Alex H. Rizk, M.D., DAB CR5308 (2019)

DECISION

Petitioner’s Medicare billing privileges were deactivated on March 7, 2017, as a result of his failure to timely comply with a request that he revalidate his Medicare enrollment.  For the reasons discussed below, I conclude that the effective date of Petitioner’s reactivated Medicare enrollment and billing privileges remains June 12, 2017.

I. Background and Procedural History

On June 3, 2016, Palmetto GBA (Palmetto), a Medicare administrative contractor, sent a letter to Petitioner, a physician, requesting that he revalidate his Medicare enrollment no later than August 31, 2016.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 4 at 1.  Palmetto sent the letter to an address in Fredericksburg, Virginia.1  Palmetto instructed Petitioner to “update or confirm all the information in [his] record . . . .”  CMS

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Ex. 4 at 1.  Palmetto cautioned Petitioner that a “[f]ailure to respond to this notice will result in a hold on [his] payments, and possible deactivation of [his] Medicare enrollment,” and further warned that, in the event of deactivation, “[Petitioner] will not be paid for services rendered during the period of deactivation” which “will cause a gap in [his] reimbursement.”  CMS Ex. 4 at 1.

Because Petitioner did not submit a revalidation application in response to the contractor’s request, Palmetto sent Petitioner a letter on March 7, 2017, informing him that it had deactivated his billing privileges effective that same day.  CMS Ex. 6 at 1.  The letter explained:

We have stopped your Medicare billing privileges on 03/07/2017, because you haven’t revalidated your enrollment record with us, or you didn’t respond to our requests for more information.  We will not pay any claims after this date.

CMS Ex. 6 at 1 (emphasis in original).  The letter informed Petitioner that he needed to revalidate his individual enrollment record, along with his reassignments of benefits to two separate medical practices.  CMS Ex. 6 at 1.

Petitioner submitted a revalidation enrollment application, Form CMS-855I, via the internet-based Provider, Enrollment, Chain, and Ownership System (PECOS) that Palmetto received on June 12, 2017.2  CMS Ex. 7 at 1.  Petitioner also submitted a Form CMS-855R via PECOS to reassign his benefits.  CMS Ex. 8.

In a letter dated July 22, 2017, Palmetto informed Petitioner that it had approved his revalidation application.3 CMS Ex. 11.  Petitioner submitted a reconsideration request, dated August 10, 2017, in which he stated the following:

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Retro activation date to 03/07/2017; error in revalidation went to incorrect address; revalidation was submitted as soon as this error was found.  Please re instate participation dates 03/07/2017-06/11/2017.

CMS Ex. 13 at 1.

Palmetto issued a reconsidered determination on October 30, 2017, wherein it maintained the June 12, 2017 effective date of Petitioner’s reactivated billing privileges.  CMS Ex. 14 at 1-2.  Palmetto explained that it received the enrollment application for purposes of reactivation on June 12, 2017.  CMS Ex. 14 at 1.  The reconsidered determination stated that “there is no error made in the determination of neither the effective date nor the gap in billing privileges.”  CMS Ex. 14 at 2.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on December 29, 2017.  ALJ Bill Thomas issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on January 8, 2018, at which time he directed the parties to file their respective pre-hearing exchanges.4  CMS filed a motion for summary judgment and pre-hearing brief (CMS Br.), along with 14 proposed exhibits (CMS Exs. 1-14).  Petitioner, through counsel, filed an opposition to CMS’s motion for summary judgment and pre-hearing brief (P. Br.), along with two proposed exhibits (P. Exs. 1-2).  In the absence of any objections, I admit all submitted exhibits into the evidentiary record.

Neither party has listed any witnesses, and a hearing is therefore unnecessary for the purpose of cross-examination of any witnesses.  See Pre-Hearing Order, §§ 8, 9, 10.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.5

II. Issue

Whether CMS had a legitimate basis to assign Petitioner a June 12, 2017 effective date for his reactivated billing privileges.

III. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

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IV. Findings of Fact, Conclusions of Law, and Analysis6

1. On June 3, 2016, Palmetto requested that Petitioner revalidate his Medicare enrollment no later than August 31, 2016.

2. Petitioner did not respond to the revalidation request, and Palmetto deactivated Petitioner’s billing privileges effective March 7, 2017.

3. Palmetto received Petitioner’s enrollment application for purposes of revalidation and reactivation on June 12, 2017, and Palmetto ultimately processed that application to approval.

4. An effective date earlier than June 12, 2017, is not warranted for the reactivation of Petitioner’s Medicare enrollment and billing privileges.

