Chaitanya Tummala, M.D., DAB CR5259 (2019)

DECISION

Petitioner, Chaitanya Tummala, M.D., timely notified the Centers for Medicare & Medicaid Services (CMS) of the termination of his reassignment of benefits to an employing practice group and he is entitled to submit claims and receive reimbursement from Medicare as solo practitioner as of July 18, 2016.

I. Background and Facts

Petitioner complains in this case of a gap in his billing privileges from July 18, 2016 to August 28, 2016, based on initial and reconsidered determinations of Novitas Solutions, a Medicare administrative contractor (MAC), and a reopened but not revised reconsidered determination of a Centers for Medicare & Medicaid Services (CMS) hearing officer. Request for Hearing (RFH); Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1. The gap determined by the MAC and CMS began on July 18, 2016, the day after the effective date of the termination of Petitioner’s reassignment to Infectious Disease Doctors, PA (Infectious Disease), and August 28, 2016, the date the MAC and CMS determined that Petitioner was eligible to begin billing Medicare for care and services he rendered to Medicare-eligible beneficiaries.

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There is no dispute that Petitioner enrolled in Medicare and received billing privileges in 2004. There is no dispute that Petitioner terminated his relationship with Infectious Disease on July 17, 2016, and began delivering services at his own practice on July 18, 2016. CMS Exhibit (Ex.) 1 at 3; CMS’s Supplement to Prehearing Brief Responding to Specified Issues (CMS Supp. Br.); Petitioner’s Response to CMS’ Motion For Summary Judgment or in the Alternative, Pre-Hearing Brief and Counter Motion for Summary Judgment (P. Br.) at 2-3.

On September 27, 2016, 72 days after Petitioner began delivering care and services at his own practice, Petitioner filed a web application using the CMS Provider Enrollment, Chain, and Ownership System (PECOS).1 The reason for the submission listed on the application: “A Medicare Part B practitioner is currently enrolled in the Medicare program. The practitioner is adding, deleting, or changing general Medicare enrollment information.” CMS Ex. 1 at 3, 8. Petitioner updated or edited personal information, correspondence address, and Medicare benefit assignment information. Petitioner also added a new practice location, payment address, and claims information effective July 18, 2016. Petitioner deleted his old contact person and added a new contact person. Petitioner updated and added Electronic Funds Transfer (EFT) information. Petitioner updated and added reassignment of benefits information and deleted an old reassignment to a practice group listed as Infectious Disease, a reassignment listed as being in effect from July 1, 2004 to July 17, 2016. CMS Ex. 1 at 3, 9-12.

On September 27, 2016, Petitioner also filed a PECOS web application that states as the reason for submission: “A Medicare Part B practitioner is currently enrolled in Medicare and is reassigning his/her benefits to a Part B supplier, Part B practitioner or Part A provider currently enrolled in Medicare.” Petitioner added an enrollment application contact person. Petitioner completed the form to reflect only reassignment of benefits to him and deleted the old reassignment to Infectious Disease, which had been in effect from July 1, 2004 to July 17, 2016. CMS Ex. 1 at 3, 14. Petitioner also filed a paper CMS-855R dated October 5, 2016, terminating the reassignment to Infectious Disease. CMS Ex. 1 at 3.

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On October 27, 2016, Petitioner filed another PECOS application advising CMS that Petitioner ended his reassignment of benefits to Infectious Disease effective July 17, 2016. Apparently, this filing was to correct the prior filing on September 27, 2016, to delete the reference to a reassignment of benefits to himself as the block of the form is marked “updated” and lists no information in the spaces for listing reassignors or reassignees. CMS Ex. 1 at 3-4, 4 n.2, 17.

On October 28, 2016, the MAC notified Petitioner by letter that Petitioner’s request to terminate his reassignment of benefits to Infectious Disease was approved effective July 17, 2016. The notice advised Petitioner that electronic claims filing and electronic remittance were recommended for filing claims with Medicare and receiving payment. The termination of the reassignment affected three Provider Transaction Numbers (PTANs), 404997ZNKW, 404997ZNKX, and 8B7855, related to Petitioner’s National Provider Identifier (NPI) and the Infectious Disease NPI.2 The letter informed Petitioner of the need to report changes to his Medicare enrollment information and to strictly comply with Medicare regulations. The letter did not inform Petitioner that it was necessary to take any further action to reestablish his billing privileges as a previously enrolled Medicare supplier in solo practice without a reassignment to an employer. The letter did not advise Petitioner that his existing enrollment and related billing privileges were revoked or that his billing privileges were deactivated. CMS Ex. 1 at 19-21.

On November 17, 2016, the MAC notified Petitioner by a separate letter that his change of information request was approved. The letter advised Petitioner that to start billing he had to use his NPI on all Medicare claims.3 The letter explained that the PTAN was

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required for authentication for inquiries to MAC customer service representatives. The change to Petitioner’s Medicare enrollment information listed Petitioner’s NPI, which was unchanged from 1518929959, his PTAN, which was changed to PTAN 404997 (the first six digits of two of his prior PTANs), and that he was a non-participating provider. The effective date of the change was listed as August 28, 2016. The letter also reflected approval of the change of contact person effective October 27, 2016 and the removal of the prior contact person effective July 17, 2016. The letter also advised that Petitioner’s EFT had been processed and approved. The letter informed Petitioner of the need to report changes to his Medicare enrollment information and to strictly comply with Medicare regulations. The letter advised Petitioner that he had the right to request reconsideration of the effective date determination by a MAC hearing officer and the possibility of administrative law judge (ALJ) review. The MAC notice was not clear as to which effective date determination was subject to reconsideration, that is, whether the termination of the reassignment effective date, the effective date the prior contact was removed, the effective date for the new contact, or the effective date of the change to Petitioner’s Medicare enrollment information. CMS Ex. 1 at 23-26. The notice did not advise Petitioner that his enrollment and billing privileges were revoked or deactivated during the gap period that this determination created.

