Someswara Navuluri, M.D., DAB CR5594 (2020)

DECISION

The effective date of reactivation of Petitioner’s billing privileges is October 30, 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

Wisconsin Physicians Service Insurance Corporation (WPS), the Centers for Medicare & Medicaid Services (CMS) Medicare administrative contractor (MAC), sent Petitioner1

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two letters dated August 8, 2016.  One was addressed to Petitioner at 62 West 7 Mile Road, Detroit, MI and the second was addressed to him at 3721 Durham Court, Bloomfield Hills, MI.  Both letters advised Petitioner that he needed to revalidate his Medicare enrollment record by “updating or confirming all information in [Petitioner’s] record, including practice locations and reassignments.”  CMS Exhibit (Ex.) 1 at 7, 9.  The letters informed Petitioner he needed to revalidate by October 31, 2016.  The letters stated “What record needs revalidating by October 31, 2016” and listed Petitioner’s National Provider Identifier (NPI) 1669419156 and Provider Transaction Access Numbers (PTANs) P306301116, H26402034, and N99.2  CMS Ex. 1 at 7, 9.  Neither letter listed PTAN 0822609.

There is no dispute that Petitioner submitted a revalidation application via the Medicare Provider Enrollment, Chain, and Ownership System (PECOS) received by the MAC on August 26, 2016.  CMS Ex. 1 at 11.  Under “Practice Locations” #1, #2, and #3,

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Petitioner listed himself and under “Claims Detail” he listed “Medicare ID:  0822609” and his NPI 1669419156.  Petitioner listed different practice addresses under #1, #2, and #3 – 1000 Telegraph Road, Taylor MI, described as a hospital; 30671 Stevenson Highway, Madison Heights, MI, described as a hospital; and 5555 Conner Street #2210, Detroit, MI, described as an “other health care facility,” respectively.  CMS Ex. 1 at 12-14.  Petitioner listed Karen Paterni at 1717 East 11 Mile Road, Royal Oak, MI; Kellie Smigiel at 1560 East Maple Road, Suite 400-Credentialing, Troy, MI; and Latesha Mathis at 62 West 7 Mile Road, Detroit as his contact persons.  CMS Ex. 1 at 14-15.  Petitioner listed reassignments to University Physician Group (NPI 1316987589), Lincoln Behavioral Health Services (NPI 1669451944), Gateway-Detroit East (NPI 1669759668), and Arab American and Chaldean Council (NPI 1356630651).  No PTANs are listed with any of the organizations listed as receiving reassigned benefits from Petitioner.  CMS Ex. 1 at 16.

The MAC notified Petitioner’s contacts by email dated August 30, 2016, requesting further information including an electronic funds transfer form, a copy of a voided check or bank letter verifying account information, a call to the MAC office to verify practice locations, phone numbers, and provide information related to business occupancy license requirements.  The MAC also advised that a new application certification statement was required because there were changes or additions to application information.  CMS Ex. 1 at 17.

The MAC advised Petitioner by letter dated October 3, 2016, that his revalidation enrollment application was approved.  According to the letter the approval related to Petitioner’s individual NPI 1669419156, with Group or Employer NPI 1669451944 (the NPI of Lincoln Behavioral Health Services), Group or Employer NPI 1669759668 (the NPI for Gateway-Detroit East), Group or Employer NPI 1356630651(the NPI for the Arab American & Chaldean Council), and Group or Employer NPI 1316987589 (the NPI for the University Physician Group).  Various PTANs are listed related to the approved NPIs.  CMS Ex. 1 at 19-20.  Therefore, revalidation was approved as to Petitioner’s reassignment to all providers and suppliers to which Petitioner reassigned his right to file claims with Medicare.  However, the MAC advised that it stopped billing privileges related to PTAN 0822609 effective September 29, 2016, either because it received a verbal or written request to deactivate or there was no response to the MAC’s request for more information.  CMS Ex. 1 at 19-20.  The evidence provided by CMS shows that there was only one request to revalidate and it did not list a PTAN 0822609.  CMS Ex. 1 at 7, 9.  The evidence includes only one request for more information and the request did not specify that it related to any particular NPI or PTAN.  CMS Ex. 1 at 17.  Based on Petitioner’s revalidation application and documents related to a prior revalidation that Petitioner submitted with his request for reconsideration, I infer that PTAN 0822609 is related to Petitioner’s individual NPI 1669419156.  CMS Ex. 1 at 12-14, 117-28.  There is no evidence Petitioner requested to have his billing privileges related to his own NPI and PTAN, i.e., his individual ability to file claims with Medicare, deactivated.  The

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notice of initial determination does not specify what information was not provided.  Obviously some information requested was provided by Petitioner as all of his reassignments were approved.

