Paul Albano, M.D., DAB CR5432 (2019)

DECISION

National Government Services, Inc. (NGS), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reactivated the Medicare enrollment and billing privileges of Paul Albano, M.D.1 (Petitioner), effective June 22, 2017, and assigned Petitioner a retrospective billing date of May 23, 2017.  This created a lapse in billing privileges from March 8, 2017, through May 22, 2017.  NGS affirmed the effective date of enrollment and the retrospective billing date on reconsideration, and Petitioner appealed.  Because June 22, 2017, is the date NGS received the revalidation application it was able to process to approval, NGS correctly determined that the effective date for Petitioner’s reactivated billing privileges is June 22, 2017.

I. Background

Petitioner is a physician specializing in internal medicine who practices in Staten Island, New York, and who first enrolled in the Medicare program in 1973 under Provider Transaction Access Number (PTAN) 567681.  See, e.g.,CMS Exhibit (Ex.) 1 at 1-2.

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In 2011, Petitioner reassigned his billing privileges to a physician group practice, Targee Street Internal Medicine Group (Targee) of which he was an owner and an authorized official.  CMS Ex. 2 at 8, 25-26, 50-61.  NGS sent Petitioner two letters, each dated May 5, 2011.  CMS Ex. 3.  One letter notified Petitioner that Targee’s enrollment as a Medicare participating group practice, under PTAN A100046499, was effective April 21, 2011, and that Petitioner’s reassignment of his billing privileges to Targee, under his new group member PTAN, A400046500, was effective the same date.  Id. at 1.  The other letter notified Petitioner that his prior PTAN (567681) was deactivated effective May 4, 2011.  Id. at 3.  Petitioner does not contest the deactivation of his prior PTAN.  See Petitioner’s Exs. (P. Exs.) 1 and 8.

By letter dated October 14, 2016, NGS notified Targee (PTAN A100046499) that it needed to revalidate its enrollment record by December 31, 2016.  CMS Ex. 4 at 1-2.  Petitioner asserts that Targee submitted two revalidation applications prior to the deactivation of its PTAN and that “both were denied without an opportunity to reprocess.”  P. Ex. 8 at 1.  By letter dated March 9, 2017, NGS notified Targee that its billing privileges had been deactivated, effective March 8, 2017.  CMS Ex. 4 at 3-4.

On June 22, 2017, Petitioner submitted an online application to revalidate his Medicare enrollment using the Provider Enrollment, Chain and Ownership System (PECOS).  See CMS Ex. 5 at 1-6.  NGS processed this application to completion.  See id. at 7-9.  By letter dated August 10, 2017, NGS notified Petitioner that his Medicare enrollment application had been approved and that he was authorized to bill Medicare under his new PTAN (A300175655) effective May 23, 2017.2   Id. at 7-8.

Petitioner requested reconsideration of the effective date, which had resulted in a lapse in billing privileges from March 8, 2017 (the date Targee’s PTAN was deactivated), through May 22, 2017.  CMS Ex. 6 at 2.  NGS issued an unfavorable reconsidered determination,

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dated October 4, 2017, finding that Petitioner had not provided evidence to definitively support an earlier effective date.  Id. at 7-10.

On November 10, 2017, Petitioner timely requested a hearing before an administrative law judge to challenge the reconsidered determination.  The case was assigned to me, and I issued an Acknowledgement and Pre-Hearing Order, dated November 16, 2017 (Pre-Hearing Order).  My Pre-Hearing Order required each party to file a pre‑hearing exchange consisting of a brief and any supporting documents, including any Motion to Dismiss or Motion for Summary Judgment.  Pre-Hearing Order ¶ 4.

Petitioner did not file a pre-hearing brief but filed five proposed exhibits (P. Exs. 1-5).  CMS subsequently filed a prehearing brief (CMS Br.), which incorporated a motion for summary judgment, and six proposed exhibits (CMS Exs. 1-6).  Because Petitioner is unrepresented and had filed his proposed exhibits before CMS filed its exchange (and, therefore, had not had a full opportunity to respond to CMS’s arguments and documentary evidence), I issued an order on December 20, 2017, allowing Petitioner until January 25, 2018, to file a pre-hearing brief, any additional documentary evidence, or objections to CMS’s proposed exhibits.  December 20, 2017 Order.  On January 24, 2018, Petitioner submitted three additional proposed exhibits (P. Exs. 6-8).

