Carol J. Davis, DC, d/b/a Denali Chiropractic Clinic, DAB CR5338 (2019)

DECISION

Petitioner's Medicare billing privileges were deactivated on June 5, 2017, as a result of her failure to timely comply with a request that she revalidate her Medicare enrollment. For the reasons discussed below, I conclude that the effective date of Petitioner's reactivated Medicare billing privileges remains June 20, 2017.

I. Background and Procedural History

On January 13, 2017, Noridian Healthcare Solutions (Noridian), a Medicare administrative contractor, sent a letter to Petitioner, a chiropractor, requesting that she revalidate her Medicare enrollment no later than March 31, 2017. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 5; see CMS Ex. 1 at 13. Noridian instructed Petitioner to "update or confirm all the information in [her] record ...." CMS Ex. 1 at 5. Noridian cautioned Petitioner that if "[her] enrollment is deactivated," she "will not be paid for services rendered during the period of deactivation" which "will cause a gap in [her] reimbursement." CMS Ex. 1 at 5.

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On April 28, 2017, Noridian sent Petitioner a letter informing her that it had not received a revalidation application by the March 31, 2017 deadline. CMS Ex. 1 at 7. Noridian again warned Petitioner that her billing privileges could be deactivated, which would cause a gap in her reimbursement. CMS Ex. 1 at 7. 

On June 20, 2017, Noridian sent a letter to Petitioner informing her that it had stopped her billing privileges effective June 5, 2017, because she had not revalidated her enrollment record. CMS Ex. 1 at 9. That same day, on June 20, 2017, Petitioner submitted a revalidation application, Form CMS-855I, via the internet-based Provider, Enrollment, Chain, and Ownership System (PECOS). CMS Ex. 1 at 11-16.

In a letter dated July 25, 2017, Noridian informed Petitioner that it had approved her revalidation application and reactivated her billing privileges, but that she had a "lapse in coverage" from June 5 through 19, 2017. CMS Ex. 1 at 17-19.

Petitioner submitted a request for reconsideration, dated August 17, 2017, in which she stated the following:

There was a lapse in coverage dates from June 5, 2017 thru June 19, 2017. I had difficulty revalidating, which required several phone calls and emails and have done so successfully as of June 20, 2017. I request that services provided on the dates June 5, 2017 thru June 19, 2017 be covered.

CMS Ex. 1 at 21.

Noridian issued a reconsidered determination on October 25, 2017, in which it maintained the June 20, 2017 effective date of Petitioner's reactivated billing privileges. CMS Ex. 1 at 1-3. Noridian explained the following:

[On] January 13, 2017 a revalidation notice was mailed to the provider stating the enrollment needed to be revalidated by March 31, 2017. [On] April 28, 2017 a past due letter was mailed due to the enrollment not being revalidated. [On] June 5, 2017 the enrollment had a stop in billing applied due to no response to the revalidation request and a letter was mailed June 20, 2017.

[On] June 20, 2017 [an 855I] web revalidation/reactivation application was received and was processed. This application released the stop in billing with an end date of June 19, 2017. Under 42 [C.F.R. § ]424.520(d) the effective date is the date the contractor receives the application that is processed. Reactivations are not eligible for retrospective billing under 42 [C.F.R. § ]424.521.

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The request to remove the gap in billing cannot be honored due to the enrollment not being revalidated by March 31, 2017.

CMS Ex. 1 at 2.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on November 20, 2017, along with supporting documents. ALJ Keith W. Sickendick issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on December 14, 2017, at which time he directed the parties to file their respective pre-hearing exchanges.1 CMS filed a Motion for Summary Judgment and Pre-Hearing Brief (CMS Br.), along with one proposed exhibit (CMS Ex. 1). Despite the issuance of a show cause order for Petitioner's failure to timely file a pre-hearing exchange, Petitioner did not file a pre-hearing exchange or response to CMS's brief and motion for summary judgment; rather, Petitioner submitted a filing in which she reported she had nothing else to submit. In the absence of any objections, I admit CMS Ex. 1 into the evidentiary record.

A hearing for the purpose of cross-examination is unnecessary because neither party has identified any proposed witnesses who would testify at an oral hearing. Pre-Hearing Order, § II.D. I consider the record in this case to be closed, and the matter is ready for a decision on the merits.2

II. Issue

Whether CMS had a legitimate basis to assign Petitioner a June 20, 2017 effective date for her reactivated Medicare billing privileges.

III. Jurisdiction

I have jurisdiction to decide this case. 42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

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IV. Findings of Fact, Conclusions of Law, and Analysis3

1. On January 13, 2017, Noridian requested that Petitioner revalidate her Medicare enrollment no later than March 31, 2017.

2. On April 28, 2017, after it did not timely receive a revalidation application, Noridian reminded Petitioner to revalidate her Medicare enrollment in order to avoid a gap in billing privileges.

3. On June 20, 2017, after Petitioner did not timely submit a revalidation application, Noridian sent a letter to Petitioner notifying her that it had deactivated her billing privileges on June 5, 2017.

