Sharon Hall, LCSW, DAB CR5087 (2018)

DECISION

I grant summary judgment sustaining the determination of a Medicare contractor to reactivate the Medicare billing privileges of Petitioner, Sharon Hall, LCSW, effective October 30, 2017.

I.  Background

Petitioner requested a hearing in order to challenge the effective date of reactivation of her Medicare billing privileges.  The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment, filing a brief and 17 proposed exhibits that are identified as CMS Ex. 1-CMS Ex. 17.  Petitioner opposed the motion.  She filed a statement in opposition to the motion, which she also identified and filed separately as P. Ex. 1.

It is unnecessary that I rule on the admissibility of the parties’ exhibits inasmuch as there are no disputed issues of material fact.  I cite to some of these exhibits in this decision but only to illustrate facts that are not in dispute.

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II.  Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether the contractor properly established October 30, 2017, to be the effective date of reactivation of Petitioner’s Medicare billing privileges.1

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.

42 C.F.R. § 424.540.  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), (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 the contractor receives a re-enrollment application that it processes to completion.  Medicare Program Integrity Manual, § 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 an effective reactivation date to a provider or a supplier whose billing privileges are deactivated.  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 . . . non-physician practitioners . . . is the later of . . . [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or . . . [t]he date that the supplier first began furnishing services at a new practice location.

42 C.F.R. § 424.520(d).  The earliest possible effective reactivation date that a contractor may assign to a provider or supplier whose billing privileges are deactivated is the 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 establish that, on December 7, 2016, a Medicare contractor sent a request to Petitioner asking her to revalidate her Medicare billing privileges.  CMS Ex. 1.  The request informed Petitioner that she needed to revalidate her billing privileges by no later than February 28, 2017, if she wished to remain an active participant in Medicare.  Id.

Petitioner failed to comply with the request.  On May 4, 2017, the contractor informed Petitioner that it was deactivating Petitioner’s Medicare billing privileges as a consequence of her failure to revalidate her privileges.  CMS Ex. 3.

Petitioner then filed an application for revalidation of her billing privileges on May 22, 2017.  CMS Ex. 4.  The contractor found this application to be incomplete and notified Petitioner that it needed additional information from her.  CMS Ex. 5.  Petitioner

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did not supply the contractor with the requested information, despite the contractor sending a second request to her for additional information.  CMS Ex. 7.  On June 27, 2017, the contractor rejected Petitioner’s May 22, 2017 application.  CMS Ex. 8.

Petitioner then filed a new application for reactivation on October 30, 2017.  The contractor subsequently approved this application and reactivated Petitioner’s Medicare billing privileges.  CMS Ex. 14.

October 30, 2017, is the earliest date on which Petitioner’s billing privileges may be reactivated.  Petitioner has no right to challenge the contractor’s decisions to deactivate Petitioner’s Medicare billing privileges or to reject Petitioner’s May 22, 2017 application to reactivate those privileges.  I may only decide whether the contractor based its determination to reactivate Petitioner’s billing privileges based on the application that the contractor subsequently approved.  The undisputed facts establish that it was Petitioner’s October 30, 2017 application that the contractor subsequently approved.  Therefore, October 30, 2017, must be the date of reactivation of Petitioner’s billing privileges.

Petitioner concedes that she erred in failing to submit acceptable information to revalidate her billing privileges and in failing to file an acceptable application for reactivation on May 22, 2017.  She does not deny that the contractor acted consistent with regulatory requirements in deactivating her billing privileges and in rejecting her May 22, 2017 application.  She argues, however, that she has maintained an exemplary record as a Medicare supplier since her initial participation in the program in 1990 and she asks that I adjust her effective reactivation date in consideration of that record and in consideration of what she characterizes as honest errors in failing to file acceptable documents with the contractor.

However, I lack the authority to do what Petitioner asks.  Her arguments reduce to equitable assertions, essentially challenging the fairness of the contractor’s decisions based on the unique facts of her case.  Equitable challenges to CMS’s determinations are not appealable.  US Ultrasound, DAB No. 2302 at 8 (2010).  I may only decide whether the contractor’s actions were consistent with regulatory requirements, which they clearly were in this case.

1. There is some ambiguity in the contractor’s letter to Petitioner advising Petitioner of approval of her application for recertification. It is not entirely clear from that letter whether the contractor established October 30 or October 31, 2017, as the effective reactivation date. However, on October 30, 2017, Petitioner filed her application for reactivation that the contractor accepted and, therefore, I am establishing October 30, 2017, as the effective date of reactivation of Petitioner’s Medicare billing privileges.
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