Nelson Keller, D.P.M., DAB CR5320 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a CMS contractor, deactivated the Medicare billing privileges of Nelson Keller, D.P.M. (Petitioner) from March 9, 2017 through March 30, 2017, reactivating Petitioner's billing privileges on March 31, 2017. Petitioner requested an administrative law judge (ALJ) hearing to dispute this period of deactivation. The parties have submitted argument and evidence related to the deactivation and reactivation of Petitioner's billing privileges. However, CMS moves for summary judgment, asserting that the facts related to Petitioner's reactivation are not in dispute and that the issue of the effective date of reactivation is the only one over which I have jurisdiction. In essence, CMS asserts that while I can review the end date of a period of deactivation (i.e., the effective date for reactivation), I have no authority to review the beginning of the deactivation period (i.e., the decision when and why a supplier is deactivated).

I grant CMS's motion for summary judgment. Although ALJs have jurisdiction to review the effective date of Medicare enrollment and billing privileges, and by extension the effective date of the reactivation of billing privileges, deactivation decisions are not initial determinations appealable to an ALJ. Because the correct effective date for reactivation turns on the date that CMS received Petitioner's enrollment application that

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CMS was able to process and approve, and because there is no dispute that the earliest date on which the CMS contractor received Petitioner's enrollment application was March 31, 2017, I affirm CMS's reconsidered determination that identified March 31, 2017, as the effective date of reactivation of billing privileges.

I. Background and Procedural History

Petitioner is a podiatrist who was enrolled in the Medicare program as a supplier prior to 2016. CMS Exhibits (Exs. 1, 4).

In a March 9, 2017 notice directed to Petitioner, a CMS contractor stated:

We have stopped your Medicare billing privileges on 03/09/2017, because you haven't revalidated your enrollment record with us, or you didn't respond to our requests for more information. We will not pay any claims after this date.

CMS Ex. 5 at 1 (emphasis in original). The notice stated that Petitioner could recover his billing privileges by revalidating his enrollment record online or by submitting a CMS‑855 enrollment form. CMS Ex. 5 at 1. At the end of March 2017, Petitioner submitted documents electronically and by mail as his enrollment application to revalidate his enrollment information and to reactivate his billing privileges. CMS Ex. 6. On April 3, 2017, Petitioner also sent through overnight mail a completed CMS-855I (enrollment application) and CMS-885R (reassignment of Medicare benefits application). CMS Ex. 8.

In an April 27, 2017 initial determination, the CMS contractor informed Petitioner that the contractor approved his revalidation enrollment application with an effective date of January 1, 2015. CMS Ex. 7 at 1. In a May 30, 2017 notice, the CMS contractor approved what the contractor called Petitioner's "Change of Information Medicare enrollment application," again showing an effective date of January 1, 2015. CMS Ex. 9.

On July 7, 2017, Petitioner mailed to the CMS contractor a request for redetermination "regarding [the CMS contractor's] decision on the revalidation application for [Petitioner] that resulted in a gap in his enrollment from 03/09—03/31/2017." CMS Ex. 10 at 1, 3. The substance of the request is as follows:

The basis for us seeking redetermination of this application is primarily because the original revalidation letter was mailed to an invalid address and our office never received the communication. It was not until our claims were rejected that we became aware there was an issue and we immediately sought to correct it. Additionally, in a letter dated

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04/27/2017, [the CMS contractor] advised us that the application was approved with an effective date of 01/01/2015, so we assumed all was well.... It was not until we began receiving rejections for the claims dated 03/09-03/31/2017 which prompted our phone call to [the CMS contractor] where we learned that there was indeed an issue.

CMS Ex. 10 at 3.

The CMS contractor interpreted Petitioner's correspondence as a request for reconsideration related to a gap in coverage from March 9, 2017 through March 30, 2017, and issued an unfavorable reconsidered determination on August 30, 2017. CMS Ex. 11 at 1. The reconsidered determination stated:

[T]he effective date shall be based on the receipt date of the application that is successfully processed to completion, which, here was April 27, 2017. Additionally, there shall be a gap in coverage between the deactivation and reactivation of billing privileges. Therefore, [the CMS contractor] correctly deactivated [Petitioner's] Medicare billing privileges within 25 days of the due date of the initial development request, which resulted in a billing lapse in coverage from March 9, 2017 through March 30, 2017.

[The CMS contractor] concludes that there is no error made in the determination of neither the effective date nor the gap in billing privileges.

CMS Ex. 11 at 2.

Petitioner requested an ALJ hearing to dispute the reconsidered determination. In that request, Petitioner asserted that he did not receive the revalidation request from the CMS contractor in 2016 because it was mailed to "an invalid address." Further, Petitioner asserted that he had been provided incorrect information from one of the CMS contractor's representatives concerning how Petitioner should change his address with CMS.

