C. Naganna MD, PA d/b/a Carroll Precision Imaging Center, Carroll Heart Center, DAB CR6179 (2022)

DECISION

The Centers for Medicare & Medicaid Services (CMS) determined that the effective date for the reactivation of Medicare billing privileges for C. Naganna MD, PA d/b/a Carroll Precision Imaging Center, Carroll Heart Center (Petitioner) is April 1, 2022.  Because CMS applied the wrong regulation for determining the effective date, I modify the effective date for reactivation to March 31, 2022.

I.    Procedural History

Petitioner is an independent diagnostic testing facility (IDTF) that was first enrolled in the Medicare program in 2009.  CMS Ex. 12.  A Medicare contractor deactivated Petitioner’s Medicare billing privileges.  CMS Ex. 10.  Petitioner filed an enrollment application to reactivate its Medicare billing privileges.  CMS Ex. 9.  After Petitioner provided additional information to the Medicare contractor, the Medicare contractor issued a notice of an initial determination reactivating Petitioner’s Medicare billing privileges as of April 1, 2022.  CMS Exs. 3, 4, 8.

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On May 4, 2022, Petitioner requested reconsideration of the effective date of reactivation and disputed the deactivation.  CMS Ex. 2.  In a July 8, 2022 reconsidered determination, a CMS hearing officer upheld the deactivation of billing privileges and the reactivation effective date of April 1, 2022.  CMS Ex. 1 at 4.  In doing so, the CMS hearing officer applied the provisions in 42 C.F.R. §§ 424.516(b) and 424.540(a)(2) as support for the deactivation and 42 C.F.R. §§ 410.33(i) and 424.520(b) as support for the effective date of reactivation.  CMS Ex. 1 at 4.

On August 2, 2022, Petitioner requested a hearing to dispute the effective date for the reactivation of Petitioner’s billing privileges; however, the content of the hearing request was directed at the events involving the deactivation of billing privileges and the gap in payment for services caused by the deactivation.  Also on August 2, 2022, the Civil Remedies Division (CRD) acknowledged receipt of the hearing request and issued my Standing Prehearing Order (SPO), which established a prehearing submission schedule.

On September 6, 2022, CMS filed a prehearing brief and motion for summary judgment (CMS Br.) along with 13 proposed exhibits.  On September 7, 2022, CMS filed a corrected version of CMS Exhibit 11.  Petitioner requested a continuance for its prehearing submission date, asserting that it had recently requested reconsideration in a parallel effective date case for the practice group associated with Petitioner and that the resolution of that matter would impact this case.  I denied the request because my jurisdiction in this case is narrowly limited to whether CMS assigned the correct effective date of reactivation, which I could resolve on its own merits without waiting for another case to be decided.  On October 11, 2022, Petitioner submitted a prehearing brief (P. Br.) and seven proposed exhibits.

II.    Admission of Exhibits and Decision on the Written Record

I admit all of the proposed exhibits into the record.  Petitioner did not object to CMS’s exhibits.  SPO ¶ 10.  Further, Petitioner requested to submit exhibits related to the parallel case involving the associated group practice that Petitioner asserts are submitted in rebuttal to some of CMS’s exhibits.  While I do not rely on these new exhibits for the result in this case, I will admit them because most of the documents are dated later than the reconsideration request in this case and involve another deactivation that is closely related to the deactivation in this case.  See 42 C.F.R. § 498.56(e)(2).

The SPO advised the parties to submit written direct testimony for each witness that they wanted to testify in this proceeding and that I would only hold an in-person hearing if an opposing party requested to cross-examine a witness in this case.  SPO ¶¶ 11-13;CRD Procedures §§ 16(b), 19(b).  Neither CMS nor Petitioner offered any written direct testimony.  Therefore, I issue this decision based on the written record.  SPO ¶ 14; CRD Procedures § 19(d).  CMS’s summary judgment motion is denied as moot.

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III.    Issue

Whether CMS had a legitimate basis to assign April 1, 2022, as the effective date for reactivation of Petitioner’s Medicare billing privileges.

IV.    Jurisdiction

I have jurisdiction to decide the issue in this case.  42 C.F.R. § 498.3(b)(15).

IV.    Findings of Fact

1) Petitioner is an IDTF.

