Judith Archibold, O.D., DAB CR5369 (2019)

DECISION

National Government Services (NGS), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reactivated the Medicare billing privileges of Judith Archibold, O.D. (Petitioner or Dr. Archibold) as of June 20, 2017.  Petitioner requested a hearing before an administrative law judge to dispute this effective date.  As explained herein, NGS correctly determined the effective date for Petitioner’s reactivated billing privileges was June 20, 2017.

I. Background

By letters sent to both her Medicare Provider Enrollment, Chain, and Ownership System (PECOS) address of record1 and a business address2 on January 13, 2017, NGS advised

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Petitioner she was required to revalidate her enrollment record by March 31, 2017.  CMS Ex. 1; CMS Ex. 5 at 1-2.  NGS warned Petitioner that “[f]ailure to respond to this notice will result in a hold on your payments, and possible deactivation of your Medicare enrollment.”  CMS Ex. 1 at 1; CMS Ex. 5 at 1.

On June 8, 2017, NGS issued a letter to Petitioner notifying her that it had deactivated her Medicare billing privileges as of June 5, 2017, because she did not revalidate her enrollment record.  CMS Ex. 4 at 1; CMS Ex. 5 at 3.

On June 20, 2017, NGS received a PECOS application from Petitioner to reactivate her Medicare billing privileges, along with an application to reassign her benefits.  CMS Exs. 7, 8.  After requesting additional information from Petitioner on July 11, 2017, NGS ultimately approved this application and reactivated Petitioner’s billing privileges effective June 20, 2017.  CMS Ex. 9 at 1-3; CMS Ex. 10 at 1. 

Petitioner asked NGS to reconsider its determination of the June 20, 2017 effective date for the reactivation of her Medicare billing privileges, explaining that she never received notification of the initial revalidation request.  CMS Ex. 11 at 2.  NGS issued an unfavorable reconsidered determination dated September 18, 2017 that maintained the June 20, 2017 effective date for Petitioner’s reactivation.  CMS Ex. 12 at 1-3.

Petitioner timely filed her request for hearing (RFH) in the Civil Remedies Division, and I was designated to hear and decide this case.  I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on October 6, 2017 that required each party to file a pre-hearing exchange consisting of a brief and any supporting documents.  Pre-Hearing Order ¶ 4.  CMS timely filed its brief (CMS Br.), which incorporated a motion for summary judgment, and twelve proposed exhibits (CMS Exs. 1-12).  Petitioner timely filed her brief (P. Br.) and offered six exhibits (P. Exs. 1-6). 

II. Decision on the Record and Admission of Exhibits

Neither party objected to the exhibits offered by the other party.  I therefore admit CMS Exs. 1-12 and P. Exs. 1-6 into the record.  Neither party identified witnesses. Consequently, I will not hold an in-person hearing in this matter, and I issue this decision based on the written record.3 Civ. Remedies Div. P. 19(d).

III. Issue

Whether CMS properly established June 20, 2017, as the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges.

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IV. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

V. Discussion

A. Applicable Law

1. Enrollment

Petitioner 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 it furnishes 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 Management and Budget.  42 C.F.R. § 424.502.  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.  The effective date for its billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “the date that [an enrolled physician] . . . first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).  In this case, the date of filing of Petitioner’s subsequently approved enrollment application is relevant.  If a supplier satisfies certain requirements, CMS will allow a supplier to bill retrospectively for up to 30 days prior to the effective date.  42 C.F.R. § 424.521(a)(1).

2. Revalidation

To maintain its 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 its enrollment information.  42 C.F.R. § 424.515(d).  Within 60 days of receiving CMS’s notice to recertify, the supplier must submit an appropriate enrollment application with

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complete and accurate information and supporting documentation.  42 C.F.R. § 424.515(a)(2).

3. Deactivation

The regulation authorizing deactivation explains that “[d]eactivation of Medicare billing privileges is considered an action to protect the provider or supplier from misuse of its billing number and to protect the Medicare Trust Funds from unnecessary overpayments.”  42 C.F.R. § 424.540(c).  CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the enrollee does not report a change to the information supplied on the enrollment application within 90 calendar days of when the change occurred.  Changes that must be reported include, but are not limited to, a change in practice location.  42 C.F.R. § 424.540(a)(2).  If CMS deactivates a supplier’s Medicare billing privileges, “[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary.”  42 C.F.R. § 424.555(b). 

