Abdallah E. Zamaria, MD and Barbara Henike, MD, PC, DAB CR5537 (2020)

DECISION

The effective date of reactivation of Petitioner's billing privileges is June 6, 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 November 21, 2017, Petitioner, a physician practice group, requested administrative law judge (ALJ) review of the September 21, 2017 reconsidered determination of Wisconsin Physicians Service Insurance Corporation, the Medicare Administrative Contractor (MAC). The reconsidered determination upheld an initial determination by the MAC that the reactivation of Petitioner's billing privileges was effective on June 6, 2017. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 3. The reconsidered determination changed the deactivation date of Petitioner's billing privileges from January 31, 2017 to February 14, 2017. CMS Ex. 1 at 3. Petitioner complains that the resulting gap in billing privileges from February 14, 2017 through June 5, 2017, resulted in Petitioner not being paid for services rendered to Medicare-eligible beneficiaries during the gap period. CMS filed a motion for summary judgment on January 10, 2018, with CMS Exs. 1 through 32. Petitioner filed a response in

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opposition to the CMS motion for summary judgment on April 23, 2018 (P. Br.) with no exhibits. CMS filed a reply brief on May 4, 2018.

Petitioner has not objected to CMS Exs. 1 through 32, which are admitted and considered as evidence.

The material facts are not disputed. Petitioner was enrolled in Medicare with billing privileges. The MAC sent Petitioner a letter dated November 16, 2016, advising Petitioner that it must revalidate its Medicare enrollment no later than January 31, 2017. The MAC advised Petitioner that if it failed to revalidate its Medicare enrollment, its enrollment and billing privileges may be deactivated. CMS Ex. 2. The MAC advised Petitioner by letter dated February 8, 2017, that Petitioner's Medicare payments were being held because Petitioner had failed to revalidate its enrollment. The MAC further advised Petitioner that its enrollment could be deactivated, with no payment for services rendered during the deactivation period, if it failed to respond. CMS Ex. 3. Petitioner submitted a revalidation application (CMS-855B) to the MAC dated March 2, 2017. CMS Ex. 4. Development request letters were sent to Petitioner dated March 6, 2017, March 22, 2017, and March 27, 2017, requesting that Petitioner provide additional information and documentation. CMS Exs. 5, 6, and 8. In the March 27, 2017 letter, the MAC advised Petitioner that if it failed to submit a complete revalidation application and supporting documents in 24 days, Petitioner's billing privileges would be deactivated. CMS Ex. 8 at 1. On April 11, 2017, the MAC notified Petitioner that its Medicare revalidation application was rejected. CMS Ex. 9. The MAC advised Petitioner by separate letter dated April 11, 2017, that Petitioner's billing privileges were deactivated effective January 31, 2017. CMS Ex. 10. Petitioner submitted another revalidation application received by the MAC on April 21, 2017 (CMS Ex. 11), that was rejected on May 26, 2017 (CMS Ex. 17). Petitioner submitted another application received by the MAC on June 6, 2017 (CMS Exs. 1, 18), that was rejected on July 12, 2017 (CMS Ex. 23). Subsequently on August 8, 2017, the MAC notified Petitioner that its enrollment application was approved with a gap in Medicare billing privileges from January 1, 2017 to June 5, 2017. CMS Ex. 30. Petitioner requested reconsideration by letter dated August 15, 2017. CMS Ex. 31. A MAC hearing officer issued a reconsidered determination on September 21, 2017. The hearing officer upheld the reactivation effective date determination of June 6, 2017, the date the MAC received the application it initially rejected July 12, 2017, but ultimately processed to approval. However, the hearing officer determined the gap in billing privileges should have been February 14, 2017 through June 5, 2017. CMS Ex. 1 at 3.

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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; 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.

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 ALJ 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.

For the following reasons, 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. Petitioner does have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioner's billing privileges.

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The Secretary of the Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. pt. 4241 that establish a process for enrolling providers and suppliers in Medicare. Pursuant to the regulations, CMS or the MAC may deactivate the billing privileges of an enrolled 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 calendar days of the date of the change, except a change in ownership or control, which must be reported within 30 calendar 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). A provider or supplier deactivated for failure to submit a claim for 12 consecutive months may reactivate billing privileges by recertifying that all 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)(1)-(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 permits the provider or supplier to recertify that its enrollment information on file is correct. 42 C.F.R. § 424.540(b)(1)-(2). Deactivation of Medicare billing privileges is 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).

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Under 42 C.F.R. pt. 498, there is no right to ALJ review 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 regulations also specifically provide that there is no right to request review of a MAC or CMS determination to reject an enrollment application. 42 C.F.R. § 424.525(d). I conclude Petitioner has no right to ALJ review of the MAC determination to deactivate Petitioner's billing privileges. I also conclude that Petitioner has no right to ALJ review in this forum of the denial of payment of Petitioner's claims during the gap period. Medicare claim reimbursement is simply not subject to review by an ALJ in this forum. Urology Grp. of NJ, LLC, DAB No. 2860 at 6-7 (2018). Petitioner does have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioner's billing privileges.

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" is an initial determination subject to review by an ALJ. The 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 3-12 (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 (no right to review of a CMS or MAC determination to deactivate 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 or 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 (2014).

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 its right to file claims with and receive payment from Medicare. I also conclude that there are no disputed issues of material fact related to the reactivation of Petitioner's billing privileges that require a hearing in this case; CMS is entitled to judgment as a matter of law and summary judgment is appropriate.

