Ronald B. Tye, Psy.D. and Ronald B. Tye, Psy.D. Associates PA, DAB CR5543 (2020)

1

DECISION

I affirm the determination of Noridian Healthcare Solutions (Noridian), a contractor for the Centers for Medicare & Medicaid Services (CMS), that the effective date for revalidation/reactivation of Petitioners’ Medicare enrollment and billing privileges is September 25, 2018. 

Page 2

I. Procedural History

On March 15, 2019, Noridian issued a reconsidered determination related to the revalidation/reactivation effective date of Petitioners’ Medicare billing privileges.  Petitioners timely requested an ALJ hearing to dispute the reconsidered determination.  On April 24, 2019, the Civil Remedies Division (CRD) issued an acknowledgment of the hearing request and my Standing Prehearing Order.  In response, CMS filed a motion for summary judgment with a brief in support of the motion (CMS Br.) and 9 exhibits (CMS Exs. 1-9).  Two days later, CMS filed a substitute document for CMS Ex. 4.  Because Petitioners did not submit a prehearing exchange, I issued an Order to Show Cause.  Petitioners responded that they expected to rest their case on the documents already submitted.  Petitioners submitted a brief (P. Br.) and a document with their response that CMS had already filed as CMS Ex. 8 at 16-17. 

II. Decision on the Written Record

I admit CMS Exs. 1-9 into the record without objection.  Standing Prehearing Order ¶ 10; CRD Procedures § 14(e). 

The Standing Prehearing Order advised the parties to submit written direct testimony for each witness and that an in-person hearing would only be held if a party requested to cross-examine a witness.  Standing Prehearing Order ¶¶ 10-13; CRD Procedures §§ 16(b), 19(b).  Neither party offered any written direct testimony.  Therefore, I issue this decision based on the written record.  Standing Prehearing Order ¶ 14; CRD Procedures § 19(d).

III. Issue

Whether CMS had a legitimate basis to assign September 25, 2018, as the effective date for the revalidation/reactivation of Petitioners’ Medicare enrollment and billing privileges. 

IV. Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R §§ 498.3(b)(15), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).

V. Findings of Fact and Conclusions of Law

1. In a January 2, 2018 notice, Noridian notified Ronald B. Tye, Psy.D. (Dr. Tye) that his practice, Ronald B. Tye, Psy.D. Associates PA (Dr. Tye’s practice) needed to revalidate its Medicare enrollment.  The notice stated that Dr. Tye needed to submit, by March 31, 2018, a CMS-855 enrollment application, either by paper or

Page 3

electronically through the Provider Enrollment, Chain, and Ownership System (PECOS).  The notice warned that a failure to respond to the notice could result in deactivation of Medicare enrollment.  It further explained that during deactivation, Medicare will not pay for the services rendered and that this will cause “a gap” in reimbursement.”  CMS Ex. 1.

2. In an April 9, 2018 notice, Noridian informed Dr. Tye that it had not received a response to Noridian’s revalidation notice.  The notice stated that Dr. Tye needed to revalidate his enrollment by submitting a CMS-855 application.  CMS Ex. 2.

3. On May 23, 2018, Noridian received a revalidation enrollment application from Dr. Tye filed through PECOS.  CMS Ex. 3.

4. In a June 12, 2018 email, Noridian notified Petitioners that it had received the electronically filed CMS-855 application; however, Dr. Tye needed to submit a copy of his diploma and another CMS-855 application to revalidate the enrollment of Dr. Tye’s practice simultaneously with Dr. Tye’s individual enrollment.  Noridian stated that Petitioners had until June 27, 2018, to file these documents.  CMS Ex. 4.

5. In a July 13, 2018 notice, Noridian informed Petitioners that it rejected the previously filed CMS-855 application to revalidate Dr. Tye’s individual enrollment because Dr. Tye did not submit a CMS-855B application to revalidate Dr. Tye’s practice, as requested by Noridian.  CMS Ex. 5 at 4.

6. In another July 13, 2018 notice, Noridian informed Petitioners that Noridian deactivated their Medicare billing privileges as of June 13, 2018, because they had not revalidated their enrollments.  CMS Ex. 5 at 2; CMS Ex. 8 at 20.

7. On July 16, 2018, Petitioners submitted revalidation enrollment applications to Noridian through PECOS.  CMS Ex. 8 at 16-17, 23-24.

