Megan Schweizer, FNP, DAB CR5920 (2021)

DECISION

Petitioner, Megan Schweizer, FNP, appeals the determination establishing the effective date of her Medicare reactivation, and the resulting gap in her billing privileges as a Medicare supplier.  For the reasons explained below, I find that Noridian Healthcare Solutions (Noridian), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), properly determined that the effective date of Petitioner’s Medicare reactivation is October 17, 2018, with retrospective billing permitted as of September 17, 2018.

I. Background and Procedural History

Petitioner is enrolled in the Medicare program as a supplier of nurse practitioner services. CMS Exhibit (Ex.) 2.& Noridian sent notices to Petitioner on February 1, 2018, stating that every 5 years, CMS required her to revalidate her Medicare enrollment record and the required revalidation information needed to be provided by April 30, 2018.  CMS Ex. 3. These notices were sent to Petitioner at 3617S Pacific Hwy, Medford, OR 975018957 and PO Box 4609, Portland, OR 972084609. CMS Ex. 3 at 1, 3. Petitioner was warned

Page 2

in the notices that failure to respond could result in possible deactivation of her Medicare enrollment and non-payment for services rendered during the period of deactivation.

Petitioner did not respond to the February 1, 2018 notices. On May 11, 2018, Noridian sent letters to Petitioner, indicating that Petitioner had not revalidated by the required April 30, 2018 deadline. CMS Ex. 4. These letters were again sent to 3617S Pacific Hwy, Medford, OR 975018957 and PO Box 4609, Portland, OR 972084609. CMS Ex. 4 at 1, 3. There was no response from Petitioner to the May 11, 2018 letters, either. As a result, in a letter dated July 19, 2018, Noridian notified Petitioner that it had placed a stop on her Medicare billing privileges effective July 3, 2018, because she had not revalidated her enrollment, and no Medicare claims would be paid after that date. CMS Ex. 5.

On July 30, 2018, CMS received an application to revalidate the enrollment of Petitioner.  CMS Ex. 6 at 1. In an e-mail dated September 4, 2018 to Jamie Knight, Petitioner’s designated contact, CMS requested additional information relating to that application. CMS Ex. 7. On October 10, 2018, Noridian notified Petitioner’s designated contact that the Medicare enrollment application received on July 30, 2018, was rejected because it was incomplete and did not include the reassignment information requested on September 4, 2018. CMS Ex. 8.

Petitioner submitted another revalidation Medicare enrollment application, which was received on October 17, 2018. CMS Ex. 9 at 1. Petitioner was subsequently notified on March 23, 2019, that her revalidated Medicare enrollment application was approved, but there would be a gap in billing privileges from July 3, 2018 through October 16, 2018, for failure to timely submit her revalidation application. CMS Ex. 12. Petitioner filed a request for reconsideration received on May 10, 2019,The original request for reconsideration dated March 26, 2019, was returned because it was not signed by an authorized/delegated official or representative. CMS Ex. 14 at 17. contesting the effective date and the resulting billing gap, asserting that she never received the notification to revalidate because the notices were sent to her former employer’s address. CMS Ex. 14 at 2. However, in a reconsidered determination dated July 29, 2019, Noridian concluded that it could not remove the lapse in billing privileges and the effective date was correct.  CMS Ex. 1. In that determination, Noridian did update the lapse in billing privileges to July 3, 2018 through September 16, 2018, to reflect retrospective billing.

Petitioner filed a timely request for hearing before an Administrative Law Judge (ALJ). On October 9, 2019, Judge Weyn issued a Prehearing Order (Order).This case was initially assigned to Judge Weyn but was reassigned to me on July 14, 2021. CMS filed a motion for summary judgment with a brief in support of the motion (CMS Br.), accompanied by 14 proposed exhibits (CMS Exs. 1-14).  Petitioner filed six proposed

Page 3

exhibits, which included a written argument (P. Exs. 1-6).  In the absence of any objection from either party, CMS Exs. 1-14 and P. Exs. 1-6 are admitted into the record.  The Order advised the parties to submit written direct testimony for each witness and that an in-person hearing would be held only if a party requested to cross-examine a witness.  Order ¶ 10.  Neither party offered the written direct testimony of any witness as part of its prehearing exchange.  As a result, an in-person hearing is not necessary, and I issue this decision based on the written recordBecause a hearing is not necessary, I need not decide whether summary judgment is appropriate.

II. Issue

The issue in this case is whether Noridian, acting on behalf of CMS, properly established October 17, 2018, as the effective date for the reactivation of Petitioner’s Medicare billing privileges.

III. Jurisdiction

I have jurisdiction to hear and decide this case. 42 C.F.R. §§498.3(b)(15), 498.5(l)(2); see also 42U.S.C. §1395cc(j)(8).

IV. Discussion

A. Applicable Authority

The Social Security Act (Act) authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers. 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. 42 U.S.C. §1395x(d); see also 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 term “Enroll/Enrollment means the process that Medicare uses to establish eligibility to submit claims for Medicare covered items and services.” 42 C.F.R. §424.502 (emphasis in original). A supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.” 42 C.F.R. §424.510(a). Once the supplier successfully completes the enrollment process, CMS enrolls the 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.