4. On June 20, 2017, Petitioner submitted an enrollment application for purposes of revalidation.

5. On July 25, 2017, Noridian approved the revalidation application and assigned a June 20, 2017 effective date for reactivated Medicare billing privileges. 

6. An effective date earlier than June 20, 2017, is not warranted for the reactivation of Petitioner's Medicare enrollment and billing privileges.

As a chiropractor, Petitioner is a "supplier" for purposes of the Medicare program. See CMS Ex. 1 at 11; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier); 498.2. A "supplier" furnishes items or services under Medicare and the term applies to physicians or other practitioners that are not included within the definition of the phrase "provider of services." 42 U.S.C. § 1395x(d). 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 at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program. 42 C.F.R. §§ 424.510-424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program). A supplier who seeks billing privileges under Medicare "must submit enrollment information on the applicable enrollment application." 42 C.F.R. § 424.510(a)(1). "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)(1); see also 42 C.F.R. § 424.510(d) (listing enrollment requirements). Thereafter, "[t]o maintain Medicare billing privileges, a ... supplier ... must resubmit and recertify the accuracy of its enrollment information every 5 years."

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42 C.F.R. § 424.515. Further, a supplier "may be required to revalidate their enrollment outside the routine 5-year revalidation cycle." 42 C.F.R. § 424.515(e).

CMS is authorized to deactivate an enrolled supplier's Medicare billing privileges if the enrollee does not provide complete and accurate information within 90 days of a request for such information. 42 C.F.R. § 424.540(a)(3). If 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); Urology Grp. of NJ, LLC, DAB No. 2860 at 10 (2018) ("The regulations, taken together, clearly establish that a deactivated provider or supplier was not intended to be entitled to Medicare reimbursement for services rendered during the period of deactivation."). Further, and quite significantly, the Departmental Appeals Board (DAB) has unambiguously stated that "[i]t is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated." Willie Goffney, Jr., M.D., DAB No. 2763 at 6 (2017); see Urology Grp., DAB No. 2860 at 11 ("Taking [the] unique effects of revocation into consideration, it is reasonable to conclude that CMS intended for revocations and deactivations to share the feature of precluding a provider or supplier from collecting reimbursement for services rendered during the period of inactive Medicare billing privileges, while simultaneously intending for revocations to have more severe consequences on a provider's or supplier's ability to participate."); Frederick Brodeur, M.D., DAB No. 2857 at 16 (2018) ("Allowing a deactivated supplier to bill for services furnished during a period of deactivation would conflict with section 424.555(b) of the regulations ...."). The regulation authorizing deactivation explains that "[d]eactivation of Medicare billing privileges is considered an action to protect the provider or supplier from misuse of its billing number and to protect the Medicare Trust Funds from unnecessary overpayments." 42 C.F.R. § 424.540(c).

On January 13, 2017, Noridian mailed a letter to Petitioner directing her to revalidate her Medicare enrollment record no later than March 31, 2017, and Noridian warned that Petitioner's failure to revalidate could result in deactivation of her Medicare billing privileges, with a resulting gap in reimbursement. CMS Ex. 1 at 5. After Petitioner did not submit an enrollment application, even after Noridian sent her a reminder notice on April 28, 2017, Noridian deactivated Petitioner's billing privileges on June 5, 2017.

The pertinent regulation with respect to the effective date of reactivation is 42 C.F.R. § 424.520(d). Urology Grp., DAB No. 2860 at 7 ("The governing authority to determine the effective date for reactivation of Petitioner's Medicare billing privileges is 42 C.F.R. § 424.520(d)" (italics omitted).). Section 424.520(d) states that "[t]he effective date for billing privileges for physicians, non-physician practitioners, physician and non-physician practitioner organizations ... is the later of – (1) [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) [t]he date that the supplier first began furnishing services at a new

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practice location." The DAB has explained that the "date of filing" is the date "that an application, however sent to a contractor, is actually received." Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 5 (2016) (emphasis omitted). Noridian deactivated Petitioner's billing privileges because she did not submit a revalidation application in response to the revalidation request, and on June 20, 2017, Petitioner electronically filed an application for purposes of revalidation and reactivation that was processed to approval. CMS Ex. 1 at 9-16. Based on the June 20, 2017 receipt date of the enrollment application that was processed to approval, Noridian did not err in assigning a June 20, 2017 effective date for reactivated billing privileges. 42 C.F.R. § 424.520(d); see Urology Grp., DAB No. 2860 at 9 ("Moreover, the fact that a supplier must file a new enrollment application in order to reactivate its billing privileges is consistent with the language of section 424.520(d) and compelling evidence that the provision should apply to reactivations."); Willie Goffney, DAB No. 2763 at 6 ("It is certainly true that [the petitioner] may not receive payment for claims for services during any period when [its] billing privileges were deactivated."); Frederick Brodeur, DAB No. 2857 at 16 ("Petitioner remained enrolled in Medicare, but his deactivated status made [him] ineligible for payment for any covered services he furnished to otherwise eligible Medicare beneficiaries, pursuant to section 424.555(b), until he provided the information necessary to reactivate his billing privileges.").

