Carissa Searcy, NP, DAB CR5414 (2019)

DECISION

Petitioner’s Medicare billing privileges were deactivated on March 5, 2018, as a result of her failure to timely comply with a request that she revalidate her Medicare enrollment.  For the reasons discussed below, I conclude that the effective date of Petitioner’s reactivated Medicare billing privileges remains March 12, 2018.

I.  Background and Procedural History

On November 14, 2017, Novitas Solutions (Novitas), a Medicare administrative contractor, sent a letter to Petitioner, a nurse practitioner, requesting that she revalidate her Medicare enrollment no later than January 31, 2018.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 2 at 1; see CMS Ex. 3 at 2.  Novitas instructed Petitioner to “update or confirm all the information in [her] record . . . .”  CMS Ex. 2 at 1.  Novitas cautioned Petitioner that if “[her] enrollment is deactivated,” she “will not be paid for services rendered during the period of deactivation” which “will cause a gap in [her] reimbursement.”  CMS Ex. 2 at 1.

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In January 2018, Petitioner filed enrollment applications for the purpose of revalidation.  CMS Exs. 3, 4.  In her individual enrollment application, Petitioner updated the contact person for her enrollment application, listing Ms. Shelia Cowley, along with Ms. Cowley’s telephone number, fax number, email address, and mailing address.  CMS Ex. 3 at 5.  On January 30, 2018, Novitas sent a letter to Ms. Cowley informing her that Petitioner’s January 2018 application was incomplete and that she should “[p]rovide a copy of all professional school degrees or certificates, or evidence of qualifying course work” for Petitioner.1   CMS Ex. 5 at 1.  Novitas asked that Petitioner furnish this information within 30 days.  CMS Ex. 5 at 1.  After Petitioner failed to timely respond to this development request, Novitas called Ms. Cowley on March 1, 2018, and again requested this information.  CMS Ex. 6 at 2.

After it did not receive a copy of Petitioner’s nursing degree in response to its January 30, 2018 development request (CMS Ex. 5 at 1), Novitas deactivated Petitioner’s billing privileges on March 5, 2018, because she had not revalidated her enrollment record.  CMS Ex. 7 at 1.  Novitas explained that as a result of Petitioner’s deactivation, it “will not pay any claims after this date.”  CMS Ex. 7 at 1.

Petitioner submitted applications for the purpose of revalidation that Novitas received on March 12, 2018.  CMS Exs. 9, 10.  In a letter dated April 3, 2018, Novitas informed Petitioner that it had approved her applications and reactivated her billing privileges, but that Petitioner had a “gap in billing privileges from 03/05/2018 through 03/11/2018 for failing to respond to a development request related to a revalidation application.”  CMS Ex. 12 at 1.

Petitioner submitted a request for reconsideration, dated April 10, 2018, in which she sought removal of the gap in her reactivated billing privileges.  CMS Ex. 6.  Petitioner explained that Ms. Cowley “did realize that a copy of [Petitioner’s] MSN degree was required in order to revalidate since she has done several revalidations for [Petitioner’s] colleagues,” but also explained that Ms. Cowley did not know how to upload a copy of the degree to the internet-based Provider, Enrollment, Chain and Ownership System (PECOS).2  CMS Ex. 6 at 2.  Petitioner also acknowledged that even though Novitas had requested a copy of the nursing degree by telephone on March 1, 2018, Ms. Cowley did not send a copy of the degree that same day (because she was busy with “month end

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processes”) or the following day (because she had to participate in a “Clean-Up Day to prepare for an audit”).  CMS Ex. 6 at 2.

Novitas issued a reconsidered determination on June 26, 2018, in which it maintained the March 12, 2018 effective date of Petitioner’s reactivated billing privileges.  CMS Ex. 13 at 2.  Novitas explained the following in its reconsidered determination:

Carissa Searcy, NP has not provided evidence to support an earlier effective date.  Therefore, Novitas Solutions is not granting you access to the Medicare Trust Fund (by way or issuance [of]) a new Medicare effective date.  The gap in coverage is applied when a provider/supplier is non-responsive to a revalidation request or in this case, a development request.  The gap is between the deactivation and reactivation of billing privileges, with the reactivation effective date being based on the receipt date of the application.  Novitas Solutions issued a development letter on January 30, 2018 requesting a copy of your master’s degree; however, no response was received within the allotted 30 day timeframe.

