Abraham Harvey Kryger, MD, DAB CR5315 (2019)

DECISION

The effective date of reactivation of Petitioner's billing privileges is February 13, 2017. Petitioner is entitled to a period for retrospective billing beginning 30 days prior to the effective date of reactivation of Petitioner's billing privileges.

I. Background and Findings of Fact

Petitioner requests administrative law judge (ALJ) review of the reconsidered determination of Noridian, the Medicare Administrative Contractor (MAC). The reconsidered determination issued on June 21, 2017, upheld an initial determination by the MAC that the reactivation of Petitioner's billing privileges was effective on February 13, 2017, a date after the date of the deactivation of Petitioner's billing privileges.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 1-2. Petitioner complains that the gap in billing privileges from December 14, 2016 through February 12, 2017, resulted in Petitioner not being paid for services rendered to Medicare-eligible beneficiaries during the gap period. Request for Hearing (RFH).

Petitioner filed his request for hearing by an administrative law judge (ALJ) on July 14, 2017. CMS filed a motion for summary judgment with CMS Exs. 1 through 3 on September 11, 2017. Petitioner filed documents marked as Petitioner's exhibits (P. Exs.) 1 through 7. The document Petitioner marked P. Ex. 6 (Departmental Appeals Board

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Electronic Filing System (DAB E-File) #11) is treated as Petitioner's brief (P. Br.) in response to the CMS motion for summary judgment. CMS Exs. 1 through 3 and P. Exs. 1 through 6 are admitted as evidence. P. Ex. 7 is a list of Petitioner's claims including those which were not paid. P. Ex. 7 is not relevant and not admitted because I have no authority to review unpaid claims. On January 19, 2018, CMS and Petitioner responded to issues I specified in an Order dated January 9, 2018. Petitioner filed a further reply on January 20, 2018 (P. Reply).

The evidence shows that on July 11, 2016, the MAC notified Petitioner that he needed to revalidate his Medicare enrollment not later than September 30, 2016. The MAC advised Petitioner that failure to comply could cause a hold on payments due Petitioner and deactivation of Petitioner's Medicare enrollment with no pay during the period of deactivation. CMS Ex. 1 at 5; CMS Response to Specified Issues at 2-4. On October 25, 2016, the MAC notified Petitioner that Petitioner failed to revalidate by September 30, 2016, advised Petitioner of the need to revalidate, and again warned of possible deactivation of Petitioner's enrollment if he did not comply. CMS Ex. 1 at 7.

The MAC notified Petitioner on December 21, 2016, that because he failed to revalidate his enrollment record, his billing privileges were stopped effective December 14, 2016. CMS Ex. 1 at 9. As discussed hereafter, I have no authority to review the MAC's decision to deactivate.

Petitioner submitted a CMS-855I to revalidate his enrollment that he signed on February 7, 2017. CMS Ex. 1 at 14-42. There is no dispute the MAC received the CMS-855I on February 13, 2017. CMS Ex. 1 at 2, 43.

Petitioner's Medicare billing privileges were reactivated effective February 13, 2017, the date the MAC received the CMS-855I. CMS Ex. 1 at 43.

The MAC deactivated Petitioner's billing privileges from December 14, 2016 through February 12, 2017 (the gap period). CMS Ex. 1 at 43.

Petitioner was enrolled in Medicare during the gap period. CMS Ex. 1 at 43; CMS Response to Specified Issues at 2-3.

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.

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. However, 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 Medicare 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. Give 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).1 Except when deactivation is for non-submission of a claim, a provider or supplier must complete and submit a new enrollment application to reactivate its billing privileges, unless CMS or the MAC permits a provider or supplier to recertify that its enrollment information on file is correct. 42 C.F.R. § 424.540(b)(1). To reactivate billing privileges, a 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, but has 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).

