Jennifer Keady, O.D., DAB CR5313 (2019)

DECISION

Petitioner's Medicare billing privileges were deactivated on August 9, 2017, as a result of her failure to timely comply with a request that she revalidate her Medicare enrollment. For the reasons discussed below, I conclude that the effective date of Petitioner's reactivated Medicare enrollment and billing privileges remains August 29, 2017.

I. Background and Procedural History

On March 10, 2017, Noridian Healthcare Solutions (Noridian), a Medicare administrative contractor, sent a letter to Petitioner, an optometrist, requesting that she revalidate her Medicare enrollment no later than May 31, 2017. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 1. Noridian sent the letter to 401 N. Broadway Avenue in Burns, Oregon. CMS Ex. 1 at 1. Noridian instructed Petitioner to "update or confirm all the information in [her] record," to include her individual enrollment record and her reassignment of benefits to Bend Ophthalmology. CMS Ex. 1 at 1. Noridian cautioned Petitioner that a "[f]ailure to respond to this notice will result in a hold on [her] payments, and possible deactivation of [her] Medicare enrollment," and further warned

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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 [her] reimbursement." CMS Ex. 1 at 1.

Noridian sent Petitioner another letter on July 12, 2017, in which it explained that she had not revalidated her enrollment by the requested date of May 31, 2017, and that, if her "enrollment is deactivated, . . . [she] will not be paid for services rendered during the period of deactivation." CMS Ex. 2 at 1. Noridian cautioned that deactivation could "cause a gap in reimbursement." CMS Ex. 2 at 1.

Because Petitioner did not submit a revalidation application in response to the contractor's request, Noridian sent Petitioner a letter on August 22, 2017, informing her that it had deactivated her billing privileges, effective August 9, 2017. CMS Ex. 3 at 1. The letter explained:

We have stopped your Medicare billing privileges on August 9, 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. 3 at 1 (emphasis in original). The letter again informed Petitioner that she needed to revalidate both her individual enrollment record and her reassignment of benefits to Bend Ophthalmology. CMS Ex. 3 at 1.

Petitioner submitted a revalidation enrollment application, Form CMS-855I, via the internet-based Provider, Enrollment, Chain, and Ownership System (PECOS) that Noridian received on August 29, 2017. CMS Ex. 4 at 1.

In a letter dated October 19, 2017, Noridian informed Petitioner that it had approved her revalidation application. CMS Ex. 5. Noridian explained that Petitioner had a gap in her billing privileges from August 9 through 28, 2017. CMS Exs. 5 at 1; 6 at 3.

Petitioner submitted a reconsideration request, dated October 19, 2017, in which she stated the following:

[P]lease reconsider my de-activated status from August 9th through August 28th, 2017[,] and back date my status so that I may PLEASE bill for the patients that I had seen during that time period. I did get the notifications from Medicare regarding my revalidation . . . . For whatever reason, I read the letter as stating that I need to revalidate for BEND OPTHALMOLOGY. I have not worked there for the past

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few years and tried to have that location removed from my account status (with no luck). I thought that by NOT revalidating the account it would finally be off my record. It was not until I received the notification from Medicare Provider Enrollment that I was no longer a provider PERIOD that I panicked and realized what had happened.

CMS Ex. 6 at 5.

Noridian issued a reconsidered determination on January 11, 2018, wherein it maintained the August 29, 2017 effective date of Petitioner's reactivated billing privileges. CMS Ex. 7 at 2. Noridian explained that it received the enrollment application for purposes of reactivation on August 29, 2017. CMS Ex. 7 at 2. The reconsidered determination stated that the "request to remove the lapse in coverage cannot be honored due to the enrollment not being revalidated by May 31, 2017." CMS Ex. 7 at 2.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on January 17, 2018. ALJ Bill Thomas issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on January 23, 2018, at which time he directed the parties to file their respective pre-hearing exchanges.1 CMS filed a motion for summary judgment and pre-hearing brief (CMS Br.), along with eight proposed exhibits (CMS Exs. 1-8). Petitioner filed a response (P. Br.). 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.2

