Anthony Agadzi, M.D., DAB CR5918 (2021)

DECISION

Petitioner,  Dr. Anthony Agadzi, M.D., challenges the effective date of his Medicare billing privileges based on enrollment applications received on March 12, 2018, following a period of deactivation resulting from a failure to revalidate.  As further explained herein, I find Noridian Healthcare Solutions (Noridian), an administrative contractor for Respondent, the Centers for Medicare & Medicaid Services (CMS), properly established March 12, 2018 as the effective date of Petitioner’s billing privileges.

I.    Background

On August 1, 2017, Noridian advised Petitioner he was obligated to revalidate his Medicare enrollment record by October 31, 2017.  CMS Exhibit (Ex.) 1.  On December 4, 2017, Noridian sent letters to Petitioner stating that his revalidation was past due.  CMS Ex. 2.  On January 18, 2018, Noridian sent a letter informing Petitioner that his Medicare billing privileges were deactivated effective January 8, 2018.  CMS Ex. 3.In its brief, CMS claims Noridian informed Petitioner “his Medicare billing privileges were deactivated…,” CMS Br. at 3, but Noridian’s notice nowhere states that Petitioner’s billing privileges were deactivated.  It only states “We have stopped your Medicare billing privileges on January 8, 2018. . .”  CMS Ex. 3 at 1.  However, the regulations specify “Deactivate means that the provider or supplier’s billing privileges were stopped, but can be restored upon the submission of updated information.”  42 C.F.R. § 424.502 (emphasis added).  Noridian’s notice to Petitioner that it had “stopped” Petitioner’s Medicare billing privileges thus amounts, however obliquely, to a notice of deactivation.  I do not think this level of opacity meets the requirements of due process.  It does not even comport with CMS’s own guidance provided to contractors in 2015 as to model deactivation language.  See Medicare Program Integrity Manual (MPIM) (Rev. 578) § 15.24.5.4 (providing a model notice of deactivation headlined “NOTICE OF DEACTIVATION OF MEDICARE BILLING PRIVILEGES” and stating “This is to inform you that your Medicare [PTAN]. . . . has been deactivated….”).  But whatever my concerns with the lack of adequate notice provided to Petitioner, as I explain infra at 5, I have no jurisdiction over Noridian’s deactivation determination.

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Petitioner contends that he first became aware of his deactivation on or about March 5, 2018 when his explanation of benefits (EOB) indicated that he was not eligible to be paid for services.  P. Br. at 2.  On March 12, 2018, Noridian received CMS-855I and 855R revalidation applications from Petitioner.  CMS Ex. 4; CMS Ex. 7 at 2.  Noridian approved both applications and reactivated Petitioner’s billing privileges effective March 12, 2018.  CMS Ex. 5.  On April 13, 2021, CMS through counsel filed a statement before me indicating CMS would permit Petitioner to retrospectively bill for 30 days preceding his effective date of revalidation pursuant to 42 C.F.R. § 424.521(a), leaving Petitioner with a billing gap from January 8, 2018 through February 9, 2018.  DAB E-file Dkt. No. C-18-941, Doc. No. 20.

Petitioner timely requested reconsideration of Noridian’s effective date determination on April 10, 2018, explaining he never received the revalidation request.  CMS Ex. 6 at 2.  On May 15, 2018, Noridian affirmed its initial effective date determination.  CMS Ex. 7.  Petitioner timely sought hearing before an Administrative Law Judge in the Civil Remedies Division, and I was designated to hear and decide this case.

II.    Admission of Exhibits and Decision on the Record

CMS filed a motion for summary judgment and brief (CMS Br.), as well as eight proposed exhibits (CMS Exs. 1-8).  Petitioner filed a prehearing exchange (P. Br.) opposing summary judgment, as well as six proposed exhibits (P. Exs. 1-6).  Neither party objected to the admission of exhibits.  Therefore, I admit CMS Exs. 1-8 and P. Exs. 1-6 into the record.

In my June 4, 2018 Acknowledgment and Prehearing Order (Pre-Hearing Order), I advised the parties an in-person hearing would only be necessary if a party submitted the written direct testimony of a proposed witness and the opposing party requested an opportunity to cross-examine a witness.  Prehearing Order ¶ 10; Civ. R. Div. P. §§ 16(b), 19(b).  Neither party submitted written direct testimony of a proposed witness.  Therefore, a hearing in this case is unnecessary, and I decide this case based on the

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written record.  Civ. R. Div. P. §§ 16(b), 19(d).  CMS’s motion for summary judgment is denied as moot.

III.  Issue

Whether CMS had a legitimate basis for establishing March 12, 2018 as the effective date of Petitioner’s reactivated billing privileges.

IV.   Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

V.    Findings of Fact, Conclusions of Law, and Analysis

A.  Applicable Law

1. Enrollment

Petitioner participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services it furnishes 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.  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. 

The effective date for its 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).  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).  Assuming other requirements are met, CMS may allow a supplier to bill retrospectively for up to 30 days prior to the effective date.  42 C.F.R. § 424.521(a)(1).

