Sherif Latef, M.D., DAB CR5689 (2020)

DECISION

Petitioner, Sherif Latef, M.D., (Dr. Latef or Petitioner) appeals the determination by Novitas Solutions (Novitas), an administrative contractor for Respondent, the Centers for Medicare & Medicaid Services (CMS), establishing the Medicare reactivation date and retrospective billing date for reassignment of billing privileges to Garden State Healthcare Associates, LLC (GSHA).  As explained herein, Novitas correctly determined the effective date of Dr. Latef’s enrollment in Medicare to be October 23, 2017.  I therefore affirm the effective date determination.

I.        Background

Petitioner is a physician specializing in internal medicine who was enrolled as a supplier in the Medicare program under Provider Transaction Access Number (PTAN) 165316ZFPU.  See P. Req. for Hearing.  Effective March 29, 2017, Novitas deactivated Petitioner’s PTAN based on his submission of a CMS 855-R form via the Provider Enrollment, Chain and Ownership System (PECOS) in which he requested deactivation

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of his reassignment to GSHA.  CMS Exhibit (Ex.) 2 at 1.  By letter dated May 23, 2017, Novitas notified Petitioner that PTAN 165316ZFPU was deactivated effective March 29, 2017.  CMS Ex. 3.  Novitas advised Petitioner that “the appropriate CMS-855 form” must be completed “[s]hould you wish to obtain a new PTAN, or have a PTAN reinstated.”  Id.

Petitioner submitted CMS-855I and CMS-855R Medicare enrollment applications to reactivate his Medicare enrollment via FedEx overnight mail delivery; he signed the applications on October 20, 2017, and the notation for next-day delivery on the actual envelope indicated it would be delivered by Monday October 23, 2017 at 3:00 p.m.  CMS Ex. 4 at 4, 32, 34.  CMS asserts his applications were in fact received on October 23, 2017.  CMS Pre-Hearing Brief (CMS Br.) at 2, 8.  In a January 8, 2018 letter, Novitas approved Petitioner’s Medicare enrollment application and assigned an effective date of October 23, 2017, with retrospective billing permitted as of September 23, 2017.1  CMS Ex. 5 at 1-2.

In a reconsideration request dated February 20, 2018, Petitioner, through his representative, timely challenged the contractor’s effective date determination.  CMS Ex. 6 at 4, 6.  Petitioner requested reconsideration and sought to have Novitas change the retrospective billing privilege date to March 29, 2017.  Id. at 4.  In his request for reconsideration, Petitioner explains:

On 03/29/2017, the provider went into [PECOS] and mistakenly inactivated his reassignment to Garden State Healthcare Associates, LLC, PTAN 170982 and we found out in September of 2017 that this happened because we were getting claims denied.  We then sent an 855R to reassign the provider Dr. Sherif M Latef, MD, NPI [1275567810].  The 855R was approved but given a new PTAN of 624580ZFPU effective date of 09/23/2017, but we had his previous provider ID of 165316ZFPU effective 06/29/2012.  We are requesting that his effective date be moved back to 03/29/2017 to cover the 120 claims we have denied because of his lapse in service between 03/29/2017 to 09/23/2017.

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CMS Ex. 6 at 4.  Novitas issued a reconsidered determination on May 14, 2018 reaffirming its effective date determination and confirming a lapse in Petitioner’s billing privileges from March 29, 2017 through September 22, 2017.  CMS Ex. 7.

Petitioner timely sought hearing before an administrative law judge and I was designated to hear and decide this case.  On May 29, 2018, I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) that directed each party to file a pre-hearing exchange consisting of a brief and any supporting documents.  Pre-Hearing Order ¶ 4.  CMS timely filed its brief, which incorporated a motion for summary judgment, and seven proposed exhibits (CMS Exs. 1-7).  

Petitioner did not timely submit his pre-hearing exchange by August 7, 2018, the deadline prescribed by my Pre-Hearing Order.  However, on August 14, 2018, Petitioner filed a two-page letter which I infer to be his brief (P. Br.) and a 131-page attachment (P. Ex. A).  While it would be reasonable for me to strike these pleadings as filed untimely and without leave, I find good cause to admit them given the lack of objection from CMS and because Petitioner is proceeding without counsel.

