Anthony J. Lama, MD, APMC, DAB CR5397 (2019)

DECISION

Novitas Solutions, Inc. (Novitas), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reactivated the Medicare enrollment and billing privileges of Anthony J. Lama, M.D., APMC1 (Petitioner) effective June 2, 2017, creating a gap in his billing privileges from May 25, 2017, through June 1, 2017. On reconsideration, Novitas affirmed that it was imposing a gap in Petitioner's billing privileges and Petitioner appealed. Because June 2, 2017, is the date Novitas received the revalidation application it was able to process to approval, the effective date of reactivation of Petitioner's billing privileges is June 2, 2017.

I. Background

Petitioner is a physician practicing in New Orleans, Louisiana, who was enrolled in the Medicare program. See, e.g., CMS Exhibit (Ex.) 8 at 1. On January 9, 2017, Novitas notified Petitioner that he needed to revalidate his Medicare enrollment by March 31,

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2017. CMS Ex. 1 at 1. Petitioner submitted an incomplete revalidation application on March 27, 2017. CMS Ex. 2. In an April 17, 2017 email, Novitas informed Petitioner that his application was incomplete and he needed to submit additional information by May 17, 2017. CMS Ex. 3.

On May 25, 2017, Novitas informed Petitioner that his Medicare billing privileges were deactivated on May 25, 2017, because he did not respond to Novitas' request for additional information. CMS Ex. 4 at 1. In response, on June 2, 2017, Petitioner submitted a completed revalidation application. CMS Ex. 5. In an initial determination dated June 13, 2017, Novitas informed Petitioner that his revalidation application had been approved and that his "[e]ffective date" was "May 23, 2008." CMS Ex. 6. Novitas did not explain that it was imposing a gap in billing or otherwise acknowledge that it had deactivated Petitioner's billing privileges for any period of time. Id. Nor did Novitas determine that Petitioner's date of reactivation was anything other than "May 23, 2008." Id.

Although the initial determination did not mention deactivation or a gap in billing privileges, Novitas did deactivate Petitioner's billing privileges. See CMS Br. at 1. Petitioner evidently became aware of the gap in his billing privileges, because he timely submitted a request for reconsideration to Novitas. CMS Ex. 7. In his request for reconsideration, Petitioner asked that his billing privileges be reactivated on the date of deactivation, May 25, 2017. Id. at 4. Petitioner explained that he had not received Novitas' request for additional information. Id. On September 12, 2017, Novitas issued its reconsidered determination explicitly imposing a gap in Petitioner's billing privileges from May 25, 2017, through June 1, 2017.2 CMS Ex. 8 at 2. The reconsidered determination stated:

Novitas Solutions is not granting you ... a new Medicare effective date. The gap in coverage is applied when a provider/supplier is non-responsive to a revalidation request. The gap is between the deactivation and reactivation of billing privileges, with the reactivation effective date being based on the receipt date of the [revalidation] application.

Id. In seeming contradiction to this explanation, the reconsidered determination also stated that Petitioner's revalidation "application was approved . . . reinstating your Medicare billing privileges back to the original effective date [i.e. May 23, 2008]." Id.

Petitioner timely requested a hearing before an administrative law judge to challenge Novitas' unfavorable reconsidered decision. Request for Hearing (RFH). The case was

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assigned to me and I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) that required each party to file a pre-hearing exchange consisting of a brief and any supporting documents, including any Motion to Dismiss or Motion for Summary Judgment. Pre-Hearing Order ¶ 4. On December 6, 2017, CMS timely submitted its pre‑hearing exchange, which includes its motion for summary judgment (CMS Br.) and eight exhibits (CMS Exs. 1-8).

Petitioner did not timely file a pre-hearing exchange, and I therefore ordered him to show cause why he failed to comply with my Pre-Hearing Order. Petitioner responded, explaining that he failed to submit a pre-hearing exchange because he thought he could rely on the documents he previously submitted to Novitas. I treat Petitioner's response to the show cause order as his brief (P. Br.) and find good cause to accept it for filing out of time. Petitioner did not file any exhibits with his brief.

Petitioner did not object to the exhibits offered by CMS. Therefore, in the absence of objection, I admit CMS Exs. 1-8. Neither CMS nor Petitioner offered the written direct testimony of any witness as part of the pre-hearing exchange. As I informed the parties in my Pre-Hearing Order "[a]n in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine." Pre-Hearing Order ¶ 10. Therefore, an in-person hearing is not necessary, and I decide this case based on the parties' written submissions, without regard to whether the standards for summary judgment are satisfied.

II. Issue

Whether Novitas, acting on behalf of CMS, properly established June 2, 2017, 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 items or services" under the Medicare provisions of the Act. Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).

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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 "Enroll/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 consistent with 42 C.F.R. § 424.520(d) and may permit retrospective billing as provided in 42 C.F.R. § 424.521. CMS sets the effective date of enrollment in accordance with the following:

The effective date for billing privileges for physicians, non‑physician practitioners, physician and non-physician practitioner organizations, and ambulance suppliers is the later of—

(1) The date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or

(2) The date that the supplier first began furnishing services at a new practice location.

