Jerri Whiting, Ph.D., DAB CR5145 (2018)

DECISION

Wisconsin Physicians Service Insurance Corporation (WPS), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reactivated the Medicare billing privileges of Jerri Whiting, Ph.D. (Petitioner or Dr. Whiting) effective February 10, 2017.  Petitioner requested a hearing before an administrative law judge to dispute the effective date.  Because WPS approved Petitioner’s revalidation enrollment application that it received on February 10, 2017, it correctly determined that the effective date for Petitioner’s reactivated billing privileges is February 10, 2017.  Therefore, I affirm the effective date determination.

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I.  Background

Petitioner is a clinical psychologist licensed to practice in Missouri.  CMS Exhibit (Ex.) 3 at 1.1   By letter dated August 8, 2016, WPS informed Petitioner that she must revalidate her Medicare enrollment record by October 31, 2016.  CMS Ex. 1 at 14-15.  In the letter, WPS warned Petitioner that “[f]ailure to respond to this notice will result in a hold on your payments, and possible deactivation of your Medicare enrollment.”  Id. at 14.  In response, on October 19, 2016, Petitioner’s office manager successfully revalidated the enrollment of Petitioner’s practice and, with the assistance of a PECOS representative, attempted to revalidate Petitioner’s enrollment.  CMS Ex. 2; see also Petitioner’s Brief (P. Br.).  However, the office manager filled out the incorrect form and consequently failed to revalidate Petitioner’s enrollment.  CMS Ex. 1 at 2; P. Br.

By letter dated November 7, 2016, WPS notified Petitioner that her Medicare enrollment records had not been revalidated by the October 31, 2016 due date.  CMS Ex. 1 at 12.  The letter informed Petitioner once again that she needed to revalidate her enrollment and, if her enrollment were deactivated, she would “not be paid for services rendered during the period of deactivation.”2   Id.  By letter dated January 12, 2017, WPS notified Petitioner that her Medicare billing privileges were stopped on January 11, 2017, because she did not revalidate her enrollment record.  Id. at 10.

On February 10, 2017, WPS received a Form CMS-855I to revalidate Petitioner’s Medicare billing privileges.  See CMS Ex. 1 at 7-8.  WPS approved this application and reactivated Petitioner’s billing privileges effective February 10, 2017.3   See id.  In its approval letter, WPS informed Petitioner that there was a lapse in her Medicare billing privileges from January 11 to February 9, 2017.  Id. at 8.  Petitioner requested that WPS reconsider its determination that she was subject to a gap in her billing privileges.  CMS Ex. 1 at 5.  In response, WPS issued a reconsidered determination reaffirming that

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Petitioner’s billing privileges were correctly reactivated effective February 10, 2017, and accordingly, the gap in her billing privileges would not be removed.  See CMS Ex. 1 at 1‑2.

Petitioner requested a hearing before an administrative law judge, and the case was assigned to me.  I issued an Acknowledgment and Pre-Hearing Order, dated July 6, 2017 (Pre-Hearing Order), which required each party to file a pre-hearing exchange consisting of a brief and any supporting documents.  Pre-Hearing Order ¶ 4.  CMS filed its brief (CMS Br.), which incorporated a motion for summary judgment, and three proposed exhibits (CMS Exs. 1-3).  Petitioner filed a brief (P. Br.), but did not offer any proposed exhibits, and did not object to the exhibits offered by CMS.  Therefore, in the absence of objection, I admit CMS Exs. 1-3.  Neither party offered the written direct testimony of any witness as part of its pre-hearing exchange.  As stated 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.  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 WPS, acting on behalf of CMS, properly established February 10, 2017, as the effective date of reactivation of Petitioner’s Medicare 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 Social Security 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

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“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 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 under the requirements stated in 42 C.F.R. § 424.520(d) and may permit limited retrospective billing under 42 C.F.R. § 424.521.

To maintain Medicare billing privileges, providers and suppliers must revalidate their enrollment information at least every five years.  42 C.F.R. § 424.515.  However, CMS reserves the right to perform revalidations at any time.  42 C.F.R. § 424.515(d), (e).  When CMS notifies a provider or supplier that it is time to revalidate, the provider or supplier must submit the appropriate enrollment application, accurate information, and supporting documentation within 60 calendar days of CMS’s notification.  42 C.F.R. § 424.515(a)(2).  CMS may deactivate an enrolled provider’s or supplier’s Medicare billing privileges if the enrollee fails to comply with revalidation requirements.  42 C.F.R. § 424.540(a)(3).  When CMS deactivates a provider’s or 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).  If CMS deactivates a provider’s or supplier’s billing privileges due to an untimely response to a revalidation request, the enrolled provider or supplier may apply for CMS to reactivate its Medicare billing privileges by completing a new enrollment application or, if deemed appropriate, recertifying its enrollment information that is on file.  42 C.F.R. § 424.540(b)(1).