2) Petitioner filed a CMS-855B application to enroll in the Medicare program as a supplier in July 2009.  CMS Ex. 13.  The enrollment application identified Chitrachedu Naganna as Petitioner’s managing employee.  CMS Ex. 13 at 13.  Further, the enrollment application identified the following individuals as Petitioner’s directors/officers:  Chitrachedu Naganna; Gourishankar Naganna; Hemalatha Naganna; and Vimala Naganna.  CMS Ex. 13 at 13-16.

3) CMS enrolled Petitioner as an IDTF/Medicare supplier in 2009.  CMS Ex. 12 at 2.

4) Dr. Chitrachedu Naganna passed away on November 18, 2021.  Hearing Req. at 1.

5) In a December 10, 2021 notice to Petitioner, a Medicare contractor stated that, according to a Social Security Administration report, Chitrachedu Naganna was listed as being deceased.  The notice advised Petitioner to submit a CMS-855B enrollment application to delete Chitrachedu Naganna’s name from Petitioner’s enrollment records as an owner, managing employee, director/officer, and authorized official of Petitioner.  The notice warned that Petitioner needed to update this information within 90 days to avoid deactivation of Medicare billing privileges.  CMS Ex. 11 at 1.

6) In a March 21, 2022 notice to Petitioner, the Medicare contractor stated that Petitioner’s Medicare billing privileges were deactivated effective February 17, 2022.  CMS Ex. 10.  The notice indicated that Chitrachedu Naganna had died, and Petitioner had failed to file a Medicare enrollment application informing the Medicare contractor of the change in Petitioner’s ownership.  CMS Ex. 10 at 1.  The notice identified 42 C.F.R. § 424.540(a)(2) as the legal basis for the deactivation.  CMS Ex. 10 at 1.  The notice informed Petitioner of its right to file a rebuttal to the deactivation within 15 days.  CMS Ex. 10 at 1-2.

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7) Petitioner electronically submitted an enrollment application to reactivate its billing privileges, which the Medicare contractor received on March 31, 2022.  The application indicated that e-signatures were pending.  CMS Ex. 9 at 1.

8) On April 1, 2022, the Medicare contractor received another CMS-855B application from Petitioner.  CMS Ex. 8.  The Medicare contractor characterized this filing as “PI Initiated Corrections.”  CMS Ex. 8 at 1.  Petitioner’s authorized official and supervising physician electronically signed the application on April 11, 2022.  CMS Ex. 8 at 2.

9) On April 11, 2022, the Medicare contractor requested additional information to complete the enrollment application.  CMS Ex. 6 at 2; CMS Ex. 7.

10) On April 18, 2022, Petitioner responded to the request for information and filed the requested documents.  CMS Ex. 6; see CMS Ex. 4 at 1.

11) On April 20, 2022, a Medicare site inspection was conducted of Petitioner’s offices and the inspector determined that Petitioner was operational.  CMS Ex. 5.

12) On April 26 and May 3, 2022, the Medicare contractor received additional corrections to the enrollment application.  CMS Ex. 4 at 1.

13) In a May 4, 2022 notice of initial determination, the Medicare contractor “approved [Petitioner’s] reactivation enrollment application” and set the effective date for reactivation as April 1, 2022.  CMS Exs. 3, 8.

V.    Conclusions of Law and Analysis

1. The effective date for the reactivation of Petitioner’s Medicare billing privileges is March 31, 2022, because that is the date Petitioner filed an enrollment application seeking reactivation of Medicare billing privileges that a Medicare contractor processed to approval.

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) 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).  As an IDTF, Petitioner is a supplier under Medicare Part B.  See 42 C.F.R. §§ 410.33, 498.2 (definition of Supplier). 

A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  “Enroll/Enrollment mean the process that

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Medicare uses to establish eligibility to submit claims for Medicare-covered items and services, and the process that Medicare uses to establish eligibility to order or certify Medicare-covered items and services.”  42 C.F.R. § 424.502.  A supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  Once the . . . supplier successfully completes the enrollment process . . . CMS enrolls the . . . supplier into the Medicare program.”  42 C.F.R. § 424.510(a)(1).  CMS then establishes an effective date for enrollment and billing privileges.  See 42 C.F.R. § 424.520.

