Wesley J. Nord, MD, DAB CR5361 (2019)

DECISION

The effective date of reactivation of Petitioner's billing privileges is April 25, 2017. Petitioner is entitled to a period for retrospective billing beginning 30 days prior to the effective date of reactivation of Petitioner's billing privileges.

I. Background and Findings of Fact

On August 4, 2017, Petitioner, Wesley J. Nord, MD, requested administrative law judge (ALJ) review of the July 25, 2017 reconsidered determination of Noridian Healthcare Solutions, the Medicare administrative contractor (MAC). Request for Hearing (RFH); Centers for Medicare & Medicaid Services (CMS) Exhibit (CMS Ex.) 1. The reconsidered determination upheld an initial determination by the MAC that the reactivation of Petitioner's billing privileges was effective on April 25, 2017, a date after the date of the deactivation of Petitioner's billing privileges on February 21, 2017. CMS Ex. 1 at 2. Petitioner complains that the gap in billing privileges from February 21 through April 24, 2017, resulted in Petitioner not being paid for services rendered to Medicare-eligible beneficiaries during the gap period. CMS Ex. 10.

CMS filed a motion for summary judgment (CMS Br.) with CMS Exs. 1 through 13 on September 8, 2017. Petitioner filed a response in opposition to the CMS motion for

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summary judgment (P. Opp.) on October 24, 2017, with no exhibits. CMS filed a reply brief on October 27, 2017. On January 9, 2018, I ordered CMS to respond to specified issues and gave Petitioner the option of responding. Both CMS and Petitioner responded on January 19, 2018. Petitioner did not object to CMS Exhibits 1 through 13 and they are admitted and considered as evidence.

The material facts are not disputed. On and before February 21, 2017, Petitioner was enrolled in Medicare with billing privileges. The MAC deactivated Petitioner's billing privileges effective February 21, 2017.1 Subsequently, Petitioner submitted a revalidation application (CMS-855) that was received by the MAC on April 25, 2017. The application was processed to approval by the MAC. The MAC reactivated Petitioner's billing privileges effective April 25, 2017, based on the CMS-855 received on that date. CMS Exs. 1 at 2; 6-9. The MAC's action resulted in a gap in Petitioner's billing privileges from February 21 through April 24, 2017, during which period Petitioner was unable to obtain reimbursement from Medicare for services he delivered to Medicare-eligible beneficiaries. CMS Ex. 1 at 2. Petitioner remained enrolled in Medicare during the gap period. CMS Response to Specified Issues.

II. Issues, Conclusions of Law, and Analysis

A. Issues

Whether I have jurisdiction to review the reconsidered determination by CMS or a MAC of the effective date of reactivation of Medicare billing privileges, i.e., the right to file claims with and to receive payment from Medicare;

Whether summary judgment is appropriate; and

The effective date of reactivation.

B. Conclusions of Law and Analysis

My conclusions of law are set forth in bold text followed by my analysis applying law and policy to the undisputed facts.

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1. There is authority for ALJ review in this case, but it is limited to the effective date of reactivation of Petitioner's billing privileges, i.e., the date of reactivation of Petitioner's right to submit claims to and receive payment from Medicare for care and services delivered to Medicare eligible beneficiaries.

2. Petitioner has no right to review of the determination of the MAC or CMS to deactivate Petitioner's billing privileges.

This case involves a gap in Petitioner's billing privileges that was created when the MAC deactivated Petitioner's billing privileges, and then reactivated Petitioner's billing privileges on a later date. Petitioner's real grievance is that CMS and the MAC decline to pay Petitioner for services rendered to Medicare-eligible beneficiaries during the gap period, even though there is no dispute that Petitioner was enrolled in Medicare during the gap period.

I conclude Petitioner has no right to ALJ review of the MAC determination to deactivate Petitioner's billing privileges. Petitioner also has no right to ALJ review in this forum of the denial of payment of Petitioner's claims during the gap period. However, Petitioner does have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioner's billing privileges.