Page 4

To maintain Medicare billing privileges, suppliers must revalidate their enrollment information at least every five years.  42 C.F.R. §424.515. When CMS notifies suppliers that it is time to revalidate, suppliers must submit the applicable enrollment application, with complete and 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 supplier’s Medicare billing privileges if the enrollee fails to comply with revalidation requirements. 42 C.F.R. §424.540(a)(3). If CMS deactivates a supplier’s billing privileges due to an untimely response to a revalidation request, the enrolled supplier may apply to 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)-(2).

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

1. The effective date of Petitioner’s Medicare billing privileges is October 17, 2018, the date Noridian received the revalidation enrollment application it subsequently processed to approval.

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). The Departmental Appeals Board has applied these effective date provisions to reactivation cases.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6-7 (2019).

In this case, Noridian received an application to revalidate Petitioner’s enrollment on October 17, 2018.  CMS Ex. 9.  Petitioner was notified on March 23, 2019, that the revalidation Medicare enrollment application received on October 17, 2018, was approved.  CMS Ex. 12.  Petitioner does not assert, nor does the record establish, that the revalidation enrollment application that was processed to approval was received prior to October 17, 2018.  As a result, given that October 17, 2018, is the date that Noridian received the revalidation enrollment application that was subsequently processed to

Page 5

approval, I find that this is the effective date of Petitioner’s Medicare billing privileges, with retrospective billing privileges beginning September 17, 2018.When a contractor approves an enrollment application, it may allow retrospective billing for up to 30 days prior to the effective date established under 42 C.F.R. § 424.520(d) for a supplier who meets all program requirements and is providing Medicare-covered services.  42 C.F.R. § 424.521(a)(1).  While the initial determination dated March 23, 2019, did not authorize retrospective billing, the reconsidered determination dated July 29, 2019, granted retrospective billing beginning September 17, 2018.  CMS Exs. 1, 12.

As noted above, Petitioner did file an earlier revalidation Medicare enrollment application that was received on July 30, 2018. CMS Ex. 6. However, this application was rejected by Noridian on the basis of missing information. CMS Ex. 8. I have no authority to review the rejection of this application in order to find an earlier effective date of billing privileges.  The relevant regulation makes it quite clear that an enrollment application that is rejected may not be appealed. 42 C.F.R. § 424.525(d); see James Shepard, M.D., DAB No. 2793 at 8 (2017) (holding that 42 C.F.R. §424.525(d) “plainly prohibits” an administrative law judge from reviewing a rejected application because there are no appeal rights for such a determination). As a result, the rejected revalidation enrollment application received on July 30, 2018 cannot serve as a basis for an earlier effective date for Medicare billing privileges.

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

Petitioner argues that she never received any notifications from CMS in 2018 that revalidation was needed and all of the revalidation notices were sent to her previous employer’s address, despite having updated her address.  CMS Ex. 13 at 2; P. Ex. 1.  In support of this argument, Petitioner cited to a letter from Noridian dated May 19, 2015, in which Noridian affirmed that its files had been updated to reflect a primary practice address of 1600 Delta Waters Rd, Medford, OR 97504-9114.  P. Ex. 1 at 2.  Petitioner also noted that the May 19, 2015 letter was also correctly addressed to her correspondence address of 815 N Central Ave, Ste C, Medford, OR 97501-5873.  P. Ex. 1 at 1.  Petitioner suggests that CMS mistakenly switched the termination date of her former employment with her current employment since it showed her current employer as terminated as of March 26, 2015 and a former employer active until July 3, 2018.  P. Ex. 4.  Petitioner also indicates that while the revalidation application was being processed, she continued to care for Medicare patients because she wanted to ensure good care for them, and it was “the right thing to do for patient care.”  CMS Ex. 13 at 2.

I am sympathetic to Petitioner’s claims, which are accompanied by correspondence from CMS that certainly could have led her to believe that she had properly updated her

Page 6

addresses.  However, with respect to the arguments related to the lack of notice of the need to revalidate and the subsequent deactivation, I must make clear that I have no authority to review CMS’s deactivation of Petitioner’s Medicare billing privileges 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. of NJ, LLC, DAB No. 2860 at 6 (2018) (“The regulations do not grant suppliers the right to appeal deactivations.”). Considering an argument similar to that made in the instant case, the Board stated that “whether or not Petitioner was notified of the deactivation of its Medicare billing privileges is outside the Board’s authority to review.”Urology Grp., DAB No. 2860 at 7. The Board in Sokoloff stated, “[w]hile CMS and Medicare administrative contractors are authorized to reject a supplier’s revalidation application and deactivate the supplier’s billing privileges, ALJs and the Board are not authorized to assess whether the deactivation of a supplier’s billing privileges was correct.” DAB No. 2972 at 5 (citing Urology Grp., DAB No. 2860 at 6). Instead, deactivation decisions have a separate review process involving the submission of a rebuttal to CMS.  42 C.F.R. §424.545(b).

Similarly, while Petitioner’s arguments are compelling and reflect both good faith efforts to comply with the reporting requirements and concern for the aging population she serves, I do not have the authority to consider Petitioner’s request to change the effective date to eliminate the gap in billing caused by the deactivation on equitable grounds. I have no authority to provide Petitioner any form of equitable relief based on principles of fairness or equitable estoppel and cannot change Petitioner’s effective date for that reason. 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.”). Thus, the only issue in the reconsidered determination over which I have jurisdiction is the effective date of the revalidation enrollment application reinstating Petitioner’s Medicare billing privileges.

V. Conclusion

I affirm the effective date of Petitioner’s Medicare enrollment to be October 17, 2018, with retrospective billing privileges beginning September 17, 2018.