Linda Alexander, PT, DAB CR5331 (2019)

DECISION

Petitioner, Linda Alexander, PT, is a physical therapist who challenges the effective date of her Medicare enrollment application dated August 22, 2016, following a period of deactivation resulting from an earlier rejected application. For the following reasons, I find CMS properly established August 22, 2016 as the effective date of Petitioner's enrollment, as it is the filing date of her most recent successful application.

I. Background and Procedural History

On April 16, 2016, CMS contractor Noridian Administrative Services (Noridian) advised Petitioner, Linda Alexander, that she was obligated to revalidate her Medicare enrollment record by June 30, 2016. CMS Exhibit (Ex.) 11. On May 24, 2016, Petitioner submitted such a revalidation application indicating her primary practice location was Providence Health & Services – Oregon, located at 510 Bridge Street, Vernonia, OR 97064 (the Bridge Street Address). CMS Ex. 10 at 3.

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Noridian inspected that site on June 16, 2016 and determined Petitioner was not operational to furnish Medicare-covered items or services at that address because the building had burned down at least a year before. CMS Exs. 8, 9.

Accordingly, Petitioner's Medicare billing privileges did not continue after June 30, 2016. CMS Ex. 11. On July 12, 2016, Noridian notified Petitioner that her revalidation application was denied due to the failed on-site inspection, citing 42 C.F.R. § 424.530(a)(5). CMS Ex. 8.

On August 22, 2016, Petitioner sent Noridian a new revalidation application that listed two practice locations: 1627 Woods Ct., Hood River, OR 97031 and 731 Pomona St., The Dalles, OR 97058. CMS Ex. 7 at 3. Noridian conducted on-site inspections and found Petitioner to be operational at both locations. CMS Exs. 5, 6. Accordingly, on October 17, 2016, Noridian informed Petitioner her revalidation application was approved with an effective date of August 22, 2016. Therefore, Petitioner had a lapse in coverage from June 30, 2016, through August 21, 2016. CMS Ex. 4.

Petitioner sought reconsideration of Noridian's determination and asked that the gap in billing coverage from June 30, 2016 to August 21, 2016 be eliminated. CMS Ex. 3. In a reconsidered determination, dated January 24, 2017, Noridian denied Petitioner's request for an earlier effective date. CMS Ex. 1.

Petitioner timely filed a request for hearing. On February 22, 2017, Administrative Law Judge Scott Anderson was designated to hear and decide this case, and issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order) that same day.1 On August 25, 2017, this matter was transferred to me.

II. Admission of Exhibits and Decision on the Record

With its brief (CMS Br.), CMS submitted eleven exhibits (CMS Exs. 1-11). In the absence of any objections, I admit CMS Exs. 1-11 into evidence. With her brief (P. Br.), Petitioner submitted five exhibits (P. Exs. 1-5). In the absence of any objections, I admit P. Exs. 1-5 into evidence.

Neither party identified witnesses. Consequently, I will not hold an in-person hearing in this matter, and I issue this decision based on the written record.2 Civ. Remedies Div. P. 19(d).

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III. Issue

Whether CMS had a legal basis to establish August 22, 2016, as the effective date of Petitioner's re-enrollment,

IV. Jurisdiction

I have jurisdiction to 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

A. Applicable Law

1. Enrollment

Petitioner 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 Management and Budget. 42 C.F.R. § 424.502. 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). In this case, the date of filing of Petitioner's subsequently-approved enrollment application is relevant. If a supplier 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).

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2. Revalidation

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).

3. Deactivation

The regulation authorizing deactivation explains that "[d]eactivation of Medicare billing privileges is considered an action to protect the provider or supplier from misuse of its billing number and to protect the Medicare Trust Funds from unnecessary overpayments." 42 C.F.R. § 424.540(c). CMS is authorized to deactivate an enrolled supplier's Medicare billing privileges if the enrollee does not report a change to the information supplied on the enrollment application within 90 calendar days of when the change occurred. Changes that must be reported include, but are not limited to, a change in practice location. 42 C.F.R. § 424.540(a)(2). If 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).

The Departmental Appeals Board (DAB) has unambiguously stated that a supplier "may not receive payment for claims for services during any period when [her] billing privileges were deactivated." Willie Goffney, Jr., M.D., DAB No. 2763 at 6 (2017); see Urology Grp. of NJ, LLC, DAB No. 2860 at 11 (2018) ("Taking these unique effects of revocation into consideration, it is reasonable to conclude that CMS intended for revocations and deactivations to share the feature of precluding a provider or supplier from collecting reimbursement for services rendered during the period of inactive Medicare billing privileges, while simultaneously intending for revocations to have more severe consequences on a provider's or supplier's ability to participate.").