CMS or the MAC may deactivate the billing privileges of a provider or supplier for failure to do any of the following:

1. Submit a claim for 12 consecutive months;

2. Report a change in enrollment information within 90 days of the date of the change, except a change in ownership or control, which must be reported within 30 days; and

3. Give CMS or the MAC complete and accurate information and all supporting documents within 90 calendar days of a request from CMS or the MAC to submit an enrollment application or certify the accuracy of its enrollment information.

42 C.F.R. § 424.540(a).2 A provider or supplier deactivated for failure to submit a claim for 12 consecutive months may reactivate billing privileges by recertifying that all

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information on file with CMS is correct; providing any missing information; meeting all Medicare enrollment requirements; and being prepared to submit a valid claim. 42 C.F.R. § 424.540(b)(2). When deactivation is based on failure to timely notify CMS or the MAC of a change of information or to timely respond to a request for information, a provider or supplier must complete and submit a new enrollment application to reactivate its billing privileges, unless CMS or the MAC permit the provider or supplier to recertify that its enrollment information on file is correct. 42 C.F.R. § 424.540(b)(1). Deactivation of Medicare billing privileges is an action to protect the provider or supplier from misuse of its billing privileges and to protect the Medicare Trust funds from unnecessary overpayments. 42 C.F.R. § 424.540(c).

There is no right to ALJ review under 42 C.F.R. pt. 498, of a CMS or MAC determination to deactivate a provider's or supplier's billing privileges. The relevant regulation concerning appeal rights provides only that the provider or supplier may submit a rebuttal to CMS or the MAC under 42 C.F.R. § 405.374 (opportunity for rebuttal required for suspension of payments, offset, or recoupment). 42 C.F.R. § 424.545(b).

The Secretary of the Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. §§ 424.545 and 498.5 that specify review and appeal rights in provider and supplier enrollment cases. The Secretary has not specifically stated that a provider or supplier has a right to ALJ review of CMS or MAC determinations related to the reactivation of billing privileges. 42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5. However, 42 C.F.R. § 498.3(b)(15) provides that "[t]he effective date of a Medicare provider agreement or supplier approval" are initial determinations subject to review by an ALJ. The Departmental Appeals Board (Board) has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare as well as the effective date of the reactivation of billing privileges. See, e.g., Victor Alvarez, M.D., DAB No. 2325 at 3‑10 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Grp. of NJ, LLC, DAB No. 2860 at 6 (2018) (no right to review of a CMS or MAC determination to deactivate

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billing privileges but right to review of the determination of the effective date of reactivation).

Applying the reasoning of the Board in Alvarez and Urology, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of reactivation of billing privileges. Furthermore, the only determination of CMS or the MAC that is subject to my review in a provider and supplier enrollment case is the reconsidered determination. 42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. LLC, DAB No. 2573 at 7.

The Board in Urology also pointed out that Medicare claim reimbursement is not subject to review by an ALJ in this forum. DAB No. 2860 at 6-7.

3. Summary judgment is appropriate.

I have concluded, based on the rationale of the Board in prior cases, that Petitioner has a right to ALJ review of the reconsidered determination of the effective date of reactivation of his right to file claims with and receive payment from Medicare. I also conclude that there are no disputed issues of material fact that require a hearing in this case. CMS is therefore entitled to judgment as a matter of law; and summary judgment is appropriate.

Petitioner is entitled to a hearing on the record before an ALJ under the Act. Act §§ 205(b); 1866(h)(1), (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004). However, when summary judgment is appropriate, no hearing is required. The Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498. See, e.g., Crestview Parke, 373 F.3d at 748-51; 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). The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate. I advised the parties in the Acknowledgment and Prehearing Order (Prehearing Order) that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied. Prehearing Order III.G. Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg'l Med. Ctr., DAB No. 2459 at 5-6 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5-6 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).

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4. The effective date of reactivation of Petitioner's billing privileges is the date on which the MAC received the fully completed application that it processed to approval, and that date is April 25, 2017.

5. Current CMS policy requires a period of retrospective billing related to the reactivation of Medicare billing privileges.

