Michael B. Zafrani, MD, DAB CR5765 (2020)

DECISION

Petitioner's Medicare billing privileges were deactivated effective July 31, 2019, after he failed to respond to a request that he revalidate his Medicare enrollment record.  Petitioner did not revalidate his Medicare enrollment record until February 18, 2020.  For the reasons discussed below, I conclude that the effective date of Petitioner's reactivated Medicare billing privileges remains February 18, 2020, with retrospective billing privileges authorized beginning January 19, 2020.

I.  Background and Procedural History

Petitioner is a psychiatrist.  See CMS Ex. 5 at 1.  On February 28, 2019, Noridian Healthcare Solutions (Noridian), a Medicare administrative contractor, informed Petitioner that he was required to revalidate his Medicare reenrollment record no later than May 31, 2019.  CMS Ex. 1 at 1-2; see 42 C.F.R. § 424.515 ("To maintain Medicare billing privileges, a provider or supplier . . . must resubmit and recertify the accuracy of its enrollment information every 5 years.").  Noridian explained that a "[f]ailure to respond to this notice will result in a hold on [his] payments, and possible deactivation of [his] Medicare enrollment."  CMS Ex. 1 at 1.  Noridian further cautioned that Petitioner

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"will not be paid for services rendered during the period of deactivation" and that "[t]his will cause a gap in [his] reimbursement."  CMS Ex. 1 at 1.

On June 24, 2019, Noridian sent Petitioner a letter captioned, "REVALIDATION:  Past‑Due Group Member," in which it explained that Petitioner had not revalidated his enrollment record by the May 31, 2019 deadline.  CMS Ex. 2 at 1.  Noridian once again explained that if Petitioner failed to revalidate his enrollment record, his enrollment would be deactivated and he would not be paid for services rendered during the period of deactivation.  CMS Ex. 2 at 1.

On August 20, 2019, Noridian issued a letter informing Petitioner that it had deactivated his billing privileges, effective July 31, 2019, because he had not revalidated his enrollment record.  CMS Ex. 3 at 1.

That same day, on August 20, 2019, Petitioner erroneously submitted a Form CMS-20134 application.1   See CMS Exs. 6 at 3-4, 12; 8 at 2.  Noridian mailed Petitioner a letter acknowledging receipt of the August 20, 2019 application in which it stated that "we are closing this request," pursuant to its determination that Petitioner had submitted an incorrect application.  CMS Exs. 6 at 12; 8 at 2; see CMS Ex. 6 at 3 (Petitioner's acknowledgment that he received the November 14, 2019 letter).

On February 18, 2020, Petitioner submitted via facsimile a Form CMS-855I enrollment application and supporting documentation to revalidate his enrollment record.  CMS Ex. 4.  In a letter dated February 21, 2020, Noridian reactivated Petitioner's billing privileges, but informed him that there would be a gap in his billing privileges from July 31, 2019, through January 18, 2020, "for failing to timely resubmit [his] revalidation application."2   CMS Ex. 5 at 1.

Petitioner submitted a request for reconsideration on March 3, 2020, in which he alleged that he did not receive Noridian's February and August 2019 letters.  CMS Ex. 6 at 3.

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Petitioner speculated, based on his reported conversation with a local U.S. Postal Service supervisor, that Noridian's letters "are most probably at the USPS Dead Mail Department in Georgia" because the zip code listed in the mailing address lacked a hyphen between the five-digit zip code and zip+4 code.  CMS Ex. 6 at 3; see CMS Exs. 1 at 1; 2 at 1; 3 at 1.  Petitioner also claimed that "a bizarre event occurred" involving an apparently pre‑recorded telephone message in which Noridian reported it was "aware of an application renewal glitch on their end . . . ."  CMS Ex. 6 at 3-4.  Petitioner attached copies of the February, August, and November 2019 correspondence from Noridian, but did not explain how he obtained the notices he had purportedly not received by mail.  CMS Ex. 6 at 8-13.

