Ihsan I. Jabbour, M.D., DAB CR5423 (2019)

DECISION

Petitioner, Ihsan I. Jabbour, M.D., is a physician and general surgeon practicing in Waterbury, Connecticut. After his Medicare billing privileges were deactivated, he applied to reenroll in the program. The Centers for Medicare & Medicaid Services (CMS) granted his application, effective January 3, 2017. Petitioner now challenges that effective date.

Because Petitioner filed his subsequently-approved enrollment application on January 3, 2017, I find that January 3 is the correct effective date of his enrollment. Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 3-5 (2017).

Background

In a letter dated January 20, 2017, the Medicare contractor, National Government Services, advised Petitioner Jabbour that it approved his Medicare enrollment effective January 3. CMS Exhibit (Ex.) 2 at 11-12. Petitioner sought reconsideration, asking that his effective date be changed to December 9, 2016. CMS Ex. 3 at 3. In a reconsidered determination, dated February 6, 2017, the contractor denied Petitioner an earlier effective date. CMS Ex. 3 at 9-12.

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Petitioner appealed.

Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied. In my initial order, I instructed the parties to list their proposed witnesses (if any) and to submit their written direct testimony. Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4, 8) (March 23, 2017). I also directed each party to state, affirmatively, whether it intended to cross-examine any proposed witness. Order at 5 (¶ 9). An in‑person hearing is necessary "only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine." Order at 5 (¶ 10). Neither party lists any witnesses. An in-person hearing would therefore serve no purpose, and I may decide the case based on the written record.

With its motion and brief, CMS submits three exhibits (CMS Exs. 1-3). Petitioner submits a written argument with no exhibits. In the absence of any objections, I admit into evidence CMS Exs. 1-3.

Discussion

Petitioner filed his subsequently-approved application on January 3, 2017, and his Medicare enrollment can be no earlier than that date. 42 C.F.R. § 424.520(d).1

Enrollment. Petitioner Jabbour participates in the Medicare program as a "supplier" of services. Social Security Act § 1861(d); 42 C.F.R. § 498.3. To receive Medicare payments for the services it furnishes to program beneficiaries, a prospective supplier must enroll in the program. 42 C.F.R. § 424.505. "Enrollment" is the process by which CMS and its contractors: 1) identify the prospective supplier; 2) validate the supplier's eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier's owners and practice location; and 4) grant the supplier Medicare billing privileges. 42 C.F.R. § 424.502.

To enroll, a prospective supplier must complete and submit an enrollment application. 42 C.F.R. §§ 424.510(d)(1), 424.515(a). An enrollment application is either a CMS‑approved paper application or an electronic process approved by the Office of Management and Budget. 42 C.F.R. § 424.502.2 When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments

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from Medicare for covered services provided to program beneficiaries. The effective date for its billing privileges "is the later of the date of filing" a subsequently-approved enrollment application or "the date an enrolled physician . . . first began furnishing services at a new practice location." 42 C.F.R. § 424.520(d) (emphasis added).

Deactivation. To maintain its billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of its enrollment information, a process referred to as "revalidation." 42 C.F.R. § 424.515. In addition to periodic revalidations, CMS may, at other times and for its own reasons, ask a supplier to recertify the accuracy of its enrollment information. 42 C.F.R. § 424.515(d) and (e). Within 60 days of receiving CMS's notice to recertify, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation. 42 C.F.R. § 424.515(a)(2).

If, within 90 days from receipt of CMS's notice, the supplier does not furnish complete and accurate information and all supporting documentation or does not resubmit and certify the accuracy of its enrollment information, CMS may deactivate its billing privileges, and no Medicare payments will be made. 42 C.F.R. §§ 424.540(a)(3), 424.555(b). To reactivate its billing privileges, the supplier must complete and submit a new enrollment application. 42 C.F.R. § 424.540(b)(1). It is settled that, following deactivation, section 424.520(d) governs the effective date of reenrollment. Urology Grp., DAB No. 2860 at 6; Goffney, DAB No. 2763 at 7.

Petitioner's deactivation and reenrollment. In a notice letter dated July 15, 2016, the contractor directed Petitioner to revalidate his Medicare enrollment by updating or confirming the information in his record. The letter directed him to the PECOS website and explained that he could revalidate through the PECOS system or by mailing to the contractor a completed CMS-855 Medicare enrollment application. CMS Ex. 1 at 1-2. The notice emphasized that he had to revalidate by September 30, 2016, or risk his Medicare billing privileges being deactivated. It warned that, during the period of deactivation, Medicare would not pay for the services he rendered. CMS Ex. 1 at 1.

Petitioner did not revalidate his Medicare enrollment.

In a follow-up letter, dated October 4, 2016, the contractor again directed Petitioner to revalidate his enrollment record, warning that he would not be paid for services rendered during the period of his deactivation. CMS Ex. 1 at 3.

Petitioner still did not revalidate his Medicare enrollment.

In a notice dated December 14, 2016, the contractor advised Petitioner that his Medicare billing privileges were stopped on December 9, 2016, because he hadn't revalidated his

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enrollment record. The contractor would not pay for any claims after that date. CMS Ex. 1 at 5.

On January 3, 2017, the contractor received Petitioner's reenrollment application, which it subsequently approved. CMS Ex. 2. Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – January 3, 2017 – is the correct effective date of enrollment. Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on January 3, 2017, CMS properly granted his Medicare reenrollment effective that date.

• 1. I make this one finding of fact/conclusion of law.
• 2. CMS's electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).