II. Issue

Whether CMS had a legitimate basis to assign Petitioner an August 29, 2017 effective date for her 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 Analysis3

1. On March 10, 2017, Noridian requested that Petitioner revalidate her Medicare enrollment no later than May 31, 2017.
2. Petitioner did not respond to the revalidation request, and Noridian deactivated Petitioner's billing privileges effective August 9, 2017.
3. Noridian received Petitioner's enrollment application for purposes of revalidation and reactivation on August 29, 2017, and Noridian ultimately processed that application to approval.
4. An effective date earlier than August 29, 2017, is not warranted for the reactivation of Petitioner's Medicare enrollment and billing privileges.

As an optometrist, 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 to 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

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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 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 March 10, 2017, Noridian mailed a letter to Petitioner directing her to revalidate her Medicare enrollment record no later than May 31, 2017, and Noridian warned that Petitioner's failure to revalidate could result in deactivation of her Medicare billing privileges, with a resulting gap in reimbursement. CMS Ex. 1 at 1. Noridian thereafter deactivated Petitioner's billing privileges on August 9, 2017, after Petitioner did not revalidate her enrollment. CMS Ex. 3 at 1. Petitioner does not dispute that she received the revalidation request and concedes that she mistakenly failed to revalidate her enrollment in a timely manner. CMS Ex. 6 at 5.

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). Noridian deactivated Petitioner's billing privileges based on her failure to comply with the revalidation request (CMS Ex. 3 at 1), and, on August 29, 2017, Petitioner electronically filed an application

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for purposes of revalidation and reactivation that was processed to approval. CMS Ex. 4. Based on the August 29, 2017 receipt date of the enrollment application that was processed to approval, Noridian did not err in assigning an August 29, 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 an August 29, 2017 effective date of her reactivated billing privileges, which resulted in a several week gap in her Medicare billing privileges. The deactivation of Petitioner's billing privileges on August 9, 2017, based on her 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, August 29, 2017, was inappropriate. Pursuant to 42 C.F.R. § 424.520(d), Noridian had a legitimate basis to assign an effective date of August 29, 2017, for Petitioner's reactivated billing privileges.

Petitioner acknowledges that it is "undisputed" that she did not timely revalidate her enrollment and requests that I take into account that she has lost $8,000 in Medicare reimbursements based on an inadvertent error on her part. Unfortunately, I lack the discretionary authority to grant Petitioner the relief she seeks. CMS, and its contractors, have a significant amount of authority and discretion under the regulations, particularly 42 C.F.R. part 498. Yet, part 498 does not afford the same amount of discretion to an ALJ. While CMS and its contractors may deactivate billing privileges for failure to comply with anenrollment requirement, and CMS and its contractors have the discretion to postpone or waive a deactivation of billing privileges, an ALJ cannot exercise such discretion over a determination deactivating a supplier's billing privileges. See, e.g., 42 C.F.R. § 498.3. Thus, there is limited recourse available to a supplier such as Petitioner who has had her billing privileges deactivated. I am unable to reverse a deactivation of billing privileges that results from a supplier's failure to strictly comply with revalidation requirements. I am sympathetic to Petitioner's financial loss, and I recognize that she serves a rural community. However, in the absence of any basis to

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grant an earlier date for the reactivation of billing privileges, the effective date of August 29, 2017, for the reactivation of Petitioner's billing privileges must stand.

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 her 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 . . . .").

Noridian had a legitimate basis to deactivate Petitioner's billing privileges when she failed to respond to the revalidation request, and it had a legitimate basis to assign an August 29, 2017 effective date for her reactivated billing privileges based on the date she submitted the enrollment activation to revalidate her enrollment. 42 C.F.R. § 424.520(d).

V. Conclusion

For the foregoing reasons, I uphold the August 29, 2017 effective date of Petitioner's reactivated billing privileges.

• 1. This case was reassigned to me on March 8, 2019.
• 2. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
• 3. Findings of fact and conclusions of law are in italics and bold font.