Petitioner timely requested reconsideration by the MAC by letter dated November 21, 2016, which was received by the MAC on January 17, 2016. Petitioner requested that his effective date be changed from August 28, 2016 to July 18, 2016. Petitioner cited the example of another doctor in his prior practice that submitted an application on October 27, 2016, and was granted an effective date of July 18, 2016. Petitioner did not assert in his request for reconsideration that he submitted an enrollment application that was received by the MAC before September 27, 2016. CMS Ex. 1 at 37-38, 40.

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Novitas notified Petitioner by letter dated March 3, 2017, that the August 28, 2016 effective date was upheld on reconsideration. CMS Ex. 1 at 39-42. The reconsidered determination states that the “effective date of Medicare billing privileges is August 28, 2016.” CMS Ex. 1 at 40. The MAC hearing officer cited 42 C.F.R. § 424.520(d)4 as the regulatory authority for determining the effective date for billing privileges and 42 C.F.R. § 424.521(a) as the authority for limiting retrospective billing to 30 days prior to the effective date of billing privileges. CMS Ex. 1 at 39. The hearing officer stated that the MAC received a CMS-855I change of information application on September 26, 20165 to report new private practice information; and the application was approved on November 17, 2016 assigning PTAN 404997 effective August 28, 2016. The hearing officer alluded to a prior PECOS application submitted on July 19, 2016, but states that the MAC has no evidence of that application. The hearing officer advised Petitioner of the right to request review by an ALJ. CMS Ex. 1 at 40-42. The hearing officer did not analyze whether Petitioner’s various applications were timely or offer any analysis of Petitioner’s billing privileges during the gap period. The hearing officer did not indicate that Petitioner’s billing privileges were revoked or deactivated during the gap period.

On April 18, 2017, Petitioner requested a hearing before an ALJ. The case was assigned to another ALJ and subsequently reassigned to me upon that judge’s departure. CMS moved for summary judgment on May 31, 2017, with 15 exhibits. Petitioner filed a response in opposition on July 5, 2017, with six exhibits.6

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On October 19, 2017, I issued an order remanding to CMS and dismissing Docket Number C-17-589. C-17-589 Remand. The case was remanded pursuant to 42 C.F.R. § 498.56(d) and dismissed pursuant to 42 C.F.R. § 498.70(b). The dismissal states it is without prejudice to Petitioner’s right to request a hearing as to any determination by CMS on remand that triggers a right to hearing. C-17-589 Remand at 1. I advised Petitioner that if CMS failed to take action within 60 days from the date of the order of remand and dismissal, and Petitioner desired further ALJ review, he could file a request for hearing with a copy of the order of remand and dismissal attached. C-17-589 Remand at 7. I explained in the remand and dismissal that a new reconsidered determination was required because the MAC hearing officer erred as to the facts and law and failed to adequately explain the rationale for the reconsidered determination, so that I knew what was subject to my review. I inferred that the hearing officer mistook Petitioner for a new enrollee requiring new billing privileges rather than a currently enrolled supplier with billing privileges who had simply terminated the reassignment of those billing privileges. My inference was based, in part, on the fact that there is no law, regulation, or CMS policy that allowed a change of a supplier’s effective date of billing privileges due to the filing of a CMS-855I or a CMS-855R to notify CMS or the MAC of a change of enrollment information, that is, termination of a reassignment and change of practice location. C-17-589 Remand at 7.

On January 3, 2018, a CMS hearing officer notified Petitioner by letter that she determined not to reopen and revise the March 3, 2017 MAC reconsidered determination. The hearing officer stated in her five-page letter that the reconsidered determination of the MAC was examined and found not to be in error and CMS decided to leave the MAC reconsidered determination undisturbed. CMS Ex. 1 at 1-5.

On January 11, 2018, Petitioner requested a hearing before an ALJ with a copy of the Remand and Dismissal Order in C-17-589 and a copy of the January 3, 2018 letter from the CMS hearing officer. Petitioner requested review of the MAC and CMS determinations that the effective date of his Medicare billing privileges was August 28, 2016. The case was docketed as C-18-432 and assigned to me. An Acknowledgement and Prehearing Order was issued on January 19, 2018 (Prehearing Order). On February 8, 2018, CMS moved to dismiss the case. Petitioner filed a response on February 27, 2018. I denied the motion to dismiss on March 1, 2018. CMS filed a motion for summary judgment on February 20, 2018 with CMS Ex. 1. On March 20, 2018, Petitioner filed a response in opposition to the CMS motion for summary judgment and a cross-motion for summary judgment. Petitioner filed no new exhibits but listed P. Ex. 1

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filed in C-17-589 as a prior statement in lieu of testimony, which I construe to be a request that I consider the document as evidence in this case. CMS responded to Petitioner’s cross-motion for summary judgment on April 4, 2018. Petitioner did not object to my consideration of CMS Ex. 1. CMS did not object to my consideration of P. Ex. 1 filed in C-17-589. CMS Ex. 1 and P. Ex. 1 are admitted and considered as evidence.

