Atlantic Emergency Associates PA, DAB CR6346 (2023)

DECISION

The Centers for Medicare & Medicaid Services (CMS), acting through a Medicare Administrative Contractor, deactivated the Medicare billing privileges of Atlantic Emergency Associates PA (Petitioner) on December 2, 2022.  On January 17, 2023, the CMS contractor received a reactivation enrollment application from Petitioner, which the contractor approved, effective January 17, 2023.  Petitioner requested a hearing seeking retrospective billing privileges to cover the period of deactivation.

I affirm the reactivation effective date of January 17, 2023.  The regulations do not permit Medicare providers or suppliers to receive reimbursement from the Medicare program during the period that their billing privileges are deactivated.

I.  Procedural History

On April 19, 2023, a CMS contractor issued an unfavorable reconsidered determination related to the effective date of reactivation of Petitioner’s Medicare billing privileges.  CMS Ex. 1.  Petitioner timely requested a hearing to dispute the reconsidered determination.  On May 24, 2023, the Civil Remedies Division acknowledged the hearing

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request and issued my Standing Order.  On June 28, 2023, CMS timely filed a prehearing brief (CMS Br.), which included a motion for summary judgment, and ten proposed exhibits (CMS Exs. 1-10).  On August 2, 2023, Petitioner filed a prehearing brief (P. Br.).  On August 7, 2023, CMS filed notice that it would not file a reply brief.¹

II.  Admission of Evidence and Decision on the Written Record

Petitioner did not object to any of CMS’s proposed exhibits.  Standing Order ¶ 10.  Therefore, I admit all of them into the record.

I directed the parties to submit written direct testimony from all witnesses that the parties wanted to present in this case.  Standing Order ¶ 11.  If a party submitted written direct testimony from one or more witnesses, the opposing party may cross-examine the witness or witnesses so long as the opposing party timely requests the opportunity to do so.  Standing Order ¶ 12.  I informed the parties that an in-person hearing to cross-examine witnesses would only be necessary if a party files admissible written direct testimony and the opposing party asks to cross-examine the witness or witnesses.  Standing Order ¶ 13.  Therefore, I informed the parties that, “[u]nless 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 submission deadlines have passed.”  Standing Order ¶ 14.

In the present case, all deadlines for prehearing submissions have passed and neither party filed written direct testimony.  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).  Therefore, I deny CMS’s summary judgment motion as moot, and I issue a decision based on the written record.

III.  Issue

Whether the CMS contractor had a legitimate basis to assign January 17, 2023, 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).

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V.  Findings of Fact

1. Petitioner is a group practice of physicians that was enrolled in the Medicare program.  See CMS Ex. 7 at 1.
2. In a September 15, 2022 letter, a CMS contractor informed Petitioner that it was noncompliant with Medicare regulations because the contractor “found that [F.S.] is deceased and must be removed from your enrollment.”  The letter stated that, within 90 days, Petitioner needed to request that CMS remove the deceased individual from Petitioner’s Medicare enrollment.  The letter warned that “[i]f you fail to comply within the 90-day deadline, CMS will deactivate your enrollment for non-submission of a change of information, per 42 C.F.R. § 424.540(a)(2).”  CMS Ex. 5 at 1.
3. On December 14, 2022, the CMS contractor issued a notice that it was deactivating Petitioner’s Medicare billing privileges as of December 2, 2022.  The contractor stated that it “has been informed that [F.S.], is deceased as of September 3, 2022.  Your Medicare enrollment application identifies [F.S.], as a partner.  [The CMS contractor] has not received a Medicare enrollment application reporting this change in ownership and/or managing control.”  CMS Ex. 6 at 1.
4. Petitioner electronically filed an enrollment application seeking to reactivate its Medicare billing privileges, which the CMS contractor received on January 17, 2023.  CMS Ex. 7 at 1.
5. On either January 17 or 18, 2023, Petitioner filed a rebuttal to the deactivation of billing privileges.  Petitioner asserted that it first received the September 15, 2022 letter from the CMS contractor on January 16, 2023.  Petitioner also stated that it did not receive the December 14, 2022 deactivation letter.  Petitioner requested that the CMS contractor “retro-date the effective date for the reactivation prior to the deactivation date to avoid gaps in billing.”  CMS Ex. 8 at 1, 3-4.
6. On January 24, 2023, the CMS contractor dismissed Petitioner’s rebuttal to deactivation because it was untimely.  The CMS contractor stated that Petitioner had 15 days from December 14, 2022 to file a rebuttal, but Petitioner did not file the rebuttal until January 18, 2023.  Further, the contractor stated that Petitioner did not show good cause for the late filing.  CMS Ex. 9 at 1.
7. On February 2, 2023, the CMS contractor issued a notice of initial determination approving Petitioner’s reactivation enrollment application with a reactivation effective date of January 17, 2023.  CMS Ex. 10 at 1. 

