John Nwora, MD, DAB CR5957 (2021)

DECISION

Petitioner, John Nwora, MD, challenges the effective date of his Medicare billing privileges based on an enrollment application received on March 29, 2019, following a period of deactivation resulting from a failure to respond to a development request related to a revalidation application.  As further explained herein, I find that Wisconsin Physicians Service Insurance Corporation (WPS), an administrative contractor for Respondent, the Centers for Medicare & Medicaid Services (CMS), properly established March 29, 2019 as the effective date of Petitioner’s billing privileges, with a 30-day retrospective billing date of February 27, 2019.

I. Background and Procedural History

On October 30, 2018, WPS sent a letter to Petitioner informing him that he must revalidate his Medicare enrollment record no later than January 31, 2019.  CMS Ex. 2 at 1-2.  Petitioner submitted an electronic revalidation application on November 6, 2018.  CMS Ex. 3 at 1-7.  On November 15, 2018, WPS requested corrections to the application

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and additional documents needed to complete the application.  CMS Ex. 4 at 1-2.  WPS warned Petitioner that if it did not receive his response within 30 days, it could cause his application to be rejected.  Id. Petitioner did not provide the requested materials within the 30-day period and CMS rejected the application.  CMS Ex. 5 at 1-2. As his revalidation was incomplete, CMS stopped Petitioner’s billing privileges, effective January 31, 2019.  CMS Ex. 6 at 1-2.

Petitioner filed a second revalidation application on February 19, 2019.  CMS Ex. 7 at 1-6.  One week later, Petitioner was notified via email that WPS needed corrections to the application and requested additional documents to complete the application.  Those documents included IRS documents containing his legal business name and tax identification number, such as IRS CP 575.  He was warned that failure to make the corrections and provide the documents within 30 days could result in rejection of this application.  CMS Ex. 8 at 1-2.  His response was filed the following day.  CMS Ex. 9 at 1-14.  The IRS form provided was IRS Form 940 (employer’s annual federal unemployment tax return), not a requested IRS issued document containing his legal business name and tax identification number.  CMS Ex. 9 at 7-9.  Petitioner was notified on March 18, 2019 that he still needed to provide an IRS-issued document containing his legal business name and tax identification number. Petitioner was informed that failure to submit the requested documents within 10 days could result in the application being rejected.  CMS Ex. 10 at 1.  Petitioner failed to provide the requested documents and WPS rejected the application.  CMS Ex. 11 at 1-2.

Petitioner submitted a third revalidation application on March 29, 2019.  CMS Ex. 12 at 1-7.  In a letter dated May 9, 2019, WPS approved the application and reactivated Petitioner’s billing privileges effective February 27, 2019, leaving a billing gap from January 31 through February 26, 2019.  CMS Ex. 13 at 1-3.  Petitioner timely requested reconsideration of WPS’s effective date determination, stating:

I would like to request a reconsideration for John O. Nwora. In the letter it states that the gap is from January 31st to February 26th, 2019 for failure to respond.  However, the first time that I tried to fix the revalidation by resubmitting the application was on February 19th, 2019. Throughout this process, I have spoken with many analysts and Medicare employee's that not only couldn't assist me with the questions I had, but also gave me the run around.  When I would receive an email about fixing something within the application, only one thing at a time would be brought to my attention making me wait over 20 days for the next error.  Also the timely manner for the corrections was inconsiderate.  I would receive an email about fixing errors late Friday

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afternoon and they would need to be fixed by the following Sunday, which is not during office hours . . . .

CMS Ex. 14 at 1.

A WPS hearing officer issued a reconsidered determination on June 27, 2019, upholding WPS’s effective date determination.  CMS Ex. 1 at 1-4.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on June 22, 2019. ALJ Bill Thomas issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on July 31, 2019, at which time he directed the parties to file their respective pre-hearing exchanges.  This case was reassigned to me on July 27, 2021.  I adopt Judge Thomas’s Pre-hearing Order.  

II. Admission of Exhibits and Decision on the Record

CMS filed a pre-hearing brief and motion for summary judgment, along with 14 proposed exhibits (CMS Exs. 1-14).  Petitioner filed a prehearing brief opposing CMS’s motion for summary judgment, but did not propose any exhibits.  Petitioner did not object to CMS’s exhibits.  In the absence of any objections, I admit CMS Exs. 1-14 into the record.  As neither party offered written direct testimony of a witness as part of the prehearing exchange, a hearing for the purpose of cross-examination is unnecessary.  Pre-Hearing Order at 6.  I decide this case based on the 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 29, 2019 as the effective date of Petitioner’s reactivated billing privileges.

IV. Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R § 498.3(b)(15); 498.5(l)(2); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); see also 42 U.S.C. § 1395cc(j)(8).

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

A. Applicable Law 

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

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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 a supplier’s 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).

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).

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).  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).  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).

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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. Pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner’s Medicare enrollment is March 29, 2019, which is the date of receipt of the Medicare enrollment application that WPS was able to process to approval, and retrospective billing privileges are authorized beginning February 27, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).

I can only review the effective date assigned for Petitioner’s reactivated billing privileges.  Petitioner does not argue, nor present any evidence, that he submitted a completed application for purposes of reactivation prior to March 29, 2019.  Pursuant to 42 C.F.R. § 424.520(d), WPS had a legitimate basis to deactivate his billing privileges from January 31, 2019 through February 26, 2019.  WPS received a reactivation application from Petitioner on March 29, 2019 that it subsequently processed to approval. CMS Ex. 12; CMS Ex. 13.  Pursuant to 42 C.F.R. § 424.520(d)(1), the date WPS 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).  Pursuant to 42 C.F.R. § 424.521(a)(1), WPS also granted Petitioner 30 days of retrospective billing, the maximum retroactive period permitted, which allowed him to bill Medicare for services from February 27, 2019. CMS Ex. 13 at 1-3.

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

By letter dated October 30, 2018, WPS directed Petitioner to revalidate his Medicare enrollment record no later than January 31, 2019.  WPS warned that Petitioner’s failure to revalidate could result in deactivation of his Medicare billing privileges, with a resulting gap in reimbursement.  CMS Ex. 4 at 1-2. WPS thereafter deactivated Petitioner’s billing privileges effective January 31, 2019, after Petitioner did not provide information correcting errors on his application and to provide needed forms to complete that process.  CMS Ex. 6 at 1-2. After three attempts to revalidate Petitioner’s enrollment in Medicare,

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WPS approved his application but with a billing privileges gap from January 31, 2019 through February 26, 2019. CMS Ex. 13 at 1-3.  

As previously stated, Petitioner did not provide any evidence to support an earlier reactivation date. Petitioner argues that he was given the “runaround” by CMS during the revalidation process, and the timeframe he was given was inadequate to provide the requested information.  See P. Br.  Petitioner’s arguments are without merit. 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 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 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 WPS through this rebuttal process. My jurisdiction in this case is limited to reviewing the effective date of Petitioner’s reactivation enrollment application.  42 C.F.R. § 498.3(b)(15).

Furthermore, considering that Petitioner’s request for relief is based on equitable grounds, I do not have the authority to grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  I have no authority to declare statutes or regulations invalid. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”).

VI. Conclusion

For the foregoing reasons, I find that CMS properly determined Petitioner’s effective date of reenrollment to be March 29, 2019, the date he filed a reactivation application that was subsequently approved, with a retrospective billing date of February 27, 2019.