South Hills Obstetrical and Gynecologic Associates, DAB CR5271 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a CMS contractor, determined that the effective date for reactivation of the Medicare billing privileges for South Hills Obstetrical and Gynecologic Associates (South Hills or Petitioner) was December 5, 2016. South Hills requested an administrative law judge (ALJ) hearing to dispute this effective date. Because CMS's contractor approved South Hills's revalidation enrollment application that it received on December 5, 2016, the CMS contractor correctly determined that the effective date for the reactivation of billing privileges was December 5, 2016. Therefore, I affirm CMS's determination.

I. Background and Procedural History

South Hills, a physician group practice, was enrolled in the Medicare program as a supplier prior to 2016. CMS Exhibit (Ex.) 3 at 1. In an April 13, 2016 notice sent to South Hills, a CMS contractor stated that South Hills needed to revalidate its Medicare enrollment record by June 30, 2016. The notice also stated that a failure to respond to the notice could result in deactivation of South Hills's Medicare enrollment, causing "a gap in [its] reimbursement" during the period of deactivation. CMS Ex. 9 at 1.

Page 2

In response to the notice, South Hills submitted a CMS-855I enrollment application that was signed on June 30, 2016. CMS Ex. 8.

In a July 14, 2016 letter, the CMS contractor informed South Hills that it received South Hills's CMS-855I enrollment application; however, it also stated that South Hills needed to submit a CMS-855B application. The letter said that if South Hills failed to submit the new application within 30 days, the CMS contractor might reject South Hills's prior application. CMS Ex. 7 at 1.

In a September 9, 2016 notice, the CMS contractor stated that it deactivated South Hills's Medicare billing privileges as of September 9, 2016, because South Hills did not respond to the request for additional information (i.e., the request to submit a CMS-855B enrollment application). The notice said that CMS "will not pay any claims after this date." CMS Ex. 6 at 1.

On September 19, 2016, South Hills sent a letter stating that it had submitted a revalidation application on June 28, 2016, and then again on July 16 with a signed supplier agreement. However, South Hills said that it sent those documents to CMS and not the CMS contractor. South Hills also stated that it was re-executing the form and was sending it to the CMS contactor. CMS Ex. 5.

On December 5, 2016, the CMS contractor received from South Hills a CMS-855B enrollment application. CMS Ex. 4 at 2. In a January 11, 2017 initial determination, the CMS contractor reactivated South Hills's billing privileges effective December 5, 2016. CMS Ex. 3 at 1.

In its timely filed reconsideration request, South Hills stated that it had submitted a CMS-855B enrollment application by fax to the CMS contractor, but "[n]othing ever came of that submission." CMS Ex. 2 at 1. South Hills also said that after receiving the deactivation letter, "[a]nother attempt was made to correct the original mistake to no avail." CMS Ex. 2 at 1. South Hills acknowledged its initial error, but stated that it was requesting a September 9, 2016 revalidation effective date because "care was provided to patients and the physicians should be reimbursed because they were credentialed with Medicare the entire time." CMS Ex. 2 at 1.

On April 20, 2017, the CMS contractor issued an unfavorable reconsidered determination. CMS Ex. 1. Petitioner requested a hearing to dispute that determination. The case was originally assigned to Judge Keith Sickendick for hearing and decision. On July 24, 2017, Judge Sickendick issued an Acknowledgment and Prehearing Order (Order), which established a submission schedule for prehearing exchanges. In response, CMS filed a motion for summary judgment with a brief in support of the motion (CMS Br.) and nine exhibits (CMS Exs. 1-9). Petitioner submitted a response (P. Br.) with no exhibits. On November 20, 2018, the case was transferred to me.

Page 3

II. Decision on the Written Record

I admit all of CMS's proposed exhibits into the record because Petitioner did not object to any of them.

The Order required each party to include with its prehearing exchange a list of any witnesses that it proposed to call at an oral hearing. Order § II(D)(1), (2); Civil Remedies Division Procedures (CRDP) § 16(a). CMS expressly stated on its witness list that it would offer no witnesses in this case. Petitioner neither filed a witness list nor indicated in its filings that it had any witnesses. Therefore, I issue this decision based on the written record because "the parties d[id] not identify any proposed witnesses." CRDP § 19(d).

III. Issue

Whether CMS had a legitimate basis to assign December 5, 2016, as the effective date for reactivation of South Hills's Medicare billing privileges.

IV. Jurisdiction

I have jurisdiction to hear and decide this case. 42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8)

V. Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law are set forth in italics and bold font.

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers. 42 U.S.C. §§ 1302, 1395cc(j). A "supplier" is "a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services" under the Medicare provisions of the Act. 42 U.S.C. § 1395x(d); see also 42 U.S.C. § 1395x(u).

