Selah Family Chiropractic, P.S., DAB CR6170 (2022)

DECISION

Petitioner, Selah Family Chiropractic, P.S., challenges CMS’s determination of its effective date of reactivation as a biller to the Medicare program following a period of deactivation resulting from its failure to revalidate.  As explained herein, I find Respondent, the Centers for Medicare & Medicaid Services (CMS), properly determined September 23, 2019 as the effective date of Petitioner’s enrollment, as that is the date Petitioner filed an application that was subsequently approved.

I.    Background

On October 30, 2018, CMS contractor Noridian Healthcare Solutions (Noridian) advised Petitioner’s principal, Dr. David Lemmon, that Petitioner was obligated to revalidate its Medicare enrollment record by January 31, 2019.  CMS Ex. 1.  Noridian notified Petitioner by mail in a letter addressed to Dr. Lemmon at Petitioner’s office location at 318S 1st St., Selah, WA 98942 (Office Location).  CMS Ex. 3 at 1.  Noridian also issued a separate letter that day to Dr. Lemmon at the Office Location advising him to revalidate his own Medicare enrollment record by January 31, 2019.  Noridian issued a copy of that notice to Dr. Lemmon mailed to 107W Orchard Ave., Selah WA 98942 (the Orchard Address).  CMS Ex. 1 at 1.

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On February 28, 2019, Noridian notified Dr. Lemmon by letters mailed to both the Office Location and the Orchard Address that he and his practice had failed to revalidate their Medicare billing privileges by the established due date.  CMS Exs. 4, 5.

On April 8, 2019, Noridian sought corrections to a pending enrollment application from Petitioner by e-mail, warning that failure to provide the requested information within 30 days might result in denial of the application.¹  CMS Ex. 6.  Despite providing a 30-day window for Petitioner to submit the requested corrections, Noridian advised Dr. Lemmon only seven days later that his billing privileges were “stopped” as of April 2, 2019.²  CMS Ex. 7.  On June 25, 2019, Noridian advised Petitioner its billing privileges were “stopped” as of April 2, 2019 as well.  CMS Ex. 8.

On September 11, 2019, Dr. Lemmon submitted an individual enrollment revalidation paper application by U.S.P.S. Priority Mail.  CMS Ex. 9 at 24, 26.  Noridian claimed it received this application on September 23, 2019.³  After lengthy back-and-forth communication with Petitioner, Noridian ultimately approved Dr. Lemmon’s revalidation application on March 17, 2020, indicating he would have a gap in his Medicare billing privileges from April 2, 2019 to October 23, 2019.  CMS Ex. 21 at 1.  Upon timely request for reconsideration, Noridian affirmed its effective date determination but conceded it had misstated the billing gap period in its initial determination.  CMS Ex. 25

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at 4; CMS Ex. 26 at 4.  Noridian determined Petitioner’s billing gap period ran from April 2, 2019 through August 23, 2019.⁴  Petitioner timely requested a hearing before an Administrative Law Judge (ALJ) in the Civil Remedies Division and I was designated to hear and decide this case.

II.    Admission of Exhibits and Decision on the Record

On September 25, 2020, I issued an Acknowledgment and Pre‑hearing Order (Pre‑hearing Order) setting forth a schedule for the parties to submit arguments and evidence.  CMS filed a motion for summary judgment and brief (CMS Br.) and 26 proposed exhibits (CMS Exs. 1-26).  Petitioner failed to timely file its pre-hearing exchange, but in response to an Order to Show Cause submitted a pleading on December 23, 2020.

Petitioner proposed no exhibits and identified no witnesses.  Nor did it object to CMS’s proposed exhibits.  I therefore admit CMS Exhibits 1 through 26 into the record.  Because neither party identified witnesses for which the opposing party could seek cross-examination, I will not hold an in-person hearing in this matter and issue this decision based on the record before me.⁵  Civ. Remedies Div. P. § 19(d). 

III.    Issue

Whether CMS had a legitimate basis to establish September 23, 2019, 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).  

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V.    Findings of Fact, Conclusions of Law, and Analysis⁶

A. Applicable Law

1. Enrollment

Petitioner participates in the Medicare program as a “supplier” of services.  Social Security Act (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 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).  If a supplier satisfies certain requirements, 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).

A Medicare beneficiary may assign the right to receive Medicare Part B benefits for covered medical services to an enrolled supplier who delivers those services.  Act § 1842(b)(3)(B)(ii) (42 U.S.C. § 1395u(b)(3)(B)(ii)); 42 C.F.R. § 424.55.  In certain circumstances, a supplier who has received an assignment of benefits may reassign those benefits to an employer, or to an individual or entity with which the supplier has a contractual arrangement.  Act § 1842(b)(6) (42 U.S.C. § 1395u(b)(6)); 42 C.F.R. § 424.80(b)(1)‑(2).  To reassign Medicare benefits, a supplier must submit and obtain CMS’s approval of a reassignment application.  Gaurav Lakhanpal, MD, DAB No. 2951 at 1-2 (2019) (citing 71 Fed. Reg. 20,754, 20,756 (Apr. 21, 2006)).  CMS applies the

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effective date rules at 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) to reassignments of Medicare benefits.  See MPIM (CMS Pub. 100-08) §§ 15.5.20(E)(3), 15.17.

2. Revalidation

To maintain billing privileges, a supplier must resubmit and recertify the accuracy of its enrollment information at least every five years, a process referred to as “revalidation.”  42 C.F.R. § 424.515.  Beyond these 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 nonsubmission 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).

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B. Analysis

1. Petitioner filed a subsequently approved revalidation application on September 23, 2019, making that the effective date of its Medicare enrollment.

