Edward S. Ragsdale, Ph.D., DAB CR5893 (2021)

DECISION

National Government Services (NGS), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reactivated the Medicare enrollment and billing privileges of Edward S. Ragsdale, Ph.D. (Petitioner or Dr. Ragsdale) effective February 5, 2019.  Petitioner requested a hearing before an administrative law judge to dispute this effective date.  Because NGS approved Petitioner’s revalidation enrollment application that it received on February 5, 2019, it correctly determined that the effective date for Petitioner’s reactivated billing privileges is February 5, 2019.  Therefore, I affirm the effective date determination.

I.  Background

By letter dated May 2, 2018, NGS informed Petitioner that he must revalidate his Medicare enrollment by July 31, 2018.  CMS Exhibit (Ex.) 2.  The letter warned Petitioner that his billing privileges might be deactivated, resulting in a gap in reimbursement, if he failed to revalidate.  Id. at 1.  NGS mailed the letter to Petitioner at 156 5th Ave., Suite 900, New York, NY 10010-7783 (Fifth Avenue address).  Id.  The Fifth Avenue address was listed on Petitioner’s enrollment record as his practice location

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and his special payments address.  CMS Ex. 11 at 5-6.  The May 2 letter was returned to NGS as undeliverable.  CMS Ex. 3 at 3.  Petitioner acknowledges that he had moved his practice from the Fifth Avenue address on file with NGS, but had failed to notify NGS of his change of address.  See, e.g., Hearing Request at 1, Docket Entry #1 in the Departmental Appeals Board (DAB) Electronic Filing System (E-File).  Consequently, he never received the May 2 letter requesting revalidation.  Id.

In a letter dated August 21, 2018, NGS notified Petitioner that it had not received a revalidation application by July 31, 2018.  CMS Ex. 4.  In the August 25 letter, NGS explained:

We are holding all payments on your Medicare claims because you haven’t revalidated your enrollment record with us. . . .

*   *   *

Failure to respond to this notice will result in a possible deactivation of your Medicare enrollment.  If . . . your enrollment is deactivated, you . . . will not be paid for services rendered during the period of deactivation.  This will cause a gap in your reimbursement.

Id. at 1.  NGS mailed the letter to the Fifth Avenue address, but it was returned as undeliverable.  Id. at 3.

Finally, by letter dated October 16, 2018, NGS notified Petitioner that his Medicare enrollment and billing privileges were deactivated effective October 10, 2018, because he had not revalidated his enrollment information.  CMS Ex. 5 at 1.  NGS mailed this letter to the Fifth Avenue address as well, and it was returned as undeliverable.  Id. at 3.

On February 5, 2019, Petitioner submitted an online application to revalidate his Medicare enrollment using the Provider Enrollment, Chain and Ownership System (PECOS).  See CMS Ex. 6 at 1.  NGS ultimately approved the application.  See CMS Ex. 7.  In its approval letter, NGS stated that the effective date of Petitioner’s reactivated billing privileges was January 6, 2019.NGS incorrectly referred to January 6, 2019, as the effective date of Petitioner’s Medicare enrollment.  CMS Ex. 7 at 2.  Pursuant to 42 C.F.R. § 424.521(a), January 6, 2019, is the date from which retroactive billing is permitted.  The effective date of Petitioner’s enrollment is February 5, 2019, as provided in 42 C.F.R. § 424.520(d).  CMS Ex. 7 at 2.

By letter dated March 5, 2019, Petitioner requested reconsideration of the determination that his Medicare billing privileges were reactivated effective February 5, 2019.  CMS Ex. 8 at 4.  In response, NGS issued a reconsidered determination, dated April 25, 2019,

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concluding that February 5, 2019, was the correct effective date of reactivation.  CMS Ex. 1 at 1, 5.

Petitioner requested a hearing before an administrative law judge and the case was assigned to me.  At my direction, my office acknowledged Petitioner’s hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).  The Prehearing Order directed each party to file a prehearing exchange consisting of a brief and any supporting documents, including the written direct testimony of any proposed witnesses, and set forth the deadlines for those filings.  Prehearing Order ¶¶ 4-5.  In response to the Prehearing Order, CMS filed a motion for summary judgment and brief (CMS Br.) and twelve proposed exhibits (CMS Exs. 1-12).  CMS did not list any proposed witnesses.  Petitioner filed a written argument (P. Br.), but did not offer any proposed exhibits or witnesses.  Nor did Petitioner object to any of CMS’s proposed exhibits.  Therefore, in the absence of objection, I admit CMS Exs. 1-12.

My Prehearing Order advised the parties that an in-person hearing would only be necessary if a party offered the written direct testimony of a witness and the opposing party requested cross-examination.  Prehearing Order ¶¶ 8-10; Civil Remedies Division Procedures (CRDP) §§ 16(b), 19(b); see Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross‑examine those witnesses).  Because neither party offered the written direct testimony of any witness, an in‑person hearing is not required, and I issue this decision based on the written record, without regard to whether the standards for summary judgment are met.  Prehearing Order ¶¶ 8-10, 12; CRDP § 19(d).  I deny CMS’s motion for summary judgment as moot.

II.  Issue

The issue in this case is whether NGS, acting on behalf of CMS, properly established February 5, 2019, as the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges.