The Secretary of the Department of Health and Human Services (Secretary) promulgated the regulations at 42 C.F.R. §§ 424.545 and 498.5 that specify review and appeal rights in provider and supplier enrollment cases. The Secretary has not specifically stated that a provider or supplier has a right to ALJ review of CMS or MAC determinations 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 only a right to review of the determination of the effective date of reactivation). 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

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MAC determination of the effective date of reactivation of billing privileges. However, 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 7. The Board in Urology also pointed out that Medicare claim reimbursement is not subject to review by an ALJ in this forum. DAB No. 2860 at 6-7.

3. Summary judgment is appropriate.

I have concluded, based on the rationale of the Board in prior cases, that Petitioner has a right to ALJ review of the reconsidered determination of the effective date of reactivation of his right to file claims with and receive payment from Medicare.  I also conclude that there are no disputed issues of material fact that require a hearing in this case; CMS is entitled to judgment as a matter of law; and summary judgment 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 Ctr. v. Thompson, 373 F.3d 743, 748-51 (2004). However, when summary judgment is appropriate, no hearing is required. The Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498. See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997). The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate. I advised the parties in the Acknowledgment and Prehearing Order (Prehearing Order) that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Prehearing Order ¶¶ II.D. & G. Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg'l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5-6 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).

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 February 13, 2017.

5. Current CMS policy requires a period of retrospective billing related to the reactivation of Medicare billing privileges.

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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. P. However, CMS has addressed the determination of the effective date of reactivation by policy.

CMS policies regarding deactivations and reactivations of billing privileges are found 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).2 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.

The version of MPIM § 15.27.1.2 in effect at the time of the initial and reconsidered determinations did not specifically address retrospective billing. However, effective March 12, 2019, CMS changed its policy and now requires that contractors grant retrospective billing privileges in accordance with MPIM § 15.17(B) (rev. 865, eff. Mar. 12, 2019) when reactivating billing privileges of a provider or supplier described in that section. MPIM ch. 15 §§ 15.27.1.1-.2 (rev. 865, eff. Mar. 12, 2019). CMS adopted this new policy while this case is pending ALJ review and before a final administrative decision has issued. Based on the CMS language making retrospective billing mandatory in the situations described in MPIM ch. 15 § 15.17(B), I conclude it is appropriate to implement the current CMS policy in this case. 1 Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. § 4:22 (3d ed. 2019) (generally agency must obey own rules and policies, particularly when intended to be binding); 2 Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. § 5:68 (3d ed. 2019) (generally rule or statement of policy should be given equal effect by all agency adjudicators). Petitioner is a physician and there is no dispute that he was enrolled in Medicare during the gap period and met all requirements for enrollment. Therefore, Petitioner is entitled to retrospective billing privileges for up to 30 days prior to the effective date of reactivation of billing privileges for services rendered to Medicare-eligible beneficiaries during that 30-day period. MPIM § 15.17(B)(1).

Applying the regulations in this case is straightforward. There is no dispute the MAC deactivated Petitioner's Medicare billing privileges on December 14, 2016. There is also no dispute that on February 13, 2017, the MAC received Petitioner's application to reactivate Medicare billing privileges. Accordingly, the effective date of reactivation may only be February 13, 2017. The period for retrospective billing begins 30 days prior to the effective date of reactivation.

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Petitioner argues in his request for hearing that the delay in responding to the revalidation request was due to his name change. RFH. I accept Petitioner's argument for purposes of summary judgment, but the argument goes to the decision to deactivate which I have no authority to review. Petitioner argues that his biller made mistakes and withheld information from him. P. Br.; P. Reply. I accept, for purposes of summary judgment, Petitioner's representation about his biller. However, as already discussed, I have no authority to review the MAC and CMS decisions related to deactivation. The only issue I have authority to review is the determination of the effective date of reactivation. In this case, Petitioner does not dispute the fact that the MAC received his reactivation application on February 13, 2017. The date of receipt of the reactivation application by the MAC controls.

Petitioner's arguments may be construed to be for equitable relief or for estoppel. However, 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 February 13, 2017.

• 1. 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 A. 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).
• 2. The current CMS policy is set forth in MPIM, ch. 15 §§ 15.27.1.1 - .2 (rev. 865, eff. Mar. 12, 2019) and does provide for retrospective billing privileges in accordance with MPIM, ch. 15 § 15.17(B).