Tomas Jelinek, PT and Hawk Associates, Inc., DAB CR5850 (2021)

DECISION

Petitioner, Tomas Jelinek, PT, is a physical therapist, practicing in Michigan, who participates in the Medicare program as a supplier of services.  Hawk Associates, Inc., is his group practice.  After their Medicare billing privileges were deactivated, Petitioners reenrolled in the program.  The Centers for Medicare & Medicaid Services (CMS) granted their reenrollment applications, effective September 18, 2018, resulting in a four-month gap in billing privileges, from May 21 through September 17, 2018.

Because Petitioners filed their subsequently-approved reenrollment applications on September 18, 2018, that is the correct effective date for their reenrollment.  

Background

In a notice letter, dated November 28, 2018, the Medicare contractor, Wisconsin Physicians Service Insurance Corporation, advised Petitioner Jelinek and his group practice that it approved their Medicare enrollment application with a gap in billing privileges from May 21 through September 17, 2018.  CMS Ex. 14.  Petitioners requested reconsideration, citing a host of difficulties afflicting the practice and its staff (including

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Petitioner Jelinek), which affected their ability to respond to the contractor’s revalidation requests.  CMS Ex. 15.

In a reconsidered determination, dated February 4, 2019, the contractor affirmed the initial determination.  CMS Ex. 16.  Petitioners appealed. 

CMS moves for summary judgment or, in the alternative, for a judgment on the record.  Because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Prehearing Order at 3, 5, 6 (¶¶ 4(c)(iv), 8, 10) (April 19, 2019).  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 16 exhibits (CMS Exs. 1-16).  Petitioners submit a response (P. Br.) with three exhibits (P. Ex. 1-3).  In the absence of any objections, I admit into evidence CMS Exs. 1-16 and P. Exs. 1-3.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

On September 18, 2018, Petitioners filed their subsequently-approved application to reactivate their billing privileges, and September 18, 2018, is therefore the effective date of their reenrollment.  42 C.F.R. § 424.520(d).I make this one finding of fact/conclusion of law.

Enrollment.  Petitioners 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.  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.CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).  When CMS determines that a

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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 non-physician practitioner or a non-physician practitioner 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 billing privileges, suppliers must, at least every five years, resubmit and recertify the accuracy of their 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 its 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 billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3), 424.555(b).  To reactivate 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, 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).

Petitioners’ deactivation.  Here, in a notice letter, dated January 10, 2018, the contractor advised Petitioner Jelinek and his practice to revalidate their Medicare enrollment by updating or confirming the information in their record.  The letter directed them to revalidate, no later than March 31, 2018, by updating their information through PECOS or by submitting an updated paper application (Form CMS-855).  The letter warned that the contractor could stop Petitioners’ billing privileges if they did not respond.  CMS Ex. 1. 

Petitioners did not respond.  On April 5, 2018, the contractor sent Petitioners a follow-up notice.  The letter noted that Petitioners had not revalidated by March 31, 2018, as

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requested, and warned that, if their enrollments were deactivated, Petitioners would not be paid for services rendered during the period of deactivation, causing a gap in reimbursement.  CMS Ex. 2.

Responding to the contractor’s letters, Petitioners submitted a CMS-855I enrollment application, which the contractor received on April 17, 2018.  CMS Ex. 3.The Medicare contractor stamped Petitioners’ application with a “Julian date stamp,” which counts the days of the year consecutively.  Here, the first two digits stamped on the application indicate the year – 2018.  The next three digits indicate the date – the 107^th day of 2018, or April 17.  The contractor deemed the application inadequate.  In a letter dated April 20, 2018, it directed Petitioners to make revisions and to supply additional documentation within 14 days.  The letter warned that failing to submit a complete application and supporting documents within 30 days would result in deactivation of billing privileges.  CMS Ex. 4. 

Petitioners did not respond, and, in a notice dated May 22, 2018, the contractor rejected the April 17 application.  CMS Ex. 5.  In a separate notice, also dated May 22, 2018, the contractor advised Petitioners that their billing privileges were stopped, effective May 21, 2018, because they had not revalidated their enrollment record or had not responded to a request for more information.  The notice again instructed Petitioners to revalidate their enrollment record through PECOS or to submit an updated paper enrollment application, CMS-855.  CMS Ex. 6.    

Petitioners filed another Medicare enrollment application on June 6, 2018.  CMS Ex. 7 at 3-34.  Again, the contractor deemed it insufficient, and, by letter dated June 13, 2018, directed them to submit, within 30 days, listed revisions and additional supporting documentation.  CMS Ex. 8.  Petitioners did not comply, and, in a July 2, 2018 e-mail, the contractor advised that it had not received the requested information, but gave Petitioners until the end of the day, July 13, 2018, to respond.  CMS Ex. 9.  When Petitioners did not provide the requested information, the contractor rejected their June 6 application.  CMS Ex. 10.  In its July 19, 2018 notice letter, the contractor advised that, to reenroll in the Medicare program, Petitioners would need to submit a new application, and address the issues listed in the June 13, 2018 letter.  Id.  

Petitioners’ reenrollment.  On September 18, 2018, Petitioners filed their third application.  CMS Ex. 11.  In an October 2, 2018 letter, the contractor asked for additional information, which Petitioners submitted the same day.  CMS Exs. 12, 13.  The contractor subsequently approved the September 18 application.  CMS Ex. 14.  Thus, pursuant to section 424.520(d), the date Petitioners filed their subsequently-approved enrollment application – September 18, 2018 – is the correct effective date of their reenrollment.  Sokoloff, DAB No. 2972; Urology Grp., DAB No. 2860; Goffney, DAB No. 2763 at 7.

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Petitioner Jelinek asks to be paid for the services rendered during the billing gap, explaining that he and his staff had suffered some significant losses, which left them unable to respond appropriately to the contractor’s requests.  As compelling as Petitioner’s explanation is, I am simply not authorized to grant an earlier effective date based on equitable considerations.  Sokoloff, DAB No. 2972 at 9.

Conclusion

Because Petitioners filed their subsequently-approved reenrollment application on September 18, 2018, September 18 is the proper effective date for their Medicare reenrollment.