Nilesh M. Patel, MD, PC, DAB CR5673 (2020)

DECISION

The effective date of reactivation of Petitioner's billing privileges is July 17, 2018.  Petitioner is entitled to a period of retrospective billing beginning 30 days prior to the effective date of reactivation of Petitioner's billing privileges.

I.  Background and Findings of Fact

On December 7, 2018, Petitioner requested administrative law judge (ALJ) review of the October 31, 2018 reconsidered determination of Wisconsin Physicians Service Government Health Administrators, a Medicare Administrative Contractor (MAC).  Request for Hearing (RFH).  The reconsidered determination concluded that the reactivation of Petitioner's billing privileges was effective on July 17, 2018, a date after the date of the deactivation of Petitioner's billing privileges on May 25, 2018, with a gap in billing privileges from May 25 through July 16, 2018 (gap period).  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 1-4.  Petitioner complains that the gap in billing privileges from May 25, 2018 through July 16, 2018, resulted in Petitioner not being paid for services rendered to Medicare-eligible beneficiaries during the gap period.

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CMS filed a motion for summary judgment (CMS Br.) with CMS Ex. 1 on January 11, 2019.  On March 4, 2019, Petitioner filed a document that I treat as a response in opposition to the CMS motion for summary judgment (P. Br.).  Petitioner's response included Petitioner's request for reconsideration filed with the MAC and the 28 attachments to that request, which were also filed with Petitioner's request for hearing.  I treat the attachments to Petitioner's response as Petitioner's exhibit (P. Ex.) 1.1   CMS waived filing a reply brief on March 8, 2019.  Petitioner did not object to my consideration of CMS Ex. 1, which is admitted and considered as evidence.  CMS did not object to my consideration of the documents attached to Petitioner's response and P. Ex. 1 is admitted as evidence.

The material facts are not disputed.

On and before May 25, 2018, Petitioner was enrolled in Medicare with billing privileges and he remained enrolled during the gap period.  Petitioner's billing privileges were not revoked during the gap period.  CMS Ex. 1 at 7-9, 34, 49, 65, 68; CMS Br. at 5-8.

In a letter dated February 6, 2018, the MAC informed Petitioner that he needed to revalidate his Medicare enrollment record by April 30, 2018, or the MAC might stop his Medicare billing privileges.  CMS Ex. 1 at 7-8.  Petitioner filed a revalidation application (CMS-855B) received by the MAC on April 23, 2018, using the online CMS Provider Enrollment, Chain, and Ownership System (PECOS).  CMS Ex. 1 at 9-16.  On May 29, 2018, the MAC advised Petitioner that it rejected Petitioner's April 23, 2018 application.  CMS Ex. 1 at 30-31.  The MAC, by a separate letter dated May 29, 2018, informed Petitioner that his billing privileges were stopped effective May 25, 2018, because he had not revalidated or failed to provide requested information.  CMS Ex. 1 at 32-33.

Petitioner submitted a second revalidation application that was received by the MAC on June 1, 2018.  CMS Ex. 1 at 34-44.  On July 9, 2018, the MAC rejected Petitioner's second revalidation application for failure to respond to the MAC's request for additional information.  CMS Ex. 1 at 47-48.

Petitioner submitted a third revalidation application that was received by the MAC on July 17, 2018.  CMS Ex. 1 at 49-59.  On August 6, 2018, the MAC notified Petitioner that his revalidation application was approved but that he would have a gap in billing privileges from May 25 through July 17, 2018.  CMS Ex. 1 at 65-67.

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In the October 31, 2018 reconsidered determination, the MAC noted that the August 6, 2018 initial determination incorrectly identified the gap period as May 25, 2018 through July 17, 2018, and found that the correct gap period was May 25, 2018 through July 16, 2018.  CMS Ex. 1 at 4.  Therefore, on November 1, 2018, the MAC issued a corrected letter indicating that the MAC reactivated Petitioner's billing privileges effective July 17, 2018, based on the CMS-855B received on that date.  CMS Ex. 1 at 68-70.  The MAC's action resulted in a gap in Petitioner's billing privileges from May 25, 2018 through July 16, 2018, during which period Petitioner was unable to obtain reimbursement from Medicare for services he delivered to Medicare-eligible beneficiaries.

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 applications.

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.

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For the following reasons, I conclude Petitioner has no right to ALJ review of the MAC determinations to reject Petitioner's applications and to deactivate Petitioner's billing privileges.  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 the reconsidered determination of the effective date of the reactivation of Petitioner's billing privileges.

The Secretary of the Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. pt. 4242 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 permits the provider or supplier to

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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 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 or reject his enrollment applications.  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" is an initial determination 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, 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., DAB No. 2573 at 7 (2014).

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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 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 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 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).

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 July 17, 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.3

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

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).4   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 July 17, 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 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 licensed physician and there is no dispute that he was enrolled in Medicare with billing privileges 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 May 25, 2018.  There is also no dispute that on July 17, 2018, the MAC received Petitioner's application to reactivate his Medicare billing privileges that the MAC processed to completion.  Accordingly, the effective date of reactivation may only be July 17, 2018.  The period for retrospective billing begins 30 days prior to the effective date of reactivation.

Petitioner argues that he timely responded to all requests for information and made every attempt to rectify the situation.  He also argues that his revalidation application was not due until April 30, 2018, and it was filed on April 23, 2018.  P. Br. at 1.  Even if I accept Petitioner's assertions as true, they are not material to the determination I must make because they have no impact on the only issue before me, that is, the effective date of reactivation.  Petitioner's assertions are related to the deactivation of his billing privileges and the rejection of his applications prior to the one filed on July 17, 2018.  I have no authority to review the determinations to deactivate Petitioner's billing privileges or reject his applications.  42 C.F.R. §§ 424.525(d), 424.545(b).  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.  ALJ review is limited to determination of the effective date of the reactivation of Petitioner's billing privileges.  In this case, Petitioner does not dispute that July 17, 2018, was the date the MAC received the application it processed to approval.  The date of receipt of the reactivation application by the MAC controls.  Thus, the effective date of reactivation of Petitioner's billing privileges is July 17, 2018.

Finally, Petitioner argues that the gap period was a harsh penalty for a simple clerical error.  P. Br. at 1.  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).  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.

Petitioner's arguments regarding his inability to obtain payment for services rendered to Medicare beneficiaries during the gap period may also be construed to be an argument that he 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.  Urology, 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 in which a regulation is interpreted or applied in a particular case.  The Board found that the gap in billing privileges resulted from the plain

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language of the regulations that bound the Board.  The Board commented that the petitioner in that case 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.  Id. 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 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 pursuant to the due process provided by the Secretary's regulations.  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 July 17, 2018.

1. The documents are filed at Departmental Appeals Board Electronic Filing System #8.  Page citations to P. Ex. 1 are to the document page counter number.
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2. 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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3. 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 5-8.  Determination of a new effective date of billing privileges based on the reactivation causes the gap period.
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4. 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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