Medical Center Hospitalists Associates PLLC, DAB CR6331 (2023)

DECISION

I sustain the determination of a Medicare contractor, as affirmed and modified on reconsideration, to reactivate the Medicare billing privileges of Petitioner, Medical Center Hospitalists Associates, PLLC, effective August 1, 2022.¹

I. Background

Petitioner requested a hearing to challenge the effective date of reactivation of its Medicare billing privileges.  The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment, filing a brief and 15 proposed exhibits that it identified as CMS Ex. 1-CMS Ex. 15.  Petitioner did not file exhibits.  It asked that I evaluate the case based on CMS’s written submissions and Petitioner’s hearing request.

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There is no need for me to consider whether the criteria for issuing summary judgment are present.  Nor is there need for me to convene an in-person hearing.  Petitioner did not object to my receiving any of CMS’s proposed exhibits into the record.  It did not dispute any of the facts stated in those exhibits.  Neither CMS nor Petitioner provided the written direct testimony of a proposed witness.  Consequently, this case is ripe for a decision based on the parties’ written submissions.

I receive CMS Ex. 1-CMS Ex. 15 into the record.

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether, on reconsideration, the contractor properly established August 1, 2022, to be the effective date of reactivation of Petitioner’s Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

There is no fact dispute.  On April 20, 2022, a Medicare contractor sent a letter to the correspondence address that had been provided by Petitioner to the contractor.  CMS Ex. 15 at 1.  In that letter the contractor, citing the death of one of Petitioner’s owners, requested Petitioner to delete that individual’s name from information filed with the contractor listing Petitioner’s owners, managing employees, authorized officials, partners, and director/officers.  Id.  The contractor’s letter explicitly directed Petitioner to file the requested information within 90 days.  Id. 

Petitioner did not reply to the contractor’s letter.  On July 22, 2022, the contractor deactivated Petitioner’s Medicare billing privileges, effective April 29, 2022.  CMS Ex. 14 at 1.  Deactivation led to recission of Petitioner’s Medicare billing privileges.  Petitioner could not claim Medicare reimbursement for otherwise reimbursable items or services until the contractor reactivated its billing privileges.

On August 1, 2022, Petitioner filed a request with the contractor to reactivate its billing privileges.  CMS Ex. 1 at 4.  The contractor accepted Petitioner’s application and reactivated its billing privileges.  CMS Ex. 4 at 1; CMS Ex. 5 at 1.  Petitioner, dissatisfied with the contractor’s determination, requested reconsideration.  On reconsideration, the contractor affirmed its determination to reinstate Petitioner’s billing privileges but revised the effective date of reinstatement from July 29, 2022 to August 1, 2022.  CMS Ex. 1.

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Petitioner then requested a hearing.

This case is governed by regulations.  A supplier must update its enrollment information in order to maintain its Medicare billing privileges within 90 days of any change of its operating circumstances other than a change of ownership, an adverse legal action or a change in practice location.  The deadline for updating is 30 days when any of the excepted circumstances exist.  42 C.F.R. § 424.516(d)(1)- (2).  A change that requires an update includes the death or departure of an owner, managing employee, authorized official, partner, director, or officer.

A contractor may deactivate a supplier’s Medicare billing privileges for failure to provide required information.  42 C.F.R. § 424.540(a)(2), (3).  In relevant part the regulation states:

• (a) Reasons for deactivation. CMS may deactivate the Medicare billing privileges of a provider or supplier for any of the following reasons:

• * * * *

  • (2) The provider or supplier does not report a change to the information supplied on the enrollment application within the applicable time period required under this title.
  • (3) The provider or supplier 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.

Id.  The regulation states additionally that a supplier whose billing privileges are deactivated must complete and submit a new enrollment application to reactivate those privileges.  42 C.F.R. § 424.540(b)(1)-(2).

A contractor’s decision to deactivate a provider’s reimbursement privileges is not a determination that gives hearing rights to the affected individual or entity.  See 42 C.F.R. § 498.3(b), (d).  Consequently, a provider or supplier whose Medicare billing privileges are deactivated may not challenge the Medicare contractor’s decision to deactivate.  I have no authority to decide that challenge.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Wishon Radiological Med. Grp., Inc., DAB No. 2941 (2019).

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CMS has published guidance to its contractors concerning the effective participation date to assign to a supplier or provider that seeks to reactivate its participation.  That date shall be the date when the contractor receives a re-enrollment application that it processes to completion.  Medicare Program Integrity Manual (MPIM), § 15.27.1.2.  That guidance is consistent with regulatory requirements governing the effective date of participation of newly participating suppliers and providers.  42 C.F.R. § 424.520(d); Willie Goffney, Jr., M.D., DAB No. 2763 (2017).

Given that, the only question I may consider in a case involving reactivation of previously deactivated billing privileges is whether the contractor properly assigned an effective reactivation date to a provider or a supplier.  The propriety of the contractor’s action in determining to reactivate is governed by 42 C.F.R. § 424.520(d).  The regulation states that:

• (1) The effective date for billing privileges for the provider and supplier types identified in paragraph (d)(2) of this section is the later of—
  1. The date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or
  2. The date that the provider or supplier first began furnishing services at a new practice location.

The earliest possible effective reactivation date that a contractor may assign to a provider or supplier whose billing privileges are deactivated is the date that the provider or supplier files a new enrollment application with the contractor that the contractor subsequently approves.  42 C.F.R. § 424.540(d)(2).  The contractor has no authority to assign a retroactive reactivation date to a provider or a supplier whose billing privileges were deactivated on a date prior to the date when the provider or supplier submits a new enrollment application for the purpose of reactivating his or her billing privileges.  Moreover, I do not have authority to order a contractor to assign a retroactive reactivation date.

The regulations and the undisputed facts mandate the outcome of this case.  Petitioner may not challenge the contractor’s determination to deactivate its billing privileges.  The only question that I may consider is whether the reactivation date of August 1, 2022, determined by the contractor is consistent with regulatory requirements.  I find that it is, because August 1, 2022, is the date that the contractor received Petitioner’s reactivation application.  August 1, 2022, is the

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earliest date on which Petitioner’s billing privileges may be reactivated.  Neither the contractor nor I may assign Petitioner a reactivation date that is retroactive to a date that is earlier than August 1.

As I note above, the contractor originally assigned an effective reactivation date to Petitioner of July 29, 2022.  That date is erroneous because the contractor did not receive Petitioner’s application for reinstatement until August 1, 2022.  The contractor had no authority to assign a reinstatement date that is earlier than August 1, and it properly corrected the effective date to August 1 on reconsideration of its determination.

Petitioner asserts that it never received the contractor’s April 20, 2022 letter requesting that Petitioner update its enrollment information.  Consequently, according to Petitioner, it was in no position to comply with the contractor’s request.  Petitioner argues that it should not be penalized for failing to comply with a request that it never received.

I lack authority to hear and decide this argument for two reasons.  First, it constitutes a challenge to the contractor’s decision to deactivate Petitioner’s billing privileges, a challenge that I have no authority to hear and decide.  Second, it is an equitable argument that I also lack authority to hear and decide.  Effectively, Petitioner contends that it has been treated unfairly by the contractor.  As a general rule, equitable challenges to CMS’s determinations are not appealable.  U.S. Ultrasound, DAB No. 2302 at 8 (2010).  I may not use equitable principles to override or ignore regulatory requirements.

Endnotes

¹  The contractor initially determined to reactivate Petitioner’s Medicare billing privileges effective July 29, 2022.  On reconsideration the contractor revised that effective date to August 1, 2022.  In this decision I explain why August 1 is the correct effective date of reactivation.