Debra Schaaf, Ph.D., DAB CR5329 (2019)

DECISION

Novitas Solutions, Inc. (Novitas), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reactivated the Medicare billing privileges of Debra Schaaf, Ph.D. (Petitioner) effective November 3, 2016 and allowed retroactive billing from October 4, 2016.  Petitioner requested a hearing before an administrative law judge to dispute this effective date.  As explained herein, Novitas correctly determined that Petitioner’s reactivated billing privileges became effective November 3, 2016.  I therefore affirm CMS’ effective date determination.

I. Background

Petitioner is a clinical psychologist enrolled in the Medicare program.  On or about February 23, 2015, Novitas issued a letter to Petitioner requesting that she revalidate her Medicare billing privileges.  Petitioner’s Exhibit (P. Ex.) 9 at 1; CMS Pre-hearing Exchange and Motion for Summary Judgment (CMS Br.) at 3.  By her account, Petitioner

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submitted a CMS-855I enrollment application on May 11, 2015, and Novitas received that application on or about May 19, 2015.  P. Ex. 9 at 1.1

In a letter dated February 11, 2016, Novitas informed Petitioner that her previously submitted application was missing required information, and that she needed to submit a new enrollment application to prevent changes to the effective date of her enrollment. CMS Ex. 13 at 1.  Petitioner asserts that she never received this notice.  P. Ex. 9 at 1.  Novitas issued two more letters to Petitioner on April 1, 2016 after she failed to respond to the February 11, 2016 notice.  One of these letters informed Petitioner that her Medicare Provider Transaction Access Number (PTAN) KN31Q485 had been deactivated effective April 1, 2016.  CMS Ex. 12 at 1.  The other letter informed Petitioner that her payments related to PTAN 640S had been put in a “Pend” status effective that day.  CMS Ex. 11 at 1.  After it received no response from Petitioner, Novitas informed Petitioner in a letter dated June 10, 2016 that the billing privileges related to PTAN 640S were deactivated effective that day.  CMS Ex. 10 at 1.  Petitioner asserts that she never received these three notices from Novitas.  P. Ex. 9 at 1-2.

Petitioner contends she first became aware of her deactivation on or about October 7, 2016, when one of her patients received notice that she was not an “authorized provider.”  Id. at 2.  Petitioner contacted Novitas that day and received a copy of the February 11, 2016 development letter by facsimile.  P. Ex. 3.  After further correspondence, Novitas faxed a copy of the April 1, 2016 deactivation letter to Petitioner as well.  P. Ex. 4.  Petitioner mailed a new CMS-855I enrollment application on November 1, 2016 that was subsequently received by Novitas on November 3, 2016.  P. Ex. 9 at 4.  In a letter dated December 21, 2016, Novitas informed Petitioner that her application was processed to approval.  CMS Ex. 6 at 1.  Novitas established Petitioner’s effective date of billing to be November 3, 2016, with the maximum period of retrospective billing allowable pursuant to 42 C.F.R. § 424.521(a)(1), back to October 4, 2016.2   Id. at 2.

In a letter dated January 19, 2017, Petitioner requested reconsideration from Novitas regarding the effective date of her billing privileges, arguing her failure to timely submit her application was caused by poor communication from Novitas’ staff.  CMS Ex. 3 at 2.  Petitioner asked Novitas to make a “one time exception” to remove the gap in her billing privileges caused by its effective date determination.  Id.  Novitas issued an unfavorable

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reconsideration determination to Petitioner in a letter dated March 23, 2017.  CMS Ex. 1 at 1-4.

Petitioner timely requested a hearing before an administrative law judge to challenge Novitas’ reconsideration decision.  On June 16, 2017, I was designated to hear and decide this case and issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) to the parties.  On July 21, 2017, CMS submitted a pre-hearing exchange which includes its motion for summary judgment and CMS Exs. 1-17.  On August 25, 2017, Petitioner submitted her brief in opposition and motion for summary judgment (P. Br.), accompanied by P. Exs. 1-10.  In the absence of objections from either party, all exhibits are admitted as evidence.