Petitioner submitted a revalidation application to Noridian by mail on September 11, 2019.  CMS Ex. 9 at 24, 26.  CMS asserts Noridian received this application on September 23, 2019.  CMS Br. at 4, citing CMS Exs. 25 and 26.  But CMS Exhibits 25 and 26 are simply Noridian’s reconsideration request determinations for Petitioner and Dr. Lemmon.  These determinations refer to the date of receipt of the application, but a reference is not evidence, as CMS seems to believe.  On my own review, however, I observe Petitioner’s paper application bears a bar code on the top of each page that includes the numbers “09242019” in a longer string.  See, e.g., CMS Ex. 9.  I infer from this bar coding that Petitioner’s application was processed by Noridian on September 24, 2019.  CMS does not bother to explain why Noridian claims it received Petitioner’s application a day earlier.  But because the agency’s silence on the topic weighs in Petitioner’s favor, I will not address it further.⁷

And while there is a prior enrollment application from approximately April 2019 – which CMS referenced but failed to demonstrate was denied – there is no evidence in the record before me, including any claim by Petitioner, of an application submitted earlier than the one Petitioner submitted on September 23, 2019 that Noridian received and subsequently approved.  Therefore, pursuant to 42 C.F.R. § 424.520(d), the date Petitioner filed its subsequently approved enrollment application – September 23, 2019 – is the correct effective date of enrollment.  Urology Grp. of NJ, LLC, DAB No. 2860 at 7-9 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017). 

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

Petitioner’s principal Dr. Lemmon discusses at great length the circumstances which led to the failure to timely revalidate both his and his practice’s enrollment status, resulting in deactivation of both by Noridian.  P. Br. at 1-5.  He explains that an incompetent or dishonest employee concealed the fact of his deactivation as well as the fact that he received no reimbursement from the Medicare program for his practice’s claims for months.  Id. at 1-2.  Dr. Lemmon points out that regardless of the nature of the financial discrepancies caused by his former employee, he has competently delivered treatment to

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Medicare beneficiaries during the periods of time his practice was not authorized to bill for his services.  Id. at 3.  He concedes that he should have paid closer attention to operational and business concerns, despite his busy medical practice, but requests, as a matter of fairness, reimbursement for all services provided during the billing gap period between the deactivation and reactivation of his practice’s billing enrollment.  Id. at 4-5.

I recognize the value of the services Dr. Lemmon and his practice have provided to Medicare beneficiaries.  I fully credit his explanation that a wayward employee charged with a high level of discretion over his billing affairs failed to respond to Noridian’s validation requests or apprise him of his subsequent deactivation.  But while I am sympathetic to the fact that Dr. Lemmon and his practice have suffered a significant loss of income, all while honestly rendering services to the Medicare program, I have no authority under the law to revise the effective date of reactivation determined by CMS (or in this case, its contractor).  Nor am I empowered to provide Petitioner the equitable relief Dr. Lemmon requests.  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 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). 

VI.     Conclusion

For the reasons explained above, I affirm CMS’s determination of September 23, 2019 as the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges.

Endnotes

¹ CMS alludes to this prior enrollment application but the record shows no outcome.  CMS Br. at 3, citing CMS Ex. 6.  Failing to demonstrate an application was in fact denied calls into question which application Noridian eventually approved.  Nevertheless, I infer from the fact that Petitioner filed another application in September 2019 that the earlier one was denied.  In addition, Petitioner makes no claim in its own pleading that an earlier application was pending from which I should establish an effective date here.

² Noridian’s notice that it had “stopped” Petitioner’s Medicare billing privileges appears, however obliquely, to be a notice of deactivation.  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).  The failure to simply use the words “deactivate” or “deactivation” is needlessly confusing to suppliers like Petitioner.  CMS’s own guidance as to model deactivation language, provided to contractors in 2015, requires the use of more explicit 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 or the fact that it did not receive the 30 days Noridian promised to submit requested corrections, I have no jurisdiction over Noridian’s deactivation determinations.  Urology Grp. of NJ, LLC, DAB No. 2860 at 6 (2018) (“The regulations do not grant suppliers the right to appeal deactivations.”); Willie Goffney, Jr., M.D., DAB No. 2763 at 6 (2017) (“Only facts relevant to the effective date resulting from the . . . application were material to the ALJ decision”).

³ CMS makes this assertion without proffering any actual evidence.  CMS Br. at 4, citing CMS Exs. 25 and 26.

⁴ As I have observed in other decisions concerning effective date determinations, CMS’s contractors persist in mistakenly identifying the retrospective billing date as the effective date; Noridian is no exception.  The regulations distinguish between the effective date and the date from which retrospective billing is permitted.  Compare 42 C.F.R. §§ 424.520(d), with 424.521(a)(1).  Noridian refers to August 24, 2020 as Petitioner’s “effective date” of reactivation.  CMS Ex. 25 at 4; CMS Ex. 26 at 4.  In fact, Noridian established Petitioner’s effective date of reactivation to be September 23, 2020, and applied 30 days of retrospective billing as permitted by 42 C.F.R. § 424.521(a)(1).

⁵ CMS’s motion for summary judgment is denied as moot.

⁶ My findings of fact and conclusions of law are set forth in italics and bold font.

⁷ CMS managed to proffer 26 exhibits yet failed to identify or discuss the one piece of evidence necessary for me to decide this matter – documentation of the receipt date of Petitioner’s application by Noridian that the contractor subsequently approved.  It is not best practice for lawyers to dump evidence and leave it for me to knit together the factual basis of their arguments.  U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”).