Lamont J. Cardon, M.D. and Lamont J. Cardon MD A Professional Corporation, DAB CR5804 (2021)

DECISION

Petitioner, Lamont J. Cardon, 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 May 23, 2018, which resulted in a 16-day billing gap.

Because Petitioner filed his and his medical practice’s subsequently-approved enrollment applications on May 23, 2018, I find that May 23 is the correct effective date of reactivation.  

Background

In notice letters dated June 16, 2018, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner Cardon that it approved his and his medical practice’s (Lamont J. Cardon MD A Professional Corporation) revalidated Medicare enrollment applications.  Because he had not timely submitted the revalidation applications,

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however, there would be a gap in billing privileges from May 7 through 22, 2018.  CMS Ex. 7 at 1, 4. 

Petitioner Cardon requested reconsideration.  CMS Ex. 8.  In his request, he wrote that the letter advising him to revalidate his enrollment was sent to his old office address (3000 Colby Street, Suite 301).  However, his office had moved down the hall to 3000 Colby Street, Suite 304, and he did not receive the notices.  He asked the contractor to make “a one-time exception” and lift the reimbursement gap, concluding “I certainly hope that the services I provided during this interval are not denied because of a simple clerical error.”  CMS Ex. 8 at 2.  In a reconsidered determination, dated October 17, 2018, the contractor denied his request and determined that the lapse in coverage would remain.  CMS Ex. 9.  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 3, 5 (¶¶ 4(c)(iv), 8) (December 26, 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 11 exhibits (CMS Exs. 1-11).  Petitioner submits a response (P. Br.) with eight exhibits (P. Exs. 1-8).  In the absence of any objections, I admit into evidence CMS Exs. 1-11 and P. Exs. 1-8.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7). It is not apparent that Petitioner previously submitted these exhibits, in accordance with 42 C.F.R. § 498.56(e).  See CMS Ex. 9 at 2.  However, CMS does not assert that he failed to do so and has not objected to them.

Discussion

1. On May 23, 2018, Petitioner Cardon filed subsequently-approved applications to reactivate his and his medical practice’s billing privileges, and the effective date can be no earlier than that date.  42 C.F.R. § 424.520(d). I make this one finding of fact/conclusion of law.

Enrollment.  Petitioner Cardon and his medical practice participate in the Medicare program as “suppliers” 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.

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§ 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. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).   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 or physician organization, 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).

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Petitioners’ deactivation and reenrollment.  Here, in notice letters, dated December 7, 2017, the contractor advised Petitioner to revalidate his and his practice’s Medicare enrollment by updating or confirming all of the information in their records.  The letters direct him to revalidate, no later than February 28, 2018, by updating the information through PECOS or by submitting the appropriate updated paper applications (Form CMS-855).  The letters warned that failing to respond would result in a hold on payments and possible deactivation of Medicare enrollment.  If deactivated, Petitioner would not be paid for services rendered during the period of deactivation.  CMS Ex. 1.  The contractor sent these notices to the addresses on file:  P.O. Box 7464, San Francisco, and 1001 Potrero Ave. 3A36, San Francisco.  CMS Ex. 1 at 1, 3; see CMS Ex. 3 at 2; CMS Ex. 10 at 3.  Petitioner did not respond. 

In a second set of notice letters, dated March 7, 2018, the contractor noted that Petitioner had not revalidated as directed, instructed him to do so, and repeated its warning that his enrollments could be deactivated, causing a gap in reimbursement.  CMS Ex. 2.  Again, the contractor sent the notices to the addresses it had on file.  CMS Ex. 2 at 1, 3.  Again, Petitioner did not respond. 

In a notice dated May 23, 2018, addressed to Petitioner at P.O. Box 7464, the contractor advised Petitioner that, because he hadn’t responded to its requests for information, it had stopped his Medicare billing privileges on May 7, 2018.  The notice advised him that he could recover those privileges by revalidating his enrollment record.  CMS Ex. 4.   

On May 23, 2018, Petitioner filed, via the PECOS system, Medicare enrollment applications for himself (CMS Ex. 5) and for his medical practice.  CMS Ex. 6.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved reenrollment applications – May 23, 2018 – is the correct effective date of reenrollment.  Sokoloff, DAB No. 2972; Urology Grp., DAB No. 2860; Goffney, DAB No. 2763 at 7.

Petitioner, however, complains that he did not receive the December 7 and March 7 notice letters because they were sent to an incorrect address.  P. Br. at 3-4.  He submits documents showing that, in 2012 and 2017, he provided the contractor with his email address and home address.  P. Exs. 1, 2.  He provides no evidence that he advised the contractor of a new correspondence address or practice address.  He also points to provisions of the Medicare Program Integrity Manual (CMS Pub. 100-08) and claims that:  the contractor did not wait long enough before sending the follow-up notice letter; the contractor could have sent an email notice but did not do so; and the contractor did not “exhaust all reasonable means” of contacting him.  P. Br. at 5-9, 15.  Even if these complaints had merit (and I don’t think they do), 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).

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Conclusion

Because Petitioner Cardon filed his and his practice’s subsequently-approved reactivation enrollment applications on May 23, 2018, May 23 is the effective date for the reactivation of his and his practice’s Medicare billing privileges, with a 16-day coverage gap.