Lisa Brown, PA, DAB CR5307 (2019)

DECISION

Petitioner’s Medicare billing privileges were deactivated on July 11, 2017, 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 August 7, 2017.

I. Background and Procedural History

On February 7, 2017, Wisconsin Physicians Service Insurance Corporation (WPS), a Medicare administrative contractor, sent a letter to Petitioner, a physician assistant, requesting that she revalidate her Medicare enrollment no later than April 30, 2017.  See Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 5-8.  WPS sent the

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letter to separate addresses in Ortonville, Michigan,1 and Sebewaing, Michigan.2  CMS Ex. 1 at 5, 7.  WPS instructed Petitioner to “update or confirm all the information in [her] record . . . .”  CMS Ex. 1 at 5, 7.  WPS cautioned Petitioner that a “[f]ailure to respond to this notice will result in a hold on [her] payments, and possible deactivation of [her] Medicare enrollment,” and further warned that, in the event of deactivation, “[Petitioner] will not be paid for services rendered during the period of deactivation” which “will cause a gap in [her] reimbursement.”  CMS Ex. 1 at 5, 7.

On May 5, 2017, WPS sent Petitioner a letter informing her that it had not received a revalidation application by the April 30, 2017 deadline.  CMS Ex. 1 at 9-10.  WPS again warned Petitioner that her billing privileges could be deactivated, which would cause a gap in reimbursement.  CMS Ex. 1 at 9.  Because Petitioner did not submit a revalidation application in response to the contractor’s request, WPS sent Petitioner a letter on July 12, 2017, informing her that it had deactivated her billing privileges effective July 11, 2017.  CMS Ex. 9 at 11-12.  The letter explained:

We have stopped your Medicare billing privileges on July 11, 2017, because you haven’t revalidated your enrollment record with us, or you didn’t respond to our requests for more information.  We will not pay any claims after this date.

CMS Ex. 1 at 11 (emphasis in original).  The letter informed Petitioner that she needed to revalidate her individual enrollment record, along with her reassignments of benefits to three separate medical practices.  CMS Ex. 1 at 11.  The letter explained that she “will not be paid for services rendered during the period of deactivation” and the deactivation “will cause a gap in [her] reimbursement.”  CMS Ex. 1 at 12.

Petitioner submitted a revalidation application, Form CMS-855I, via the internet-based Provider, Enrollment, Chain, and Ownership System (PECOS) that WPS received on

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August 7, 2017.3 CMS Ex. 1 at 13.  In a response to a development request regarding her application, Petitioner requested a “retro date of 7/11/2017 – if this is a true new application as her PTAN was deactivated.”  CMS Ex. 1 at 20.

In a letter dated September 7, 2017, WPS informed Petitioner that it had reactivated her billing privileges, but that “the effective date . . . reflects a gap in coverage from 07/11/2017 to 08/06/2017 for failure to respond to the revalidation requested development.”  CMS Ex. 1 at 32, 35, 38.

Petitioner, through Eric S. Seiger, D.O., submitted a request for reconsideration, dated September 25, 2017, in which she disputed the effective date assigned for her reactivated billing privileges.  CMS Ex. 1 at 40-41.  Petitioner explained that she had received a copy of the July 12, 2017 letter, and that this letter had been sent to a practice where she no longer worked.  CMS Ex. 1 at 40.  Petitioner stated that she did not revalidate her enrollment after receiving this letter because “[t]he letter was initially perceived as a deactivation of her numbers with [another] practice because she has not worked there in a few years.”  CMS Ex. 1 at 40.  Petitioner added that, “[i]n revisiting the letter . . . , it included three separate . . .  enrollments (medical practices), one of which was our practice.”  CMS Ex. 1 at 40.  Petitioner contended that she “never received a revalidation notice from WPS.”  CMS Ex. 1 at 40.

WPS issued a reconsidered determination on October 18, 2017, in which it maintained the August 7, 2017 effective date of Petitioner’s reactivated billing privileges.  CMS Ex. 1 at 2-3.  WPS explained that it received the enrollment application for purposes of reactivation on August 7, 2017.  CMS Ex. 1 at 2.  The reconsidered determination included the following discussion:

A discretionary review has been completed of the enrollment record and reconsideration request for Lisa Brown, PA.  The revalidation notice is sent within 2-3 months prior to the revalidation due date.  In addition, the revalidation notice is mailed to at least two reported addresses.  After further review, the revalidation notice was mailed to a valid correspondence address and primary practice address on file.

CMS Ex. 1 at 2.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on December 7, 2017.  ALJ Keith W. Sickendick issued an Acknowledgment and Prehearing Order (Prehearing Order) on December 14, 2017, at which time he

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directed the parties to file their respective pre-hearing exchanges.4  CMS filed a Motion for Summary Judgment and Pre-Hearing Brief (CMS Br.), along with four proposed exhibits (CMS Exs. 1-4).  CMS also filed a reply brief.  Petitioner, through Dr. Seiger, filed an opposition to CMS’s motion for summary judgment and pre-hearing brief (P. Br.), along with one proposed exhibit (P. Ex. 1).  In the absence of objections, I admit all submitted exhibits into the evidentiary record.

Neither party has listed any witnesses, and both parties have separately provided written notice that in-person hearing is not necessary.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.5

II. Issue

Whether CMS had a legitimate basis to assign Petitioner an August 7, 2017 effective date for her reactivated billing privileges.

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 Analysis6

1. On February 7, 2017, WPS requested that Petitioner revalidate her Medicare enrollment no later than April 30, 2017.

2. Petitioner did not respond to the revalidation request, and WPS deactivated Petitioner’s billing privileges effective July 11, 2017.