42 C.F.R. § 424.520(d).

B. Findings of Fact and Conclusions of Law3

1. On June 2, 2017, Novitas received Petitioner's application to reactivate his Medicare billing privileges and subsequently approved that application.

2. The effective date of reactivation for Petitioner's Medicare billing privileges is June 2, 2017.

The effective date for Medicare billing privileges for physicians, such as Petitioner, is either: 1) the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or 2) 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

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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).

Novitas received a revalidation application from Petitioner on June 2, 2017. CMS Ex. 5 at 2. Novitas subsequently approved that application. CMS Ex. 6; CMS Ex. 8. Accordingly, as required by regulation, the effective date of reactivation of Petitioner's Medicare enrollment is June 2, 2017. To the extent Novitas' initial or reconsidered determinations can be read as setting Petitioner's effective date of Medicare enrollment as May 23, 2008, this effective date is not supported by the regulations and I reverse it for that reason.

In support of his position that I should grant him an earlier effective date of reactivation, Petitioner argues that he never received Novitas' email request for additional information. P. Br. at 1. Petitioner explains that his preferred method of communication is mail and his "mail service has been very inconsistent lately," because his mail courier was on vacation. RFH. Petitioner also contends that he should not be held accountable for his late response to Novitas' request for additional information because the CMS helpdesk provided him with "misleading information." P. Br. at 1. Further, Petitioner states that he "is a solo practitioner and this billing gap would cause a financial hardship on his practice ... as the majority of [his] patients have Medicare." RFH. However, as I explain in the following sections of this decision, Petitioner's arguments concern issues that are beyond my jurisdiction to hear and decide.

3. I have no authority to review Novitas' decision to deactivate Petitioner's billing privileges.

Novitas deactivated Petitioner's Medicare enrollment and billing privileges effective May 25, 2017, because Petitioner failed to provide additional information which Novitas requested. CMS Ex. 4. Petitioner does not explicitly argue that Novitas' deactivation decision was wrong. However, Petitioner does so implicitly by asking that his effective date of reactivation be changed to coincide with the date Novitas deactivated his Medicare billing privileges, thus eliminating the period of deactivation.

Petitioner argues that he never received Novitas' email request for additional information. P. Br. at 1. Specifically, Petitioner claims his preferred method of communication is mail and his "mail service has been very inconsistent lately," since his mail carrier was on vacation. RFH. Yet, even assuming that Petitioner did not receive Novitas' email

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request for additional information,4 this is not a basis to conclude that Novitas erred in setting the effective date of reactivation for Petitioner's Medicare billing privileges. Whether Petitioner received Novitas' request for additional information is only relevant to whether Novitas acted properly in deactivating Petitioner's billing privileges. However, I do not have jurisdiction to review Novitas' deactivation of Petitioner's Medicare billing privileges, because deactivation is not an "initial determination" and deactivation decisions have a separate review process. See 42 C.F.R. §§ 424.545(a), (b), 498.3(b); see also Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017).

4. I cannot grant Petitioner equitable relief.

Finally, Petitioner contends that I should grant him an earlier effective date because CMS's help desk provided "misleading information" and a later effective date will cause a "financial hardship" to his practice. P. Br. at 1; RFH at 2. Petitioner's arguments amount to a request for equitable relief. However, I may not set aside the lawful exercise of discretion by CMS or its contractor based on principles of equity. See US Ultrasound, DAB No. 2302, at 8 (2010); Cent. Kan. Cancer Inst., DAB No. 2749 at 10 (2016); see also James Shepard, M.D., DAB No. 2793 at 9 (2017).

V. Conclusion

For the reasons explained above, I find and conclude that the effective date of reactivation of Petitioner's Medicare enrollment and billing privileges is June 2, 2017. To the extent Novitas' reconsidered determination might be read as setting Petitioner's effective date of enrollment as May 23, 2008, that date is not supported by the regulations and, accordingly, I reverse it.

• 1.Technically, Petitioner in this case is the professional corporation of which Dr. Lama is the sole owner. See CMS Exhibit 2 at 2. In this decision, I use "Petitioner" collectively to refer to the individual and his corporate alter-ego.
• 2.It is Novitas' reconsidered determination that I review in these proceedings. 42 C.F.R. § 498.5(l)(2); see also Neb Group of Arizona LLC, DAB No. 2573 at 7 (2014).
• 3.My findings of fact and conclusions of law appear as numbered headings in bold italic type.
• 4.Petitioner's representative does not exclude the possibility that Novitas' request may have reached her email address, but was routed to a junk file. P. Br. at 1. Moreover, Petitioner's assertion that he prefers to be contacted by mail is undercut somewhat by the fact that he (or his representative) entered his representative's personal email address on his enrollment application when identifying her as the "enrollment application contact person." See CMS Ex. 2 at 4 (section #13).