4. Reactivation

The reactivation of an enrolled provider or supplier's billing privileges is governed by 42 C.F.R. § 424.540(b). The process for reactivation is contingent on the reason for deactivation. If CMS deactivates a supplier's billing privileges due to a reason other than nonsubmission of a claim, the supplier must apply for CMS to reactivate its Medicare billing privileges by completing and submitting the appropriate enrollment application(s) or recertifying its enrollment information, if deemed appropriate. 42 C.F.R. §§ 424.540(a)(3), (b)(1).

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B. Analysis

1. Petitioner has no right to appeal her deactivation.

On June 30, 2016, Noridian deactivated Petitioner's Medicare billing privileges due to the failed on-site inspection. In a letter dated July 12, 2016, Noridian notified Petitioner that her revalidation application was denied due to the failed on-site inspection, citing 42 C.F.R. § 424.530(a)(5). CMS Ex. 8.

Petitioner explains that she did not list the Bridge Street Address on her May 24, 2016 revalidation application. P. Br. at 2. She instead claims that she left the practice address field on the application blank, and that she was never informed of any consequences for not providing a practice address. Id. at 3. Petitioner surmises that CMS's application system automatically entered an incorrect address into the blank practice address field, noting that the same Medicare-assigned PTAN number is shared across several Providence Health & Services locations. P. Br. at 2-3.

I am fully sympathetic to Petitioner's argument that an unknown technical error resulted in her deactivation. But unfortunately, in the context of determining whether CMS correctly chose an effective date for reactivation, I have no authority to review CMS's decision to deactivate a supplier. 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, I note the incorrect Bridge Street Address is clearly visible on Petitioner's revalidation application. CMS Ex. 10 at 3. Petitioner is assumed to have reviewed the contents of the application before signing it. P. Ex. 3. CMS places the burden of providing "[c]omplete, accurate, and truthful responses" on prospective enrollees. 42 C.F.R. § 424.510(d)(2). Petitioner was therefore ultimately responsible for ensuring the accuracy of the contents of her enrollment application. But in any case, I must accept her deactivation and cannot overturn it.

2. Petitioner filed an approved revalidation application on August 22, 2016, and her Medicare enrollment can be no earlier than that date. 42 C.F.R. § 424.520(d).

On May 24, 2016, Petitioner Alexander submitted a revalidation application that listed an incorrect street address. CMS Ex. 10 at 3. Noridian performed an on-site inspection at that address on June 16, 2016, and determined Petitioner was not operational to furnish Medicare-covered items or services at that address because that building had burned down at least a year before. CMS Exs. 8, 9.

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Petitioner submitted another revalidation application to Noridian on August 22, 2016. CMS Ex. 7. Noridian conducted on-site inspections at the two addresses provided by Petitioner and found her to be operational at both locations. CMS Exs. 5, 6. Noridian subsequently approved this application. CMS Exs. 6, 8. Thus, pursuant to 42 C.F.R. § 424.520(d), the date Petitioner filed her subsequently-approved enrollment application – August 22, 2016 – is the correct effective date of enrollment. Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

There may be equitable grounds to shorten or eliminate the billing gap – I note here, for example, that CMS did not notify Petitioner of the failed site inspection and the denial of her application until July 12, 2016, nearly 50 days later. CMS Ex. 8. Moreover, Petitioner, taken at her word, did not submit an incorrect practice address to CMS, but fell victim to the vagaries of CMS's automated application system.

But to the extent Petitioner seeks equitable relief from me in the form of an earlier effective date of reactivated billing privileges, I am unable to provide it. US Ultrasound, DAB No. 2302 at 8 (2010) ("Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements."); see also 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) ("An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground, even a constitutional one.").

CMS does, however, enjoy the authority to provide such equitable relief3 and should consider exercising its discretion in favor of otherwise honest billers who do not seek to defraud the program, but have simply made, as in this case, clerical errors.

VI. Conclusion

For the foregoing reasons, CMS properly determined Petitioner's effective date of re-enrollment to be August 22, 2016, the date she filed her subsequently-approved application.

1. I adopt Judge Anderson's Pre-hearing Order in its entirety.
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2. As such, CMS's motion for summary judgment is denied as moot.
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3. Indeed, as a matter of policy CMS now explicitly allows reactivated suppliers like Petitioner to receive up to 30 days of retrospective billing privileges. MPIM, ch. 15, § 15.17(B) (rev. 865, eff. Mar. 12, 2019).
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