Chaplin Liu, M.D., DAB CR5355 (2019)

DECISION

Noridian Healthcare Solutions, Inc. (Noridian), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reactivated the Medicare enrollment and billing privileges of Chaplin Liu, M.D. (Petitioner) effective April 25, 2017, creating a lapse in enrollment from November 10, 2016 through April 24, 2017. Noridian affirmed the effective date on reconsideration and Petitioner appealed. Because April 25, 2017 is the date Noridian received the revalidation application it was able to process to approval, Noridian correctly determined that the effective date for Petitioner’s reactivated billing privileges is April 25, 2017. Therefore, I affirm the determination that Petitioner’s billing privileges are reactivated effective April 25, 2017.

I. Background

Petitioner is a physician specializing in internal medicine and nephrology who practices in San Leandro, California. See, e.g., CMS Exhibit (Ex.) 9 at 2.

By letter dated June 14, 2016, Noridian notified Petitioner that he needed to revalidate his Medicare enrollment by August 31, 2016. CMS Ex. 1. The June 14 letter was addressed to Petitioner at 13847 E. 14th St., Suite 209, San Leandro, CA 94578-2626, which is the correspondence address Petitioner listed on his enrollment application. Compare CMS Ex. 1 at 1 with CMS Ex. 9 at 2. Petitioner does not deny that he received the June 14

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letter.1  Petitioner’s Brief (P. Br.) at 5. Petitioner asserts that he mailed a paper revalidation application to Noridian on or about June 28, 2016. P. Br. at 3, 8; P. Ex. 2. By letter dated September 21, 2016, Noridian informed Petitioner that it had not received a revalidation application by August 31, 2016. CMS Ex. 2. The September 21 letter was addressed to Petitioner’s correspondence address. Id. Petitioner denies that he received the September 21 letter. P. Br. at 3; P. Ex. 15. By letter dated November 18, 2016, and also addressed to Petitioner’s correspondence address, Noridian notified Petitioner that his billing privileges were stopped effective November 10, 2016, because he failed to revalidate his enrollment. CMS Ex. 3. Petitioner denies that he received the November 18 letter. P. Br. at 3; P. Ex. 15.

Petitioner submitted a CMS-855I web revalidation application on November 28, 2016. CMS Ex. 4 at 1 (submission history shows date received as “11/28/2016”). Noridian requested additional information from Petitioner on December 12, 2016. CMS Ex. 5. Petitioner responded to the request by facsimile on December 13, 2016. CMS Ex. 6. In an email of December 15, 2016, Noridian informed Petitioner that he must enter the updated information online, rather than by fax. CMS Ex. 7. The email further informed Petitioner that, if he did not make the corrections by January 11, 2017, Noridian would reject his application. Id. Petitioner denies receiving Noridian’s December 15 email. P. Br. at 6, 9. Because Petitioner did not receive the email, he did not correct the online application. See id. at 10. In an email dated January 11, 2017, Noridian informed Petitioner that his billing privileges remained deactivated. CMS Ex. 8. Petitioner submitted a second revalidation application, which Noridian received on April 25, 2017. CMS Ex. 9 at 1. Noridian processed this application to completion. See CMS Ex. 10. In a letter dated May 11, 2017, Noridian notified Petitioner that his Medicare enrollment application had been approved effective April 25, 2017, with a lapse in coverage from November 10, 2016 through April 24, 2017. Id.

Petitioner requested reconsideration of the effective date and the resulting lapse in billing privileges. CMS Ex. 11. Noridian issued an unfavorable reconsidered determination, dated August 11, 2017, finding that Petitioner had not provided evidence to definitively support an earlier effective date. CMS Ex. 13. By letter postmarked September 29, 2017, Petitioner timely requested a hearing before an administrative law judge to challenge the reconsidered determination.