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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 ¶¶ II.D. & 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 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).

4. The effective date of reactivation of Petitioner's billing privileges is the date on which the MAC received the application that it processed to approval, and that date is June 6, 2017.

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

6. Petitioner is entitled to retrospective billing beginning 30 days prior to the effective date of reactivation of its Medicare billing privileges.

The Secretary's regulations do not specifically address how to determine an effective date for the "reactivation" of Medicare billing privileges. 42 C.F.R. pt. 424, subpt. P.2 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 found in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, §§ 15.27.1.1

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(deactivation) and 15.27.1.2 (reactivation) (rev. 561, eff. Mar. 18, 2015). 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. In this case, there is no dispute that the MAC received the application processed to completion on June 6, 2017.

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) (rev. eff. Mar. 12, 2019) when reactivating billing privileges of a provider or supplier described in that section. MPIM §§ 15.27.1.1-.2 (rev. 865, eff. Mar. 12, 2019). CMS adopted this new policy while this case was pending ALJ review and before a final administrative decision was 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. Generally, an agency must obey its own rules and policies, particularly when intended to be binding, and a rule or statement of policy should be given equal effect by all agency adjudicators. Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. §§ 4:22, 5:68 (3d ed. 2019). Petitioner is a physician practitioner organization and there is no dispute that it 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).

Applying the regulations in this case is straightforward. There is no dispute, based on the reconsidered determination, that Petitioner's Medicare billing privileges were deactivated effective February 14, 2017. There is also no dispute that on June 6, 2017, the MAC received Petitioner's application to reactivate its Medicare billing privileges. Accordingly, the effective date of reactivation may only be June 6, 2017. Furthermore, the period for retrospective billing begins 30 days prior to the effective date of reactivation on May 7, 2017.

Petitioner argues that the gap period, as determined by the MAC applying CMS policy, "deprives Petitioner of a period of billing privileges without the due process provided by the Social Security Act." P. Br. at 2. Petitioner reasons that the regulations provide that deactivation of billing privileges is to have no effect upon a provider's or supplier's participation in Medicare. Petitioner argues further that, contrary to the Secretary's regulation, the CMS policy applied by the MAC clearly deprives Petitioner of its right to bill for services delivered to Medicare beneficiaries during the gap period, while Petitioner remained enrolled in Medicare. Petitioner incorrectly argues that it cannot appeal the reactivation effective date. However, it is correct that Petitioner cannot obtain review of the determination to deactivate its billing privileges, which resulted in the

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denial of the right to receive payment for services rendered during the gap period. P. Br. at 2, 7-9. In Urology, the Board rejected a similar due process argument that the CMS action creating a gap in billing privileges resulted in an unlawful deprivation of property without due process. Urology, DAB No. 2860. The Board recognized it could not declare statutes or regulations unconstitutional and decline to follow them. However, the Board noted it could consider a constitutional claim that challenges the manner a regulation is interpreted or applied in a particular case. The Board found that the gap in billing privileges resulted from the plain language of the regulations that bound the Board. The Board commented that Urology should have been aware of the application of the regulations when applying to participate in Medicare. The Board found Urology failed to show a "taking" of Medicare payments in which it had a property right. The Board commented that the creation of the gap was really petitioner's own fault. Urology, DAB No. 2860 at 14-15. The Board found that Urology was not deprived of its Medicare enrollment because it was not revoked or excluded. The Board stated that Urology was not challenging loss of participation in Medicare but, rather, the inability to receive reimbursement for services Urology "chose to provide" to Medicare-eligible beneficiaries during the gap period after it had been advised its billing privileges were deactivated. Id. at 15. The Board reviewed various decisions of the federal courts and concluded the petitioner had no property interest in participation in the Medicare program. Id. at 15-16. The Board did not recognize a protectable property interest in payment for services rendered during the gap period. Based on the Board's reasoning in Urology, I conclude Petitioner's arguments are of little or no avail.3

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Petitioner's arguments may also be construed to be requests for equitable relief or application of estoppel. I have no authority to grant equitable relief. US Ultrasound, DAB No. 2302 at 8 (2010). Estoppel against the federal government, if available at all, is presumably unavailable absent "affirmative misconduct," such as fraud, and no such allegation exists 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). 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 June 6, 2017.

• 1. Citations are to the October 1, 2016 revision of the Code of Federal Regulations (C.F.R.) that 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 or supplier enrollment case such as this is the reconsidered determination. Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014).
• 2. However, the effective date for Medicare billing privileges is determined in accordance with 42 C.F.R. § 424.520.
• 3. Arguably, the effect of the MAC and CMS deactivation of billing privileges could also be viewed as a de facto revocation of Medicare enrollment. A provider or supplier is denied the ability to bill for services rendered to Medicare-eligible beneficiaries during the period of deactivation and is required to submit a new enrollment application that must be approved by the MAC or CMS in order to reinstate billing privileges. The distinction between deactivation and the inability to receive payment for services rendered during the gap period under current CMS policy and a revocation pursuant to the regulations, is that the deactivated provider or supplier is not subject to the minimum one-year reenrollment bar that must be imposed on revocation. However, deactivation, which admittedly avoids the reenrollment bar and saves the Medicare Trust Fund money, is without the due process protections that would be afforded in a revocation proceeding. Furthermore, the CMS policy was adopted without notice and comment rulemaking. If deactivation is viewed as a de facto revocation, arguably the Board would find itself bound to comply with the Secretary's regulations that provide for ALJ and Board review of a revocation.