II. Discussion

A. Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B. Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.7 Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)). Administration of the Part B program is through the MACs. Act § 1842(a) (42 U.S.C. § 1395u(a)).

The Act requires the Secretary of Health and Human Services (the Secretary) to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations. Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to 42 C.F.R. § 424.505, a provider or supplier must be enrolled in the Medicare program and be issued a billing number (NPI) to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.

The Medicare beneficiary, one who is entitled to benefits under Medicare Part A or enrolled under Part B, is the individual covered by Medicare and entitled to request payment for Medicare-covered health care items and services. Act § 1802 (42 U.S.C. § 1395a). The assignment of the right to file a claim for Medicare coverage of health

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care charges from a Medicare beneficiary to a Medicare-enrolled provider or supplier is limited. The reassignment of the right to file a Medicare-claim from an enrolled provider or supplier to another is very limited. 42 C.F.R. pt. 424, subpt. F. Reassignment to an employer is permitted from a supplier, such as a physician, when reassignment is required as a condition of employment. 42 C.F.R. § 424.80(b)(1).

The Secretary has issued regulations that establish the right to a hearing and judicial review of certain enrollment determinations. Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to section 1866(h)(1) and (j)(8) of the Act, a provider or supplier whose application to enroll or renew enrollment is denied or whose enrollment is terminated is entitled to an ALJ hearing and judicial review. Appeal and review rights in provider and supplier cases are specified by 42 C.F.R. §§ 424.545 and 498.5. Pursuant to 42 C.F.R. § 424.545(a) a provider or supplier denied enrollment or whose enrollment is revoked may appeal the CMS decision under procedures of 42 C.F.R. pt. 498. Pursuant to 42 C.F.R. § 424.535(a)(1), when revocation of billing privileges, that is, Medicare enrollment, also causes termination of any corresponding provider agreement, both are to be considered in a single appeal. The burden to show a provider or supplier meets Medicare enrollment requirements is upon the provider or supplier. 42 C.F.R. § 424.545(c).

Appeal and review rights are further defined by 42 C.F.R. § 498.5. A prospective provider dissatisfied with the determination it is not qualified as a provider, that is, its enrollment is denied, may request reconsideration and, if that determination is unfavorable, an ALJ hearing. 42 C.F.R. § 498.5(a). A provider dissatisfied with an initial determination to terminate its provider agreement is entitled to an ALJ hearing. 42 C.F.R. § 498.5(b). Both prospective providers and existing providers dissatisfied with an ALJ decision may request review by the Departmental Appeals Board (Board) and subsequently judicial review of the Board’s decision. 42 C.F.R. § 498.5(c). Prospective suppliers denied Medicare enrollment may request reconsideration and, if dissatisfied with the reconsidered determination, an ALJ hearing. 42 C.F.R. § 498.5(d). A supplier dissatisfied with an initial determination that services subject to the initial determination no longer meet conditions for coverage has the right to request an ALJ hearing. 42 C.F.R. § 498.5(e). Prospective and enrolled providers and suppliers dissatisfied with an initial determination to deny or revoke the provider’s or supplier’s Medicare billing privileges, that is, their Medicare enrollment, may request reconsideration. 42 C.F.R. § 498.5(l)(1). Prospective and enrolled providers and suppliers and CMS may request an ALJ hearing if they are dissatisfied with the reconsidered determination. 42 C.F.R. § 498.5(l)(2). Either party to an ALJ hearing may request Board review and the prospective or enrolled provider or supplier may seek judicial review of the Board decision. 42 C.F.R. § 498.5(l)(3). Thus, the regulations are consistent with the Act in providing a right to an ALJ hearing for a determination by CMS or the MAC denying or revoking Medicare enrollment and billing privileges.

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The Board has also been willing to treat the listing of initial determinations at 42 C.F.R. § 498.3(b) to establish a right to ALJ review and Board review even though such review is not provided for under the Act or 42 C.F.R. §§ 424.545 or 498.5. The Board has found a right to review based on 42 C.F.R. § 498.3(b)(15) which lists as an initial determination “[t]he effective date of a Medicare provider agreement or supplier approval.” Based on 42 C.F.R. § 498.3(b)(15), the Board has found a right to ALJ and Board review of the determination of an effective date of enrollment. Victor Alvarez, M.D., DAB No. 2325 at 3-10 (2010). The Board has consistently found a right to review of various effective date determinations, even though, that interpretation seems inconsistent with the limits on review imposed by sections 1866(h)(1) and (j)(8) of the Act and 42 C.F.R. § 498.5(l), which provide review only for a denial or revocation of enrollment.

B. Issues

Whether summary judgment is appropriate;

Whether I have jurisdiction; and

The date on which Petitioner was entitled by his Medicare enrollment and billing privileges to first bill Medicare for care and services, that he delivered to Medicare-eligible beneficiaries as a solo practitioner.