II.      Decision on the Written Record and Admission of Exhibits

In the absence of objections from either party, I admit CMS Exs. 1-7 and P. Ex. A into evidence.  Neither party offered written direct testimony of any witness as part of its pre‑hearing exchange, meaning an in-person hearing is not necessary in this matter.  Pre‑Hearing Order ¶¶ 8-10; Civ. Remedies Div. P. §§ 16(b), 19(b).  Therefore, I will decide this case on the record, based on the parties’ written submissions and arguments.  CMS’s motion for summary judgment is denied as moot.  Civ. Remedies Div. P. § 19(d). 

III.     Issue

The issue in this case is whether Novitas, acting on behalf of CMS, properly established October 23, 2017 as the effective date for Petitioner’s reassignment of billing privileges to GSHA.

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 Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

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V.      Discussion

A.      Applicable Law

The Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (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.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (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 regulations define “Enroll/Enrollment” as “the process that Medicare uses to establish eligibility to submit claims for Medicare-covered items and services.”  42 C.F.R. § 424.502.  A provider or supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program.”  42 C.F.R. § 424.510(a)(1).  CMS then establishes an effective date for billing privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may permit retrospective billing up to 30 days prior to the effective date.  42 C.F.R. § 424.521(a)(1).

A supplier may voluntarily terminate or deactivate its Medicare billing privileges.  The regulations provide:  “Voluntary termination means that a provider or supplier . . . submits written confirmation to CMS of its decision to discontinue enrollment in the Medicare program.”  42 C.F.R. § 424.504.  When CMS deactivates a provider’s or supplier’s Medicare billing privileges, “[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary by a provider or supplier if the billing privileges . . . are deactivated, denied or revoked.”  42 C.F.R. § 424.555(b).  If CMS deactivates billing privileges as a result of a valid request by a provider or supplier, the enrolled provider or supplier may apply to reactivate its Medicare billing privileges by completing a new enrollment application or, if deemed appropriate, recertifying its enrollment information that is on file.  42 C.F.R. § 424.540(b)(1),(2).

B.      Findings of Fact and Conclusions of Law

1.  The effective date of Petitioner’s Medicare enrollment application is October 23, 2017, as that is the date Novitas received the application it subsequently processed to approval.

The regulations provide that the effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner

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organizations is 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” a signed 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).

CMS need only prove one thing in this appeal to prevail – the date Novitas received applications from Petitioner that it subsequently processed to approval.  For reasons that elude me, CMS managed to produce 14 pages of briefing without citing or discussing any evidence concerning the receipt date of Petitioner’s application by Novitas.  CMS instead baldly asserts in its statement of facts that “On October 23, 2017, Novitas received [Petitioner’s] CMS 855-R and 855-I applications . . .”  CMS Br. at 2, citing CMS Ex. 4.  In its argument, it again makes the same claim, this time citing four exhibits without benefit of pin citation or explanation.  CMS Br. at 8, citing CMS Exs. 2, 3, 4, 5.

It is insufficient for the government to leave me to speculate as to the evidentiary basis for its case.  U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”).  However, rather than order supplemental briefing from CMS that could prejudice Petitioner by further delaying these proceedings, I have reviewed the record and found sufficient evidence to render a decision in this case.2

Here, the evidence of record shows Petitioner submitted CMS-855I and CMS-855R Medicare enrollment applications to reactivate his Medicare enrollment via FedEx overnight mail delivery, and that he signed the applications on October 20, 2017, a Friday.  CMS Ex. 4 at 4, 32.  Petitioner sent these applications by FedEx, and the notation on the actual envelope indicated next-day delivery would occur by Monday October 23, 2017 at 3:00 p.m.  Id. at 34.  In addition, each page of Petitioner’s application is stamped in the upper-left corner with a string of numbers that begins “171023,” which I infer to be a date of receipt.3  CMS Ex. 4 at 1-34.  And in its reconsidered determination, Novitas asserted that it received Petitioner’s applications on October 23, 2017.  CMS Ex. 7 at 2.

