Brian Harris, M.D., DAB CR5668 (2020)

DECISION

Petitioner, Brian Harris, Ph.D., M.D., is a Pennsylvania physician, specializing in radiology.  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 August 21, 2017, resulting in a coverage lapse from November 1, 2016, through August 20, 2017.  Petitioner now challenges that effective date and asks that the lapse in coverage be eliminated.

Because Petitioner Harris filed his subsequently-approved enrollment applications on August 21, 2017, I find that August 21 is the earliest possible effective date for his enrollment.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff’d  sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

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Background

In a notice dated August 30, 2017, the Medicare contractor, Novitas Solutions, advised Petitioner that it approved his revalidated Medicare enrollment.  CMS Ex. 15.  The letter does not mention the effective date of the revalidation or indicate that it resulted in a coverage gap.  Petitioner, nevertheless, understood that the revalidation resulted in a gap in coverage and requested reconsideration.  CMS Ex. 16. 

In a reconsidered determination, dated January 18, 2018, a CMS hearing officer affirmed the August 21, 2017 reactivation date.  CMS Ex. 17 at 7.  Petitioner appealed. 

CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4, 10) (March 16, 2018).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied. 

CMS submits its motion and brief (CMS Br.) with 17 exhibits (CMS Exs. 1-17).  Petitioner submits a letter brief (P. Br.) and three exhibits (P. Exs. 1-3).  In the absence of any objections, I admit into evidence CMS Exs. 1-17 and P. Exs. 1-3.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

Petitioner filed his subsequently-approved enrollment application on August 21, 2017, and his reactivated Medicare enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner Harris participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services furnished to program beneficiaries, a 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-

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

Revalidation and 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.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7; Goffney, DAB No. 2763 at 7.

I have no authority to review a deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 (2019). 

Petitioner’s deactivation and reenrollment.  In a notice letter, dated May 16, 2016, the contractor directed Petitioner to revalidate his Medicare enrollment no later than July 31, 2016, updating or confirming the information in his record.  The letter directed Petitioner to the PECOS website and explained that a supplier could revalidate through the PECOS system or by mailing to the contractor a completed CMS-855 Medicare enrollment application.  The letter warned that, if Petitioner failed to respond to the notice, his Medicare enrollment could be deactivated; the letter explained that, during the period of deactivation, Medicare would not pay for the services rendered.  CMS Ex. 2.

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The contractor received no response.

Petitioner maintains that the contractor sent the notice letter to a practice location with which he was not “linked.”  Although it seems that the practices are related, he works at a different location.  P. Br. at 2.

Petitioner complains that he was unable to respond because he did not receive the May 16 revalidation notice, which the contractor sent to the wrong practice location.  P. Br. at 2.

In a second letter, dated October 21, 2016, the contractor reminded Petitioner that he had not revalidated his enrollment as requested and warned that, if he failed to do so, his Medicare enrollment would be deactivated and he would not be paid for services rendered during the period of deactivation.  CMS Ex. 4.  The contractor sent a copy of the letter to the practice’s correspondence address and a copy to the practice’s “special payments address.”  Petitioner concedes that he received the copy sent to the special payment address.  P. Br. at 2.

In a letter dated November 1, 2016, the contractor advised Petitioner that his Medicare billing privileges were stopped, effective November 1, 2016, because he had not revalidated his enrollment record.  CMS Ex. 5.

Thereafter, Petitioner filed a series of revalidation applications (Forms CMS-855I and 855R).  CMS Exs. 6, 8, 11.  The contractor rejected them as incomplete or otherwise inadequate and determined that Petitioner had not adequately corrected them as instructed.  CMS Exs. 7, 9, 10, 12, 13.  Although Petitioner maintains that the contractor was equally at fault for the delays, I simply have no authority to review a rejected application, notwithstanding the merits of Petitioner’s position.  Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7 (2019); James Shepard, M.D., DAB No. 2793 at 8 (2017).

On August 21, 2017, Petitioner Harris filed his Medicare reenrollment applications, which the contractor subsequently approved.3  CMS Exs. 14, 15.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment applications – August 21, 2017 – is the correct effective date of enrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

I have no authority to grant Petitioner an earlier effective date based on any equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

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Conclusion

Because Petitioner Harris filed his subsequently-approved reenrollment applications on August 21, 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).
• 3. Here, the first two digits stamped on the application (upper left corner) indicate the year – 2017.  The next four digits, 0821, indicate the date of receipt – August 21.  CMS Ex. 14 at 1.