David Paris, NP, DAB CR5717 (2020)

DECISION

Noridian Healthcare Solutions (Noridian), a Medicare administrative contractor, deactivated the Medicare enrollment and billing privileges of Petitioner, David Paris, NP, on April 26, 2019, based on his failure to comply with a request that he revalidate his enrollment record.  That same day, Petitioner submitted enrollment applications to reactivate his Medicare enrollment and billing privileges.  However, Petitioner failed to comply with a development request regarding his April 26, 2019 submission, and as a result, Noridian rejected his April 26, 2019 enrollment applications.  Petitioner did not re-submit enrollment applications to reactivate and revalidate his Medicare enrollment and billing privileges until August 8, 2019.  For the reasons discussed below, I conclude that the effective date of Petitioner's reactivated Medicare enrollment and billing privileges remains August 8, 2019.

I.  Background and Procedural History

Petitioner is a nurse practitioner.  See CMS Exhibit (Ex.) 9 at 15.  On July 19, 2018, Noridian informed Petitioner that he was required to revalidate his Medicare reenrollment record no later than October 31, 2018.  CMS Ex. 1 at 1-2; see 42 C.F.R. § 424.515 ("To

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maintain Medicare billing privileges, a provider or supplier . . . must resubmit and recertify the accuracy of its enrollment information every 5 years.").  Noridian explained that a "[f]ailure to respond to this notice will result in a hold on [his] payments, and possible deactivation of [his] Medicare enrollment."  CMS Ex. 1 at 1.  Noridian further cautioned that Petitioner "will not be paid for services rendered during the period of deactivation" and that "[t]his will cause a gap in [his] reimbursement."  CMS Ex. 1 at 1.

On November 27, 2018, Noridian sent Petitioner a letter captioned, "REVALIDATION:  Past-Due Group Member," in which it explained that Petitioner had not revalidated his enrollment record by the October 31, 2018 deadline.  CMS Ex. 2 at 1.  Noridian once again explained that if Petitioner failed to revalidate his enrollment record, his enrollment would be deactivated and he would not be paid for services rendered during the period of deactivation.  CMS Ex. 2 at 1-2.

Petitioner submitted Medicare enrollment applications to revalidate his enrollment record, and on February 28, 2019, Noridian sent an email requesting additional development.  CMS Ex. 3 at 1.  Noridian explained that it may reject Petitioner's application if he did not comply with the development request within 30 days.  CMS Ex. 3 at 1-2.  A follow-up letter, dated April 5, 2019, informed Petitioner that Noridian may reject his application if he did not furnished the requested information by April 21, 2019.  CMS Ex. 4 at 1.  On April 26, 2019, Noridian notified Petitioner that it had stopped his Medicare billing privileges because he had not revalidated his enrollment record.  CMS Ex. 5 at 1.

On April 26, 2019, Petitioner submitted new Medicare enrollment applications, and on June 5, 2019, Noridian requested that Petitioner submit revisions and/or supporting documentation, to include signed certification statements for his Form CMS-855R application.  CMS Ex. 6 at 1-2; P. Ex. 6 at 1-2; see CMS Ex. 9 at 10-17.  Noridian explained that it may reject his application if he did not submit the requested information by July 5, 2019.  CMS Ex. 6 at 1.  In a letter dated July 23, 2019, Noridian informed Petitioner that it had rejected his applications because he did not respond to the June 5, 2019 request that he submit signed certification statements for his Form CMS-855R application.  CMS Ex. 7 at 1.

On August 8, 2019, Petitioner submitted Medicare enrollment applications that Noridian processed to approval on September 17, 2019.  CMS Ex. 8 at 1; see CMS Ex. 10 at 4.  Noridian explained that Petitioner "will have a gap in billing privileges from April 26, 2019 through August 7, 2019 for failing to submit [his] revalidation application."  CMS Ex. 8 at 1.