The case was originally assigned to Judge Bill Thomas, who issued an Acknowledgment and Prehearing Order (Order) on October 26, 2017. In response to that Order, CMS filed a prehearing brief and motion for summary judgment (CMS Br.), along with 11 exhibits (CMS Exs. 1-11). Petitioner filed a prehearing brief and opposition to summary judgement (P. Br.), along with four exhibits (P. Exs. 1-4), three of which are declarations from witnesses. CMS subsequently objected to P. Ex. 2 as new evidence that Petitioner

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submitted without good cause, and to P. Exs. 1, 2, and 4 on relevancy grounds. CMS also requested to cross-examine Petitioner's witnesses if the motion for summary judgement was denied.

On November 20, 2018, the case was transferred to me.

II. Issues

1. Whether summary judgment is appropriate.
2. Whether CMS had a legitimate basis to assign March 31, 2017, as the effective date for reactivation of Petitioner's Medicare billing privileges.

III. Jurisdiction

I have jurisdiction to hear and decide the effective date for reactivation of Medicare billing privileges. See 42 C.F.R. § 498.3(b)(15).

IV. Evidentiary Ruling

I admit all of CMS's proposed exhibits into the record because Petitioner did not object to any of them. Order ¶ 7; Civil Remedies Division Procedures (CRDP) § 14(e).

Petitioner submitted P. Ex. 2 for the first time during the prehearing submission process in this case, i.e., Petitioner did not submit this document with his reconsideration request. See CMS Ex. 10. Petitioner asserts that this document, dated January 12, 2017, was an electronic notification to Petitioner's practice as a result of Medicare claims that had been submitted. P. Br. at 3. In pertinent part, this document states that Petitioner's Medicare enrollment was due for revalidation, and that a failure to respond could result in a "hold on payments" and "possible deactivation of [Petitioner's] enrollment." P. Ex. 2.

CMS argues, in its January 9, 2018 Objections to Petitioner's New Documentary Evidence and Related Witness Testimony, that I may only accept a document from Petitioner if he shows good cause why he had not submitted the document at an earlier stage in the appeal process. Further, CMS asserts that P. Ex. 2 relates only to the legitimacy of the deactivation that the CMS contractor imposed, which is not an issue over which I have jurisdiction. As a result, CMS requests exclusion of P. Ex. 2, as well as the portions of the affidavits from Petitioner's witnesses (P. Exs. 1 and 4) that discuss P. Ex. 2.

Petitioner admits that P. Ex. 2 is being submitted for the first time at the ALJ level of appeal, but Petitioner asserts that there is good cause for its late submission because the relevancy of this document was not apparent until the CMS contractor issued its

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reconsidered determination. Petitioner says that "[t]he exclusion of this exhibit would amount to a miscarriage of justice, due to its bearing on when [Petitioner and his practice] actually received notice that [Petitioner] was due for revalidation, an issue which is at the heart of this proceeding." P. Br. at 3 n.1.

CMS is correct that Petitioner cannot submit new evidence at the ALJ level of appeal without showing good cause. 42 C.F.R. §§ 405.803(c), 498.56(e). But, I agree with Petitioner that the CMS contractor's initial determination gave Petitioner no reason to believe that a gap in billing privileges continued to exist.  Therefore, Petitioner has good cause to submit this document.

However, I exclude P. Ex. 2 because, for reasons explained in detail below, the deactivation of Petitioner's billing privileges is not an issue over which I have jurisdiction and, therefore, evidence as to why the deactivation is improper is not relevant to this case. For the same reason, I exclude the witness affidavits that Petitioner submitted for himself and Sheree Newton. P. Exs. 1 and 4. These affidavits focus on when Petitioner became aware of the need to revalidate in order to avoid the deactivation. They do not provide any evidence concerning the only issue over which I have jurisdiction, the effective date of reactivation following the submission of a revalidation enrollment application.

I will admit the affidavit of Wendy Jackson, the Administrative and IT Director of the practice that Petitioner is associated with, but only as to paragraph 1 and the last clause of paragraph 3, which provide background information about Ms. Jackson and Ms. Jackson's statement that Petitioner submitted his revalidation application on March 31, 2017. P. Ex. 3. That last clause of paragraph 3 is relevant because the only issue I have jurisdiction to decide is the effective date of reactivation, which, as explained below, turns on the date that an enrollment application was received by the CMS contractor.

I am to "receive[] in evidence the testimony of witnesses and any documents that are relevant and material." 42 C.F.R. § 498.60(b). Therefore, I sustain CMS's objection to P. Exs. 1, 2, and 4 and exclude them from the record. I also admit P Ex. 3 into the record to receive relevant evidence in that affidavit. See 42 C.F.R. § 498.61.

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

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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 podiatrist is considered a "physician" for Medicare program purposes. 42 U.S.C. § 1395x(r).

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 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. Summary judgment in CMS's favor is appropriate.