8. On July 16, 2018, the PECOS system sent Petitioners a request to provide E-signatures on the revalidation enrollment applications.  CMS Ex. 8 at 25; see CMS Ex. 8 at 23-24.

9. On September 21, 2018, Noridian rejected Petitioners’ revalidation enrollment applications because of a failure to submit electronic signatures for the revalidation enrollment applications.  CMS Ex. 8 at 21-22.

10. On September 25, 2018, Noridian received electronically signed enrollment applications through PECOS for Dr. Tye and Dr. Tye’s practice to revalidate their Medicare enrollments.  CMS Ex. 6 at 1-2; CMS Ex. 8 at 8, 10, 13-14.

Page 4

11. In two initial determinations dated November 12, 2018, Noridian approved the revalidation enrollment applications for Dr. Tye and Dr. Tye’s practice.  CMS Ex. 7; see CMS Ex. 8 at 6-7.  The initial determinations stated that there was a gap in billing privileges from June 13, 2018 through September 24, 2018, for failing to timely submit revalidation applications.  CMS Ex. 7 at 1, 5.

12. In December 2018, Petitioners requested that Noridian reconsider the initial determinations.  CMS Ex. 8.

13. In a March 15, 2019 reconsidered determination, Noridian upheld its previous conclusion that Petitioners had a gap in Medicare billing privileges from June 13, 2018, through September 24, 2018.  CMS Ex. 9.  

14. Based on the foregoing factual findings, I conclude that the effective date of the reactivation/revalidation of Petitioners’ Medicare billing privileges is September 25, 2018, because that is the date Noridian received Petitioners’ revalidation enrollment applications that Noridian subsequently approved.  42 C.F.R. § 424.520(d).

VI. Analysis

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 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,

Page 5

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 supplier 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).

In the present case, there is no dispute that Noridian received Petitioners’ revalidation enrollment applications, which Noridian later approved, on September 25, 2018.  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. § 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 7-8 (2016).  The Departmental Appeals Board has applied these effective date provisions to reactivation cases, and its decisions doing so are consistent with § 424.555(b)’s prohibition on reimbursing services while a provider or supplier is deactivated.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6-7 (2019).  Therefore, Noridian properly established September 25, 2018, as the effective date for reactivation and revalidation of billing privileges. 

Petitioners assert that staff from Dr. Tye’s practice called Noridian on July 16 and the Noridian staff member stated that Dr. Tye needed to upload his diploma to PECOS, which Dr. Tye’s staff member then did.  In September and November, Dr. Tye’s staff member called Noridian, spoke to Noridian staff, and learned that an electronic signature was missing from a revalidation application.  Petitioners state that Dr. Tye has been enrolled in Medicare for many years and has never had any previous problems with Medicare.  Petitioners request a fair resolution to the gap in billing privileges.  P. Br. at 1-2; CMS Ex. 8 at 3-4.          

I do not have the authority to review CMS’s decision to reject an application or to deactivate Petitioners’ Medicare billing privileges.  The decision to reject an application is not subject to further appeal.  42 C.F.R. § 424.525(d).  The decision to deactivate billing privileges is not an “initial determination” subject to ALJ review, but has a separate review process involving the submission of a rebuttal to CMS.  See 42 C.F.R.

Page 6

§§ 424.545(b), 498.3(b); see also Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017), aff’d sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).  As indicated above in the Issue and Jurisdiction sections of this decision, I only have authority to decide whether the date of revalidation/reactivation of Petitioners’ enrollment and billing privileges is correct based on the law and facts applicable to this case.  Ark. Health Grp., 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.”).

Petitioners’ arguments amount to a request for equitable relief.  I do not have authority to provide equitable relief based on principles of fairness and thus cannot change Petitioners’ 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.”).  For the reasons already explained above, I conclude that Petitioners’ revalidation/reactivation date is correct.

VII. Conclusion

I affirm CMS’s determination that Petitioners’ effective date for revalidation/reactivation of Medicare enrollment and billing privileges is September 25, 2018.

• 1. I have added Ronald B. Tye, Psy.D. Associates PA to the caption in this case because the determinations issued by the contractor for the Centers for Medicare & Medicaid Services set the effective date for revalidation/reactivation for both Dr. Tye and his practice.  Further, the hearing request lists the Provider Transaction Access Numbers (PTAN) for Dr. Tye and his practice. Therefore, they are both parties in this case. See 42 C.F.R. § 498.2 (definition of Affected party).