Derek K. H. Pang, MD, Inc. and Derek K. H. Pang, MD, DAB CR5269 (2019)

DECISION

The effective date of reactivation of Petitioner's billing privileges is January 23, 2017.

I. Background and Findings of Fact

A. Background

Petitioner requested administrative law judge (ALJ) review of the reconsidered determination of Noridian Healthcare Solutions, the Medicare Administrative Contractor (MAC). The reconsidered determination issued on May 10, 2017, upheld an initial determination by the MAC that the reactivation of Petitioner's billing privileges was effective on January 23, 2017, a date after the date of the deactivation of Petitioner's billing privileges. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 1-4.1 Petitioner complains that the gap in billing privileges from January 18 through 22,

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2017, resulted in Petitioner not being paid for services rendered to Medicare-eligible beneficiaries during the gap period. Request for Hearing (RFH).

B. Findings of Fact

The preponderance of the evidence shows that:

1. On October 14, 2016, the MAC notified Petitioner that he needed to revalidate his Medicare enrollment not later than December 31, 2016. The MAC advised Petitioner that failure to comply could cause a hold on payments or "possible deactivation of your Medicare enrollment" with no pay during the period of deactivation. CMS Response to Specified Issues (Specified Issues) at 2; Specified Issue Ex. 1 at 1, 3.

2. Petitioner mailed his revalidation application (CMS-855) to the MAC on December 3, 2016, but it was rejected by the MAC on January 18, 2017. CMS Ex. 1 at 97-98, 111; Petitioner's Prehearing Brief and Motion to Dismiss CMS Motion for Summary Judgment (P. Br.) at 2.

3. The MAC deactivated Petitioner's Medicare billing privileges effective January 18, 2017. CMS Ex. 1 at 2, 9, 99-100; P. Br. at 3; Specified Issues at 3.

4. Petitioner submitted a new application (CMS-855I) on January 19, 2017, that was received by the MAC on January 23, 2017. CMS Ex. 1 at 2; P. Br. at 3.

5. Petitioner's Medicare billing privileges were reactivated effective January 23, 2017. P. Br. at 3.

6. Petitioner's billing privileges were deactivated from January 18 through January 22, 2017 (the gap period). CMS Ex. 1 at 2, 8; P. Br. at 3.

7. Petitioner was enrolled in Medicare during the gap period. Specified Issues 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.

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 or the MAC declines 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. RFH; P. Br; Specified Issues at 1-2.

I conclude Petitioner has no right to review in this forum of the CMS or MAC determination to deactivate Petitioner's billing privileges. Petitioner has no right to review in this forum of the denial of payment of Petitioner's claims during the gap period. Petitioner does have a right to review of the MAC or CMS reconsidered determination of the effective date of 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. Provide CMS or the MAC complete and accurate information and all supporting documents within 90 calendar days of a request from CMS or the MAC.

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42 C.F.R. § 424.540(a).2 When deactivation is for non-submission of a claim, a provider or supplier must complete and submit a new enrollment application to reactivate billing privileges, unless CMS or the MAC permit the provider or supplier to simply recertify that enrollment information on file is correct. 42 C.F.R. § 424.540(b)(1). To reactivate billing privileges, the provider or supplier deactivated for failure to submit a claim for 12 consecutive months must recertify that all information on file is correct and provide any missing information; meet all Medicare enrollment requirements; and be prepared to submit a valid claim. 42 C.F.R. § 424.540(b)(2). 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). A provider or supplier has no right to review under 42 C.F.R. pt. 498, of a determination to deactivate Medicare billing privileges, only the right to 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). Furthermore, Petitioner has no right to review of the decision of the MAC rejecting Petitioner's revalidation an application. 42 C.F.R. § 424.525(d).

The Secretary promulgated the regulations at 42 C.F.R. §§ 424.545 and 498.5 that specify review and appeal rights in provider and supplier cases. The Secretary has not specifically stated that a provider or supplier has a right to ALJ review of a CMS or MAC determination 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) provides that "[t]he effective date of a Medicare provider agreement or supplier approval" is an initial determination 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, LLC, DAB No. 2860 at 6 (2018) (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).

