Matthew Axline, O.D., DAB CR5092 (2018)

DECISION

Petitioner, Matthew Axline, O.D., is an Ohio optometrist, employed by Premier Optometry Group, LLC, in Marion, Ohio.  After his Medicare billing privileges were deactivated, he applied to reenroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted his application, effective August 24, 2015.  Petitioner now challenges that effective date. 

Because Petitioner filed his subsequently-approved enrollment application on August 24, 2015, I find that CMS properly established that as the effective date of his enrollment.  I have no authority to review the deactivation.  Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 3-5 (2017).

Background

In a letter dated October 9, 2015, the Medicare contractor, CGS Administrators, LLC, advised Petitioner Axline that it approved his Medicare enrollment, effective August 24, 2015.  CMS Exhibit (Ex.) 8.  Petitioner sought reconsideration, asking that the effective date of his enrollment be changed to March 30, 2015, the date on which the Medicare

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contractor began rejecting his claims.  CMS Ex. 9.  In a reconsidered determination, dated January 14, 2016, the contractor denied Petitioner an earlier effective date.  CMS Ex. 7.

Petitioner appealed. 

Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In my initial order, I instructed the parties to submit a list of all proposed witnesses (if any), along with their complete written direct testimony, submitted in the form of an affidavit made under oath or as a written declaration signed under penalty of perjury.  Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4.c.iv, 8).  CMS lists no witnesses.  Petitioner lists no witnesses, although he submits two unsworn statements, one from the practice’s billing specialist and the other from its office manager.  CMS objects to my admitting these documents but, as discussed below, I treat them as witness statements.  Although CMS generally “reserved its right to cross-examine these witnesses should their statements be admitted,” doing so would achieve nothing.  To the extent that their statements are relevant, they weaken, rather than strengthen Petitioner’s case, as they demonstrate a disturbing level of unfamiliarity with Medicare enrollment procedures.  Moreover, because CMS maintains that no material facts are in dispute (and I agree), cross-examining these ostensible witnesses would be pointless.  Because CMS has no witnesses, and CMS prevails without cross-examining Petitioner’s witnesses, an in-person hearing would serve no purpose. 

With its brief (CMS Br.), CMS submits nine exhibits (CMS Exs. 1-9).  In the absence of any objections, I admit into evidence CMS Exs. 1-9.

With his brief (P. Br.), Petitioner submits 17 exhibits (P. Exs. 1-17).  CMS objects to my admitting P. Exs. 15, 16, and 17: 

• P. Ex. 15 is a February 9, 2007 letter from a former Medicare contractor to Petitioner Axline and Matthew P. Axline, O.D., LLC, regarding an address change for Medicare Record MA 9350761.  According to CMS, and Petitioner has not disagreed, the document refers to a group practice (presumably Matthew P. Axline, O.D., LLC) and not to the individual petitioner.  Submitting a change-of-address form for a group practice does not satisfy a supplier’s obligation to report his individual enrollment changes.  See 42 C.F.R. § 424.516(e)(2).  I therefore agree that the document is irrelevant and decline to admit it.  42 C.F.R. § 498.60(b)(1) (directing the ALJ to receive in evidence documents that are relevant and material).1

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• P. Exs. 16 and 17 are statements signed by the group practice’s billing specialist (P. Ex. 16) and office manager (P. Ex. 17).  CMS objects to them because the statements include some anonymous and unreliable hearsay.  However, the rules of evidence do not apply here, and the hearsay rules would not preclude me from admitting the statements.  42 C.F.R. § 498.61.  Moreover, the documents are at least marginally relevant, although perhaps not in the way Petitioner intended.  As I discuss below, they show that the individuals to whom Petitioner apparently invested responsibility for his Medicare enrollment did not understand some basic enrollment requirements.
  
  CMS also complains, with some justification, that the statements do not comport with my initial order.  Petitioner submitted no witness list and has not submitted the statements in affidavit form or as a written declaration under penalty of perjury.  Because Petitioner is not represented by counsel, I am inclined to afford him some leeway in this regard.  I will treat the statements as declarations and will admit them.

I therefore admit P. Exs. 1-14 and 16-17.

Discussion

Petitioner filed his subsequently-approved application on August 24, 2015, and his Medicare enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).2

Enrollment.  Petitioner Axline participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services it furnishes to program beneficiaries, a prospective 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.  The effective date for its billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “the date that [an enrolled physician] . . . first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).  If it satisfies certain requirements, CMS will allow a supplier to bill retrospectively for up to 30 days prior to the effective date.  42 C.F.R. § 424.521(a)(1).

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).  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).

Petitioner’s deactivation and reenrollment.  In a notice dated July 24, 2014, the contractor directed Petitioner to revalidate his Medicare enrollment by reviewing, signing, and submitting a revalidation application through the PECOS system or by mailing a completed CMS-855 Medicare enrollment application to the contractor.  CMS Ex. 1.  The notice cautioned that failing to submit the application within 60 calendar days could result in the practice’s Medicare billing privileges being deactivated.  CMS Ex. 1 at 4.  The contractor mailed copies of the notice to the address it had on file:  554 Delaware Ave., Marion, Ohio.  CMS Ex. 1 at 1; see CMS Ex. 3 at 3, 14. Petitioner had supplied that address in 2004, when he (and his employer) submitted an individual application (Form CMS-855I) and an application for the group practice (Form CMS-855B).  CMS Ex. 3 at 25 (acknowledging that Petitioner had submitted an 855I and an 855R and directing him to submit the 855B).

