Stephen Kieselbach, D.C., DAB CR5734 (2020)

DECISION

Petitioner, Stephen Kieselbach, D.C., is a chiropractor, practicing in Virginia, who participates in the Medicare program as a supplier of services.  His Medicare billing privileges were deactivated, and he subsequently reenrolled in the program.  The Centers for Medicare & Medicaid Services (CMS) granted his application, with an effective date of March 26, 2018.

Petitioner concedes that CMS properly determined the effective date but complains that his enrollment should not have been deactivated; he claims that he did not receive the deactivation notice letters because they were sent to his old address, and he seeks reimbursement for the claims that have been denied.  My authority, however, is too limited to grant Petitioner such relief. 

Because Petitioner filed his subsequently-approved enrollment application on March 26, 2018, I find that March 26 is the correct effective date for his enrollment.

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Background

In a notice letter dated May 8, 2018, the Medicare contractor, Palmetto GBA, advised Petitioner that it approved his “change of information” with an “effective date” of February 24, 2018.  CMS Ex. 2 at 3-5.  In fact, as explained below, the contractor was granting Petitioner a retrospective billing date of February 24, 2018; the effective date for his enrollment was March 26, 2018 (see discussion below).  Petitioner requested reconsideration, complaining of “undue financial hardship, occurrences beyond [his] control, and inaccurate information on the PECOS website.”  CMS Ex. 2 at 1.  

In a reconsidered determination, dated August 3, 2018, a contractor enrollment analyst affirmed the initial determination, again erroneously referring to the retrospective billing date as the effective date.  CMS Ex. 1 at 1.  Petitioner appealed. 

CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre‑hearing Order at 4, 5 (¶¶ 4(c)(iv), 8) (September 17, 2018).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied. 

CMS submits its motion and brief (CMS Br.) with eight exhibits (CMS Exs. 1-8).  Petitioner submits a response (P. Br.).  In the absence of any objections, I admit into evidence CMS Exs. 1-8.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

On March 26, 2018, Petitioner filed his subsequently‑approved application to reactivate his billing privileges, and the effective date can be no earlier than that date.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner Kieselbach participates in the Medicare program as a “supplier” of services.  Social Security Act (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.  Act § 1834(j)(1)(A); 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.

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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‑approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.2  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 “[t]he 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)-(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.  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).

I have no authority to review a deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 (2019).

Retrospective billing.  If a physician meets all program requirements, CMS may allow him to bill retrospectively for up to 30 days prior to the effective date “if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries . . . .”  42 C.F.R. § 424.521(a)(1).  Some Medicare contractors have created confusion because they are inclined to conflate the effective date with the retrospective billing date, as the

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contractor did in this case.  CMS Ex. 1; DAB E-File Dkt. 1a.  The distinction is important; I have the authority to review “[t]he effective date of . . . supplier approval.”  42 C.F.R. § 498.3(b)(15).  But nothing in the regulations gives me the authority to review CMS’s determinations regarding retrospective billing. 

Petitioner’s deactivation and reenrollment.  Here, in a notice letter, dated January 16, 2015, the contractor directed Petitioner to submit immediately an updated enrollment paper application (form 855) or to review, update, and certify his information via the internet PECOS system.  CMS Ex. 5.  The letter warned that Petitioner’s failure to submit a complete enrollment application and supporting documents could result in his Medicare billing privileges being deactivated.  CMS Ex. 5 at 3.  The contractor sent this letter to the correspondence address it had on file for Petitioner.  See CMS Ex. 6. 

The contractor received no response.

In a notice, dated July 16, 2015, the contractor advised Petitioner that his billing privileges were deactivated, effective July 16, 2015, because he had not responded to the January 16 revalidation request.  To reactivate, the notice instructed him to submit an updated paper enrollment application, or to review, update, and certify his information via PECOS.  CMS Ex. 4. 

On March 26, 2018, Petitioner filed a Medicare enrollment application, which the contractor subsequently approved.  CMS Ex. 3.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – March 26, 2018 – is the correct effective date of enrollment.  Sokoloff, DAB No. 2972; Urology Grp., DAB No. 2860; Goffney, DAB No. 2763 at 7, aff’d sub nom. Goffney v. Azar, No. CV 17-8032 MRW.

The issues that are not before me:  the deactivation and coverage lapse.  As the discussion above shows, the case before me is straightforward.  Petitioner, however, complains about the deactivation of his enrollment.  He claims that he did not receive the contractor’s notice letter, so he could not respond.  He moved his practice location.  Although he does not claim to have submitted to the contractor the required enrollment form for a change of address (see 42 C.F.R. § 424.516(d)), he argues that he notified the postal service, which returned the notice letters to the contractor with his new address, so the contractor should have known where to send the notice.  He also complains that CMS’s “inappropriate actions” have caused him financial hardship.  

I simply have no authority to review the deactivation nor to grant him relief based on his equitable claims.  Sokoloff, DAB No. 2972 at 6, 9; Ark. Health Grp., DAB No. 2929 at 7‑9 and cases cited therein.

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Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on March 26, 2018, CMS properly granted his Medicare reenrollment effective that date.