When appropriate, an ALJ may decide a case arising under 42 C.F.R. part 498 by summary judgment. Livingston Care Ctr. v. U.S. Dep't of Health & Human Servs., 388 F.3d 168, 172 (6th Cir. 2004) (citing Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 749-50 (6th Cir. 2004)); see also Cedar Lake Nursing Home v. U.S. Dep't of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010); Fal-Meridian, Inc. v. U.S. Dep't of Health & Human Servs., 604 F.3d 445, 449-50 (7th Cir. 2010). "Matters presented to the ALJ for summary judgment will follow Rule 56 of the Federal Rules of Civil Procedure and federal case law ...." CRDP § 19(a).

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As stated by the United States Supreme Court:

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment ‘shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

To determine whether there are genuine issues of material fact for an in-person hearing, the ALJ must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor. Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (citations omitted). To defeat a well-pleaded motion for summary judgment, the non-moving party must come forward with some evidence of a dispute concerning a material fact; mere denials in its pleadings are not sufficient. Id.

In the present case, Petitioner asserts that there is a dispute of fact because "there is a genuine dispute that the June 3, 2016 letter informing [Petitioner] of the need to recertify his enrollment, was actually received, a dispute that is supported by evidence." P. Br. at 8. Petitioner's argument focuses on the date Petitioner received notice of the need to revalidate and the amount of time the regulations permit, from receipt of the notice, to file a revalidation enrollment application to avoid deactivation. P. Br. at 4-5. However, Petitioner does not dispute that the CMS contractor actually deactivated Petitioner, albeit improperly, and that Petitioner submitted his revalidation enrollment application on March 31, 2017 to reactivate his Medicare billing privileges. Petitioner also does not dispute that the CMS contractor approved the revalidation enrollment application that he submitted on March 31, 2017.

I accept as true for purposes of summary judgment that Petitioner did not receive the June 3, 2016 notice from the CMS contractor to revalidate his enrollment information. I also accept as true for purposes of summary judgment that Petitioner submitted his revalidation enrollment application within 90 days of receiving actual notice that Petitioner needed to revalidate his enrollment information.

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2. The effective date for Petitioner's Medicare billing privileges is March 31, 2017.

A podiatrist is considered a "physician" for Medicare program purposes. 42 U.S.C. § 1395x(r). 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 policy 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 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, in the reconsidered determination, properly determined that the last day of Petitioner's deactivation was March 30, 2017, meaning that Petitioner's billing privileges were reactivated as of March 31, 2017. CMS Ex. 11 at 2. This is because both parties agree that Petitioner submitted, and the CMS contractor received, Petitioner's revalidation enrollment application to reactivate his billing privileges on March 31, 2017. P. Br. at 3; Hearing Request at 2; P. Ex. 3 ¶ 3; CMS Br. at 3; CMS Ex. 10 at 3; CMS Ex. 11 at 1; see also CMS Ex. 6. Further, there is no dispute that the CMS contractor approved the revalidation enrollment application received on March 31, 2017. P. Br. at 3; Hearing Request at 2; CMS Br. at 3; CMS Ex. 7; CMS Ex. 10 at 3. Therefore, March 31, 2017 is the proper effective date for reactivation of Petitioner's billing privileges. Willie Goffney, Jr., M.D.,DAB No. 2763 at 7 (2017).

Petitioner asserts that the CMS contractor's initial determination set an effective date of January 1, 2015. CMS Ex. 7. Although this is true, the reconsidered determination modified the effective date of reactivation to March 31, 2017 (CMS Ex. 11), and it is the reconsidered determination that an ALJ reviews in supplier enrollment cases, and not the initial determination. Neb Group of Arizona LLC, DAB No. 2573 at 7 (2014); see also 42 C.F.R. § 498.24(c) (indicating that a reconsidered determination may modify or affirm the initial determination); 42 C.F.R. § 498.25(c)(b) (indicating that a reconsidered determination is binding unless reversed or modified by a hearing decision or is revised by CMS).

To the extent that the reconsidered determination can be read to indicate that the reactivation effective date was April 27, 2017 (CMS Ex. 11 at 2), I modify that effective date to March 31, 2017. I consider the reference to April 27, 2017, in the reconsidered determination to be a typographical error because this is the date that the CMS contractor issued its initial determination regarding the reactivation effective date. See CMS Ex. 7.

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The reconsidered determination clearly set March 30, 2017, as the last day of the deactivation period. CMS Ex. 11 at 2.

As mentioned earlier, Petitioner wants me to consider whether Petitioner filed his revalidation enrollment application within 90 days to avoid deactivation under 42 C.F.R. § 424.540(a). P. Br. at 4. However, I have limited jurisdiction in this case. I 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); 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 and deactivated its billing privileges as a result of that alleged inaction. CMS Exs. 4-5. Due to the regulatory framework discussed above, I am precluded from considering whether this deactivation was proper because I have no jurisdiction to do so.

VI. Conclusion

I grant summary judgment for CMS and affirm March 31, 2017 as Petitioner's effective date for the reactivation of his Medicare billing privileges.