Finally, Petitioner does not claim Novitas received the CMS-885R and CMS-885I applications to reactivate his Medicare enrollment any earlier than October 23, 2017.  P. Br. at 1.  Absent any evidence to the contrary, I therefore conclude it is more likely than not that Novitas received enrollment applications from Petitioner on October 23, 2017.  Novitas therefore appropriately determined Petitioner’s effective date of enrollment and

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reassignment to be October 23, 2017, as that is the date that it received an application from him it subsequently processed to completion.  42 C.F.R. § 424.520(d); 73 Fed. Reg. at 69,769; Donald Dolce, M.D., DAB No. 2685 at 8.

2.  I have no authority to review the deactivation of Dr. Latef’s Medicare billing privileges and cannot afford him equitable relief.

Petitioner argues that, on March 29, 2017, Dr. Latef accessed his account in PECOS and “mistakenly” deactivated his reassignment to GSHA.  P. Br. at 1.  I am sympathetic to the fact that Dr. Latef inadvertently deactivated his PTAN number and was unaware that he was ineligible to bill the Medicare program for a period of several months, despite providing services in good faith to program beneficiaries.  However, I do not have jurisdiction to review CMS’s deactivation of Petitioner’s billing privileges.  This is because deactivation is not an “initial determination” subject to review by an administrative law judge.  See 42 C.F.R. § 498.3(b)(6); Urology Grp., DAB No. 2860 at 6 (“The regulations do not grant suppliers the right to appeal deactivations.”).4  My jurisdiction in this case is limited to reviewing the effective date of the approval of Petitioner’s reactivation enrollment application.  42 C.F.R. § 498.3(b)(15).

Similarly, I do not have the authority to consider Petitioner’s request that his effective date be changed to eliminate the gap in billing caused by Dr. Latef’s inadvertent deactivation.I have no authority to provide Petitioner any form of equitable relief.See, e.g., US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding that the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements); Richard Weinberger, M.D. and Barbara Vizy, M.D., DAB No. 2823 at 18-19 (2017).

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VI. Conclusion

For the reasons explained above, I affirm the effective date of Petitioner’s Medicare enrollment to be October 23, 2017, with retrospective billing privileges from September 23, 2017.

• 1. In both its initial and reconsidered determinations, Novitas erroneously refers to September 23, 2017, as Petitioner’s effective date.  CMS Ex. 5 at 2; CMS Ex. 7 at 2.  CMS characterizes its contractor’s mistake as an attempt to “[reference] the term ‘effective date’ in a manner inclusive of both the effective date of enrollment, as defined by 42 C.F.R. § 424.520(d), and the full period of retrospective billing privileges permitted by the regulations.”  CMS Br. at 2 n.1.  While diplomatic, this is simply incorrect; the regulations distinguish between an effective date and the date from which retrospective billing is permitted.  See 42 C.F.R. §§ 424.520(d), 424.521(a)(1).  By applying the maximum 30 days permitted by the regulations for retrospective billing and permitting Petitioner to bill from September 23, 2017, Novitas must have established October 23, 2017 as the actual effective date.  See id.
• 2. CMS counsel should not expect similar treatment in the future.  Even in a simple case, I expect counsel for any party to, at minimum, articulate their arguments and cite evidence to support them.
• 3. To be clear, in isolation I would not recognize this as competent evidence absent some effort by CMS to provide an evidentiary foundation for me to conclude this is a date stamp relating to receipt.  However, it is consistent with other evidence of record to infer the first six digits refer to October 23, 2017.
• 4. Deactivation decisions have an altogether separate review process that requires a provider or supplier dissatisfied with their deactivation to file a rebuttal with CMS’s administrative contractor.  42 C.F.R. § 424.545(b).  It is not clear from the record whether Petitioner sought relief from Novitas through the rebuttal process.