I required the parties to submit written direct testimony of any proposed witnesses as exhibits, and to affirmatively request cross-examination of opposing party witnesses if they believed it necessary.  Pre-Hearing Order at ⁋ 8-10.  Petitioner declined cross-examination of CMS’ witnesses at a hearing, while CMS filed notice of its intent to cross-examine Petitioner’s witnesses.  However, as explained below, because I am granting CMS’ motion for summary judgment, a hearing in this matter to allow for cross-examination is unnecessary.

II. Issues

Whether summary judgment is appropriate; and

Whether Novitas, acting on behalf of CMS, properly established November 3, 2016 as the effective date of reactivation of Petitioner’s Medicare billing privileges.

III. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

IV. Discussion

A. Applicable Legal Authority

The Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (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.3   Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (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 regulations define “Enrollment” as “the process that Medicare uses to establish eligibility to submit claims for Medicare-covered items and services.”  42 C.F.R. § 424.502.  A provider or supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or 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, providers and suppliers must revalidate their enrollment information at least every five years.  42 C.F.R. § 424.515.  However, CMS reserves the right to perform revalidations at any time.  42 C.F.R. § 424.515(d), (e).  When CMS notifies providers and suppliers that it is time to revalidate, the providers or suppliers must submit the appropriate enrollment application, accurate information, and supporting documentation within 60 calendar days of CMS’ notification.  42 C.F.R. § 424.515(a)(2).

CMS can deactivate an enrolled provider’s or 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 providers’ or suppliers’ 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 provider’s or supplier’s billing privileges due to an untimely response to a revalidation request, the enrolled provider or 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).

B. Findings of Fact and Conclusions of Law4

1. Summary judgment.

CMS and Petitioner have both requested summary judgment.  CMS’ determination of the effective date of a supplier’s approval to bill Medicare is an initial determination that gives a supplier a right to request a hearing and judicial review.  Act §§ 205(b), 1866

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(h)(1), (j) (42 U.S.C. §§ 405(b), 1395cc(h)(1), (j)); 42 C.F.R. § 498.3(b)(15); 498.5; Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  A party may waive appearance at an oral hearing but must do so affirmatively in writing.  42 C.F.R. § 498.66.  In this case, Petitioner has waived the right to an oral hearing, P. Br. at 11, but CMS indicated its intent to cross-examine Petitioner’s witnesses at a hearing.  Accordingly, disposition on the written record alone is not permissible, unless either party’s motion for summary judgment has merit.

Summary judgment is limited to certain specific conditions.  The Secretary’s regulations at 42 C.F.R. pt. 498 that otherwise establish adjudication procedures do not recognize summary judgment as a vehicle for resolution.  Nevertheless, the Departmental Appeals Board (Board) has long accepted summary judgment as an acceptable means to adjudicate cases arising pursuant to 42 C.F.R. pt. 498.  See, e.g., Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).

Finally, the use of summary judgment as a matter of judicial economy is well within my authority to regulate the course of proceedings.  I accordingly made it available to both parties as an alternative to litigation in this case in my Pre-hearing Order, Section 4(c)(i).

The Board has found Fed. R. Civ. Pro. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate:  summary judgment is appropriate when there is no genuine dispute as to any material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  In determining whether there are genuine issues of material fact for trial, I must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs, but instead must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven.  Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 4 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 4 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The standard for deciding a case on summary judgment differs from that used in resolving a case after a hearing.  On summary judgment, I do not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record.  Rather, on summary judgment, I construe the evidence in a light most favorable to the non-movant.  Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009).  The Board has

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recognized that on summary judgment, it is appropriate for me to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.  Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010).5

In this case, I conclude there are no genuine disputes as to any material facts pertinent to the determination of Petitioner’s effective date determination under 42 C.F.R. § 424.520(d) that require a hearing.  As explained below, even viewing the evidence before me in a light most favorable to Petitioner, I must nevertheless resolve the issues in this case against her as a matter of law.  Accordingly, summary judgment in favor of CMS is appropriate.

2. November 3, 2016 is the appropriate effective date of reactivation for Petitioner’s billing privileges.

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” of the enrollment application that was subsequently approved by the contractor 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” for paper submissions is the date on which the contractor received the application.  Medicare Program Integrity Manual (MPIM), Chapter 15.17, Rev. 676 (eff. Dec. 19, 2016).

