Arkansas Health Group d/b/a Baptist Health Family Clinic Lakewood, DAB CR5028 (2018)

DECISION

I grant summary judgment sustaining the determination of a Medicare contractor, as affirmed upon reconsideration, with modifications, to reactivate the Medicare billing privileges of Petitioner, Arkansas Health Group d/b/a Baptist Health Family Clinic Lakewood, effective May 22, 2017.

I. Background

Petitioner requested a hearing in order to challenge the effective date of reactivation of its Medicare billing privileges.  The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment, filing a brief and 12 exhibits that are identified as CMS Ex. 1-CMS Ex. 12.  Petitioner opposed the motion and cross-moved for summary judgment.  Later, CMS filed an additional brief and 1 additional exhibit identified as CMS Ex. 13.  Petitioner filed seven proposed exhibits that are identified as P. Ex. 1-P. Ex. 7 in support of its opposition and cross-motion.

It is unnecessary that I rule as to the admissibility of the parties’ exhibits inasmuch as I grant CMS’s motion for summary judgment based on undisputed material facts and

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governing regulations.  However, I cite to some of the parties’ exhibits only for the purpose of illustrating those facts that are undisputed.

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether a modified reconsideration determination properly established May 22, 2017, to be the effective date of reactivation of Petitioner’s Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

This case is governed by a regulation, 42 C.F.R. § 424.540.  In relevant part the regulation states:

a. Reasons for deactivation.  CMS may deactivate the Medicare billing privileges of a provider or supplier for any of the following reasons:

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(3) The provider or supplier does not furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification from CMS to submit an enrollment application and supporting documentation, or resubmit and certify to the accuracy of its enrollment information.

(b) Reactivation of billing privileges.  (1) When deactivated for any reason other than nonsubmission of a claim, the provider or supplier must complete and submit a new enrollment application to reactivate its Medicare billing privileges or, when deemed appropriate, at a minimum, recertify that the enrollment information currently on file with Medicare is correct.

A contractor’s decision to deactivate a provider’s reimbursement privileges is not a determination that gives hearing rights to the affected individual or entity.  See 42 C.F.R. § 498.3(b) and (d).  Consequently, a provider or supplier whose Medicare billing privileges are deactivated may not challenge the contractor’s decision to deactivate.  I have no authority to decide that challenge.

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CMS has published guidance to its contractors concerning what effective participation date to assign to a supplier or provider that seeks to reactivate its participation.  That date shall be the date when that the contractor receives a re-enrollment application that it processes to completion.  Medicare Program Integrity Manual (MPIM), CMS Pub. 100‑08, Ch. 15 § 15.27.1.2.  That guidance is consistent with regulatory requirements governing the effective date of participation of newly participating suppliers and providers.  42 C.F.R. § 424.520(d); Willie Goffney Jr., M.D., DAB No. 2763 (2017).

Given that, the only question I may consider is whether the contractor (or, in this case, a reconsideration hearing officer) properly assigned a provider or a supplier whose billing privileges are deactivated an effective reactivation date.  The propriety of the contractor’s action in determining to reactivate is governed by 42 C.F.R. § 424.520(d).  The regulation states that:

The effective date for billing privileges for physicians, . . . is the later of the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor or the date [an enrolled physician] first began furnishing services at a new practice location.

The earliest possible effective reactivation date that a contractor may assign to a provider or supplier whose billing privileges are deactivated is that date that the provider or supplier files a new enrollment application with the contractor that the contractor subsequently approves.  The contractor has no authority to assign a retroactive reactivation date to a provider or a supplier whose billing privileges were deactivated on a date prior to the date when the provider or supplier submits a new enrollment application for the purpose of reactivating his or her billing privileges.  Moreover, I do not have authority to order a contractor to assign a retroactive reactivation date.

The undisputed facts of this case are that on December 12, 2016, the contractor sent Petitioner a letter requesting that it revalidate its Medicare enrollment information.  CMS Ex. 11 at 4.  On January 3, 2017, Petitioner filed an application for revalidation of its billing privileges.  CMS Ex. 2.  The contractor concluded that the application lacked necessary information and, so, it sent a request to Petitioner on February 23, 2017, seeking additional information from it.  CMS Ex. 3.  Petitioner did not reply to the request.  On May 2, 2017, the contractor deactivated Petitioner’s billing privileges.  CMS Ex. 4.  Petitioner filed an application for reactivation of its billing privileges on May 22, 2017.  CMS Ex. 6 at 26.  That contractor initially determined that this application was ineffective; however, on reconsideration the application was accepted

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and Petitioner received a reactivation date of May 22, 2017, based on that application.1   As a consequence of these actions Petitioner’s billing privileges were deactivated for a period that ran from May 2 through May 21, 2017, and Petitioner may not receive reimbursement from Medicare for otherwise covered items or services that it provided on those dates.

May 22, 2017, is the earliest date on which Petitioner’s billing privileges may be reactivated because that is the date on which the contractor received Petitioner’s application for reenrollment that the reconsideration hearing officer subsequently directed be approved.  Neither the contractor nor I may assign Petitioner a reactivation date that is retroactive to May 2, 2017, the date of deactivation of its billing privileges.

Petitioner protests that its failure to reply to the contractor’s information request of February 23, 2017, is not its fault, and it should not be penalized for its failure to provide the requested information.  It contends that it never received the contractor’s February 23, 2017 letter.  That argument is one that I have no authority to hear and decide because it effectively consists of a challenge to the contractor’s decision to deactivate Petitioner’s Medicare billing privileges.2   As I have stated, a decision to deactivate is non-appealable.

Petitioner also argues that, at the very least, there are disputed issues of material fact that preclude entry of summary judgment against it (although it cross-moved for summary judgment).  These allegedly disputed facts, according to Petitioner, are the facts addressing the question of whether Petitioner received the contractor’s February 23, 2017 letter.  However, the facts raised by Petitioner are not material inasmuch as they pertain to a question that I have no authority to hear or decide – the contractor’s decision to deactivate Petitioner’s participation.

Petitioner also argues that the information that the contractor sought on February 23, 2017, is non-consequential and that it should not be penalized for failing to

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supply information that isn’t material to its qualifications to participate.  That argument also is a challenge to the contractor’s decision to deactivate and for that reason I lack authority to hear and decide it.

Finally, I note that there is an equitable aspect to Petitioner’s argument.  Effectively, it asserts that it is unfair that it be penalized for not responding to a notice that it contends it never received.  This is also an argument that I have no authority to hear and decide inasmuch as equitable challenges to CMS’s determinations are not appealable.  U.S. Ultrasound, DAB No. 2302, at 8 (2010).

1. The contractor opted not to treat the May 22, 2017 application as an application for reactivation of billing privileges and it made an initial determination to reactivate Petitioner’s billing privileges effective June 12, 2017, based on Petitioner’s submission of an additional revalidation application on that date. CMS Ex. 11 at 4. However, on reconsideration, a hearing officer determined that Petitioner’s May 22, 2017 submission was an application for reactivation and ordered that Petitioner’s billing privileges be reactivated as of that date. CMS does not argue that the effective date established on reconsideration is incorrect.
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2. CMS asserts that the contractor sent the request to the address that Petitioner supplied to the contractor. I do not address that assertion because it relates to the propriety of the contractor’s decision to deactivate Petitioner’s billing privileges
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