Lynne Schwartz, PhD, DAB CR5779 (2020)

DECISION

The effective date of reactivation of Petitioner’s Medicare billing privileges is June 18, 2018. 

I.  Background and Findings of Undisputed Facts

On November 7, 2018, Petitioner requested administrative law judge (ALJ) review of the October 2, 2018 reconsidered determination of National Government Services, a Medicare administrative contractor (MAC).  Request for Hearing (RFH).  The reconsidered determination upheld an initial determination by the MAC that the reactivation of Petitioner’s billing privileges was effective on June 18, 2018, a date after the date of the deactivation of Petitioner’s billing privileges on March 7, 2018.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 1-5.  Petitioner complains that the gap in billing privileges from March 7, 2018 through June 17, 2018 (gap period), resulted in Petitioner not being paid for “almost 90” claims for clinical psychologist services provided to Medicare beneficiaries during the gap period.  RFH at 1.   

CMS filed a motion for summary judgment (CMS Br.) with CMS Exs. 1 through 3 on December 11, 2018.  Petitioner filed a response in opposition to the CMS motion for summary judgment on January 11, 2019 (P. Br.) with no exhibits.  CMS waived reply

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brief.  Petitioner has not objected to CMS Exs. 1 through 3, which are admitted and considered as evidence. 

The material facts are not disputed.  Petitioner was enrolled in Medicare with billing privileges, and she continued to be enrolled throughout the gap period.  CMS Br. at 8-9. 

On October 13, 2017, the MAC notified Petitioner that she was required to revalidate her Medicare enrollment by December 31, 2017.  CMS Ex. 1 at 6.  On January 11, 2018, the MAC sent Petitioner a notice informing her that her Medicare payments were being held because she had not revalidated her enrollment and that her Medicare billing privileges were subject to deactivation if she did not revalidate.  CMS Ex. 1 at 10.  On March 13, 2018, the MAC notified Petitioner that her Medicare billing privileges were deactivated effective March 7, 2018, due to her failure to revalidate her Medicare enrollment record.  CMS Ex. 1 at 12. 

On July 3, 2018, the MAC received a CMS-855I, an application to enroll in Medicare, and a CMS-855R, an application to reassign Petitioner’s billing privileges from Petitioner to Psychological Potentials PC, her employer.  CMS Ex. 1 at 14-26. 

On August 7, 2018, the MAC issued an initial determination approving Petitioner’s revalidation applications effective June 18, 2018.  The notice did not mention a gap in Petitioner’s billing privileges due to the deactivation of those privileges beginning March 7, 2018.  CMS Ex. 1 at 29-31. 

On August 12, 2018, Petitioner timely submitted a reconsideration request.  She requested that her effective date be changed to August 1, 2012, the original date of her enrollment so that she can receive payment for services provided to her Medicare patients during the gap period.  CMS Ex. 1 at 34. 

On October 2, 2018, a MAC hearing officer issued a reconsidered determination.  The hearing officer upheld the initial determination of an effective date of June 18, 2018.1

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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 of billing privileges.

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.

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 or her employer for services she 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.

For the following reasons, I conclude Petitioner has no right to ALJ review of the MAC determination 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.

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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 calendar days of the date of the change, except a change in ownership or control, which must be reported within 30 calendar 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)(1)-(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 recertify that its enrollment information on file is correct.  42 C.F.R. § 424.540(b)(1)-(2).  Deactivation of Medicare billing privileges is 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).

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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).3   I conclude Petitioner has no right to ALJ review of the MAC determination to deactivate Petitioner’s billing privileges.  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 3-12 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Grp. of NJ, LLC, 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 or supplier enrollment case is the reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. LLC, DAB No. 2573 at 7.

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3.  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 her 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 and the reassignment of those 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 Acknowledgment 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).

4.  The effective date of reactivation of Petitioner’s billing privileges, determined in accordance with CMS policy and the regulations, is the date on which the MAC received the application that it processed to approval, in this case the date of receipt was July 3, 2018.

5.  The hearing officer determined that the date of reactivation of Petitioner’s billing privileges in this case should be June 18, 2018, based on errors in processing of the revalidation application; CMS has waived reopening and revising the MAC’s determinations; and I will not disturb the exercise of discretion by CMS that benefits Petitioner. 