C. Conclusions of Law and Analysis

My conclusions of law are set forth in bold text.

1. Summary judgment is appropriate.

A hearing on the record before an ALJ is required under the Act. Act §§ 205(b), 1866(h)(1), (j) (42 U.S.C. §§ 405(b), 1395cc(h)(1), (j)); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (2004). The procedures governing hearings in provider and supplier enrollment cases are at 42 C.F.R. pt. 498. A party may waive appearance at an oral hearing but must do so affirmatively in writing. 42 C.F.R. § 498.66. Petitioner has not waived oral hearing. CMS filed a motion for summary judgment, which Petitioner opposes, and Petitioner has cross-moved for summary judgment.

Summary judgment is not automatic but is limited to certain specific conditions. The regulations do not establish or recognize a summary judgment procedure. However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498. See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997). The Board has also recognized that the Federal Rules of Civil Procedure do not apply in

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administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate. Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Prehearing Order. The parties were given notice by the Prehearing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied. Prehearing Order ¶¶ II.D. & G.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. A material fact is “[a] fact that is significant or essential to the issue or the matter at hand.” Black’s Law Dictionary at 629 (8th ed. 2004). In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor. The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law. Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, that is, a fact that would affect the outcome of the case if proven. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).

The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differs from that used in resolving a case after a hearing. On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record. Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true. Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009). The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden. Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010). The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden. However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498. Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005).

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In this case, I conclude that there is no genuine dispute as to any material facts and summary judgment is appropriate. In considering the cross-motions, I have not attempted to judge credibility and have drawn all inferences in favor of the non-movant when considering each party’s request for summary judgment.

2. The Board would conclude that a supplier has the right to an ALJ hearing regarding a CMS or MAC determination of the effective date of Medicare enrollment and billing privileges after a termination of a reassignment of billing privileges.

3. There were initial and reconsidered determinations in this case that trigger a right to a hearing.

CMS argued in its motion to dismiss that Petitioner has no right to a hearing. CMS argued that Petitioner failed to request that I vacate my October 19, 2016 order remanding and dismissing C-17-589, and Petitioner failed to request Board review within 60 days of the date of the order remanding and dismissing. CMS argued that the January 3, 2018 letter of the CMS hearing officer (CMS Ex. 1 at 1-5) was not a reopened and revised reconsidered determination and not an initial determination listed in 42 C.F.R. § 498.3(b) that triggered a right to request a hearing. CMS concluded that Petitioner has no right to ALJ review based on the most recent request for hearing. CMS Motion to Dismiss Petitioner’s Request for Hearing at 1, 3-5.

In my March 1, 2018 ruling denying CMS’s motion to dismiss, I explained that Petitioner filed a timely request for ALJ review in C-17-589; and remand was sua sponte pursuant to 42 C.F.R. § 498.56(d) to permit CMS to issue a new reconsidered determination to address what appeared to be errors of fact and law or to provide a more clear statement of the basis for the reconsidered determination. The issues to be addressed were new because they were not specifically or clearly addressed by the MAC hearing officer in the reconsidered determination. New issues not before the hearing officer at the time of the reconsidered determination were not identified for consideration. In his request for hearing filed January 11, 2018, Petitioner requested that I reassert jurisdiction as permitted by 42 C.F.R. § 498.56(d), which I am willing to do. I also found good cause to extend the time for Petitioner to file a request for hearing as permitted by 42 C.F.R. § 498.40 relative to the March 3, 2017 reconsidered determination. It was not my intention that by remanding to CMS to obtain clarification of the reconsidered determination, to deny Petitioner the ALJ review he timely requested.

CMS filed a combined motion for summary judgment and prehearing brief on February 20, 2018. CMS mischaracterizes Petitioner’s January 11, 2018 request for hearing as an appeal of the January 3, 2018 decision of the CMS hearing officer not to reopen the March 3, 2017 MAC reconsidered determination. CMS argues that it is entitled to summary judgment as the CMS hearing officer appropriately determined not to reopen

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the MAC reconsidered determination. CMS Br. at 1. It is clear from Petitioner’s request for hearing and pleadings that Petitioner seeks review of the effective date determination that caused the gap in his billing privileges, the determination made initially by the MAC and upheld by both the MAC hearing officer and the CMS hearing officer who found no error in the MAC reconsidered determination. CMS also argues that the determination not to reopen the March 3, 2017 reconsidered determination is not an initial determination that triggers a right to review. CMS Br. at 3-4. There was an initial determination in this matter by the MAC that triggered Petitioner’s right to request reconsideration, which he timely did. A reconsidered determination was issued by the MAC hearing officer that triggered the right to an ALJ hearing that Petitioner timely requested. I remanded to CMS to correct any error of law and fact or clarify the basis for the reconsidered determination. A CMS hearing officer issued another determination, which I conclude, for reasons discussed hereafter, was a reopened reconsidered determination even though there was no change to the effective date determination. Petitioner timely requested ALJ review of the CMS hearing officer’s determination.