The Departmental Appeals Board (DAB) has unambiguously stated that a supplier “may not receive payment for claims for services during any period when [her] billing privileges were deactivated.”  Willie Goffney, Jr., M.D.,DAB No. 2763 at 6 (2017); see Urology Grp. of NJ, LLC,DAB No. 2860 at 11 (2018) (“Taking these unique effects of revocation into consideration, it is reasonable to conclude that CMS intended for revocations and deactivations to share the feature of precluding a provider or supplier from collecting reimbursement for services rendered during the period of inactive Medicare billing privileges, while simultaneously intending for revocations to have more severe consequences on a provider’s or supplier’s ability to participate.”). 

4. Reactivation

The reactivation of an enrolled supplier’s billing privileges is governed by 42 C.F.R. § 424.540(b). The process for reactivation is contingent on the reason for deactivation. If CMS deactivates a supplier’s billing privileges due to a reason other than non-submission of a claim, the supplier must apply for CMS to reactivate its Medicare billing privileges by completing and submitting the appropriate enrollment application(s) or recertifying its enrollment information, if deemed appropriate. 42 C.F.R. §§ 424.540(a)(3), (b)(1).

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B. Findings of Fact and Conclusions of Law4

1. On June 20, 2017, NGS received Dr. Archibold’s application to reactivate her Medicare billing privileges and subsequently processed that application to approval.

2. The appropriate effective date of reactivation for Dr. Archibold’s Medicare billing privileges is June 20, 2017.

The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the “date of filing” or the date the supplier first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d).  The “date of filing” is the date that the Medicare contractor “receives” a signed enrollment application that the Medicare contractor is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).

As Petitioner concedes, NGS received her application to reactivate her Medicare enrollment on June 20, 2017.  P. Br. at 2; CMS Ex. 7 at 1; CMS Ex. 8 at 1.  NGS subsequently approved that application.  CMS Ex. 10 at 1-2.  The plain language of the governing regulations requires me to find the effective date of reactivation of Dr. Archibold’s Medicare enrollment to be June 20, 2017.  42 C.F.R. § 424.520(d). 

3. I have no authority to review the deactivation of Dr. Archibold’s Medicare billing privileges on June 5, 2017.

The majority of Petitioner’s brief is devoted to her argument that NGS should not have deactivated her Medicare enrollment, or at least should assign her an earlier effective date, because she did not receive the revalidation notice and past due notice letters from NGS.  Petitioner specifies that the business address to which NGS issued her notices was incorrect, and that she had previously notified CMS of her updated address, 2222 6th Avenue, Troy, NY, 12180, by a January 21, 2016 855-R reassignment application (effective January 25, 2016).  P. Br. at 2, citing P. Ex. 1 at 2-3.  CMS has presented evidence that it mailed the revalidation notice to the Saratoga Springs Address listed as Petitioner’s correspondence and practice location address, as well the Amsterdam Address.  CMS Ex. 1 at 1; CMS Ex. 3 at 7, 18, 24; CMS Ex. 5 at 1.

I am sympathetic to Petitioner’s claims, which if true, may have led Petitioner to believe she had properly updated her correspondence and business address on file.  P. Br. at 2.  Unfortunately, I have no jurisdiction to consider whether NGS acted properly in

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deactivating Petitioner’s Medicare enrollment, and cannot establish an earlier effective date for reactivation on that basis.  This is because deactivation is not an “initial determination” subject to administrative law judge review (deactivation decisions have a separate review process).  See 42 C.F.R. § 498.3(b)(6); Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017); see also 42 C.F.R. §§ 424.545(b) (providing an alternate mechanism by which suppliers can contest a deactivation).  My jurisdiction in this case is limited to reviewing the effective date of the approval of Petitioner’s reactivation enrollment application.  42 C.F.R. § 498.3(b)(15).

Petitioner also argues that the denial of claims from the June 2017 enrollment gap has caused her financial hardship.  P. Br. at 2. But as CMS points out, CMS Br. at 10‑11, I do not have the authority to provide equitable relief, no matter how warranted. See US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).

VI. Conclusion

For the foregoing reasons, CMS properly determined Petitioner’s effective date of re-enrollment to be June 20, 2017, the date she filed her subsequently approved application.

1. 205 Lake Avenue, Saratoga Springs, NY 12866 (the Saratoga Springs Address).
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2. 100 Holland Circle Drive, Amsterdam, NY 12010 (the Amsterdam Address). The Amsterdam Address was the correspondence and practice location address for Kwiat Eye and Laser Surgery PLLC, a group practice to which Petitioner previously reassigned benefits beginning November 1, 2012. CMS Ex. 2 at 4; CMS Ex. 6 at 8, 17.
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3. As such, CMS’s motion for summary judgment is denied as moot.
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4. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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