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Applying the reasoning of the Board in Alvarez and Urology Group, 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. The only determination of CMS or the MAC that is subject to my review in a provider and supplier case is the reconsidered determination. 42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. LLC, DAB No. 2573 at 9.

3. Petitioner waived the right to an oral hearing and decision on the documentary evidence and briefs 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 Center v. Thompson, 373 F.3d 743, 748-51 (2004). Petitioner may file a written waiver of the right to appear and present evidence at a hearing. 42 C.F.R. § 498.66(a). If a Petitioner waives the right to appear and present evidence, no hearing is required. 42 C.F.R. § 498.66(b). Petitioner waived the right to oral hearing and I conclude that the waiver is acceptable. P. Br. at 1. CMS did not object to the waiver. Accordingly, no oral hearing is necessary and decision on the documentary evidence and briefs is appropriate.

4. 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 January 23, 2017.

5. CMS policy does not provide for a period of retrospective billing related to the reactivation of Medicare billing privileges.

The Secretary's regulations do not specify how to determine an effective date for the reactivation of Medicare billing privileges. 42 C.F.R. pt. 424, subpt. F. However, CMS has addressed the determination of the effective date of reactivation by policy.

CMS policies regarding deactivations and reactivations of billing privileges applicable to all types of providers and suppliers are set forth 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).3 MPIM § 15.27.1.2 provides that the effective date of reactivation is the date the MAC received the reactivation application that the MAC processed to completion.

CMS does not incorporate by reference in MPIM 15.27.1.2 the provisions of 42 C.F.R. § 424.520(d) (effective date determinations for physicians, practitioners, and their practice groups) or 42 C.F.R. § 424.521(a) (retrospective billing permitted in some cases

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for physicians, practitioners, and their practice groups). CMS also does not refer to MPIM § 15.17 (rev. 561, eff. Mar. 18, 2015), which sets forth CMS policy regarding effective date determinations and retrospective billing privileges for physicians, practitioners, and their practice groups. Unlike MPIM § 15.27.1.2, MPIM § 15.17 specifically incorporates 42 C.F.R. §§ 424.520(d) and 424.521(a). CMS has practiced incorporating its controlling regulations and policies by reference in its policies when it intends to do so. Because CMS did not make provision for retrospective billing related to reactivation of billing privileges, either specifically or by reference to regulations and policies, I conclude that CMS did not intend to permit retrospective billing for any providers or suppliers when reactivating Medicare billing privileges.

Applying the regulations in this case is straightforward. There is no dispute the MAC deactivated Petitioner's Medicare billing privileges on January 18, 2017. There is also no dispute that on January 23, 2017, the MAC received Petitioner's application to reactivate Medicare billing privileges. Accordingly, the effective date of reactivation may only be January 23, 2017.

Petitioner argues that despite its efforts, it received no notice from the MAC that its December 2016 application required correction before it was rejected and Petitioner's billing privileges were deactivated. P. Br. at 4-6; CMS Ex. 1 at 5. I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009). I have no authority to grant equitable relief. US Ultrasound, DAB No. 2302 at 8 (2010). Estoppel against the federal government, if available at all, is presumably unavailable absent "affirmative misconduct," such as fraud. See, e.g., Pacific Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990). Petitioner's arguments establish no basis for relief.

III. Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner's billing privileges is January 23, 2017.

• 1. The exhibits offered are admitted.
• 2. Citations are to the 2016 revision of the Code of Federal Regulations (C.F.R.), which 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 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). There was no change in the applicable regulations between the initial and reconsidered determinations in this case.
• 3. The current CMS policy is set forth in MPIM ch. 15 §§ 15.27.1.1 (rev. 824, eff. Oct. 1, 2018) and 15.27.1.2 (rev. 561, eff. Mar. 18, 2015).