Justin Heller, M.D., DAB CR5741 (2020)

DECISION

Petitioner, Justin Heller, M.D., is a physician, practicing in California, who participates in the Medicare program as a supplier of services.  His Medicare billing privileges were deactivated and he subsequently re-enrolled in the program.  The Centers for Medicare & Medicaid Services (CMS) granted his application, with an effective date of February 16, 2018, resulting in a 15-day coverage gap.

Because Petitioner filed his subsequently-approved enrollment application on February 16, 2018, I find that February 16 is the correct effective date for his re-enrollment.  

Background

In a notice letter dated April 2, 2018, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner that it approved his revalidated Medicare enrollment application with a gap in billing privileges from February 1 through 15, 2018.  CMS Ex. 10.

Petitioner requested reconsideration.  In his request, he conceded that, in responding to the contractor’s September 2017 request to revalidate his enrollment, his staff had, due to “an inadvertent clerical error,” submitted the wrong application form.  He asked the

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contractor to make “an exception to [the] timeliness of the revalidation application” and to reinstate his billing privileges with an effective date of February 1, 2018.  CMS Ex. 11 at 2.  In a reconsidered determination, dated July 19, 2018, the contractor affirmed the initial determination.  CMS Ex. 14.  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 Prehearing Order at 4, 5, 6 (¶¶ 4(c)(iv), 8, 10) (September 24, 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 15 exhibits (CMS Exs. 1-15).  Petitioner submits a response (P. Br.).  In the absence of any objections, I admit into evidence CMS Exs. 1-15.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

1. On February 16, 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 Heller 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.  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.  

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

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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)-(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 its 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).

Petitioner’s deactivation and reenrollment.  Here, in a notice letter, dated September 1, 2017, the contractor advised Petitioner to revalidate his Medicare enrollment by updating or confirming all of the information in his record.  The letter specifies that both the record for Justin Heller and the record for his medical group (to which he reassigned his benefits) needed to be revalidated.  It directed him to revalidate, no later than November 30, 2017, by updating his information through PECOS or by submitting an updated paper application (Form CMS-855).  The letter warned that, if he did not respond, his enrollment could be deactivated and he would not be paid for services rendered during the period of deactivation.  CMS Ex. 1.

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On October 16, 2017,3 Petitioner filed an enrollment application, CMS-855R, which is used to reassign the physician’s billing privileges to a third party, in this case, the physician’s medical practice.  CMS Ex. 2.  However, Petitioner did not submit an application for himself (CMS 855I).  In a letter dated November 16, 2017, the contractor advised Petitioner that he had submitted the wrong application form and directed him to submit a completed CMS 855I application.  CMS Ex. 3. 

Petitioner did not then submit the correct form, and, in a notice dated December 22, 2017, the contractor noted that Petitioner had not revalidated by the November 30, 2017 deadline and again warned that, if Petitioner’s enrollment were deactivated, he would not be paid for services rendered during the period of deactivation.  CMS Ex. 4. 

Petitioner did not respond.  In a notice dated February 15, 2018, the contractor advised him that his billing privileges were stopped, effective February 1, 2018, because he had not revalidated his enrollment record or had not responded to requests for more information.  The notice instructed Petitioner to revalidate his enrollment record through PECOS or to submit an updated paper enrollment application, CMS-855.  CMS Ex. 5. 

On February 16, 2018, Petitioner filed, via PECOS, his Medicare enrollment application (CMS-855I), which the contractor subsequently approved.  CMS Ex. 6.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – February 16, 2018 – is the correct effective date of enrollment.  Sokoloff, DAB No. 2972; Urology Grp., DAB No. 2860; Goffney, DAB No. 2763 at 7.

Petitioner, however, argues that he is entitled to an effective date based on the date he filed his CMS-855R application (October 16, 2017) because that application was “closed” rather than rejected.  P. Br. at 5.  The Departmental Appeals Board considered a similar argument in Decatur Health Imaging, LLC, where the supplier (an independent diagnostic testing facility) argued that its effective date should be based on the date it filed its CMS-855R application (which, as here, the contractor closed) ending the reassignment of benefits to a former (deceased) owner, rather than the date it filed its CMS-855B application, reporting a change in ownership.  Citing the plain language of the regulation, the Board held that the facility’s CMS-855R application was not processed to approval and that the correct effective date of reenrollment must be the date that the supplier filed the application that the contractor subsequently approved, the CMS-855B.  Decatur Health Imaging, LLC, DAB No. 2805 at 3-6 (2017).

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The issue that is not before me:  the deactivation.  As the discussion above shows, the case before me is straight-forward.  Petitioner, however, also complains about the deactivation of his enrollment.  He argues:

• That the contractor’s September 1, 2017 notice letter, which directed him to revalidate, was “impermissibly vague and ambiguous, leading [him] to believe that he needed to submit form CMS-855R within the prescribed timeframe.”  P. Br. at 2.  This argument strains credulity.  The instructions are easily understood:  revalidate for yourself (Justin Heller) and for your medical practice (Avors Medical Group); use the correct form.  CMS Ex. 1.
  
  Moreover, even if the September 1 letter confused him, the contractor’s November 16, 2017 letter – to which he did not respond – could not have been more direct:  you submitted the wrong application; “please mail a completed CMS 855I application.”  CMS Ex. 3.
• That the November 16 letter, which included no filing deadline or timeframe, was effectively a new revalidation notice.  The contractor should not have deactivated his enrollment because he filed his February 16 application within 90 days of the November 16 letter.  P. Br. at 6.  He bases this claim on the flimsiest of foundations:  that the November 16 letter tells him exactly which form he must submit and the September 1 letter does not.  The September 1 letter instructs him to submit “the right version of CMS-855,” which is a more than adequate instruction.  CMS Ex. 1 at 1.  Moreover, although the contractor gave Petitioner multiple notices and opportunities to avoid deactivation, it never changed the initial deadline – November 30, 2017 – which was based on the regulations, 42 C.F.R. §§ 424.540(a)(3), 424.555(b). 
  
  If Petitioner had any doubts about the deadline, the contractor’s December 22, 2017 letter surely laid them to rest.  The letter reiterated the “due date of November 30, 2017.”  CMS Ex. 4 at 1.  And, even though he was well past that deadline, Petitioner could have avoided a payment gap by revalidating his enrollment immediately.  Instead, he delayed for another eight weeks,

Thus, Petitioner’s attacks on the deactivation are exceptionally weak.  But even if they had merit (which they do not), I simply have no authority to review the deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 and cases cited therein.

Finally, Petitioner argues that he should be allowed to bill retrospectively, as authorized by 42 C.F.R. § 424.521.  Under section 424.521(a)(1), CMS may authorize a physician to bill retrospectively for up to 30 days prior to the effective date of enrollment, if

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circumstances precluded enrollment in advance of providing services to Medicare beneficiaries.  The decision to grant or deny retrospective billing is within CMS’s discretion and I have no authority to review it.  Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 5 n.3 (2019).Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on February 16, 2018, CMS properly granted his Medicare reenrollment effective that date.

1. I make this one finding of fact/conclusion of law.
• back to note 1
2. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
• back to note 2
3. The Medicare contractor stamped Petitioner’s paper application with a “Julian date stamp,” which counts the days of the year consecutively.  The first two digits stamped on the application (upper left-hand corner) indicate the year – 2017.  The next three digits indicate the date – the 289th day of 2017 or October 16, 2017.
• back to note 3