Petitioner submitted a request for reconsideration dated October 9, 2019, in which he requested an April 26, 2019 effective date of his reactivated enrollment and billing privileges.  CMS Ex. 9 at 5.  Petitioner explained that he was seeking an effective date of

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April 26, 2019, in order "to avoid a gap in Medicare billing privileges."  CMS Ex. 9 at 5.  Petitioner reported that he had mailed the certification statements and "resent," inter alia, his signed certification statement.  CMS Ex. 9 at 5.  However, the supporting evidence submitted by Petitioner indicated that he had submitted a signed certification statement for a Form CMS-855I application rather than for than a Form CMS-855R application, as had been requested.  CMS Ex. 9 at 10-14 (evidence submitted in support of Petitioner's request for reconsideration, to include a June 13, 2019 email message explaining that a copy of a signed certification statement certification statement had been attached to the message and a copy of a signed Form CMS-855I certification statement).

Noridian issued a reconsidered determination on January 8, 2019, in which it acknowledged Petitioner's claim that he had submitted certification statements but explained that "these were never received."  CMS Ex. 10 at 5.  Noridian reported that it had "reviewed the documentation on file . . . and determined that [his] request to remove the lapse in billing [from his] enrollment cannot be honored," and that his applications "were correctly rejected as the requested information was not correctly submitted."  CMS Ex. 10 at 5.  Noridian determined that "[a]s a result, a lapse in billing on your enrollment of April 26, 2019 through August 7, 2019 was placed on [his] enrollment."  CMS Ex. 10 at 5.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on February 26, 2020.  The Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order) on March 11, 2020, which directed the parties to file their respective pre-hearing exchanges.  CMS filed a pre‑hearing brief and motion for summary judgment (CMS Br.), along with 10 proposed exhibits (CMS Exs. 1-10).  Petitioner filed nine exhibits, but did not file a brief.1

CMS has not objected to Petitioner's evidentiary submissions.  Nonetheless, I exclude P. Exs. 2, 4, 5, 7, and 9 because these exhibits are duplicative of CMS Exs. 2, 4, 5, 7, and 8.  See Pre-Hearing Order § 8 ("Petitioner should not file as proposed exhibits any documents that CMS has already filed among its proposed exhibits.").  I also do not admit Petitioner's submission of "CMS Ex. 3" because it is duplicative of CMS Ex. 3 and has not been marked as a petitioner's exhibit.  Further, I do not admit P. Ex. 1, which is a copy of Petitioner's request for hearing; that document can be located at docket entry 1 in

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the DAB E-File case docket.  I admit the following two exhibits submitted by Petitioner: P. Ex. 6, consisting of email messages from Noridian dated April 26, June 5, and July 23, 2019, and P. Ex. 8, consisting of email messages from Noridian dated August 8, August 19, and September 10, 2019.  In summary, I admit CMS Exs. 1-10 and P. Exs. 6 and 8 into the evidentiary record.

Neither party has submitted written direct testimony, as addressed in sections 11 through 13 of the Pre-Hearing Order.  A hearing for the purpose of cross-examination is therefore unnecessary.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.2

II.  Issue

Whether CMS had a legitimate basis to assign Petitioner an August 8, 2019 effective date for his reactivated Medicare billing privileges.

III.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. § 498.3(b)(15); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); 42 U.S.C. § 1395cc(j)(8).

IV.  Findings of Fact, Conclusions of Law, and Analysis3

1. On July 19, 2018, Noridian informed Petitioner that he was required to revalidate his Medicare enrollment prior to October 31, 2018.

2. On April 26, 2019, Noridian deactivated Petitioner's enrollment and billing privileges because he had not submitted an application that Noridian could process to approval.

3. On April 26, 2019, Petitioner submitted enrollment applications to revalidate his enrollment record.

4. On June 5, 2019, Noridian requested additional development, to include that Petitioner provide signed certification statements for his Form CMS-855R application.

5. Petitioner did not provide the requested information.

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6. Noridian rejected Petitioner's April 26, 2019 enrollment applications on July 23, 2019, because he had not complied with the June 5, 2019 development request.

7. On August 8, 2019, Petitioner submitted enrollment applications that Noridian ultimately processed to approval.

8. Pursuant to 42 C.F.R. § 424.520(d)(1), Noridian had a legitimate basis to reactivate Petitioner's enrollment and billing privileges, effective August 8, 2019.

As a nurse practitioner, Petitioner is a "supplier" for purposes of the Medicare program.  See CMS Ex. 9 at 15; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 498.2 (definitions of supplier).  A "supplier" furnishes items or services under Medicare, and the term applies to physicians or other practitioners who 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 that seeks billing privileges under 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."  Id.; 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 [its] 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,

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Jr., M.D., DAB No. 2763 at 6 (2017), aff'd sub nom. Goffney v. Azar, 2:17-CV-8032 (C.D. Cal. Sept. 25, 2019); see Urology Grp., DAB No. 2860 at 11 ("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."); 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).