CMS argues in its motion for summary judgment that the decision not to reopen the March 3, 2017 reconsidered determination was legally supportable and within CMS’s discretion. CMS further argues that the March 3, 2017 reconsidered determination was correct and should be upheld. CMS Br. at 4-7. The merits of the effective date determination will be addressed in more detail hereafter. I do not disagree that CMS had discretion under 42 C.F.R. pt. 498 for the CMS hearing officer to issue the January 3, 2018 determination. I remanded the case to CMS specifically for a new reconsidered determination to ensure both the parties and I understood the factual and legal basis for the MAC hearing officer’s reconsidered determination. Although my review is de novo, the issues I may consider are those addressed on reconsideration. Neb Grp., DAB No. 2573. I did not remand to CMS with any requirement for a revision of the effective date determination unless, of course, CMS determined a change was appropriate. However, I do not agree with the CMS characterization of the January 3, 2018 letter from the CMS hearing officer. CMS argues that the determination was neither a reopened nor revised reconsidered determination. The CMS characterization is not binding and not supported by the facts. Clearly, the CMS hearing officer determined not to change or revise the effective date determination of the MAC hearing officer. However, it also clear that the January 3, 2018 determination was made by a CMS hearing officer and not the original MAC hearing officer. The CMS hearing officer issued a five-page letter in which she extensively reviewed the evidence, the regulations, and CMS policy, and she gave a detailed statement of how the MAC’s effective date determination was consistent with law and policy and supported by evidence. The CMS hearing officer states that she examined the MAC reconsidered determination and decided to leave it undisturbed. The CMS hearing officer clearly reconsidered the MAC reconsidered determination and its bases. The applicable regulation recognizes that a determination may be reopened but not revised. 42 C.F.R. § 498.32(a). The CMS hearing officer in this case reopened the prior reconsidered determination and then issued a new and revised determination that

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provided more analysis and a clearer explanation of the bases for upholding the effective date determined initially. The new reconsidered determination upheld and did not change the prior effective date determination. However, the fact that there was no change of the effective date does not negate the review the CMS hearing officer performed. Therefore, I conclude that the January 3, 2018 reopened and revised reconsidered determination triggered Petitioner’s right to request ALJ review within 60 days of that determination. Petitioner timely requested review.

Having determined that Petitioner preserved any right to ALJ review that may exist, I turn to consideration of the Board’s likely analysis to determine if there is a right to ALJ and Board review on the facts of this case. My conclusion that Petitioner preserved any right to ALJ review by a timely hearing request, does not resolve the question of whether Petitioner has a right to such review. However, I conclude that the Board would determine Petitioner has a right to review of the effective date determination in this case.

As previously discussed, the Secretary promulgated the regulations at 42 C.F.R. §§ 424.545 and 498.5 that specify review and appeal rights in provider and supplier cases. The Secretary has not specifically stated that a supplier has a right to ALJ review of CMS or MAC determinations related to reassignment of the right to file claims with and receive payment from Medicare, including the effective date of reassignment. 42 C.F.R. §§ 424.70‑.90, 424.545, 498.3(b), 498.5.8 However, 42 C.F.R. § 498.3(b)(15), provides that “[t]he effective date of a Medicare provider agreement or supplier approval” are initial determinations subject to review by an ALJ. The Board has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare as well as the effective date of the reactivation of billing privileges. See, e.g., Alvarez, DAB No. 2325 at 3-10 (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Grp. of NJ, LLC, DAB No. 2860 at 6 (2018) (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation). Applying the reasoning of the Board in Alvarez and Urology Grp., I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date related to a reassignment. However, the only determination of CMS or the MAC that is subject to my review in a provider and supplier case is the reconsidered determination. See 42 C.F.R. § 498.5(l)(1)-(2); Neb Grp., DAB No. 2573 at 7.

A further jurisdictional issue to consider is raised by the Board’s decision in Urology Group. In Urology Group, a case involving the reactivation of billing privileges that had

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been deactivated by CMS, the Board rejected arguments that Petitioner was deprived of due process because he was not paid for care and services during the gap period due to the deactivation and reactivation effective date determination. The Board concluded that such issues “are not cognizable in this forum” and “may be appealed only after submitting a claim and only through the process set out in 42 C.F.R. Part 405.” Urology Grp. at 7 (citing Willie Goffney, Jr., M.D., DAB No. 2763 at 6 (2017), appeal docketed, No. 2:17-cv-08032-MRW (C.D. Cal. Nov. 3, 2017)); Vijendra Dave, M.D., DAB No. 2672 at 12 (2016). The issue the Board was addressing was whether the Petitioner in Urology Grp. was entitled to bill for and be paid for care and service delivered during the gap period between the date of a deactivation and a reactivation effective date, which the Board concluded was properly determined. The issue raised in the case before me is whether there is a gap period, that is, whether the MAC and CMS incorrectly determined the effective date and therefore incorrectly caused a gap period in billing privileges between the termination of Petitioner’s reassignment to Infectious Disease and the effective date of his billing privileges in his new status as a solo practitioner. I conclude that the quoted language of the Board is not persuasive precedent on the issues before me.

Accordingly, I conclude that Petitioner has a right to review of the effective date determination by the MAC and CMS in this case and I have authority to conduct the requested review.

4. The effective date of Petitioner’s termination of the reassignment of his right to file claims with and receive payment from Medicare to Infectious Disease was July 17, 2018, as determined by the MAC and CMS.

5. Petitioner timely filed his change of information application related to the termination of his reassignment and his change of status to a solo practitioner on September 27, 2016, within 90 days of the change, as required by 42 C.F.R. § 424.516(d)(2).