Petitioner submitted a paper Medicare enrollment application (CMS-855I) that he signed and dated October 27, 2017.  CMS Ex. 1 at 46, 50.  Petitioner indicated that he was reactivating his Medicare enrollment.  CMS Ex. 1 at 25.  The CMS-855I lists Respondent’s legal business name as Someswara N. Navuluri, MD, PLLC (CMS Ex. 1 at 36) and his practice location name as Samaritan Behavioral Center at 5555 Conner Avenue, Suite 3 North, Detroit MI (CMS Ex. 1 at 38).  Petitioner lists his NPI 1669419156 and PTAN 0822609.  CMS Ex. 1 at 36.  On November 6, 2017, the MAC requested further development or information within 30 days.  CMS Ex. 1 at 59.  On November 28, 2017, Petitioner submitted revisions to his application and omitted listing a PLLC.  CMS Ex. 1 at 62-91.  The MAC requested further development by email on December 1, 2017.  CMS Ex. 1 at 92.  Petitioner made further corrections to his application on December 4, 2017.  CMS Ex. 1 at 94-105.

The MAC informed Petitioner by letter dated December 8, 2017, of its initial determination to approve the revalidation of Petitioner’s enrollment as an individual practitioner with NPI 1669419156 and PTAN 0822609.  The MAC advised Petitioner that there was a gap in his billing privileges from October 31, 2016 to October 30, 2017, for failure to respond to requested development related to the first attempt to revalidate.  CMS Ex. 1 at 106, 136.

Petitioner requested reconsideration by letter dated January 29, 2018.  CMS Ex. 1 at 109.  Petitioner requested that the gap in billing privileges be removed because he was unaware that his billing privileges were suspended effective September 29, 2016.  Petitioner argued that he failed to respond to a request for revalidation because it was sent to the Wayne State Physician’s Group at 1560 East Maple Road, Suite 400 Credentialing, Troy Michigan and that office has no connection with PTAN 0822609, and the request was mishandled by the person who received the request.  Petitioner admits however that a staff member at Wayne State Physician’s Group did handle the revalidation related to the other PTANs.  CMS Ex. 1 at 109-14, 132.

On March 1, 2018, a MAC hearing officer issued a reconsidered determination.  The hearing officer determined that Petitioner’s billing privileges associated with his NPI 1669419156 and PTAN 0822609 were deactivated effective November 11, 2016.  The

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hearing officer upheld a reactivation effective date of October 30, 2017.3  CMS Ex. 1 at 1-6.

On April 27, 2017, Petitioner requested a hearing before an administrative law judge (ALJ).  Petitioner complains that the gap in billing privileges from November 11, 2016, through October 29, 2017, resulted in Petitioner not being paid for services rendered to Medicare beneficiaries during the gap period.

CMS filed a motion for summary judgment and prehearing brief (CMS Br.) with CMS Exs. 1 and 2.  Petitioner filed a response in opposition to CMS’s motion for summary judgment (P. Br.) without exhibits.  CMS waived the right to file a reply brief.  Petitioner has not objected to my consideration of CMS Exs. 1 and 2, and they are admitted and considered as evidence.

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.

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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. 

The Secretary of the Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. pts. 424 and 4984 that specify review and appeal rights in provider and supplier enrollment cases.  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).  I conclude Petitioner has no right to ALJ review of the MAC determination to deactivate Petitioner’s billing privileges. 

Petitioner complains he did not receive notice that his billing privileges would be deactivated because it was sent to the wrong contact person for him who then failed to notify him regarding the revalidation.  P. Br. at 4, 8.5  I accept Petitioner’s assertion as true for purposes of summary judgment.  I note however, that the contact person of whom Petitioner complains is one of the four contact persons listed on his revalidation application.  CMS Ex. 1 at 14-15.  Unfortunately, I have no authority to review the

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determination related to deactivation or to fashion any remedy to address any failure to provide Petitioner notice.

Although not raised in this case, I note that Petitioner also 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.  CMS or the MAC may deactivate the billing privileges of a 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).

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” are initial determinations subject to review by an ALJ.  The Board has given an

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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 Petitioner has a right to ALJ review of the reconsidered determination of the effective date of reactivation of his 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.

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 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 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).

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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 October 30, 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.6  However, CMS has addressed the determination of the effective date of reactivation by policy.  CMS policies regarding deactivations and reactivations of billing privileges are published in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, ch. 15, § 15.27.1 (rev. 474, eff. Oct. 8, 2013).  MPIM § 15.27.1.2 (rev. 561, eff. Mar. 18, 2015), which was in effect at the time of the initial and reconsidered determinations, provided that the effective date of reactivation is the date the MAC received the reactivation application that the MAC processed to completion.7  In this case, there is no dispute that the MAC received Petitioner’s paper CMS-855I on October 30, 2017 (CMS Ex. 1 at 92, 95), and that application was processed to completion.