This case was assigned to me and I issued an Acknowledgement and Pre-Hearing Order, dated November 13, 2017 (Pre-Hearing Order) that 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. CMS filed a prehearing brief (CMS Br.), which incorporated a motion for summary judgment,

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and thirteen proposed exhibits (CMS Exs. 1-13). Petitioner filed a brief opposing CMS’s motion for summary judgment with seventeen proposed exhibits (P. Exs. 1-17).

Neither party objected to the exhibits offered by the opposing party. Therefore, in the absence of objection, I admit CMS Exs. 1-13 and P. Exs. 1-17. CMS did not offer the written direct testimony of any witness as part of its pre-hearing exchange. Petitioner offered statements made under penalty of perjury for three witnesses. P. Exs. 12, 15, 16. I accept these statements as the written direct testimony of the declarants. Nevertheless, 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. CMS did not ask to cross-examine any of Petitioner’s witnesses. 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 Noridian properly established April 25, 2017, as the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges.

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)).

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

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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).

B. Findings of Fact and Conclusions of Law2

1. On April 25, 2017, Noridian 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 April 25, 2017.

The effective date for Medicare 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).

Noridian received a revalidation application from Petitioner on April 25, 2017. CMS Ex. 9 at 1. Noridian subsequently approved that application. CMS Ex. 10. Accordingly,

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as required by regulation, the effective date of reactivation of Petitioner’s Medicare enrollment is April 25, 2017.

In support of his position that I should grant him an earlier effective date of reactivation, Petitioner argues that he lacked notice that Noridian had deactivated his enrollment and billing privileges and that Noridian staff failed to assist him in submitting a complete revalidation application. As I explain in the following sections of this decision, Petitioner’s arguments concern issues that are beyond my jurisdiction to hear and decide.

3. I have no authority to review Noridian’s decision to deactivate Petitioner’s billing privileges.

Noridian deactivated Petitioner’s Medicare enrollment and billing privileges effective November 10, 2016 because Noridian did not receive a response to its request that Petitioner revalidate his enrollment information. CMS Exs. 2, 3. Petitioner does not explicitly argue that Noridian’s deactivation decision was wrong. However, Petitioner does so implicitly by arguing that Noridian did not have a reason to deactivate his enrollment.

Petitioner alleges that he timely responded to Noridian’s June 14, 2016 request to revalidate his Medicare enrollment by mailing a paper copy of Form CMS 855I on June 28, 2016.  P. Br. at 3-5, 8-11. As evidence that he submitted such an application, Petitioner points to a copy of Noridian’s June 14, 2016 letter requesting revalidation with the following handwritten notation:  “submitted 6/28/16.”  P. Ex. 2. However, Petitioner did not produce a copy of the application form he claims to have mailed; nor does the record show that he mailed the application certified mail or return receipt requested. Petitioner failed to take these steps even though Noridian’s letter of June 14, 2016, which Petitioner acknowledges receiving, included the following instruction: “We recommend getting proof of receipt for your mailing.” CMS Ex. 1 at 1. Had Petitioner followed that recommendation, he would have been aware that his submission never reached Noridian. Instead, Petitioner argues that he remained unaware that Noridian did not receive his submission because he never received Noridian’s September 21, 2016 past due notice. P. Br. 3, 8.

Because the record before me does not include a copy of Petitioner’s claimed submission of June 28, 2016, or even a postal receipt for the item, I am unable to conclude, by a preponderance of the evidence, that Petitioner in fact mailed such an application. Yet, even if I were to accept as true Petitioner’s assertions that he responded to the revalidation request timely on or around June 28, 2016, and never received Noridian’s past due notice, these facts would not lead me to conclude that Noridian erred in setting the effective date of reactivation for Petitioner’s Medicare enrollment and billing privileges. That is because whether Petitioner filed a revalidation application prior to the requested reply date and was unaware that Noridian never received it, is only relevant, if

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at all, to whether Noridian acted properly in deactivating Petitioner’s billing privileges. However, I do not have jurisdiction to review Noridian’s deactivation of Petitioner’s Medicare billing privileges, because deactivation is not an “initial determination” 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).

