Mark Nickerson, LICSW, DAB CR5306 (2019)

DECISION

The effective date of Medicare billing privileges for Mark Nickerson, LICSW (Petitioner) is July 25, 2016, with a retrospective billing period that is effective June 25, 2016.

I. Background and Procedural History

Petitioner is a clinical social worker who first enrolled in the Medicare program prior to 2015.  In a February 17, 2015 notice, a Centers for Medicare & Medicaid Services (CMS) contractor informed Petitioner that he needed to revalidate his Medicare enrollment record within 60 days or else his Medicare billing privileges could be deactivated.  CMS Exhibit (Ex.) 1 at 1.  On July 2, 2015, Petitioner electronically filed an enrollment application through the Provider Enrollment, Chain, and Ownership System (PECOS).  CMS Ex. 1 at 5.  In a July 13, 2015 email, the CMS contractor informed Petitioner of the following:  “Please be advised, your e-signature is pending.  Please log into PECOS and make it complete or you can mail an 855I page 26 section 15 . . . within 30 calendar days in order to proceed forward with your revalidation.”  CMS Ex. 1 at 13.  The CMS contractor did not receive a signature from Petitioner for the enrollment application,

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resulting in the rejection of Petitioner’s incomplete enrollment application and deactivation of Petitioner’s Medicare billing privileges.  CMS Ex. 3 at 5-6.

Petitioner completed and signed a paper Medicare enrollment application (CMS-855I) on July 15, 2016.  CMS Ex. 2 at 28.  The CMS contractor received the enrollment application on July 25, 2016.  CMS Ex. 2 at 2.  In an October 11, 2016 initial determination, the CMS contactor enrolled Petitioner as a Clinical Social Worker with an effective date of June 25, 2016.  CMS Ex. 2 at 34-35.

In his reconsideration request, Petitioner appealed the lapse in payment for the services he provided to Medicare beneficiaries from December 2015 through June 2016.  Petitioner stated that he inquired into the matter and learned that he had failed to provide his signature on the first enrollment application he filed, but that the CMS contractor sent him only one email requesting his signature from an email address that did not appear associated with Medicare.  He said that no one followed-up by mail or telephone.  Petitioner argued that the CMS contractor ought to have tried to contact him again before deactivating his billing privileges.  Petitioner said that he provided services to Medicare beneficiaries throughout the period of his deactivation and should be paid for those services.  CMS Ex. 3 at 2-3.

On December 8, 2016, the CMS contractor issued an unfavorable reconsidered determination and upheld the June 25, 2016 effective date for billing privileges.  CMS Ex. 3 at 4-7.  The reconsidered determination noted that the effective date “is 30 days prior to the date the application was received.”  CMS Ex. 3 at 6.

Petitioner requested a hearing to dispute the reconsidered determination.  The case was originally assigned to Judge Carolyn Cozad Hughes for hearing and decision.  On February 17, 2017, Judge Hughes issued an Acknowledgment and Pre-hearing Order (Order), which established a submission schedule for prehearing exchanges.  In response, CMS filed a brief and motion for summary judgment, and five exhibits (CMS Exs. 1-5).  Petitioner submitted a letter brief and a copy of his reconsideration request.

On November 20, 2018, the case was transferred to me.

II. Decision on the Written Record

I admit CMS’s proposed exhibits into the record because Petitioner did not object to them.  I do not admit Petitioner’s unmarked version of his reconsideration request because his reconsideration request already appears in CMS Ex. 3 at 2-3; therefore, it is part of the record.

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I decide this case based on the written record because, as required by the Order, neither party indicated that they had any witnesses to testify at a hearing.  Order ¶¶ 4, 8-11; Civil Remedies Division Procedures §§ 16(a), (b), 19(b), (d).

III. Issue

Whether CMS had a legitimate basis to assign June 25, 2016, as the effective date for reactivation of Petitioner’s Medicare billing privileges.

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 42 U.S.C. § 1395cc(j)(8).

V. Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law are set forth in italics and bold font.