CMS Ex. 13 at 3.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on July 13, 2018.  ALJ Bill Thomas issued an Acknowledgment and Pre‑Hearing Order (Pre-Hearing Order) on July 19, 2018, at which time he directed the parties to file their respective pre-hearing exchanges.3   CMS filed a motion for summary judgment in lieu of a brief (P. Br.), along with 14 proposed exhibits (CMS Exs. 1-14).  Petitioner filed a letter that I construe as a brief and response to CMS’s motion for summary judgment (P. Br.) and four exhibits (P. Exs. 1-4).  In the absence of any objections, I admit CMS Exs. 1-14 and P. Exs. 1-4 into the evidentiary record.

A hearing for the purpose of cross-examination is unnecessary because neither party has submitted written direct testimony.  Pre-Hearing Order §§ 8-10.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.4

II.  Issue

Whether CMS had a legitimate basis to assign Petitioner a March 12, 2018 effective date for her reactivated Medicare billing privileges.

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III.  Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

IV.  Findings of Fact, Conclusions of Law, and Analysis5

1. On November 14, 2017, Novitas requested that Petitioner revalidate her Medicare enrollment no later than January 31, 2018.

2. On January 19, 2018, Petitioner submitted a revalidation application that did not include a copy of her nursing degree.

3. On January 30, 2018, Novitas sent a development letter in which it instructed Petitioner to submit a copy of her nursing degree within 30 days, and it followed up by telephone after Petitioner did not comply with the request within 30 days.

4. On March 5, 2018, after Petitioner did not timely submit a complete revalidation application, Novitas notified Petitioner that it had deactivated her billing privileges that same day.

5. On March 12, 2018, Petitioner submitted an enrollment application for purposes of revalidation and reactivation of her billing privileges.

6. Novitas approved the revalidation application and assigned a March 12, 2018 effective date for her reactivated Medicare billing privileges.

7. An effective date earlier than March 12, 2018, is not warranted for the reactivation of Petitioner’s Medicare enrollment and billing privileges.

As a nurse practitioner, Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex. 3 at 2; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier); 498.2.  A “supplier” furnishes items or services under Medicare and the term applies to physicians or other practitioners that are not included within the definition of the phrase “provider of services.”  42 U.S.C. § 1395x(d).  A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The regulations at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program.  42 C.F.R. §§ 424.510-424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program).  A supplier who seeks billing privileges under

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Medicare “must submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a)(1).  “Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program.”  42 C.F.R. § 424.510(a)(1); see also 42 C.F.R. § 424.510(d) (listing enrollment requirements).  Thereafter, “[t]o maintain Medicare billing privileges, a . . . supplier . . . must resubmit and recertify the accuracy of its enrollment information every 5 years.”  42 C.F.R. § 424.515.  Further, a supplier “may be required to revalidate their enrollment outside the routine 5-year revalidation cycle.”  42 C.F.R. § 424.515(e).

CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the enrollee does not provide complete and accurate information within 90 days of “receipt of notification.”  42 C.F.R. § 424.540(a)(3).  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); Urology Grp. of NJ, LLC, DAB No. 2860 at 10 (2018) (“The regulations, taken together, clearly establish that a deactivated provider or supplier was not intended to be entitled to Medicare reimbursement for services rendered during the period of deactivation.”).  Further, and quite significantly, the Departmental Appeals Board (DAB) has unambiguously stated that “[i]t is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.”  Willie Goffney, Jr., M.D., DAB No. 2763 at 6 (2017); see Urology Grp., DAB No. 2860 at 11 (“Taking [the] 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.”); Frederick Brodeur, M.D., DAB No. 2857 at 16 (2018) (“Allowing a deactivated supplier to bill for services furnished during a period of deactivation would conflict with section 424.555(b) of the regulations . . . .”).  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).

