Alta Medical Services PC, DAB CR6011 (2022)

DECISION

Petitioner, Kenneth Libre, MD, on behalf of Alta Medical Services PC, appeals the determination establishing the effective date of its Medicare reactivation and a resulting gap in billing privileges as a Medicare supplier.  For the reasons explained below, I find that Noridian, an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), properly determined that the effective date of Petitioner’s Medicare reactivation is March 21, 2019, with retrospective billing permitted as of February 19, 2019, and a resulting gap in reimbursement from August 9, 2018 through February 18, 2019.  Based on the record, I affirm the reactivation effective date of March 21, 2019.

I. Background and Procedural History

Petitioner has been enrolled in the Medicare program as a supplier since 2004.  CMS Exhibit (Ex.) 1 at 12.  Noridian sent two notices to Petitioner on March 2, 2018, stating that every 5 years, CMS required it to revalidate its Medicare enrollment record and this needed to be completed by May 31, 2018.  CMS Ex. 1 at 1, 3.  Petitioner was warned in the notices that a failure to respond could result in possible deactivation of its Medicare enrollment, non-payment for services rendered, and a gap in reimbursement.  The notices were mailed to Alta Medical Services PC, Attn:  Carolyn Anctil, at two different

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addresses:  10160 E Highway 210 1, Alta, Utah 84092 and PO Box 8072, Alta, Utah  84092-8072.  CMS Ex. 1 at 1, 3.

Petitioner did not respond to the March 2, 2018 notices.  As a result, in a letter dated August 27, 2018, Noridian notified Petitioner that it had placed a stop on Medicare billing effective August 9, 2018 because it had not revalidated its enrollment and no Medicare claims would be paid after that date.  CMS Ex. 2.

On March 21, 2019, Noridian received a CMS-855B application to reactivate the enrollment of Alta.  CMS Ex. 3; CMS Ex. 6 at 2.  Additional information was requested from Petitioner on March 28, 2019, which was provided on April 6, 2019.  CMS Ex. 6 at 2, 3.  In a letter dated April 11, 2019, Petitioner was notified that the revalidated Medicare enrollment application was approved but there would be a billing gap from August 9, 2018 through March 20, 2019.  CMS Ex. 4 at 1.  Petitioner filed a request for reconsideration on April 26, 2019, contesting the effective date and the resulting billing gap.  CMS Ex. 5 at 4.  However, in a reconsideration determination dated July 29, 2019, Noridian concluded that it could not remove the lapse in billing privileges but Petitioner was eligible for retrospective billing, leaving a billing lapse from August 9, 2018 through February 18, 2019.  CMS Ex. 6 at 4.

Petitioner filed a timely request for hearing before an Administrative Law Judge (ALJ).  On September 20, 2019, Judge Weyn issued a Prehearing Order (Order).This case was initially assigned to Judge Weyn but was reassigned to me on June 29, 2021.  CMS filed a motion for summary judgment with a brief in support of the motion (CMS Br.), accompanied by six proposed exhibits (CMS Exs. 1-6).  Petitioner filed a written argument, which is construed as a brief (P. Br.).  Petitioner did not object to the exhibits submitted by CMS.  In the absence of any objection, CMS 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.  APHO ¶ 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 record.Because 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 March 21, 2019 as the effective date for the reactivation of Petitioner’s Medicare billing privileges.

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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 42 U.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.

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).

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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 March 21, 2019, 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 a CMS-855B application to reactivate the enrollment of Petitioner on March 21, 2019.  CMS Ex. 6 at 2.  Following the submission of additional information, Petitioner was notified on April 11, 2019 that the revalidated Medicare enrollment application was approved.  CMS Ex. 4.  Petitioner does not assert, nor does the record establish, that the revalidation enrollment application was received prior to March 21, 2019.  As a result, given that March 21, 2019 is the date that Noridian received the revalidation enrollment application that was subsequently processed to completion, I find that this is the effective date of Petitioner’s Medicare billing privileges.

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

Petitioner initially argued that it was a seasonal business and treated very few Medicare patients.  CMS Ex. 5 at 4.  It noted that the amount of time spent on Medicare filings was inordinate and it would consider opting out of Medicare but for the fact that the program was important for the greater good of society.  Petitioner later alleged that it did not respond to letters sent by Noridian stating the need to revalidate because they were addressed individually to Carolyn Anctil, rather than Kenneth Libre, MD, who was listed as the contact person for CMS.While not relevant given my lack of jurisdiction over this issue, I note that Carolyn Anctil was listed as an owner and authorized official of the organization in 2013, which was apparently the last time this supplier revalidated its enrollment. CMS Ex. 1 at 11-13.  P. Br. at 1.  It asserted that it was unaware that its Medicare status had lapsed and had no record of any communication from Medicare or

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Noridian of the need for Dr. Libre to revalidate.While also not relevant because of the lack of jurisdiction over this issue, I would note that Petitioner had a duty to file a timely application for reactivation of its billing privileges even if it received no notices from the contractor. As a participant in Medicare, Petitioner must understand its obligations to the program and abide by program requirements. Regulations require all suppliers to revalidate their billing privileges every five years. 42 C.F.R. § 424.515. That requirement imposes a duty on every supplier to file a timely reactivation request whether or not it receives notice that one is due. See Waterfront Terrace, DAB No. 2320 at 7 (2010). In this case, there was a notice with the correct business name and correct business address, bearing the name of an apparent previous owner, suggesting a need to at least investigate whether it was time to revalidate.  With respect to these arguments related to the 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 appeal.  Deactivation decisions have a separate review process involving the submission of a rebuttal to CMS.  42 C.F.R. §§ 424.545(b), 498.3(b).  As the Board 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.”  Howard M. Sokoloff, DPM at 5; citing Urology Group of NJ, LLC, DAB No. 2860 at 6 (2018).

Similarly, while Petitioner’s argument of serving Medicare patients only as a public service is certainly altruistic, 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 and cannot change Petitioner’s effective date for that reason.  US Ultrasound, DAB No. 2302 at 8 (2010) (“(n)either 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 reconsideration determination over which I have jurisdiction is the effective date of the enrollment application reinstating Petitioner’s Medicare billing privileges.

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V. Conclusion

I affirm the effective date of Petitioner’s Medicare enrollment to be March 21, 2019, with retrospective billing privileges from February 19, 2019.