3. WPS received Petitioner’s enrollment application for purposes of revalidation and reactivation on August 7, 2017, and WPS ultimately processed that application to approval.

4. An effective date earlier than August 7, 2017, is not warranted for the reactivation of Petitioner’s Medicare enrollment and billing privileges.

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As a physician assistant, Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex. 1 at 13; 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 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 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 a request for such information.  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 Group 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 Group,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

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billing number and to protect the Medicare Trust Funds from unnecessary overpayments.”  42 C.F.R. § 424.540(c).

On February 7, 2017, WPS mailed letters to Petitioner directing her to revalidate her Medicare enrollment record no later than April 30, 2017, and WPS warned that Petitioner’s failure to revalidate could result in deactivation of her Medicare billing privileges, with a resulting gap in reimbursement.  CMS Ex. 1 at 5, 7.  WPS thereafter deactivated Petitioner’s billing privileges on July 11, 2017, after Petitioner did not revalidate her enrollment.  CMS Ex. 1 at 11.  In seeking reconsideration, Petitioner contended that the revalidation requests were not sent to her current practice address.  CMS Ex. 1 at 41.  Likewise, in her request for hearing, Petitioner argued that although she had three listed reassignments of benefits, WPS sent the letter to her other two reassignments rather than her current employment address.  Because Petitioner had not updated the correspondence address in her enrollment record through the submission of a Form CMS-855I, she had never asked WPS to send enrollment-related correspondence to her current employer, SVC Dermatology in Fenton, Michigan.  WPS acted appropriately when it sent revalidation notices to the correspondence addresses that were on file in her individual enrollment record.

The pertinent regulation with respect to the effective date of reactivation is 42 C.F.R. § 424.520(d).  Urology Group,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).  WPS deactivated Petitioner’s billing privileges based on her failure to comply with the revalidation request (CMS Ex. 1 at 11-12), and, on August 7, 2017, Petitioner electronically filed an application for purposes of revalidation and reactivation that was processed to approval.  CMS Ex. 1 at 13-17, 31-39.  Based on the August 7, 2017 receipt date of the enrollment application that was processed to approval, WPS did not err in assigning an August 7, 2017 effective date for reactivated billing privileges.  42 C.F.R. § 424.520(d); see Urology Group,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]

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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 an August 7, 2017 effective date of her reactivated billing privileges, which resulted in a nearly one-month gap in her Medicare billing privileges.  The deactivation of Petitioner’s billing privileges on July 11, 2017, 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);  Frederick Brodeur,DAB No. 2857 at 12 (“A contractor’s deactivation decision is not an initial determination subject to ALJ or [DAB] review.”).  I can only review the effective date assigned for Petitioner’s reactivated billing privileges, and Petitioner has not presented evidence that the effective date of reactivation, August 7, 2017, was inappropriate.  Pursuant to 42 C.F.R. § 424.520(d), WPS had a legitimate basis to assign an effective date of August 7, 2017, for Petitioner’s reactivated billing privileges.

Petitioner argues that she revalidated her enrollment when she submitted an application to reassign her benefits to SVC Dermatology in July 2013 and therefore “would not be due for revalidation until 2018.”  P. Br. at 2.  Petitioner had previously revalidated her enrollment record in July 2012 (CMS Ex. 1 at 78, 82-106), and, contrary to her assertions, she did not revalidate her enrollment in 2013.  Although Petitioner submitted an enrollment application to reactivate her Medicare enrollment in December 2013, she did not revalidate her enrollment at that time.  CMS Ex. at 47-74.  Further, when Petitioner submitted her enrollment application in December 2013, she listed M15 Urgent Care, PC, and not SVC Dermatology, as her correspondence address.  CMS Ex. 1 at 49.  Thus, although Petitioner had reassigned benefits to SVC Dermatology, she had indicated that enrollment-related correspondence should be directed to one of her other reassignments, M15 Urgent Care, PC.  CMS Ex. 1 at 49.  Further, when she previously revalidated her enrollment, she had listed as a correspondence address a different practice for which she continued to have a reassignment of benefits on file, Brent M. Boyce, MD, PC.  CMS Ex. 1 at 84.  SVC Dermatology was not listed as a correspondence address in Petitioner’s individual enrollment record, and Petitioner’s claim that WPS erred by not mailing the revalidation request to SVC Dermatology lacks merit.

WPS 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 an August 7, 2017 effective date for her reactivated billing privileges based on the date she submitted the enrollment activation to revalidate her enrollment.  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

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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 August 7, 2017 effective date of Petitioner’s reactivated billing privileges.

• 1. This is the address for M15 Urgent Care, PC, which Petitioner listed as a correspondence address in a Form CMS-855I submitted in December 2013.  CMS Ex. 1 at 49.  Petitioner’s enrollment record reflects that she had a current reassignment of benefits to M15 Urgent Care, PC at the time WPS requested that she revalidate her enrollment in February 2017.  See CMS Ex. 1 at 5, 7.
• 2. This is the address for Brent Boyce MD, PC, which Petitioner listed as a correspondence address in a Form CMS-855I when she revalidated her enrollment in June 2012.  CMS Ex. 1 at 84, 88, 101.  Petitioner’s enrollment record reflects that she had a current reassignment of benefits to Brent Boyce MD, PC at the time WPS requested that she revalidate her enrollment in February 2017.  See CMS Ex. 1 at 5, 7.
• 3. In her August 7, 2017 application, Petitioner updated her enrollment record to reflect that both her correspondence and contact person addresses were the location of her current employer, SVC Dermatology, in Fenton, Michigan. CMS Ex. 1 at 15-16.
• 4. This case was reassigned to me on March 8, 2019.
• 5. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
• 6. Findings of fact and conclusions of law are in italics and bold font.