George Yaplee Medical Center d/b/a Triangle Eye Institute, DAB CR5037 (2018)

DECISION

I sustain the determination of a Medicare contractor, as affirmed upon reconsideration, to reactivate the Medicare participation and billing privileges of Petitioner, George Yaplee Medical Center d/b/a Triangle Eye Institute, effective May 30, 2017.

I. Background

Petitioner filed a hearing request in order to challenge its May 30, 2017 reactivation date, alleging, in effect, that a Medicare contractor erred in deactivating Petitioner’s participation status and billing privileges as of May 12, 2017.  The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment, alleging that there are no disputed issues of material fact.  Petitioner opposed the motion and demanded an in-person hearing.   CMS filed 14 proposed exhibits with its motion, identified as CMS Ex. 1-CMS Ex. 14.  Petitioner filed 12 proposed exhibits in opposition to CMS’s motion, identified as P. Ex. 1-P. Ex. 12.  I note that several of Petitioner’s exhibits appear to duplicate those offered by CMS.

There is no need in this case for me to decide whether CMS’s motion satisfies the traditional criteria for summary judgment.  Neither CMS nor Petitioner offered the sworn

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written direct testimony of any proposed witnesses.1  Consequently, no purpose will be served by an in-person hearing.  I receive the parties’ proposed exhibits into the record and decide the case based on their submissions.

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether a Medicare contractor properly reactivated Petitioner’s Medicare participation and billing privileges effective May 30, 2017.

B. Findings of Fact and Conclusions of Law

Although Petitioner couches its hearing request as a challenge to a contractor’s determination to reactivate Petitioner’s billing privileges as of May 30, 2017, the request in fact raises different issues:  whether the contractor justifiably rejected Petitioner’s application to revalidate its billing privileges, and, whether the contractor incorrectly deactivated Petitioner’s billing privileges based on that rejection.  As I shall discuss, these are challenges that I have no authority to hear and decide because Petitioner has no right to a hearing to litigate these issues.

These are the controlling facts:  On January 13, 2017, the contractor sent a letter to Petitioner requesting that Petitioner revalidate its Medicare enrollment record.  The contractor gave Petitioner a deadline of March 31, 2017, to do so.  CMS Ex. 1.  Petitioner waited until April 3, 2017, to submit its re-enrollment application.  CMS Ex. 2.  The contractor found this application to be deficient in some respects and, so, on April 7, 2017, it sent a request for additional information to Petitioner.  In that request the contractor informed Petitioner that it would reject Petitioner’s application for re-enrollment if Petitioner failed to file the requisite information within 30 days.  CMS Ex. 3. 

Petitioner replied to the April 7 request on April 25, 2017.  CMS Ex. 4.  The contractor decided that the information submitted by Petitioner was incomplete.  It rejected Petitioner’s application and, on May 12, 2017, informed Petitioner that it was deactivating Petitioner’s billing privileges effective that date.  CMS Ex. 5.  Petitioner filed a new re-enrollment application on May 30, 2017, that the contractor subsequently

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approved.  It reactivated Petitioner’s billing privileges effective May 30, 2017.  CMS Ex. 12.  The consequence of the contractor’s actions was that Petitioner lost the authority to claim reimbursement for items or services delivered pursuant to the Medicare program on all dates from May 12 through May 29, 2017.

Regulations at 42 C.F.R. Parts 424 and 498 govern this case, and these regulations describe my authority to hear and decide it.  The regulations provide that CMS or one of its contractors may reject an application for enrollment or re-enrollment for a variety of reasons, including a provider’s or a supplier’s failure to supply the contractor with requested information.  42 C.F.R. § 424.525.  A contractor may deactivate a provider’s or a supplier’s Medicare billing privileges where the provider or supplier fails to timely provide requested information or where the contractor has rejected an application for re-enrollment.  42 C.F.R. § 424.540(a)(3).  A contractor’s decision to reject an application is not appealable.  42 C.F.R. § 424.525(d).  Neither is a decision by the contractor to deactivate a provider or a supplier’s billing privileges inasmuch as that decision is not defined as an initial determination that confers hearing rights on the affected party.  42 C.F.R. §§ 498.3, 498.5.  A provider or a supplier whose application has been rejected and whose billing privileges are deactivated must file a new Medicare enrollment application if it desires to have its privileges reactivated.  42 C.F.R. § 424.540(b)(1).

A contractor may not assign an effective date of reactivation of billing privileges to a supplier or to a provider that is earlier than the date the contractor receives an application for reactivation that it processes to completion.  42 C.F.R. § 424.520(d); Willie Goffney, Jr., M.D., DAB No 2763 at 7 (2017).  In this case, Petitioner submitted an application for reactivation of its billing privileges, that the contractor processed to completion, on May 30, 2017.  That is the earliest effective reactivation date that the contractor could have assigned to Petitioner subject to the regulation’s requirements.  Consequently, the contractor acted properly in assigning the May 30, 2017 reactivation date to Petitioner.

As I have stated, Petitioner’s challenge to the effective date of reactivation of its billing privileges is, in reality, a challenge to the contractor’s decisions to reject its April 3, 2017 renewal application and subsequently to deactivate Petitioner’s billing privileges.  On the opening page of its brief, Petitioner asserts that “[w]e were wrongfully denied our [renewal] application, due to the failure of [the] contractor to deliver a complete request for information.”  Petitioner’s brief and motion for hearing (Petitioner’s brief) at 1.  Petitioner argues additionally that it responded to the contractor’s request for information and that it supplied the contractor with “all clarifications and corrections . . . .”  Id.  It continues its argument by averring that it followed all guidelines and timely responded to all information requests.  Id. at 2.  It devotes the remainder of its brief to fleshing out these assertions.

I have no authority to hear and decide these arguments for the reasons that I have explained.  Petitioner’s protests that it complied with the contractor’s requests and that

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the contractor erred in rejecting Petitioner’s application and deactivating its billing privileges are beyond the scope of my authority to hear and decide hearing requests involving CMS.  A decision by a Medicare contractor to reject an application for renewal of billing privileges is a final decision that confers no hearing rights.  So too is a decision to deactivate a provider or a supplier’s billing privileges.

Petitioner’s arguments have an equitable character that goes beyond its contention that the contractor failed to act properly when it rejected Petitioner’s renewal application and deactivated Petitioner’s billing privileges.  Petitioner effectively asserts that the contractor’s actions were unfair given that Petitioner acted in good faith and honestly tried to comply with the contractor’s requests.  This equitable argument is also one that I lack authority to hear and decide.  US Ultrasound, DAB No. 2302 at 8 (2010).

• 1. At paragraph 8 of the Acknowledgement and Pre-Hearing Order of November 22, 2017, I directed the parties to submit all proposed testimony in writing and under oath or affirmation. CMS offered no witnesses. Petitioner listed several individuals as possible witnesses but did not comply with my order. It did not provide the written direct testimony of any of its proposed witnesses nor did it explain why it did not do so.