Jason Fowler, PT, DAB CR5531 (2020)

DECISION

I sustain the determinations of a Medicare contractor, as affirmed on reconsideration, to reactivate the authority of Petitioner, Jason Fowler, PT, to file claims for Medicare items or services and to reassign that authority to a third party, effective May 3, 2019.

I. Background

The Centers for Medicare & Medicaid Services (CMS) filed a motion for summary judgment. With its motion, CMS filed 17 proposed exhibits, identified as CMS Ex. 1-CMS Ex. 17. Petitioner opposed the motion and filed no exhibits on his behalf. He did not object to my receiving CMS’s exhibits into the record.

I receive CMS’s exhibits into the record. It is unnecessary that I decide whether the criteria for summary judgment are met in this case because neither party filed the written direct testimony of a witness. Consequently, no purpose would be served by convening an in-person hearing, and I decide this case based on the parties’ written exchanges.

Page 2

II. Issues, Findings of Fact, and Conclusions of Law

A. Issues

The issues are whether a Medicare contractor, acting on behalf of CMS, appropriately reactivated Petitioner’s Medicare billing privileges effective May 3, 2019, and whether the contractor appropriately approved reassignment to a third party of Petitioner’s authority to claim reimbursement for services that he provided, effective May 3, 2019.

B. Findings of Fact and Conclusions of Law

I take notice that a supplier of Medicare items or services must maintain an active enrollment in the program in order to claim reimbursement from it for items or services that he or she provides.  In this case, on June 20, 2009, a Medicare contractor deactivated Petitioner’s right to claim reimbursement because Petitioner had not filed recent reimbursement claims.  CMS Ex. 1 at 1.  From that moment forward, Petitioner’s only recourse, if he sought reimbursement for Medicare services that he provided, was to complete and submit a new enrollment application to reactivate his Medicare billing privileges or, had the contractor so requested, recertify that the enrollment information currently on file with Medicare was correct.  42 C.F.R. § 424.540(b).

A contractor’s decision to deactivate a supplier’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) and (d).  Consequently, a supplier whose Medicare billing privileges are deactivated may not challenge before an ALJ the contractor’s decision to deactivate.  Moreover, and similarly, if a deactivated supplier files an application for re-enrollment in Medicare, and the contractor rejects that application, I have no authority to decide a challenge to that action.  Id. §§ 498.3(b) and 424.525(d).

CMS has published guidance to its contractors concerning what effective participation date to assign to a supplier who seeks to reactivate his or her participation.  That date shall be the date when that the contractor receives a re-enrollment application that it processes to completion.  Medicare Program Integrity Manual (MPIM), Ch. 15, § 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 issue that I may hear and decide in a case where a supplier challenges the effective date of reactivation of his or her Medicare billing privileges is whether the contractor properly assigned an effective reactivation date for that 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: 

Page 3

The effective date for billing privileges for . . . non-physician practitioners . . . is the later of . . . [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or . . . [t]he date that the supplier first began furnishing services at a new practice location.

Therefore, the earliest possible effective reactivation date that a contractor may assign to a supplier whose billing privileges are deactivated is the date that the supplier files a new enrollment application with the contractor that the contractor subsequently approves.  The contractor has no authority to assign a retroactive reactivation date to a supplier whose billing privileges were deactivated on a date prior to the date when the 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 grant a retroactive reactivation date.

The date that a contractor reactivated Petitioner’s authority to claim reimbursement and granted Petitioner authority to reassign his Medicare reimbursement claims to a third party, May 3, 2019, was the earliest date that the contractor could do so.

On December 27, 2018, Petitioner filed an application with a contractor, asking that his authority to claim reimbursement for Medicare services be reassigned to a third party, Motion PT Group Kentucky, LLC (Motion PT KY), effective October 1, 2018.  CMS Ex. 2.  On January 10, 2019, the contractor advised Petitioner that it could not process this application due to the fact that Petitioner’s participation in Medicare had been deactivated.  It requested Petitioner file an application to reactivate his Medicare participation.  CMS Ex. 3.  Petitioner did not reply to this request and, on February 11, 2019, the contractor rejected Petitioner’s application to reassign his authority to claim reimbursement.  CMS Ex. 4.  For reasons that I have stated, Petitioner had no right to appeal the contractor’s election to require Petitioner to file an enrollment application to reactivate his billing privileges, or the contractor’s subsequent rejection of his application to reassign his authority to claim reimbursement.

On February 8, 2019, Petitioner filed new applications:  to reactivate his Medicare billing privileges; and, to reassign his authority to claim reimbursement for Medicare services to a third party, Motion PT Group of Tennessee, LLC.  CMS Ex. 5.  The Medicare contractor that received these applications serves Kentucky, but not Tennessee.  For that reason, the contractor returned these applications to Petitioner.  CMS Ex. 6.  Petitioner did not further pursue his request, based on his February applications, to reactivate his billing privileges as an approved Medicare supplier and to reassign his authority to file reimbursement claims to Motion PT Group of Tennessee, LLC.