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Petitioner complains that the contractor sent this notice to the wrong address.  CMS presents evidence that this was the address the contractor had on file.  CMS Ex. 3.  Petitioner’s group practice may have supplied its new address, but whether Petitioner Axline did so for his own enrollment is far from clear inasmuch as Petitioner conflates his individual enrollment information with that of the group practice.  In any event, the circumstances surrounding Petitioner’s deactivation are not relevant to this decision.  Urology Grp., DAB No. 2860 at 6-7 (“The regulations do not grant suppliers the right to appeal deactivations.”); Goffney, DAB No. 2763 at 7 (“Only facts relevant to the effective date resulting from the . . . application were material to the ALJ decision”).

Even if the issue were reviewable, the undisputed evidence establishes that Petitioner knew about the notice in time to prevent his deactivation.  On September 26, because Petitioner had not responded to the notice, one of the contractor’s employees called his office and left a message for “Tina,” who is the practice’s office manager.  CMS Ex. 2; see P. Ex. 17.  On September 29, 2014, at Petitioner’s request, the contractor faxed Petitioner’s office an additional copy of the revalidation request.  Hr’g. Req., Attachment 1e. 

Petitioner did not then submit a revalidation application for himself.  Instead, the group practice submitted CMS Form 855B, which, as it says on its face, is an application for clinics and group practices.  P. Ex. 3 at 1; see P. Ex. 3 at 9 (identifying the “type of supplier” as a “clinic/group practice,” identifying the supplier as “Premier Optometry Group, LLC,” and checking its organizational structure as a “limited liability company.”).  The contractor approved the group practice’s revalidation enrollment application.  Its July 2, 2015 notice letter unambiguously identifies the approved supplier by the group practice name and identifies it as a “CLINIC/GROUP PRACTICE.”  P. Ex. 7. 

When Petitioner Axline did not submit his individual revalidation application, the contractor deactivated his billing privileges, effective March 30, 2015.  It sent copies of the reactivation notice, dated March 31, to 554 Delaware Avenue (CMS Ex. 4) and to 399 East Church Street (CMS Ex. 5). 

On August 24, 2015, the contractor received Petitioner Axline’s enrollment application, CMS Form 855I, which it subsequently approved.  CMS Exs. 6, 8.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – August 24, 2015 – is the correct effective date of enrollment.  Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

Petitioner nevertheless complains that he did not know he was supposed to submit CMS Form 855I in response to the reactivation notice; he charges that his employees were misled by CMS representatives.  But Petitioner should have known that it was time for him to revalidate because the July 24 notice letter unambiguously directed him to do so. 

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The notice is addressed to Petitioner Axline and refers to his national provider identifier (NPI), a ten-digit identification number unique to him.  The notice does not mention the group practice.  It tells Petitioner Axline that all enrolled suppliers have to revalidate their enrollment information every five years.  It instructs him to submit the “appropriate and current” enrollment application form.  CMS Ex. 1 at 1, 2.  If he “revalidate[s] by paper,” the notice directs him to “download the appropriate and current CMS-855I, CMS-855B” and mail them to the contractor.  CMS Ex. 1 at 2.  As noted above, each of the application forms plainly identifies, on its face, who should submit it.  Compare CMS Ex. 6 (“PHYSICIANS AND NON-PHYSICIAN PRACTITIONERS”) with P. Ex. 3 (“Clinics/Group Practices and Certain Other Suppliers”). 

Moreover, Petitioner should also have understood the process because, when he initially applied, CMS spelled it out for him.  In a letter dated December 8, 2004, CMS explained that he needed to complete the 855I application and, to be enrolled as a member of his group practice, to complete an 855B application as well.  CMS Ex. 3 at 15. 

Petitioner apparently did not ensure that his office manager understood the process.  She assumed (wrongly) that the group practice application she submitted (P. Ex. 3) was sufficient to revalidate Petitioner Axline’s enrollment.  P. Ex. 17.  Petitioner’s billing specialist likely knew better, but when she assumed her responsibilities, in December 2014, she did not know that it was time for Petitioner Axline to revalidate his Medicare enrollment.  P. Ex. 16.  Apparently, no one told her about the July notice.

It is settled that, following deactivation, section 424.520(d) governs the effective date of reenrollment, which means that August 24, 2015, the date Petitioner filed his subsequently-approved application, is the effective date of his reenrollment.  Urology Grp., DAB No. 2860 at 7; Goffney, DAB No. 2763 at 7.

Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on August 24, 2015, CMS properly granted his Medicare reenrollment effective that date.

1. Two other factors could preclude my admitting the document: first, even if the document arguably explains Petitioner Axline’s failure to reactivate his enrollment, it is irrelevant because I have no authority to review that issue; second, it seems that Petitioner submits the exhibit at this level for the first time.  CMS Ex. 7 at 1.  He has not shown good cause for failing to submit it at reconsideration.  42 C.F.R. § 498.56(e).
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2. I make this one finding of fact/conclusion of law.
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3. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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