Christine Mlot, M.D., DAB CR5275 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a CMS contractor, determined that the effective date for the Medicare billing privileges for Christine Mlot (Dr. Mlot or Petitioner) was December 31, 2015.  Dr. Mlot requested an administrative law judge (ALJ) hearing to dispute this effective date.  Because CMS’s contractor approved Dr. Mlot’s revalidation enrollment application, which it received on December 31, 2015, the CMS contractor correctly determined that the effective date for Dr. Mlot’s billing privileges was December 31, 2015.  Therefore, I affirm CMS’s determination.

I. Background and Procedural History

Dr. Mlot is a physician who had been enrolled in the Medicare program as a supplier prior to 2014.  In an August 11, 2014 notice sent to Dr. Mlot, a CMS contractor stated that Dr. Mlot needed to revalidate her Medicare enrollment record by submitting a CMS-855 form within 60 days.  The notice also stated that a failure to respond to the notice could result in deactivation of Dr. Mlot’s Medicare billing privileges.  CMS Exhibit (Ex.) 1; Petitioner (P.) Ex. 1.  The CMS contactor did not receive a response to this notice and deactivated Dr. Mlot’s Medicare billing privileges.  CMS Ex. 5 at 2; P. Ex. 5 at 2.

Page 2

Dr. Mlot submitted CMS-855I and CMS-855R applications to the CMS contractor on December 28, 2015.  CMS Ex. 2; P. Ex. 2.  The CMS contractor received those forms on December 31, 2015.  P. Ex. 4 at 7.

In a January 19, 2016 initial determination, the CMS contractor approved Petitioner’s “initial Medicare enrollment” with an effective date of October 1, 2015.  P. Ex. 3 at 1.  Petitioner requested reconsideration in which she stated that she:  had never received the notice to revalidate; filed the CMS-855I and CMS-855R applications after learning of her deactivation; and requested that her effective date be February 10, 2015, in order to receive reimbursement for services provided to Medicare beneficiaries rendered between that date and the new effective date.  P. Ex. 4; see also CMS Ex. 4.

On May 13, 2016, the CMS contractor issued an unfavorable reconsidered determination.  CMS Ex. 5; P. Ex. 5.  Significantly, the reconsidered determination stated:

The provider was deactivated due to no response to revalidation on February 10, 2015.  The provider had 120 days from the date of deactivation to submit a revalidation application and maintain the original PTAN and effective date.  If not, the provider would have to reactivate.

The application for the provider was received December 31, 2015 and the effective [date] should be December 31, 2015.  This will be updated in our system.

CMS Ex. 5 at 2; P. Ex. 5 at 2.

In a May 20, 2016 notice, the CMS contractor indicated that Petitioner’s effective date was December 31, 2015.  CMS Ex. 3 at 1; P. Ex. 6 at 1.

Petitioner requested a hearing to dispute that determination.  The case was originally assigned to Judge Carolyn Cozad Hughes for hearing and decision.  On December 8, 2016, Judge Hughes issued an Acknowledgment and Prehearing Order (Order), which established a submission schedule for prehearing exchanges.  In response, CMS filed a motion for summary judgment and brief and five exhibits.  Petitioner submitted a response to the motion for summary judgment and a brief (P. Br.) along with six exhibits.  On November 20, 2018, the case was transferred to me.

II. Decision on the Written Record

I admit all of the parties’ proposed exhibits into the record because neither party objected to them.

Page 3

I issue this decision based on the written record because both parties affirmatively stated that they were not offering any witnesses.  Order ¶¶ 8-11; CRDP § 19(d).

III. Issue

Whether CMS had a legitimate basis to assign December 31, 2015, as the effective date for reactivation of Petitioner’s Medicare billing privileges.

IV. Jurisdiction

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

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 supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  Once the . . . supplier successfully completes the enrollment process . . . CMS enrolls the . . . 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, 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 suppliers that it is time to revalidate, the 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).

Page 4

CMS can deactivate an enrolled 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 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 supplier’s billing privileges due to an untimely response to a revalidation request, the enrolled 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 December 31, 2015, the CMS administrative contractor received Petitioner’s enrollment application, which the CMS administrative contractor ultimately approved.

In order to revalidate enrollment, Petitioner mailed completed CMS-855I and CMS-855R enrollment and reassignment applications to the administrative contractor on December 28, 2015.  CMS Ex. 2 at 29.  The CMS contractor received the applications on December 31, 2015.  P. Ex. 4 at 7.  The CMS contractor approved the applications and, on reconsideration, gave Petitioner an effective date of billing privileges as December 31, 2015, based on the date of receipt of the CMS-855I.  CMS Exs. 3, 5; P. Exs. 3, 5, 6.

2. The effective date for Petitioner’s Medicare billing privileges is December 31, 2015.

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 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 contractors states that the effective date for the reactivation of Medicare billing privileges is the date on which the contractor received the enrollment application which was processed to completion.  Medicare Program Integrity Manual (MPIM) § 15.27.1.2.  That guidance is consistent with the effective date for Medicare billing privileges in § 424.520(d) and with § 424.555(b)’s prohibition on reimbursing services performed by deactivated suppliers.

In the present case, the CMS contractor properly determined that Petitioner’s effective date for Medicare billing privileges was December 31, 2016, because that is the date that CMS received Petitioner’s CMS-855I revalidation enrollment application that the CMS contractor ultimately approved.

Page 5

In its submission, Petitioner asserts that she did not receive the notice to revalidate and the notice of deactivation, and that Petitioner first learned of either issue in December 2015, when the CMS contractor started to deny Petitioner’s claims for reimbursement.  P. Br. at 1-2.  Petitioner asserted that it was CMS’s burden to show that Petitioner received the notice to revalidate and the notice to deactivate.  P. Br. at 3.  Petitioner also thought that she should be considered to have revalidated, rather than treated as an initial enrollment in Medicare.  P. Br. at 6.

As an initial matter, as indicated above, both revalidations and initial enrollments are controlled by the same effective date provisions.  Therefore, the CMS contractor’s decision to treat this matter as an initial enrollment rather than a revalidation does not change the effective date of billing privileges.

As to Petitioner’s concerns about a lack of notice related to revalidation and deactivation, I have limited jurisdiction.  I can only review the effective date provided to Petitioner under 42 C.F.R. § 424.520(d).  That regulation provides an effective date as the date CMS received an enrollment application that it was able to process to completion.  In the present case, the record shows that CMS was able to process to completion and approve Petitioner’s application received on December 31, 2015.  Therefore, December 31, 2015, is the correct effective date.

I do not have the authority to review CMS’s deactivation of Petitioner’s Medicare billing privileges.  Deactivation is not an “initial determination” subject to appeal, 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).

In this case, CMS found that Petitioner did not respond to its revalidation notice and deactivated her billing privileges as a result of that alleged inaction.  Given the regulatory framework discussed above, I am precluded from considering whether this deactivation was proper because I have no jurisdiction to do so.

Further, to the extent that Petitioner requests that I provide an earlier effective date based on grounds of fairness and equity, I do not have authority to provide equitable relief based on principles of fairness and thus cannot change Petitioner’s effective date for that reason.  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.”).

Page 6

VI. Conclusion

I affirm CMS’s determination that Petitioner’s effective date for Medicare billing privileges is December 31, 2015.