On March 18, 2019, Petitioner filed additional applications:  to reactivate his billing privileges; and, to reassign his authority to claim reimbursement to Motion PT KY.  CMS

Page 4

Ex. 7.  The contractor concluded that the person signing the applications on Petitioner’s behalf, Sandra Vicioso, was not registered with the contractor as an authorized or delegated official of Motion PT KY.  CMS Ex. 8.  The contractor advised Petitioner that he had to submit the signature of an authorized individual so that the contractor could process his applications.  Id.  Petitioner did not respond to this request and, therefore, the contractor rejected the March 18 applications on May 2, 2019.  CMS Ex. 9.  Once again, this action by the contractor formed no basis for an appeal by Petitioner.

On May 3, 2019, Petitioner filed new applications with the contractor, seeking to reactivate his billing privileges and to reassign the authority to Motion PT KY to claim reimbursement for his Medicare services.  CMS Ex. 10.  The contractor eventually accepted these applications and processed them.  The contractor granted Petitioner a participation and reassignment of benefits date of May 3, 2019, with authority to bill retroactively for Medicare services provided on or after April 3, 2019.  CMS Ex. 13.

As I have explained, Petitioner may not appeal the contractor’s rejections of applications that Petitioner filed for reactivation of his Medicare billing privileges prior to May 3, 2019.  The only application that I may consider is the May 3, 2019 application that Petitioner filed.  The contractor accepted that application and processed it to completion, granting Petitioner a re-enrollment date of May 3, 2019.  That is the earliest re-enrollment date that the contractor could have assigned, based on the application it accepted and processed.  I have no authority to direct the contractor to grant Petitioner an earlier re-enrollment date.

It follows that Petitioner could not reassign his authority to claim reimbursement for Medicare services that he provided to Motion PT KY until he was re-enrolled as a Medicare supplier.  Consequently, the contractor’s determination to allow reassignment of benefits claims effective May 3, 2019 (with the right to claim retroactively for services provided as early as April 3) was the correct determination.  Furthermore, Petitioner could not have reassigned his authority to claim reimbursement for Medicare services to Motion PT KY at an earlier date even if his re-enrollment was effective earlier than May 3, 2019.  That is because Motion PT KY was not an authorized supplier of Medicare services prior to May 3, 2019.  Motion PT KY filed an application to participate as a Medicare supplier on March 18, 2019, but the contractor rejected that application on May 2, 2019.  CMS Ex. 15.  That decision by the contractor could not be appealed.  On May 3, 2019, Motion PT KY filed an application that the contractor accepted and processed to completion (with the right to claim reimbursement retroactively for services provided as early as April 3, 2019).  CMS Ex. 16 at 1, 45.  May 3, 2019, was the earliest effective participation date that the contractor could have granted to Motion PT KY. 

I do not find Petitioner’s arguments to be persuasive.  First, Petitioner contends that a contractor or CMS has discretion to allow re-activation of a deactivated supplier’s billing privileges based on a supplier recertifying information that is already on file with the

Page 5

contractor.  However, the regulation at 42 C.F.R. § 424.540(b)(2) is clear that “CMS may, for any reason, require a deactivated provider or supplier to, as a prerequisite for reactivating its billing privileges, submit a complete Form CMS-855 application,” and I have no authority to review that exercise of discretion.  Therefore, once the contractor required Petitioner to submit a new enrollment application, Petitioner had no choice but to comply with the contractor’s request if he wished to re-activate his billing privileges.

Second, Petitioner asserts that he independently has the authority to file reimbursement claims and that the contractor should have accepted those claims based on Petitioner’s allegedly independent status.  That argument avoids confronting the obvious:  the contractor deactivated Petitioner’s billing privileges in 2009.  From that moment forward, Petitioner had no authority to claim reimbursement from Medicare for his services and would not have that authority until the contractor reactivated his participation.

Third, Petitioner argues that the contractor should not have returned his February re-enrollment application.  He contends that the contractor could have processed his February application for re-enrollment even if it returned the application to reassign benefits to Motion PT Group of Tennessee, LLC.

However, whatever the merits of that assertion, the fact is that Petitioner does not have the right to appeal the contractor’s return of the February applications because the return of an application is not a determination subject to appeal.  42 C.F.R. § 498.3(b); MPIM, Ch. 15, § 15.8.1A (“A ‘returned’ application is effectively considered a non-application.”).  Furthermore, even if the contractor had processed the February application, Petitioner would not have been authorized to reassign his reimbursement claims to Motion PT KY because he had made no request in February that he be granted authority to do so (he instead requested reassignment to Motion PT Group of Tennessee, LLC), and because Motion PT KY was not enrolled in Medicare in February 2019.

Finally, in his hearing request, Petitioner challenges the fairness of the contractor’s actions, alleging that he and Motion PT KY have suffered financial harm.  This is a claim for equitable relief that I have no authority to hear and decide.  Willie Goffney Jr., M.D., DAB No. 2763 at 8-9 (2017).