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) when reactivating billing privileges of a provider or supplier described in that section.  MPIM ch. 15, §§ 15.27.1.2 (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 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 and there is no dispute that he 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).

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Applying the regulations in this case is straightforward.  There is no dispute the MAC deactivated Petitioner’s Medicare billing privileges on November 11, 2016.  There is also no dispute that on October 30, 2017, the MAC received Petitioner’s application to reactivate his Medicare billing privileges.  Accordingly, the effective date of reactivation may only be October 30, 2017.  The period for retrospective billing begins 30 days prior to the effective date of reactivation.

Petitioner’s arguments may be construed to be for equitable relief.  P. Br. at 13-14.  However, it is well-settled that I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  Petitioner argues that CMS should be estopped from “enforcing the billing gap in this matter due to its own affirmative misconduct.”  P.  Br. at 8, 14.  Petitioner argues that MAC errors of not listing PTAN 0822609 in its notice to Petitioner to revalidate and sending the deactivation to the wrong address are affirmative misconduct.  The errors are undisputed but, as a matter of law they do not arise to the type of affirmative misconduct, such as fraud, that would trigger estoppel against the government.  Estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  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).

III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner’s billing privileges is October 30, 2017, with retrospective billing privileges beginning September 30, 2017.

• 1. Petitioner, a physician, is a supplier.  A “supplier” furnishes services under Medicare and includes physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.”  Act § 1861(d) (42 U.S.C. § 1395x(d)).  A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) (42 U.S.C. § 1395f(g)) and 1835(e) (42 U.S.C. § 1395n(e)) of the Act.  Act § 1861(u) (42 U.S.C. § 1395x(u)).
• 2. To receive payment for covered Medicare items and services from Medicare for an assigned claim or from a Medicare beneficiary in the case of an unassigned claim, a provider or supplier must be enrolled in Medicare.  Once enrolled, the provider or supplier receives billing privileges and is issued a valid billing number.  The National Provider Identifier (NPI) is used as the Medicare billing number.  42 C.F.R. § 424.505.  The NPI is a standard, unique, ten-digit identifier issued to health care providers and suppliers.  45 C.F.R. § 162.406(a).  All providers and suppliers are required to qualify for an NPI and to include their NPI on all enrollment applications and all claims for payment.  Act § 1128J(e).  Required and permitted uses for the NPI are set forth in 45 C.F.R. § 162.406(b).  A health care provider or supplier must obtain a unique NPI from the National Provider System and use the NPI as an identifier on all standard transactions that require identification with the NPI.  45 C.F.R. § 162.410(a).  A provider or supplier enrolled in Medicare that “submits a paper or an electronic claim must include its NPI and the NPI(s) of any other provider(s) or supplier(s) identified on the claim.”  42 C.F.R. § 424.506(c)(1).  A Medicare contractor is required to reject a claim filed by a provider or supplier if required NPIs are not reported.  42 C.F.R. § 424.506(c)(3).  Therefore, a claim filed by a supplier or provider with no valid NPI, i.e., an NPI assigned to a provider or supplier that is not suspended, deactivated or revoked, will not be processed by a MAC.  Contrary to what is represented by the MAC hearing officer in the reconsidered determination (CMS Ex. 1 at 3) the PTAN is not the Medicare billing number and a PTAN is not even included on claims filed with Medicare.  CMS, Medicare Learning Network, MLN Matters®, No. SE1216 (rev. Sep. 5, 2014) (PTAN used to authenticate provider related to inquiries to the MAC; providers and suppliers have only one NPI, but may have multiple PTANs related to the provider or supplier and each reassignment).  Billing privileges, which are associated with the NPI, are deactivated pursuant to 42 C.F.R. § 424.540. 
• 3. Also on March 1, 2018, the MAC issued a letter that appears to be an initial determination form letter.  The letter indicates it is a “CORRECTED LETTER.”  CMS Ex. 2 at 1.  The MAC advised Petitioner that his Medicare revalidation was approved related to NPI 1669419156 and PTAN 0822609 but there was a gap in billing privileges from November 11, 2016 through October 31, 2017.  The letter also advised Petitioner that he could request reconsideration of the determination.  CMS Ex. 2.  It is clear that CMS Ex. 2 was issued in error as Petitioner’s case was already pending a reconsidered determination on the same issues and the reconsidered determination was issued on the same date.  Therefore, I consider CMS Ex. 2 no further, concluding that this matter is properly before me for adjudication.
• 4. 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 and supplier enrollment case such as this is the reconsidered determination.  Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014).
• 5. Petitioner failed to number the pages of his brief.  Page citations are to the document page counter.
• 6. The effective date for Medicare billing privileges is determined in accordance with 42 C.F.R. § 424.520.
• 7. A subsequent revision, revision 865, effective March 12, 2019, did not change this policy stated by MPIM § 15.27.1.2.