Petitioner similarly argues that Noridian should not have rejected his revalidation application filed November 28, 2016. However, as is true of deactivation, Noridian’s rejection of Petitioner’s November 2016 application is not an initial determination that I may review.

4. I have no authority to review Noridian’s decision to reject Petitioner’s November 28, 2016 revalidation application.

Petitioner submitted a revalidation application that Noridian received November 28, 2016. CMS Ex. 4 at 1. Noridian requested additional information from Petitioner, but ultimately rejected the application. CMS Exs. 7, 8.3

Reject/Rejected means that the provider or supplier’s enrollment application was not processed due to incomplete information, or that additional information or corrected information was not received from the provider or supplier in a timely manner.

42 C.F.R § 424.502. Although Noridian’s January 11, 2017 letter (CMS Ex. 8) does not use the term “rejected,” I infer that Noridian did reject Petitioner’s November 2016 application. In its December 15, 2016 request for information, Noridian warned that it would reject Petitioner’s application if he did not correct the application by January 11, 2017. CMS Ex. 7 at 1. Moreover, an application that is not processed, and which a supplier must replace with a new application, is rejected within the meaning of the regulation regardless of whether Noridian used the word “rejected” in its letter. Additionally, Petitioner appears to concede that Noridian rejected the November 2016 application. P. Br. at 8.

Petitioner argues that Noridian improperly rejected his November 28, 2016 revalidation application. P. Br. at 8-10. He denies that he received Noridian’s December 12, 2016 or December 15, 2016 letters requesting revisions. P. Br. at 4, 8-10. He further argues that Noridian should have provided more effective assistance to him and his staff so that they could have completed the revalidation process timely. P. Br. at 11.

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To the extent Petitioner is arguing that Noridian should have continued to work with him so that he could complete (and Noridian could approve) the revalidation application he submitted in November 2016, this amounts to an argument that Noridian should not have rejected the application. As is true for review of deactivations, administrative law judges are not authorized to review a contractor’s decision to reject an enrollment application.  42 C.F.R. § 424.525(d); see also James Shepard, M.D., DAB No. 2793 at 3 (2017). Therefore, even if Noridian should not have rejected Petitioner’s November 2016 revalidation application, this would not be a basis to grant him an earlier effective date. As an appellate panel of the Departmental Appeals Board (DAB) observed in Shepard, a supplier’s argument that the Medicare contractor did not provide sufficient information for him to submit an approvable application “is an implicit request that we assess the reasonableness or legality of [the contractor’s] decision to reject the . . . application. However, section 424.525(d) plainly prohibits [administrative law judge] or Board review of that decision . . . .”  DAB No. 2793 at 8. As was the case in Shepard, Petitioner’s arguments in the present case amount to a backdoor challenge to the contractor’s rejection of his revalidation application and deactivation of his billing privileges—determinations for which there are no administrative appeal rights. Id.

5. I cannot grant Petitioner equitable relief.

Finally, Petitioner contends that I should grant him an earlier effective date based on principles of “due process” and fairness.  P. Br. 11-13. Petitioner argues that had he received effective assistance from Noridian, the revalidation process would have been concluded earlier. Id. at 11. Petitioner’s arguments amount to a request for equitable relief. I may not set aside the lawful exercise of discretion by CMS or its contractor based on principles of equity. See US Ultrasound, DAB No. 2302, at 8 (2010); Cent. Kan. Cancer Inst., DAB No. 2749 at 10 (2016); see also James Shepard, M.D., DAB No. 2793 at 9.

V. Conclusion

For the reasons explained above, I affirm Noridian’s determination that the effective date of Petitioner’s Medicare enrollment and billing privileges is April 25, 2017.

• 1. Petitioner does state that he received the June 14 letter by email, rather than by postal service. P. Br. at 3, 8.
• 2. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
• 3. The regulations include the following definition: