Todd Rehanek, DC, DAB CR5403 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a CMS contractor, determined that the effective date for reactivation of the Medicare billing privileges for Todd Rehanek, DC (Dr. Rehanek or Petitioner) was December 18, 2017.  Petitioner requested an administrative law judge (ALJ) hearing to dispute this effective date.  Because the CMS contractor received Dr. Rehanek’s revalidation enrollment application (CMS-855I) on December 18, 2017, and the CMS contractor approved that application, the CMS contractor correctly determined that the effective date for the reactivation of billing privileges was December 18, 2017.  Therefore, I affirm CMS’s determination.

I. Background and Procedural History

Dr. Rehanek had been enrolled in the Medicare program as a supplier since February 19, 1996. CMS Exhibit (Ex.) 10 at 4.  In an April 5, 2017 notice, a CMS contractor informed Dr. Rehanek that he needed to revalidate his Medicare enrollment record by June 30, 2017.  CMS Ex. 1 at 1.  This notice also stated that failure to respond to the notice could result in deactivation of Dr. Rehanek’s Medicare enrollment, causing a “gap in [his] reimbursement” during the period of deactivation.  CMS Ex. 1 at 1.

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In response to this notice, Dr. Rehanek timely submitted a revalidation enrollment application (CMS-855I). CMS Ex. 2.

In a July 21, 2017 letter, the CMS contractor informed Dr. Rehanek that it received the revalidation enrollment application.  However, the CMS contractor stated that it may reject that application unless Dr. Rehanek provided additional information that was missing from the application within 30 days.  CMS Ex. 3 at 1-2.  The CMS contractor emailed this letter to Dr. Rehanek on July 28, 2017, because the CMS contractor received information that the letter “was not delivered correctly.”  CMS Ex. 3 at 3.

On August 14, 2017, Dr. Rehanek faxed additional information to the CMS contractor regarding his revalidation enrollment application.  CMS Ex. 4.

In an August 21, 2017 notice, the CMS contractor rejected Dr. Rehanek’s revalidation enrollment application because he allegedly failed to provide a document that the CMS contractor requested in the July 21, 2017 letter.  The CMS contractor stated that Dr. Rehanek could submit a new enrollment application.  CMS Ex. 5 at 1.

In another August 21, 2017 notice, the CMS administrative contractor informed Dr. Rehanek that it had stopped Dr. Rehanek’s Medicare billing privileges as of August 21, 2017, because he had not successfully revalidated his enrollment.  The notice stated that “[w]e will not pay any claims after this date.”  CMS Ex. 5 at 3. 

On September 19, 2017, Dr. Rehanek submitted additional information to the CMS contractor related to his revalidation enrollment application, which CMS accepted as a revalidation/reactivation enrollment application.  CMS Ex. 6.  In letters dated October 13, 2017, October 17, 2017, and November 9, 2017, the CMS contractor acknowledged receipt of Dr. Rehanek’s application and gave him 30 days to provide additional information or else his application might be rejected.  CMS Ex. 7.  In a November 14, 2017 notice, the CMS contractor rejected Dr. Rehanek’s application based on his failure to provide the requested information.  CMS Ex. 8.

On December 13, 2017, Dr. Rehanek submitted a new revalidation enrollment application to the CMS contractor.  CMS Ex. 9.

In a January 25, 2018 initial determination, the CMS contractor approved Dr. Rehanek’s revalidation enrollment application.  The initial determination noted that Dr. Rehanek’s “lapse in coverage dates are August 21, 2017 through December 18, 2017.”  CMS Ex. 10 at 1.

Dr. Rehanek timely submitted a request for reconsideration.  He asserted that he had submitted all necessary information with the original revalidation enrollment application, but continued to receive notices from the CMS contractor asking for the information

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again.  Dr. Rehanek stated that he complied with those requests, but also continued to receive notices that his revalidation enrollment applications were rejected.  Ultimately, he was unable to obtain assistance from the CMS contractor in resolving this problem and sought, on reconsideration, a removal of the gap in billing privileges.  The reconsideration request also stated that attached to it were documents supporting Dr. Rehanek’s communication with the CMS contractor and the prior submission of required documentation.  CMS Ex. 11. 

On April 4, 2018, the CMS contractor issued an unfavorable reconsidered determination.  CMS Ex. 12.  In the determination, the CMS contractor stated that it correctly rejected Dr. Rehanek’s original revalidation enrollment application because he did not provide all requested information.  The reconsidered determination then stated “[t]he rejection caused a stop in billing to be applied to the enrollment effective August 21, 2017.”  CMS Ex. 12 at 3.  The reconsidered determination also stated that the subsequent rejection of Dr. Rehanek’s revalidation enrollment application was correct, but that the CMS contractor received and processed Dr. Rehanek’s final revalidation enrollment application on December 18, 2017.  Although the CMS contractor could not remove the gap in coverage, it did correct the reactivation date for billing privileges to December 18, 2017 (i.e., the last day for the gap in billing privileges would be December 17, 2017).  CMS Ex. 12 at 3; see also CMS Ex. 10 at 4. 

Petitioner timely requested an ALJ hearing to dispute the reconsidered determination.  On May 17, 2018, Judge Bill Thomas issued an Acknowledgment and Pre-Hearing Order (Order), which established a schedule for prehearing exchanges.  In response, CMS filed a brief, which included a motion for summary judgment, and 13 exhibits (CMS Exs. 1-13).  Petitioner submitted a brief and five exhibits (P. Exs. 1-5).  CMS filed objections to Petitioner’s proposed exhibits and Petitioner filed an opposition to the objections.

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

II. Decision on the Written Record

I admit all of the proposed exhibits into the record. 

Petitioner did not object to any of CMS’s exhibits.  CMS objected to P. Ex. 2 at 4-5, 9, 11-12 and P. Ex. 3 as new evidence for which Petitioner provided no good cause for its admission.  In the alternative, CMS objected to the documents as irrelevant.  Petitioner opposed CMS’s objection, indicating that the evidence was not new.

Petitioner is correct.  P. Ex. 2 at 4-5 and P. Ex. 3 are copies of confirmation sheets showing that Petitioner faxed the CMS contractor documents on August 14, 2017.  The reconsidered determination acknowledged, among the documents submitted by Petitioner, receipt of “fax confirmation dated August 14, 2017.”  CMS Ex. 12 at 2. 

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Further, CMS’s objections to P. Ex. 2 at 9 and 11 as new evidence are incorrect because CMS filed these same documents as CMS Ex. 2 at 18 and 20, respectively.  Finally, CMS objected to P. Ex. 2 at 12 as new evidence, which is a copy of a voided check.  Although a copy of the check does not appear elsewhere in the record, I note that Petitioner, indicated that he previously sent it to the CMS contractor as early as August 2017.  CMS Ex. 4 at 1, 3.

Further, to the extent CMS argues these are not relevant documents, I note that they were part of the record on reconsideration, making them appropriate exhibits in this case.  Therefore, I overrule CMS’s evidentiary objections. 

The Order advised the parties that they must submit written direct testimony for each proposed witness and that an in-person hearing would only be necessary if the opposing party requested an opportunity to cross-examine a witness.  Order ¶¶ 8-11; Civil Remedies Division Procedures (CRDP) §§ 16(b), 19(b), (d); Vandalia Park, DAB No. 1940 (2004); Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross‑examine those witnesses).  Neither party submitted written direct testimony for any witnesses; therefore, I render this decision based on the written record.

III. Issue

Whether CMS had a legitimate basis to assign December 18, 2017, as the effective date for the reactivation of Petitioner’s Medicare billing privileges.

IV. Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R § 498.3(b)(15); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); see also 42 U.S.C. § 1395cc(j)(8).

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 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 supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  “Enroll/Enrollment means the process that

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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. Petitioner submitted a revalidation enrollment application (CMS-855I) via mail on December 13, 2017, which was received by the CMS contractor on December 18, 2017.  The CMS contractor ultimately approved that enrollment application. 

Petitioner submitted his last revalidation enrollment application to the CMS contractor by mail on December 13, 2017.  CMS Ex. 9 at 28.  CMS indicated that it received the revalidation enrollment application on December 18, 2017.  CMS Ex. 12 at 3.  Petitioner does not dispute this receipt date.  CMS approved this revalidation enrollment application on January 25, 2018.  CMS Ex. 10 at 1.

2. The effective date for Petitioner’s Medicare billing privileges is December 18, 2017.

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 a Medicare enrollment application that is subsequently approved or the date the supplier first began furnishing services at a new practice location. 42 C.F.R.

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§ 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 guidance for contractors states that the effective date for the reactivation of Medicare billing privileges is the date on which the contractor received the enrollment application.  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 initially determined that Petitioner’s effective date for reactivation of its Medicare billing privileges was December 19, 2017 (i.e., the gap in billing privileges was in effect through December 18, 2017).  CMS Ex. 10 at 1.  However, on reconsideration, the CMS contractor modified the effective date of reactivation to December 18, 2017 (i.e., the gap in billing privileges was in effect through December 17, 2017).  CMS Ex. 12 at 3; see also CMS Ex. 10 at 4.  The CMS contractor correctly applied the regulations in the reconsidered determination.  

Although a December 18, 2017 reactivation effective date reduces the gap in billing privileges by a day, Petitioner seeks in this case to remove the gap in Medicare billing privileges entirely.  In his submissions, Petitioner asserts that his original revalidation enrollment application was complete and should not have been rejected.  Petitioner also details numerous calls with the CMS contractor’s representatives in an attempt to complete the revalidation process without a gap in billing privileges. 

I do not have the authority to review the CMS contractor’s decisions to reject Petitioner’s first and second revalidation enrollment applications.  CMS’s rejection of an enrollment application is not subject to administrative review.  42 C.F.R. § 424.525(d). 

I also do not have the authority to review CMS’s decision to deactivate Petitioner’s Medicare billing privileges because 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); see also Willie Goffney, Jr., M.D., DAB No. 2763 at 4­-5 (2017). 

Further, to the extent that Petitioner requests that I provide an earlier effective date because CMS contractor personnel were unhelpful or failed to assist Petitioner in resolving his revalidation issues, I do not have authority to provide equitable relief based on principles of fairness or equitable estoppel and thus cannot change Petitioner’s effective date for that reason.  US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).

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As stated above in the Issue and Jurisdiction sections of this decision, I only have authority to decide whether the date of reactivation of Petitioner’s billing privileges is correct based on the facts in this case and the law.  Arkansas Health Group d/b/a Baptist Health Family Clinic Lakewood, DAB No. 2929 at 12 (2019) (“Where, as here, the contractor deactivated Petitioner’s billing privileges, the issue for us (and the ALJ) is the effective date of reactivation.”).

VI. Conclusion

I affirm CMS’s determination that Petitioner’s effective date for Medicare billing privileges is December 18, 2017.