Neither party objected to the exhibits offered by the opposing party.  Therefore, in the absence of objection, I admit CMS Exs. 1-6 and P. Exs. 1-8.  As I informed the parties in my Pre-Hearing Order, “[a]n in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Pre-Hearing Order ¶ 10.  Here, neither party offered the written direct testimony of any witness as part of its pre-hearing exchange.  Therefore, an in‑person hearing is not necessary, and I decide this case based on the parties’ written submissions, without regard to whether the standards for summary judgment are satisfied.

II. Issue

The issue in this case is whether NGS properly established June 22, 2017, as the effective date of reactivation of Petitioner’s Medicare enrollment.

III. 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)).

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IV. Discussion

A. Applicable Legal Authority

The Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).

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 define “Enroll/Enrollment” as “the process that Medicare uses to establish eligibility to submit claims for Medicare covered items and services.”  42 C.F.R. § 424.502.  A provider or supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  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).  CMS then establishes an effective date for billing privileges consistent with 42 C.F.R. § 424.520 and may permit retrospective billing as provided in 42 C.F.R. § 424.521.  CMS sets the effective date of enrollment in accordance with the following:

The effective date for billing privileges for physicians, non‑physician practitioners, physician and non-physician practitioner organizations, and ambulance suppliers is the later of—

(1) The date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or

(2) The date that the supplier first began furnishing services at a new practice location.

42 C.F.R. § 424.520(d).

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B. Findings of Fact and Conclusions of Law3

1. On June 22, 2017, NGS received Petitioner’s application to reactivate his Medicare billing privileges and subsequently approved that application.

2. The effective date of reactivation for Petitioner’s Medicare billing privileges is June 22, 2017.

The effective date for Medicare enrollment and billing privileges for physicians, such as Petitioner, is either:  1) the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or 2) 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).  CMS may permit retrospective billing as provided in 42 C.F.R. § 424.521.

Here, NGS received a revalidation application from Petitioner on June 22, 2017.  CMS Ex. 5 at 1.  NGS subsequently approved that application.  Id. at 7-9.  Accordingly, as required by regulation, the effective date of reactivation of Petitioner’s Medicare enrollment is June 22, 2017.4

In support of his position that I should grant him an earlier effective date of reactivation, Petitioner states that Targee attempted to revalidate its PTAN (A100046499) and that he filed his enrollment application on June 22, 2017, “because NGS ultimately denied the revalidation of PTAN A100046499 in June 2017.”  P. Ex. 8 at 2.  Petitioner also represents that, although Targee’s PTAN was deactivated effective March 8, 2017, he “continued to see and treat patients” after that date.  Id. at 1.  As I explain in the following sections of this decision, Petitioner’s arguments concern issues that are beyond my jurisdiction to hear and decide.

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3. I have no authority to review NGS’s prior decision to deactivate Targee’s billing privileges or Petitioner’s group member PTAN.

NGS deactivated Targee’s billing privileges (under PTAN A100046499) effective March 8, 2017.  CMS Ex. 4 at 3-4.  Although the record is not entirely clear on this point, it appears that Petitioner’s group member PTAN (A400046500) reassigning his billing privileges to Targee was automatically deactivated based on Targee’s deactivation.  See, e.g., Medicare Program Integrity Manual, CMS Pub. 100-08, Ch. 15, § 15.29.4.3 (reactivation effective date “applies to group members whose reassignment association was terminated when the group was deactivated”).  Before me, Petitioner has not explicitly argued that NGS acted improperly in deactivating Targee’s billing privileges or Petitioner’s associated group member PTAN.  P. Exs. 1, 8.

However, Petitioner may be making such an argument implicitly by stating that he tried his best “to comply with the requested information” to revalidate Targee’s Medicare enrollment.  P. Ex. 8 at 2.  In support, Petitioner submitted two emails dated December 28, 2016, from an individual who identified himself as Targee’s Practice Manager, to CMS’s External User Services Support Center, pertaining to that individual’s attempts to revalidate the group’s PTAN.  P. Ex. 7 at 1-5, 7-9.  Petitioner also submitted a January 3, 2017 reply email indicating that Targee’s revalidation application had been rejected due to an invalid IRS document.  Id. at 6. 