The effective date of enrollment for newly enrolled IDTFs is determined under 42 C.F.R. § 410.33(i).  42 C.F.R. § 424.520(b).  That provision states:  “The effective date of billing privileges for a newly enrolled IDTF is the later of the following:  (1) The filing date of the Medicare enrollment application that was subsequently approved by a Medicare fee-for-service contractor; or (2) The date the IDTF first started furnishing services at its new practice location.”  42 C.F.R. § 410.33(i)(1)-(2).  For IDTFs, the regulation states that the filing date of the enrollment application is the date that the Medicare contractor receives a signed enrollment application that it is able to process to approval.  42 C.F.R. § 410.33(i)(1)-(2).

Further, for IDTFs, “[c]hanges in ownership . . . changes in general supervision . . . must be reported to the Medicare fee-for-service contractor on the Medicare enrollment application within 30 calendar days of the change.  All other changes to the enrollment application must be reported within 90 days.”  42 C.F.R. §§ 410.33(g)(2), 424.516(b).  A failure to timely report the change in ownership may result in deactivation.  42 C.F.R. § 424.540(a)(2).  When 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).

In order to reactivate Medicare billing privileges, CMS may require the supplier to submit a CMS-855 enrollment application.  42 C.F.R. § 424.540(b)(2).  Further, the regulations governing deactivation and reactivation provide the following standard for determining the effective date of reactivation of Medicare billing privileges:

The effective date of a reactivation of billing privileges under this section is the date on which the Medicare contractor received the provider’s or supplier’s reactivation submission that was processed to approval by the Medicare contractor.

42 C.F.R. § 424.540(d)(2).

In the present case, there is no dispute that CMS deactivated Petitioner’s Medicare billing privileges effective February 17, 2022.  CMS Ex. 10.  Further, the record is clear that Petitioner submitted a CMS-855B enrollment application to reactivate billing privileges

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on March 31, 2022, but that Petitioner filed on April 1, 2022, a correction to that application.  CMS Ex. 8; CMS Ex. 9.  The application was also later electronically signed.  CMS Ex. 8 at 2.  Finally, Petitioner timely provided additional information when requested and the Medicare contractor approved Petitioner’s enrollment application to reactivate billing privileges.  CMS Ex. 3 at 1; CMS Ex. 4 at 1; CMS Ex. 6.

CMS argues in this case that April 1, 2022 is the correct effective date of reactivation.  CMS stated the following:

It is undisputed that [Petitioner’s] CMS-855B completed reactivation application was received by [the Medicare contractor] on April 1, 2022.  CMS Ex. 8.  Thus, April 1, 2022 is the filing date of the application that included the requested information regarding the change in [Petitioner’s] ownership.  Under the regulation, the effective date of Petitioner’s billing privileges was the filing date of the 855B application – April 1, 2022.  See, Donald Dolce, M.D., DAB No. 2685, at 8 (2016) (effective date regulation “is based on the contractor’s actual receipt of an actual application it processes to approval”); Shalbhadra Bafna, M.D., DAB No. 2449, at 4 (2012) (“[t]he effective date determination hinges on two facts ... the filing date of a Medicare enrollment application, and the date that [the supplier] first starts furnishing services at a new practice location”); Arkady B. Stern, M.D. at 4 (effective date “must be the later of: the date when the [supplier] files the application for enrollment that is subsequently approved by a Medicare contractor; or the date when the [supplier] first begins providing services at the new practice location”).  On May 4, 2022, CMS subsequently approved the April 1st 855B application.  CMS Ex. 3.  Accordingly, [the Medicare contractor] correctly determined April 1, 2022 as the effective date of reactivation, which was the date it received Petitioner’s CMS-855B application that was processed to completion.

CMS Br. at 7-8.  CMS’s argument rests on its belief that the April 1, 2022 filing was a new CMS-855B.  However, the record does not support this contention.

While CMS argues that the CMS-855B that Petitioner filed on April 1, 2022, was a new enrollment application that was processed to approval, this argument overlooks the fact that Petitioner filed a CMS-855B on March 31, 2022, and that CMS records treat the filing of the April 1, 2022 CMS-855B as “PI Initiated Corrections.”  CMS Ex. 4 at 1; CMS Ex. 8 at 1; CMS Ex. 9 at 1.  CMS even referred to the CMS-855B filed on April 1,

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2022 as “a corrected CMS-855B” in its brief.  CMS Br. at 2.  It is significant that the record does not show that the Medicare contractor either returned or rejected the enrollment application received on March 31, 2022, thus evidencing that it did indeed process the March 31, 2022 enrollment application, with corrections, to completion.  See 42 C.F.R. §§ 424.525, 424.526.