Noridian issued a reconsidered determination on May 29, 2020, in which it affirmed the January 19, 2020 effective date of Petitioner's reactivated billing privileges.  CMS Ex. 8.  Noridian explained that Petitioner had not timely revalidated his enrollment, which resulted in a deactivation of his enrollment and billing privileges effective July 31, 2019.  CMS Ex. 8 at 2.  Although Petitioner submitted an enrollment application on August 20, 2019, the enrollment application pertained to enrollment as a Medicare Diabetes Prevention Program supplier and not as a psychiatrist.  CMS Ex. 8 at 2-4.  Noridian acknowledged Petitioner's claim that he did not receive various letters because a hyphen had not been included between the zip code and zip+4, and "confirmed that the letters had not been returned" to Noridian as undelivered by the U.S. Postal Service.  CMS Ex. 8 at 4-5.  Noridian also explained that it was "unable to confirm that there was a glitch in the revalidation process or that there was a pre-recorded message stating as such."  CMS Ex. 8 at 5.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on June 26, 2020.  The Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order) on June 30, 2020, which directed the parties to file their respective pre-hearing exchanges.  CMS filed a pre‑hearing brief and motion for summary judgment, along with nine proposed exhibits (CMS Exs. 1-9).  Petitioner filed a response (P. Br.).3   In the absence of any objections, I admit all submitted exhibits into the evidentiary record.

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A hearing for the purpose of cross-examination is unnecessary because neither party has submitted the written direct testimony of any witnesses.  See Pre-Hearing Order §§ 12‑14.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.4

II.  Issue

Whether CMS had a legitimate basis to assign Petitioner a February 18, 2020 effective date for his reactivated Medicare billing privileges, with retrospective billing privileges authorized beginning January 19, 2020.

III.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. § 498.3(b)(15); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); 42 U.S.C. § 1395cc(j)(8).

IV.  Findings of Fact, Conclusions of Law, and Analysis5

1. On February 28, 2019, Noridian informed Petitioner that he was required to revalidate his Medicare enrollment prior to May 31, 2019.

2. On July 31, 2019, Noridian deactivated Petitioner's billing privileges because he had not responded to the revalidation request.

3. On February 18, 2020, Petitioner submitted an enrollment application to revalidate his enrollment record.

4. Pursuant to 42 C.F.R. § 424.520(d)(1), Noridian had a legitimate basis to reactivate Petitioner's billing privileges effective February 18, 2020.

5. Retrospective billing privileges are authorized beginning January 19, 2020, pursuant to 42 C.F.R. § 424.521(a)(1).

As a psychiatrist, Petitioner is a "supplier" for purposes of the Medicare program.  See CMS Ex. 5 at 1; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 498.2 (definitions of supplier).  A "supplier" furnishes items or services under Medicare, and the term applies to physicians or other practitioners who are not included within the definition of

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the phrase "provider of services."  42 U.S.C. § 1395x(d).  A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The regulations at 42 C.F.R. part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program.  42 C.F.R. §§ 424.510‑424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program).  A supplier that seeks billing privileges under Medicare "must submit enrollment information on the applicable enrollment application."  42 C.F.R. § 424.510(a)(1).  "Once the provider or supplier successfully completes the enrollment process, . . . CMS enrolls the provider or supplier into the Medicare program."  Id.; see also 42 C.F.R. § 424.510(d) (listing enrollment requirements).  Thereafter, "[t]o maintain Medicare billing privileges, a [supplier] must resubmit and recertify the accuracy of its enrollment information every 5 years."  42 C.F.R. § 424.515.  Further, a supplier "may be required to revalidate [its] enrollment outside the routine 5-year revalidation cycle."  42 C.F.R. § 424.515(e).

