Thomas A. Drazin, M.D., DAB CR5389 (2019)

DECISION

The effective date of the reactivation of Petitioner’s billing privileges is March 27, 2017.  Petitioner is entitled to a period for retrospective billing beginning 30 days prior to the effective date of reactivation of Petitioner’s billing privileges.

I. Background and Findings of Fact

On October 18, 2017, Petitioner requested administrative law judge (ALJ) review of the August 7, 2017 reconsidered determination of Noridian, the Medicare administrative contractor (MAC).  Request for Hearing (RFH).  The reconsidered determination upheld an April 24, 2017 initial determination by the MAC that the reactivation of Petitioner’s billing privileges was effective on March 27, 2017, a date after the date of the deactivation of Petitioner’s billing privileges on December 26, 2016.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 1-2.  Petitioner complains that the gap in billing privileges from December 31, 2016 through March 26, 2017 (the gap period), resulted in Petitioner not being paid for services rendered to Medicare-eligible beneficiaries during the gap period.  RFH.

CMS filed a motion for summary judgment (CMS Br.) with CMS Exs. 1 through 4 on November 30, 2017.  Petitioner did not object to CMS Exs. 1 through 4 and they are

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admitted and considered as evidence.  On or about January 25, 2018, Petitioner filed a letter that I treat as Petitioner’s response in opposition to the CMS motion for summary judgment (P. Br.).  Petitioner did not file any exhibits.  CMS failed to file a reply and waived the right to do so.  On January 31, 2018, I ordered that CMS respond to specified issues and granted Petitioner the option to do so.  Petitioner waived his right to address the specified issues by not filing a response.  On February 20, 2018, CMS filed a response to the specified issues (CMS Response).

The material facts are not disputed.  On and before December 31, 2016, Petitioner was enrolled in Medicare with billing privileges.  CMS Response at 2; CMS Ex. 4.  On October 14, 2016, the MAC sent a letter to Petitioner requesting that he revalidate his Medicare enrollment by December 31, 2016.  CMS Ex. 4 at 1.  Petitioner submitted a revalidation application (CMS-855I) to the MAC on October 26, 2016.  CMS Ex. 3 at 8-10.  The MAC sent Petitioner requests for revisions on November 22 and December 8, 2016.  CMS Ex. 3 at 3-7.  The MAC deactivated Petitioner’s billing privileges effective December 31, 2016 and, I infer, rejected Petitioner’s October 26, 2016 application.  CMS Ex. 3 at 1.  Petitioner submitted another revalidation application received by the MAC on January 30, 2017, which the MAC rejected on March 16, 2017.  CMS Ex. 2 at 1; CMS Ex. 1 at 20-47. 

Subsequently, Petitioner submitted a revalidation application that was received by the MAC on March 27, 2017, which was processed to approval by the MAC.  CMS Ex. 1 at 7, 16-19.  The MAC reactivated Petitioner’s billing privileges effective March 27, 2017, based on the CMS-855I received on that date.  The MAC’s action resulted in a gap in Petitioner’s billing privileges from December 31, 2016 through March 26, 2017, during which period Petitioner was unable to obtain reimbursement from Medicare for services he delivered to Medicare eligible beneficiaries.  CMS Ex. 1 at 7-8.  Petitioner remained enrolled in Medicare during the gap period.  CMS Response at 2; CMS Ex. 1 at 1-2.

II. Issues, Conclusions of Law, and Analysis

A. Issues

Whether I have jurisdiction to review the reconsidered determination by CMS or a MAC of the effective date of reactivation of Medicare billing privileges, i.e., the right to file claims with and to receive payment from Medicare; and

The effective date of reactivation.

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B. Conclusions of Law and Analysis

My conclusions of law are set forth in bold text followed by my analysis applying law and policy to the undisputed facts.

1. There is authority for ALJ review in this case, but it is limited to the effective date of reactivation of Petitioner’s billing privileges, i.e., the date of reactivation of Petitioner’s right to submit claims to and receive payment from Medicare for care and services delivered to Medicare‑eligible beneficiaries.

2. Petitioner has no right to review of the determination of the MAC or CMS to deactivate Petitioner’s billing privileges.

3. Petitioner has no right to review of the determinations of the MAC to reject Petitioner’s October 2016 and January 2017 revalidation applications.