A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services. 42 C.F.R. § 424.505. The terms "Enroll/Enrollment means the process that Medicare uses to establish eligibility to submit claims for Medicare‑covered items and services." 42 C.F.R. § 424.502. A supplier seeking billing privileges under the Medicare program must "submit enrollment information on the applicable enrollment application. Once the . . . supplier successfully completes the enrollment process . . . CMS enrolls the ... supplier into the Medicare program." 42 C.F.R. § 424.510(a). CMS then establishes an effective date for billing privileges under the requirements stated in

Page 4

42 C.F.R. § 424.520(d) and may permit limited retrospective billing under 42 C.F.R. § 424.521.

To maintain Medicare billing privileges, suppliers must revalidate their enrollment information at least every five years; however, CMS reserves the right to require revalidation at any time. 42 C.F.R. § 424.515. When CMS notifies suppliers that it is time to revalidate, the suppliers must submit the appropriate enrollment application, accurate information, and supporting documents within 60 calendar days of CMS's notification. 42 C.F.R. § 424.515(a)(2).

CMS can deactivate an enrolled supplier's Medicare billing privileges if the enrollee fails to comply with revalidation requirements. 42 C.F.R. § 424.540(a)(3). When CMS deactivates a supplier's Medicare billing privileges, "[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary." 42 C.F.R. § 424.555(b). If CMS deactivates a supplier's billing privileges due to an untimely response to a revalidation request, the enrolled supplier may apply for CMS to reactivate its Medicare billing privileges by completing a new enrollment application or, if deemed appropriate, recertifying its enrollment information that is on file. 42 C.F.R. § 424.540(b)(1).

1. On December 5, 2016, the CMS administrative contractor received Petitioner's enrollment application (CMS‑855B), which the CMS administrative contractor ultimately approved.

South Hills submitted a CMS‑855B enrollment application to revalidate its enrollment as a supplier in the Medicare program, which CMS received on December 5, 2016. CMS Ex. 4. The CMS contractor approved South Hills's application and reactivated its Medicare billing privileges, effective December 5, 2016. CMS Ex. 3.

2. The effective date for Petitioner's Medicare billing privileges is December 5, 2016.

The effective date for Medicare billing privileges for physicians, non‑physician practitioners, and physician or non‑physician practitioner organizations is the later of the "date of filing" or the date the supplier first began furnishing services at a new practice location. 42 C.F.R. § 424.520(d). The "date of filing" is the date that the Medicare contractor "receives" a signed enrollment application that the Medicare contractor is able to process to approval. 73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D.,DAB No. 2685 at 8 (2016). CMS's published guidance for its contractors states that the effective date for the reactivation of Medicare billing privileges is the date on which the contractor received the enrollment application which was processed to completion. Medicare Program Integrity Manual (MPIM) § 15.27.1.2. That guidance is

Page 5

consistent with the effective date for Medicare billing privileges in § 424.520(d) and with § 424.555(b)'s prohibition on reimbursing services performed by deactivated suppliers.

In the present case, the CMS contractor properly determined that South Hills's effective date for reactivation of its Medicare billing privileges was December 5, 2016, because that is the date that CMS received South Hills's CMS-855B revalidation enrollment application that the CMS contractor ultimately approved.

In its submission, Petitioner asserts that after receiving the letter from the CMS contractor to file a CMS-855B, a CMS-855B was submitted in July 2016; however, "[p]roof of mailing cannot be located." P. Br. at 1. Petitioner also asserts that the Medicare contractor was never available to assist Petitioner with navigating the revalidation process. P. Br. at 1.

I have limited jurisdiction in this case. I can only review the effective date provided to Petitioner under § 424.520(d). That regulation provides an effective date as the date CMS received an enrollment application that it was able to process to completion. In the present case, the record only shows CMS received one enrollment application that CMS was able to process to completion and approve – the CMS-855B enrollment application received on December 5, 2016. Therefore, December 5, 2016, is the correct effective date.

I do not have the authority to review whether CMS properly rejected the CMS-855I enrollment application Petitioner previously submitted. CMS's rejection of an enrollment application is not subject to administrative review. 42 C.F.R. § 424.525(d).

I also do not have the authority to review CMS's deactivation of Petitioner's Medicare billing privileges. Deactivation is not an "initial determination" subject to appeal, and deactivation decisions have a separate review process involving the submission of a rebuttal to CMS. See 42 C.F.R. §§ 424.545(b), 498.3(b); see also Willie Goffney, Jr., M.D.,DAB No. 2763 at 4-5 (2017).

In this case, CMS found that Petitioner did not respond to its request for additional information (i.e., the request for a completed CMS-855B enrollment application) and deactivated its billing privileges as a result of that alleged inaction. Given the regulatory framework discussed above, I am precluded from considering whether this deactivation was proper because I have no jurisdiction to do so.

Further, to the extent that Petitioner requests that I provide an earlier effective date due to the alleged unhelpfulness of the CMS contractor or because Petitioner provided services to Medicare beneficiaries, I am unable to grant such a request. I do not have authority to provide equitable relief based on principles of fairness and thus cannot change Petitioner's effective date for that reason. US Ultrasound, DAB No. 2302 at 8 (2010)

Page 6

("[n]either the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.").

VI. Conclusion

I affirm CMS's determination that Petitioner's effective date for Medicare billing privileges is December 5, 2016.