Guillermo Ibarra, M.D., DAB CR5282 (2019)

DECISION

Guillermo Ibarra, M.D. (Dr. Ibarra or Petitioner) requested an administrative law judge (ALJ) hearing to dispute the effective date for reactivation of his Medicare billing privileges.  For the reasons stated below, I modify the reconsidered determination issued through a contractor for the Centers for Medicare & Medicaid Services (CMS) and conclude that the correct effective date for the reactivation of Petitioner’s billing privileges is March 30, 2017.

I.  Background and Procedural History

Dr. Ibarra, a psychiatrist, was enrolled in the Medicare program as a supplier prior to 2017.  CMS Exhibit (Ex.) 1 at 7.

In an October 4, 2016 notice sent to Dr. Ibarra, a CMS contractor stated that Dr. Ibarra needed to revalidate his Medicare enrollment record by December 31, 2016.  The notice also stated that a failure to respond to the notice could result in deactivation of Dr.  Ibarra’s Medicare enrollment, causing “a gap in [his] reimbursement” during the period of deactivation.  CMS Ex.  1 at 18.

Page 2

In a subsequent letter dated January 5, 2017, sent to Dr. Ibarra at a different address, the CMS contractor informed Dr. Ibarra that he had not revalidated his enrollment by the December 31, 2016 due date and reiterated that a deactivation would cause a gap in reimbursement.  CMS Ex.  1 at 16.  In a March 8, 2017 notice sent to Dr. Ibarra, the CMS contractor stated that it deactivated Dr. Ibarra’s Medicare billing privileges as of March 6, 2017, because Dr. Ibarra had not revalidated his enrollment.  The notice said that CMS “will not pay any claims after this date.”  CMS Ex.  1 at 14.

On March 30, 2017, the CMS contractor received from Dr. Ibarra a CMS-855I enrollment application.  CMS Ex.  1 at 10-13.  In an April 4, 2017 initial determination, the CMS contractor stated that Dr. Ibarra’s application was approved, and that his effective date of reactivation “reflects a gap in coverage from March 6, 2017 to March 30, 2017 for failure to respond to the revalidation requested development.”  CMS Ex.  1 at 7.

In his timely filed reconsideration request, Dr. Ibarra stated that the CMS contractor’s “revalidation request . . . went to FSS Psychiatric” which “is no longer in business.”  CMS Ex.  1 at 5.  According to Dr. Ibarra, the revalidation request was returned to the CMS contractor in January 2017, and “additional address information to contact Dr.  Ibarra was pursued.”  Dr. Ibarra stated further that after he received the deactivation letter, he “immediately began the process of electronic filing and gathering required signatures.”  Dr. Ibarra requested that the effective date be backdated 30 days “in order to remove the gap in coverage.”  CMS Ex.  1 at 5.

On June 16, 2017, the CMS contractor’s hearing officer issued an unfavorable reconsidered determination.  CMS Ex.  1 at 1-4.  The hearing officer noted that Dr.  Ibarra’s application was received on March 30, 2017, and this application was processed and completed on April 4, 2017.  The hearing officer concluded, “the effective date was issued correctly, causing a gap in your reimbursement from March 6, 2017, through March 30, 2017.”  CMS Ex.  1 at 2.

Petitioner requested a hearing to dispute the reconsidered determination.  The case was originally assigned to Judge Keith Sickendick for hearing and decision.  On August 11, 2017, Judge Sickendick issued an Acknowledgment and Prehearing Order (Order), which established a submission schedule for prehearing exchanges.  In response, CMS filed a motion for summary judgment with a brief in support of the motion and seven exhibits.  Because CMS’s exhibits did not conform to the requirements contained in his Order, Judge Sickendick ordered CMS to refile its exhibits.  CMS complied by filing an amended exhibit, CMS Ex.  1, to replace the seven exhibits previously filed, along with an amended motion for summary judgment and brief in support (CMS Br.).  CMS interpreted the reconsidered determination as setting a March 31, 2017 effective date.  CMS Br. at 5.

Page 3

Petitioner submitted a letter brief as his response (P. Br.) with no exhibits.  On November 20, 2018, the case was transferred to me.

II.  Decision on the Written Record

I admit CMS’s proposed amended exhibit into the record because Petitioner did not object to it.

The Order required each party to include with its prehearing exchange a list of any witnesses that it proposes to call at an oral hearing.  Order ¶ III(D)(1), (2); Civil Remedies Division Procedures (CRDP) § 16(a).  CMS expressly stated on its witness list that it would offer no witnesses in this case.  Petitioner neither filed a witness list nor indicated in its filings that it had any witnesses.  Therefore, I issue this decision based on the written record because “the parties d[id] not identify any proposed witnesses.”  CRDP § 19(d).

