC subsequently changed the deactivation date to April 9, 2018, by its revised reconsidered determination dated November 20, 2018.  CMS Ex. 2.  There is also no dispute that the MAC received Petitioner’s application to reactivate her Medicare billing privileges on May 16, 2018.  CMS Ex. 1 at 76-104 (Julian date “2018136”), 128, 130; CMS Ex. 2 at 2; RFH at 4.  Accordingly, the effective date of reactivation may only be May 16, 2018.  Therefore, the gap period in this case is April 9, 2018 to May 15, 2018 with retrospective billing privileges for up to 30 days prior to the effective date of reactivation of billing privileges.

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Petitioner requests an earlier effective date for the reactivation of her billing privileges to eliminate the gap period and permit her to receive reimbursement for claims for care and services provided to Medicare beneficiaries during the gap period.  She argues that there was confusion about whether the MAC communicated by email, telephone, or mail.  Petitioner also points out that both she and her clients have suffered harm due to the MAC’s actions in this case due to interruption in her services and her inability to receive payment for claims for care and services during the gap period.  RFH; P. Br.  The MAC does not disagree it actually used an incorrect email address on one occasion.  CMS Ex. 2 at 2-3. 

I accept Petitioner’s assertions as true for purposes of summary judgment.  However, the facts asserted are not material to the determination I am required to make, which is the effective date of reactivation of Petitioner’s billing privileges.  Petitioner does not dispute the fact that the MAC received her reactivation application on May 16, 2018.  RFH at 4.  The date of receipt of the reactivation application approved by the MAC controls the determination of the effective date of reactivation.  Petitioner’s difficulty communicating with the MAC occurred prior to the rejection of the application received by the MAC on January 2, 2018.  Petitioner’s failure to respond to requests from the MAC was a basis for the deactivation of her billing privileges.  Neither the rejection of the application nor the deactivation of Petitioner’s billing privileges are subject to my review.  The only review of the decision to deactivate would be by the MAC if Petitioner submitted a rebuttal as authorized by 42 C.F.R. §§ 405.374 and 424.545(b).  The regulations provide no review of a decision to reject an application. 

Petitioner’s arguments of harm to herself and her patients may be construed as a plea for equitable relief or for estoppel.  I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  Furthermore, 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).  There is no evidence of affirmative misconduct by government agents. 

Petitioner’s arguments regarding her inability to obtain payment for services rendered to Medicare beneficiaries during the gap period may also be construed to be an argument that she was deprived of property without due process.  However, in Urology, the Board rejected a due process argument that the CMS action creating a gap in billing privileges resulted in an unlawful deprivation of property, that is, the ability to obtain payment for services rendered during the gap period, without due process.  DAB No. 2860.  The Board recognized it could not declare statutes or regulations unconstitutional and decline to follow them.  However, the Board noted it could consider a constitutional claim that challenges the manner a regulation is interpreted or applied in a particular case.  The Board found that the gap in billing privileges resulted from the plain language of the regulations that bound the Board.  The Board commented that the petitioner in that case

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should have been aware of the application of the regulations when applying to participate in Medicare.  The Board found the petitioner had failed to show a taking of Medicare payments in which the petitioner had a property right.  The Board commented that the creation of the gap was really the petitioner’s own fault.  Urology, DAB No. 2860 at 14-15.  The Board found that the petitioner was never deprived of its Medicare enrollment because it was not revoked and the petitioner was not excluded from participation in Medicare.  The Board stated that the petitioner was not challenging its loss of participation in Medicare but, rather, its inability to receive reimbursement for services the petitioner “chose to provide” to Medicare-eligible beneficiaries during the gap period after the petitioner had been advised its billing privileges were deactivated.  Id. at 15.  The Board reviewed various decisions of the federal courts and concluded the petitioner had no property interest in participation in the Medicare program.  Id. at 16.  The Board did not accept that there is a protectable property interest in payment for services rendered during the gap period by one enrolled in Medicare with billing privileges that were not revoked.  The Act and the Secretary’s regulations provide for no hearing prior to deactivation or a right to ALJ or Board review of the deactivation determination.  Like the Board, I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner’s billing privileges is May 16, 2018.

1. Citations are to the October 1, 2017 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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2. The effective date for Medicare billing privileges is determined in accordance with 42 C.F.R. § 424.520.  There is no dispute that Petitioner’s billing privileges were not revoked pursuant to 42 C.F.R. § 424.535(a).  Rather, Petitioner’s billing privileges were deactivated pursuant to 42 C.F.R. § 424.540 and then reactivated.  CMS Br. at 9-12.  Determination of a new effective date of billing privileges based on the reactivation causes the gap period.
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3. The current CMS policy is set forth in MPIM ch. 15 §§ 15.27.1.1 (rev. 904, eff. Dec. 31, 2019) and 15.27.1.2 (rev. 865, eff. Mar. 12, 2019) and provides for retrospective billing in accordance with MPIM ch. 15 § 15.17(B) for reactivations.
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