In April 2019, Petitioner submitted an application to revalidate his Medicare enrollment record.  See CMS Ex. 9 at 15-17; P. Ex. 6 at 1-2.  Thereafter, Noridian requested additional development, to include signed certification statements for Petitioner's Form CMS-855R application.  P. Ex. 6 at 1-2.  The record does not evidence that Petitioner submitted the requested signed certification statements, and in fact, indicates that Petitioner submitted signed certification statements for his Form CMS-855I application.  CMS Ex. 9 at 10-14.  After Petitioner did not provide the requested development, Noridian informed Petitioner on July 23, 2019, that it had rejected his applications.  CMS Ex. 7 at 1.  Petitioner did not submit new applications to revalidate and reactivate his enrollment record until August 8, 2019, and the effective date of his reactivated enrollment and billing privileges is correctly based on the August 8, 2019 receipt date of his applications.  CMS Ex. 8 at 1; P. Ex. 8 at 1-2.

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)."  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).  Petitioner's enrollment and billing privileges had already been deactivated for failure to respond to a revalidation request when he submitted his April 26, 2019 applications, and Noridian appropriately rejected his April 26, 2019 applications after he failed to submit the requested development.  CMS Exs. 6 at 1-2; 7 at 1; see CMS Ex. 5 at 1.  Petitioner thereafter submitted new enrollment applications on August 8, 2019, that could be processed to approval, and Noridian correctly assigned an

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August 8, 2019 effective date for Petitioner's reactivated enrollment and billing privileges based on the receipt date of the new applications.  42 C.F.R. § 424.520(d)(1); see 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."); 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."); 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 his billing privileges were deactivated.").

The deactivation of Petitioner's billing privileges on April 26, 2019, is not reviewable.  42 C.F.R. § 498.3(b) (listing the types of initial determinations that are subject to 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."); Frederick Brodeur, DAB No. 2857 at 12 ("A contractor's deactivation decision is not an initial determination subject to ALJ or [DAB] review."); Willie Goffney, DAB No. 2763 at 5 (stating no regulation provides appeal rights with respect to the contractor's deactivation).  I can only review the effective date assigned for Petitioner's reactivated billing privileges, and Petitioner has not presented evidence that he submitted an enrollment application to reactivate his enrollment and billing privileges prior to August 8, 2019, that could be processed to approval.

Petitioner argues that he should be assigned an effective date of reactivated enrollment and billing privileges of April 26, 2019, based on his submission of enrollment applications that day.  Request for Hearing at 1.  However, Petitioner has not submitted evidence that he submitted complete enrollment applications that Noridian could process to approval.  To the contrary, Petitioner's request for reconsideration evidences that he responded to the development request by submitting a signed certification statement for a Form CMS-855I application, rather than a Form CMS-855R application.  CMS Ex. 9 at 10-14.  I acknowledge that the circumstances are unfortunate and apparently stem from Petitioner's mistaken belief that he had provided the requested development through his submission of a Form CMS-855I certification statement, but the simple fact is that Petitioner has not identified any error committed by CMS or Noridian in the assignment of effective date of reactivated billing privileges.  Pursuant to 42 C.F.R. § 424.520(d)(1), Noridian had a legitimate basis to assign an effective date of August 8, 2019, for Petitioner's reactivated billing privileges, which is based on the date of receipt of his application for purposes of revalidation.

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

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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 him 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 August 8, 2019 effective date of Petitioner's reactivated Medicare enrollment and billing privileges.

1. Because Petitioner did not timely file his pre-hearing exchange, I directed him to both show cause why I should not dismiss this case and to file his pre-hearing exchange.  In response, Petitioner filed numerous exhibits but did not submit any written arguments.  See Pre-Hearing Order § 8 (requiring that a pre-hearing exchange include a brief "addressing all issues of law and fact" or a motion for summary judgment in lieu of a brief).  Petitioner also did not provide any response to my order directing him to show cause why this case should not be dismissed.  Nonetheless, I issue this decision on the written record in lieu of dismissing this case.
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2. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
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3. Findings of fact and conclusions of law are in italics and bold font.
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