Luedtke Storm – Mackey Chiropractic Clinic SC, DAB CR6310 (2023)

DECISION

Luedtke Storm – Mackey Chiropractic Clinic SC (Petitioner) is a supplier in the Medicare program.  As such, Petitioner had a National Provider Identifier (NPI) issued by the National Provider System (NPS).¹  On October 13, 2022, NPS deactivated Petitioner’s NPI.  The deactivation of the NPI caused National Government Services (NGS), a contractor for the Centers for Medicare & Medicaid Services (CMS), to deactivate Petitioner’s Medicare billing privileges effective October 13, 2022.  Petitioner appealed the deactivation of its Medicare billing privileges, noting that an error had caused the deactivation of Petitioner’s NPI and that the NPI was now active.  NGS upheld its deactivation of Petitioner’s Medicare billing privileges because Petitioner’s NPI had been deactivated when NGS deactivated Petitioner’s billing privileges.

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Petitioner then filed an enrollment application to reactivate its Medicare billing privileges.  NGS approved the application with a reactivation effective date of December 8, 2022.  Petitioner requested reconsideration, seeking an October 13, 2022 retroactive effective date of reactivation.  NGS denied Petitioner’s request, stating that CMS may not reimburse Medicare suppliers at any time when their Medicare billing privileges were deactivated.  Petitioner requested a hearing before an administrative law judge to appeal NGS’s reconsidered determination.

I affirm NGS’s determination that Petitioner’s effective date for reactivation of Medicare billing privileges is December 8, 2022, because that is the date NGS received Petitioner’s reactivation application and NGS approved that application.  My jurisdiction in this matter is limited to determining whether NGS assigned the correct date for reactivation under the law.  I do not have jurisdiction to decide whether NPS erroneously deactivated Petitioner’s NPI.  I also do not have jurisdiction to decide whether NGS erroneously deactivated Petitioner’s Medicare billing privileges.  The Secretary of Health and Human Services (Secretary) determines, through regulation, what matters may be appealed to an administrative law judge.  Of the actions taken on behalf of CMS in this matter, the Secretary only permits an ALJ to review the legitimacy of the effective date of reactivation of billing privileges.  As to that narrow issue, I conclude that NGS’s decision comports with the law.

I.  Procedural History

On February 13, 2023, NGS issued an unfavorable reconsidered determination related to the effective date of reactivation of Petitioner’s Medicare billing privileges.  Petitioner timely requested a hearing to dispute the reconsidered determination.  On April 11, 2023, the Civil Remedies Division (CRD) acknowledged the hearing request and issued my Standing Prehearing Order (SPO).  On May 16, 2023, CMS timely filed a prehearing brief, which included a motion for summary judgment, and fourteen proposed exhibits (CMS Exs. 1-14).  Petitioner did not file a timely prehearing brief or proposed exhibits.  Petitioner did not request an extension of time to file its prehearing exchange.

II.  Admission of Evidence and Decision on the Written Record

CRD’s notice acknowledging receipt of the hearing request specified that CMS’s prehearing exchange was due on May 16, 2023 and Petitioner’s prehearing exchange was due on June 20, 2022.  Electronic Filing System (E-File) Document No. 2.  These dates were consistent with my SPO.  SPO ¶ 7(a), (b).

In my SPO, I explained that a prehearing exchange should consist of the following:

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1. A brief addressing all issues of law and fact, which may incorporate a motion to dismiss or motion for summary judgment;


2. A list of all proposed exhibits;


3. A copy of each proposed exhibit; and


4. A list of all proposed witnesses (if any).  Any written direct testimony must be submitted as a proposed exhibit.


 

SPO ¶ 7(d).

The SPO provided that the parties may request an extension of time to file a prehearing exchange; however, the parties must file that request no later than the deadline for which the extension was sought.  SPO ¶ 5.

The SPO stated that if Petitioner objected to any of CMS’s proposed exhibits, Petitioner had to submit a written objection at the same time it filed its prehearing exchange.  SPO ¶ 10; CRD Procedures § 14(e).  Further, the SPO stated that if parties wanted witnesses to testify in this case, the parties had to submit written direct testimony from the witnesses and that I would only hold a hearing if the opposing party requested to cross-examine one or more of those witnesses.  SPO ¶¶ 11-13; CRD Procedures §§ 16(b), 19(b).