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8. On February 2, 2023, Petitioner filed a reconsideration request seeking a retroactive reactivation effective date of December 1, 2022.  Petitioner asserted that it did not receive the September 15, 2022 letter until January 16, 2023, and acted immediately to resolve the CMS contractor’s request.  Petitioner also had not yet received a copy of the deactivation notice.  CMS Ex. 2.
9. On February 6, 2023, Petitioner filed a supplement to its reconsideration request.  Petitioner again sought a December 1, 2022 reactivation effective date based on a waiver under section 1135 of the Social Security Act.  CMS Exs. 3-4.
10. On April 19, 2023, the CMS contractor issued an unfavorable reconsidered determination and affirmed the January 17, 2023 effective date of reactivation.  CMS Ex. 1. 

VI.  Conclusions of Law

1. Based on the reactivation enrollment application that the CMS contractor approved in this case, the effective date for reactivation of Medicare billing privileges is the date the approved application was received by the CMS contractor (i.e., January 17, 2023).  42 C.F.R. § 424.540(d)(2).
2. Petitioner is not eligible for a retrospective billing period back to December 1, 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 December 2, 2022 through January 16, 2023.  Petitioner argues that, under 42 C.F.R. § 424.521(a)(1)(ii), it should receive retrospective billing privileges back to December 1, 2022, based on the declaration of a national emergency.  P. Br. at 1.  Although Petitioner acknowledged that the regulations may not permit a retrospective billing period for reactivations, Petitioner argued that I should order the requested retrospective billing period because:  all of the group’s physicians were validly licensed and credentialled during the deactivation; the actions resulting in deactivation occurred during a national pandemic; CMS only sent one notice before imposing deactivation; the deactivation date was 78 days, and not 90 days, following the September 15, 2022 notice; and services were provided in good faith to Medicare beneficiaries during the period of deactivation.  P. Br. at 2.

I am not able to grant Petitioner’s requested relief.  I only have jurisdiction to determine whether CMS correctly determined the effective date of reactivation.  See 42 C.F.R. § 498.3(b)(15).

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The Social Security Act (Act) authorizes the Secretary of Health and Human Services 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).

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 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).  “[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.

After being enrolled, CMS may deactivate the Medicare billing privileges of a supplier for a variety of reasons, including a failure to report a change to the information supplied on the enrollment application within the applicable time period in the regulations.  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).

As stated above, Petitioner disputes the effective date of the deactivation of Medicare billing privileges.  Also, as stated in the preceding paragraph, I have no jurisdiction to review any matter related to the deactivation determination because that determination is not an appealable “initial determination.”  Petitioner filed a rebuttal to the deactivation, which was the correct and only avenue for administrative appeal.

Petitioner also seeks a retroactive effective date of reactivation.  Petitioner filed an enrollment application to reactivate Medicare billing privileges.  The CMS contractor received that application on January 17, 2023.  The CMS contractor approved that application and reactivated Petitioner’s billing privileges as of January 17, 2023.  In appealing the reactivation effective date, Petitioner requested a retroactive reactivation date of December 1, 2022.  On reconsideration, the CMS contractor denied Petitioner’s request, explaining it did not have authority to provide a retroactive effective date.

The CMS contractor is correct that it could not provide a retroactive effective date of reactivation.

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When initially enrolling a physician organization, CMS establishes an effective date for enrollment that is 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).

In its hearing request, Petitioner cited Anil Hanuman, D.O., DAB CR6103 (2022) because that case involved a physician who received 90 days of retrospective billing privileges under 42 C.F.R. § 424.521.  Hearing Req. at 1-2.  However, this case is not relevant to the current one.  The physician in Hanuman was enrolling in the Medicare program and not seeking to reactivate billing privileges.

VIII.  Conclusion

The reactivation effective date for Petitioner’s Medicare billing privileges is January 17, 2023.

Endnotes

¹ On August 7, 2023, Petitioner filed a supplemental brief in which Petitioner requested that I provide a retroactive reactivation effective date for 47 physicians associated with Petitioner’s group practice.  On August 10, 2023, I informed Petitioner that I only had jurisdiction to review the reactivation effective date for the physician practice.  I also advised Petitioner that it could file hearing requests concerning the 47 physicians.