B.  Findings of Fact, Conclusions of Law, and Analysis4

1.  On February 10, 2017, WPS received Dr. Whiting’s application to reactivate her Medicare billing privileges and subsequently approved that application.

2.  The effective date of reactivation for Dr. Whiting’s Medicare billing privileges is February 10, 2017.

The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the “date of filing” or 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

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to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).

It is undisputed that WPS received a Form CMS-855I to reactivate Dr. Whiting’s Medicare enrollment and billing privileges on February 10, 2017.  See CMS Ex. 3.  It is also undisputed that WPS approved that application.  CMS Ex. 1 at 7.  Accordingly, as required by regulation, the effective date of reactivation of Dr. Whiting’s Medicare enrollment is February 10, 2017.

3.  I have no authority to review the deactivation of Dr. Whiting’s Medicare billing privileges on January 11, 2017.

Petitioner argues that her office manager attempted to revalidate Petitioner’s Medicare enrollment timely but was unsuccessful in doing so because a PECOS representative gave the office manager incorrect information regarding which form to submit for revalidation.  P. Br.  Thus, according to Petitioner, she would have revalidated her enrollment timely if the PECOS representative had instructed the office manager to submit the correct form.  Id.  Yet, even if a PECOS representative gave incorrect instructions to Petitioner’s office manager, this would not provide a basis for me to change the effective date of reactivation of Petitioner’s Medicare billing privileges.  That is because the instructions Petitioner’s office manager received from PECOS are relevant, if at all, to whether WPS acted properly in deactivating Petitioner’s billing privileges.  However, I do not have jurisdiction to review CMS’s deactivation of Petitioner’s billing privileges because deactivation is not an “initial determination” and deactivation decisions have a separate review process.  See 42 C.F.R. §§ 424.545(b), 498.3(b); see also Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017).  Thus, my jurisdiction in this case is limited to reviewing the effective date of the approval of Petitioner’s reactivation enrollment application.  42 C.F.R. § 498.3(b)(15).

4.  Dr. Whiting’s arguments in equity are not a basis to change the effective date of her Medicare billing privileges.

Petitioner’s argument that the PECOS representative led Petitioner’s office manager to submit the incorrect form may be an attempt to assert the equitable doctrine of estoppel.  In other words, Petitioner may be arguing that I should find that CMS may not deactivate Petitioner’s billing privileges because Petitioner relied to her detriment on incorrect information provided by CMS’s agent.  However, many DAB decisions have held that neither administrative law judges nor appellate panels have authority to overturn a legally valid agency action on equitable grounds or otherwise grant equitable relief.  See, e.g., Richard Weinberger, M.D. and Barbara Vizy, M.D., DAB No. 2823 at 18-19 (2017) (and cases there cited).  Further, even if I could adjust Dr. Whiting’s effective date of reactivation based on equitable grounds, I would not find a basis to invoke estoppel here.  The appellate panel in Weinberger endorsed the view that equitable estoppel does not lie

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against the government absent proof of affirmative misconduct.  Id. at 19.  In the present case, as in Weinberger, the communications with WPS that Dr. Whiting describes suggest “misunderstandings, miscommunications, or confusion” rather than affirmative misconduct.  Id.

V.  Conclusion

For the reasons explained above, I affirm that the effective date of Dr. Whiting’s Medicare enrollment and billing privileges is February 10, 2017.

1. CMS’s Exhibit List describes CMS Ex. 1 as correspondence with Petitioner; CMS Ex.  2 as Petitioner’s November (sic) enrollment application; and CMS Ex. 3 as Petitioner’s February re‑enrollment application.  The exhibits are also identified as Exs.  1-3 in DAB E-File.  However, each .pdf exhibit is marked “CMS Ex. 1.”  I refer to the exhibits by the numbers identified on CMS’s Exhibit List and in DAB E-File, and not by the marking on the exhibit.
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2. The letter from WPS did not indicate a date certain when Petitioner’s Medicare billing Privileges would be deactivated.
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3. WPS’s letter does not explicitly state the effective date of reactivation of Petitioner’s Medicare privileges.  Rather, the letter states:  “Please note the effective date .  .  .  reflects a gap in coverage from January 11, 2017 to February 9, 2017.  .  .  .”  CMS Ex. 1 at 8.  I infer from this statement that the effective date of reactivation is February 10, 2017.
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4. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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