Finally, the SPO indicated that:  “Unless a hearing is required for cross-examination of a witness or witnesses, the record will be closed and the case will be ready for a decision after all the deadlines have passed.”  SPO ¶ 14; see also CRD Procedures § 19(d).  Consistent with this, I provided the following notice to Petitioner in a May 8, 2023 Order:  “If Petitioner fails to file a prehearing exchange in this case, I may . . . issue a decision based on the documents the parties have filed to that point.”  E-File Document No. 6.

In the present case, the deadlines for prehearing exchanges have passed.  Because neither party offered any written direct testimony from witnesses, I do not need to hold a hearing and may issue a decision based on the written record.  Vandalia Park, DAB No. 1940 (2004).  Further, Petitioner’s failure to timely file a prehearing exchange does not stop me from issuing a decision based on the written record.  Anil Hanuman, D.O., DAB No. 3080 at 12 (2022).

Therefore, I deny CMS’s summary judgment motion as moot.  Because Petitioner did not object to any of CMS’s proposed exhibits, I admit all of them into the record.  In rendering this decision on the record, I address the matters raised by Petitioner in its hearing request and reconsideration request.

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III.  Issue

Whether NGS, acting on CMS’s behalf, had a legitimate basis to assign December 8, 2022, as the effective date for the reactivation of Petitioner’s Medicare 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); see also 42 U.S.C. § 1395cc(j)(8).

V.  Findings of Fact

1. Petitioner is a group practice of chiropractors that was enrolled in the Medicare program.  Its NPI is 1457343246.  CMS Ex. 7 at 1.


2. On October 13, 2022, NPS deactivated Petitioner’s NPI.  CMS Ex. 1 at 3, 8; see also CMS Ex. 2 at 1.


3. On October 28, 2022, NGS issued a notice that it was deactivating Petitioner’s Medicare billing privileges as of October 13, 2022, due to the deactivation of Petitioner’s NPI.  NGS advised Petitioner of its right to file a rebuttal if Petitioner did not believe the deactivation determination was correct.  CMS Ex. 2 at 1.


4. On November 7, 2022, Petitioner filed a rebuttal to the deactivation and asserted that Petitioner’s NPI was deactivated erroneously.  Petitioner stated that the matter had been resolved with NPS and Petitioner’s NPI was active.  CMS Ex. 3 at 2.


5. On December 2, 2022, NGS issued a determination upholding the deactivation of Petitioner’s Medicare billing privileges.  CMS Ex. 5.  NGS stated that an active NPI is a requirement for Medicare enrollment; therefore, when Petitioner’s NPI was deactivated, NGS had to deactivate Petitioner’s Medicare billing privileges.  CMS Ex. 5 at 3.  NGS advised Petitioner to file a CMS-855B enrollment application to reactivate its Medicare billing privileges.  CMS Ex. 5 at 3.


6. Petitioner electronically filed an enrollment application seeking to reactivate its Medicare billing privileges, which NGS received on December 8, 2022.  CMS Ex. 7; CMS Ex. 8.  Also on December 8, 2022, Petitioner wrote to “NGS Provider Enrollment” and explained that Petitioner’s NPI was reassigned by mistake to another chiropractor who was previously employed by Petitioner.  When the chiropractor started his own practice, the chiropractor used Petitioner’s NPI, resulting in NPS informing Petitioner that Petitioner was no longer under its NPI.  Petitioner stated that it had resolved the issue with NPS as promptly as possible, and Petitioner had been compliant with Medicare regulations.  CMS Ex. 6 at 1.

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7. Following receipt of the reactivation enrollment application, NGS requested additional information, which Petitioner provided.  CMS Exs. 9-10.


8. On January 17, 2023, NGS issued a notice of initial determination in which NGS approved Petitioner’s reactivation enrollment application with an effective date of December 8, 2022.  CMS Ex. 11 at 1.


9. Petitioner filed a reconsideration request with NGS seeking a retroactive reactivation effective date of October 13, 2022.  CMS Ex. 12 at 2.  Petitioner reiterated that a chiropractor who was previously employed by Petitioner caused Petitioner’s NPI to be deactivated.  Petitioner stated that NPS reactivated Petitioner’s NPI on November 7, 2022.  CMS Ex. 12 at 2, 9.


