Victoria A. Adams d/b/a Newport Hand Center, DAB CR5246 (2019)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) sustaining the determination of a Medicare contractor, as affirmed on reconsideration, to reactivate the Medicare enrollment of Petitioner, Victoria A. Adams d/b/a Newport Hand Center, effective April 23, 2018.

I. Background

CMS moved for summary judgment.  Petitioner opposed CMS’s motion.  CMS offered exhibits, identified as CMS Ex. 1-CMS Ex. 11, in support of its motion.  Petitioner also filed exhibits, identified as P. Ex. 1-P. Ex. 8.

It is unnecessary that I receive the exhibits into evidence inasmuch as there is no disputed issue of material facts.  However, I cite to some of the parties’ exhibits in order to illustrate some of the facts not in dispute.1

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II. Issue, Findings of Fact and Conclusions of Law

A. Issue 

The issue is whether a Medicare contractor correctly determined to reactivate Petitioner’s Medicare billing privileges effective April 23, 2018.

B. Findings of Fact and Conclusions of Law

 Suppliers enrolled as participants in the Medicare program must revalidate their Medicare billing privileges in response to requests sent to them by CMS or one of its contractors.  42 C.F.R. § 424.535.  In order to reactivate, the supplier must file certain requisite information with a Medicare contractor or with CMS.  42 C.F.R. § 424.510.  CMS or its contractor may deactivate a supplier if the supplier fails to file requisite information within 90 days of receiving a request to file that information.  42 C.F.R. § 424.540(a)(3).

A decision by a Medicare contractor to reject an application for revalidation and to deactivate a supplier’s billing privileges is not an appealable determination and it confers no hearing rights on the deactivated supplier.  42 C.F.R. § 498.3(b).  Consequently, a deactivated supplier has no route of appeal from the deactivation but must file a new Medicare enrollment application in order to have its billing privileges reactivated.  42 C.F.R. § 424.540(b)(1).

CMS and its contractors process an application for reactivation of billing privileges under the identical criteria that they use to process new enrollment applications, relying on the requirements of 42 C.F.R. § 424.520(d)(1).  This regulation effectively states that the earliest effective date of participation of a participating Medicare supplier will be the date when the contractor receives an enrollment application that the contractor accepts.  As a consequence of this application, the deactivated supplier may not receive an effective participation date (date of reactivation) that is earlier than the date that it submits an application for reactivation that the contractor accepts.  42 C.F.R. § 424.520(d)(1); Medicare Program Integrity Manual (MPIM) §§ 15.27.1.2, 15.29.4.3.

Medicare will not accept a supplier’s claims for reimbursement for items or services that it provides on dates that fall between the date of deactivation and the effective date of reactivation.  42 C.F.R. § 424.555(b).  The regulations plainly allow for a reimbursement gap.  But, that gap, should it occur, is the consequence of regulatory language as has been interpreted by the Secretary via CMS.

The regulations governing reactivation have been the subject of numerous cases before the Departmental Appeals Board (Board).  Administrative law judges and the Board itself have ruled that CMS’s application of the regulations constitutes a reasonable reading of the regulatory language and, more important, expresses the Secretary’s will.  Willie

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Goffney, Jr., M.D., DAB No. 2763 at 6 (2017).  CMS’s interpretation of its regulations is settled law within this Department and at this juncture I have no authority to revisit it or to overturn it.

I find the following facts to be undisputed.  On December 7, 2017, a Medicare contractor sent a notice to Petitioner advising her that she needed to revalidate her Medicare enrollment by no later than February 28, 2018.  CMS Ex. 11.  Petitioner filed a Medicare enrollment application on January 23, 2018.  CMS Ex. 10.  The contractor reviewed this application and determined that it was incomplete.  On January 29, 2018, the contractor requested that Petitioner supply additional information so that the contractor could complete its processing of Petitioner’s January 23, 2018 application.  CMS Ex. 9 at 1-2.

In its January 29 communication, the contractor told Petitioner that it could reject Petitioner’s application if she did not file a timely response to the contractor’s information request.  CMS Ex. 9 at 1-2.  On February 6, 2018, the contractor sent a second notice to Petitioner in which it reiterated its request for additional information.  CMS Ex. 7.

Petitioner failed to file information with the contractor that the contractor found to be satisfactory.  On March 2, 2018, the contractor rejected Petitioner’s January 23 application and deactivated Petitioner’s Medicare billing privileges effective March 2.  CMS Ex. 6.

On April 17, 2018 Petitioner filed a new application with the contractor to renew her Medicare billing privileges.  CMS Ex. 5.  Petitioner completed that application on April 23, 2018.  The contractor accepted it and reactivated Petitioner’s Medicare billing privileges effective April 23.  CMS Ex. 4.  The consequence of the deactivation and subsequent reactivation of Petitioner’s Medicare billing privileges is that Medicare will not accept reimbursement claims from Petitioner for services rendered beginning March 2, 2018 and continuing through April 22, 2018.  CMS Ex. 4 at 2.

As I have discussed, Petitioner may not appeal the contractor’s decision to deactivate her billing privileges.  The contractor determined to reactivate Petitioner’s billing privileges effective April 23, 2018, based on the reenrollment application that Petitioner completed on that date.  That is the earliest date when Petitioner qualified for reactivation.  Consequently, the undisputed facts and the applicable law support the contractor’s determination and I must sustain it.

Petitioner argues that the contractor improperly rejected Petitioner’s initial revalidation application.  She contends that she was uncertain how exactly to complete her revalidation application due to a history of payments being sent by Medicare to the wrong provider.  She argues that when a person working on her behalf queried the contractor by telephone about what information the contractor needed, the contractor’s representative

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incorrectly told her to call back in a month.  She contends that she and her office manager followed the advice given to her by the contractor and should not now be penalized for doing so.  Petitioner’s response to CMS’s motion at 2-4.

These contentions effectively are a challenge by Petitioner to the contractor’s determination to reject her application and deactivate her billing privileges.  As I have explained, I lack any authority to consider this challenge.  I may only decide whether the contractor reactivated Petitioner’s billing privileges consistent with the application for reactivation that she completed on April 23, 2018.  And, as I have found, the contractor did so.

At bottom, Petitioner’s arguments not only challenge the rejection of her initial application but they challenge the fairness of the process.  She argues that she and her staff acted appropriately but were injured due to misleading information provided by the contractor’s employee.  She contends that, but for this misleading information, she would have completed her application timely and there would have been no deactivation.

However, the regulations confer no authority on me to change the date of reactivation, even assuming Petitioner’s fact contentions to be true.  As a general rule, I may not waive or ignore regulatory requirements based on equitable considerations, absent a showing of affirmative misconduct, such as fraud.  US Ultrasound, DAB No. 2302 at 8 (2010).  Petitioner has not offered any facts showing affirmative misconduct on the contractor’s part.  At worst, the facts offered by Petitioner establish that someone working for the contractor may have provided erroneous advice.  That is insufficient for me to find an equitable ground for changing the date of reactivation of Petitioner’s Medicare billing privileges.

• 1.I deny Petitioner's motion that I subpoena documents from the contractor. Those documents have no relevance, to the extent that they may exist, because, as I explain, Petitioner may not challenge the contractor's deliberations or its decision to deactivate Petitioner's Medicare billing privileges.