CMS identified a lack of a signature as the primary problem with the March 31, 2022 application.  CMS Br. at 2-3.  The CMS hearing officer explained the import of the signature to the effective date determination: 

Under § 424.520(b), the effective date of billing privileges for IDTFs is specified in § 410.33(i).  Section 410.33(i) states that effective date of billing privileges is the filing date that the Medicare contractor receives a Medicare signed provider enrollment application that it is able to process to approval.  Here, as mentioned above, Naganna submitted its signed PECOS Medicare enrollment reactivation application to Novitas on April 1, 2022.  As specified in § 410.33(i), Novitas assigned Naganna an effective date of Medicare billing privileges of April 1, 2022, the filing date of the Medicare enrollment reactivation application that Novitas received and processed to approval.  Although Naganna is requesting an effective date of March 15, 2022, CMS is unable to grant an effective date earlier than April 1, 2022 based on § 410.33(i).  Therefore, CMS finds that Naganna’s effective date of participation in the Medicare program as an IDTF, with an effective date of enrollment of April 1, 2022, was properly determined pursuant to §§ 424.520(b) and 410.33(i).

CMS Ex. 1 at 4.

While I agree that the regulatory standard for determining the effective date for newly enrolled IDTFs is based, in part, on the filing of a signed enrollment application (42 C.F.R. § 410.33(i)), this is not the correct standard applied to an IDTF that is seeking to reactivate its billing privileges.  Rather, the regulation governing deactivation and reactivation of billing privileges states that the effective date for reactivation is the date the Medicare contractor received the enrollment application that was processed to approval.  42 C.F.R. § 424.540(d)(2).  This regulation does not specify that an initial lack of a signature on an enrollment application will affect the effective date.  Indeed, the general rule is that the Medicare contractor can only reject an enrollment application after the supplier has failed to furnish complete information within 30 calendar days from the date of a Medicare contractor’s request for the missing information.  42 C.F.R.

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§ 424.525(a)(1).  A missing signature is considered “missing information” for purposes of rejecting an enrollment application.  42 C.F.R. § 424.525(a)(1)(ii); cf. Tri-Valley Family Med., Inc., DAB No. 2358 at 8 (2010).  In the present case, there is no dispute that a signature was provided in a timely manner for the reactivation enrollment application.

Therefore, because CMS’s records indicate the filing of the CMS-855B on April 1 was only a correction to the March 31 enrollment application and those records do not indicate that CMS rejected or returned the CMS-855B received on March 31, 2022, the March 31, 2022 enrollment application was the application processed to approval by the Medicare contractor.  As a result, the correct effective date of reactivation is March 31, 2022.

2. I have no authority to provide Petitioner with a retrospective billing period, to remand this case for CMS to provide equitable relief, or to construe Petitioner’s reactivation enrollment application as an application to enroll as a new IDTF. 

Petitioner is concerned that it has been unable to receive payment for services provided to Medicare beneficiaries during the time that its Medicare billing privileges were deactivated.  Although CMS asserts that it sent notice to Petitioner to file an enrollment application removing Dr. Chitrachedu Naganna’s name from Petitioner’s enrollment records, Petitioner asserts that it did not receive that notice.  P. Br. at 1.  Petitioner claims it only received the deactivation notice and then moved quickly to seek reactivation.  Hearing Req. at 1.  However, Petitioner also indicates that it recognizes that it had the obligation to remove Dr. Chitrachedu Naganna’s name from Petitioner’s enrollment records and that it failed to do so due to a lack of knowledge as to that requirement.  P. Br. at 4.

Petitioner also put forward a number of arguments and issues.  One issue is that the Medicare contractor only processed and approved Petitioner’s reactivation enrollment application; however, the Medicare contractor failed to approve the enrollment application for a group physician practice associated with Petitioner, resulting in a reactivation effective date much later than April 1, 2022.  However, Petitioner indicates that the Medicare contractor eventually applied a 90-day retrospective billing period for the group physician practice.  P. Br. at 1-2.  Petitioner submitted documentation concerning the physician group practice, i.e., a December 10, 2021 notice to remove Dr. Chitrachedu Naganna’s name from the group practice’s enrollment records (P. Ex. 7), a March 21, 2022 notice that the group practice had been deactivated effective February 17, 2022 (P. Ex. 4), a September 9, 2022 notice of initial determination reactivating the group practice with a June 2, 2022 effective date (P. Ex. 2), and a September 10, 2022 request for reconsideration of the reactivation effective date (P. Ex. 3).  Petitioner appears to argue that I should provide a retrospective billing period that covers the period of deactivation.  Petitioner appears to base this argument on both CMS’s actions in the case

