David Lynch, M.D., DAB CR5682 (2020)

DECISION

Petitioner, David Lynch, M.D., is a Pennsylvania physician, specializing in radiology, who participates in the Medicare program as a supplier of services.  After his Medicare billing privileges were deactivated, he applied to reenroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted the application, effective October 5, 2017, resulting in a lengthy coverage lapse.  Petitioner now asks for an earlier effective date. 

Because Petitioner filed his subsequently-approved enrollment application on October 5, 2017, I find that October 5 is the correct effective date for his enrollment.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff’d sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

Background

In a notice letter dated October 30, 2017, the Medicare contractor, Novitas Solutions, advised Petitioner that it approved his revalidated Medicare enrollment.  CMS Ex. 3.  The letter does not mention the effective date of the revalidation or indicate that it resulted in

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a coverage gap.  Petitioner, nevertheless, understood that the revalidation resulted in a gap in coverage and requested reconsideration, complaining that he had not received the revalidation request and citing his lost revenue.  CMS Ex. 2.

In a reconsidered determination, dated January 30, 2018, the contractor affirmed the October 5 effective date, noting a coverage gap from August 11 through October 4, 2017.  CMS Ex. 1.  Petitioner appealed. 

Petitioner moves for summary judgment, which CMS opposes.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Prehearing Order at 3, 5 (¶¶ 4(c)(iv), 8) (March 20, 2018).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied. 

CMS submits its motion and brief (CMS Br.) with eight exhibits (CMS Exs. 1-8).  Petitioner submits his brief (P. Br.) with two exhibits (P. Exs. 1-2).  In the absence of any objections, I admit into evidence CMS Exs. 1-8 and P. Exs. 1-2.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

Petitioner filed his subsequently-approved enrollment application on October 5, 2017, and his reactivated Medicare enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner Lynch participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services furnished to program beneficiaries, a prospective supplier must enroll in the program.  42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors:  1) identify the prospective supplier; 2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier’s owners and practice location; and 4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502.  

To enroll, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application is either a CMS-approved paper application or an electronic process approved by the Office of

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Management and Budget.  42 C.F.R. § 424.502.2  When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  For a physician, the effective date for billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “[t]he date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

Revalidation and Deactivation.  To maintain his billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of its enrollment information, a process referred to as “revalidation.”  42 C.F.R. § 424.515.  In addition to periodic revalidations, CMS may, at other times and for its own reasons, ask a supplier to recertify the accuracy of his enrollment information.  42 C.F.R. § 424.515(d)-(e).  Within 60 days of receiving CMS’s notice to recertify, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation.  42 C.F.R. § 424.515(a)(2).

If, within 90 days from receipt of CMS’s notice, the supplier does not furnish complete and accurate information and all supporting documentation, or does not resubmit and certify the accuracy of its enrollment information, CMS may deactivate its billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3); 424.555(b).  To reactivate his billing privileges, the supplier must complete and submit a new enrollment application.  42 C.F.R. § 424.540(b)(1).  It is settled that, following deactivation, section 424.520(d) governs the effective date of reenrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7; Goffney, DAB No. 2763 at 7.

I have no authority to review a deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 (2019). 

Petitioner’s deactivation and reenrollment.  In a notice letter, dated December 12, 2016, the contractor directed Petitioner to revalidate his Medicare enrollment by updating or confirming the information in his record.  The letter directed Petitioner to submit, no later than February 28, 2017, an updated paper CMS-855 Medicare enrollment application or to review, update, and certify his information through the PECOS system.  The letter warned that Petitioner had to revalidate within 60 calendar days of the letter’s postmark date, or risk deactivation of his Medicare billing privileges.  CMS Ex. 7. 

Although a copy of the letter was addressed to Petitioner’s correspondence address (compare CMS Ex. 4 at 6 with CMS Ex. 7 at 4), Petitioner maintains that he did not receive it.  Another copy was sent to what CMS asserts was one of Petitioner’s practice

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locations.  Petitioner, however, maintains that he is not “linked” to that location.  P. Br. at 2.

The contractor sent a second letter, dated July 27, 2017, stating that Petitioner did not revalidate his enrollment by February 28; the letter warned that, if his enrollment were deactivated, he would experience a gap in enrollment.  The contractor sent a copy of the letter to the same correspondence address and a copy to a post office box.  CMS Ex. 6.  Petitioner has not denied receiving this letter.  See P. Br.

In a letter dated August 11, 2017, the contractor advised Petitioner that his billing privileges were stopped, effective that date, because he had not revalidated his enrollment record.  To revalidate, the letter instructed him to submit an updated paper enrollment application, or to review, update, and certify his information via PECOS.  CMS Ex. 5. 

No matter how compelling the circumstances, I have no authority to review a deactivation.  Ark. Health Grp., DAB No. 2929 at 7-9 and cases cited therein.

On October 5, 2017, Petitioner filed a Medicare enrollment application (Form CMS-855I) and an application to assign benefits (CMS-855R) that the contractor subsequently approved.  CMS Exs. 3, 4.3  Thus, pursuant to section 424.520(d), the date Petitioner filed its subsequently-approved enrollment application – October 5, 2017 – is the correct effective date of enrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB 2763 at 7.

I have no authority to grant Petitioner an earlier effective date based on equitable and policy arguments.  Sokoloff, DAB No. 2972 at 9.

Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on October 5, 2017, CMS properly granted his Medicare reenrollment effective that date.

• 1. I make this one finding of fact/conclusion of law.
• 2. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
• 3. The first two digits stamped on the application (upper left corner) indicate the year – 2017.  The next four digits, 1005, indicate the date of receipt – October (the tenth month) 5.  CMS Ex. 4 at 1.