Melvin T. Monsher, M.D., DAB CR5230 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a Medicare administrative contractor, determined that the effective date for reactivation of the Medicare billing privileges for Melvin T. Monsher, M.D. (Dr. Monsher or Petitioner) was April 27, 2017.  Dr. Monsher requested a hearing before an administrative law judge (ALJ) to dispute this effective date.  Because CMS’s administrative contractor approved Dr. Monsher’s revalidation enrollment application that it received on April 27, 2017, the CMS administrative contractor correctly determined that the effective date for the reactivation of billing privileges is April 27, 2017.  Therefore, I affirm CMS’s determination.

I. Background and Procedural History

Dr. Monsher is a California physician who has been enrolled in the Medicare program for many years as a supplier and has been treating patients at the same location since 1985.  CMS Exhibit (Ex.) 8.  That location’s address is 16133 Ventura Blvd., Suite #250, Encino, CA 91436.  CMS Ex. 3 at 3; CMS Ex. 8.

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In a November 11, 2016 notice sent to Dr. Monsher’s Ventura Blvd. address, the CMS administrative contractor informed Dr. Monsher that he needed to revalidate his Medicare enrollment information by January 31, 2017.  CMS Ex. 1.  The letter warned Dr. Monsher that failure to respond to the notice could result in deactivation of his Medicare enrollment, which in turn will “cause a gap in your reimbursement” rendered during the period of deactivation.  CMS Ex. 1 at 1.  In an April 21, 2017 notice, the CMS administrative contractor stated that it deactivated Dr. Monsher’s Medicare billing privileges, effective April 4, 2017, because Dr. Monsher did not revalidate his enrollment.  CMS Ex. 2.  Dr. Monsher first became aware of the deactivation from a durable equipment provider on April 27, 2017, and promptly contacted the CMS contractor.  Petitioner Brief.

On April 27, 2017, the CMS administrative contractor received a CMS‑855I enrollment application from Dr. Monsher.  CMS Ex. 3.  After receiving additional information from Dr. Monsher (CMS Exs. 4, 5), on May 24, 2017, the CMS administrative contractor reactivated Dr. Monsher’s Medicare billing privileges, effective April 27, 2017.  CMS Ex. 6 at 2.  The notice informed Dr. Monsher that he had a gap in his Medicare billing privileges from April 4, 2017, through April 26, 2017.  CMS Ex. 6 at 2.  On June 16, 2017, the CMS administrative contractor issued another notice informing Dr. Monsher that additional changes had been made to his enrollment; however, CMS honored the original revalidation effective date of April 27, 2017.  CMS Ex. 7.

In his timely filed reconsideration request, Dr. Monsher requested that the CMS administrative contractor remove the gap in his Medicare billing privilege.  CMS Ex. 8.  Dr. Monsher also asserted that he was only “made aware of the lapse (in his billing privileges) by a durable equipment provider who checked [his] NPI number before billing for needed equipment by a patient.”  CMS Ex. 8.  He further asserts that he opens his mail and did not receive notification from the CMS administrative contractor that he needed to revalidate.  Finally, Petitioner states that his “billing person” did not tell him of the need to revalidate.  CMS Ex. 8.

The CMS administrative contractor issued an unfavorable reconsidered determination upholding April 27, 2017, as the effective date for the reactivation of Dr. Monsher’s Medicare billing privileges.  CMS Ex. 9.  Petitioner requested a hearing to dispute the reconsidered determination.  The case was originally assigned to Judge Leslie Weyn for hearing and decision.  On September 22, 2017, Judge Weyn issued an Acknowledgment and Pre‑Hearing Order (Order), which established a submission schedule for pre‑hearing exchanges.  In response, CMS filed a motion for summary judgement with a brief in support of the motion (CMS Br.) and nine exhibits.  Petitioner submitted a letter (P. Br.).  On November 20, 2018, the case was transferred to me.

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II. Decision on the Written Record

I admit all of CMS’s proposed exhibits into the record because Petitioner did not object to any of them.  Order ¶ 7; Civil Remedies Division Procedures (CRDP) § 14(e).