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involving the associated group practice and/or because Petitioner’s reactivation enrollment application should be construed as an application for a new IDTF enrollment.  P. Br. at 4.  In addition, Petitioner requests that I remand this matter to CMS so that CMS can use whatever flexibility it has to solve Petitioner’s inability to bill Medicare during the period of deactivation.  P. Br. at 5.  If I am unable to do as Petitioner requests, Petitioner questions the usefulness of this proceeding.  P. Br. at 4-5.

It is understandable why Petitioner did not know the limits of my jurisdiction in this case.  The reconsidered determination provided notice of Petitioner’s right to request a hearing “[i]f [Petitioner] believe[s] that this determination is not correct.”  CMS Ex. 1 at 5.  The reconsidered determination upheld both the decision to deactivate Petitioner’s billing privileges and the effective date of reactivation.  CMS Ex. 1 at 4.  However, my authority on review is more limited than that.

Administrative law judges only have the jurisdiction that is provided by statute or regulation.  If a statute states that an individual has a right to notice and an opportunity for a hearing on the record, then an administrative law judge will have jurisdiction to adjudicate that case (unless the head of the agency conducts the hearing or a statute designates other adjudicators to conduct the hearing).  5 U.S.C. §§ 554(a), 556(b).  If there is no statute authorizing an administrative law judge proceeding, then an individual will only have the right to an administrative law judge hearing if such a right is provided by regulation.

The reconsidered determination ought to have clearly stated that Petitioner could only appeal the determination as to the effective date for reactivation.  This is because the regulations indicate that the determination of the effective date of enrollment is an appealable initial determination, i.e., a matter that can ultimately be appealed to an administrative law judge.  See 42 C.F.R. § 498.3(b)(15).

Petitioner concedes that I do not have jurisdiction to review the date of deactivation.  P. Br. at 4.  This is correct.  A deactivation of billing privileges is not listed as an appealable initial determination.  See 42 C.F.R. § 498.3(b).  In contrast to the denial of enrollment or revocation of enrollment, which are initial determinations (42 C.F.R. § 498.3(b)(17)), the regulations only provide a right to file a rebuttal when CMS deactivates billing privileges.  42 C.F.R. § 424.545(a)-(b).  The reconsidered determination’s discussion of the propriety of the deactivation of Petitioner’s billing privileges was likely made by the CMS hearing officer in response to Petitioner’s arguments in the reconsideration request on that issue.  However, the CMS Hearing Officer’s discussion of the deactivation issue does not mean I have the authority to review whether CMS’s decision to deactivate was correct.

Further, I am without authority to authorize a retrospective period of Medicare billing.  The regulations provide CMS with the authority to permit a limited period of

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retrospective billing to certain providers and suppliers, such as physicians and physician organizations.¹  42 C.F.R. § 424.521.  CMS’s decision to provide or not to provide retrospective billing is not an appealable “initial determination.”  See 42 C.F.R. § 498.3(b).  Therefore, it is not an issue that is properly before me.

I also cannot convert Petitioner’s reactivation enrollment application into an initial enrollment application.  Petitioner’s application clearly sought reactivation, and both the initial and reconsidered determinations discuss reactivation of billing privileges.  CMS Ex. 1 at 3-4; CMS Ex. 3 at 1; CMS Ex. 4 at 1; CMS Ex. 8 at 1; CMS Ex. 9 at 1.

Finally, I cannot remand and order CMS to use its discretion to provide a more equitable outcome for Petitioner.  I may only remand a case for CMS to consider a new issue that arose in the case or if CMS requests remand.  42 C.F.R. §§ 498.56(d), 498.78.

VI.    Conclusion

I modify CMS’s determination and set Petitioner’s effective date for the reactivation of its Medicare billing privileges as March 31, 2022.

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Endnotes

¹ IDTFs are not listed among the Medicare providers and suppliers who may receive a retrospective billing period.  42 C.F.R. § 424.521(a)(2).  Further, the regulation governing the effective date for newly enrolled IDTFs does not mention the possibility of a retrospective billing period.  42 C.F.R. § 410.33(i).