6. Because Petitioner timely filed his change of information applications, the legal basis upon which the MAC and CMS relied for determining that the first date of the retrospective billing period was August 28, 2016, was erroneous.

7. The correct effective date of billing privileges for Petitioner is July 18, 2016 and there was no gap in Petitioner’s billing privileges.

Based on my analysis of Board interpretive rulings in various decisions, I conclude Petitioner does have a right to my review of the reconsidered determinations of the effective date of Petitioner’s right to file claims with and receive payment from Medicare following the termination of his reassignment to Infectious Disease. The Secretary’s

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regulations do not specify how to determine an effective date for an authorized reassignment. 42 C.F.R. pt. 424, subpt. F. However, CMS has addressed the determination of the effective date of a reassignment by policy or interpretive rules that were in effect at the time of the reconsidered determination.

The undisputed facts in this case establish that Petitioner was enrolled in Medicare with an assigned billing number (NPI) in 2004. Petitioner reassigned his right to bill Medicare to his employing practice group, Infectious Disease, on July 1, 2004. Petitioner left his practice group on July 17, 2016 and began solo practice on July 18, 2016. CMS Ex. 1 at 3; P. Br. at 2-3; CMS Supp. Br. Petitioner notified the MAC on September 27, 2016 by two on-line applications that he terminated his reassignment to Infectious Disease and various other changes of information related to leaving Infectious Disease. CMS Ex. 1 at 3, 8-12, 14. Petitioner also filed a paper CMS-855R on October 5, 2016, informing the MAC of the termination of his reassignment to Infectious Disease. CMS Ex. 1 at 3. Petitioner filed another web application on October 27, 2016, advising the MAC of the termination of his reassignment to Infectious Disease. CMS Ex. 1 at 3.

On October 28, 2016, the MAC notified Petitioner that the termination of his reassignment to Infectious Disease was effective July 17, 2016. The MAC notice advised Petitioner about electronic claims filing and remittances. The MAC did not advise Petitioner that he could not begin billing immediately for care and services he delivered to Medicare-eligible beneficiaries in his private practice beginning July 18, 2016, using the billing number (NPI) that was effective with his enrollment in 2004. The MAC also did not advise Petitioner of any other actions he needed to take in order to begin billing using his NPI. CMS Ex. 1 at 19-21.

On November 17, 2016, the MAC sent Petitioner another notice advising Petitioner that his change of information request was approved. The letter advised Petitioner that he had to use his NPI, which was unchanged, on all Medicare claims. The effective date was listed as August 28, 2016. The letter also reflected two other effective dates – July 17, 2016 for the deletion of the contact person under the terminated reassignment to the new contact person effective October 27, 2016. CMS Ex. 1 at 23-26. The CMS Hearing Officer explained in the reopened reconsidered determination that the August 28, 2016 effective date announced in the initial determination was actually intended to be the first date of the retrospective period for billing, which was 30 days prior the MAC’s receipt of Petitioner’s September 27, 2016 applications. CMS Ex. 1 at 4 n.3.

Petitioner’s complaint for which he requests a remedy is that the MAC and CMS refused to allow him to bill for care and services delivered from July 18, 2016 to August 28, 2016, to Medicare-eligible beneficiaries using the billing number (NPI) he was assigned and that was effective in 2004. Petitioner argues that his billing privileges granted him in 2004 were never revoked or deactivated under the Act or regulations and the refusal of

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the MAC and CMS to recognize those billing privileges is a de facto revocation without due process required by the Act and regulations.

The status of Petitioner’s billing privileges during the period July 18, 2016 to August 28, 2016, is not revealed by the evidence or characterized by CMS. The period is referred to for convenience as a gap in billing privileges or the gap period. In its response to specified issues, CMS concedes that Petitioner was enrolled in Medicare during the gap period. CMS explains that the gap was due to Petitioner’s lack of diligence in requesting that the MAC terminate his reassignment to Infectious Disease with reassignment to Petitioner. CMS Supp. Br. at 1-2. CMS explains that had Petitioner submitted his applications informing the MAC of the change within 30 days of the change of information as required by 42 C.F.R. § 424.516(d)(1) his claims during the gap period could have been paid. CMS Supp. Br. at 3-4. Physicians, such as Petitioner, are required to report three changes to the MAC or CMS with 30 days under 42 C.F.R. § 424.516(d)(1): a change of ownership, which does not appear to be applicable in this case; any adverse legal action which is also not applicable in this case based on the definition of final adverse action under 42 C.F.R. § 424.502; or a change of practice location which is arguably applicable. Pursuant to 42 C.F.R. § 424.516(d)(2) all other changes in enrollment must be reported in 90 days. Petitioner does not dispute that when he left Infectious Disease on July 17, 2016, he also changed his practice location. Pursuant to 42 C.F.R. § 424.516(d)(1) the change in practice location had to be reported in 30 days, that is not later than August 16, 2016. However, pursuant to 42 C.F.R. §  424.516(d)(2), Petitioner had 90 days to report all other changes related to leaving Infectious Disease and beginning solo practice and the 90th day would be October 15, 2016. Therefore, Petitioner’s application received by the MAC on September 27, 2016, did timely report the termination of his reassignment to Infectious Disease and other related changes except the new practice location. Because Petitioner timely reported the change in his reassignment, the CMS argument that the gap in billing privileges was Petitioner’s fault is both legally and factually erroneous, and there is no reason articulated by CMS for why Petitioner’s effective date of his billing privileges as a solo practitioner is not July 18, 2016.9