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

To maintain Medicare billing privileges, suppliers must revalidate their enrollment information at least every five years; however, CMS reserves the right to require revalidation at any time.  42 C.F.R. § 424.515.  When CMS notifies suppliers that it is time to revalidate, the suppliers must submit the appropriate enrollment application, accurate information, and supporting documents within 60 calendar days of CMS’s notification.  42 C.F.R. § 424.515(a)(2).

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If a supplier’s enrollment application is missing information, CMS may reject the enrollment application if the supplier does not supply the missing information within 30 days from the date the contractor requested the missing information.  42 C.F.R. § 424.525(a)(1).

CMS can deactivate an enrolled supplier’s Medicare billing privileges if the enrollee fails to comply with revalidation requirements.  42 C.F.R. § 424.540(a)(3).  When CMS deactivates a supplier’s Medicare billing privileges, “[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary.”  42 C.F.R. § 424.555(b).  If CMS deactivates a supplier’s billing privileges due to an untimely response to a revalidation request, the enrolled supplier may apply for CMS 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).

1. On July 25, 2016, the CMS administrative contractor received Petitioner’s enrollment application, which the CMS administrative contractor ultimately approved.

Petitioner submitted a CMS‑855I enrollment application to reactivate his billing privileges as a supplier in the Medicare program, which CMS received on July 25, 2016.  CMS Ex. 2 at 2-33.  The CMS contractor ultimately approved this application.  CMS Ex. 2 at 34-36.

2. Petitioner’s Medicare billing privileges are effective July 25, 2016, with a retrospective billing period effective June 25, 2016.

The effective date for Medicare billing privileges for physicians, non‑physician practitioners, and physician or non‑physician practitioner 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’s published guidance for its contractors states that the effective date for the reactivation of Medicare billing privileges is the date on which the contractor received the enrollment application.  Medicare Program Integrity Manual (MPIM) § 15.27.1.2.  That guidance is consistent with the effective date for Medicare billing privileges in § 424.520(d) and with § 424.555(b)’s prohibition on reimbursing services performed by deactivated suppliers.  Further, under the regulations, CMS may permit a 30-day retrospective period of billing.  42 C.F.R. § 424.521(a)(1).

In the present case, the enrollment application that the CMS contractor was able to process to completion was the one received on July 25, 2016.  The CMS contractor then

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exercised discretion and permitted Petitioner to bill for services provided 30 days before that date, i.e., June 25, 2016.  The CMS contractor applied the rules correctly.  The contractor could not provide an earlier effective date based on the first enrollment application filed in 2015 because that application was rejected for lack of a signature and never processed to approval.

Petitioner, in his filings, is understandably upset that the CMS contractor only sent him one email to request that he sign the first application he filed.  Petitioner also did not receive the letter that the CMS contactor sent stating that the first application had been rejected.  However, I have limited jurisdiction in this case.  I can only review the effective date provided to Petitioner under 42 C.F.R. § 424.520(d).  That regulation provides that the effective date is the date CMS received an enrollment application that it was able to process to completion.  As indicated above, the CMS contractor correctly applied that rule.

I do not have the authority to review CMS’s rejection of an enrollment application or deactivation of Medicare billing privileges.  Rejections of applications are not subject to appeal and deactivation decisions have a separate review process involving the submission of a rebuttal to CMS.  See 42 C.F.R. §§ 424.525(d), 424.545(b); see also Willie Goffney, Jr., M.D.,DAB No. 2763 at 4­-5 (2017).

Further, to the extent that Petitioner requests that I provide an earlier effective date because he provided services to Medicare beneficiaries while deactivated, I am unable to grant such a request.  I do not have authority to provide equitable relief based on principles of fairness and thus cannot change Petitioner’s effective date for that reason.  US Ultrasound,DAB No. 2302 at 8 (2010) (“[n]either 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.”).

VI. Order

I affirm the CMS contractor’s reconsidered determination and conclude that Petitioner’s effective date for Medicare billing privileges is July 25, 2016, with a retrospective billing effective date of June 25, 2016.