Fakhar Ijaz, M.D., DAB CR5666 (2020)

DECISION

Petitioner, Fakhar Ijaz, M.D., is an Arkansas physician, specializing in nephrology, who participates in the Medicare program as a supplier of services.  After his Medicare billing privileges were deactivated, he applied to reenroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted the application, effective August 15, 2017.  Petitioner now challenges that effective date.

Because Petitioner filed his subsequently-approved reenrollment application on August 15, 2017, I find that August 15 is the correct effective date for his 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 October 9, 2017, the Medicare contractor, Novitas Solutions, advised Petitioner that it approved his revalidated Medicare enrollment application.  CMS Ex. 4.  The letter does not mention the effective date of the revalidation or indicate that it

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resulted in a coverage gap.  Petitioner, nevertheless, understood that the revalidation resulted in a gap in coverage and requested reconsideration.  CMS Ex. 3. 

In a reconsidered determination, dated January 22, 2018, a contractor hearing specialist determined that August 15, 2017, was the correct effective date because that was the date Petitioner Ijaz filed a revalidation application that was subsequently processed and approved.  As a result, Petitioner faced a gap in coverage from July 12 through August 14, 2017.  CMS Ex. 1. 

Petitioner appealed.  CMS has moved for summary judgment, which Petitioner opposes.  Because no material facts are in dispute, and CMS is entitled to judgment as a matter of law, I grant CMS’s motion.  Bartley Healthcare Nursing and Rehab., DAB No. 2539 at 3 (2013), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein.

CMS submits its motion and brief (CMS Br.) with twelve exhibits (CMS Exs. 1-12).  Petitioner submits his opposition brief (P. Br.) with seven exhibits (P. Exs. 1-7).1

Discussion

Petitioner filed his subsequently-approved reenrollment application on August 15, 2017, and his Medicare reenrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).2

Enrollment.  Petitioner Ijaz 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 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-

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approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.3   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.  For a physician, the effective date for 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 his billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of his 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 his 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 his enrollment information, CMS may deactivate his billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3); 424.555(b).  To reactivate his 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 March 10, 2017, the contractor directed Petitioner Ijaz to revalidate his Medicare enrollment by updating or confirming the information in his record.  The letter warned that Petitioner had to revalidate by May 31, 2017, or risk his Medicare enrollment being deactivated; the letter also explained that, during the period of deactivation, Medicare would not pay for the services rendered, which would cause a gap in reimbursement.  CMS Ex. 10.

The parties agree that Petitioner timely submitted a revalidation application (CMS-855I) and that, on June 3, 2017, the contractor notified him that he needed to supplement that

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application within 30 days.  CMS Exs. 8, 9.  The parties disagree on whether Petitioner supplemented his revalidation application as required – a question that I may not review.  In any event, the contractor determined that he did not supplement as instructed, and, by letter dated July 12, 2017, advised him that his Medicare billing privileges were stopped, effective July 12, 2017.  The letter also explained how he could reactivate his enrollment.  CMS Ex. 7.

On August 15, 2017, Petitioner filed the required applications (CMS forms 855R and 855I), which the contractor subsequently approved.  CMS Exs. 4, 5, 6, 12; P. Br. at 2.4  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved reenrollment applications – August 15, 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 complains that he properly completed his revalidation application prior to July 12, 2017, and argues that the contractor’s negligence in processing the documents he submitted should not cost him a month’s worth of Medicare payments.  Regardless of the merits of Petitioner’s position, I have no authority to review a deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9.  Petitioner also requests that I grant him retrospective billing up to 30 days prior to his effective date of re-enrollment.  However, nothing in the regulations gives me the authority to review CMS’s determinations regarding retrospective billing.  Nor may I grant him an earlier effective date based on any equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on August 15, 2017, CMS properly granted his Medicare reenrollment effective that date.

1. CMS has objected to one of Petitioner’s witnesses and to my admitting some of Petitioner’s exhibits.  Because I decide this case on summary judgment, I need not address the issue.  Sunsites Pearce Fire Dist., DAB No. 2926 at 12 n.11 (2019).
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2. I make this one finding of fact/conclusion of law.
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3. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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4. The top of each page of the form CMS-855I application (CMS Ex. 6) is stamped with a number beginning with “170815.”  The first two digits indicate the year in which the contractor received the application, 2017, and the subsequent four digits indicate the month and day of receipt (08/15), or August 15.
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