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The CMS hearing officer cited the CMS policy applicable at the time Petitioner’s applications were processed, which is set forth in MPIM ch. 15, § 15.5.20.E.5 (rev. 636, eff. Mar. 4, 2016).10 The policy provides that when a physician or practitioner has an active CMS-855I on file and is only submitting a CMS-855R to establish a new reassignment, the effective date is the date the physician or practitioner began providing services with the new reassignee. Neither the MAC hearing officer nor the CMS hearing officer applied this provision of the CMS policy in Petitioner’s case. CMS concedes that Petitioner was enrolled in Medicare when he terminated his reassignment to Infectious Disease on July 17, 2016, and began delivering services at his own practice location on July 18, 2016. CMS Supp. Br. at 1-3. Therefore, Petitioner did not need to file a CMS‑855I to enroll in Medicare as would be necessary if he was not enrolled and needed to enroll in order to reassign his right to bill to an employing practice group. The MAC hearing officer, CMS hearing officer, and CMS erred by not applying the first provision of the CMS policy that applied to Petitioner because he was already enrolled in Medicare with billing privileges.

The CMS policy in MPIM ch. 15, § 15.5.20.E.5 goes on to state that if a CMS-855R is accompanied by a CMS-855I, the “effective date of enrollment and the reassignment” will be consistent with the 30-day rule.”11 This is the provision of the policy that was erroneously applied by the hearing officers and CMS. This provision of the policy by its plain language applies to the situation where there is a concurrent enrollment and

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reassignment and both the CMS-855I and CMS-855R must be filed. This provision does not apply to Petitioner because he was already enrolled and only needed to terminate a reassignment so that his right to bill Medicare reverted to himself. However, CMS and the MAC did not treat the termination of the reassignment to Infectious Disease as causing Petitioner’s billing privileges to revert to himself. Rather, CMS and the MAC effectively imposed a two-step process under which Petitioner had to terminate his reassignment to Infectious Disease and then reassign his right to bill Medicare and receive Medicare reimbursement to himself. CMS argues that the “gap period resulted when Petitioner filed his request to reassign his benefits 71 days after he began providing services at his new location.” CMS Supp. Br. at 1. Petitioner was required by 42 C.F.R. § 424.516(d)(1) to notify the MAC of his change of practice location within 30 days or be subject to revocation pursuant to 42 C.F.R. § 424.535(a)(9), but that is not the case before me. Pursuant to 42 C.F.R. § 424.516(d)(2), Petitioner had 90 days to report the termination of his reassignment to Infectious Disease. Petitioner was late filing his change of practice location in this case but CMS exercised its discretion not to revoke his Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9). Petitioner did timely file a CMS-855R to terminate his reassignment to Infectious Disease. CMS points to no law or policy that authorizes CMS or the MAC to take the adverse action of refusing to recognize Petitioner’s existing billing privileges on the facts of this case.

Contrary to the arguments of CMS, Petitioner timely filed the change of information application to notify CMS of the termination of his reassignment to Infectious Disease. Petitioner filed his applications on September 27, 2016, terminating his reassignment to Infectious Disease and resulting in reversion of his right to bill Medicare using his NPI, because Petitioner was enrolled in Medicare with a valid NPI. Although Petitioner was issued a new PTAN, the MAC’s notices reflect the PTAN is not the billing number, but rather a number for authentication for inquiries to customer service units, written inquiry units, and the voice inquiry system. CMS Ex. 1 at 23.

Unlike the situation in Urology Group, there is no evidence in this case that Petitioner’s billing privileges were deactivated during the gap period. CMS concedes Petitioner’s Medicare enrollment and related billing privileges were not revoked or denied. CMS Supp. Br. at 3. In this case, as in Adora Healthcare Services, Inc., DAB No. 2714 (2016) (revocation of Medicare enrollment and billing privileges reversed where 30-day period for filing application reporting change of practice location had not expired), the 90-day period for Petitioner to notify CMS and the MAC of the termination of the reassignment had not yet expired when he filed his CMS-855R applications on September 27, 2016.

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III. Conclusion

For the foregoing reasons, I conclude that Petitioner was enrolled in Medicare and entitled to bill using his NPI effective July 18, 2016.