Petitioner is challenging the assignment of a June 20, 2017 effective date of her reactivated billing privileges, which resulted in a two-week gap in her Medicare billing privileges. The deactivation of Petitioner's billing privileges on June 5, 2017, based on her failure to comply with a revalidation request, is not reviewable. Willie Goffney, DAB No. 2763 at 5 (stating no regulation provides appeal rights with respect to the contractor's deactivation); Frederick Brodeur, DAB No. 2857 at 12 ("A contractor's deactivation decision is not an initial determination subject to ALJ or [DAB] review."). I can only review the effective date assigned for Petitioner's reactivated billing privileges, and Petitioner has not presented evidence that the June 20, 2017 effective date of reactivation was inappropriate. Pursuant to 42 C.F.R. § 424.520(d), Noridian had a legitimate basis to assign an effective date of June 20, 2017, for Petitioner's reactivated billing privileges.

I again point out that I do not have the authority to review the deactivation of Petitioner's billing privileges, and the scope of my review is limited to whether Noridian assigned the correct effective date when it reactivated Petitioner's billing privileges. See Frederick Brodeur, DAB No. 2857 at 12. Nonetheless, I note that despite repeated warnings that failure to revalidate would cause a stoppage of her billing privileges, Petitioner did not submit a revalidation application that could be processed to approval until June 20, 2017. CMS Ex. 1 at 5, 7, 11, 17. Even if I had authority to review the deactivation of Petitioner's billing privileges, Petitioner has not shown that Noridian erred when it deactivated her billing privileges. In fact, Petitioner's failure to timely revalidate is attributable to factors that were within her control.

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Petitioner argues in her request for hearing that during the time period she was given to revalidate, "multiple other things were taking priority of [her] attention: the death of a loved one, someone had robbed [her] office of fuel oil-twice in one week, [she] got married, and a vast array [of] computer problems." Petitioner added that she is a solo practitioner and she handles many tasks herself, such as serving as the receptionist and janitor, shoveling snow, mowing the lawn, handling billing, coding, patient accounting, and follow-up calls, all while working as a chiropractor. Petitioner states: "What I am not is a computer IT person." Petitioner acknowledges that she "would hit walls" while trying to revalidate through PECOS, and she "acknowledge[d] that [she] didn't work on re-validation daily, maybe not even weekly." Petitioner attributes her failure to timely revalidate on other matters that warranted her time and attention, along with her difficulties using a computer.

I recognize that Petitioner has many responsibilities as a solo practitioner. However, Petitioner was given more than two months to revalidate her enrollment, and she did not submit her enrollment application for nearly three months after the deadline to do so. While I understand that Petitioner is very busy, Noridian allowed nearly five months from the date of the revalidation request until it deactivated her billing privileges for failure to revalidate her enrollment record.

I also recognize that Petitioner has reported she has difficulties using a computer, and Judge Sickendick recognized the same and granted her a waiver of the electronic filing requirement. I point out that Noridian did not require Petitioner to revalidate via PECOS, and it gave her the option to submit a paper enrollment application to revalidate her enrollment. See CMS Ex. 1 at 5 (January 2017 revalidation request informing her that she could revalidate through PECOS or by submitting a paper Form CMS-855 application); CMS Ex. 1 at 7 (April 2017 reminder letter once again informing Petitioner that she could revalidate through PECOS or by submitting a paper Form CMS-855 application). Petitioner did not exercise the option to submit a paper application, and her failure to timely revalidate her enrollment is not due to any error by Noridian or her reported computer difficulties.

To the extent that Petitioner's request for relief is based on principles of equitable relief, I cannot grant such relief.4 US Ultrasound, DAB No. 2302 at 8 (2010) ("Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a

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supplier who does not meet statutory or regulatory requirements."). Petitioner points to no authority by which I may grant her relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) ("An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground ....").

Noridian had a legitimate basis to deactivate Petitioner's billing privileges when she failed to respond to the revalidation request, and it had a legitimate basis to assign a June 20, 2017 effective date for her reactivated billing privileges based on the date she submitted the enrollment application that was ultimately processed to approval. 42 C.F.R. § 424.520(d).

V. Conclusion

For the foregoing reasons, I uphold the June 20, 2017 effective date of Petitioner's reactivated Medicare billing privileges.

• 1. This case was reassigned to me on May 1, 2019.
• 2. Because the parties have not identified any witnesses and a hearing is unnecessary, I need not address whether summary judgment is appropriate.
• 3. Findings of fact and conclusions of law are in italics and bold font.
• 4. In a January 2018 letter, which Petitioner submitted with her waiver request, Petitioner discussed that "[t]he amount of claims involved is only about $665, a goodly sum for me, probably less than the government has spent on attorneys ...." There currently is no minimum monetary threshold that triggers a party's right to file a request for a hearing. To the extent that I construe that Petitioner believes that the amount of unreimbursed claims is an equitable factor for consideration, I lack any statutory or regulatory basis to take such a factor into account.