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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.4    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 found in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, §§ 15.27.1.1 (rev. 782, eff. Apr. 2, 2018) (deactivation) and 15.27.1.2 (reactivation) (rev. 561, eff. Mar. 18, 2015).  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, there is no dispute that the MAC received the application processed to completion on July 3, 2018.5

Applying the regulations in this case is straightforward.  There is no dispute, based on the reconsidered determination, that Petitioner’s Medicare billing privileges were deactivated effective March 7, 2018.  There is also no dispute that on July 3, 2018, the MAC received Petitioner’s application to reactivate her Medicare billing privileges.  Accordingly, the

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effective date of reactivation should be July 3, 2018.  The hearing officer determined that the date of reactivation of Petitioner’s billing privileges in this case should be June 18, 2018, based on errors in processing; CMS has waived reopening and revising the MAC’s determinations; and I will not disturb the exercise of discretion by CMS that benefits Petitioner. 

Petitioner argues that she never received the revalidation requests from CMS.  P. Br.  I note that the addresses on the CMS notices prior to July 3, 2018, are the same as the correspondence address on Petitioner’s revalidation application received by the MAC on July 3, 2018.  CMS Ex. 1 at 1, 6, 8, 10, 12, 15.  However, whether or not Petitioner received the notices to revalidate relate to the basis for deactivation of her billing privileges and the deactivation is not subject to my review. 

Petitioner argues that CMS did not correctly follow the revalidation process in her case.  P. Br.; RFH.  Whether or not the MAC followed its policy in processing Petitioner’s application is also not an issue before me.  The only issue for me to decide is the correct date of the reactivation of Petitioner’s billing privileges and that issue is determined based on the date the MAC received the revalidation application it processed to approval.  The MAC hearing officer on reconsideration determined that there was some irregularity in determining the reactivation effective date in this case.  However, the hearing officer’s adoption of the reactivation effective date of June 18, 2018, rather than July 3, 2018, clearly benefitted Petitioner.  Petitioner argues she should benefit from the CMS policy at MPIM § 15.29.4.3 which she alleges stated:

The contractor shall reactivate the deactivated PTAN(s) within 15-20 days of receiving the revalidation application or missing information, even though the revalidation has not been processed to completion.  The PTAN and effective date shall remain the same if the revalidation application was received prior to 120 days after the date of deactivation.

P. Br., RFH.  However, the policy as alleged by Petitioner was not in effect at the time of either the initial or reconsidered determination in this case.  MPIM § 15.29.4.3 (rev. 762, eff. Jan. 29, 2018), titled “Revalidation Received After a Deactivation Occurs,” which was in effect and controlled the MAC at the time of the initial and reconsidered determinations, provided in pertinent part:

MACs shall require the provider/supplier to submit a new full application to reactivate their enrollment record after they have been deactivated.  The MAC shall process the application as a reactivation.  The provider/supplier shall maintain their original PTAN but the MAC shall reflect a gap in coverage (between the deactivation and reactivation of

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billing privileges) on the existing PTAN using Action Reason (A/R) codes in the Multi-Carrier Claims System (MCS) based on the receipt date of the application.  The provider will not be reimbursed for dates of service in which they were not in compliance with Medicare requirements (deactivated for non-response to revalidation).  This requirement also applies to group members whose reassignment association was terminated when the group was deactivated.

Therefore, Petitioner’s reliance on CMS policy is without merit. 

Petitioner’s arguments may be construed to be requests for equitable relief or to estop the government.  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, and no such allegation exists in this case.  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.

III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner’s billing privileges is June 18, 2018.

1. The hearing officer noted that the correct effective date of the reactivation of billing privileges should have been July 3, 2018, the date the MAC received the CMS-855I and CMS-855R it processed to approval.  The hearing officer elected not to correct the error.  CMS Ex. 1 at 3.  CMS has informed me that it will not reopen and revise the MAC’s determinations to correct the effective date of reactivation to July 3, 2018.  CMS Br. at 4 n.2.  CMS’s waiver is accepted.
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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.  The Board previously concluded that the only determination subject to my review in a provider or 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. I note that the CMS notice of deactivation of Petitioner’s billing privileges did not inform Petitioner of the right to submit a rebuttal pursuant to 42 C.F.R. § 405.374.  CMS Ex. 1 at 12-13.  However, I have no authority to review the deactivation determination or fashion a remedy for this oversight.
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4. However, the effective date for Medicare billing privileges is determined in accordance with 42 C.F.R. § 424.520.
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5. 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. eff. Mar. 12, 2019) when reactivating billing privileges of a provider or supplier described in that section.  MPIM §§ 15.27.1.1-.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 was issued.  Based on the CMS language making retrospective billing mandatory in the situations described in MPIM § 15.17(B), Petitioner should be granted a period for retrospective billing.  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 clinical psychologist and there is no dispute that she was enrolled in Medicare during the gap period and met all requirements for enrollment.  Therefore, Petitioner should be 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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