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2. Revalidation

To maintain its billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of its 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).  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).

3. Deactivation

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).  CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the enrollee does not “furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification from CMS to submit an enrollment application and supporting documentation, or resubmit and certify to the accuracy of its enrollment information.”  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). 

4. Reactivation

The reactivation of an enrolled supplier’s billing privileges is governed by 42 C.F.R. § 424.540(b).  The process for reactivation is contingent on the reason for deactivation.  If CMS deactivates a supplier’s billing privileges due to a reason other than non‑submission of a claim, the supplier must apply for CMS to reactivate its Medicare billing privileges by completing and submitting the appropriate enrollment application(s) or recertifying its enrollment information, if deemed appropriate.  42 C.F.R. § 424.540(a)(3), (b)(1).

B.  Analysis

1. Petitioner’s effective date of enrollment is March 12, 2018, as that is the date he filed a subsequently approved revalidation application.

The record demonstrates beyond dispute that after deactivation of Petitioner’s Medicare billing privileges, Noridian received a revalidation application from Petitioner on March 12, 2018 that it subsequently processed to approval.  CMS Ex 4; CMS Ex. 5.  Pursuant to

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42 C.F.R. § 424.520(d)(1), the date Noridian received Petitioner’s subsequently approved application is the date of filing, and therefore the correct effective date of enrollment.  73 Fed. Reg. 69,726, 69,769; Urology Grp. of NJ, LLC, DAB No. 2860 at 7-9 (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), aff’d sub nom. Goffney v. Becerra, 995 F.3d 737 (9th Cir. 2021). 

2. CMS shall grant Petitioner 30 days of retrospective billing from February 10, 2018.

In the course of this litigation, CMS counsel indicated CMS would grant Petitioner 30 days of retrospective billing pursuant to 42 C.F.R. § 424.521(a)(1).  DAB E-file Dkt. No. C-18-941, Doc. No. 20.  Because I have affirmed March 12, 2018 to be the effective date of Petitioner’s enrollment, CMS shall grant Petitioner 30 days of retrospective billing from February 10, 2018.

3. I have no authority to review the deactivation of Petitioner’s billing privileges and cannot afford him equitable relief.

On January 18, 2018, Noridian notified Petitioner that his Medicare billing privileges were deactivated because he did not respond to Noridian’s requests for more information.  CMS Ex. 3.  Petitioner argues that he did not receive Noridian’s letters requesting additional information and that CMS was “negligent” and “did not exhaust all of their options before deactivating [Petitioner’s] enrollment.”  P. Br. at 5.  However, the record shows that Noridian issued two letters to Petitioner on August 1, 2017 and again on December 4, 2017.  CMS Exs. 1-2.  Noridian addressed these letters to the Petitioner’s correspondence addresses and practice location for his reassignment of benefits, as listed in his Medicare enrollment record at the time the letters were sent.  CMS Ex. 1; CMS Ex. 8 at 3, 5, 12, 59.

Petitioner otherwise states that he did not intentionally ignore Noridian’s request to revalidate his enrollment, explaining he called CMS several times and was told “many different things by different representatives” with respect to his enrollment deactivation.  P. Br. at 5-6.  Petitioner claims he spoke with a CMS representative who verified his enrollment status did not require revalidation at that time.  Id. at 3.  Finally, Petitioner argues that his lapse in billing occurred as a result of “extremely unorganized and poorly trained” management.  Id. at 5.

Even if Petitioner received differing messages from CMS on how to proceed with his enrollment revalidation application, I have no authority to review CMS’s decision to deactivate a supplier.  This is because deactivation is not an “initial determination” subject to review by an administrative law judge.  See 42 C.F.R. § 498.3(b)(6); Urology Grp., DAB No. 2860 at 6 (“The regulations do not grant suppliers the right to appeal

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deactivations.”); Goffney, DAB No. 2763 at 7 (“Only facts relevant to the effective date resulting from the ... application were material to the ALJ decision.”).Deactivation decisions in fact have an altogether separate review process that requires a provider or supplier dissatisfied with deactivation to file a rebuttal with CMS’s administrative contractor.  42 C.F.R. § 424.545(b).  It is not clear from the record whether Petitioner sought relief from Noridian through this rebuttal process.  My jurisdiction in this case is limited to reviewing the effective date of the approval of Petitioner’s reactivation enrollment application.  42 C.F.R. § 498.3(b)(15).

Furthermore, I have no authority to review CMS’s revalidation process or otherwise grant Petitioner any form of equitable relief.See, e.g., US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding that the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements); UpturnCare Co., DAB No. 2632 at 19 (2015) (providing the Board may not overturn denial of provider enrollment in Medicare on equitable grounds). 

VI.   Conclusion

CMS properly determined Petitioner’s effective date of re‑enrollment to be March 12, 2018, the date he filed an enrollment application that was subsequently approved.  Consistent with CMS’s submissions in this case, CMS shall grant Petitioner 30 days of retrospective billing preceding this effective date.