On November 14, 2017, Novitas mailed a letter to Petitioner directing her to revalidate her Medicare enrollment record no later than January 31, 2018, and Novitas warned that Petitioner’s failure to timely revalidate could result in deactivation of her Medicare billing privileges, with a resulting gap in reimbursement.  CMS Ex. 2 at 1.  After Petitioner submitted an enrollment application that did not include a copy of her nursing degree, Novitas allowed her an additional 30 days to submit this documentation.  CMS Ex. 5 at 1.  Novitas deactivated Petitioner’s billing privileges on March 5, 2018, after Petitioner failed to comply with the development request that she provide a copy of her nursing degree.  CMS Ex. 7 at 1.

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The pertinent regulation with respect to the effective date of reactivation is 42 C.F.R. § 424.520(d).  Urology Grp., DAB No. 2860 at 7 (“The governing authority to determine the effective date for reactivation of Petitioner’s Medicare billing privileges is 42 C.F.R. § 424.520(d)” (italics omitted).).  Section 424.520(d) states that “[t]he effective date for billing privileges for physicians, non-physician practitioners, physician and non‑physician practitioner organizations . . . is the later of – (1) [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) [t]he date that the supplier first began furnishing services at a new practice location.”  The DAB has explained that the “date of filing” is the date “that an application, however sent to a contractor, is actually received.”  Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 5 (2016) (emphasis omitted).  Novitas deactivated Petitioner’s billing privileges because she did not submit a complete revalidation application in response to the revalidation request, in that she did not provide a copy of her nursing degree.  CMS Ex. 7 at 1.  Based on the March 12, 2018 receipt date of the enrollment application that was processed to approval, Novitas did not err in assigning a March 12, 2018 effective date for Petitioner’s reactivated billing privileges.  See CMS Ex. 12 at 1; 42 C.F.R. § 424.520(d); Urology Grp., DAB No. 2860 at 9 (“Moreover, the fact that a supplier must file a new enrollment application in order to reactivate its billing privileges is consistent with the language of section 424.520(d) and compelling evidence that the provision should apply to reactivations.”); Willie Goffney, DAB No. 2763 at 6 (“It is certainly true that [the petitioner] may not receive payment for claims for services during any period when [its] billing privileges were deactivated.”); Frederick Brodeur, DAB No. 2857 at 16 (“Petitioner remained enrolled in Medicare, but his deactivated status made [him] ineligible for payment for any covered services he furnished to otherwise eligible Medicare beneficiaries, pursuant to section 424.555(b), until he provided the information necessary to reactivate his billing privileges.”).

Petitioner is challenging the assignment of a March 12, 2018 effective date of her reactivated billing privileges, which resulted in a one-week gap in her Medicare billing privileges.  The deactivation of Petitioner’s billing privileges on March 5, 2018, based on her failure to comply with a revalidation request, is not reviewable.  Willie Goffney, DAB No. 2763 at 5 (stating no regulation provides appeal rights with respect to the contractor’s deactivation determination); Frederick Brodeur, DAB No. 2857 at 12 (“A contractor’s deactivation decision is not an initial determination subject to ALJ or [DAB] review.”); Ark. Health Grp., DAB No. 2929 at 12 (2019) (“Where, as here, the contractor deactivated Petitioner’s billing privileges, the issue for us (and the ALJ) is the effective date of reactivation.”).  I can only review the effective date assigned for Petitioner’s reactivated billing privileges, and Petitioner has not presented evidence that the March 12, 2018 effective date of reactivation was inappropriate.  Pursuant to 42 C.F.R. § 424.520(d), Novitas had a legitimate basis to assign an effective date of March 12, 2018, for Petitioner’s reactivated billing privileges.