The Secretary's regulations do not specify how to determine an effective date for the reactivation of Medicare billing privileges. 42 C.F.R. pt. 424, subpt. P. However, CMS has addressed the determination of the effective date of reactivation by policy.

CMS policies regarding deactivations and reactivations of billing privileges in effect at the time of the initial and reconsidered determinations in this case are in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, ch. 15, §§ 15.27.1.1 (deactivation) and 15.27.1.2 (reactivation) (rev. 561, eff. Mar. 18, 2015).3 MPIM § 15.27.1.2 provides that the effective date of reactivation is the date the MAC received the reactivation application that the MAC processed to completion.

The version of MPIM § 15.27.1.2 in effect at the time of the initial and reconsidered determinations did not specifically address retrospective billing. However, effective March 12, 2019, CMS changed its policy and now requires that contractors grant retrospective billing privileges in accordance with MPIM § 15.17(B) when reactivating billing privileges of a provider or supplier described in that section. MPIM § 15.27.1.2 (rev. 865, eff. Mar. 12, 2019). CMS adopted this new policy while this case is pending ALJ review and before a final administrative decision has been issued. Based on the CMS language making retrospective billing mandatory in the situations described in MPIM § 15.17(B), I conclude it is appropriate to implement the current CMS policy in this case. See Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. § 4:22 (3d ed. 2019) (generally an agency must obey its own rules and policies, particularly when intended to be binding); Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. § 5:68 (3d ed. 2019) (generally a rule or statement of policy should be given equal effect by all agency adjudicators). Petitioner is a physician and there is no dispute that he was enrolled in Medicare during the gap period and met all requirements for enrollment. Therefore, Petitioner is entitled to retrospective billing privileges for up to 30 days prior to the effective date of reactivation of billing privileges for services rendered to Medicare-eligible beneficiaries during that 30-day period. MPIM § 15.17(B)(1).

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Applying the regulations in this case is straightforward. There is no dispute that the MAC deactivated Petitioner's Medicare billing privileges on February 21, 2017. There is also no dispute that on April 25, 2017, the MAC received Petitioner's application to reactivate his Medicare billing privileges. Accordingly, the effective date of reactivation may only be April 25, 2017. The period for retrospective billing begins 30 days prior to the effective date of reactivation.

Petitioner argues he has two practice locations and the request for revalidation was only sent to one. Petitioner indicates that the second practice location, with a separate PTAN, was not notified of the need for revalidation and Petitioner was unaware of a problem until claims were denied and inquiry was made. CMS Exs. 10, 12; P. Opp. Even though I accept these allegations as true for purposes of summary judgment, these arguments relate to the decision to deactivate Petitioner's billing privileges – a decision for which Petitioner has no right to review and I have no authority to review. Petitioner's arguments may be construed to be for equitable relief or for estoppel. However, I have no authority to grant equitable relief. US Ultrasound, DAB No. 2302 at 8 (2010). Further, estoppel against the federal government, if available at all, is presumably unavailable absent "affirmative misconduct," such as fraud which is not alleged by Petitioner in this case. See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990). Therefore, Petitioner's arguments establish no basis for relief.

III. Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner's billing privileges is April 25, 2017.

• 1. CMS Ex. 5 indicates that the date of deactivation was February 20, 2017. CMS Ex. 5 at 1. However, the reconsidered determination, the determination I review (Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014)), shows that the date of deactivation was actually February 21, 2017. CMS Ex. 1 at 2.
• 2. Citations are to the October 1, 2016 revision of the Code of Federal Regulations (C.F.R.) which was in effect at the time of the initial determination, unless otherwise indicated. An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018), that the applicable regulations are those in effect at the time of the initial determination. However, the Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination. Neb Grp., DAB No. 2573 at 7.
• 3. The current CMS policy is set forth in MPIM ch. 15 § 15.27.1.2 (rev. 865, eff. Mar. 12, 2019) and provides for retrospective billing in accordance with MPIM ch. 15 § 15.17(B).