CMS is authorized to deactivate an enrolled supplier's Medicare billing privileges if the enrollee does not provide complete and accurate information within 90 days "of receipt of notification."  42 C.F.R. § 424.540(a)(3).  If CMS deactivates a supplier's Medicare billing privileges, "[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary."  42 C.F.R. § 424.555(b); Urology Grp. of NJ, LLC, DAB No. 2860 at 10 (2018) ("The regulations, taken together, clearly establish that a deactivated provider or supplier was not intended to be entitled to Medicare reimbursement for services rendered during the period of deactivation.").  Further, and quite significantly, the Departmental Appeals Board (DAB) has unambiguously stated that "[i]t is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated."  Willie Goffney, Jr., M.D., DAB No. 2763 at 6 (2017), aff'd sub nom. Goffney v. Azar, 2:17-CV-8032 (C.D. Cal. Sept. 25, 2019); see Urology Grp., DAB No. 2860 at 11 ("Taking these unique effects of revocation into consideration, it is reasonable to conclude that CMS intended for revocations and deactivations to share the feature of precluding a provider or supplier from collecting reimbursement for services rendered during the period of inactive Medicare billing privileges, while simultaneously intending for revocations to have more severe consequences on a provider's or supplier's ability to participate."); Frederick Brodeur, M.D., DAB No. 2857 at 16 (2018) ("Allowing a deactivated supplier to bill for services furnished during a period of deactivation would conflict with section 424.555(b) of the regulations . . . .").  The regulation authorizing deactivation explains that "[d]eactivation of Medicare billing privileges is considered an action to protect the provider or supplier from misuse of its billing number and to protect the Medicare Trust Funds from unnecessary overpayments."  42 C.F.R. § 424.540(c).

Noridian directed Petitioner to revalidate his enrollment record no later than May 31, 2019.  CMS Ex. 1.  On the same day that Noridian issued a notice informing Petitioner

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that his billing privileges had been deactivated for failure to revalidate his enrollment record, Petitioner submitted an erroneous enrollment application to enroll as a diabetes prevention program supplier.  CMS Ex. 3; see CMS Ex. 8 at 4.  Petitioner did not submit an enrollment application to revalidate his enrollment as a psychiatrist until February 18, 2020.  CMS Ex. 4.

The pertinent regulation with respect to the effective date of reactivation is 42 C.F.R. § 424.520(d).  Urology Grp., DAB No. 2860 at 7 ("The governing authority to determine the effective date for reactivation of Petitioner's Medicare billing privileges is 42 C.F.R. § 424.520(d)."  Section 424.520(d) states that "[t]he effective date for billing privileges for physicians, non-physician practitioners, physician and non‑physician practitioner organizations . . . is the later of – (1) [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) [t]he date that the supplier first began furnishing services at a new practice location."  The DAB has explained that the "date of filing" is the date "that an application, however sent to a contractor, is actually received."  Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 5 (2016) (emphasis omitted).  Noridian deactivated Petitioner's billing privileges because he did not comply with a revalidation request, and he did not submit an enrollment application to revalidate his enrollment record that could be processed to approval until February 18, 2020.  CMS Ex. 4.  Based on the February 18, 2020 receipt date of the enrollment application that was processed to approval, the February 18, 2020 effective date for reactivated billing privileges, with retrospective billing allowed beginning January 19, 2020, is not erroneous.  42 C.F.R. §§ 424.520(d)(1), 424.521(a)(1); see Urology Grp., DAB No. 2860 at 9 ("Moreover, the fact that a supplier must file a new enrollment application in order to reactivate its billing privileges is consistent with the language of section 424.520(d) and compelling evidence that the provision should apply to reactivations."); Frederick Brodeur, DAB No. 2857 at 16 ("Petitioner remained enrolled in Medicare, but his deactivated status made [him] ineligible for payment for any covered services he furnished to otherwise eligible Medicare beneficiaries, pursuant to section 424.555(b), until he provided the information necessary to reactivate his billing privileges."); Willie Goffney, DAB No. 2763 at 6 ("It is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.").

The deactivation of Petitioner's billing privileges on July 31, 2019, based on his failure to revalidate his enrollment record, is not reviewable.  42 C.F.R. § 498.3(b) (listing the types of initial determinations that are subject to review); Ark. Health Grp., DAB No. 2929 at 12 (2019) ("Where, as here, the contractor deactivated Petitioner's billing privileges, the issue for us (and the ALJ) is the effective date of reactivation."); Frederick Brodeur, DAB No. 2857 at 12 ("A contractor's deactivation decision is not an initial determination subject to ALJ or [DAB] review."); Willie Goffney, DAB No. 2763 at 5 (stating no regulation provides appeal rights with respect to the contractor's deactivation).  I can only review the effective date assigned for Petitioner's reactivated billing

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privileges, and Petitioner does not present evidence that he submitted a completed application for the purpose of reactivating his enrollment and billing privileges prior to February 18, 2020.