10. On February 13, 2023, NGS issued an unfavorable reconsidered determination in which NGS concluded that the reactivation effective date of Petitioner’s Medicare billing privileges was December 8, 2022.  CMS Ex. 14 at 3-4.

VI.  Conclusions of Law

1. Based on the reactivation enrollment application that NGS approved in this case, the effective date for reactivation of Medicare billing privileges is the date the approved application was received by NGS (i.e., December 8, 2022).  42 C.F.R. § 424.540(d)(2).


2. Petitioner is not eligible for a retrospective billing period back to October 13, 2022, because CMS may not make payment to a supplier for items or services furnished to Medicare beneficiaries while the supplier’s Medicare billing privileges are deactivated.  42 C.F.R. §§ 424.540(e), 424.555(b).

VII.  Analysis

Petitioner does not want a gap in its Medicare billing privileges from October 13, 2022 through December 7, 2022.  There is no doubt that this gap was created when NPS deactivated Petitioner’s NPI, which in turn resulted in NGS deactivating Petitioner’s Medicare billing privileges.  Also, Petitioner has made it clear that its NPI was deactivated based on the erroneous actions of a former employee who used Petitioner’s NPI to establish a new practice.  Petitioner stated that the former employee was never delegated authority by Petitioner to utilize the NPI.  CMS Ex. 6 at 1; CMS Ex. 12 at 2.  In addition to claiming that it is not to be blamed for the deactivation of the NPI, Petitioner makes two arguments to avoid the gap in coverage:  1) Petitioner remedied the deactivation of the NPI with NPS in such a way that “[t]he NPI was reactivated with no

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lapse in coverage.” (E-File Document No. 1 at 1); and 2) Petitioner should receive “a retroactive date of 10.13.2022.”  CMS Ex. 12 at 2.

I am not able to grant Petitioner’s requested relief.  Petitioner’s situation involves one determination by NPS (to deactivate Petitioner’s NPI) and two by NGS (to deactivate Petitioner’s Medicare billing privileges effective October 13, 2022, and to reactivate Petitioner’s billing privileges effective December 8, 2022).  Of these three actions, only the date of reactivation is an initial determination that may be appealed to an administrative law judge.  42 C.F.R. § 498.3(b)(15).

NPI Deactivation

The deactivation of Petitioner’s NPI was the initial action in this matter.  The Social Security Act (Act) required the Secretary to adopt standards for providing a unique health identifier for each individual, employer, health plan, or health provider for use in the health care system.  42 U.S.C. § 1320d-2(b)(1).  The Secretary established the NPI and indicated when it could be used.  45 C.F.R. §§ 162.406, 162.410.  The Secretary provided NPS the authority to deactivate an NPI when there is information justifying deactivation.  45 C.F.R. § 162.408(c).  There do not appear to be any appeal rights when NPS deactivates an NPI; however, NPS may, “[i]f appropriate, reactivate a deactivated NPI upon receipt of appropriate information.”  45 C.F.R. § 162.408(d).

The record in the present case indicates that NPS deactivated Petitioner’s NPI on October 13, 2022, and reactivated Petitioner’s NPI on November 7, 2022.  CMS Ex. 1 at 3, 8; CMS Ex. 12 at 9.  Therefore, Petitioner appears to have successfully availed itself of the regulatory process to reactivate its NPI.

Medicare Billing Privileges Deactivation

Based on the deactivation of Petitioner’s NPI, NGS deactivated Petitioner’s Medicare billing privileges.  NGS specified that it based the deactivation on Petitioner’s failure to maintain enrollment requirements, i.e., Petitioner did not have an active NPI.

The Act authorizes the 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).  For Medicare purposes, the term “physician” includes a chiropractor.  42 U.S.C. § 1395x(r).

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

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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 Medicare billing privileges must “submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a)(1).  If a supplier is eligible to have an NPI, then the supplier must “[r]eport its NPI on its Medicare enrollment application.”  42 C.F.R. § 424.506(b)(1)(i).  “[O]nce enrolled the . . . supplier receives billing privileges and is issued a valid billing number effective for the date a claim was submitted for an item that was furnished or a service that was rendered.”  42 C.F.R. § 424.505.  When filing claims with the Medicare program, the supplier must include its NPI on each claim.  42 C.F.R. § 424.506(c)(1).  Medicare contractors must reject claims if the NPI is not provided.  42 C.F.R. § 424.506(c)(3).