Since Petitioner did not change practice locations, the effective date of her revalidation is governed by 42 C.F.R. § 424.520(d)(1) – the date her approved application was filed with Novitas.  Novitas received an application from Petitioner that was processed to approval on November 3, 2016.  CMS Ex. 9; CMS Ex. 6 at 1-2.  The record reflects no earlier submitted application following her deactivation.  Therefore, November 3, 2016 was the appropriate effective date for the revalidation of Petitioner’s billing privileges.  Pursuant to 42 C.F.R. § 424.521(a)(1), Novitas also granted Petitioner 30 days of retrospective billing, the maximum retroactive period permitted, which allowed her to bill Medicare for services starting on October 4, 2016.

3. I have no authority to review the deactivation of Petitioner’s billing privileges or to issue equitable relief.

Petitioner asserts that she submitted a completed application based on the “plain language” of the CMS-855I form in May 2015, and therefore that CMS had no authority

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to deactivate her billing privileges under 42 C.F.R. Part 424, Subpart D.6   P. Br. at 4-5.  She also contends the notice of her deactivation was inadequate, either because she never received various letters from the contractor or because the requests from the notice of deactivation were unintelligible.  Id. at 8-10.  Finally, she believes a “onetime exception” as a matter of equity is appropriate in this case because of confusion caused by Novitas employees over the missing information needed.7   CMS Ex. 3 at 2.

Petitioner’s first two arguments speak to the underlying deactivation of her billing privileges, as opposed to whether the effective date of her reactivated billing privileges was correctly determined.  Unfortunately, even taking Petitioner’s assertions to be true, as I am required to do when applying the summary judgment standard, I have no authority to review CMS’ deactivation of her billing privileges, because that action is not an “initial determination” under the Secretary’s regulations which can be appealed and subject to ALJ review.  See 42 C.F.R. §§ 424.545(b), 498.3(b); James Shepard, M.D., DAB No. 2793 at 8-9 (2017); Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017) (holding that a petitioner’s assertion of inadequate notice concerning revalidation “has no bearing on the legality of the effective-date determination”).  In Shepard, the Board refused to review the rejection of a supplier’s enrollment application (for which the regulations do not afford appeal rights) through an effective date dispute involving a later submitted and subsequently approved application.  Shepard, DAB No. 2793 at 8.  Similarly, Petitioner here cannot use her appeal of the effective date imposed by CMS to indirectly challenge her deactivation, which the regulations do not allow me to review.

Petitioner’s arguments for equitable relief are similarly unavailing.  I am prohibited from overturning CMS’ lawful exercise of discretion under the regulations based on equitable considerations, no matter how compelling.  See, e.g., Cent. Kan. Cancer Inst., DAB No. 2749 at 10 (2016); see also Shepard, DAB No. 2793 at 9.

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V. Conclusion

For the foregoing reasons, I affirm CMS’ determination of the effective date of Petitioner’s Medicare billing privileges to be November 3, 2016.

• 1.CMS asserts that on May 11, 2015, Novitas received an enrollment application from Petitioner dated April 10, 2015.  I need not resolve this discrepancy since these events occurred prior to the deactivation date in April 2016.
• 2.CMS correctly observes that Novitas’ reconsideration decision mistakenly refers to October 4, 2016 as the “effective date,” when it is in fact the retrospective billing date.  CMS Br. at 1 n.1.  Although CMS adopts Novitas’ mistaken characterization of October 4, 2016 as the effective date in its brief, I will refer to November 3, 2016—the date that Novitas received Petitioner’s enrollment application that was processed to approval—as the effective date of billing privileges.
• 3.Petitioner is considered a “supplier” under the Act and the accompanying regulations.
• 4.My findings of fact and conclusions of law appear as numbered headings in bold italic type.
• 5.The governing regulations at 42 C.F.R. Part 498 do not provide for the allocation of the burden of persuasion or the quantum of evidence required to satisfy that burden.  However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498.  Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 Fed. App’x 181 (6th Cir. 2005).
• 6.Contrary to Petitioner’s assertion, the authority for CMS to deactivate Petitioner’s billing privileges is found in 42 C.F.R. pt. 424, spt. P.
• 7.Petitioner appears to at least partially abandon her equitable arguments in her pre-hearing brief.  P. Br. at 5.  However, since she asserted them substantially in her request for reconsideration by Novitas, I address them here.