Gregory Frazer, AuD, DAB CR5708 (2020)

DECISION

I sustain the determination of a Medicare contractor, as affirmed on reconsideration, to reactivate the Medicare billing privileges of Petitioner, Gregory J. Frazier, AuD, effective October 21, 2019.

I. Background

CMS moved for summary judgment.  It is unnecessary that I decide whether the criteria for summary judgment are satisfied inasmuch as neither party provided me with the written direct testimony of a witness.  Consequently, convening an in‑person hearing would serve no purpose. 

With its motion, CMS offered nine exhibits that it identified as CMS Exs. 1-9.  In response, Petitioner offered a single exhibit that I identify as P. Ex. 1 (the exhibit consists of Petitioner’s academic credentials).  I receive the parties’ exhibits into the record and decide the case based on the parties’ exhibits and arguments.

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II. Issue, Findings of Fact and Conclusions of Law

A.Issue

The issue is whether a Medicare contractor correctly determined to reactivate Petitioner’s Medicare billing privileges effective October 21, 2019.1

B. Findings of Fact and Conclusions of Law

Suppliers enrolled as participants in the Medicare program must revalidate their Medicare billing privileges in response to requests sent to them by CMS or one of its contractors.  42 C.F.R. § 424.535.  In order to reactivate, the supplier must file certain requisite information with a Medicare contractor or with CMS.  42 C.F.R. § 424.510.  CMS or its contractor may deactivate a supplier if the supplier fails to file requisite information within 90 days of receiving a request to file that information.  42 C.F.R. § 424.540(a)(3). 

A decision by a Medicare contractor to deactivate a supplier’s billing privileges is not an appealable determination and it confers no hearing rights on the deactivated supplier.  42 C.F.R. § 498.3(b).  Consequently, a deactivated supplier has no route of appeal from the deactivation but must file a new Medicare enrollment application in order to have its billing privileges reactivated.  42 C.F.R. § 424.540(b)(1). 

CMS and its contractors process an application for reactivation of billing privileges under the identical criteria that they use to process new enrollment applications, relying on the requirements of 42 C.F.R. § 424.520(d)(1).  This regulation effectively states that the earliest effective date of participation of a participating Medicare supplier will be the date when the contractor receives an enrollment application that the contractor accepts.  As a consequence of this application, the deactivated supplier may not receive an effective participation date (date of reactivation) that is earlier than the date that it submits an application for reactivation that the contractor accepts.  42 C.F.R. § 424.520(d)(1); Medicare Program Integrity Manual (MPIM) §§ 15.27.1.2, 15.29.4.3.

Medicare will not accept a supplier’s claims for reimbursement for items or services that it provides on dates that fall between the date of deactivation and the effective date of reactivation.  42 C.F.R. § 424.555(b).  The regulations plainly allow for a reimbursement gap. 
The regulations governing reactivation have been the subject of numerous cases before the Departmental Appeals Board.  Administrative law judges and the Board itself have ruled that CMS’s application of the regulations constitutes a reasonable reading of

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regulatory language and, more important, expresses the Secretary’s will.  Willie Goffney, Jr., M.D., DAB No. 2763 at 6 (2017).  CMS’s interpretation of its regulations is settled law within this Department and at this juncture, I have no authority to revisit it or to overturn it.

Here are the relevant facts.  On April 26, 2019, Petitioner applied to a Medicare contractor for revalidation of his billing privileges as a Medicare supplier.  CMS Ex. 2.  The contractor found the application to be incomplete.  It requested that Petitioner supply additional information.  Petitioner supplied additional information on June 30, 2019.  The contractor found this information to be insufficient to allow revalidation of Petitioner’s billing privileges.  It rejected Petitioner’s application.  CMS Ex. 4; CMS Ex. 9.  On September 3, 2019, the contractor deactivated Petitioner’s Medicare billing privileges.  CMS Ex. 5.

On October 21, 2019, Petitioner applied to reactivate his billing privileges.  CMS Ex. 6; CMS Ex. 7.  The contractor processed this application to completion and authorized Petitioner to file reimbursement claims for services that he provided on or after September 21, 2019.  CMS Ex. 1.

The consequence of the contractor’s deactivation of Petitioner’s billing privileges and its subsequent reactivation of those privileges is that the contractor will not accept reimbursement claims from Petitioner for Medicare-covered items or services that he provided between September 3 and September 20, 2019.

As I have discussed, Petitioner may not appeal the contractor’s decision to deactivate his billing privileges.  The contractor determined to reactivate Petitioner’s billing privileges based on the reenrollment application that Petitioner filed on October 21, 2019.  That date is the earliest date when Petitioner qualified for reactivation.  Consequently, the undisputed facts and the applicable law support the contractor’s determination and I must sustain it.2

Petitioner argues at length that the contractor improperly rejected his April 26, 2019 application to revalidate his billing privileges.  He contends that the contractor’s rejection stems from its wrongful refusal to accept the academic credentials that Petitioner offered as support for that application.  He argues, furthermore, that for about 19 years the contractor had Petitioner’s academic credentials in its records.  Petitioner contends that the contractor should have revalidated his billing privileges based on the credentials that it had on file.  He asks that I overturn the contractor’s rejection of the April 26 application.

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However, and as I have explained, I do not have authority to address the issue of whether the contractor properly rejected Petitioner’s April 26 application.  I may address only the question of whether the contractor correctly determined the effective date of revalidation.  I have found that determination to be correct.  The regulations confer no authority on me to grant Petitioner an earlier date.  Furthermore, I may not waive or ignore regulatory requirements based on equitable considerations.  US Ultrasound, DAB No. 2302 at 8 (2010).  Consequently, I do not address any questions relating to the fairness of the contractor’s determination.

• 1. The contractor allowed Petitioner to claim reimbursement for items or services provided beginning September 21, 2019.  CMS Ex. 1.  That action is a matter of discretion that I do not address in this decision.
• 2. As I note above, at n.1, the contractor’s decision allowing Petitioner to file claims for items or services that he provided as early as September 21, 2019, is an act of administrative discretion that I do not address.