Sally H. Dowling, M.D. and Sally H. Dowling M.D., LLC, DAB CR5727 (2020)

DECISION

In this case, we revisit an issue that continues to crop up even though the Departmental Appeals Board seemingly resolved it some years ago:  is the effective date for Medicare enrollment the date the applicant files an unsigned application that is subsequently completed and approved, or is it the date the applicant submits the required signatures? 

Petitioner, Sally H. Dowling, M.D., is a physician practicing in Delaware, and Petitioner, Sally H. Dowling M.D., LLC, is her medical practice.  They participate in the Medicare program as suppliers of services.  After their Medicare billing privileges were deactivated, they applied to reenroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted the applications, effective March 13, 2018, resulting in a one-week billing gap.  Petitioners ask for an earlier effective date. 

For the reasons set forth below, I find that Petitioners filed their subsequently-approved applications on March 2, 2018, and March 2 is therefore the correct effective date for the reactivated enrollments.

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Background

In notice letters dated April 26, 2018, the Medicare contractor, Novitas Solutions, advised Petitioners that it approved their revalidated Medicare enrollments with a gap in billing privileges from March 5 through 12, 2018.  CMS Exs. 3, 4.  Petitioners requested reconsideration, maintaining that they submitted their applications on March 2, 2018, so there should be no gap in billing privileges.  CMS Ex. 2. 

In a reconsidered determination, dated July 25, 2018, the contractor affirmed the March 13 effective date, with the gap in billing privileges from March 5 through 12, 2018.  CMS Ex. 1.  Petitioner appealed. 

CMS moves for summary judgment.  However, an in-person hearing would serve no purpose.  In my initial order, I directed the parties to list all proposed witnesses and to provide each witness’s written direct testimony in the form of an affidavit or written declaration.  Acknowledgment and Pre‑hearing Order at 3, 5 (¶¶ 4(c)(iv), 8) (August 23, 2018).  Neither party lists any witnesses.  A hearing would therefore serve no purpose, and I may decide this case based on the written record, without considering whether the standards for summary judgment are met.  See Pre-hearing Order at 6 (¶ 10) (“An in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”). 

CMS submits its motion and brief (CMS Br.) with 13 exhibits (CMS Exs. 1-13).  Petitioners submit a brief in opposition (P. Br.).  In the absence of any objections, I admit into evidence CMS Exs. 1-13. 

Discussion

1. Because Petitioners filed their subsequently-approved enrollment applications on March 2, 2018, that is the correct effective date for their reactivated Medicare enrollments.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioners participate in the Medicare program as “suppliers” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services furnished to program beneficiaries, a prospective supplier must enroll in the program.  Act § 1834(j)(1)(A); 42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors:  1) identify the prospective supplier; 2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier’s owners and practice location; and 4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502.

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To enroll, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application is either a CMS‑approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.2  When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  For a physician or physician organization, the effective date for billing privileges “is the later of [the] date of filing” a subsequently-approved enrollment application or “[t]he date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

Revalidation and deactivation.  To maintain billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of its enrollment information, a process referred to as “revalidation.”  42 C.F.R. § 424.515.  In addition to periodic revalidations, CMS may, at other times and for its own reasons, ask a supplier to recertify the accuracy of the enrollment information.  42 C.F.R. § 424.515(d)-(e).  Within 60 days of receiving CMS’s notice to recertify, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation.  42 C.F.R. § 424.515(a)(2).

If, within 90 days from receipt of CMS’s notice, the supplier does not furnish complete and accurate information and all supporting documentation or does not resubmit and certify the accuracy of its enrollment information, CMS may deactivate its billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3), 424.555(b).  To reactivate its billing privileges, the supplier must complete and submit a new enrollment application.  42 C.F.R. § 424.540(b)(1).  It is settled that, following deactivation, section 424.520(d) governs the effective date of reenrollment.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff’d sub nom.  Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

Petitioners’ deactivation and reenrollment.  In notice letters, dated May 11, 2017, the contractor directed Petitioners to revalidate their Medicare enrollments by updating or confirming the information in their records.  The letters directed them to submit, no later than July 31, 2017, an updated paper CMS-855 Medicare enrollment application or to revalidate through the PECOS system.  The letters warned that failing to respond could result in deactivation of Medicare enrollment.  CMS Exs. 12, 13.

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Petitioners maintain that they did not receive the notice letters.  P. Br.  In any event, they did not respond.

The contractor sent Petitioners a second letter, dated February 5, 2018, advising that it was withholding all Medicare payments because they had not revalidated their enrollment records.  The letter warned that, if they did not revalidate the records, the contractor could deactivate their enrollments and they would not be paid for services rendered during the period of deactivation.  CMS Ex. 11. 

Again, Petitioners maintain that they did not receive this letter, and they did not respond.  P. Br.

In a letter, dated March 5, 2018, the contractor advised Petitioner Dowling that her billing privileges and that of her practice were deactivated, effective March 5, 2018, because they had not revalidated their enrollment records and had not responded to the contractor’s requests for information.  To recover billing privileges, the letter instructed them to submit updated paper enrollment applications, or to revalidate via PECOS.  CMS Ex. 10. 

In the meantime, on March 2, 2018, Petitioner Dowling filed, via PECOS, Medicare enrollment applications for herself (CMS 855I) and her practice (CMS 855B), which the contractor subsequently approved.  At the time they were filed, the documents had not been signed.  CMS Exs. 8, 9.3  Petitioner Dowling provided the required signatures on March 13, 2018.  CMS Ex. 8 at 3; CMS Ex. 9 at 2. 