Judge Weyn’s Order advised the parties to submit written direct testimony for each witness and that she would only hold an in-person hearing if a party requested to cross‑examine a witness.  Order ¶¶ 8-10;CRDP §§ 16(b), 19(b).  Neither party has offered any written direct testimony.  Therefore, I issue this decision based on the written record.  Order ¶ 10; CRDP § 19(d).

III. Issue

Whether CMS had a legitimate basis to assign April 27, 2017, as the effective date for reactivation of Dr. Monsher’s Medicare billing privileges.

IV. Jurisdiction

I have jurisdiction to hear and decide this case.  42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 424.545(a), 498.3(b)(15), (17), 498.5(l)(2).

V. Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law are set forth in italics and bold font.

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers.  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.  42 U.S.C. § 1395x(d); see also 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 terms “Enroll/Enrollment means 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.

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To maintain Medicare billing privileges, providers and suppliers must revalidate their enrollment information at least every five years; however, CMS reserves the right to require revalidation at any time.  42 C.F.R. § 424.515.  When CMS notifies providers and suppliers that it is time to revalidate, the providers or suppliers must submit the appropriate enrollment application, accurate information, and supporting documents within 60 calendar days of CMS’s notification.  42 C.F.R. § 424.515(a)(2).

CMS can deactivate an enrolled provider 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 providers’ or suppliers’ 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 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).

1. On April 27, 2017, the CMS administrative contractor received Petitioner’s enrollment application (CMS‑855I), which the CMS administrative contractor ultimately approved.

Dr. Monsher submitted a CMS‑855I enrollment application on April 27, 2017, to revalidate his enrollment as a supplier in the Medicare program.  CMS Ex. 3 at 1.  After requesting and receiving further information from Dr. Monsher, the CMS administrator approved Dr. Monsher’s application and reactivated his Medicare billing privileges, effective April 27, 2017.  CMS Exs. 3‑7.

2. The effective date for Petitioner’s Medicare billing privileges is April 27, 2017.

The effective date for Medicare billing privileges for physicians, non‑physician practitioners, and physician or non‑physician practitioner organizations is the latter 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 to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D.,DAB No. 2685 at 8 (2016).  CMS’s published guidance for its administrative contractors states that the effective date for the reactivation of Medicare billing privileges is the date on which the contractor received the enrollment application.  Medicare Program Integrity Manual (MPIM) § 15.27.1.2.  That guidance is consistent with the effective date for Medicare billing privileges in section 424.520(d) and with section 424.555(b)’s prohibition on reimbursing services performed by deactivated providers and suppliers.

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In the present case, the CMS administrative contractor properly determined that Dr. Monsher’s effective date for reactivation of his Medicare billing privileges is April 27, 2017, because that is the date that Dr. Monsher filed an enrollment application that the CMS administrative contractor ultimately approved.

In his submissions, Dr. Monsher disagrees with this conclusion because he states that he did not receive the revalidation request notice or the notice of deactivation of his Medicare billing privileges until after a durable equipment provider informed him of the deactivation.  Hearing Request; P. Br; CMS Ex. 8.  Additionally, Dr. Monsher states he wants “to know why [the CMS administrative contractor] letter was not generated on April 4, 2017” and why he did not receive other communication relating to the deactivation.  P. Br.

However, the only issue that I have jurisdiction to decide in this case is whether CMS properly assigned April 27, 2017, as the correct effective billing date following deactivation.  I do not have the authority to review whether CMS’s deactivation (effective April 4, 2017) was proper.  Deactivation is not an “initial determination,” and deactivation decisions have a separate review process involving the submission of a rebuttal to CMS.  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).  Ultimately, CMS found that Petitioner did not respond to the November 16, 2016 revalidation request notice and deactivated his billing privileges as a result of that alleged inaction.  Given the regulatory framework, I am precluded from considering whether this deactivation was proper because I have no jurisdiction to do so.

Further, in his request for hearing, Petitioner asks that I find “the punishment does not meet the crime,” which I take as a request for equitable relief.  I do not have authority to provide equitable relief based on principles of fairness and thus cannot change Petitioner’s effective date based on such.  US Ultrasound,DAB No. 2302 at 8 (2010) (“[n]either the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).

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VI. Conclusion

I affirm CMS’s determination that Petitioner’s effective date for Medicare billing privileges is April 27, 2017.