Rebecca Hatlevig, DPT, DAB CR5253 (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, Rebecca Hatlevig, effective February 12, 2018.

I. Background

CMS moved for summary judgment.  Petitioner opposed CMS’s motion.  CMS offered exhibits, identified as CMS Ex. 1-CMS Ex. 18, in support of its motion.  Petitioner filed no exhibits.

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

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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 February 12, 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 revalidate, 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

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regulatory language and, more important, expresses the Secretary’s will.  Willie 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 July 5, 2017, a Medicare contractor sent a notice to the address that Petitioner had on file with the contractor as her mailing address, requesting that she revalidate her Medicare enrollment by September 30, 2017.  CMS Ex. 1.  Petitioner did not respond to this notice.  On October 31, 2017, the contractor sent a second notice to Petitioner concerning the need for Petitioner to revalidate her enrollment.  CMS Ex. 2.  Petitioner did not respond to this notice.  On December 19, 2017, the contractor notified Petitioner that it had deactivated her Medicare billing privileges.  CMS Ex. 3.

Petitioner applied to reactivate her billing privileges on January 3, 2018.  CMS Ex. 4.  The contractor found this application to be incomplete and, on January 4, 2018, it requested additional information from Petitioner.  CMS Ex. 5.  Petitioner responded to this request on January 8, 2018.  CMS Ex. 6.  The contractor determined the response to be inadequate.  On February 9, 2018, it rejected Petitioner’s application.  CMS Ex. 7.

Petitioner reapplied for reactivation of her Medicare billing privileges on February 12, 2018.  CMS Ex. 8.  The contractor requested additional information from Petitioner, which Petitioner then filed.  The contractor accepted Petitioner’s February 12 application and, on that basis, reactivated Petitioner’s billing privileges effective February 12, 2018.  CMS Ex. 14.

The consequence of the deactivation and subsequent reactivation of Petitioner’s Medicare billing privileges is that the contractor will not accept claims for reimbursement for services provided by Petitioner during a period running from December 19, 2017 through February 11, 2018.

As I have discussed, Petitioner may not appeal the contractor’s decision to deactivate her billing privileges nor may she appeal the contractor’s decision to reject her January 3, 2018 reactivation application.  The contractor determined to reactivate Petitioner’s billing privileges effective February 12, 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.

In her opposition to CMS’s motion, Petitioner argues that she never received the contractor’s notices telling her that she must revalidate her billing privileges.  She contends that the contractor sent these notices to Petitioner’s previous employer.  She

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acknowledges that the notices were sent to the previous employer because her address of record with the contractor was not updated when she changed employers in October 2016.

Additionally, Petitioner asserts that she attempted on three occasions between January 4 and February 12, 2018 to reactivate her billing privileges but that she sent the first two attempts by mail and the contractor claims never to have received them.1

These contentions effectively are challenges by Petitioner to the contractor’s decisions to deactivate her billing privileges and to reject her January 3, 2018 application to reactivate them.  As I have explained, I lack any authority to consider these challenges.  I may only decide whether the contractor reactivated Petitioner’s billing privileges consistent with the application for reactivation that she completed on February 12, 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 has acted in good faith and should not be penalized inasmuch as she attempted to do the right thing.

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.  Indeed, Petitioner’s hands are not entirely clean in this matter.  When Petitioner changed employers in 2016 she had the duty to advise the contractor of her change in business address.  She may not benefit from her failure to do so.

• 1. There is an apparent error in Petitioner’s reply to CMS’s motion. Petitioner asserts that she attempted to file applications for reactivation three times between January 4 and February 12, 2017. That clearly is the wrong year given the undisputed facts.