Paula E. Bourelly, MD and Paula E. Bourelly, MD Associates, LLC, DAB CR5561 (2020)

DECISION

The effective date of reactivation of Petitioners' billing privileges is October 12, 2017.  Petitioners are entitled to a period for retrospective billing beginning 30 days prior to the effective date of the reactivation of Petitioners' billing privileges.

I.  Background and Findings of Fact

On April 4, 2018, Petitioner, Paula E. Bourelly, MD, sole owner of Petitioner, Paula E. Bourelly, MD Associates, LLC, a physician practice group, requested administrative law judge (ALJ) review of the February 26, 2018 reconsidered determination of Novitas Solutions, the Medicare Administrative Contractor (MAC).  Request for Hearing (RFH).  The reconsidered determination upheld an initial determination by the MAC that the reactivation of Petitioners' billing privileges was effective on October 12, 2017, a date after the date of the deactivation of Petitioners' billing privileges on July 28, 2017.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 2.  Petitioners complain that the gap in billing privileges from July 28, 2017 through October 11, 2017 (gap period) resulted in Petitioners not being paid for services rendered to Medicare‑eligible beneficiaries during the gap period.

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CMS filed a motion for summary judgment with CMS Ex. 1 on May 14, 2018 (CMS Br.).  Petitioners filed a response in opposition to the CMS motion for summary judgment on June 6, 2018 (P. Br.) with supporting documents not marked as exhibits.  Petitioners' supporting documents consist of the MAC's notices to revalidate, as well as Petitioners' billing ledger for patients treated during the gap in Petitioners' Medicare billing privileges.  The documents submitted by Petitioners are treated as if marked Petitioners' Exhibit (P. Ex.) 1.  CMS filed a reply brief on June 18, 2018.

Petitioners did not object to CMS Ex. 1 and it is admitted and considered as evidence.  I do not admit P. Ex. 1 because the MAC's notices to revalidate are in evidence as part of CMS Ex. 1, and Petitioners' billing ledger is not relevant to any issue I may decide.  I also accept for purposes of summary judgment that Petitioners submitted bills to Medicare for services rendered during the gap period that were not paid and that Petitioners did not submit bills for services during the gap period that it would normally have submitted as listed in P. Ex. 1.

The material facts are not disputed.  On or before July 28, 2017, Petitioners were enrolled in Medicare with billing privileges.  The MAC deactivated the billing privileges of Petitioners effective July 28, 2017, for failure to revalidate enrollment.  CMS Ex. 1 at 20.  Subsequently, Petitioners submitted a revalidation application (CMS-855) that was received by the MAC on October 12, 2017, and that application was processed to approval by the MAC.  The MAC reactivated Petitioners' billing privileges effective October 12, 2017 based on the CMS-855 received on that date.  The MAC's action resulted in a gap in Petitioners' billing privileges from July 28, 2017 through October 11, 2017, during which period Petitioners were unable to obtain reimbursement from Medicare for services delivered to Medicare-eligible beneficiaries.  Petitioners remained enrolled in Medicare during the gap period.  CMS Ex. 1 at 23, 35-37, 39-41; CMS Br. at 9-10.

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.

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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 Petitioners' billing privileges, i.e., the date of reactivation of Petitioners' right to submit claims to and receive payment from Medicare for care and services delivered to Medicare‑eligible beneficiaries.

2.  Petitioners have no right to ALJ review of the determination of the MAC or CMS to deactivate Petitioners' billing privileges.

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

For the following reasons, I conclude Petitioners have no right to ALJ review of the MAC determination to deactivate their billing privileges.  Petitioners also have no right to ALJ review in this forum of the denial of payment of Petitioners' claims during the gap period.  Petitioners do have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioners' billing privileges.

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

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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 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).  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)(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).

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 Petitioners have no right to ALJ review of the MAC determination to deactivate Petitioners' billing privileges.  I also conclude that Petitioners have no right to ALJ review in this forum of the denial of payment of Petitioners' 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).  Petitioners do have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioners' billing privileges.

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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 3-10 (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 (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 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 (2014).

3.  Summary Judgment is appropriate.

I have concluded, based on the rationale of the Board in prior cases, that Petitioners have 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 Petitioners' billing privileges that require a hearing in this case; CMS is entitled to judgment as a matter of law; and summary judgment is appropriate.

Petitioners are entitled to a hearing on the record before an ALJ under the Social Security Act (Act).  Act §§ 205(b), 1866(h)(1), (j) (42 U.S.C. §§ 405(b), 1395cc(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 Acknowledgement 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

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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 Petitioners' billing privileges is the date on which the MAC received the application that it processed to approval and that date is October 12, 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 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 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.  In this case, there is no dispute that the MAC received the applications processed to completion on October 12, 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. 865, eff. Mar. 12, 2019) when reactivating billing privileges of a provider or supplier described in that section.  MPIM ch. 15 §§ 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 has issued.  Based on the CMS language making retrospective billing mandatory

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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).  Petitioners are a physician and her solely owned physician practice group and there is no dispute that both entities were enrolled in Medicare during the gap period and met all requirements for enrollment.  Therefore, Petitioners are 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 the MAC deactivated Petitioners' Medicare billing privileges on July 28, 2017.  There is also no dispute that on October 12, 2017, the MAC received Petitioners' application to reactivate their Medicare billing privileges.  Accordingly, the effective date of reactivation may only be October 12, 2017.  The period for retrospective billing begins 30 days prior to the effective date of reactivation.

Petitioners argue the June 26, 2017 request for revisions by the MAC and the July 28, 2017 notice of deactivation were not received.  P. Br. at 1.  I accept this assertion as true for purposes of summary judgment.  However, this fact is not material to the determination I am required to make in this case, which is the effective date of the reactivation of Petitioners' billing privileges.  In this case, Petitioner does not dispute the fact that the MAC received its reactivation application on October 12, 2017.  The date of receipt of the reactivation application by the MAC controls.

Petitioners concede that they "made a mistake by not revalidating . . . ," but did so inadvertently and ask for "pardon."  P. Br. at 2.  Petitioners' arguments may be construed as request for equitable relief or for 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 allegations 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).  Petitioners' arguments establish no basis for relief.

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III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioners' billing privileges is October 12, 2017.

• 1. Citations are to the October 1, 2017 revision of the Code of Federal Regulations 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 and supplier enrollment case such as this is the reconsidered determination.  Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014).
• 2. The effective date for Medicare billing privileges is determined in accordance with 42 C.F.R. § 424.520.
• 3. The current CMS policy is set forth in MPIM ch. 15 §§ 15.27.1.1.-2 (rev. 865, eff. Mar. 12, 2019) and provides for retrospective billing in accordance with MPIM ch. 15 § 15.17(B).