After being enrolled, CMS may deactivate the Medicare billing privileges of a supplier for a variety of reasons, including a failure to comply with all enrollment requirements.  42 C.F.R. § 424.540(a).  If CMS deactivates a supplier’s Medicare billing privileges, then the supplier may file a rebuttal to the deactivation.  42 C.F.R. §§ 424.545(b), 424.546(a)(1).  When CMS issues a determination based on a rebuttal, that determination is not an appealable initial determination.  42 C.F.R. § 424.546(f).

In the present case, Petitioner filed a rebuttal to dispute NGS’s deactivation of Petitioner’s Medicare billing privileges.  However, the rebuttal provided limited explanation as to the situation, stating simply that the NPI was deactivated in error, the matter had been resolved, and the NPI “is now active.”  CMS Ex. 3 at 2.  Petitioner also provided a document showing the NPI was active again, but that document did not explain what happened or indicate anything other than the reactivation of the NPI by November 7, 2022.  CMS Ex. 3 at 10-11.

NGS issued an unfavorable determination after receiving the rebuttal, indicating that a “[f]ailure to comply with the maintenance of an active NPI thusly resulted in the deactivation” and “that the deactivation was valid, based on the lack of an active, valid NPI number at the time of deactivation.”  CMS Ex. 5 at 3.  With limited information as to the situation, NGS simply upheld the deactivation based on the undisputed fact that Petitioner’s NPI had been deactivated at the time NGS deactivated Petitioner’s Medicare billing privileges.  Petitioner utilized the regulatory process to dispute the deactivation of its billing privileges; however, Petitioner was unsuccessful.  NGS’s unfavorable decision cannot be further appealed administratively.

Medicare Billing Privileges Reactivation Effective Date

Petitioner filed an enrollment application to reactivate Medicare billing privileges, which NGS received on December 8, 2022.  CMS Ex. 7 at 1.  NGS approved that application and reactivated Petitioner’s billing privileges as of December 8, 2022.  CMS Ex. 11 at 1.  In appealing the reactivation effective date, Petitioner requested a retroactive reactivation

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date of October 13, 2022.  CMS Ex. 12 at 2.  NGS denied Petitioner’s request, explaining it did not have authority to provide a retroactive effective date.  CMS Ex. 14 at 3.

NGS is correct that it could not provide a retroactive effective date of reactivation.

When initially enrolling physicians, CMS establishes an effective date for physicians, non-physician practitioners, and physician or non-physician practitioner organizations based on 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” an 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).  When CMS assigns an effective date, CMS may permit a retrospective billing period of up to 30 days in normal circumstances and up to 90 days if a presidentially declared disaster precluded enrollment in advance of providing services to Medicare beneficiaries.  42 C.F.R. § 424.521.

However, when a supplier is seeking to reactivate billing privileges, the supplier must recertify that its enrollment information currently on file with CMS is correct, provide any missing information, and be compliant with all applicable enrollment requirements.  42 C.F.R. § 424.540(b).  The effective date of reactivation is the date on which the Medicare contractor received the supplier’s reactivation submission that was processed to approval.  42 C.F.R. § 424.540(d)(2).  This effective date provision for reactivation does not provide for a retrospective or retroactive period of billing.  Further, the regulations prohibit CMS from paying a supplier for items or services furnished to Medicare beneficiaries during the period of deactivation.  42 C.F.R. §§ 424.540(e), 424.555(b).

I am sympathetic to Petitioner’s inability to receive Medicare reimbursement for services performed while deactivated.  However, while I have jurisdiction to review whether NGS properly established the effective date for reactivation, I do not have authority to add a period of retrospective or retroactive billing.  See 42 C.F.R. § 498.3(b)(15).

VIII.  Conclusion

The reactivation effective date for Petitioner’s Medicare billing privileges is December 8, 2022.

Endnotes

¹  The parties generally refer to the National Plan and Provider Enumeration System (NPPES) as the entity that took various actions in this case concerning Petitioner’s NPI.  While it appears that NPPES is the system by which an NPI is obtained (45 C.F.R. § 162.410(b)(1)), NPS is the entity that exercises authority over NPIs.  45 C.F.R. §§ 162.408, 162.410.  Therefore, I refer to NPS rather than NPPES in this decision.