III.  Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

IV.     Discussion

A. Applicable Legal Authority

The Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102,

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1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).

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 define “Enroll/Enrollment” as “the process that Medicare uses to establish eligibility to submit claims for Medicare-covered items and services.”  42 C.F.R. § 424.502.  A provider or supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program.”  42 C.F.R. § 424.510(a).  CMS then establishes an effective date for billing privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may permit limited retrospective billing under 42 C.F.R. § 424.521.

To maintain Medicare billing privileges, providers and suppliers must revalidate their enrollment information at least every five years.  42 C.F.R. § 424.515.  However, CMS reserves the right to perform revalidations at any time.  42 C.F.R. § 424.515(d), (e).  When CMS notifies providers and suppliers that it is time to revalidate, the providers or suppliers must submit the appropriate enrollment application, accurate information, and supporting documentation within 60 calendar days of CMS’s notification.  42 C.F.R. § 424.515(a)(2).  CMS can deactivate an enrolled provider’s or supplier’s Medicare billing privileges if the enrollee fails to comply with revalidation requirements.  42 C.F.R. § 424.540(a)(3).  When CMS deactivates providers’ or suppliers’ 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).  If CMS deactivates a provider’s or supplier’s billing privileges due to an untimely response to a revalidation request, the enrolled provider or supplier may apply for CMS to reactivate its Medicare billing privileges by completing a new enrollment application or, if deemed appropriate, recertifying its enrollment information that is on file.  42 C.F.R. § 424.540(b)(1).

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Findings of Fact and Conclusions of LawMy findings of fact and conclusions of law appear as numbered headings in bold italic type.

1. NGS received Petitioner’s application to revalidate his Medicare billing privileges on February 5, 2019, and approved that application.

2. The effective date of reactivation for Petitioner’s Medicare billing privileges is February 5, 2019.

The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the “date of filing” or the date the supplier first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d).  The “date of filing” is the date that the Medicare contractor “receives” a signed enrollment application that the Medicare contractor is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).

NGS received a revalidation application from Petitioner via PECOS on February 5, 2019.  See CMS Ex. 4 at 1.  NGS approved that application.  CMS Ex. 5.  Accordingly, as required by regulation, the effective date of reactivation of Petitioner’s Medicare enrollment is February 5, 2019.

3. I have no authority to review the deactivation of Petitioner’s Medicare billing privileges on October 10, 2018.

Petitioner argues that his Medicare enrollment should not have been deactivated because he did not receive the notices NGS sent advising him of the need to revalidate his enrollment information.  P. Br. at 2.Petitioner did not paginate his brief.  I cite to the PDF page numbers as the document is displayed in DAB E-File.  Petitioner acknowledges that he did not receive the notices because he failed to update his enrollment information when he moved his practice.  Hearing Request at 1, Docket Entry #1 in DAB E-File.  Regardless of the reason Petitioner did not receive the notices, his failure to receive them does not change the outcome in this case.  That is because the lack of notice is only relevant, if at all, to whether NGS acted properly in deactivating Petitioner’s billing privileges.

However, I do not have jurisdiction to review CMS’s deactivation of Petitioner’s Medicare billing privileges because deactivation is not an “initial determination” and deactivation decisions have a separate review process.  See 42 C.F.R. §§ 424.545(b),

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498.3(b); see also Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017).  Thus, even if Petitioner never received the notices to revalidate, this would not be a basis to grant him an earlier effective date.  As the appellate decision in the case of James Shepard, M.D. explained, providers and suppliers may not challenge indirectly an action for which the regulations prohibit direct administrative review.  DAB No. 2793 at 8 (2017).  The Shepard decision held that the supplier could not obtain review of a CMS contractor’s rejection of a previous enrollment application by challenging the effective date of enrollment based on a later approved application.  For the same reasons articulated in Shepard, Petitioner’s arguments in the present case amount to a backdoor challenge to a contractor determination – here, deactivation – for which there are no administrative appeal rights.  See id.  Nor do Petitioner’s remaining arguments provide a basis to change the effective date of his enrollment.

4. Petitioner’s equitable arguments are not a basis to change the effective date of his reactivated Medicare enrollment.

Petitioner contends that he will be deprived of compensation because he is unable to claim reimbursement for the services he provided to Medicare beneficiaries from October 10, 2018, through January 5, 2019.  P. Br at 2.  Petitioner adds that his Medicare patients have been “disturbed” to learn that he has not been paid for his services.  Id.

The circumstances Petitioner describes sound in equity.  However, an administrative law judge is not authorized to provide equitable relief by reimbursing or enrolling a supplier that does not meet statutory or regulatory requirements.  US Ultrasound, DAB No. 2302 at 8 (2010) (citing Regency on the Lake, DAB No. 2205 (2008)).  Put another way, I may not set aside CMS’s lawful exercise of its discretion based on principles of equity or fairness.  See, e.g., Central Kan. Cancer Inst., DAB No. 2749 at 10 (2016); see also Shepard, DAB No. 2793 at 9.  I therefore find no basis to overturn NGS’s effective date determination.

IV.  Conclusion

For the reasons explained above, I affirm that the effective date of Petitioner’s Medicare enrollment and billing privileges is February 5, 2019, with retrospective billing permitted as of January 6, 2019.