Jennifer De Los Santos, DAB CR6198 (2022)

DECISION

Petitioner, Jennifer De Los Santos, challenges the effective date of her Medicare billing privileges based on an enrollment application received on July 22, 2019 following a period of deactivation resulting from a failure to revalidate.  As explained herein, I find Palmetto GBA (Palmetto), an administrative contractor for Respondent, the Centers for Medicare & Medicaid Services (CMS), properly established July 22, 2019 as the effective date of Petitioner’s billing privileges. 

I. Background

On November 26, 2018, Palmetto instructed Petitioner to revalidate her Medicare enrollment record by February 28, 2019.  CMS Exhibit (Ex.) 1.  Palmetto notified Petitioner that her revalidation was past due on March 18, 2019.  CMS Ex. 2.  On May 29, 2019, Palmetto informed Petitioner it had deactivated her Medicare billing privileges as of that date.  CMS Ex. 3.¹

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Petitioner contends she first became aware of her deactivation on or about March 5, 2018 through a “CMS 835” (Medicare remittance/advice).  P. Req. for Hearing at 1; see also CMS Br. at 2.On July 22, 2019, Palmetto received an 855R revalidation application from Petitioner.  CMS Ex. 4.  On September 4, 2019, Palmetto approved the application and reactivated Petitioner’s billing privileges effective July 22, 2019, with retrospective billing privileges beginning June 22, 2019.²  CMS Ex. 8.  This left Petitioner with a billing gap from May 29, 2019 through June 21, 2019.  Id. at 2. 

Petitioner timely requested reconsideration of Palmetto’s effective date determination on October 23, 2019, claiming she never received a revalidation request from Palmetto.  CMS Ex. 9 at 2.  Palmetto affirmed its initial effective date determination on January 15, 2020.  CMS Ex. 10.  Petitioner timely sought hearing before an Administrative Law Judge in the Civil Remedies Division and I was designated to hear and decide the case.  

II.    Admission of Exhibits and Decision on the Record

CMS filed a motion for summary judgment and brief (CMS Br.) and 10 proposed exhibits (CMS Exs. 1-10).  Petitioner did not file a pre-hearing exchange.  On June 3, 2020, I issued an order to show cause directing Petitioner to file a written statement advising me whether she intended to pursue her hearing request and if so, to file her pre-hearing exchange and response to CMS’s motion for summary judgment.  Petitioner responded on June 16, 2020 that she “had no additional information to submit for your consideration to move forward.”  Therefore, I construe the arguments made in her

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hearing request as her pre-hearing brief (P. Br.).  Because Petitioner filed no objections to CMS’s proposed exhibits, I admit CMS Exhibits 1 through 10 into the record. 

In my March 24, 2020 Acknowledgment and Pre-hearing Order (Pre-Hearing Order), I advised the parties an in-person hearing would only be necessary if a party submitted the written direct testimony of a proposed witness and the opposing party requested an opportunity to cross-examine a witness.  Pre-hearing Order ¶ 10; Civ. R. Div. P. §§ 16(b), 19(b).  Neither party submitted written direct testimony of a proposed witness.  Therefore, a hearing in this case is unnecessary, and 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 July 22, 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). 

V.    Analysis

1. Applicable Law

1. Enrollment

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 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. 

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, meaning the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.

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The effective date for 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 the Medicare contractor “receives” a signed enrollment application 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). 

2. Revalidation

To maintain billing privileges, a supplier like Petitioner 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 such 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 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).

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2. Findings of Fact and Conclusions of Law³

1. On July 22, 2019, Palmetto received Petitioner’s application to reactivate her Medicare billing privileges and subsequently processed that application to approval. 
2. The effective date of reactivation for Petitioner’s Medicare billing privileges is July 22, 2019. 

The record demonstrates that after it deactivated Petitioner’s Medicare billing privileges, Palmetto received a revalidation application from Petitioner on July 22, 2019 that it subsequently processed to approval.  CMS Ex. 8.  Pursuant to 42 C.F.R. § 424.520(d)(1), the date Palmetto 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). 

3. I have no authority to review the deactivation of Petitioner’s billing privileges on May 29, 2019.

Palmetto notified Petitioner on May 29, 2019 that her Medicare billing privileges were deactivated because she did not respond to Palmetto’s requests for more information.  CMS Ex. 3.  Petitioner argues she did not receive Palmetto’s letters requesting additional information and that she was not a provider requiring revalidation at the time Palmetto issued its revalidation request.  P. Br. at 1.  Petitioner claims she spoke with a CMS representative who informed her she should have been able to access her revalidation date on the CMS website, regardless of whether she received these letters or not.  Id.  