This case involves a gap in Petitioner’s billing privileges that was created when the MAC deactivated Petitioner’s billing privileges, and then reactivated Petitioner’s billing privileges on a later date.  Petitioner’s real grievance is that CMS and the MAC decline to pay Petitioner for services rendered to Medicare eligible beneficiaries during the gap period, even though there is no dispute that Petitioner was enrolled in Medicare during the gap period.

The Secretary of the Department of Health and Human Services (the Secretary) promulgated regulations at 42 C.F.R. pts. 424 and 4981 that specify review and appeal rights in provider and supplier enrollment cases.  Under 42 C.F.R. pt. 498, there is no right to ALJ review of a CMS or MAC determination to deactivate a provider’s or supplier’s billing privileges.  The relevant regulation concerning appeal rights provides

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only that the provider or supplier may submit a rebuttal to CMS or the MAC under 42 C.F.R. § 405.374 (opportunity for rebuttal required for suspension of payments, offset, or recoupment).  42 C.F.R. § 424.545(b).  The regulations also specifically provide that there is no right to request review of a MAC or CMS determination to reject an enrollment application.  42 C.F.R. § 424.525(d).  I conclude Petitioner has no right to ALJ review of the MAC determination to deactivate Petitioner’s billing privileges.  I also conclude that Petitioner has no right to ALJ review of the rejection of his October 2016 and January 2017 revalidation applications. Finally, I conclude that Petitioner has no right to ALJ review in this forum of the denial of payment of Petitioner’s claims during the gap period.  Medicare claim reimbursement is simply not subject to review by an ALJ in this forum.  Urology Grp. of NJ, LLC, DAB No. 2860 at 6-7 (2018).   

Petitioner does have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioner’s billing privileges.  CMS or the MAC may deactivate the billing privileges of a provider or supplier for failure to do any of the following:

1. Submit a claim for 12 consecutive months;

2. Report a change in enrollment information within 90 days of the date of the change, except a change in ownership or control, which must be reported within 30 days; and

3. Give CMS or the MAC complete and accurate information and all supporting documents within 90 calendar days of a request from CMS or the MAC to submit an enrollment application or certify the accuracy of its enrollment information.

42 C.F.R. § 424.540(a).  A provider or supplier deactivated for failure to submit a claim for 12 consecutive months may reactivate billing privileges by recertifying that all information on file with CMS is correct; providing any missing information; meeting all Medicare enrollment requirements; and being prepared to submit a valid claim.  42 C.F.R. § 424.540(b)(2).  When deactivation is based on failure to timely notify CMS or the MAC of a change of information or to timely respond to a request for information, a provider or supplier must complete and submit a new enrollment application to reactivate its billing privileges, unless CMS or the MAC permit the provider or supplier to recertify that its enrollment information on file is correct.  42 C.F.R. § 424.540(b)(1).  Deactivation of Medicare billing privileges is an action to protect the provider or supplier from misuse of its billing privileges and to protect the Medicare Trust funds from unnecessary overpayments.  42 C.F.R. § 424.540(c).

The Secretary has not specifically stated that a provider or supplier has a right to ALJ review of CMS or MAC determinations related to the reactivation of billing privileges.  42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5.  However, 42 C.F.R. § 498.3(b)(15)

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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., Victor Alvarez, M.D., DAB No. 2325 at 3-10 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Grp. of NJ, DAB No. 2860 at 6 (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, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of reactivation of billing privileges.  Furthermore, the only determination of CMS or the MAC that is subject to my review in a provider and supplier enrollment case is the reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz, DAB No. 2573 at 7.

4. Summary judgment is appropriate.

I have concluded, based on the rationale of the Board in prior cases, that Petitioner has a right to ALJ review of the reconsidered determination of the effective date of reactivation of his right to file claims with and receive payment from Medicare.  I also conclude that there are no disputed issues of material fact related to reactivation that require a hearing in this case; CMS is entitled to judgment as a matter of law and summary judgment is appropriate.

Petitioner is entitled to a hearing on the record before an ALJ under the Act.  Act §§ 205(b); 1866(h)(1), (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  However, when summary judgment is appropriate, no hearing is required.  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 accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  I advised the parties in the Acknowledgement and Prehearing Order (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.  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).