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Petitioner, despite conceding in her request for reconsideration that she failed to submit a timely and complete revalidation application (CMS Ex. 6 at 2), now argues that Novitas violated her rights under the 14th Amendment of the Constitution by treating her differently than another nurse practitioner in her group practice.  P. Br. at 1.  Petitioner explained that Ms. Cowley had failed to timely submit a copy of the other nurse practitioner’s nursing degree, and as a result, the other nurse practitioner’s billing privileges were similarly deactivated.  Petitioner claims that when Novitas reactivated the other nurse practitioner’s billing privileges, Novitas did not inform her of any gap in her billing privileges as a result of the deactivation.  P. Br. at 2.  Even assuming, for the sake of this discussion, that Novitas inconsistently handled these two matters, Petitioner has not identified a scintilla of evidence supporting that Novitas discriminated against her when it determined that she, and not the other nurse practitioner, had a gap in her billing privileges.  The mere existence of an inconsistent outcome, without evidence of a discriminatory motive, does not amount to an equal protection violation.  And Petitioner’s request that I extend her the benefit of an apparent error is nothing more than a claim that “two wrongs make a right,” and I cannot and will not take such an action.  The only lawful remedy to address the purported inequity would have been for Novitas to reopen the other nurse practitioner’s initial determination; however, that determination is administratively final.  42 C.F.R. § 498.30 (12-month limitation on reopening of initial determinations).

I reiterate that I lack the authority to review the deactivation of Petitioner’s billing privileges, and the scope of my review is limited to whether Novitas assigned the correct effective date for Petitioner’s reactivated billing privileges.  See Frederick Brodeur, DAB No. 2857 at 12.  Nonetheless, I also address Petitioner’s claim that she did not receive the January 30, 2018 notice that directed her to submit a copy of her nursing degree.6  P. Br. at 1-2.  Petitioner’s current claim contrasts with her previous concession that Ms. Cowley knew she had to submit a copy of the nursing degree but did not do so because she did not know how to submit it and/or was busy at that time.  P. Br. at 1-2; CMS Ex. 6 at 2.  In fact, only a week after her deactivation, Petitioner (through Ms. Cowley) conceded that she failed to timely revalidate, stating:  “Please accept the following documents . . . I apologize for not getting them to you timely; we have recently had an Operational Site Visit from HRSA that has been consuming our time!  I do apologize!”  CMS Ex. 6 at 10.  Petitioner later acknowledged that even after Novitas had asked Ms. Cowley for the documentation by telephone on March 1, 2018, Ms. Cowley was busy with other matters and did not have time to send it to Novitas.  CMS Ex. 6 at 2.  Petitioner knew she had to submit a copy of her nursing degree and she did not do so.  Even if I had authority to review her deactivation, she has not shown that her failure to revalidate was attributable to any error on the part of Novitas.  Further, the DAB has clearly explained that, even when a revalidation notice deficiency has been alleged, an ALJ may not review the

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deactivation and is limited to deciding whether the effective date assigned for reactivated billing privileges is appropriate.  Ark. Health Grp., DAB No. 2929 at 10.

Novitas had a legitimate basis to deactivate Petitioner’s billing privileges when she failed to respond to the revalidation request, and it had a legitimate basis to assign a March 12, 2018 effective date for her reactivated billing privileges based on the date she submitted the enrollment application that was ultimately processed to approval.  42 C.F.R. § 424.520(d).

To the extent that Petitioner’s request for relief is based on principles of equitable relief, I cannot grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  Petitioner points to no authority by which I may grant her relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”).

V.  Conclusion

For the foregoing reasons, I uphold the March 12, 2018 effective date of Petitioner’s reactivated Medicare billing privileges.

1. Novitas sent this letter to the address that Petitioner provided for Ms. Cowley in her January 2018 enrollment application. CMS Ex. 5 at 1; see CMS Ex. 3 at 5.
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2. PECOS is the Provider, Enrollment, Chain and Ownership System, which is an internet-based application that enables Medicare providers and suppliers to electronically submit enrollment applications.
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3. This case was reassigned to me on March 8, 2019.
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4. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
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5. Findings of fact and conclusions of law are in italics and bold font.
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6. I reiterate that Novitas sent this letter to the address listed in Petitioner’s enrollment application. See n.1, supra.
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