Petitioner argues additionally that he submitted his application to reactivate his individual enrollment as soon as he learned that Targee’s revalidation application had been denied:  “Once it was clear that the group application was not going to be revalidated, [I did] immediately submit an application for my individual [PTAN] to become active.”  P. Ex. 8 at 2.  I note that NGS’s email rejecting Targee’s revalidation application was dated January 3, 2017 (P. Ex. 7 at 6) and its deactivation letter to Targee was dated March 9, 2017 (CMS Ex. 4 at 3).  It therefore appears unlikely that Petitioner did not learn that Targee’s efforts at revalidation were unsuccessful until June 2017.  Yet, even if I were to accept as true Petitioner’s assertions that he did all he could to ensure that Targee revalidated its enrollment and that he did not learn that Targee had been deactivated until June 2017, these facts would not lead me to conclude that NGS erred in setting the effective date of reactivation for Petitioner’s Medicare enrollment.

That is because the issues of whether Targee diligently attempted to revalidate its enrollment prior to the deactivation of its PTAN, or whether Petitioner was not notified of the deactivation of Targee’s PTAN until June 2017, are only relevant, if at all, to whether NGS acted properly in deactivating Targee’s billing privileges.  However, I do not have jurisdiction to review NGS’s deactivation of Targee’s Medicare billing privileges (or, consequently, the deactivation of the billing privileges associated with Petitioner’s group member PTAN) because deactivation is not an “initial determination”

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and deactivation decisions have a separate review process.  See 42 C.F.R. §§ 424.545(a), (b), 498.3(b); see also Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017).

4. I cannot grant Petitioner equitable relief.

Finally, Petitioner contends that I should grant him an earlier effective date because he “continued to see and treat patients” after March 8, 2017.  P. Ex. 8 at 1.  Petitioner also represents that, during the lapse in billing privileges described above, he “was fully licensed and fully insured in the State of New York and legally permitted to practice medicine with no restrictions and no sanctions from any governmental body.”  P. Ex. 1 at 1.  However, Petitioner’s contentions amount to a request for equitable relief, and I may not set aside the lawful exercise of discretion by CMS or its contractor based on principles of equity.  See Cent. Kan. Cancer Inst., DAB No. 2749 at 10 (2016); US Ultrasound, DAB No. 2302, at 8 (2010); see also James Shepard, M.D., DAB No. 2793 at 9 (2017).

V. Conclusion

For the reasons explained above, I affirm NGS’s determination that the effective date of Petitioner’s Medicare enrollment is June 22, 2017, and leave unchanged NGS’s determination that Petitioner’s retrospective billing date is May 23, 2017.

1. CMS records identify Petitioner as “Paulino Albano” and “Paulino V. Albano, Jr.”  CMS Exhibits 1, 5.  In his hearing request, Petitioner identifies himself as “Paul V. Albano, MD.”
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2. Although NGS identified May 23, 2017 as the “effective date,” of Petitioner’s Medicare enrollment (CMS Ex. 5 at 8), this is inconsistent with the regulations.  By regulation, the “effective date” is the date NGS received an application from Petitioner that it eventually approved:  in this case June 22, 2017.  See 42 C.F.R. § 424.520(d).  CMS may, however, permit a supplier to “retrospectively bill” for services for up to 30 days prior to that effective date.  42 C.F.R. § 424.521(a).  Because May 23, 2017, is 30 days prior to the date NGS received Petitioner’s application, it appears that NGS used the term “effective date” to refer to the date from which Petitioner was authorized to retrospectively bill for Medicare services.  See CMS Br. at 5 n.6.  For clarity, I use the term “effective date” in later sections of this decision to refer to the effective date of enrollment that is established by regulation (June 22, 2017), not the date from which retrospective billing is authorized (May 23, 2017).
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3. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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4. Additionally, NGS permitted Petitioner to retrospectively bill for up to 30 days prior to the June 22, 2017 effective date of enrollment, or May 23, 2017, in accordance with the regulation at 42 C.F.R. § 424.521(a)(1).  Id.  The retrospective billing date established by NGS is not an “initial determination” that I have authority to review.  See 42 C.F.R. § 498.3(b).
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