III.  Issue

Whether CMS had a legitimate basis to assign March 31, 2017, as the effective date for reactivation of Dr. Ibarra’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 .  .  .

Page 4

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).

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 March 30, 2017, the CMS administrative contractor received Petitioner’s enrollment application, which the CMS administrative contractor ultimately approved.

Dr. Ibarra submitted a CMS‑855I enrollment application to revalidate his enrollment as a supplier in the Medicare program, which CMS received on March 30, 2017.  CMS Ex.  1 at 10-13.  The CMS contractor ultimately approved Dr. Ibarra’s application.

2.  The effective date for Petitioner’s Medicare billing privileges is March 30, 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 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.  Medicare Program Integrity Manual (MPIM) § 15.27.1.2.  That guidance is consistent with the effective date for

Page 5

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, as noted above, the CMS contractor’s initial determination stated that Dr. Ibarra’s effective date of reactivation “reflects a gap in coverage from March 6, 2017 to March 30, 2017.”  CMS Ex.  1 at 7 (emphasis added).  I interpret this statement to mean that the CMS contractor set the effective date for reactivation of Dr. Ibarra’s Medicare billing privileges as March 30, 2017.

Subsequently, in the reconsidered determination, the hearing officer noted that Dr.  Ibarra’s application was received on March 30, 2017, and processed to approval, but found that the time frame of Dr. Ibarra’s deactivation was “from March 6, 2017 through March 30, 2017.”  CMS Ex.  1 at 2 (emphasis added).  The hearing officer did not explicitly state the effective date of reactivation.  I agree with CMS and interpret the hearing officer’s statement to mean that the last day of the deactivation period was March 30, 2017, thereby setting the effective date of reactivation as March 31, 2017.  CMS Br. at 5.

A discrepancy thus exists between the initial determination and the reconsidered determination with respect to the effective date of reactivation.  I note that, in its brief, CMS argues that March 31, 2017, is the effective date for reactivation.  CMS Br. at 1, 7.  I also note that CMS states in its brief that “CMS approved [Dr.] Ibarra’s revalidation received on March 30, 2017. . . .”  CMS Br. at 7.  However, because the CMS contractor received Petitioner’s enrollment application to reactivate his Medicare billing privileges on March 30, 2017, and ultimately approved this application, the effective date would be March 30, 2017, not March 31, 2017.  CMS Ex.  1 at 10; MPIM § 15.27.1.2; Dolce, DAB No. 2685 at 8.  Accordingly, the effective date of March 30, 2017, which was originally indicated in the initial determination, is the correct effective date under the regulations.

My review is limited to the bases set forth in the reconsidered determination.  Neb Group of Ariz. LLC, DAB No. 2573 at 7 (2014).  Because I interpret the reconsidered determination as having incorrectly set Petitioner’s effective date as March 31, 2017, I modify the reconsidered determination and find that the correct effective date for the reactivation of Petitioner’s Medicare billing privileges is March 30, 2017.  42 C.F.R. § 498.25(b) (indicating that a reconsidered determination is binding unless it is reversed or modified by a hearing decision.)

Petitioner asserts that he did not receive the revalidation notice because the CMS contractor used an invalid mailing address.  CMS Ex.  1 at 5.  Petitioner also states that the notice did not reach him in time and that he filed a revalidation application as soon as he was aware he needed to do so.  Hearing Request; P. Br.  In the reconsidered determination, the hearing officer noted that the October 4, 2016 revalidation request letter was sent to the correspondence address on file based on the latest CMS-855I

Page 6

application received and signed by Dr. Ibarra.  The contractor stated that the letter was returned on October 19, 2016, and subsequently, the contractor sent its January 5, 2017 letter to Dr. Ibarra’s current employer’s billing address, informing Dr. Ibarra that it had not received a revalidation application by the December 31, 2016 due date.  The contractor stated further that it sent the March 8, 2017 deactivation letter to the same billing address.

I have limited jurisdiction in this case.  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 is able to process to completion.  In the present case, the record only shows CMS received one enrollment application that CMS was able to process to completion and approve – the CMS-855I enrollment application received on March 30, 2017.  Therefore, March 30, 2017, 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,” 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 the contractor’s revalidation notice letters and deactivated his billing privileges as a result of that alleged inaction.

Further, to the extent that Petitioner requests that I provide an earlier effective date because he had provided services to Medicare beneficiaries in March 2017, I am unable to grant such a request.  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.”).

VI.  Order

I modify the CMS contractor’s reconsidered determination and conclude that Petitioner’s effective date for Medicare billing privileges is March 30, 2017.