Citing section 424.520(d), CMS maintains that “[u]nder the regulations, the ‘date of filing’ is the date the Medicare contractor receives a signed enrollment application that it is able to process to approval.”  CMS Br. at 8 (emphasis in original).  The regulation does not say that; CMS has added language that is not there.  The regulation says that the effective date is “[t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor . . . .”  42 C.F.R. § 424.520(d)(1).  In support of its position, CMS cites an administrative law judge decision rather than the Board decisions, which rule otherwise.4  CMS Br. at 8, citing Joshua J. Crabtree, M.D., DAB CR2538 at 4 (2012); contra Karthik Ramaswamy, M.D., DAB No. 2563 at 5 (2014) (en banc), aff’d sub nom, Ramaswamy v. Burwell, 83 F. Supp. 3d 846 (E.D. Mo. 2015).

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Petitioners’ March 2 enrollment applications were incomplete.  CMS may reject an incomplete enrollment application if the prospective supplier “fails to furnish complete information on the . . . supplier enrollment application within 30 calendar days from the date of the contractor request for the missing information.”  42 C.F.R. § 424.525(a)(1).  However, so long as the contractor continues to process that application to a decision, the effective date will relate back to the date of its filing.  Ramaswamy, DAB No. 2563 at 5; Tri-Valley Family Medicine, Inc., DAB No. 2358 (2010).

Under 42 C.F.R. § 424.525(a)(1), applicants are “given an opportunity to cure any deficiencies or supply any missing documentation before an application will be rejected.”  Tri-Valley, DAB No. 2358 at 5.5  CMS may deny an enrollment application if the supplier does not comply with Medicare enrollment requirements, “which include the requirement for a signature on the certification statement,” and does not submit a corrective action plan.  Tri-Valley, DAB No. 2358 at 5.  Thus, where, as here, an application lacks necessary signatures, the regulations give the Medicare contractor two options:  1) treat the missing signature like any other missing information and request it within the regulatory deadline; or 2) treat the failure as noncompliance and deny the application.  Tri-Valley, DAB No. 2358 at 6. 

In the Board’s view, the regulatory changes, effective January 1, 2009, that added section 424.520(d), did not change the regulations governing the contractor’s options for responding to a deficient enrollment application.  The preamble to section 424.520 says that the “date of filing” is the date that a Medicare contractor receives a signed application that it is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (2008).  “This was the first indication that lack of a signature on an application might affect the timing of when a physician could get paid for covered services.”  Tri-Valley, DAB No. 2358 at 6.  The Board concluded that nothing in the regulations or the language of the preamble indicates that the effective date should be determined by the submission of a complete application: 

Instead, the regulation refers to an application that is ‘subsequently approved’ by the contractor.  It does not

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require that the application be ‘approvable’ as initially submitted.  The regulatory process, which was unchanged, included provision for the contractor to request information or supporting documentation if an application was not complete.  Thus, if the information or documentation was timely submitted and all other requirements were met, that application could be approved, and a provider or supplier was not required to submit an additional application.  The preamble language . . . recognizes this by referring to an application that the contractor is able to process to approval.  Indeed, the preamble indicated agreement with the comment  that the filing date should not be the date when the application is ‘deemed complete and ready for approval.’ 

Tri-Valley, DAB No. 2358 at 7, citing 73 Fed. Reg. at 69,769 (emphasis in original). 

For reasons unrelated to this conclusion, Tri-Valley represented a bit of a departure.  The case involved an earlier application that, in the Board’s view, “could have been processed to approval” had the contractor “properly requested” missing information.  Tri-Valley, DAB No. 2358 at 1.  Even though that earlier application was rejected (a determination that is not reviewable), and the Board was reviewing the effective date of a subsequent application, the review panel in Tri-Valley accepted, as the effective date, the filing date of the original application.  Since then, the Board has soundly rejected supplier requests for review of prior applications under the guise of challenging the effective dates of their subsequently-approved applications.  Ramaswamy, DAB No. 2563 at 5. 

We will not determine de novo that an application could have been processed to approval in the face of the contractor’s actual determination to deny the application because it was not approvable.  To do so would improperly use [the] scope of review to revisit a legally binding and administratively final determination.

Ramaswamy, DAB No. 2563 at 9 (emphasis in original).

The Board in Ramaswamy nevertheless agreed with the Tri-Valley conclusion that “while the contractor may require and request additional information to complete the application, the effective date will relate back to the date of filing so long as that application continues to be processed to a decision on whether to approve it.”  Ramaswamy, DAB No. 2563 at 5 (emphasis added and in original).

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Conclusion

Because Petitioners filed their subsequently-approved reenrollment applications on
March 2, 2018, their Medicare reenrollments are effective as of that date.

• 1. I make this one finding of fact/conclusion of law.
• 2. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
• 3. Petitioner subsequently submitted Form CMS-855R, asking to reassign her own billing privileges to the medical practice.  CMS Ex. 7.
• 4. ALJ decisions have no precedential weight and are not binding on the Board or anyone else.  Alexander C. Gatzimos, DAB No. 2730 at 16 (2016); Zahid Imran, M.D., DAB No. 2680 at 12 (2016).
• 5. Although the regulation has not changed, CMS has changed its instructions to contractors, going back and forth on how they should treat PECOS applications that are missing signatures.  Compare MPIM ¶ 15.17.A (Rev. 582, Issued:  03-04-15; Effective:  05-28-15) (“The date of filing for [PECOS] applications is the date that the contractor received an electronic version of the enrollment application and a signed certification statement submitted via paper or electronically.”) with MPIM ¶ 15.17.A (Rev. 865, Issued:  02-21-19; Effective:  03-12-19) (“The date of filing for Form CMS-855 applications is the date on which the contractor received the application, regardless of whether the application was submitted via paper or Internet-based PECOS.”).