William H. Kwan, DPM, Inc., DAB CR5646 (2020)

DECISION

Petitioner, William H. Kwan, DPM, Inc., is a California group medical practice, owned by William H. Kwan, a podiatrist.  After their Medicare billing privileges were deactivated, the physician and his practice applied to reenroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted the applications, effective May 26, 2017, resulting in a three-week coverage lapse.  Petitioners now challenge that effective date and ask that the lapse in coverage be eliminated.1

Because Petitioner Kwan filed his subsequently-approved enrollment application on May 26 and supplemented it with the practice’s application on May 31, 2017, I find that May 26 is the earliest possible effective date for their enrollment.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff’d sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

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Background

In notices dated July 18 and 20, 2017, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioners that it approved their revalidated Medicare enrollments, although they were subject to a lapse in coverage from May 5 through May 25, 2017.  CMS Exs. 8-9.  Petitioners requested reconsideration.  CMS Ex. 10.

In a reconsidered determination, dated October 23, 2017, the contractor affirmed the coverage lapse.  CMS Ex. 11.  Petitioners appealed.

CMS moves for summary judgment.  However, because the parties have not proposed any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4, 10) (December 19, 2017).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.

CMS submits its motion and brief (CMS Br.) with 11 exhibits (CMS Exs. 1-11).  Petitioner submits a letter argument (P. Br.).  In the absence of any objections, I admit into evidence CMS Exs. 1-11.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

Petitioners filed their subsequently-approved enrollment applications on May 26, supplemented on May 31, 2017, and their Medicare reactivated enrollments can be no earlier than May 26, 2017.  42 C.F.R. § 424.520(d).2

Enrollment.  Petitioners Kwan and William H. Kwan, DPM, Inc., participate in the Medicare program as “suppliers” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services furnished to program beneficiaries, a 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

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Management and Budget.  42 C.F.R. § 424.502.3  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.

For a physician and a physician practitioner organization, the effective date for billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “the date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

Revalidation and Deactivation.  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)-(e).  Within 60 days of receiving CMS’s notice to recertify, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation.  42 C.F.R. § 424.515(a)(2).

If, within 90 days from receipt of CMS’s notice, the supplier does not furnish complete and accurate information and all supporting documentation or does not resubmit and certify the accuracy of its enrollment information, CMS may deactivate its billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3), 424.555(b).  To reactivate its billing privileges, the supplier must complete and submit a new enrollment application.  42 C.F.R. § 424.540(b)(1).  It is settled that, following deactivation, section 424.520(d) governs the effective date of reenrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7; Goffney, DAB No. 2763 at 7.

I have no authority to review a deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 (2019). 

Petitioners’ deactivation and reenrollment.  In a notice letter, dated February 8, 2017, the contractor directed Petitioner Kwan to revalidate his Medicare enrollment by updating or confirming the information in his record (NPI:  1710097191; PTAN:  CB230374).  The letter directed Petitioner to the PECOS website and explained that a supplier could revalidate through the PECOS system or by mailing to the contractor a completed CMS-855 Medicare enrollment application.  The letter warned that Petitioner had to revalidate by April 30, 2017, or risk his Medicare enrollment being deactivated; the letter explained that, during the period of deactivation, Medicare would not pay for the services rendered.  CMS Ex. 1.

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On March 17, 2017, via PECOS, Petitioner Kwan submitted his reenrollment application.  CMS Ex. 2.

In email correspondence, dated April 4, 2017, the contractor acknowledged that it received Petitioner Kwan’s individual enrollment application and directed the medical practice (William H. Kwan, DPM, Inc.), to submit a separate revalidation application.  The correspondence warned that, if the practice failed to respond timely, Petitioner Kwan’s application would be rejected.  CMS Ex. 3.

The contractor received no response.  Petitioners did not then file a revalidation application for the practice.

By letter dated May 5, 2017, the contractor advised Petitioner Kwan that it rejected his application because it was incomplete, and he had not responded to the April 4 request for additional information.  The letter directed him to submit a new Medicare enrollment application that included the information missing from the rejected application (i.e., the practice’s revalidation application).  CMS Ex. 4.

Petitioners maintain that they did not receive the April 4 email, although they do not suggest that the email address to which it was sent is incorrect.  They maintain that a single email is insufficient notice, considering the financial significance of a deactivation.  Regardless of the merits of Petitioners’ arguments, I have no authority to review a deactivation.  Ark. Health Grp., DAB No. 2929 at 7-9 and cases cited therein.

On May 26, 2017, Petitioner Kwan filed, via PECOS, his Medicare enrollment application; on May 31, 2017, Petitioners supplemented that application with the application for the group practice.  CMS Exs. 5-7.  In letters dated July 18, 2017, and July 20, 2017, the contractor approved the revalidated applications, with a lapse in coverage from May 5 through 25, 2017.  CMS Exs. 8, 9.  Thus, pursuant to section 424.520(d), the date Petitioner Kwan filed his subsequently-approved enrollment application – May 26, 2017 – is the correct effective date of enrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB 2763 at 7.

I have no authority to grant Petitioners an earlier effective date based on any equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

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Conclusion

Because Petitioner Kwan filed his subsequently-approved reenrollment application on May 26, 2017, which Petitioners supplemented by filing the group practice’s application a few days later, CMS properly granted their Medicare reenrollments effective that date.

• 1. Although this matter has been docketed as the practice’s appeal it is certain that Dr. Kwan also challenges the date of his individual reactivation.  The reconsidered determination (CMS Ex. 11) is addressed to both Dr. Kwan and to his medical practice.
• 2. I make this one finding of fact/conclusion of law.
• 3. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).