• 1. Petitioner states in his declaration that an application was submitted by PECOS on July 19, 2016, that was rejected.  P. Ex. 1.  The reconsidered determination issued by the MAC on March 3, 2017, states that documentation was provided on reconsideration indicating a web application was filed on July 19, 2016, but the hearing officer states the MAC had no record of the application.  CMS Ex. 1 at 40.  I resolve this case on summary judgment in favor of Petitioner, and there is no need to inquire further as to the filing of an earlier application, even though that fact is material and is in dispute.
• 2. The regulations and CMS use Medicare enrollment and Medicare billing privileges interchangeably and not consistently.  Generally, references to Medicare enrollment should be understood to include billing privileges, which are evidenced by the billing number.  Under 42 C.F.R. § 424.505, a supplier that enrolls in Medicare must have a billing number, which is the NPI.  The regulation provides that “once enrolled the provider or supplier receives billing privileges and is issued a valid billing number.”  42 C.F.R. § 424.505.  The NPI is a standard unique identifier for health care providers.  45 C.F.R. § 162.406(a).  Required use of the NPI is specified by 45 C.F.R. §§ 162.410, 162.412, and 162.414.  45 C.F.R. § 162.406(b).  The NPI must be used for all standard transactions that require identification of the health care provider.  45 C.F.R. §§ 162.410(a)(2), 162.414.  Health care providers with an NPI must report to the National Provider System (NPS) changes of information within 30 days of the change.  45 C.F.R. § 162.410(a)(4).
• 3. CMS asserts that the MAC issued Petitioner a new billing number for his new practice location.  CMS’s Response to Petitioner’s Motion for Summary Judgment at 9 (CMS SJ Response).  The CMS assertion is factually incorrect.  The MAC issued a new PTAN not a new NPI.  CMS also asserts when a physician terminates a reassignment with a group practice that it “terminates the physician’s ability to bill for services at all locations of the group’s practice” citing Medicare Program Integrity Manual (MPIM), ch. 15, § 15.10.3.  CMS SJ Response at 11.  CMS overlooks that a physician under a reassignment to a practice group is not billing Medicare, rather the physician has reassigned that right to the practice group.  MPIM, ch. 15, § 15.10.3 actually provides that when a physician voluntarily terminates a reassignment, the MAC must notify the practice group to confirm that the physician’s PTAN for that group is terminated for all the group’s locations.  MPIM, ch. 15, § 15.10.3 does not, as CMS suggests in its brief, terminate the physician’s NPI, which is the physician’s billing number and evidence of the physician’s billing privileges.
• 4. Citations are to the 2015 revision of the Code of Federal Regulations (C.F.R.) which was in effect at the time of the initial determination, unless otherwise indicated.  An appellate panel of the Departmental Appeals Board (Board) concluded in Mark Kabat, D.O., DAB No. 2875 at 9-11 (2018) that the applicable regulations are those in effect at the time of the initial determination.  However, the Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination.  Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014).
• 5. This appears to be a clerical error as the evidence shows and it is not disputed that the applications were received on September 27, 2016.  CMS Ex. 1 at 3, 8, 12.
• 6. All exhibits offered in C-17-589 were admitted and remain part of the record of decision in that case.  Chaitanya Tummala, MD v. CMS, C-17-589, Order Remanding and Dismissing Case at 3-4 (Oct. 19, 2017) (C-17-589 Remand).  CMS has not refiled its 15 exhibits offered in C-17-589 in this proceeding and none of those exhibits are admitted or considered for purposes of this decision, as most of the CMS exhibits in C-17-589 are included in CMS Ex. 1 in this case.  Petitioner lists P. Ex. 1 from C-17-589 in its exchange in this case, but not the remaining five exhibits.  Only P. Ex. 1 from C-17-589 is considered for admission in this case.
• 7. Petitioner is a “supplier” under the Act and the regulations.  A “supplier” furnishes services under Medicare and the term supplier applies to physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.”  Act § 1861(d) (42 U.S.C. § 1395x(d)).  A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) and 1835(e) of the Act.  Act § 1861(u) (42 U.S.C. § 1395x(u)).  The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes.
• 8. The Secretary did promulgate regulations establishing a right to review of involuntary terminations of reassignments under 42 C.F.R. § 412.83.
• 9. The regulations provide that a physician’s failure to report information as required by 42 C.F.R. § 424.516(d)(1)(ii) (final adverse action) and (iii) (change of practice information) is an authorized basis for revocation of a physician’s Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(9).  Revocation pursuant to 42 C.F.R. § 424.535(a) requires that the affected supplier be granted certain rights to appeal the action.  The MAC and CMS in this case denied Petitioner the ability to bill Medicare for care and services he provided to Medicare eligible beneficiaries during the gap period of July 18 to August 28, 2016.  CMS argues the action was due to Petitioner’s failure to timely report a change of information which would be a basis for revocation, but the MAC and CMS failed to follow procedures specified by the Secretary for revocation.  CMS has cited no authority under the Act or regulations that authorize CMS or the MAC to temporarily deny Petitioner his billing privileges during the alleged gap period in this case.  However, that is not the issue I need to resolve.
• 10. CMS subsequently changed its policy to eliminate the first provision discussed here.  MPIM, ch. 15, § 15.5.20.E.3 (rev. 717, eff. May 15, 2017).  The new policy more clearly indicates that 42 C.F.R. §§ 424.520(d) and 424.521(a) apply to determine the effective date of a reassignment.
• 11. The 30-day rule to which the policy refers is established by 42 C.F.R. § 424.521(a), which controls the period for retroactive billing not the effective date of enrollment.  The effective date of an enrollment is controlled by 42 C.F.R. § 424.520(d).  Despite the error in the policy, there is no question that the effective date of a concurrent enrollment and reassignment is actually the later of the date the MAC received the CMS-855I and CMS‑855R that the MAC processes to approval or the date the supplier first began delivering services at the new practice location.  42 C.F.R. § 424.520(d); Alexander C. Gatzimos, MD, JD, LLC d/b/a Michiana Adult Med. Specialists, DAB No. 2730 (2016).