As a physician, Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex. 7 at 1; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier); 498.2.  A “supplier” furnishes items or services under Medicare and the term applies to physicians or other practitioners that are not included within the definition of the phrase “provider of services.”  42 U.S.C. § 1395x(d).  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 at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program.  42 C.F.R. §§ 424.510-424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program).  A supplier who seeks billing privileges under Medicare “must submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a)(1).  “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); see also 42 C.F.R. § 424.510(d) (listing enrollment requirements).  Thereafter, “[t]o maintain Medicare billing privileges, a . . . supplier . . . must resubmit and recertify the accuracy of its enrollment information every 5 years.”  42 C.F.R. § 424.515.  Further, a supplier “may be required revalidate their enrollment outside the routine 5-year revalidation cycle.”  42 C.F.R. § 424.515(e).

CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the enrollee does not provide complete and accurate information within 90 days of a request for such information.  42 C.F.R. § 424.540(a)(3).  If 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); Urology Group of NJ, LLC,DAB No. 2860 at 10 (2018) (“The regulations, taken

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together, clearly establish that a deactivated provider or supplier was not intended to be entitled to Medicare reimbursement for services rendered during the period of deactivation.”).  Further, and quite significantly, the Departmental Appeals Board (DAB) has unambiguously stated that “[i]t is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.”  Willie Goffney, Jr., M.D.,DAB No. 2763 at 6 (2017); see Urology Group,DAB No. 2860 at 11 (“Taking these unique effects of revocation into consideration, it is reasonable to conclude that CMS intended for revocations and deactivations to share the feature of precluding a provider or supplier from collecting reimbursement for services rendered during the period of inactive Medicare billing privileges, while simultaneously intending for revocations to have more severe consequences on a provider’s or supplier’s ability to participate.”); Frederick Brodeur, M.D.,DAB No. 2857 at 16 (2018) (“Allowing a deactivated supplier to bill for services furnished during a period of deactivation would conflict with section 424.555(b) of the regulations . . . .”).  The regulation authorizing deactivation explains that “[d]eactivation of Medicare billing privileges is considered an action to protect the provider or supplier from misuse of its billing number and to protect the Medicare Trust Funds from unnecessary overpayments.”  42 C.F.R. § 424.540(c).

On June 3, 2016, Palmetto mailed a letter to Petitioner directing him to revalidate his Medicare enrollment record no later than August 31, 2016, and Palmetto warned that Petitioner’s failure to revalidate could result in deactivation of his Medicare billing privileges, with a resulting gap in reimbursement.  CMS Ex. 4 at 1.  Palmetto thereafter deactivated Petitioner’s billing privileges on March 7, 2017, after Petitioner did not revalidate his enrollment.  CMS Ex. 6 at 1.  In seeking reconsideration, Petitioner contended Palmetto did not send the revalidation requests to the correct address.  CMS Ex. 13 at 1.  Likewise, in his brief, Petitioner argues that Palmetto did not send the revalidation request to the correct address and that it should have sent the request to one of his Virginia practice locations in Newport News or Williamsburg.   P. Br. at 3-4.

The pertinent regulation with respect to the effective date of reactivation is 42 C.F.R. § 424.520(d).  Urology Group,DAB No. 2860 at 7 (“The governing authority to determine the effective date for reactivation of Petitioner’s Medicare billing privileges is 42 C.F.R. § 424.520(d)” (italics omitted).).  Section 424.520(d) states that “[t]he effective date for billing privileges for physicians, non-physician practitioners, physician and non-physician practitioner organizations . . . is the later of – (1) [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) [t]he date that the supplier first began furnishing services at a new practice location.”  The DAB has explained that the “date of filing” is the date “that an application, however sent to a contractor, is actually received.”  Alexander C. Gatzimos, MD, JD, LLC,DAB No. 2730 at 5 (2016) (emphasis omitted).  Palmetto deactivated Petitioner’s billing privileges based on his failure to comply with the revalidation request (CMS Ex. 6 at 1), and, on June 12, 2017, Petitioner electronically filed an application for

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purposes of revalidation and reactivation that was processed to approval.  CMS Exs. 7, 11.  Based on the June 12, 2017 receipt date of the enrollment application that was processed to approval, Palmetto did not err in assigning a June 12, 2017 effective date for reactivated billing privileges.  42 C.F.R. § 424.520(d); see Urology Group,DAB No. 2860 at 9 (“Moreover, the fact that a supplier must file a new enrollment application in order to reactivate its billing privileges is consistent with the language of section 424.520(d) and compelling evidence that the provision should apply to reactivations.”); Willie Goffney,DAB No. 2763 at 6 (“It is certainly true that [the petitioner] may not receive payment for claims for services during any period when [its] billing privileges were deactivated.”); Frederick Brodeur,DAB No. 2857 at 16 (“Petitioner remained enrolled in Medicare, but his deactivated status made [him] ineligible for payment for any covered services he furnished to otherwise eligible Medicare beneficiaries, pursuant to section 424.555(b), until he provided the information necessary to reactivate his billing privileges.”).