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The material facts related to reactivation are not in dispute.  Accordingly, summary judgment is appropriate.

5. The effective date of reactivation of Petitioner’s billing privileges is the date on which the MAC received the application that it processed to approval, and that date is March 27, 2017.

6. Current CMS policy requires a period of retrospective billing related to the reactivation of Medicare billing privileges.

The Secretary’s regulations do not specifically address how to determine an effective date for the “reactivation” of Medicare billing privileges.  42 C.F.R. pt. 424, subpt. P.2 However, CMS has addressed the determination of the effective date of reactivation by policy.  CMS policies regarding deactivations and reactivations of billing privileges in effect at the time of the initial and reconsidered determinations in this case are in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, ch. 15, §§ 15.27.1.1 (deactivation) and 15.27.1.2 (reactivation) (rev. 561, eff. Mar. 18, 2015).  MPIM § 15.27.1.2 provides that the effective date of reactivation of billing privileges is the date the MAC received the reactivation application that the MAC processed to completion.  In this case, there is no dispute that the MAC received the application processed to completion on March 27, 2017.  Accordingly, the effective date of reactivation of Petitioner’s billing privileges was March 27, 2017.

The version of MPIM § 15.27.1.2 in effect at the time of the initial and reconsidered determinations did not specifically address retrospective billing.  However, effective March 12, 2019, CMS changed its policy and now requires that contractors grant retrospective billing privileges in accordance with MPIM § 15.17(B) (rev. eff. Mar. 12, 2019) when reactivating billing privileges of a provider or supplier described in that section.  MPIM ch. 15 §§ 15.27.1.1-.2 (rev. 865, eff. Mar. 12, 2019).  CMS adopted this new policy while this case was pending ALJ review and before a final administrative decision has issued.  Based on the CMS language making retrospective billing mandatory in the situations described in MPIM § 15.17(B), I conclude it is appropriate to implement the current CMS policy in this case.  Generally, an agency must obey its own rules and policies, particularly when intended to be binding, and a rule or statement of policy should be given equal effect by all agency adjudicators.  Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. §§ 4:22, 5:68 (3d ed. 2019).  Petitioner is a physician and

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there is no dispute that he was enrolled in Medicare during the gap period and met all requirements for enrollment. Therefore, Petitioner is entitled to retrospective billing privileges for up to 30 days prior to the effective date of reactivation of billing privileges for services rendered to Medicare-eligible beneficiaries during that 30-day period.  MPIM § 15.17(B)(1).

Applying the regulations in this case is straightforward. There is no dispute the MAC deactivated Petitioner’s Medicare billing privileges on December 31, 2016. There is also no dispute that on March 27, 2017 the MAC received Petitioner’s application to reactivate his Medicare billing privileges that it processed to approval.  Accordingly, the effective date of reactivation may only be March 27, 2017. The period for retrospective billing begins 30 days prior to the effective date of reactivation.

Petitioner states that he was unaware of the revalidation process that was started by his biller in October 2016.  He states he signed two documents required for the revalidation but he believes the documents were not received by Medicare.  An email request from the MAC on about November 22, 2016, went to a former employee’s old email address and was not received by Petitioner.  Petitioner’s biller submitted a new application in late January 2017.  Petitioner states that he was not aware he was not going to be reimbursed by Medicare for care and services to Medicare-eligible beneficiaries during January, February, and March 2017.  P. Br.; RFH.  I accept Petitioner’s assertions of fact as true for purposes of summary judgment.  However, these facts are not material to the determination I am required to make in this case because they are related to the determination to deactivate Petitioner’s billing privileges rather than the effective date of the reactivation of Petitioner’s billing privileges.  In this case, Petitioner does not dispute the fact that the MAC received his reactivation application on March 27, 2017.  The date of receipt of the reactivation application by the MAC controls.  Petitioner’s arguments may be construed to be for equitable relief or for estoppel.  I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  Furthermore, estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).  Accordingly, Petitioner’s arguments establish no basis for the relief he seeks.

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III. Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner’s billing privileges is March 27, 2017.

• 1. Citations are to the October 1, 2016 revision of the Code of Federal Regulations (C.F.R.) that 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 A. 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).
• 2. The effective date for Medicare billing privileges is generally determined in accordance with 42 C.F.R. § 424.520.