The record shows Palmetto issued three letters to Petitioner on November 26, 2018, March 18, 2019, and May 29, 2019.  CMS Exs. 1-3.  Palmetto addressed these letters to Petitioner’s correspondence addresses and practice location for her reassignment of benefits listed in her Medicare enrollment record.  CMS Ex. 1; CMS Br. at 6.  Petitioner moved to a new practice address in 2018 without notifying CMS.  CMS Ex. 4 at 3-5.  The new mailing and practice addresses were flagged as “UPDATED” in Petitioner’s July 22, 2019 reactivation application, and Palmetto confirmed the new addresses with Petitioner via email.  CMS Br. at 7; CMS Ex. 4 at 3-5; CMS Ex. 5.  While Petitioner acknowledges her obligation to verify her enrollment status, she does not address her failure to update her practice address with CMS until after her Medicare billing privileges were deactivated.

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Whatever the validity of Petitioner’s claim that she should not have been subject to revalidation or her lack of knowledge of Palmetto’s revalidation requests, I have no authority to review CMS’s decision to deactivate a supplier and cannot establish an earlier effective date for reactivation on that basis.  This is because deactivation is not an “initial determination” subject to Administrative Law Judge review.  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.”).⁴  My jurisdiction in this case is limited to reviewing the effective date of the approval of Petitioner’s reactivation enrollment application.  42 C.F.R. § 498.3(b)(15). 

Petitioner also argues that it is “unjust to penalize our provider for data that is not supplied on the tool that CMS provides.”  P. Br. at 1.  But as CMS points out, CMS Br. at 5-8, I have no authority to review CMS’s revalidation process or otherwise grant Petitioner any form of equitable relief, no matter how warranted.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 that 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); UpturnCare Co., DAB No. 2632 at 19 (2015) (providing the Board may not overturn denial of provider enrollment in Medicare on equitable grounds). 

VI.   Conclusion

For the foregoing reasons, CMS properly determined Petitioner’s effective date of re‑enrollment to be July 22, 2019, the date she filed an enrollment application that was subsequently approved, with retrospective billing privileges beginning June 22, 2019.  

Endnotes

¹  CMS claims Palmetto issued a notice “deactivating Petitioner’s billing privileges . . .,” CMS Br. at 2, but Palmetto’s notice to Petitioner nowhere states her billing privileges were deactivated.  It instead states “We have stopped your Medicare billing privileges on May 29, 2019 . . .”  CMS Ex. 3 at 1.  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).  Palmetto’s notice to Petitioner that it had “stopped” Petitioner’s Medicare billing privileges thus amounts, however obliquely, to a notice of deactivation.  This level of opacity is inconsistent with Congress’ expectation that agencies of the government (and presumably their contractors) communicate with citizens plainly and clearly.  Plain Writing Act of 2010, Pub. Law 111-274 § 4(b) (eff. Oct. 13, 2010) (“. . . each agency shall use plain writing in every covered document of the agency that the agency issues or substantially revises.” (emphasis added).  Notably, Palmetto’s notice fails to comport with CMS’s own guidance provided to contractors in 2015 as to model deactivation 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 to inform you that your Medicare [PTAN]. . . . has been deactivated….”).  But whatever my concerns with the lack of adequate notice provided to Petitioner concerning her deactivation, as I explain infra at 5, I have no jurisdiction over Palmetto’s deactivation determination.

²  Palmetto’s initial and reconsidered determinations mistakenly identify June 22, 2019 as the “effective date” of Petitioner’s reassigned billing privileges.  CMS Ex. 8 at 2.  But the regulations distinguish between the effective date and the date from which retrospective billing is permitted.  See 42 C.F.R. §§ 424.520(d), 424.521(a)(1).  Assuming Palmetto applied the maximum 30 days of retrospective billing permitted in this situation, I infer Palmetto established June 22, 2019 as the actual effective date within the meaning of the regulations.  Consistent with those regulations, I use the term “effective date” in this decision to refer to the date Palmetto received an application from Petitioner it eventually approved, not the date from which it authorized retrospective billing.

³  My findings of fact and conclusions of law appear as numbered headings in bold italic type.

⁴  Deactivation actions 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).  The record does not suggest Petitioner sought relief from Palmetto through this rebuttal process.  But as I have explained, Palmetto’s notice makes no mention of deactivation.  CMS Ex. 3.  And Petitioner can hardly have been expected to understand her right to pursue a review of that action when Palmetto failed to apprise her of the process to contest her deactivation.  Id.  I urge CMS to review the deactivation process and insist its contractors use plain language to notify suppliers of both their deactivation and the process afforded by the regulations to contest that action.