Petitioner is challenging the assignment of a June 12, 2017 effective date of his reactivated billing privileges, which resulted in a more than three-month gap in his Medicare billing privileges.  The deactivation of Petitioner’s billing privileges on March 7, 2017, based on his failure to comply with a revalidation request, is not reviewable.  Willie Goffney,DAB No. 2763 at 5 (stating no regulation provides appeal rights with respect to the contractor’s deactivation); Frederick Brodeur,DAB No. 2857 at 12 (“A contractor’s deactivation decision is not an initial determination subject to ALJ or [DAB] review.”).  I can only review the effective date assigned for Petitioner’s reactivated billing privileges, and Petitioner has not presented evidence that the effective date of reactivation, June 12, 2017, was inappropriate.  Pursuant to 42 C.F.R. § 424.520(d), Palmetto had a legitimate basis to assign an effective date of June 12, 2017, for Petitioner’s reactivated billing privileges.

Petitioner argues that Palmetto erred because it did not mail the letter requesting that he revalidate his enrollment to either his primary practice location in Newport News or his second practice location in Williamsburg.  P. Br. at 2-4.  However, Petitioner fails to recognize that, at the time of the revalidation request, his individual enrollment record did not include either address.  Rather, the correspondence and practice location addresses listed in his individual enrollment record, which had last been updated in May 2011, were both in Fredericksburg.  CMS Ex. 1 at 17.  The sole evidence Petitioner cites in support of his argument that Palmetto should have mailed the revalidation request to his locations in Newport News and Williamsburg is the June 2017 revalidation enrollment application in which he, for the first time, included those addresses in his individual enrollment record.  P. Ex. 1.  Petitioner fails to recognize that his individual enrollment record, at the time of the revalidation request, did not include addresses in Newport News and Williamsburg.  CMS Ex. 1.  Although Petitioner submitted an application to reassign benefits to his new practices in Newport News and Williamsburg, he did not terminate his reassignment of benefits to the urgent care practice in Fredericksburg (even though

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the application provided such an opportunity).  CMS Ex. 2 at 5-6; see CMS Ex. 1 at 31‑39.  Further, Petitioner did not update his individual enrollment prior to June 2017 to include an up-to-date correspondence address, practice location, or contact person address, and his reassignment of benefits to another practice in October did not serve to update the correspondence, practice location, and contact person addresses in his individual enrollment record.  See CMS Ex. 1 at 2 (Form CMS-855I individual enrollment application instructing a physician to complete the application “if you are an individual who plans to bill Medicare and you . . . need to make changes to your enrollment information (e.g., you have added or changed a practice location)”); CMS Ex. 1 at 33 (Form CMS-855R reassignment of benefits application instructing that it is to be used to add or terminate a reassignment of benefits).  Because Petitioner failed to update his individual enrollment record to reflect his new practice locations in Newport News and Williamsburg, Petitioner’s allegation that Palmetto GBA erred by not sending the revalidation request to either address is without merit.

Palmetto GBA had a legitimate basis to deactivate Petitioner’s billing privileges when he failed to respond to the revalidation request, and it had a legitimate basis to assign a June 12, 2017 effective date for his reactivated billing privileges based on the date he submitted the enrollment activation to revalidate his enrollment.  42 C.F.R. § 424.520(d).

To the extent that Petitioner’s request for relief is based on principles of equitable relief, I cannot grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  Petitioner points to no authority by which I may grant him relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”).

V. Conclusion

For the foregoing reasons, I uphold the June 12, 2017 effective date of Petitioner’s reactivated billing privileges.

• 1. Petitioner listed the Fredericksburg address as his correspondence address in a Form CMS-855I enrollment application submitted in May 2011. CMS Ex. 1 at 7. In that same application, Petitioner also indicated that his practice location was in Fredericksburg, Virginia.
• 2. Petitioner updated his enrollment record to reflect that his correspondence and contact addresses are located in Virginia Beach, Virginia.  CMS Ex. 7 at 2-4; see CMS Ex. 11 at 1-2.  At that time, Petitioner deleted the Fredericksburg addresses from his individual enrollment record.  CMS Ex. 11; see CMS Ex. 1.
• 3. The copy of the initial determination letter submitted by CMS lacks any reference to a gap in billing privileges. CMS Ex. 11. However, Petitioner timely requested reconsideration to challenge this gap (CMS Ex. 13), and Palmetto addressed the gap in billing privileges in its reconsidered determination. CMS Ex. 14.
• 4. This case was reassigned to me on March 8, 2019.
• 5. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
• 6. Findings of fact and conclusions of law are in italics and bold font.