As previously explained, the question before me is whether Petitioner submitted, prior to February 18, 2020, an enrollment application to revalidate his enrollment record that could be processed to approval.  42 C.F.R. § 424.520(d)(1).  The answer is no; Petitioner has not submitted evidence that he submitted an enrollment application that Noridian could process to approval prior to February 18, 2020.  To the extent that Petitioner argues that an earlier effective date of billing privileges should be granted, he focuses on matters outside of the scope of my review.  Petitioner argues that he did not receive the February 2019 notice informing him that he had to revalidate his enrollment record, and that he also did not receive the August 2019 notice informing him that his billing privileges had been deactivated.  P. Br.  However, Noridian determined that none of its notices had been returned as undeliverable.  CMS Ex. 8 at 5.  Petitioner incredibly claims that even though he purportedly did not receive either notice from Noridian, he nonetheless submitted the erroneous August 2019 enrollment application "because a kind hearted clerk, off the record, at CMS strongly suggested [to his "secretary"] that she renew the privileges."  P. Br.  Significantly, even though Petitioner was told "off the record" in August 2019 that he should revalidate his enrollment and learned in November 2019 that his erroneous enrollment application had not been processed, Petitioner nonetheless waited another three months, until February 18, 2020, to submit the enrollment application that was processed to approval.  CMS Ex. 4.  While the circumstances are undoubtedly unfortunate, in that Petitioner has experienced a gap in billing privileges and a resulting loss of reimbursements, he has not identified any error committed by CMS or Noridian in the assignment of the effective date of his reactivated billing privileges, which was based on the date of receipt of the enrollment application that could be processed to approval.

The sole matter I may review is whether Noridian assigned a correct effective date for Petitioner's reactivated billing privileges.  Pursuant to 42 C.F.R. § 424.520(d)(1), Noridian had a legitimate basis to assign an effective date of February 18, 2020, for Petitioner's reactivated billing privileges, which is based on the date of receipt of his application for purposes of revalidation.  Retrospective billing privileges are authorized up to 30 days at the discretion of CMS or its contractor pursuant to 42 C.F.R. § 424.521(a)(1), and Noridian allowed retrospective billing beginning January 19, 2020.

To the extent that Petitioner's request for relief is based on principles of equitable relief, I cannot grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) ("Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.").  Petitioner points to no authority by which I may grant him relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) ("An ALJ is bound by

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applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .").

V.  Conclusion

For the foregoing reasons, I uphold the February 18, 2020 effective date of Petitioner's reactivated Medicare billing privileges, with retrospective billing authorized beginning January 19, 2020.

1. This application could not be used to revalidate the enrollment of a psychiatrist such as Petitioner; a Form CMS-20134 application is an enrollment application for Medicare Diabetes Prevention Program suppliers.  See https://www.cms.gov/Medicare/CMS-Forms/CMS-Forms/Downloads/CMS20134.pdf (last visited November 3, 2020).
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2. Although an effective date of enrollment is set in accordance with 42 C.F.R. § 424.520(d), CMS or its contractor may permit retrospective billing for 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).  By assigning an effective date of billing privileges of January 19, 2020, 30 days prior to the date it received Petitioner's enrollment application, Noridian had authorized 30 days of retrospective billing privileges, pursuant to 42 C.F.R. § 424.521(a)(1).
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3. Petitioner's brief is not paginated, and therefore, I do not provide pinpoint citations to his brief.  Further, Petitioner disregarded the clear instructions in the Pre-Hearing Order with respect to the submission of proposed exhibits, in that he attached a number of exhibits to his brief.  Exhibits A, B, C, D, and F are duplicative of documents contained in CMS Exs. 1, 2, 3, and 6.  Exhibit E is a copy of CMS Br., which I do not admit as an evidentiary exhibit.  Exhibit G is a copy of email correspondence with non-Medicare health plans regarding matters unrelated to his Medicare enrollment; this correspondence is irrelevant to the effective date assigned for Petitioner's reactivated billing privileges and is not admitted into the evidentiary record.
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4. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
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5. Findings of fact and conclusions of law are in italics and bold font.
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